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Environmental impact assessment and the promise of eco-pragmatism : a consideration of the Canadian Environmental Assessment Act Sandgathe, Tracey Layne

Abstract

Because of the potential for development to have negative environmental impacts, one of the most important questions addressed by environmental law and policy is whether and how to allow development to proceed. In Canada this question is answered primarily through environmental impact assessment ("EIA"). At the federal level, EIAs are required under the Canadian Environmental Assessment Act, S.C. 1992, c. 37 ("CEAA") for certain types of proposed projects and activities. Although CEAA's purposes include fostering both a healthy environment and economy, the Act does not provide any instruction on how to balance or choose between these goals in situations where both goals cannot be served. In 1999 Professor Daniel Farber developed a methodology he refers to as 'eco-pragmatism' in an attempt to create a means by which society's competing (and often contrary) values can be balanced and satisfactory trade-offs arrived at. In this thesis the differences between CEAA and eco-pragmatism are explored and consideration is given to whether eco-pragmatism might assist in resolving the value conflicts that often characterize EIAs. Of particular interest is whether Farber's approach might improve the CEAA framework and assist CEAA decision-makers in determining whether proposed projects should be approved. It is argued that although eco-pragmatism is useful, it is not adequate if the ultimate goal is environmental protection that is sustainable into the future. Both CEAA and eco-pragmatism focus on the mitigation of negative environmental effects, rather than on achieving long-term environmental gains or observing a minimum environmental standard. Accordingly, both arguably have the effect of slowing the erosion of environmental quality, but each fails to observe some sort of environmental 'bottom line' that would impose an ultimate limit on negative impact. It is suggested that an ultimate limit is a necessary (albeit difficult) element of environmental law.

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