Colby Cosh meditates on the unexpectedly sensible decision by a Federal Court judge, striking down the Feral government’s virtue-signal-made-law on single-use plastic items:
“Single use plastic objects on pink background” by wuestenigel is licensed under CC BY 2.0 
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On Thursday a Federal Court judge, the Hon. Angela Furlanetto, startled the Dominion by essentially sweeping aside the Liberal government’s ban on a short list of single-use plastic items, including grocery bags, cutlery, takeout containers and drinking straws. This was a law despised by almost everybody who hasn’t personally had intimate relations with an old-growth tree or an orca. We all now live in a world where we accumulate large numbers of cloth grocery bags and eat takeout meals off of wooden disposable cutlery in the name of the environment; meanwhile, we no longer accumulate the “single-use” grocery bags that us skinflints used to hoard and reuse before consigning them harmlessly to a landfill.
All right, maybe it’s a stupid law that does more environmental harm than good. Federal governments are allowed to make those! But Justice Furlanetto, asked for judicial review by Alberta and Saskatchewan and a coalition of petrochemical processors, concluded that the actual rule was “both unreasonable and unconstitutional”.
Her judgment is a thorny 200-paragraph monster, but the innermost logic of it is simple. The federal Environmental Protection Act allows Ottawa to ban or restrict “toxic” substances that might enter the environment. In 2021 the Liberals made a cabinet order essentially saying “These here single-use plastic items are hereunto declared to be toxic. Abracadabra!” No one can show that these items are actually poisonous in the ordinary sense, and the listed items weren’t condemned as substances, i.e., for their chemical content or composition. The reasoning of the government was that if an Arctic lynx might choke on the ring from a six-pack of Labatt Blue, that kinda sorta makes the plastic in the ring “toxic”, and justifies the federal government in the use of its criminal-law power.
I don’t know if anyone at the cabinet table anticipated how this argument would fare under a “reasonableness” analysis with lawyers for two provinces, plus Dow Chemical and Imperial Oil, among others, on the opposite side. But the government almost certainly faced a piece of extra bad luck in having the case go before Justice Furlanetto, a jurist with hard-science credentials that include a master’s degree in biochemistry. She did not like the slippery game being played with the concept of “toxicity”, not one bit.
In her judgment she observes that the explicitly stated rationale for the plastics ban was that “all plastic manufactured items have the potential to become plastic pollution”. Justice Furlanetto found this reasoning to be puzzlingly ass-backward. “The basic principle of toxicity for chemicals is that all chemical substances have the potential to be toxic,” she writes. “However, for a chemical substance to be toxic it must be administered to an organism or enter the environment at a rate (or dose) that causes a high enough concentration to trigger a harmful effect. In this instance, the reverse logic appears to be applied: all PMI are identified as toxic because they are made of plastic and because all plastic is deemed to have the potential to become plastic pollution.”
