[DATE]

[DOCUMENT TITLE]
[DOCUMENT SUBTITLE]

SARIP AILA AMPATUAN

[COMPANY NAME]
[Company address]
 Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel

FELIPE YSMAEL, JR. & CO., INC. vs. DEPUTY EXECUTIVE SECRETARY, et.
ENVIRONMENTAL LAW al. (1990) ....................................................................................................................... 14
According to the syllabus of Atty. Jeffrey Jefferson Coronel MINORS OPOSA, et. al. & THE PHILIPPINE ECOLOGICAL NETWORK,
INC. vs. FACTORAN, JR. & ROSARIO (1993) ................................................... 15
Table of contents MUSTANG LUMBER, INC. vs. COURT OF APPEALS, FACTORAN, JR., &
TABLE OF CONTENTS............................................................................................ I ROBLES (1996) ............................................................................................................ 19
PAAT & LAYUGAN, JR. vs. COURT OF APPEALS, BACULI, SPOUSES DE
CLIMATE CHANGE ....................................................................1 GUZMAN (1997) ........................................................................................................ 22
RISING SEAS .......................................................................................................................1 DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES vs.
DARAMAN, LUCENECIO & ROSALES (2002) .................................................. 24
QUIZ #1 .............................................................................................. 1
DY doing business under the name and style RONWOOD LUMBER vs.
CLIMATE CHANGE COMMISSION (R.A. 9272) ..............................................................1
COURT OF APPEALS & LAUSA (1999) ............................................................... 26
CLIMATE CHANGE ACT OF 2009 (R.A. 9729) ..............................................................1
PHILIPPINE MINING ACT OF 1995 (R.A. 7942) ....................... 27
KYOTO PROTOCOL ...................................................................2
QUIZ #6 ............................................................................................ 30
QUIZ #2 .............................................................................................. 3
MINERS ASSOCIATION OF THE PHILIPPINES vs. FACTORAN, JR. &
INTERNATIONAL ENVIRONMENTAL LAW ..................................3 MUYCO (1995) ........................................................................................................... 30
LA BUGAL-B’LAAN TRIBAL ASSOCIATION vs. RAMOS (January 2004) 32
THE THREE PRIMARY METHODS OF ENVIRONMENTAL REGULATION ...........................3 LA BUGAL-B’LAAN TRIBAL ASSOCIATION vs. RAMOS (December 2004)
THE MOST IMPORTANT OUTCOMES OF THE STOCKHOLM CONFERENCE ...................3 .......................................................................................................................................... 34
THE UNITED NATIONS ENVIRONMENTAL PROGRAM (UNEP)....................................3 LEPANTO CONSOLIDATED MINING, CO. vs. WMC RESOURCES INTL.
KEY DOCUMENTS PRODUCED BY THE 1992 RIO EARTH SUMMIT ...............................4 PTY. LTD., WMC PHILIPPINES, INC. & SAGITTARIUS MINES, INC. (2006)
THE PURPOSE OF THE 1987 MONTREAL PROTOCOL ON SUBSTANCES THAT .......................................................................................................................................... 36
DEPLETE THE OZONE LAYER ............................................................................................4 BENGUET CORPORATION vs. DEPARTMENT OF ENVIRONMENT AND
THE PURPOSE OF UN FRAMEWORK CONVENTION ON CLIMATE CHANGE NATURAL RESOURCES – MINES ADJUDICATION BOARD & J.G. REALTY
(UNFCCC) ........................................................................................................................4 AND MINING CORPORATION (2008) ............................................................... 38
LONEY, REID, & HERNANDEZ vs. PEOPLE (2006) ......................................... 40
THE CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF WILD
DIDIPIO EARTH-SAVERS’ MULTI-PURPOSE ASSOCIATION
FAUNA AND FLAURA (CITIES) ........................................................................................4
INCORPORATED (DESAMA), et. al. vs. GOZUN, RAMOS, ROMULO,
THE PURPOSE OF THE UN CONVENTION ON BIOLOGICAL DIVERSITY .......................4
FERRER, & SANDERCOCK (2006) ........................................................................ 42
THE BASEL CONVENTION ON THE CONTROL OF TRANSBOUNDARY MOVEMENTS
OF HAZARDOUS WASTES AND THEIR DISPOSAL ..........................................................4 ENERGY ................................................................................... 44
DEBT-FOR-NATURE SWAPS ..............................................................................................4
NUCLEAR FREE PHILIPPINE COALITION, et al. vs. NATIONAL POWER
DESERTIFICATION AND ITS KEY FACTORS ........................................................................4
CORPORATION, et al. (1986) ................................................................................ 44
THE INTERNATIONAL COURT OF JUSTICE’S DEFINITION OF SUSTAINABLE
DEVELOPMENT ...................................................................................................................4 ECOLOGICAL SOLID WASTE MANAGEMENT ACT OF 2000
FOUR MAJOR EVENTS OR OUTCOMES THAT HAVE THE POTENTIAL TO DIVERT (R.A. 9003) ............................................................................... 45
HUMANITY ..........................................................................................................................5
QUIZ #7 ............................................................................................ 48
CONSTITUTIONAL PROVISIONS ................................................5 PROVINCE OF RIZAL, et. al. vs. EXECUTIVE SECRETARY, et. al. (2005) . 48

DENR ..........................................................................................6 CLEAN WATER ACT OF 2004 (R.A. 9275) ............................... 54

QUIZ #3 .............................................................................................. 6 STA. ROSA REALTY DEVELOPMENT CORPORATION vs. COURT OF
APPEALS, AMANTE, et. al. (2001) ........................................................................ 55
PHILIPPINE ENVIRONMENT POLICY (P.D. 1151) .......................6
CLEAN AIR ACT OF 1999 (R.A. 8749) ..................................... 60
PHILIPPINE ENVIRONMENT CODE (P.D. 1152)..........................6
QUIZ #8 ............................................................................................ 62
REORGANIZATION ACT OF THE DEPARTMENT OF METROPOLITAN MANILA DEVELOPMENT AUTHORITY vs. JANCOM
ENVIRONMENT AND NATURAL RESOURCES (E.O. 192) ...........8 ENVIRONMENTAL CORPORATION & JANCOM INTERNATIONAL
DEVELOPMENT PROJECTS PTY. LIMITED OF AUSTRALIA (2002) ........... 63
POLLUTION CONTROL LAW (P.D. 984)......................................8
NATIONAL INTEGRATED PROTECTED AREAS SYSTEM (NIPAS)
QUIZ #4 .............................................................................................. 9
ACT OF 1992 (R.A. 7586) ....................................................... 65
MEAD vs. ARGEL (1982) ............................................................................................ 9
POLLUTION ADJUDICATION BOARD vs. COURT OF APPEALS & SOLAR RENEWABLE ENERGY ACT OF 2008 (R.A. 9513)..................... 65
TEXTILE FINISHING CORPORATION (1991) .................................................... 10
TECHNOLOGY DEVELOPERS, INC. vs. COURT OF APPEALS, ATIENZA, & ROLE OF LOCAL GOVERNMENTS ........................................... 65
CRUZ (1991) ................................................................................................................ 11
PHILIPPINE DISASTER RISK REDUCTION AND MANAGEMENT ACT OF 2010 (R.A.
RODRIGUEZ, JR., et. al. vs. INTERMEDIATE APPELLATE COURT &
DAYTONA CONSTRUCTION AND DEVELOPMENT COROPRATION 10121) ............................................................................................................................ 65
(1987) ............................................................................................................................. 12 SOCIAL JUSTICE SOCIETY, CABIGAO, & TUMBOKON vs. ATIENZA, JR.
(2008) ............................................................................................................................. 65
TOXIC SUBSTANCES AND HAZARDOUS AND NUCLEAR TANO, et. al. vs. SOCRATES, MEMBERS OF SANGGUNIAN
WASTES ACT OF 1990 (R.A. 6969) ..........................................12 PANLALAWIGAN OF PALAWAN (1997) ........................................................... 75
TATEL vs. MUNICIPALITY OF VIRAC, et. al. (1992) ........................................ 81
REVISED FORESTRY CODE (P.D. 705) ......................................13 QUIZ #9 ............................................................................................ 83
METROPOLITAN MANILA DEVELOPMENT AUTHORITY, DEPARTMENT
REVISED FORESTRY CODE (E.O. 277, AMENING P.D. 705) ....13
OF ENVIRONMENT AND NATURAL RESOURCES, DEPARTMENT OF
QUIZ #5 ............................................................................................ 14 EDUCATION, CULTURE AND SPORTS (now Department of Education),

Environmental Law | Page i

Compiled and edited by Aila Ampie
Special contribution by Louis Palma Gil
 Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel

DEPARTMENT OF HEALTH, DEPARTMENT OF AGRICULTURE,

DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, DEPARTMENT OF
BUDGET AND MANAGEMENT, PHILIPPINE COAST GUARD, PHILIPPINE
NATIONAL POLICE MARITIME GROUP, and DEPARTMENT OF THE
INTERIOR AND LOCAL GOVERNMENT vs. CONCERNED RESIDENTS OF
MANILA BAY (2008) ................................................................................................. 83

RULES OF PROCEDURE FOR ENVIRONMENTAL CASES...........91

WRIT OF KALIKASAN VS. WRIT OF CONTINUING MANDAMUS ..............................100

ISO 14000 ..............................................................................102

WRIT OF KALIKASAN .............................................................102
HENARES, JR., AGUSTIN, HENARES, et. al. vs. LAND TRANSPORTATION
FRANCHISING AND REGULATORY BOARD & DEPARTMENT OF
TRANSPORTATION AND COMMUNICATIONS (2006) .............................102
WEST TOWER CONDOMINIUM CORPORATION vs. FIRST PHILIPPINE
INDUSTRIAL CORPORATION, FIRST GEN CORPORATION, JOHN DOES
& RICHARD DOES (2015) .....................................................................................103
SECRETARY OF DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES PAJE vs. CASIÑO, PLATINO, MARIANO, et. al. (2015) .....104
ARIGO, et. al. vs. SWIFT (2014)...........................................................................107
GREENPEACE SOUTHEAST ASIA vs. ENVIRONMENTAL MANAGEMENT
BUREAU of the DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES ...............................................................................................................111
RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE
TAÑON STRAIT, joined in and represented herein by human beings
RAMOS, EISMA-OSORIO, in their capacity as legal guardians of the
lesser life-forms and as responsible stewards of God’s creation vs.
REYES, ATIENZA, SIBBALUCA, et. al. (2015) ..................................................111
CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER, et. al. vs.
REYES, ATIENZA, SIBBALUCA, et,. al. (2014) .................................................111

BAN AERIAL SPRAY (PRECAUTIONARY PRINCIPLE) .............113

20 REASONS TO BAN AERIAL SPRAYING IN DAVAO CITY ......................................113
LAWYERS BACK DAVAO ORDINANCE VERSUS AERIAL SPRAYING .........................114

Environmental Law | Page ii

Compiled and edited by Aila Ampie
Special contribution by Louis Palma Gil

Climate Change
Rising Seas
New York Times Article
QUIZ #1
1. According to the United Nations High Commissioner for Refugees, all the
residents of Kiribati, along with other low-lying island states such as the
Maldives and Tuvalu, could be forced to flee as a result of climate change.
“Entire populations could thus become stateless.
2. A growing body of research shows that climate change is rapidly melting the
Greenland ice sheet. In 2012, satellite observations revealed an “extreme melt
event” in which ice melted at or near the surface of 98.6 percent of the ice
sheet.
3. The San Blas archipelago, a chain of more than 350 white-sand islands
sprinkled across the Caribbean coast of Panama, has been home to the
indigenous Kuna people for thousands of years. Now, rising sea levels and
higher storm surges are flooding their villages. Scientists at the Smithsonian
Tropical Research Institute estimate that sea levels around the islands are rising
at a rate of about three-quarters of an inch annually, and that the islands will
be underwater in the next 20 to 30 years.
4. Miami, one of the nation’s most populous cities, is built atop a porous
limestone foundation on the South Florida coast, making it extremely
vulnerable to rising sea levels, according to the federal government’s 2013
draft National Climate Assessment
5. Like its Pacific island neighbor Kiribati, Fiji is seeing the effects of the
encroaching ocean, and the government has begun relocating residents from
the archipelago’s outer islands and low-lying coastal areas to the larger
mainland.
Climate Change Commission (R.A. 9272)
Climate Change Act of 2009 (R.A. 9729)
Section 3. Definition of Terms. – For purposes of this Act, the following
shall have the corresponding meanings:
a. “Adaptation” refers to the adjustment in natural or human systems
in response to actual or expected climatic stimuli or their effects,
which moderates harm or exploits beneficial opportunities.
b. “Adaptive capacity” refers to the ability of ecological, social or
economic systems to adjust to climate change including climate
variability and extremes, to moderate or offset potential damages
and to take advantage of associated opportunities with changes in
climate or to cope with the consequences thereof.
c. “Anthropogenic causes” refer to causes resulting from human
activities or produced by human beings.
d. “Climate Change” refers to a change in climate that can be
identified by changes in the mean and/or variability of its properties
and that persists for an extended period typically decades or longer,
whether due to natural variability or as a result of human activity.
e. “Climate Variability” refers to the variations in the average state
and in other statistics of the climate on all temporal and spatial scales
beyond that of individual weather events.
f. “Climate Risk” refers to the product of climate and related hazards
working over the vulnerability of human and natural ecosystems.
g. “Disaster” refers to a serious disruption of the functioning of a
community or a society involving widespread human, material,
economic or environmental losses and impacts which exceed the
ability of the affected community or society to cope using its own
resources.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
h. “Disaster risk reduction” refers to the concept and practice of
reducing disaster risks through systematic efforts to analyze and
manage the causal factors of disasters, including through reduced
exposure to hazards, lessened vulnerability of people and property,
wise management of land and the environment, and improved
preparedness for adverse events.
i. “Gender mainstreaming” refers to the strategy for making
women’s as well as men’s concerns and experiences an integral
dimension of the design, implementation, monitoring, and
evaluation of policies and programs in all political, economic, and
societal spheres so that women and men benefit equally and
inequality is not perpetuated. It is the process of assessing the
implications for women and men of any planned action, including
legislation, policies, or programs in all areas and at all levels.
j. “Global Warming” refers to the increase in the average
temperature of the Earth’s near-surface air and oceans that is
associated with the increased concentration of greenhouse gases in
the atmosphere.
k. “Greenhouse effect” refers to the process by which the absorption
of infrared radiation by the atmosphere warms the Earth.
l. “Greenhouse gases (GHG)” refers to constituents of the
atmosphere that contribute to the greenhouse effect including, but
not limited to, carbon dioxide, methane, nitrous oxide,
hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride.
m. “Mainstreaming” refers to the integration of policies and measures
that address climate change into development planning and sectoral
decision-making.
n. “Mitigation” in the context of climate change, refers to human
intervention to address anthropogenic emissions by sources and
removals by sinks of all GHG, including ozone- depleting substances
and their substitutes.
o. “Mitigation potential” shall refer to the scale of GHG reductions
that could be made, relative to emission baselines, for a given level
of carbon price (expressed in cost per unit of carbon dioxide
equivalent emissions avoided or reduced).
p. “Sea level rise” refers to an increase in sea level which may be
influenced by factors like global warming through expansion of sea
water as the oceans warm and melting of ice over land and local
factors such as land subsidence.
q. “Vulnerability” refers to the degree to which a system is
susceptible to, or unable to cope with, adverse effects of climate
change, including climate variability and extremes. Vulnerability is a
function of the character, magnitude, and rate of climate change and
variation to which a system is exposed, its sensitivity, and its adaptive
capacity.
Section 4. Creation of the Climate Change Commission. – There is
hereby established a Climate Change Commission, hereinafter referred to
as the Commission.
The Commission shall be an independent and autonomous body and shall
have the same status as that of a national government agency. It shall be
attached to the Office of the President.
The Commission shall be the sole policy-making body of the government
which shall be tasked to coordinate, monitor and evaluate the programs
and action plans of the government relating to climate change pursuant
to the provisions of this Act.
The Commission shall be organized within sixty (60) days from the
effectivity of this Act.
Environmental Law | Page 1
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Special contribution by Louis Palma Gil

Section 5. Composition of the Commission. – The Commission shall be
composed of the President of the Republic of the Philippines who shall
serve as the Chairperson, and three (3) Commissioners to be appointed
by the President, one of whom shall serve as the Vice Chairperson of the
Commission.
The Commission shall have an advisory board composed of the following:
a. Secretary of the Department of Agriculture;
b. Secretary of the Department of Energy;
c. Secretary of the Department of Environment and Natural Resources;
d. Secretary of the Department of Education;
e. Secretary of the Department of Foreign Affairs;
f. Secretary of the Department of Health;
g. Secretary of the Department of the Interior and Local Government;
h. Secretary of the Department of National Defense, in his capacity as
Chair of the National Disaster Coordinating Council;
i. Secretary of the Department of Public Works and Highways;
j. Secretary of the Department of Science and Technology;
k. Secretary of the Department of Social Welfare and Development;
l. Secretary of the Department of Trade and Industry;
m. Secretary of the Department of Transportation and Communications;
n. Director-General of the National Economic and Development
Authority, in his capacity as Chair of the Philippine Council for
Sustainable Development;
o. Director-General of the National Security Council;
p. Chairperson of the National Commission on the Role of Filipino
Women;
q. President of the League of Provinces;
r. President of the League of Cities;
s. President of the League of Municipalities;
t. President of the Liga ng mga Barangay;
u. Representative from the academe;
v. Representative from the business sector; and
w. Representative from nongovernmental organizations.
At least one (1) of the sectoral representatives shall come from the disaster
risk reduction community.
The representatives shall be appointed by the President from a list of
nominees submitted by their respective groups. They shall serve for a term
of six (6) years without reappointment unless their representation is
withdrawn by the sector they represent. Appointment to any vacancy shall
be only for the unexpired term of the predecessor.
Only the ex officio members of the advisory board shall appoint a qualified
representative who shall hold a rank of no less than an Undersecretary.
Section 9. Powers and Functions of the Commission. – The
Commission shall have the following powers and functions:
a. Ensure the mainstreaming of climate change, in synergy with disaster
risk reduction, into the national, sectoral and local development
plans and programs;
b. Coordinate and synchronize climate change programs of national
government agencies;
c. Formulate a Framework Strategy on Climate Change to serve as the
basis for a program for climate change planning, research and
development, extension, and monitoring of activities on climate
change;
d. Exercise policy coordination to ensure the attainment of goals set in
the framework strategy and program on climate change;
e. Recommend legislation, policies, strategies, programs on and
appropriations for climate change adaptation and mitigation and
other related activities;
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
f. Recommend key development investments in climate- sensitive
sectors such as water resources, agriculture, forestry, coastal and
marine resources, health, and infrastructure to ensure the
achievement of national sustainable development goals;
g. Create an enabling environment for the design of relevant and
appropriate risk-sharing and risk-transfer instruments;
h. Create an enabling environment that shall promote broader multi-
stakeholder participation and integrate climate change mitigation
and adaptation;
i. Formulate strategies on mitigating GHG and other anthropogenic
causes of climate change;
j. Coordinate and establish a close partnership with the National
Disaster Coordinating Council in order to increase efficiency and
effectiveness in reducing the people’s vulnerability to climate-related
disasters;
k. In coordination with the Department of Foreign Affairs, represent the
Philippines in the climate change negotiations;
l. Formulate and update guidelines for determining vulnerability to
climate change impacts and adaptation assessments and facilitate
the provision of technical assistance for their implementation and
monitoring;
m. Coordinate with local government units (LGUs) and private entities
to address vulnerability to climate change impacts of regions,
provinces, cities and municipalities;
n. Facilitate capacity building for local adaptation planning,
implementation and monitoring of climate change initiatives in
vulnerable communities and areas;
o. Promote and provide technical and financial support to local
research and development programs and projects in vulnerable
communities and areas; and
p. Oversee the dissemination of information on climate change, local
vulnerabilities and risks, relevant laws and protocols and adaptation
and mitigation measures.
Kyoto Protocol
The protocol provided several means for countries to reach their targets.
• One approach was to make use of natural processes, called “sinks,”
that remove greenhouse gases from the atmosphere. The planting
of trees, which take up carbon dioxide from the air, would be an
example.
• Another approach was the international program called the Clean
Development Mechanism (CDM), which encouraged developed
countries to invest in technology and infrastructure in less-
developed countries, where there were often significant
opportunities to reduce emissions. Under the CDM, the investing
country could claim the effective reduction in emissions as a credit
toward meeting its obligations under the protocol. An example
would be an investment in a clean-burning natural gas power plant
to replace a proposed coal-fired plant.
• A third approach was emissions trading, which allowed
participating countries to buy and sell emissions rights and thereby
placed an economic value on greenhouse gas emissions.
European countries initiated an emissions-trading market as a mechanism
to work toward meeting their commitments under the Kyoto Protocol.
Countries that failed to meet their emissions targets would be required to
make up the difference between their targeted and actual emissions, plus
a penalty amount of 30 percent, in the subsequent commitment period,
beginning in 2012; they would also be prevented from engaging in
emissions trading until they were judged to be in compliance with the
Environmental Law | Page 2
Compiled and edited by Aila Ampie
Special contribution by Louis Palma Gil

