Big plastic's 'trashy' lawsuit

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Single-use plastic straws, which could be banned by the end of 2021. Image: Chemist 4 U/Flickr

Environmental groups across Canada are calling for the plastics industry to drop its lawsuit against the federal government, calling it a "trashy tactic" to stop meaningful action on plastic waste.

On May 12, the federal government added "plastic manufactured items" to the list of toxic substances under the Canadian Environmental Protection Act. Within days, 27 members of the $35-billion Canadian plastics industry had formed the "Responsible Plastic Use Coalition" and filed an application for a lawsuit with the Federal Court of Canada on May 18.

The "toxic" designation allows the government to ban six single-use plastic items -- plastic grocery bags, plastic straws, cutlery, stir sticks, six-pack rings, and take-out containers made from hard-to-recycle plastic -- by the end of 2021, without tabling new legislation. The designation also allows the government to require that new plastic products include recycled content.

Toxic substances are defined under the Canadian Environmental Protection Act as substances that cause, or may cause, immediate or long-term harm to the environment, biological diversity or human health.

The coalition members include the top three producers of plastic in Canada: NOVA Chemical, Dow Chemical, and Imperial Oil/ExxonMobil. These three companies make about three-quarters of the plastic polymers produced in Canada. Plastic polymers are made from ethane, a component of natural gas. These polymers are then turned into plastic items, including packaging that is often used once and then thrown away.

Every day in Canada, at least 8,000 tonnes of plastic waste end up in landfills, incinerators, or dumped directly into the natural environment. Only nine per cent of plastic in Canada is recycled after it is used, according to a 2019 government study.

Environmental groups -- such as the David Suzuki Foundation, Environmental Defence, Greenpeace Canada, Health and Environment Justice Support, Sierra Club Ontario, Surfrider Foundation Canada, and Toronto Environmental Alliance -- are urging the federal government to defend the "toxic" listing and move ahead swiftly to implement the promised regulations.

The government of Canada wants to reach its zero plastic waste goal by 2030.

Overreach?

The Responsible Plastic Use Coalition states, "Declaring plastic manufactured items 'toxic' is a significant overreach by the federal government and will have unnecessary and unintended consequences."

According to The Globe and Mail, the coalition document filed in federal court states:

"The definition of 'plastic manufactured items' is an impossibly broad term that captures thousands of products essential to modern living, from medical equipment to food packaging to personal protective equipment."

The coalition also argues that the "toxic" designation is unconstitutional because waste management is a provincial jurisdiction, not a federal one. Moreover, the coalition states that the federal government did not provide sufficient scientific evidence to warrant a "toxic" designation.

However, University of Ottawa law and economics professor Stewart Elgie told The Globe that the Canadian Environmental Protection Act includes the precautionary principle as a guiding concept.

As cited in The Globe, the act states "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."

For this reason, Elgie told The Globe, governments don't need scientific certainty to be justified in taking regulatory action.

The coalition claims that the "challenge we face is not that plastic is toxic, but rather the challenge of post-consumer plastic in the environment resulting from human behaviour and systemic waste management and recycling shortfalls."

As Karen Wirsig, program manager for plastics at Environmental Defence, observed in a joint press release with other environmental groups:

"Big Plastic likes to pretend that plastic waste is someone else's fault: consumers, litterers and municipal waste management. But the real issue is that there's already too much plastic and the industry wants to prevent the government from doing anything about it."

Wirsig pointed out that the European Union, Kenya, Australia, New Zealand and China are all implementing bans on single-use plastics.

"It's time Canada does the same," she said in a July 8 statement.

Plastics and federal subsidies

A December 2020 report by Greenpeace Canada found that between 2017 and 2020, federal and provincial governments provided more than $334 million to virgin plastics producers, with millions more provided during the pandemic.

Ironically, one of the companies suing the federal government received millions from that same government in recent years. NOVA Chemical received a $35-million grant from the federal government's Strategic Investment Fund for a new polyethylene facility in 2018 to produce virgin plastics.

When asked if NOVA Chemical should return the money, Wirsig answered by email:

"It's unfortunate that the government is subsidizing plastics production with one hand while trying to clamp down on plastic pollution on the other. What's worse is that NOVA Chemical took money from the federal government it can now use against us. Should NOVA pay the money back? Sure. But more important at this point is to drop the lawsuit, which is wasting public resources, so that we can focus on protecting the environment."

Exxon knew

The Center for International Environmental Law (CIEL) in September 2017 issued a report titled "Plastic Industry Awareness of the Ocean Plastics Problem."

The report revealed that as early as 1960, researchers were discovering plastic in the digestive tracts of sea birds. "Big Plastic" and petrochemical companies, including Dow Chemical and Mobil (now ExxonMobil), were aware of plastic pollution of the oceans as long ago as 1973, but did nothing about it.

Indeed, Mobil Oil introduced plastic shopping bags in 1976 in the U.S.

Plastic bottles and bags are now the most common plastic waste in the oceans.

"#ExxonKnew" usually refers to the company's decades-long denial and cover-up of climate change, but it should now be expanded to include the company's knowledge of plastics pollution of the oceans.

In the U.S., nearly two dozen lawsuits have been filed by cities and states against the oil industry for environmental devastation aggravated by decades of lies and deceit to suppress climate change warnings from their own scientists. The same charges could be made for plastics pollution.

The fact that Imperial Oil/ExxonMobil is suing the government to stop action against plastics regulation is outrageous, but it fits with the industry's endeavors. Many fossil fuel companies consider petrochemicals and plastics as "the backdrop for their industry's future, the product the world really can't live without."

But as Greenpeace Canada's plastics campaigner Laura Yates stated in the same joint press release:

"Our only way out of this crisis is phasing out single-use plastics and petrochemical investments, and to embrace and support reusable models. Canadians need to support the federal government to move forward with implementing the proposed single-use plastic ban and tell Big Plastic they've had enough lies."

Canadian freelance writer Joyce Nelson is the author of seven books. She can be reached via www.joycenelson.ca

Image: Chemist 4 U/Flickr

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