protocol. The emission targets for commitment periods after 2012 were
to be established in future protocols.
QUIZ #2
1. Basel Convention is an international treaty addressing cleaner production,
hazardous waste minimization and controls on the movement of these wastes.
2. Montreal Protocol on Substances that Deplete the Ozone Layer is an
international agreement that controls the production and consumption of
substance that can cause ozone depletion.
3. Kyoto Protocol is an agreement made under the United Nations Framework
Convention on Climate Change (UNFCCC) aims to reduce the amount of
carbon dioxide and other greenhouse gases.
4. Rotterdam Convention on Prior Informed Consent (PIC) Procedure for
Certain Hazardous Chemicals and Pesticides in International Trade. this
agreement aims to promote as shared responsibility between exporting and
importing countries in protection human health and the environment from
harmful effects of certain hazardous chemicals that are traded internationally.
5. Debt-for-nature swap was first introduced in 1987 by non-governmental
organizations (NGOs), involved in the purchase of foreign debtors of debtor
countries in exchange for the creation of domestic forest reserves or other
environment project.
Four major events that could change our live, as provided in the handout:
6. Terrorism
7. Climate Change
8. The Global Food System
9. Globalization
10. The need to reconcile development with protection of the environment is aptly
expressed in the concept of sustainable development.
International Environmental Law
The three primary methods of environmental regulation
Many of the larger government regulatory schemes use a combination of
three primary methods to most effectively reach the goals set forth by
legislation:
1. imposed controls: the government may impose controls on
pollution using technological or quality controls;
• the government can protect the environment by dictating
amounts or methods of controlling pollution;
• the controls may be based on the existing technology’s ability
to control:
a. the pollution (technology-based standards) or
technology-based regulation – specifies the amount
and/or method of controlling pollution by reference to
that which the available technology can control; or
b. the environment’s ability to assimilate the pollution
(ambient environment quality standards) or environment
quality-based regulation – regulation based on the
environmental quality aims at a certain level or
environmental quality and sets pollution controls to
achieve that end;
2. market incentives: the government encourages private
organizations to reduce or control pollution through market-
based incentives;
• the government may use market forces to induce private
organizations to reduce pollution to the levels that they find
economically desirable;
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
a. effluent fees – the most direct method is to tax the
polluter based on the amount of pollution it creates;
b. marketable pollution rights – create a system in which
each facility is allocated an allowable amount of pollution
and is permitted to sell its surplus by emissions trading;
i. netting – allows firms to avoid the most
stringent emissions limit by reducing emission
from another source within the same plant as if
a bubble were placed over the entire plant; it
reduces emissions increase to a level below that
which is considered significant;
ii. offsets – allows a firm to obtain emission credits
from sources in the same area, through internal
or external trades, to offset its new emissions;
iii. bubbles – by placing an imaginary bubble over
a multisource plant, levels of emission controls
applied to different sources in a bubble may be
adjusted to reduce control costs so long as the
aggregate limit is not exceeded;
iv. banking – provides a mechanism for firms to
save emission credit for future use;
3. environmental quality-based regulations: the publication of
environmental effect may encourage a facility to consider
alternatives;
• regulation based on the environmental quality aims at a certain
level of environmental quality and sets pollution controls to
achieve that end;
• factors in determining regulation may include effects on human
welfare as well as on the ecosystem.
The most important outcomes of the Stockholm Conference
Stockholm Conference of 1972 – the first global conference on the
environment.
Its most important outcomes are as follows:
1. Stockholm Declaration on the Human Environment – the parties
set forth 26 principles that addressed the major environmental
themes of the time and established a global approach to the
problem of environmental protection; notable are the following:
a. Principle 1 – recognizes the fundamental right of
freedom, equality, and adequate conditions of life, in an
environment of a quality that permits a life of dignity and
well-being;
b. Principle 21 – although states have the right to exploit
their own resources, they must ensure that activities within
their jurisdiction or control do not cause damage to the
environment or areas beyond the limits of national
jurisdiction;
c. Principle 22 – affirms that states should cooperate in
developing international law regarding liability and
compensation for victims of pollution and other
environmental damages produced outside boundaries.
2. Action plan for the human environment – the parties to the
Conference adopted 109 resolutions that addressed the following
items:
a. a global environmental assessment program;
b. environmental management activities, and
c. supporting measures.
The United Nations Environmental Program (UNEP)
United Nations Environmental Program – created by the UN General
Assembly in 1973; a specialized subsidiary organ of the UN that
coordinates environmental protection activities for the UN as a whole.
Environmental Law | Page 3
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Special contribution by Louis Palma Gil
 Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel

Key functions of the UNEP
1. gathering information on environmental problems and existing
efforts to solve them;
2. recommending and initiating environmental protection programs;
3. funding chosen environmental protection programs through
utilization of UNEP’s Environment Fund.
Legal activities of the UNEP
1. playing a lead role in the formulation of international environmental
law;
2. sponsoring major international environmental agreements including,
inter alia, the Vienna Convention for the Protection of the Ozone
Layer, the Montreal Protocol on Substances that Deplete the Ozone
Layer, and the Convention on Biological Diversity.
Key documents produced by the 1992 Rio Earth Summit
1992 Rio Earth Summit – was the largest global conference on the
environment.
The import and export permits required under the Convention are
nationally administered and are keyed to categories of endangered
species.
The purpose of the UN Convention on Biological Diversity
UN Convention on Biological Diversity – signed at the Earth Summit in
Rio de Janeiro in June 1992.
Objectives
Its objectives include the following:
1. conserving biological diversity and the sustainable use of its
components;
2. equitable sharing of benefits of utilizing genetic resources.
The Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and Their Disposal
Basel Convention – seeks to limit and regulate international traffic in
hazardous waste products.

It produced the following five major documents: To accomplish its objectives, the general obligations of the parties include:
1. Convention on Biological Diversity; 1. prohibiting the export of hazardous waste without prior approval of
2. Climate Change Convention; the importing country, and proof that the importing country has
3. Declaration of Principles on Forest Conservation; adequate facilities to dispose of the waste;
4. Rio Declaration; and 2. prohibiting trade with non-parties;
5. Agenda 21. 3. minimizing the generation of hazardous waste;
4. managing exported waste in an environmentally sound manner;
The purpose of the 1987 Montreal Protocol on Substances that 5. labeling and packaging shipments of waste in accordance with
Deplete the Ozone Layer generally accepted international rules and standards; and
Montreal Protocol on Substances that Deplete the Ozone Layer – was 6. cooperating in training of technicians, the exchange of information
originally adopted in 1987, in force in 1989, and amended in 1990; its and the transfer technology.
purpose was it set forth a timetable for the reduction in use of CFCs by 50
percent in 1999. Debt-for-nature swaps
Debt-for-nature swaps – first introduced by NGOs in 1987; involve the
It also bans the CFC imports of nonparties unless the non-parties meet the purchase of foreign debts of debtor countries in exchange for the creation
reductions of the Protocol. It freezes halons at 1986 levels. of domestic forest reserves or other environmental projects.

Amendments Desertification and its key factors

The amendments placed a total ban on CFCs by 2000 or by the year 2010 Desertification – defined by the UN as land degradation in arid, semi-
for developing countries. arid and dry sub-humid areas, including irrigated cropland, resulting
mainly from adverse human impact or improper land use.
The purpose of UN Framework Convention on Climate Change
(UNFCCC) Key factors
UN Framework Convention on Climate Change – emphasizes the 1. demographics;
concern over changes in the Earth’s climate, especially those changes 2. overgrazing;
caused by greenhouse gases and has as its objective the stabilization of 3. deforestation;
greenhouse gas concentrations in the atmosphere. 4. sources of energy;
5. water resources and irrigation; and
The parties to the Convention commit themselves to the following goals: 6. erosion.
1. periodic national inventories of anthropogenic emissions and
removal by sinks of greenhouse gases; The International Court of Justice’s definition of sustainable
2. mitigation programs on a national and regional level; development
3. development of technology to control emissions; Sustainable development – the need to reconcile development with
4. the consideration of climate change in various decision-making protection of the environment.
processes; and
5. cooperation in the exchange of information, education, and public Throughout the ages, mankind has, for economic and other
awareness. reasons, constantly interfered with nature. In the past, this was
often done with- out consideration of the effects upon the
The Convention on International Trade in Endangered Species environment. Owing to new scientific insights and to a growing
of Wild Fauna and Flaura (CITIES) awareness of the risks for mankind - for present and future
To accomplish its objectives, this Convention sets up a complex system of generations – of pursuit of such interventions at an
import and export permits and regulations to safeguard endangered unconsidered and unabated pace, new norms and standards
species from over-exploitation. have been developed, set forth in a great number of
instruments during the last two decades. Such new norms have
to be taken into consideration, and such new standards given
proper weight, not only when States contemplate new activities
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but also when continuing with activities begun in the past. This
need to reconcile economic development with protection of the
environment is aptly expressed in the concept of sustainable
development [Gabčíkovo-Nagymaros Project Case
(Hungary/Slovakia)].
Four major events or outcomes that have the potential to divert
humanity
There are four major events or outcomes that have the potential to divert
humanity from a sensible path of sustainability:
1. Terrorism – the worst-case scenario is that terrorists may obtain
nuclear weapons or other weapons of mass destruction.
2. Climate change – a more complex issue because of the large
uncertainties associated with potentially devastating outcomes.
3. The global food system – this is not because food is a paramount
need but because there is better prognoses for food than for the
security issues; there are five problems:
a. decreasing returns set in, and additional yields cannot
come from larger applications of fertilizer;
b. as chemical application of major nutrients increases, the
micronutrients in the soil become increasingly depleted,
leading to diminution of yields;
c. as world demand increases, the available supplies of
inexpensive phosphate may be exhausted;
d. soil erosion will remove precious topsoil and the nutrients
adhering to it; and
e. due to excess of demand, climate change, or pollution, the
ater needed for agriculture will not be available for
producing the needed food.
4. Globalization – “a world without borders”; many polluting industries
are moving offshore from those regions with strict environmental
regulations to those which lesser standards.
Constitutional Provisions
Preamble. We, the sovereign Filipino people, imploring the aid of
Almighty God, in order to build a just and humane society and establish a
Government that shall embody our ideals and aspirations, promote the
common good, conserve and develop our patrimony, and secure to
ourselves and our posterity the blessings of independence and democracy
under the rule of law and a regime of truth, justice, freedom, love, equality,
and peace, do ordain and promulgate this Constitution.
Article I. National Territory. The national territory comprises the
Philippine archipelago, with all the islands and waters embraced therein,
and all other territories over which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial, and aerial domains,
including its territorial sea, the seabed, the subsoil, the insular shelves, and
other submarine areas. The waters around, between, and connecting the
islands of the archipelago, regardless of their breadth and dimensions,
form part of the internal waters of the Philippines.
Article XII. National economy and patrimony.
Section 2. All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, fisheries,
forests or timber, wildlife, flora and fauna, and other natural resources are
owned by the State. With the exception of agricultural lands, all other
natural resources shall not be alienated. The exploration, development,
and utilization of natural resources shall be under the full control and
supervision of the State. The State may directly undertake such activities,
or it may enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations at least
sixty per centum of whose capital is owned by such citizens. Such
agreements may be for a period not exceeding twenty-five years,
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
renewable for not more than twenty-five years, and under such terms and
conditions as may be provided by law. In cases of water rights for
irrigation, water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit
of the grant.
The State shall protect the nation’s marine wealth in its archipelagic
waters, territorial sea, and exclusive economic zone, and reserve its use
and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural
resources by Filipino citizens, as well as cooperative fish farming, with
priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and
lagoons.
The President may enter into agreements with foreign-owned
corporations involving either technical or financial assistance for large-
scale exploration, development, and utilization of minerals, petroleum,
and other mineral oils according to the general terms and conditions
provided by law, based on real contributions to the economic growth and
general welfare of the country. In such agreements, the State shall
promote the development and use of local scientific and technical
resources.
The President shall notify the Congress of every contract entered into in
accordance with this provision, within thirty days from its execution.
Section 3. Lands of the public domain are classified into agricultural,
forest or timber, mineral lands, and national parks. Agricultural lands of
the public domain may be further classified by law according to the uses
which they may be devoted. Alienable lands of the public domain shall be
limited to agricultural lands. Private corporations or associations may not
hold such alienable lands of the public domain except by lease, for a
period not exceeding twenty-five years, renewable for not more than
twenty-five years, and not to exceed one thousand hectares in area.
Citizens of the Philippines may lease not more than five hundred hectares,
or acquire not more than twelve hectares thereof by purchase, homestead,
or grant.
Taking into account the requirements of conservation, ecology, and
development, and subject to the requirements of agrarian reform, the
Congress shall determine, by law, the size of lands of the public domain
which may be acquired, developed, held, or leased and the conditions
therefor.
Section 4. The Congress shall, as soon as possible, determine by law the
specific limits of forest lands and national parks, marking clearly their
boundaries on the ground. Thereafter, such forest lands and national
parks shall be conserved and may not be increased nor diminished, except
by law. The Congress shall provide, for such period as it may determine,
measures to prohibit logging in endangered forests and watershed areas.
Article XIII. Agrarian and Natural Resources Reform.
Section 7. The State shall protect the rights of subsistence fishermen,
especially of local communities, to the preferential use of local marine and
fishing resources, both inland and offshore. It shall provide support to
such fishermen through appropriate technology and research, adequate
financial, production, and marketing assistance, and other services. The
State shall also protect, develop, and conserve such resources. The
protection shall extend to offshore fishing grounds of subsistence
fishermen against foreign intrusion. Fishworkers shall receive a just share
from their labor in the utilization of marine and fishing resources.
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DENR Philippine Environment Policy (P.D. 1151)

QUIZ #3 Section 1. Policy. It is hereby declared a continuing policy of the State

(a) to create, develop, maintain and improve conditions under which man
1. Who is the current Secretary of Department of Environment and Natural and nature can thrive in productive and enjoyable harmony with each
Resources? DENR Secretary Roy A. Cimatu
other, (b) to fulfill the social, economic and other requirements of present
and future generations of Filipinos, and (c) to insure the attainment of an
2. A government-owned corporation responsible for promoting natural
resources development through investment or involvement in innovative environmental quality that is conducive to a life of dignity and well-being.
technologies and ventures involving forest management.
Section 2. Goal. In pursuing this policy, it shall be the responsibility of
a. Philippine National Oil Company Exploration Corporation
the Government, in cooperation with concerned private organizations and
b. National Resources Development Corporation
c. Philippine Red Cross
entities, to use all practicable means, consistent with other essential
d. Philippine National Oil Company Alternative Fuels Corporation considerations of national policy, in promoting the general welfare to the
end that the Nation may (a) recognize, discharge and fulfill the
3. ___________ shall determine the specific limits of forest lands and national parks, responsibilities of each generation as trustee and guardian of the
mark their boundaries on the ground. environment for succeeding generations, (b) assure the people of a safe,
decent, healthful, productive and aesthetic environment, (c) encourage
a. The DENR Secretary
the widest exploitation of the environment without degrading it, or
b. Congress
c. The President
endangering human life, health and safety or creating conditions adverse
d. Bureau of Land Management to agriculture, commerce and industry, (d) preserve important historic and
cultural aspects of the Philippine heritage, (e) attain a rational and orderly
4. One of the following is the mandate of the Department of Environment and balance between population and resource use, and (f) improve the
Natural Resources: (Note: All choices are correct.) utilization of renewable and non-renewable resources.

a. Assure the availability and sustainability of the country’s natural resources use
and systematic restoration or replacement, whenever possible;
b. Increase the productivity of natural resources in order to meet the demand of
mineral and land resources of growing population;
c. Enhance the contribution of natural resources for achieving national economy
development;
d. Promote equitable access to natural resources by the different sector;
e. Conserve specific terrestrial and marine areas representative of the cultural
heritage for present and future generations.
5. "A nation enjoying and sustaining its natural resources and a clean and healthy
environment dream and the Department of Environment and Natural
Resources."
a. mandate
b. vision
c. mission
d. function
TRUE or FALSE
For items numbered 6 to 9: The following are the core functions of the Department
of Environment and Natural Resources:
6. True or False. Formulate and implement policies, guideline, rules and
regulations, relating to the management, pollution prevention and control.
7. True or False. Formulate implement and supervise the government's policies,
plans and programs pertaining to the management, conservation,
development, use and replenishment of the country's natural resources and
ecological diversity.
8. True or False. Exercise exclusive jurisdiction on the management and
disposition of all lands of the public domain and shall continue to be the sole
agency responsible for the classification, sub-classification, surveying and
titling of lands in consultation with appropriate agencies;
9. True or False. Promulgate and implement rules and regulations governing the
extraction, disposition, and use of the forest lands, minerals, wildlife and
others.
10. True or False. In 1863, by virtue of Spanish Royal Decree, an office known
“Inspeccion General de Montes” was created in the Philippines. It was the
precursor of the Department of Environment and Natural Resources.
Section 3. Right to a Healthy Environment. In furtherance of these
goals and policies, the Government recognizes the right of the people to
a healthful environment. It shall be the duty and responsibility of each
individual to contribute to the preservation and enhancement of the
Philippine environment.
Section 4. Environmental Impact Statements. Pursuant to the above
enunciated policies and goals, all agencies and instrumentalities of the
national government, including government-owned or controlled
corporations, as well as private corporations firms and entities shall
prepare, file and include in every action, project or undertaking which
significantly affects the quality of the environment a detail statement on
a. the environmental impact of the proposed action, project or
undertaking
b. any adverse environmental effect which cannot be avoided should
the proposal be implemented;
c. alternative to the proposed action;
d. a determination that the short-term uses of the resources of the
environment are consistent with the maintenance and enhancement
of the long-term productivity of the same; and
e. whenever a proposal involve the use of depletable or non-renewable
resources, a finding must be made that such use and commitment
are warranted.
Before an environmental impact statement is issued by a lead agency, all
agencies having jurisdiction over, or special expertise on, the subject
matter involved shall comment on the draft environmental impact
statement made by the lead agency within thirty (30) days from receipt of
the same.
Section 5. Agency Guidelines. The different agencies charged with
environmental protection as enumerated in Letter of Instruction No. 422
shall, within sixty (60) days from the effectivity of this Decree, submit to
the National Environmental Protection Council (NEPC), their respective
guidelines, rules and regulations to carry out the provisions of Sec. 4
hereof on environmental impact assessments and statements.
Philippine Environment Code (P.D. 1152)

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TITLE I
AIR QUALITY MANAGEMENT
Section 2. Purposes. The purposes of this Title are:
(a) to achieve and maintain such levels of air quality as to protect public
health; and
(b) to prevent to the greatest extent practicable, injury and/or damage to
plant and animal life and property, and promote the social and economic
development of the country.
Chapter I
Standards
Section 3. Ambient Air Quality Standards. There shall be established
ambient air quality standards which shall prescribe the maximum
concentration of air pollutants permissible in the atmosphere consistent
with public health, safety and general welfare.
In the establishment of ambient air quality standards, factors such as local
atmospheric conditions, location and land use, and available technology,
shall be considered among others.
Section 4. National Emission Standards. There shall be established
national emission standards for new and existing stationary and mobile
sources of pollution which shall consider among others such factors as
type of industry, practicable control technology available, location and
land use, and the nature of pollutants emitted.
Section 5. Community Noise Standards. Appropriate standards for
community noise levels shall be established considering, among others,
location, zoning and land use classification.
Section 6. Standards for Noise-Producing Equipment. There shall be
established a standard for noise producing equipment such as
construction equipment, transportation equipment, stationary engines,
and electrical or electronic equipment and such similar equipment or
contrivances. The standards shall set a limit on the acceptable level of
noise emitted from a given equipment for the protection of public health
and welfare, considering among others, the magnitude and condition of
use, the degree of noise reduction achievable through the application of
best available technology and the cost of compliance.
The Installation of any noise-producing equipment shall conform with the
requirements of Presidential Decree No. 1096 and other applicable laws
as well as their implementing rules and regulations.
TITLE II
WATER QUALITY MANAGEMENT
Section 14. Purpose. It is the purpose of this Title to prescribe
management guidelines aimed to protect and improve the quality of
Philippine water resources through:
a. classification of Philippine waters;
b. establishment of water quality standards;
c. protection and improvement of the quality of the Philippine water
resources, and
d. responsibilities for surveillance and mitigation of pollution incidents.
TITLE III
LAND USE MANAGEMENT
Section 22. Purpose. The purposes of this Title are:
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
a. to provide a rational, orderly and efficient acquisition, utilization and
disposition of land and its resources in order to derive therefrom
maximum benefits; and
b. to encourage the prudent use and conservation of land resources in
order to prevent and imbalance between the nation's needs and such
resources.
TITLE IV
NATURAL RESOURCES MANAGEMENT AND CONSERVATION
Section 25. Purposes. The purposes of this Title are:
a. to provide the basic policy on the management and conservation of
the country's natural resources to obtain the optimum benefits
therefrom and to preserve the same for the future generations; and
b. to provide general measures through which the aforesaid policy may
be carried out effectively.
TITLE V
WASTE MANAGEMENT
Section 42. Purpose. The purposes of this Title are:
a. to set guidelines for waste management with a view to ensuring its
effectiveness;
b. to encourage, promote and stimulate technological, educational
economic and social efforts to prevent environmental damage and
unnecessary loss of valuable resources of the nation through
recovery, recycling and re-use of wastes and waste products; and
c. to provide measures to guide and encourage appropriate
government agencies in establishing sound, efficient, comprehensive
and effective waste management.
Section 62. Definition of Terms. As used in this Code:
a. "Ambient Air Quality" means the average atmospheric purity as
distinguished from discharge measurements taken at the source of
pollution. It is the general amount of pollution present in a broad
area.
b. "Emission" means the act of passing into the atmosphere an air
contaminant, pollutant, gas stream and unwanted sound from a
known source.
c. "Water Quality" means the characteristics of water which define its
use in terms of physical, chemical and biological contents; hence the
quality of water for domestic use is different from industrial use.
d. "Water Quality Surveillance" means a close and continuous
supervision of the water quality to detect development movements
or changes in the characteristics of the water.
e. "Water Quality Standard" means a plan that is established by
governmental authority as a program for water pollution prevention
and abatement. Such a standard may include water use classification
and the criteria to support the uses of the water.
f. "Effluent Standards" means restrictions established to limit levels of
concentration of physical, chemical and biological constituents
which are discharged from point sources.
g. "Clean-up Operations" refers to activities conducted in removing
the pollutants discharged or spilled in water to restore it to pre-spill
condition.
h. "Accidental Spills" refers to spills of oil or other hazardous
substances in water that result from accidents involving the carriers
of such substance such as collisions and grounding.
i. "Areas of Critical Environmental Concern" are areas where
uncontrolled development could result in irreparable damage to
important historic, cultural, or aesthetic values or natural systems or
processes of national significance.
j. "Hazardous Substances" means elements or compounds which
when discharged in any quantity present imminent or substantial
danger to public health and welfare.
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k. "Areas Impacted by Public Facilities" refers to areas where the
introduction of public facilities may tend to induce development and
urbanization of more than local significance or impact.
l. "Environmental Impact" is the alteration, to any degree, of
environmental conditions or the creation of a new set of
environmental conditions, adverse or beneficial, to be induced or
caused by a proposed project.
m. "Government Agencies" refers to national, local and regional
agencies and instrumentalities including government-owned and
controlled corporations.
Reorganization Act of the Department of
Environment and Natural Resources (E.O. 192)
Section 16. Environmental Management Bureau. There is hereby
created an Environmental Management Bureau. The National
Environmental Protection Council (NEPC), the National Pollution Control
Commission (NPCC) and the Environmental Center of the Philippines
(ECP), are hereby abolished and their powers and functions are hereby
integrated into the Environmental Management Bureau in accordance
with Section 24 (c) hereof, subject to Section 19 hereof. The Environmental
Management Bureau shall be headed by a Director and assisted by an
Assistant Director who shall advise the Secretary on matters relating to
environmental management, conservation, and pollution control. The
Environmental Management Bureau shall have the following functions:
a. Recommend possible legislations, policies and programs for
environmental management and pollution control;
b. Advise the Regional Offices in the efficient and effective
implementation of policies, programs, and projects for the effective
and efficient environmental management and pollution control;
c. Formulate environmental quality standards such as the quality
standards for water, air, land, noise and radiations;
d. Recommend rules and regulations for environmental impact
assessments and provide technical assistance for their
implementation and monitoring;
e. Formulate rules and regulations for the proper disposition of solid
wastes, toxic and hazardous substances;
f. Advise the Secretary on the legal aspects of environmental
management and pollution control and assist in the conduct of
public hearings in pollution cases;
g. Provide secretariat assistance to the Pollution Adjudication Board,
created under Section 19 hereof;
h. Coordinate the inter-agency committees that may be created for the
preparation of the State of the Philippine Environment Report and
the National Conservation Strategy;
i. Provide assistance to the Regional Offices in the formulation and
dissemination of information on environmental and pollution
matters to the general public;
j. Assist the Secretary and the Regional Officers by providing technical
assistance in the implementation of environmental and pollution
laws;
k. Provide scientific assistance to the Regional Offices in the conduct of
environmental research programs.
Section 19. Pollution Adjudication Board. There is hereby created a
Pollution Adjudication Board under the Office of the Secretary. The Board
shall be composed of the Secretary as Chairman, two (2) Undersecretaries
as may be designated by the Secretary, the Director of Environmental
Management, and three (3) others to be designated by the Secretary as
members. The Board shall assume the powers and functions of the
Commission/Commissioners of the National Pollution Control
Commission with respect to the adjudication of pollution cases under
Republic Act 3931 and Presidential Decree 984, particularly with respect
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from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
to Section 6 letters e, f, g, j, k, and p of P.D. 984. The Environmental
Management Bureau shall serve as the Secretariat of the Board. These
powers and functions may be delegated to the regional officers of the
Department in accordance with rules and regulations to be promulgated
by the Board.
Pollution Control Law (P.D. 984)
Section 1. Statement of Policy. It is hereby declared a national policy to
prevent, abate and control pollution of water, air and land for the more
effective utilization of the resources of this country.
Section 2. Definitions. As used in this Decree:
a. "Pollution" means any alteration of the physical, chemical and
biological properties of any water, air and/or land resources of the
Philippines, or any discharge thereto of any liquid, gaseous or solid
wastes as will or is likely to create or to render such water, air and
land resources harmful, detrimental or injurious to public health,
safety or welfare or which will adversely affect their utililization for
domestic, commercial, industrial, agricultural, recreational or other
legitimate purposes.
b. "Sewage" means the water-carried human or animal wastes from
residences, buildings, industrial establishments, or other places,
together with such water infiltration and surface water as may be
present. The admixture or sewage and industrial wastes or other
wastes as hereafter defined shall also be considered "sewage."
c. "Industrial Waste" means any liquid, gaseous or solid matter, or
other waste substance or a combination thereof resulting from any
process of industry, manufacturing trade or business or from the
development, processing or recovery or any natural resources which
may cause or tend to cause pollution, or contribute to the pollution
of the water, air and land resources of the Philippines.
d. "Other Waste" means garbage, refuse, wood residues, sand, lime
cinders, ashes, offal, night-oil, tar, dye stuffs, acids, chemicals, and
other substances not sewage or industrial waste which may cause or
tend to cause pollution; or contribute to the pollution of the water,
air and land resources of the Philippines.
e. "Sewage System or Sewerage System" means pipe lines or
conduits, pumping stations, force mains, constructed drainage
ditches, and all other constructions, devices, and appurtenances used
for collecting or conducting sewage, and industrial wastes or other
wastes to a point of treatment, discharge or ultimate disposal.
f. "Treatment Works" means any method, construction device or
appliance appurtenant thereto, installed for the purpose of treating,
neutralizing, stabilizing, disinfecting, or disposing of sewage,
industrial waste or other wastes, or for the recovery of by-product
from such sewage, industrial waste or other wastes.
g. "Sewage Works" means individually or collectively those
constructions or devices use for collecting, pumping, treating, and
disposing of sewage, industrial wastes or other waste, or for the
recovery of by-products from such sewage, industrial waste or other
waste.
h. "Outlet" means the terminus of a sewage works or point of
emergence in the water, air and land resources of the Philippines of
any sewage, industrial wastes or other wastes.
i. "Commission" means the National Pollution Control Commission.
j. "Person" or "Persons" includes any being, natural or juridical,
susceptible of rights and obligations or of being the subject of legal
relations.
Section 8. Prohibitions. No person shall throw, run, drain, or otherwise
dispose into any of the water, air and/or land resources of the Philippines,
or cause, permit, suffer to be thrown, run, drain, allow to seep or otherwise
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dispose thereto any organic or inorganic matter or any substance in 8. The Resolution of the Motion for Reconsideration in Technology Developers
gaseous or liquid form that shall cause pollution thereof. Inc. vs. Court of Appeals was based on certain facts, except:

a. The court recognized the fact of huge investment in this dollar-earning

No person shall perform any of the following activities without first
industry to justify the reversal of the order of the National Pollution
securing a permit from the Commission for the discharge of all industrial Control Commission.
wastes and other wastes which could cause pollution: b. TDI had a permit from EMB.
1. the construction, installation, modification or operation of any c. That TDI had a building permit from the then Ministry of Public Works.
sewage works or any extension or addition thereto; d. Certain signatures which formed the basis of the residents complaint were
falsified.
2. the increase in volume or strength of any wastes in excess of the
permissive discharge specified under any existing permit;
9. Technology Developers Inc. (TDI) manufactured:
3. the construction, installation or operation of any industrial or
commercial establishments or any extension or modification thereof a. cement
or addition thereto, the operation of which would cause an increase b. charcoal briquette
in the discharge of waste directly into the water, air and/or land c. asphalt
resources of the Philippines or would otherwise alter their physical, d. paint
chemical or biological properties in any manner not already lawfully
10. Daytona Construction and Development Corporation operates a ______________
authorized.
batching plant.

QUIZ #4
1. Pollution means any alteration of the physical, chemical and biological
properties of any water, air and/or land resources of the Philippines, or any
discharge thereto of any liquid, gaseous or solid wastes as will or is likely to
create or to render such water, air and land resources harmful, detrimental or
injurious to public health, safety or welfare or which will adversely affect their
utilization for domestic, commercial, industrial, agricultural, recreational or
other legitimate purposes.
2. True or False. The National Environmental Protection Council (NEPC), the
National Pollution Control Commission (NPCC) and the Environmental Center
of the Philippines (ECP) were already abolished and their powers and their
powers and functions are hereby integrated into the Environmental
Management Bureau.
3. True or False. Pollution Adjudication Board assumed the powers and functions
of the Commission/Commissioners of the National Pollution Control
Commission with respect to the adjudication of pollution cases.
4. Donald Mead is the _______ of Insular Oil Refinery Co.
a. Plant manager
b. President
c. General manager
d. Chairman of the Board
5. In Mead vs. Argel it was held that:
a. The affidavit complaint should have been prepared by the acting Mayor and
duly subscribed before a notary public.
b. The Prosecutor has the power to determine the existence of probable cause.
c. The Fiscal cannot file an information for violation of the Anti-Pollution
Law without prior determination by the National Water and Air Pollution
Control Commission that subject person has caused pollution.
d. The matter of issuance of writ of preliminary injunction is addressed to the
sound discretion of the court.
6. In Pollution Adjudication Board vs. Court of Appeals, it was held that:
a. Ex-parte cease and desist orders issued by the Pollution Adjudication
Board are permitted under the police power of the State.
b. Pollution Adjudication Board should first prove that there exists an immediate
threat to life, public health, safety or welfare or to animal or plant life prior to
the issuance of an ex-parte cease and desist order.
c. Solar Textile Finishing Corporation should have filed an appeal before the
Supreme Court .
d. Effluents test results were inconclusive to justify the closure of the plant.
7. True or False. In Technology Developers Inc vs. Court of Appeals, the court
recognized the fact of the huge investment in this dollar-earning industry to
justify the reversal of the order of the National Pollution Control Commission.
a. cement
b. charcoal briquette
c. asphalt
d. paint
MEAD vs. ARGEL (1982)
Facts: Petitioner Donald Mead and a certain Isaac Arivas, being the
president and the general manager, respectively, of the Insular Oil
Refinery Co. (INSOIL), were charged by the Provincial Fiscal of Rizal with
a violation of Section 9, in relation to Section 10 of R.A. No. 3931 entitled
“An Act Creating A National Water and Air Pollution Control Commission,”
for:
willfully, unlawfully and feloniously draining or otherwise disposing
into the highway canal and/or cause, permit, suffer to be drained or
allow to seep into such waterway the industrial and other waste
matters discharged due to the operation of the said Insular Oil
Refinery Co. so managed and operated by them, thereby causing
pollution of such waterway with the resulting damage and/or destruction
to the living plants in the vicinity and providing hazard to health and
property in the same vicinity.
Petitioner Donald Mead, one of the accused in the criminal case, filed a
motion to quash on the grounds that the trial court has no jurisdiction and
that the Provincial Fiscal of Rizal has no legal personality to file the above-
quoted information. The motion to quash was denied by the respondent
Judge, and so was the motion for reconsideration filed by the petitioner.
Petitioner’s contentions:
• The National Water and Air Pollution Control Commission
(hereinafter referred to as the "Commission") as created under R.A.
3931 has the exclusive authority to determine the existence of
"pollution" before a criminal case can be filed for a violation of the
said law and that it has the exclusive authority to prosecute violations
of the same.
• Furthermore, the Commission not having finally ruled that the
petitioner has violated R.A. 3931, the Provincial Fiscal of Rizal lacks
the authority to prosecute the petitioner for a violation of said law.
Respondent’s contention: While R.A. 3931 grants the power and duty to
the Commission to investigate and prosecute violations of R.A. 3931, such
grant of power and authority is not exclusive and does not deprive fiscals
and other public prosecutors of their authority to investigate and
prosecute such violations of the said law committed within their
respective violations.
Issue:

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Whether or not a Provincial Fiscal has the authority to file an
information for a violation of R.A. 3931. [No]
Ruling: The clear legislative intention is to vest in the Commission the
exclusive authority to determine the existence of “pollution” penalized
thereunder and to prosecute violations of said law.
The prohibited act under Section 9 is to throw, run, drain, or otherwise
dispose into any of the water and/or atmospheric air of the Philippines,
any organic or inorganic matter of substance “that shall cause pollution of
such waters or atmospheric air.”
The term "pollution" as used in the law is not to be taken in its ordinary
signification. In Section 2, paragraph (a), of R.A.. 3931, "pollution" is
defined in these words:
a. Pollution means such alteration of the physical, chemical
and/or biological properties of any water and/or atmospheric
air of the Philippines, or any such discharge of any liquid,
gaseous or solid substance into any of the waters and/or
atmospheric air of the country as will or is likely to create or
render such waters and/or atmospheric air harmful or
detrimental or injurious to public health, safety or welfare, or to
domestic, commercial, industrial, agricultural, recreational or
other legitimate uses, or to livestock, wild animals, birds, fish or
of her aquatic life.
The power to determine the existence of pollution is vested by the law in
the Commission. Section 8 excludes from the authority of the Commission
only the determination of and filing of court actions involving violations
of the New Civil Code on nuisance. The provision leaves little room for
doubt that a court action involving the determination of the existence of
pollution may not be initiated until and unless the Commission has so
determined the existence of what in the law is considered pollution.
It is deducible from the provision of Section 8 expressly declaring that no
court action shall be initiated, except those related to nuisance, until the
Commission shall have finally ruled on the alleged act of pollution; and
also from Section 6(a), No. 5, which authorizes the Commission to "initiate
or cause to be instituted in a court of competent jurisdiction legal
proceedings to compel compliance with the provisions of this Act."
POLLUTION ADJUDICATION BOARD vs. COURT OF APPEALS
& SOLAR TEXTILE FINISHING CORPORATION (1991)
Facts: Petitioner Board issued an ex parte order directing Solar
immediately to cease and desist from utilizing its wastewater pollution
source installations which were discharging untreated wastewater directly
into a canal leading to the adjacent Tullahan-Tinejeros River.
The Order was signed by Honorable Fulgencio Factoran, Jr. and states that:
Respondent Solar Textile Finishing Corporation is involved in
bleaching, rinsing and dyeing textiles with wastewater of about 30 gpm.
being directly discharged untreated into the sewer. The result of
inspection conducted on 06 September 1988 showed that respondent's
Wastewater Treatment Plant was noted un-operational and the
combined wastewater generated from its operation was about 30
gallons per minute and 80% of the wastewater was being directly
discharged into a drainage canal leading to the Tullahan-Tinejeros River
by means of a by-pass and the remaining 20% was channelled into the
plant's existing Wastewater Treatment Plant (WTP).
Result of the analyses of the sample taken from the by-pass showed that
the wastewater is highly pollutive in terms of color units, BOD and
1
effluents – waste material (such as smoke, liquid industrial refuse, or sewage)
discharged into the environment especially when serving as a pollutant.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
Suspended Solids, among others. These acts of respondent in spite of
directives to comply with the requirements are clearly in violation of
Section 8 of P.D. 984 and Section 103 of its Implementing Rules and
Regulations and the 1982 Effluent Regulations.
Solar filed a petition for certiorari with preliminary injunction against the
Board but the TC dismissed the petition. The CA reversed the Order of
dismissal on the ground that Solar had been denied due process by the
Board.
Petitioner’s contentions:
• Under P.D. 984, Section 7(a), it has legal authority to issue ex
parte orders to suspend the operations of an establishment when
there is prima facie evidence that such establishment is discharging
effluents1 or wastewater, the pollution level of which exceeds the
maximum permissible standards set by the NPCC (now, the Board).
• Petitioner Board contends that the reports before it concerning the
effluent discharges of Solar into the Tullahan-Tinejeros River
provided prima facie evidence of violation by Solar of Section 5 of the
1982 Effluent Code.
Respondent’s contentions: Under the Board’s own rules and regulations,
an ex parte order may issue only if the effluents discharged pose and
“immediate threat to life, public health, safety or welfare, or to animal and
plant life.” In the instant case, according to Solar, the inspections reports
before the Board made no finding that Solar’s wastewater discharged
posed such a threat.
Issue:
Whether or not the Court of Appeals erred in reversing the trial
court. [Yes]
Ruling: Under Section 7(a) of P.D. 984, an ex parte cease and desist order
may be issued by the Board:
a. whenever the wastes discharged by an establishment pose an
"immediate threat to life, public health, safety or welfare, or to animal
or plant life," or
b. whenever such discharges or wastes exceed "the allowable standards
set by the [NPCC2]."
On the one hand, it is not essential that the Board prove that an
"immediate threat to life, public health, safety or welfare, or to animal or
plant life" exists before an ex parte cease and desist order may be issued.
It is enough if the Board finds that the wastes discharged do exceed "the
allowable standards set by the [NPCC]."
In respect of discharges of wastes as to which allowable standards have
been set by the Commission, the Board may issue an ex parte cease and
desist order when there is prima facie evidence of an establishment
exceeding such allowable standards.
Where, however, the effluents or discharges have not yet been the subject
matter of allowable standards set by the Commission, then the Board may
act on an ex parte basis when it finds at least prima facie proof that the
wastewater or material involved presents an "immediate threat to life,
public health, safety or welfare or to animal or plant life." Since the
applicable standards set by the Commission existing at any given time
may well not cover every possible or imaginable kind of effluent or waste
discharge, the general standard of an "immediate threat to life, public
health, safety or welfare, or to animal and plant life" remains necessary.
2
NPCC – National Pollution Control Commission of the Ministry of Human
Settlements
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November 1986 inspections report
Records of the Commission show that the plant under its previous
owner, Fine Touch Finishing Corporation, was issued a Notice of
Violation on 20 December 1985 directing same to cease and desist from
conducting dyeing operation until such time the waste treatment plant
is already completed and operational. The new owner, Solar Textile
Corporation informed the Commission of the plant acquisition thru its
letter dated March 1986.
The new owner was summoned to a hearing held on 13 October 1986
based on the adverse findings during the inspection/water sampling test
conducted on 08 August 1986. As per instruction of the Legal Division a
re-inspection/sampling text should be conducted first before an
appropriate legal action is instituted; hence, this inspection.
Based on the above findings, it is clear that the new owner
continuously violates the directive of the Commission by
undertaking dyeing operations without completing first and
operating its existing WTP. The analysis of results on water samples
taken showed that the untreated wastewater from the firm pollutes
our water resources. In this connection, it is recommended that
appropriate legal action be instituted immediately against the firm.
September 1988 inspection report
1. The plant was undertaking dyeing, bleaching and rinsing operations
during the inspection. The combined wastewater generated from the
said operations was estimated at about 30 gallons per minute. About
80% of the wastewater was traced directly discharged into a drainage
canal leading to the Tullahan-Tinejeros river by means of a bypass. The
remaining 20% was channeled into the plant's existing wastewater
treatment plant (WTP).
2. The WTP was noted not yet fully operational- some accessories were not
yet installed. Only the sump pit and the holding/collecting tank are
1âwphi1
functional but appeared seldom used. The wastewater mentioned
channeled was noted held indefinitely into the collection tank for primary
treatment. There was no effluent discharge [from such collection tank].
3. A sample from the bypass wastewater was collected for laboratory
analyses. Result of the analyses show that the bypass wastewater is
polluted in terms of color units, BOD and suspended solids, among
others.
From the foregoing reports, it is clear to this Court that there was at
least prima facie evidence before the Board that the effluents
emanating from Solar's plant exceeded the maximum allowable
levels of physical and chemical substances set by the NPCC and that
accordingly there was adequate basis supporting the ex parte cease
and desist order issued by the Board.
It is also well to note that the previous owner of the plant facility Fine
Touch Finishing Corporation had been issued a Notice of Violation on
20 December 1985 directing it to cease and refrain from carrying out
dyeing operations until the water treatment plant was completed and
operational. Solar, the new owner, informed the NPCC of the acquisition
of the plant on March 1986. Solar was summoned by the NPCC to a
hearing on 13 October 1986 based on the results of the sampling test
conducted by the NPCC on 8 August 1986. Petitioner Board refrained from
issuing an ex parte cease and desist order until after the November 1986
and September 1988 re-inspections were conducted and the violation of
applicable standards was confirmed.
In other words, petitioner Board appears to have been remarkably
forbearing in its efforts to enforce the applicable standards vis-a-vis Solar.
Solar, on the other hand, seemed very casual about its continued
discharge of untreated, pollutive effluents into the Tullahan-Tinerejos
River, presumably loath to spend the money necessary to put its
Wastewater Treatment Plant ("WTP") in an operating condition.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
In comparison to the case of Technology Developers, Inc. vs. Court of
Appeals
In this case, the ex parte cease and desist Order was issued not by a local
government official but by the Pollution Adjudication Board, the very
agency of the Government charged with the task of determining whether
the effluents of a particular industrial establishment comply with or violate
applicable anti-pollution statutory and regulatory provisions.
TECHNOLOGY DEVELOPERS, INC. vs. COURT OF APPEALS,
ATIENZA, & CRUZ (1991)
Facts: Petitioner Technology Developers, Inc., a domestic corporation
engaged in the manufacture and export of charcoal briquette, received a
letter from private respondent Acting Mayor Pablo N. Cruz, ordering
full cessation of the operation of the petitioner’s plant located at Sta.
Maria, Bulacan, until further order. The letter also requested Plant
Manager Mr. Armando Manese to bring with him to the office o the
mayor the following: a) building permit; b) mayor’s permit; and c) Region
III Department of Environment and Natural Resources Anti-Pollution
Permit.
Petitioner, through its representative, undertook to comply with
respondent’s request for the production of said documents and so
petitioner commenced to secure the Region III Department of
Environment and Natural Resources Anti-Pollution Permit. Furthermore, it
sent its representatives to the office of the mayor to secure the same but
were not entertained.
Without previous and reasonable notice upon petitioner, respondent
acting mayor ordered the municipality’s station commander to padlock
the premises of petitioner’s plant, thus effectively causing the stoppage
of its operation. Left with no recourse, petitioner instituted an action for
certiorari, prohibition, mandamus with preliminary injunction against
private respondent. It allaged that the closure was order was issued with
grave abuse of discretion.
Respondent judge issued a writ of preliminary injunction but upon a
motion for reconsideration by private respondent, the same was set aside
and dissolved. The Court of Appeals denied petitioner’s petition for lack
of merit, hence the present petititon.
Issue:
Whether or not the appellate court committed grave abuse of
discretion in rendering its questioned decision and resolution. [No]
Ruling: The petition is devoid of merit. To the mind of the Court, the
following circumstances militate against the maintenance of the writ of
preliminary injunction sought by the petitioner:
1. No mayor’s permit had been secured. While it is true that the
matter of determining whether there is pollution of the
environment that requires the control, if not the prohibition of
the NPCC, now the Environmental Management Bureau of the
DENR, it must be recognized that the mayor of a town has as
much responsibility to protect its inhabitants from
pollution, and by virtue of its police power, he may deny the
application for a permit to operate a business or otherwise
close the same unless appropriate measures are taken to
control and/or avoid injury to the health of the residents of the
community from the emissions in the operation of the business.
2. The acting mayor, in a letter, called the attention of petitioner
to the pollution emitted but the fumes of its plant whose
offensive odor “not only pollute the air in the locality but also
affect the residents in the area” so that petitioner was ordered
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Special contribution by Louis Palma Gil

to stop its operations until further orders and was required to
bring: a) building permit; b) mayor’s permit; and c) Region III
Department of Environment and Natural Resources Anti-
Pollution Permit.
3. The action of the mayor was in response to the complaints
of the residents of Barangay Guyong, Sta. Maria, Bulacan.
4. The closure order of the acting mayor was issued only after
an investigation was made by one Marivic Guina who
observed that the fumes emitted by the plant of petitioner goes
directly into the surrounding houses and that no proper air
pollution device had been installed.
5. Petitioner failed to produce a building permit from the
municipality of Sta. Maria.
6. While petitioner was able to present a temporary permit to
operate from the then NPCC, such was only good only up to
May 25, 1988. Petitioner had not exerted any effort to
extend or validate its permit much less install any device to
control the pollution and prevent any hazard to the health
of the residents.
Petitioner takes note of the plea of petitioner focusing on its huge
investment in this dollar-earning industry.1âwphi1
It must be stressed however, that concomitant with the need to promote
investment and contribute to the growth of the economy is the equally
essential imperative of protecting the health, nay the very lives of the
people, from the deleterious effect of the pollution of the environment.
RODRIGUEZ, JR., et. al. vs. INTERMEDIATE APPELLATE COURT
& DAYTONA CONSTRUCTION AND DEVELOPMENT
COROPRATION (1987)
Facts: Petitioners Rodriguez, et. al. filed an action for abatement of a
public nuisance with damages against private respondent Daytona
Construction and Development Corporation.
The evidence shows that private respondent Daytona is a domestic
corporation duly organized and existing under the laws of the Philippines
with business address of 252 Don Mariano Marcos Avenue (actually South
Zuzuarregui Avenue), Quezon City.
It was issued by the Quezon City government a business permit for the
manufacture of road and building concrete materials such as concrete
aggregates, with cement batching plant.
Among the conditions set forth in the permit are that the said batching
plant shall:
1. institute measures to prevent dust emission during the manual
charging of cement from bags to the receiving hopper of the
bucket elevator of the batching plant;
2. remove all sediment deposit in the settling of tank for process
water and proper maintenance should be observed at all times.
While the original permit issued to the defendant stated that its
operation at the place shall "not be beyond December 31,
1979", it was somehow allowed to operate way beyond said
period.
The residents state that the effluence and dust from the cement batching
plant of the defendant has run over to other to the adjacent lots, causing
pollution and damage to the lands, such as the death of vegetation in the
lands, the diminution in value of the lands, drying up of fruit-bearing
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
ornamental trees, and detrimental effects on the residents’ health such as
sleepless nights, respiratory disorders, and skin problems.
The court a quo rendered judgment for the petitioners and against private
respondent, declaring the operation of the cement hatching plant of the
defendant corporation as a nuisance and ordering its permanent closure.
Issue:
Whether or not Daytona Construction and Development Corporation
is a public nuisance. [Yes]
Ruling: Despite the procedural strategies of Daytona to invalidate the
decision of the trial court, there is no question that there were good
reasons for the trial court to issue the order of execution pending appeal
which stated that there was a need for the closure and stoppage of the
operation of private respondent Daytona’s cement batching plant
because it posed “a great menace to the neighborhood both in point of
health and property.” It stated:
From the uncontroverted evidence presented by the petitioners, there is
hardly any question that the cement dust coming from the batching
plant of the defendant corporation is injurious to the health of the
plaintiffs and other residents in the area. The noise, the vibration, the
smoke and the odor generated by the day and night operation of
the plant must indeed be causing them serious discomfort and
untold miseries. Its operation therefore violates certain rights of the
plaintiffs and causes them damage. It is thus a nuisance and its
abatement justified.
Toxic Substances and Hazardous and Nuclear
Wastes Act of 1990 (R.A. 6969)
Section 5. Definition. – As used in this Act:
a. Chemical substance means any organic or inorganic substance of a
particular molecular identity, including:
i. Any combination of such substances occurring in whole or
in part as a result of chemical reaction or occurring in
nature; and
ii. Any element or uncombined chemical.
b. Chemical mixture means any combination of two or more chemical
substances if the combination does not occur in nature and is not, in
whole or in part, the result of a chemical reaction, if none of the
chemical substances comprising the combination is a new chemical
substance and if the combination could have been manufactured for
commercial purposes without a chemical reaction at the time the
chemical substances comprising the combination were combined.
This shall include nonbiodegradable mixtures.
c. Process means the preparation of a chemical substance or mixture
after its manufacture for commercial distribution:
i. In the same form or physical state or in a different form or
physical state from that which it was received by the
person so preparing such substance or mixture; or
ii. As part of an article containing a chemical substance or
mixture.
d. Importation means the entry of a products or substances into the
Philippines (through the seaports or airports of entry) after having
been properly cleared through or still remaining under customs
control, the product or substance of which is intended for direct
consumption, merchandising, warehousing, or for further
processing.
e. Manufacture means the mechanical or chemical transformation of
substances into new products whether work is performed by power-
driven machines or by hand, whether it is done in a factory or in the
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Special contribution by Louis Palma Gil

worker's home, and whether the products are sold at wholesale or
retail.
f. Unreasonable risk means expected frequency of undesirable effects
or adverse responses arising from a given exposure to a substance.
g. Hazardous substances are substances which present either:
1. short-term acute hazards, such as acute toxicity by
ingestion, inhalation or skin absorption, corrosivity or
other skin or eye contact hazards or the risk of fire or
explosion; or
2. long-term environmental hazards, including chronic
toxicity upon repeated exposure, carcinogenicity (which
may in some cases result from acute exposure but with a
long latent period), resistance to detoxification process
such as biodegradation, the potential to pollute
underground or surface waters, or aesthetically
objectionable properties such as offensive odors.
h. Hazardous wastes are hereby defined as substances that are
without any safe commercial, industrial, agricultural or economic
usage and are shipped, transported or brought from the country of
origin for dumping or disposal into or in transit through any part of
the territory of the Philippines.
i. Hazardous wastes shall also refer to by-products, side-products,
process residues, spent reaction media, contaminated plant or
equipment or other substances from manufacturing operations, and
as consumer discards of manufacture products.
j. Nuclear wastes are hazardous wastes made radioactive by exposure
to the radiation incidental to the production or utilization of nuclear
fuels but does not include nuclear fuel, or radioisotopes which have
reached the final stage of fabrication so as to be usable for any
scientific, medical, agricultural, commercial, or industrial purpose.
Section 6. Function, Powers and Responsibilities of the Department
of Environment and Natural Resources. – The Department of
Environment and Natural Resources shall be the implementing agency
tasked with the following functions, powers, and responsibilities:
a. To keep an updated inventory of chemicals that are presently being
manufactured or used, indicating, among others, their existing and
possible uses, quality, test data, names of firms manufacturing or
using them, and such other information as the Secretary may
consider relevant to the protection of health and the environment;
b. To require chemical substances and mixtures that present
unreasonable risk or injury to health or to the environment to be
tested before they are manufactured or imported for the first time;
c. To require chemical substances and mixtures which are presently
being manufactured or processed to be tested if there is a reason to
believe that they pose unreasonable risk or injury to health or the
environment;
d. To evaluate the characteristics of chemicals that have been tested to
determine their toxicity and the extent of their effects on health and
the environment;
e. To enter into contracts and make grants for research, development,
and monitoring of chemical substances and mixtures;
f. To conduct inspection of any establishment in which chemicals are
manufactured, processed, stored or held before or after their
commercial distribution and to make recommendations to the
proper authorities concerned;
g. To confiscate or impound chemicals found not falling within said acts
cannot be enjoined except after the chemicals have been
impounded;
h. To monitor and prevent the entry, even in transit, of hazardous and
nuclear wastes and their disposal into the country;
i. To subpoena witnesses and documents and to require other
information if necessary to carry out the provisions of this Act;
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
j. To call on any department, bureau, office, agency, state university or
college, and other instrumentalities of the Government for assistance
in the form of personnel, facilities, and other resources as the need
arises in the discharge of its functions;
k. To disseminate information and conduct educational awareness
campaigns on the effects of chemical substances, mixtures and
wastes on health and environment; and
l. To exercise such powers and perform such other functions as may
be necessary to carry out its duties and responsibilities under this
Act.
Revised Forestry Code (P.D. 705)
CHAPTER IV
CRIMINAL OFFENSES AND PENALTIES
Section 68. Cutting, gathering and/or collecting timber or other
products without license. Any person who shall cut, gather, collect, or
remove timber or other forest products from any forest land, or timber
from alienable and disposable public lands, or from private lands, without
any authority under a license agreement, lease, license or permit, shall be
guilty of qualified theft as defined and punished under Articles 309 and
310 of the Revised Penal Code; Provided, That in the case of partnership,
association or corporation, the officers who ordered the cutting, gathering
or collecting shall be liable, and if such officers are aliens, they shall, in
addition to the penalty, be deported without further proceedings on the
part of the Commission on Immigration and Deportation.
The Court shall further order the confiscation in favor of the government
of the timber or forest products to cut, gathered, collected or removed,
and the machinery, equipment, implements and tools used therein, and
the forfeiture of his improvements in the area.
The same penalty plus cancellation of his license agreement, lease, license
or permit and perpetual disqualification from acquiring any such privilege
shall be imposed upon any licensee, lessee, or permittee who cuts timber
from the licensed or leased area of another, without prejudice to whatever
civil action the latter may bring against the offender.
Revised Forestry Code (E.O. 277, amening P.D.
705)
Section 1. Section 68 of Presidential Decree (P.D.) No. 705, as amended,
is hereby amended to read as follows:
"Section 68. Cutting, Gathering and/or collecting Timber, or
Other Forest Products Without License. Any person who shall
cut, gather, collect, removed timber or other forest products
from any forest land, or timber from alienable or disposable
public land, or from private land, without any authority, or
possess timber or other forest products without the legal
documents as required under existing forest laws and
regulations, shall be punished with the penalties imposed under
Articles 309 and 310 of the Revised Penal Code: Provided, That
in the case of partnerships, associations, or corporations, the
officers who ordered the cutting, gathering, collection or
possession shall be liable, and if such officers are aliens, they
shall, in addition to the penalty, be deported without further
proceedings on the part of the Commission on Immigration and
Deportation.
"The court shall further order the confiscation in favor of the
government of the timber or any forest products cut, gathered,
collected, removed, or possessed as well as the machinery,
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equipment, implements and tools illegally used in the area
where the timber or forest products are found."
Section 2. Presidential Decree No. 705, as amended, is hereby further
amended by adding Sections 68-A and 68-B which shall read as follows:
"Section 68-A. Administrative Authority of the Department
Head or His Duly Authorized Representative to Order
Confiscation. In all cases of violations of this Code or other
forest laws, rules and regulations, the Department Head or his
duly authorized representative, may order the confiscation of
any forest products illegally cut, gathered, removed or
possessed or abandoned, and all conveyances used either by
land, water or air in the commission of the offense and to
dispose of the same in accordance with pertinent laws,
regulations or policies on the matter.
"Section 68-B. Rewards to Informants. Any person who shall
provide any information leading to the apprehension and
conviction of any offender for any violation of this Code or
other forest laws, rules and regulations, or confiscation of forest
products shall be given a reward in the amount of twenty per
centum (20%) of the proceeds of the confiscated forest
products."
QUIZ #5
1. True or False. P.D. 389 is otherwise known as the Revised Forestry Code of the
Philippines. – It’s P.D. 705.
2. True or False. Cutting, Gathering, and/or Collecting Timber, or Other Forest
Products without License. Any person who shall cut, gather, collect, remove
timber or other forest products from any forestland, or timber from alienable
or disposable public land, or from private land, without any authority, or
possess timber or other forest products without the legal documents as
required under existing forest laws and regulations, shall be punished with the
penalties imposed under Article 315 of the RPC. – It should be “shall be
punished with the penalties imposed under Articles 309 and 310 of the Revised
Penal Code”, as stated under Section 68 of P.D. 705, as amended by E.O. 277.
3. True or False. Any person who shall provide any information leading to the
apprehension and conviction of any offender for any violation of this Code or
other forest laws, rules and regulations or confiscation of forest products, shall
be given a reward in the amount of twenty per centum (20%) of the proceeds
of the confiscated forest products is known as the rewards to informants. –
This is provided under Section 2 of E.O. 277 which amended P.D. 705.
4. True or False. A timber license agreement is not a contract but a mere privilege
which may be modified, amended, or rescinded when required by national
interest, as declared in Ysmael vs. Deputy Executive Secretary.
5. In Ysmael vs. Deputy Executive Secretary, Ernesto Maceda was the Minister of
the _________.
a. Executive Secretary
b. Ministry of Natural Resources
c. DENR
d. DILG
6. In Ysmael vs. Deputy Executive Secretary, the court held that MNR did act with
grave abuse of discretion, except:
1. MNR’s refusal to reverse final and executor administrative orders is within its
right as an administrative agency.
2. Laches has set in.
3. TLA are instruments for the State to regulate the utilization and disposition of
forest resources and promote public welfare.
4. All of the above.
5. None of the above.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
7. True or False. The Filipino children, representing themselves and generations
yet unborn, have the right and legal personality to sue in a court of law by way
of class suit in order to protect their environment as held in Miners Association
of the Philippines v. Factoran Jr. – It’s Minors of the Philippines vs. Factoran Jr.
8. True or False. Every generation has a responsibility to the next to preserve that
rhythm and harmony for the full enjoyment of a balanced and healthful
ecology or otherwise known as the intergenerational responsibility. -- Minors
Association of the Philippines vs. Factoran Jr.
9. True or False. Lumber is a processed log or timber as declared in Paat vs. CA.
– It was declared in the case of Mustang Lumber vs. CA.
10. True or False. A legal action for replevin to a motor vehicle which was found
to be towing forest product is proper without the need to exhaust
administrative remedies.
11. Philippine Ecological Network, Inc. (PENI)
12. Haribon Foundation
FELIPE YSMAEL, JR. & CO., INC. vs. DEPUTY EXECUTIVE
SECRETARY, et. al. (1990)
Facts: Soon after the change of government in February 1986, petitioner
Felipe Ysmael, Jr. & Co., Inc. sent a letter to the Office of the President
and another letter to Minister Ernesto Maceda of the Ministry of Natural
Resources, seeking:
1. the reinstatement of its timber license agreement which was
cancelled during the Marcos administration;
2. the revocation of TLA No. 356 which was issued to Tiwn Peaks
Development and Realty Corporation without public bidding and in
violation of forestry laws, rules and regulations; and
3. the issuance of an order allowing petitioner to take possession of all
logs found in the concession area.
Petitioner’s allegations:
• Petitioner entered into a timber license agreement (TLA No. 87) with
the Department of Agriculture and Natural Resources, wherein it was
issued an exclusive license to cut, collect, and remove timber except
prohibited species within a specified portion of public forest land
with an area of 54,920 hectares located in Maddela, province of
Nueva Vizcaya.
• The Director of the Bureau of Forest Development issued a
memorandum order stopping all logging operations in Nueva
Vizcaya and Quirino, pursuant to presidential instructions and a
memorandum order from the Minister of Natural Resources.
• Petitioner received a telegram from the bureau requesting petitioner
to stop all logging operations to conserve remaining forests.
• After the cancellation of its agreement, it sent a letter to President
Marcos seeking reconsideration of the Bureau’s directive citing that
it was not given the chance to be heard.
• One year after, approximately 26,000 hectares of the area covered by
TLA No. 87 was re-awarded to Twin Peaks Development and
Realty Corporation under TLA No. 356, while the other half was
awarded to Filipinas Loggers, Inc. without the benefit of a formal
award and license.
• Petitioner alleges that the said entities were controlled or owned by
relatives or cronies of the deposed President Marcos.
Minister of Natural Resources (MNR): The minister denied the
petitioner’s request ruling that a timber license was not a contract
within the due process clause of the Constitution, but only a privilege
which could be withdrawn whenever public interest or welfare so
demands, and that the petitioner was not discriminated against in view of
the fact that it was among 10 concessionaires whose licenses were
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revoked. Moreover, emphasis was made of the total ban of logging
operations in the provinces of Nueva Ecija and Vizcaya, Quirino, and
Ifugao imposed on 1986. Petitioner’s motion for reconsideration and
supplemental motion for reconsideration were likewise denied.
Office of the President: Petitioner’s appeal was denied for lack of merit,
ruling that the appeal was prematurely filed, the matter not having been
terminated in the MNR. Its motion for reconsideration was likewise denied.
Ruling: The Court finds several factors which militate against the issuance
of a writ of certiorari in favor of petitioner.
1. The refusal of public respondents to reverse final and executory
administrative orders does not constitute grave abuse of discretion
amounting to lack or excess of jurisdiction.
2. Petitioner is precluded from availing of the benefits of a writ of
certiorari in the present case as he failed to file his petition within a
reasonable period.
3. Considerations on public policy effectively forestall judicial
interference in the case at bar.
The ongoing administrative reassessment is apparently in response
to the renewed and growing global concern over the despoliation of
forest lands and the utter disregard of their crucial role in sustaining
a balanced ecological system. The legitimacy of such concern can
hardly be disputed, most especially in this country.
The Court takes judicial notice of the profligate waste of the country's
forest resources which has not only resulted in the irreversible loss of
flora and fauna peculiar to the region, but has produced even more
disastrous and lasting economic and social effects. The delicate
balance of nature having been upset, a vicious cycle of floods and
droughts has been triggered and the supply of food and energy
resources required by the people seriously depleted.
While there is a desire to harness natural resources to amass profit
and to meet the country's immediate financial requirements, the
more essential need to ensure future generations of Filipinos of their
survival in a viable environment demands effective and circumspect
action from the government to check further denudation of whatever
remains of the forest lands. Nothing less is expected of the
government, in view of the clear constitutional command to maintain
a balanced and healthful ecology. Section 16 of Article II of the
1987 Constitution provides:
Section 16. The State shall protect and promote the right of the people
to a balanced and healthful ecology in accord with the rhythm and
harmony of nature.
Courts will not interfere in matters which are addressed to the sound
discretion of government agencies entrusted with the regulation of
activities coming under the special technical knowledge and training
of such agencies
Thus, while the administration grapples with the complex and multifarious
problems caused by unbridled exploitation of these resources, the
judiciary will stand clear. A long line of cases establish the basic rule that
the courts will not interfere in matters which are addressed to the sound
discretion of government agencies entrusted with the regulation of
activities coming under the special technical knowledge and training of
such agencies.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
The Court refuses to interfere in the DENR evaluation of timber licenses
and permits issued under the previous regime, or to pre-empt the
adoption of appropriate corrective measures by the department.
Nevertheless, the Court cannot help but express its concern regarding
alleged irregularities in the issuance of timber license agreements to a
number of logging concessionaires.
The grant of licenses or permits to exploit the country's timber resources,
if done in contravention of the procedure outlined in the law, or as a result
of fraud and undue influence exerted on department officials, is indicative
of an arbitrary and whimsical exercise of the State's power to regulate the
use and exploitation of forest resources.
The alleged practice of bestowing "special favors" to preferred individuals,
regardless of merit, would be an abuse of this power. And this Court will
not be a party to a flagrant mockery of the avowed public policy of
conservation enshrined in the 1987 Constitution.
Therefore, should the appropriate case be brought showing a clear grave
abuse of discretion on the part of officials in the DENR and related bureaus
with respect to the implementation of this public policy, the Court will not
hesitate to step in and wield its authority, when invoked, in the exercise of
judicial powers under the Constitution [Section 1, Article VIII].
However, petitioner having failed to make out a case showing grave
abuse of discretion on the part of public respondents herein, the Court
finds no basis to issue a writ of certiorari and to grant any of the
affirmative reliefs sought.
MINORS OPOSA, et. al. & THE PHILIPPINE ECOLOGICAL
NETWORK, INC. vs. FACTORAN, JR. & ROSARIO (1993)
Facts: A civil case was filed before the RTC and was instituted as a
taxpayer’s class suit. Petitioners herein, are all minors duly represented
and joined by their respective parents, as well as The Philippine
Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit
organization organized for the purpose of, inter alia, engaging in
concerted action geared for the protection of our environment and
natural resources.
Original respondent was the Honorable Fulgencio S. Factoran, Jr., then
Secretary of the Department of Environment and Natural Resources
(DENR). He would thereafter be replaced by the Honorable Angel C.
Alcala.
Petitioners’ allegations
The complaint alleges that the petitioners are are all citizens of the
Republic of the Philippines, taxpayers, and entitled to the full benefit, use
and enjoyment of the natural resource treasure that is the country's virgin
tropical forests."
The same was filed for themselves and others who are equally concerned
about the preservation of said resource but are "so numerous that it is
impracticable to bring them all before the Court."
The minors further asseverate that they "represent their generation as well
as generations yet unborn."
Prayer
Consequently, it is prayed for that judgment be rendered, ordering
defendant, his agents, representatives and other persons acting in his
behalf to —
1. cancel all existing timber license agreements in the country;
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2. cease and desist from receiving, accepting, processing, renewing or
approving new timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under
the premises.
Motion to dismiss
Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on
two grounds, namely:
1. the plaintiffs have no cause of action against him, and
2. the issue raised by the plaintiffs is a political question which properly
pertains to the legislative or executive branches of Government.
Opposition to the motion
The petitioners maintain that
1. the complaint shows a clear and unmistakable cause of action,
2. the motion is dilatory, and
3. the action presents a justiciable question as it involves the
defendant's abuse of discretion.
TC: Respondent Judge Eriberto U. Rosario issued an order granting the
aforementioned motion to dismiss, ruling that not only was the
defendant's claim — that the complaint states no cause of action against
him and that it raises a political question — sustained, the respondent
Judge further ruled that the granting of the relief prayed for would result
in the impairment of contracts which is prohibited by the fundamental law
of the land.
Petition before the Supreme Court
Plaintiffs thus filed the instant special civil action for certiorari under Rule
65 of the Revised Rules of Court and ask this Court to rescind and set aside
the dismissal order on the ground that the respondent Judge gravely
abused his discretion in dismissing the action. The Court resolved to give
due course to the petition.
Petitioner’s contentions: They content that:
1. the complaint clearly and unmistakably states a cause of action as it
contains sufficient allegations concerning:
• their right to a sound environment based on:
o Articles 19, 20 and 21 of the Civil Code (Human
Relations),
o Section 4 of Executive Order (E.O.) No. 192 creating
the DENR,
o Section 3 of Presidential Decree No. 1151 (Philippine
Environmental Policy),
o Section 16, Article II of the 1987 Constitution
recognizing the right of the people to a balanced and
healthful ecology, the concept of generational
genocide in Criminal Law and
o the concept of man's inalienable right to self-
preservation and self-perpetuation embodied in
natural law.
• respondent's correlative obligation per Section 4 of E.O. No.
192, to safeguard the people's right to a healthful environment.
2. that the issue of the respondent Secretary's alleged grave abuse of
discretion in granting Timber License Agreements (TLAs) to cover
more areas for logging than what is available involves a judicial
question.
3. that anent the invocation by the respondent Judge of the
Constitution's non-impairment clause, petitioners maintain that the
same does not apply in this case because TLAs are not contracts.
4. that even if TLAs may be considered protected by the said clause, it
is well settled that they may still be revoked by the State when the
public interest so requires.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
Respondents’ contentions: They aver:
• that the petitioners failed to allege in their complaint a specific legal
right violated by the respondent Secretary for which any relief is
provided by law.
• they see nothing in the complaint but vague and nebulous
allegations concerning an "environmental right" which supposedly
entitles the petitioners to the "protection by the state in its capacity
as parens patriae."
• that such allegations, according to them, do not reveal a valid cause
of action.
• that the theory that the question of whether logging should be
permitted in the country is a political question which should be
properly addressed to the executive or legislative branches of
Government.
• that the petitioners' resources is not to file an action to court, but to
lobby before Congress for the passage of a bill that would ban
logging totally.
• that as to the matter of the cancellation of the TLAs, respondents
submit that the same cannot be done by the State without due
process of law. Once issued, a TLA remains effective for a certain
period of time — usually for twenty-five (25) years. During its
effectivity, the same can neither be revised nor cancelled unless the
holder has been found, after due notice and hearing, to have violated
the terms of the agreement or other forestry laws and regulations.
• that petitioners' proposition to have all the TLAs indiscriminately
cancelled without the requisite hearing would be violative of the
requirements of due process.
Issues:
1. Whether or not the petitioners have a cause of action. [Yes]
2. Whether or not the petitioners have legal standing. [Yes]
3. Whether or not said petitioners have a cause of action to “prevent
the misappropriation or impairment” of the Philippine rainforests
and “arrest the unabated hemorrhage of the country’s vital life
support systems and continued rape of Mother Earth.” [Yes]
4. Whether or not Timber License Agreements (TLAs) are covered by
the non-impairment clause of the Constitution. [No]
Ruling: The petition is granted.
I
Procedural issues
The civil case is a class suit
Petitioners instituted Civil Case No. 90-777 as a class suit. The original
defendant and the present respondents did not take issue with this matter.
Nevertheless, the Court hereby rules that the said civil case is indeed a
class suit.
The subject matter of the complaint is of common and general interest
not just to several, but to all citizens of the Philippines. Consequently, since
the parties are so numerous, it, becomes impracticable, if not totally
impossible, to bring all of them before the court. The Court likewise
declares that the petitioners therein are numerous and representative
enough to ensure the full protection of all concerned interests.
Hence, all the requisites for the filing of a valid class suit under Section 12,
Rule 3 of the Revised Rules of Court are present both in the said civil case
and in the instant petition, the latter being but an incident to the former.
On locus standi: Petitioners can, for themselves, for others of their
generation and for the succeeding generations, file a class suit.
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This case, however, has a special and novel element. Petitioners minors
assert that they represent their generation as well as generations yet
unborn. The Court finds no difficulty in ruling that they can, for themselves,
for others of their generation and for the succeeding generations, file a
class suit.
Concept of intergenerational responsibility
Their personality to sue in behalf of the succeeding generations can only
be based on the concept of intergenerational responsibility insofar as
the right to a balanced and healthful ecology is concerned.
Such a right, as hereinafter expounded, considers the "rhythm and
harmony of nature." Nature means the created world in its entirety.
Such rhythm and harmony indispensably include, inter alia, the judicious
disposition, utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas
and other natural resources to the end that their exploration,
development and utilization be equitably accessible to the present as well
as future generations.
Needless to say, every generation has a responsibility to the next to
preserve that rhythm and harmony for the full enjoyment of a balanced
and healthful ecology. Put a little differently, the minors' assertion of their
right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right for
the generations to come.
II
Substantial issues
The Court finds for the petitioners and rules against the respondent
Judge's challenged order for having been issued with grave abuse of
discretion amounting to lack of jurisdiction.
The complaint focuses on the right to a balanced and healthful
ecology
The Court does not with the trial court's conclusions that the plaintiffs
failed to allege with sufficient definiteness a specific legal right involved
or a specific legal wrong committed, and that the complaint is replete with
vague assumptions and conclusions based on unverified data. A reading
of the complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right — the right
to a balanced and healthful ecology which, for the first time in our nation's
constitutional history, is solemnly incorporated in the fundamental law.
Section 16, Article II of the 1987 Constitution explicitly provides:
Section 16. The State shall protect and advance the right of the people
to a balanced and healthful ecology in accord with the rhythm and
harmony of nature.
This right unites with the right to health which is provided for in the
preceding section of the same article:
Section 15. The State shall protect and promote the right to health of
the people and instill health consciousness among them.
While the right to a balanced and healthful ecology is to be found
under the Declaration of Principles and State Policies and not under
the Bill of Rights, it does not follow that it is less important than any
of the civil and political rights enumerated in the latter.
Such a right belongs to a different category of rights altogether for it
concerns nothing less than self-preservation and self-perpetuation —
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
aptly and fittingly stressed by the petitioners — the advancement of which
may even be said to predate all governments and constitutions.
Basic rights need not be written as they are presumed to exist
As a matter of fact, these basic rights need not even be written in the
Constitution for they are assumed to exist from the inception of
humankind. If they are now explicitly mentioned in the fundamental
charter, it is because of the well-founded fear of its framers that unless the
rights to a balanced and healthful ecology and to health are mandated as
state policies by the Constitution itself, thereby highlighting their
continuing importance and imposing upon the state a solemn obligation
to preserve the first and protect and advance the second, the day would
not be too far when all else would be lost not only for the present
generation, but also for those to come — generations which stand to
inherit nothing but parched earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the
correlative duty to refrain from impairing the environment.
During the debates on this right in one of the plenary sessions of the 1986
Constitutional Commission, the following exchange transpired between
Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who
sponsored the section in question:
MR. VILLACORTA: Does this section mandate the State to provide
sanctions against all forms of pollution — air, water and noise pollution?
MR. AZCUNA: Yes, Madam President. The right to healthful (sic)
environment necessarily carries with it the correlative duty of not
impairing the same and, therefore, sanctions may be provided for
impairment of environmental balance.
The said right implies, among many other things, the judicious
management and conservation of the country's forests.
Without such forests, the ecological or environmental balance would be
irreversibly disrupted.
E.O. 192 and the Administrative Code of 1987
Conformably with the enunciated right to a balanced and healthful
ecology and the right to health, as well as the other related provisions of
the Constitution concerning the conservation, development and
utilization of the country's natural resources, then President Corazon C.
Aquino promulgated on 10 June 1987 E.O. No. 192, Section 4 of which
expressly mandates that the Department of Environment and Natural
Resources:
"shall be the primary government agency responsible for the
conservation, management, development and proper use of the
country's environment and natural resources, specifically forest and
grazing lands, mineral, resources, including those in reservation and
watershed areas, and lands of the public domain, as well as the licensing
and regulation of all natural resources as may be provided for by law in
order to ensure equitable sharing of the benefits derived therefrom for
the welfare of the present and future generations of Filipinos."
Section 3 thereof makes the following statement of policy:
Section 3. Declaration of Policy. — It is hereby declared the policy of
the State to ensure the sustainable use, development, management,
renewal, and conservation of the country's forest, mineral, land, off-shore
areas and other natural resources, including the protection and
enhancement of the quality of the environment, and equitable access of
the different segments of the population to the development and the
use of the country's natural resources, not only for the present
generation but for future generations as well. It is also the policy of
the state to recognize and apply a true value system including social and
environmental cost implications relative to their utilization, development
and conservation of our natural resources.
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This policy declaration is substantially re-stated it Title XIV, Book IV of the
Administrative Code of 1987, specifically in Section 1 thereof. Said
provision stresses "the necessity of maintaining a sound ecological balance
and protecting and enhancing the quality of the environment."
Section 2 of the same Title, on the other hand, specifically speaks of the
mandate of the DENR; however, it makes particular reference to the fact
of the agency's being subject to law and higher authority and being in
charge of carrying out the State's constitutional mandate to control and
supervise the exploration, development, utilization, and conservation of
the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the
objectives which will serve as the bases for policy formulation, and have
defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987
Constitution, specific statutes already paid special attention to the
"environmental right" of the present and future generations.
P.D. 1151 and 1152
On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D.
No. 1152 (Philippine Environment Code) were issued.
P.D. No. 1151 "declared a continuing policy of the State:
a. to create, develop, maintain and improve conditions under which
man and nature can thrive in productive and enjoyable harmony with
each other,
b. to fulfill the social, economic and other requirements of present and
future generations of Filipinos, and
c. to insure the attainment of an environmental quality that is
conducive to a life of dignity and well-being."
As its goal, it speaks of the "responsibilities of each generation as trustee
and guardian of the environment for succeeding generations." The P.D.
No. 1152, on the other hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a
balanced and healthful ecology is as clear as the DENR's duty — under
its mandate and by virtue of its powers and functions under E.O. No. 192
and the Administrative Code of 1987 — to protect and advance the said
right.
A denial or violation of that right by the other who has the corelative duty
or obligation to respect or protect the same gives rise to a cause of action.
Contention: Petitioners maintain that the granting of the TLAs, which they
claim was done with grave abuse of discretion, violated their right to a
balanced and healthful ecology; hence, the full protection thereof requires
that no further TLAs should be renewed or granted.
Held: After careful examination of the petitioners' complaint, the Court
finds the statements under the introductory affirmative allegations, as well
as the specific averments under the sub-heading CAUSE OF ACTION, to
be adequate enough to show, prima facie, the claimed violation of their
rights.
On the basis thereof, they may thus be granted, wholly or partly, the reliefs
prayed for. It bears stressing, however, that insofar as the cancellation of
the TLAs is concerned, there is the need to implead, as party defendants,
the grantees thereof for they are indispensable parties.
The civil case is raised to a political question
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
The foregoing considered, Civil Case No. 90-777 be said to raise a political
question. Policy formulation or determination by the executive or
legislative branches of Government is not squarely put in issue.
What is principally involved is the enforcement of a right vis-a-vis policies
already formulated and expressed in legislation.
The political question doctrine is no longer an insurmountable
obstacle to the exercise of judicial power; expanded role of the
judiciary
It must, nonetheless, be emphasized that the political question doctrine is
no longer, the insurmountable obstacle to the exercise of judicial power
or the impenetrable shield that protects executive and legislative actions
from judicial inquiry or review. The second paragraph of Section 1, Article
VIII of the Constitution states that:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government.
Non-impairment of contracts as to TLAs, not applicable; they are not
contracts but merely licenses or privileges which may be rescinded or
revoked when national interest demands
The last ground invoked by the trial court in dismissing the complaint is
the non-impairment of contracts clause found in the Constitution. The
court a quo declared that:
The Court is likewise of the impression that it cannot, no matter how we
stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e.,
to cancel all existing timber license agreements in the country and to
cease and desist from receiving, accepting, processing, renewing or
approving new timber license agreements. For to do otherwise would
amount to "impairment of contracts" abhored (sic) by the fundamental
law.
The Court is not persuaded at all. On the contrary, the Court is amazed, if
not shocked, by such a sweeping pronouncement. In the first place, the
respondent Secretary did not, for obvious reasons, even invoke in his
motion to dismiss the non-impairment clause.
If he had done so, he would have acted with utmost infidelity to the
Government by providing undue and unwarranted benefits and
advantages to the timber license holders because he would have forever
bound the Government to strictly respect the said licenses according to
their terms and conditions regardless of changes in policy and the
demands of public interest and welfare.
He was aware that as correctly pointed out by the petitioners, into every
timber license must be read Section 20 of the Forestry Reform Code (P.D.
No. 705) which provides:
. . . Provided, That when the national interest so requires, the President
may amend, modify, replace or rescind any contract, concession, permit,
licenses or any other form of privilege granted herein . . .
All licenses may be revoked or rescinded by executive action as it is
not a contract, property or a property right protested by the due
process clause of the Constitution
Needless to say, all licenses may thus be revoked or rescinded by
executive action. It is not a contract, property or a property right protested
by the due process clause of the Constitution. In Tan vs. Director of
Forestry, this Court held:
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. . . A timber license is an instrument by which the State regulates the
utilization and disposition of forest resources to the end that public
welfare is promoted. A timber license is not a contract within the
purview of the due process clause; it is only a license or privilege,
which can be validly withdrawn whenever dictated by public interest or
public welfare as in this case.
A license is merely a permit or privilege to do what otherwise would
be unlawful, and is not a contract between the authority, federal,
state, or municipal, granting it and the person to whom it is granted;
neither is it property or a property right, nor does it create a vested
right; nor is it taxation (37 C.J. 168). Thus, this Court held that the granting
of license does not create irrevocable rights, neither is it property or
property rights (People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs.
Deputy Executive Secretary:
. . . Timber licenses, permits and license agreements are the principal
instruments by which the State regulates the utilization and disposition
of forest resources to the end that public welfare is promoted. And it can
hardly be gainsaid that they merely evidence a privilege granted by
the State to qualified entities, and do not vest in the latter a
permanent or irrevocable right to the particular concession area and
the forest products therein. They may be validly amended, modified,
replaced or rescinded by the Chief Executive when national interests
so require. Thus, they are not deemed contracts within the purview
of the due process of law clause.
Since timber licenses are not contracts, the non-impairment clause,
cannot be invoked.
Section 10. No law impairing, the obligation of contracts shall be passed.
In the second place, even if it is to be assumed that the same are contracts,
the instant case does not involve a law or even an executive issuance
declaring the cancellation or modification of existing timber licenses.
Hence, the non-impairment clause cannot as yet be invoked.
The non-impairment clause must yield to the police power of the
state.
Nevertheless, granting further that a law has actually been passed
mandating cancellations or modifications, the same cannot still be
stigmatized as a violation of the non-impairment clause.
This is because by its very nature and purpose, such as law could have
only been passed in the exercise of the police power of the state for the
purpose of advancing the right of the people to a balanced and healthful
ecology, promoting their health and enhancing the general welfare.
In Abe vs. Foster Wheeler Corp. this Court stated:
The freedom of contract, under our system of government, is not meant
to be absolute. The same is understood to be subject to reasonable
legislative regulation aimed at the promotion of public health, moral,
safety and welfare. In other words, the constitutional guaranty of non-
impairment of obligations of contract is limited by the exercise of
the police power of the State, in the interest of public health, safety,
moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, quoted
in Philippine American Life Insurance Co. vs. Auditor General, to wit:
Under our form of government the use of property and the making of
contracts are normally matters of private and not of public concern. The
general rule is that both shall be free of governmental interference. But
neither property rights nor contract rights are absolute; for
government cannot exist if the citizen may at will use his property to the
detriment of his fellows, or exercise his freedom of contract to work them
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
harm. Equally fundamental with the private right is that of the public to
regulate it in the common interest.
In short, the non-impairment clause must yield to the police power of the
state.
Finally, it is difficult to imagine, as the trial court did, how the non-
impairment clause could apply with respect to the prayer to enjoin the
respondent Secretary from receiving, accepting, processing, renewing or
approving new timber licenses for, save in cases of renewal, no contract
would have as of yet existed in the other instances. Moreover, with respect
to renewal, the holder is not entitled to it as a matter of right.
MUSTANG LUMBER, INC. vs. COURT OF APPEALS,
FACTORAN, JR., & ROBLES (1996)
Facts: This case is a consolidation of two civil cases and one criminal case.
Petitioner Mustang Lumber, Inc. is a domestic corporation duly
registered as a limber dealer with the Bureau of Forest Development
(BFD). Its permit was to expire on September 25, 1990. Respondent
Secretary Fulgencio Factoran, Jr. was the Secretary of the DENR, while
respondent Atty. Vicent A. Robles was the Special Actions and
Investigation Division (SAID) Chief of the DENR.
On April 1, 1990, acting on an information that a huge stockpile of narra
flitches, shorts, and slabs were seen inside the lumberyard of petitioner in
Valenzuela, Metro Manila, the SAID organized a team of foresters and
policemen and sent it to conduct surveillance at the said lumberyard.
In the course thereof, the tram members saw coming out from the
lumberyard the petitioner's truck, with Plate No. CCK-322, loaded with
lauan and almaciga lumber of assorted sizes and dimensions. Since the
driver could not produce the required invoices and transport documents,
the team seized the truck together with its cargo and impounded them at
the DENR compound at Visayas Avenue, Quezon City. The team was not
able to gain entry into the premises because of the refusal of the owner.
On 3 April 1990, the team was able to secure a search warrant and by
virtue thereof, the team seized on that date from the petitioner’s
lumberyard:
• four truckloads of narra shorts, trimmings, and slabs;
• a negligible number of narra lumber; and
• approximately 200,000 board feet of lumber and shorts of
various species including almaciga and supa.
Administrative seizure
On 4 April 1990, the team returned to the premises of the petitioner's
lumberyard in Valenzuela and placed under administrative seizure the
remaining stockpile of almaciga, supa, and lauan lumber with a total
volume of 311,000 board feet because the petitioner failed to produce
upon demand the corresponding certificate of lumber origin, auxiliary
invoices, tally sheets, and delivery receipts from the source of the invoices
covering the lumber to prove the legitimacy of their source and origin.
Parenthetically, it may be stated that under an administrative seizure the
owner retains the physical possession of the seized articles. Only an
inventory of the articles is taken and signed by the owner or his
representative. The owner is prohibited from disposing them until further
orders.
Counsel for the petitioner sent a letter to Robles requesting an extension
of fifteen days from 14 April 1990 to produce the required documents
covering the seized articles because some of them, particularly the
certificate of lumber origin, were allegedly in the Province of
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Quirino. Robles denied the motion on the ground that the documents
being required from the petitioner must accompany the lumber or forest
products placed under seizure.
Robles’ memorandum report
On 11 April 1990, Robles submitted his memorandum-report
recommending to Secretary Factoran the following:
1. Suspension and subsequent cancellation of the lumber Dealer's Permit of
Mustang Lumber, Inc. for operating an unregistered lumberyard and resaw mill
and possession of Almaciga Lumber (a banned specie) without the required
documents;
2. Confiscation of the lumber seized at the Mustang Lumberyard including the
truck with Plate No. CCK-322 and the lumber loaded herein [sic] now at the
DENR compound in the event its owner fails to submit documents showing
legitimacy of the source of said lumber within ten days from date of seizure;
3. Filing of criminal charges against Mr. Ri Chuy Po, owner of Mustang Lumber
Inc. and Mr. Ruiz, or if the circumstances warrant for illegal possession of narra
and almaciga lumber and shorts if and when recommendation no. 2 pushes
through;
4. Confiscation of Trucks with Plate No. CCS-639 and CDV-458 as well as the
lumber loaded therein for transport lumber using recycled documents.
Secretary Factorans’ order
On 23 April 1990, Secretary Factoran issued an order suspending
immediately the petitioner's lumber-dealer's permit and directing the
petitioner to explain in writing within fifteen days why its lumber-dealer's
permit should not be cancelled.
On the same date, counsel for the petitioner sent another letter to Robles
informing the latter that the petitioner had already secured the required
documents and was ready to submit them. None, however, was
submitted.
Secretary Factoran issued another order wherein, after reciting the events
which took place on 1 April and 3 April 1990, he ordered confiscated in
favor of the government to be disposed of in accordance with law the
approximately 311,000 board feet of lauan, supa, and almaciga lumber,
shorts, and sticks found inside the petitioner's lumberyard.
First civil case
On 11 July 1990, the petitioner filed with the RTC of Manila a petition
for certiorari and prohibition with a prayer for a restraining order or
preliminary injunction against Secretary Fulgencio S. Factoran, Jr., and
Atty. Vincent A. Robles.
The petitioner questioned therein:
a. the seizure on 1 April 1990, without any search and seizure order
issued by a judge, of its truck with Plate No. CCK-322 and its cargo
of assorted lumber consisting of apitong, tanguile, and lauan of
different sizes and dimensions with a total value of P38,000.00; and
b. the orders of Secretary Factoran of 23 April 1990 for lack of prior
notice and hearing and of 3 May 1990 for violation of Section 2,
Article III of the Constitution.
On September 17, 1990, in response to reports that violations of P.D. No.
705 (The Revised Forestry Code of the Philippines), as amended, were
committed and acting upon instruction of Robles and under Special Order
No. 897, series of 1990, a team of DENR agents went to the business
premises of the petitioner located at No. 1352 Juan Luna Street, Tondo,
Manila.
The team caught the petitioner operating as a lumber dealer although
its lumber-dealer's permit had already been suspended on 23 April
1990. Since the gate of the petitioner's lumberyard was open, the team
went inside and saw an owner-type jeep with a trailer loaded with
lumber.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
Upon investigation, the team was informed that the lumber loaded on the
trailer was to be delivered to the petitioner's customer. It also came upon
the sales invoice covering the transaction. The members of the team then
introduced themselves to the caretaker, one Ms. Chua, who turned out to
be the wife of the petitioner's president and general manager, Mr. Ri
Chuy Po, who was then out of town.
Constructive seizure
The team's photographer was able to take photographs of the stockpiles
of lumber including newly cut ones, fresh dust around sawing or cutting
machineries and equipment, and the transport vehicles loaded with
lumber. The team thereupon effected a constructive seizure of
approximately 20,000 board feet of lauan lumber in assorted sizes
stockpiled in the premises by issuing a receipt therefor.
Second civil case
As a consequence of this September 17, 1990 incident, the petitioner filed
with the RTC of Manila a petition for certiorari and prohibition.
Complaint before the DOJ against Ri Chuy Po
In the meantime, Robles filed with the Department of Justice a complaint
against the petitioner's president and general manager, Ri Chuy Po, for
violation of Section 68 of P.D. No. 705, as amended by E.O. No. 277.
After appropriate preliminary investigation, the investigating prosecutor
handed down a resolution recommending that an information be filed
against respondent Ri Chuy Po for illegal possession of approximately
200,000 bd. ft. of lumber consisting of almaciga and supa and for illegal
shipment of almaciga and lauan in violation of Section 68 of P.D. 705 as
amended by E.O. 277, series of 1987.
It is further recommended that the 30,000 bd. ft. of narra shorts, trimmings
and slabs covered by legal documents be released to the rightful owner,
Malupa. This resolution was approved by Undersecretary of Justice
Silvestre H. Bello, III, who served as Chairman of the Task Force on Illegal
Logging.
Information; criminal case
On the basis of that resolution, an information was filed on 5 June 1991
by the DOJ with Branch 172 of the RTC of Valenzuela, charging Ri Chuy
Po with the violation of Section 68 of P.D. No. 705, as amended, which was
docketed as Criminal Case No. 324-V-91. The accusatory portion of the
information reads as follows:
That on or about the 3rd day of April 1990, or prior to or subsequent
thereto, within the premises and vicinity of Mustang Lumber, Inc. in
Fortune Village, Valenzuela, Metro Manila, and within the jurisdiction of
this Honorable Court, the above-named accused, did then and there
wilfully, feloniously and unlawfully, have in his possession truckloads of
almaciga and lauan and approximately 200,000 bd. ft. of lumber and
shorts of various species including almaciga and supa, without the
legal documents as required under existing forest laws and
regulations.
TC (1st civil case): It held that the warrantless search and seizure on 1
April 1990 of the petitioner's truck, which was moving out from the
petitioner's lumberyard in Valenzuela, Metro Manila, loaded with large
volumes of lumber without covering document showing the legitimacy of
its source or origin did not offend the constitutional mandate that search
and seizure must be supported by a valid warrant.
The situation fell under one of the settled and accepted exceptions where
warrantless search and seizure is justified, viz., a search of a moving
vehicle. As to the seizure of a large volume of almaciga, supa, and lauan
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lumber and shorts effected on 4 April 1990, the trial court ruled that the
said seizure was a continuation of that made the previous day and was
still pursuant to or by virtue of the search warrant issued by Executive
Judge Osorio whose validity the petitioner did not even question. And,
although the search warrant did not specifically mention almaciga, supa,
and lauan lumber and shorts, their seizure was valid because it is settled
that the executing officer is not required to ignore contrabands observed
during the conduct of the search.
The trial court, however, set aside Secretary Factoran's order of 3 May 1990
ordering the confiscation of the seized articles in favor of the Government
for the reason that since the articles were seized pursuant to the search
warrant issued by Executive Judge Osorio they should have been returned
to him in compliance with the directive in the warrant.
Motion to quash the criminal complaint
Accused Ri Chuy Po filed in the a Motion to Quash and/or to Suspend
Proceedings based on the following grounds:
1. the information does not charge an offense, for possession
of lumber, as opposed to timber, is not penalized in Section 68 of P.D.
No. 705, as amended, and even granting arguendo that lumber falls
within the purview of the said section, the same may not be used in
evidence against him for they were taken by virtue of an illegal
seizure; and
2. Civil Case No. 90-53648 of Branch 35 of the RTC of Manila, the 1st
civil case, then pending before the Court of Appeals, which involves
the legality of the seizure, raises a prejudicial question.
Prosecution’s opposition
Prosecution opposed the motion alleging that lumber is included in
Section 68 of P.D. No. 705, as amended, and possession thereof without
the required legal documents is penalized therein. It referred to Section
3.2 of DENR Administrative Order No. 19, series of 1989, for the definitions
of timber and lumber, and then argued that exclusion of lumber from
Section 68 would defeat the very purpose of the law, i.e., to minimize, if
not halt, illegal logging that has resulted in the rapid denudation of our
forest resources.
TC (criminal case): It granted the motion to quash and dismissed the case
on the ground that "possession of lumber without the legal documents
required by forest laws and regulations is not a crime.
CA (1st civil case) : It dismissed for lack of merit the petitioner’s appeal
from the decision and affirmed the TC’s rulings.
CA (criminal case): It held that the undue emphasis on lumber or the
commercial nature of the forest product involved has always been foisted
by those who claim to be engaged in the legitimate business of lumber
dealership. But what is important to consider is that when petitioner was
required to present the valid documents showing its acquisition and lawful
possession of the lumber in question, it failed to present any despite the
period of extension granted to it.
TC (2nd civil case): It dismissed the petition because:
a. petitioner did not exhaust administrative remedies;
b. when seizure was made on September 17, 1990, the petitioner could
not sell lumber, as its license was still under suspension;
c. the seizure was valid under Section 68-A of P.D. 705, as amended,
and
d. the seizure was justified as a warrantless search and seizure under
Section 80 of P.D. No. 705, as amended.
CA (2nd civil case): It dismissed the petitioner’s appeal for lack of merit
and sustained the grounds relied upon by the TC.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
It emphasized that a forest officer or employee can seize the forest
product involved in a violation of Section 68 of P.D. No. 705 pursuant to
Section 80 thereof, as amended by P.D. No. 1775. Among the offenses
punished in the chapter referred to in said Section 80 are the cutting,
gathering, collection, or removal of timber or other forest products or
possession of timber or other forest products without the required legal
documents.
Issues:
1. Whether or not there is a violation of Section 68 of P.D. 705,
considering that the word ‘lumber’ does not appear. [Yes]
Ruling: The Court grants the petition with regard to the criminal
complaint but denies the petition with regard to the two civil cases.
G.R. No. 106424
Criminal case
Respondent Judge Teresita Dizon-Capulong of Branch 172 of the RTC of
Valenzuela, Metro Manila, committed grave abuse of discretion in
granting the motion to quash the information in the criminal case and in
dismissing the said case.
Respondent Ri Chuy Po is charged with the violation of Section 68 of P.D.
No. 705, as amended by E.O. No. 277, which provides:
Section 68. Cutting, Gathering and/or collecting Timber, or Other
Forest Products Without License. Any person who shall cut, gather,
collect, remove timber or other forest products from any forest land, or
timber from alienable or disposable public land, or from private land,
without any authority, or possess timber or other forest products without
the legal documents as required under existing forest laws and
regulations, shall be punished with the penalties imposed under Articles
309 and 310 of the Revised Penal Code: Provided, That in the case of
partnerships, associations, or corporations, the officers who ordered the
cutting, gathering, collection or possession shall be liable, and if such
officers are aliens, they shall, in addition to the penalty, be deported
without further proceedings on the part of the Commission on
Immigration and Deportation.
The Court shall further order the confiscation in favor of the government
of the timber or any forest products cut, gathered, collected, removed,
or possessed, as well as the machinery, equipment, implements and tools
illegally used in the area where the timber or forest products are found.
Acts punishable under this Section
Punished then in this section are:
1. the cutting, gathering, collection, or removal of timber or other forest
products from the places therein mentioned without any authority;
and
2. possession of timber or other forest products without the legal
documents as required under existing forest laws and regulations.
Indeed, the word lumber does not appear in Section 68. But conceding ex
gratia that this omission amounts to an exclusion of lumber from the
section's coverage, do the facts averred in the information in the criminal
case validly charge a violation of the said section?
A cursory reading of the information readily leads us to an infallible
conclusion that lumber is not solely its subject matter. It is evident
therefrom that what are alleged to be in the possession of the private
respondent, without the required legal documents, are truckloads of:
1. almaciga and lauan; and
2. approximately 200,000 bd. ft. of lumber and shorts of various species
including almaciga and supa.
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The almaciga and lauan specifically mentioned in no. (1) are not described
as lumber. They cannot refer to the lumber in no. (2) because they are
separated by the words approximately 200,000 bd. ft. with the conjunction
and, and not with the preposition of. They must then be raw forest
products or, more specifically, timbers under Section 3(q) of P.D. No. 705,
as amended, which reads:
Section 3. Definitions.
xxx xxx xxx
q. Forest product means timber, pulpwood, firewood, bark, tree top,
resin, gum, wood, oil, honey, beeswax, nipa, rattan, or other forest
growth such as grass, shrub, and flowering plant, the associated
water, fish, game, scenic, historical, recreational and geological
resources in forest lands.
It follows then that lumber is only one of the items covered by the
information. The public and the private respondents obviously
miscomprehended the averments in the information. Accordingly, even
if lumber is not included in Section 68, the other items therein as noted
above fall within the ambit of the said section, and as to them, the
information validly charges an offense.
The Revised Forestry Code contains no definition of
either timber or lumber.
While the former is included in forest products as defined in paragraph
(q) of Section 3, the latter is found in paragraph (aa) of the same section
in the definition of Processing plant; which reads:
aa. Processing plant is any mechanical set-up, machine or
combination of machine used for the processing of logs and other
forest raw materials into lumber, veneer, plywood, wallboard,
block-board, paper board, pulp, paper or other finished wood
products.
This simply means that lumber is a processed log or processed forest raw
material. Clearly, the Code uses the term lumber in its ordinary or
common usage. In the 1993 copyright edition of Webster's Third New
International Dictionary, lumber is defined, inter alia, as timber or logs
after being prepared for the market. Simply put, lumber is a processed log
or timber.
It is settled that in the absence of legislative intent to the contrary, words
and phrases used in a statute should be given their plain, ordinary, and
common usage meaning. And insofar as possession of timber without the
required legal documents is concerned, Section 68 of P.D. No. 705, as
amended, makes no distinction between raw or processed timber. Neither
should we. Ubi lex non distanguit nec nos distinguere debemus.
G.R. No. 104988
First civil case
The petition is without merit. Petitioner has failed to show that the CA
committed grave abuse of discretion.
Search of a moving vehicle is one of the five doctrinally accepted
exceptions to the constitutional mandate that no search or seizure shall
be made except by virtue of a warrant issued by a judge after personally
determining the existence of probable cause. The other exceptions are:
1. search as an incident to a lawful arrest,
2. seizure of evidence in plain view,
3. customs searches, and
4. consented warrantless search.
As to the final plea of the petitioner that the search was illegal because
possession of lumber without the required legal documents is not illegal
under Section 68 of P.D. No. 705, as amended, since lumber is neither
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
specified therein nor included in the term forest product, the same hardly
merits further discussion in view of our ruling in G.R. No. 106424.
G.R. No. 123784
Second civil case
The allegations and arguments set forth in the petition in this case
palpably fail to show prima facie that a reversible error has been
committed by the Court of Appeals.
The petitioner never disputed the fact that its lumber-dealer's license or
permit had been suspended by Secretary Factoran on 23 April
1990. The suspension was never lifted, and since the license had only a
lifetime of up to 25 September 1990, the petitioner has absolutely no right
to possess, sell, or otherwise dispose of lumber. Accordingly, Secretary
Factoran or his authorized representative had the authority to seize the
lumber pursuant to Section 68-A of P.D. No. 705, as amended, which
provides as follows:
Section 68-A. Administrative Authority of the Department Head or
his Duly Authorized Representative to Order Confiscation. In all cases
of violations of this Code or other forest laws, rules and regulations, the
Department Head or his duly authorized representative may order the
confiscation of any forest products illegally cut, gathered, removed,
or possessed or abandoned. . . .
The petitioner's insistence that possession or sale of lumber is not
penalized must also fail in view of our disquisition and ruling on the same
issue in G.R. No. 106424.
All told then, G.R. No. 104988 and G.R. No. 123784 are nothing more than
rituals to cover up blatant violations of the Revised Forestry Code of the
Philippines (P.D. No. 705), as amended. They are presumably trifling
attempts to block the serious efforts of the DENR to enforce the decree,
efforts which deserve the commendation of the public in light of the
urgent need to take firm and decisive action against despoilers of our
forests whose continuous destruction only ensures to the generations to
come, if not the present, an inheritance of parched earth incapable of
sustaining life. The Government must not tire in its vigilance to protect the
environment by prosecuting without fear or favor any person who dares
to violate our laws for the utilization and protection of our forests.
PAAT & LAYUGAN, JR. vs. COURT OF APPEALS, BACULI,
SPOUSES DE GUZMAN (1997)
Facts: On May 19, 1989, the truck of private respondent Victoria de
Guzman, while on its way to Bulacan, from San Jose, Baggao, Cagayan,
was seized by the DENR personnel in Aritao, Nueva Vizcaya because the
driver could not produce the required documents for the forest products
found and concealed in the truck.
Order of confiscation
CENRO: Petitioner Jovito Layugan, the Community Environment and
Natural Resources Officer (CENRO) in Aritao, Cagayan, ossied on May 23,
1989 an order of confiscation of the truck and gave the owner 15 days to
submit an explanation why the truck should not be forfeited. However,
private respondents failed to submit the required explanation.
RED DENR: Regional Executive Director Rogelio Baggayan of DENR
sustained petitioner Layugan’s action of confiscation and ordered
the forfeiture of the truck invoking Section 68-A of Presidential Decree No.
705 as amended by Executive Order No. 277.
Letter of reconsideration
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Private respondents filed a letter of reconsideration dated June 28, 1989
of the June 22, 1989 order of Executive Director Baggayan, which was,
however, denied in a subsequent order of July 12, 1989.
Subsequently, the case was brought to the DENR Secretary pursuant to
the private respondents’ statement in their letter that in case their letter
for reconsideration would be denied, this letter should be considered as an
appeal to the Secretary.
Suit for replevin
Pending resolution however of the appeal, a suit for replevin (a legal
remedy which enables a person to recover personal property taken
wrongfully or unlawfully, pending a final determination by a court of law),
docketed as Civil Case 4031, was filed by the private respondents against
petitioner Layugan and Executive Director Baggayan with the RTC.
TC: It issued a writ ordering the return of the truck to private respondents.
Motion to dismiss
Petitioner Layugan and Executive Director Baggayan filed a motion to
dismiss with the TC contending, inter alia, that private respondents had
no cause of action for their failure to exhaust administrative remedies.
TC: The trial court denied the motion to dismiss in an order dated
December 28, 1989.
CA: It sustained the TC’s order ruling that the question involved is purely
a legal question.
Hence, this present petition, with prayer for temporary restraining order
and/or preliminary injunction, seeking to reverse the decision of the
respondent Court of Appeals. The prayer for the issuance of temporary
restraining order of petitioners was granted by this Court.
Issues:
1. Without violating the principle of exhaustion of administrative
remedies, may an action for replevin prosper to recover a movable
property which is the subject matter of an administrative forfeiture
in the DENR pursuant to Section 68-A of P.D. 705, as amended? [No]
2. Are the Secretary of the DENR and his representatives empowered
to confiscate and forfeit conveyances used in transporting illegal
forest products in favor of the government? [Yes]
Petitioners’ contention: Invoking the doctrine of exhaustion of
administrative remedies, petitioners aver that the TC could not legally
entertain the suit for replevin because the truck was under administrative
seizure proceedings pursuant to Section 68-A of P.D. 705, as amended by
E.O. 277.
Private respondents’ contention: They would seek to avoid the
operation of this principle asserting that the instant case falls within the
exception of the doctrine upon the justification that:
1. due process was violated because they were not given the chance to
be heard, and
2. the seizure and forfeiture was unlawful on the grounds:
a. that the Secretary of DENR and his representatives have
no authority to confiscate and forfeit conveyances utilized
in transporting illegal forest products, and
b. that the truck as admitted by petitioners was not used in
the commission of the crime.
Ruling: The petition is granted.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
Upon a thorough and delicate scrutiny of the records and relevant
jurisprudence on the matter, the Court is of the opinion that the plea of
petitioners for reversal is in order.
Doctrine of exhaustion of administrative remedies
This Court in a long line of cases has consistently held that before a party
is allowed to seek the intervention of the court, it is a pre-condition that
he should have availed of all the means of administrative processes
afforded him.
Hence, if a remedy within the administrative machinery can still be
resorted to by giving the administrative officer concerned every
opportunity to decide on a matter that comes within his jurisdiction then
such remedy should be exhausted first before courts judicial power can
be sought. The premature invocation of courts intervention is fatal to ones
cause of action. Accordingly, absent any finding of waiver or estoppel the
case is susceptible of dismissal for lack of cause of action.
This doctrine of exhaustion of administrative remedies was not without its
practical and legal reasons, for one thing, availment of administrative
remedy entails lesser expenses and provides for a speedier disposition of
controversies.
However, we are not amiss to reiterate that the principle of exhaustion of
administrative remedies as tested by a battery of cases is not an ironclad
rule. No such exceptions apply in this case.
In this case: There is no question that the controversy was pending before
the Secretary of DENR when it was forwarded to him following the denial
by the petitioners of the motion for reconsideration of private
respondents through the order of July 12, 1989. In their letter of
reconsideration dated June 28, 1989, private respondents clearly
recognize the presence of an administrative forum to which they seek to
avail, as they did avail, in the resolution of their case – “If this motion for
reconsideration does not merit your favorable action, then this letter shuld
be considered as an appeal to the Secretary”.
By appealing to the DENR Secretary, private respondents
acknowledged the existence of an adequate and plain remedy still
available and open to them in the ordinary course of the law.
Thus, they cannot now, without violating the principle of exhaustion of
administrative remedies, seek courts intervention by filing an action for
replevin for the grant of their relief during the pendency of an
administrative proceedings.
Moreover, it is important to point out that the enforcement of forestry
laws, rules and regulations and the protection, development and
management of forest lands fall within the primary and special
responsibilities of the Department of Environment and Natural
Resources.
By the very nature of its function, the DENR should be given a free hand
unperturbed by judicial intrusion to determine a controversy which is well
within its jurisdiction.
The assumption by the TC, therefore, of the replevin suit filed by private
respondents constitutes an unjustified encroachment into the domain
of the administrative agency’s prerogative.
Doctrine of primary jurisdiction
The doctrine of primary jurisdiction does not warrant a court to arrogate
unto itself the authority to resolve a controversy the jurisdiction over
which is initially lodged with an administrative body of special
competence.
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In Felipe Ysmael, Jr. and Co. vs. Deputy Executive Secretary, which was
reiterated in the recent case of Concerned Officials of MWSS vs. Vasquez,
this Court held:
Thus, while the administration grapples with the complex and
multifarious problems caused by unbriddled exploitation of these
resources, the judiciary will stand clear. A long line of cases establish the
basic rule that the courts will not interfere in matters which are
addressed to the sound discretion of government agencies
entrusted with the regulation of activities coming under the special
technical knowledge and training of such agencies.
Contention: Private respondents imputed the patent illegality of seizure
and forfeiture of the truck because the administrative officers of the DENR
allegedly have no power to perform these acts under the law. They insisted
that only the court is authorized to confiscate and forfeit conveyances
used in transporting illegal forest products as can be gleaned from the
second paragraph of Section 68 of P.D. 705, as amended by E.O. 277. The
pertinent provision reads as follows:
Section 68. xxx
xxx
The court shall further order the confiscation in favor of the government
of the timber or any forest products cut, gathered, collected, removed,
or possessed, as well as the machinery, equipment, implements, and
tools illegally used in the area where the timber or forest products are
found.
The Secretary and his duly authorized representatives are given the
authority to confiscate and forfeit any conveyances utilized in
violating the Code or other forest laws, rules and regulations.
Held: A reading, however, of the law persuades the Court not to go along
with private respondents thinking not only because the aforequoted
provision apparently does not mention nor include conveyances that can
be the subject of confiscation by the courts, but to a large extent, due to
the fact that private respondents interpretation of the subject provision
unduly restricts the clear intention of the law and inevitably reduces the
other provision of Section 68-A , which is quoted herein below:
Section 68-A. Administrative Authority of the Department or His
Duly Authorized Representative To Order Confiscation. In all cases of
violation of this Code or other forest laws, rules and regulations,
the Department Head or his duly authorized representative,
may order the confiscation of any forest products illegally cut,
gathered, removed, or possessed or abandoned, and all conveyances
used either by land, water, or air in the commission of the offense
and to dispose of the same in accordance with pertinent laws,
regulations and policies on the matter.
It is, thus, clear from the foregoing provision that the Secretary and his
duly authorized representatives are given the authority to confiscate and
forfeit any conveyances utilized in violating the Code or other forest laws,
rules and regulations. The phrase to dispose of the same is broad enough
to cover the act of forfeiting conveyances in favor of the government.
Limitation
The only limitation is that it should be made in accordance with
pertinent laws, regulations or policies on the matter.
Contention: Private respondents contend that the seizure was illegal
because the petitioners themselves admitted in the Order dated July 12,
1989 of Executive Director Baggayan that the truck of private respondents
was not used in the commission of the crime.
Held: What is contemplated by the petitioners when they stated that the
truck "was not used in the commission of the crime" is that it was not used
in the commission of the crime of theft, hence, in no case can a criminal
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
action be filed against the owner thereof for violation of Article 309 and
310 of the Revised Penal Code. Petitioners did not eliminate the possibility
that the truck was being used in the commission of another crime, that is,
the breach of Section 68 of P.D.705 as amended by E.O. 277.
Contention: There is no crime defined and punishable under Section 68
other than qualified theft, so that, when petitioners admitted in the July
12, 1989 order that private respondents could not be charged for theft as
provided for under Articles 309 and 310 of the Revised Penal Code, then
necessarily private respondents could not have committed an act
constituting a crime under Section 68.
With the introduction of Executive Order No. 277 amending Section 68 of
P.D. 705, the act of cutting, gathering, collecting, removing, or possessing
forest products without authority constitutes a distinct offense
independent now from the crime of theft under Articles 309 and 310 of
the Revised Penal Code, but the penalty to be imposed is that provided
for under Article 309 and 310 of the Revised Penal Code. This is clear
from the language of Executive Order No. 277 when it eliminated the
phrase shall be guilty of qualified theft as defined and punished under
Articles 309 and 310 of the Revised Penal Code and inserted the words shall
be punished with the penalties imposed under Article 309 and 310 of the
Revised Penal Code.
The suit for replevin cannot be sustained
From the foregoing disquisition, it is clear that a suit for replevin cannot
be sustained against the petitioners for the subject truck taken and
retained by them for administrative forfeiture proceedings in pursuant to
Section 68-A of the P. D. 705, as amended.
Dismissal of the replevin suit for lack of cause of action in view of the
private respondents failure to exhaust administrative remedies should
have been the proper course of action by the lower court instead of
assuming jurisdiction over the case and consequently issuing the writ
ordering the return of the truck. Exhaustion of the remedies in the
administrative forum, being a condition precedent prior to ones recourse
to the courts and more importantly, being an element of private
respondents right of action, is too significant to be waylaid by the lower
court.
It is worth stressing at this point, that a suit for replevin is founded solely
on the claim that the defendant wrongfully withholds the property sought
to be recovered.
Moreover, the suit for replevin is never intended as a procedural tool to
question the orders of confiscation and forfeiture issued by the DENR in
pursuance to the authority given under P.D.705, as amended. Section 8 of
the said law is explicit that actions taken by the Director of the Bureau of
Forest Development concerning the enforcement of the provisions of the
said law are subject toreview by the Secretary of DENR and that courts
may not review the decisions of the Secretary except through a special
civil action for certiorari or prohibition.
DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES vs. DARAMAN, LUCENECIO & ROSALES (2002)
Facts: "The accused Gregorio Daraman and Narciso Lucenecio are
charged with violation of Section 68 of Presidential Decree No. 705 as
amended by Executive Order No. 277 in an information which is quoted
herein below:
‘That on or about the 30th day of November, 1993, at about 1:00 o’clock
in the afternoon, at Barangay Bulao, Municipality of San Jorge, Province
of Samar, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring, confederating together and
mutually helping one another, did then and there wilfully, unlawfully and
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feloniously gather, collect and possess seventy two (72) pieces of
assorted sizes of lumber, with a total volume of 72.93 board feet valued
at SEVEN HUNDRED TWENTY NINE PESOS (P729.30) and THIRTY
CENTAVOS, without first securing and obtaining any permit or
license therefor from the proper authorities, thus Violating Section 68
of Presidential Decree No. 705, as amended and further Amended by
Executive Order No. 277, series of 1989.
‘CONTRARY TO LAW.’
RTC: It acquitted both accused and ordered the return of the disputed
vehicle to Lucenecio.
Prior to these court proceedings, the Department of Environment and
Natural Resources-Community and Environment and Natural Resources
Office (DENR-CENRO) of Catbalogan, Samar conducted administrative
confiscation proceedings on the seized lumber and vehicle in the
presence of private respondents.5 The two failed to present documents to
show the legality of their possession and transportation of the lumber
seized. Hence, CENRO Officer Marciano T. Talavera recommended to the
Regional Executive Director (RED) the final confiscation of the seized
lumber and conveyance. Atty. Pastor C. Salazar filed a Memorandum
dated January 26, 1994, concurring with the recommendation to forfeit
the lumber and the vehicle seized from private respondents. The
Memorandum was approved by RED Augustus L. Momongan and Arty.
Fiel I. Marmita, chief of the Legal Division of the DENR, Region VIII,
Tacloban City.
Atty. Rogelio G. Bato Jr. of DENR, Region 8, Tacloban City, moved for the
reconsideration of the assailed Decision, only insofar as it ordered the
"return of the said vehicle to the owner thereof." He contended that the
vehicle had already been administratively confiscated by the DENR on
December 2, 1993, and that the RED approved its forfeiture on January 26,
1994. He further claimed that the DENR had exclusive jurisdiction over the
conveyance, which had been used in violation of the Revised Forestry
Code pursuant to Section 68-A of PD 705, as amended by EO 277.
RTC: It acquitted private respondents for insufficiency of evidence. The
unrebutted testimony of Respondent Daraman was that, in exchange for
the wood shavings from Asan, the former agreed to take the lumber to
the latter’s house in Calbayog City, where the Holy Cross Funeral Services
office was also located. Asan advised Daraman to reply, when asked, that
the papers showing the authorization for the lumber were in the former’s
shop in Barangay Blanca Aurora. Finding the evidence against Respondent
Lucenecio to be likewise insufficient, the RTC considered the vehicle as an
effect of the crime and ordered its delivery to him.
In the challenged Order, the trial court ruled that the Motion for
Reconsideration was untenable on procedural and substantive grounds.
Since Assistant Provincial Prosecutor Feliciano Aguilar did not sign the
Motion, the RTC deemed his silence a sign of his disapproval of the
Motion.
Substantively, the trial court ruled:
"x x x [T]he Court finds the motion still wanting in merits considering that
as found by the Court the owner of the vehicle in question, ‘St. Jude,’
which is the Holy Cross Funeral Parlor owned by accused Narciso
Lucenecio, did not commit any violation of P.D. 705. Likewise, the
prosecution failed to sufficiently establish that accused Gregorio
Daraman had taken or kept control of the lumber subject of the motion
which would thereby demonstrate that he had x x x possession of the
subject forest products. Instead, as established by the evidence it was a
certain Asan who owned the subject lumber. xxx.
xxx xxx xxx
"The decision of the Court has never been brought on appeal, thereby
the same has long become final and executory.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
"Again, as shown by the evidence in the alleged confiscation proceedings
conducted by the OIC DENR Officer Marciano Talavera of Samar on
December 2, 1992, the lumber in question [was] found to be owned by
Asan Abing. But notwithstanding this fact, for reasons not known to the
Court, the said Asan Abing was never made an accused in the present
case.
"Sec. 68-1 of P.D. 705 contemplates a situation where the owner of the
vehicle is himself a violator of P.D. 705 or has been found to have
conspired with any other persons who committed the violation of Sec.
68 of P.D. 705 or consented to the use of his vehicle in violating the said
law. In the present case as shown by the evidence, neither the Holy Cross
Funeral Parlor or its owner accused Narciso Lucenecio has committed a
violation of P.D. 705 as already declared by the Court in its decision of
December 6, 1995 nor the driver, accused Gregorio Daraman. In fact both
were declared acquitted of the violation charged, and the decision has
not been appealed."
Issues:
1. Whether the RTC had jurisdiction to release the confiscated vehicle.
[No]
2. Whether the trial court misconstrued P.D. 705, as amended. [Yes]
Ruling: The petition is meritorious.
I
Jurisdiction to Order Return of Vehicle
Contention: Petitioner contends that the RTC overstepped its jurisdiction
when it ordered the return of the disputed vehicle, because the vehicle
had already become government property by virtue of the forfeiture
Order issued by DENR on January 26, 1994. The DENR secretary or his duly
authorized representative, under Section 68-A of PD 705 as amended by
EO 277, may order the confiscation and disposition of all conveyances –
by land, water or air – used in illegally cutting, gathering, removing,
possessing or abandoning forest products.
Held: We agree. Jurisdiction is conferred by substantive law. A
comparison of the provisions of the two relevant sections of PD 705, as
amended, shows that the jurisdiction of the RTC covers the confiscation
of the timber or forest products as well as the machinery, equipment,
implements and tools illegally used in the area where the timber or forest
products are found; it is the DENR that has jurisdiction over the
confiscation of forest products and, to stress, all conveyances used in the
commission of the offense. Section 68 reads:
"Section 68. Cutting, Gathering and/or Collecting Timber, or Other
Forest Products Without License. – Any person who shall cut, gather,
collect, remove timber or other forest products from any forest land, or
timber from alienable or disposable public land, or from private land,
without any authority, or possess timber or other forest products without
the legal documents as required under existing forest laws and
regulations, shall be punished with the penalties imposed under Articles
309 and 310 of the Revised Penal Code: x x x.
"The Court shall further order the confiscation in favor of the government
of the timber or any forest products cut, gathered, collected, removed,
or possessed, as well as the machinery, equipment, implements and tools
illegally used in the area where the timber or forest products are found."
Section 68-A, in contrast, provides:
"Section 68-A. Administrative Authority of the Department Head or
His Duly Authorized Representative to Order Confiscation. – In all
cases of violations of this Code or other forest laws rules and regulations,
the Department Head or his duly authorized representative, may order
the confiscation of any forest products illegally cut, gathered, removed,
or possessed or abandoned, and all conveyances used either by land,
water or air in the commission of the offense and to dispose of the same
in accordance with pertinent laws, regulations or policies on the matter.”
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If a statute is clear, plain and free from ambiguity, it must be understood
in its literal meaning and applied without resort to interpretation, on the
presumption that its wording correctly expresses its intent or will. The
courts may not construe it differently.
Machinery is a collective term for machines and appliances used in the
industrial arts;
equipment covers physical facilities available for production, including
buildings, machineries and tools; and
implements pertains to whatever may supply a want, especially an
instrument, tool or utensil.
These terms do not include conveyances that are specifically covered by
Section 68-A. The implementing guidelines of Section 68-A
define conveyance in a manner that includes "any type or class of vehicle,
craft, whether motorized or not, used either in land, water or air, or a
combination thereof or any mode of transport used in the movement of
any forest product."
Hence, the original and exclusive jurisdiction over the confiscation of "all
conveyances used either by land, water or air in the commission of the
offense and to dispose of the same" is vested in the Department of
Environment and Natural Resources (DENR) secretary or a duly authorized
representative. The DENR secretary has supervision and control over the
enforcement of forestry, reforestation, parks, game and wildlife laws, rules
and regulations.
To implement Section 68-A, DENR promulgated Administrative Order
(AO) No. 54-93, amending Department Administrative Order (DAO) No.
59-90. AO 54-93 provides the guidelines for the confiscation, forfeiture
and disposition of conveyances used in violation of forestry laws, rules and
regulations.
Even the Information filed in Criminal Case No. 1958 limited the acts
attributed to private respondents to "willfully, unlawfully and feloniously
gather, collect and possess seventy two (72) pieces of assorted sizes of
lumber, x x x without first securing and obtaining any permit or license
therefor from the proper authorities, x x x." The Information did not
contain any allegation pertaining to the transportation or conveyance of
illegally cut, gathered, possessed or abandoned lumber in violation of
Section 68-A of PD 705, as amended.
II
Construing P.D. 705, as amended
Contention: Petitioner alleges that the RTC misinterpreted the law when
it held that Section 68-A, PD 705 contemplated a situation in which the
very owner of the vehicle was the violator or was a conspirator with other
violators of that law. Department Order No. 54, Series of 1993, provides
that the proceedings for the confiscation and the forfeiture of the
conveyance shall be directed against its owner, and that lack of knowledge
of its illegal use shall not bar its forfeiture.
In the present Petition, the trial court ruled in the assailed Order that
Section 68-A of PD 705 contemplated a situation in which the very owner
of the vehicle violated this law or conspired with other persons who
violated it or consented to the use of his or her vehicle in violating it.
Respondents Lucenecio and Daraman were not shown to have violated
PD 705, and their acquittals were not appealed.
Held: We side with petitioner. The guilt or the innocence of the accused
in the criminal case is immaterial, because what is punished under Section
68 is the transportation, movement or conveyance of forest products
without legal documents. The DENR secretary or the authorized
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
representatives do not possess criminal jurisdiction; thus, they are not
capable of making such a ruling, which is properly a function of the courts.
Even Section 68-A of PD 705, as amended, does not clothe petitioner with
that authority.
Conversely, the same law takes out of the general jurisdiction of the
regional trial courts the confiscation of conveyances used in violation of
forestry laws. Hence, we cannot expect the DENR to rule on the criminal
1âwphi1
liability of the accused before it impounds such vehicles. Section 68-A
covers only the movement of lumber or forest products without proper
documents. Where the language of a statute is clear and unambiguous,
the law is applied according to its express terms, and interpretation is
resorted to only where a literal interpretation would lead to either an
absurdity or an injustice.
We also uphold petitioner’s argument that the release of the vehicle to
private respondents would defeat the purpose and undermine the
implementation of forestry laws. The preamble of the amendment in EO
277 underscores the urgency to conserve the remaining forest resources
of the country for the benefit of the present and future generations. Our
forest resources may be effectively conserved and protected only through
the vigilant enforcement and implementation of our forestry laws. Strong
paramount public policy should not be degraded by narrow constructions
of the law that frustrate its clear intent or unreasonably restrict its scope.
The Petition is granted and the assailed decision and order
are reversed and set aside.
DY doing business under the name and style RONWOOD
LUMBER vs. COURT OF APPEALS & LAUSA (1999)
Facts: On May 31, 1993, the Mayor of Butuan City issued Executive Order
No. 93-01 creating Task Force Kalikasan to combat "illegal logging, log
smuggling or possession of and/or transport of illegally cut or produced
logs, lumber, flitches and other forest products" in that city. The team was
composed of personnel of the Philippine Army Philippine National Police
(PNP), the Department of Natural Resources (DENR), and the Office of the
City Mayor of Butuan. Respondent Odel Bernardo Lausa, who was the
acting chief of civilian security in the mayor's office, was a member of the
team.
On July 1, 1993, the members of the task force received confidential
information that two truckloads of illegally cut lumber would be brought
to Butuan City from the Ampayon-Taguibe-Tiniwisan area. Accordingly,
the team set up a check-point along kilometer 4 in Baan, Butuan City.
At around 10:00 p.m., two trucks with Plate Nos. KAK-542 and KBL-214
and loaded with lumber approached the checkpoint. They were flagged
down by the operatives but instead of stopping, they accelerated their
speed hence, the task gave chase. They finally caught up with the two
vehicles aT the compound of Young Metalcraft and Peterwood Agro-
Forest Industries at Baan, Butuan City, about two kilometers from the
checkpoint. When requested by the operatives, Pulcita Lucero,
caretaker/in charge of the a compound could not produce any document
as proof of the legality of the origin/possession of the forest products.
Forester Resurrection Maxilom of the DENR issued a temporary seizure
order and a seizure receipt for the two vehicles and their cargo consisting
of several pieces of lumber of different sizes and dimensions, but Lucero,
the caretaker of the compound where they were seized, refused to accept
them. The seized lumber and vehicles were then taken to the City
motorpol and placed in the custody of respondent Lausa.
The next day, July 2, 1993, Maxilom submitted a memorandum-report to
the Community Environment and Natural Resources Officer (CENRO) of
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Butuan City on the seizure of the lumber and the two vehicles. On July 6,
the CENRO issued a notice of confiscation which was duly posted for three
days.
For lack of claimants, DENR Regional Technical Director Raoul Geollegue
recommended to the Secretary on July 29, 1993 the forfeiture of the
lumber and the two vehicles.6 Accordingly, on July 30, 1993, DENR
Regional Director De la Rosa ordered the CENRO of Butuan City to issue
the requisite forfeiture orders,7 which CENRO Angelita Orcasitas issued
on August 15, 1993.
On October 20, 1993, more than two months after the lumber had been
forfeited, petitioner Soledad Dy, claiming to be the owner of the lumber,
filed a suit for replevin in the Regional Trial Court of Butuan City (Branch
5) for its recovery. The next day, October 21, 1993, the trial court issued a
preliminary writ of replevin.
On October 29, 1993, respondent Lausa filed a motion for the approval of
a counterbond. Before the court could act on his motion, he moved to
dismiss and/or quash the writ of replevin on the ground that the lumber
in question, having been seized and forfeited by the DENR pursuant to
P.D. No. 705, as amended (Revised Forestry Code), was under its custody
and, therefore, resort should first be made to the DENR.
TC: It denied respondent Lausa's application for the approval of the
counterbond as well as his motion to dismiss and/or quash the suit for
replevin.
For this reason, respondent filed a petition for certiorari in the Court of
Appeals in which he sought the approval of his counterbond and the
nullification of two orders, dated October 21, 1993, and November 29,
1993, granting petitioner's prayer for a preliminary writ of replevin and
denying his Motion to Dismiss Case and/or Quash Writ of Replevin.
CA: It granted the petition.
Issue: Whether the Regional Trial Court could in fact take cognizance of
the replevin suit, considering that the object was the recovery of lumber
seized and forfeited by law enforcement agents of the DENR pursuant to
P.D. No. 705 (Revised Forestry Code), as amended by Executive Order No.
277. [No]
Ruling: The appeal is without merit.
The rule is that a party must exhaust all administrative remedies before he
can resort to the courts.
In Paat v. Court of Appeals, where, as in the case at bar, the trial court
issued a writ of replevin against the DENR, thus allowing the claimant to
obtain possession of the conveyance used in transporting undocumented
forest products, this Court stated:
Dismissal of the replevin suit for lack of cause of action in view of the
private respondents' failure to exhaust administrative remedies should
have been the proper cause of action by the lower court instead of
assuming jurisdiction over the case and consequently issuing the writ
ordering the return of the truck. Exhaustion of the remedies in the
administrative forum, being a condition precedent prior to one's
recourse to the courts and more importantly, being an element of private
respondents' rights of action is too significant to be waylaid by the lower
court.
As petitioner clearly failed to exhaust available administrative
remedies, the Court of Appeals correctly set aside the assailed orders
of the trial court granting petitioner's application for a replevin writ
and denying private respondent's motion to dismiss.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
Having been forfeited pursuant to P.D. No. 705, as amended, the lumber
properly came under the custody of the DENR and all actions seeking to
recover possession thereof should be directed to that agency.
The appellate court's directive to the trial court judge to allow the
respondent agent of the DENR to file a counterbond in order to recover
custody of the lumber should be disregarded as being contrary to its order
to dismiss the replevin suit of petitioner. For, indeed, what it should have
done was to dismiss the case without prejudice to petitioner filing her
claim before the Department of Natural Resources (DENR).
In view of the conclusion reached in this case, it is unnecessary to discuss
the errors assigned by petitioner. These pertain to the questions whether
petitioner's complaint below was properly verified and whether private
respondent's counterbond should be approved. Both are based on the
premise that the trial court can take cognizance over the case. As shown
above, however, such is not the case.
Philippine Mining Act of 1995 (R.A. 7942)
Section 3. Definition of Terms. As used in and for purposes of this Act,
the following terms, whether in singular or plural, shall mean:
a. Ancestral lands refers to all lands exclusively and actually
possessed, occupied, or utilized by indigenous cultural communities
by themselves or through their ancestors in accordance with their
customs and traditions since time immemorial, and as may be
defined and delineated by law.
b. Block or meridional block means an area bounded by one-half (1/2)
minute of latitude and one-half (1/2) minute of longitude, containing
approximately eighty-one hectares (81 has.).
c. Bureau means the Mines and Geosciences Bureau under the
Department of Environment and Natural Resources.
d. Carrying capacity refers to the capacity of natural and human
environments to accommodate and absorb change without
experiencing conditions of instability and attendant degradation.
e. Contiguous zone refers to water, sea bottom and substratum
measured twenty-four nautical miles (24 n.m.) seaward from the base
line of the Philippine archipelago.
f. Contract area means land or body of water delineated for purposes
of exploration, development, or utilization of the minerals found
therein.
g. Contractor means a qualified person acting alone or in consortium
who is a party to a mineral agreement or to a financial or technical
assistance agreement.
h. Co-production agreement (CA) means an agreement entered into
between the Government and one or more contractors in
accordance with Section 26(b) hereof.
i. Department means the Department of Environment and Natural
Resources.
j. Development means the work undertaken to explore and prepare
an ore body or a mineral deposit for mining, including the
construction of necessary infrastructure and related facilities.
k. Director means the Director of the Mines and Geosciences Bureau.
l. Ecological profile or eco-profile refers to geographic-based
instruments for planners and decision-makers which presents an
evaluation of the environmental quality and carrying capacity of an
area.
m. Environmental compliance certificate (ECC) refers to the
document issued by the government agency concerned certifying
that the project under consideration will not bring about an
unacceptable environmental impact and that the proponent has
complied with the requirements of the environmental impact
statement system.
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n. Environmental impact statement (EIS) is the document which aims
to identify, predict, interpret, and communicate information
regarding changes in environmental quality associated with a
proposed project and which examines the range of alternatives for
the objectives of the proposal and their impact on the environment.
o. Exclusive economic zone means the water, sea bottom and
subsurface measured from the baseline of the Philippine archipelago
up to two hundred nautical miles (200 n.m.) offshore.
p. Existing mining/quarrying right means a valid and subsisting
mining claim or permit or quarry permit or any mining lease contract
or agreement covering a mineralized area granted/issued under
pertinent mining laws.
q. Exploration means the searching or prospecting for mineral
resources by geological, geochemical or geophysical surveys, remote
sensing, test pitting, trenching, drilling, shaft sinking, tunneling or
any other means for the purpose of determining the existence,
extent, quantity and quality thereof and the feasibility of mining
them for profit.
r. Financial or technical assistance agreement means a contract
involving financial or technical assistance for large-scale exploration,
development, and utilization of mineral resources.
s. Force majeure means acts or circumstances beyond the reasonable
control of contractor including, but not limited to, war, rebellion,
insurrection, riots, civil disturbance, blockade, sabotage, embargo,
strike, lockout, any dispute with surface owners and other labor
disputes, epidemic, earthquake, storm, flood or other adverse
weather conditions, explosion, fire, adverse action by government or
by any instrumentality or subdivision thereof, act of God or any
public enemy and any cause that herein describe over which the
affected party has no reasonable control.
t. Foreign-owned corporation means any corporation, partnership,
association, or cooperative duly registered in accordance with law in
which less than fifty per centum (50%) of the capital is owned by
Filipino citizens.
u. Government means the government of the Republic of the
Philippines.
v. Gross output means the actual market value of minerals or mineral
products from its mining area as defined in the National Internal
Revenue Code.
w. Indigenous cultural community means a group or tribe of
indigenous Filipinos who have continuously lived as communities on
communally-bounded and defined land since time immemorial and
have succeeded in preserving, maintaining, and sharing common
bonds of languages, customs, traditions, and other distinctive
cultural traits, and as may be defined and delineated by law.
x. Joint venture agreement (JVA) means an agreement entered into
between the Government and one or more contractors in
accordance with Section 26(c) hereof.
y. Mineral processing means the milling, beneficiation or upgrading
of ores or minerals and rocks or by similar means to convert the same
into marketable products.
z. Mine wastes and tailings shall mean soil and rock materials from
surface or underground mining and milling operations with no
economic value to the generator of the same.
aa. Minerals refers to all naturally occurring inorganic substance in solid,
gas, liquid, or any intermediate state excluding energy materials such
as coal, petroleum, natural gas, radioactive materials, and
geothermal energy.
bb. Mineral agreement means a contract between the government and
a contractor, involving mineral production-sharing agreement, co-
production agreement, or joint-venture agreement.
cc. Mineral land means any area where mineral resources are found.
dd. Mineral resource means any concentration of minerals/rocks with
potential economic value.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
ee. Mining area means a portion of the contract area identified by the
contractor for purposes of development, mining, utilization, and sites
for support facilities or in the immediate vicinity of the mining
operations.
ff. Mining operation means mining activities involving exploration,
feasibility, development, utilization, and processing.
gg. Non-governmental organization (NGO) includes nonstock,
nonprofit organizations involved in activities dealing with resource
and environmental conservation, management and protection.
hh. Net assets refers to the property, plant and equipment as reflected
in the audited financial statement of the contractor net of
depreciation, as computed for tax purposes, excluding appraisal
increase and construction in progress.
ii. Offshore means the water, sea bottom and subsurface from the
shore or coastline reckoned from the mean low tide level up to the
two hundred nautical miles (200 n.m.) exclusive economic zone
including the archipelagic sea and contiguous zone.
jj. Onshore means the landward side from the mean tide elevation,
including submerged lands in lakes, rivers and creeks.
kk. Ore means a naturally occurring substance or material from which a
mineral or element can be mined and/or processed for profit.
ll. Permittee means the holder of an exploration permit.
mm. Pollution control and infrastructure devices refers to
infrastructure, machinery, equipment and/or improvements used for
impounding, treating or neutralizing, precipitating, filtering,
conveying and cleansing mine industrial waste and tailings as well as
eliminating or reducing hazardous effects of solid particles,
chemicals, liquids or other harmful byproducts and gases emitted
from any facility utilized in mining operations for their disposal.
nn. President means the President of the Republic of the Philippines.
oo. Private land refers to any land belonging to any private person
which includes alienable and disposable land being claimed by a
holder, claimant, or occupant who has already acquired a vested
right thereto under the law, although the corresponding certificate
or evidence of title or patent has not been actually issued.
pp. Public land refers to lands of the public domain which have been
classified as agricultural lands and subject to management and
disposition or concession under existing laws.
qq. Qualified person means any citizen of the Philippines with capacity
to contract, or a corporation, partnership, association, or cooperative
organized or authorized for the purpose of engaging in miring, with
technical and financial capability to undertake mineral resources
development and duly registered in accordance with law at least sixty
per centum (60%) of the capital of which is owned by citizens of the
Philippines: Provided, That a legally organized foreign-owned
corporation shall be deemed a qualified person for purposes of
granting an exploration permit, financial or technical assistance
agreement or mineral processing permit.
rr. Quarrying means the process of extracting, removing and disposing
quarry resources found on or underneath the surface of private or
public land.
ss. Quarry permit means a document granted to a qualified person for
the extraction and utilization of quarry resources on public or private
lands.
tt. Quarry resources refers to any common rock or other mineral
substances as the Director of Mines and Geosciences Bureau may
declare to be quarry resources such as, but not limited to, andesite,
basalt, conglomerate, coral sand, diatomaceous earth, diorite,
decorative stones, gabbro, granite, limestone, marble, marl, red
burning clays for potteries and bricks, rhyolite, rock phosphate,
sandstone, serpentine, shale, tuff, volcanic cinders, and volcanic
glass: Provided, That such quarry resources do not contain metals or
metallic constituents and/or other valuable minerals in economically
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workable quantities: Provided, further, That non-metallic minerals
such as kaolin, feldspar, bull quartz, quartz or silica, sand and
pebbles, bentonite, talc, asbestos, barite, gypsum, bauxite,
magnesite, dolomite, mica, precious and semi-precious stones, and
other non-metallic minerals that may later be discovered and which
the: Director declares the same to be of economically workable
quantities, shall not be classified under the category of quarry
resources.
uu. Regional director means the regional director of any mines regional
office under the Department of Environment and Natural Resources.
vv. Regional office means any of the mines regional offices of the
Department of Environment and Natural Resources.
ww. Secretary means the Secretary of the Department of Environment
and Natural Resources.
xx. Special allowance refers to payment to the claim-owners or surface
right-owners particularly during the transition period from
Presidential Decree No. 463 and Executive Order No. 279, series of
1987.
yy. State means the Republic of the Philippines.
zz. Utilization means the extraction or disposition of minerals.
CHAPTER IV
EXPLORATION PERMIT
Section 20. Exploration Permit. An exploration permit grants the right
to conduct exploration for all minerals in specified areas. The Bureau shall
have the authority to grant an exploration Permit to a qualified person.
Section 21. Terms and Conditions of the Exploration Permit. An
exploration permit shall be for a period of two (2) years, subject to annual
review and relinquishment or renewal upon the recommendation of the
Director.
Section 22. Maximum Areas for Exploration Permit. The maximum
area that a qualified person may hold at any one time shall be:
a. Onshore, in any one province
1. for individuals, twenty (20) blocks: and
2. for partnerships, corporations, cooperatives,
associations, two hundred (200) blocks.
b. Onshore, in the entire Philippines
1. for individuals, forty (40) blocks; and
2. for partnerships, corporations, cooperatives, or
associations, four hundred (400) blocks.
c. Offshore, beyond five hundred meters (500m) from the mean low
tide level:
1. for individuals, one hundred (100) blocks; and
2. for partnerships, corporations, cooperatives, or
associations, one thousand (1,000) blocks.
CHAPTER V
MINERAL AGREEMENTS
Section 26. Modes of Mineral Agreement. For purposes of mining
operations, a mineral agreement may take the following forms as herein
defined:
a. Mineral production sharing agreement is an agreement where the
Government grants to the contractor the exclusive right to conduct
mining operations within a contract area and shares in the gross
output. The contractor shall provide the financing, technology,
management and personnel necessary for the implementation of
this agreement.
b. Co-production agreement is an agreement between the
Government and the contractor wherein the Government shall
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
provide inputs to the mining operations other than the mineral
resource.
c. Joint venture agreement is an agreement where a joint-venture
company is organized by the Government and the contractor with
both parties having equity shares. Aside from earnings in equity, the
Government shall be entitled to a share in the gross output.
A mineral agreement shall grant to the contractor the exclusive right to
conduct mining operations and to extract all mineral resources found in
the contract area. In addition, the contractor may be allowed to convert
his agreement into any of the modes of mineral agreements or financial
or technical assistance agreement covering the remaining period of the
original agreement subject to the approval of the Secretary.
Section 27. Eligibility. A qualified person may enter into any of the three
(3) modes of mineral agreement with the government for the exploration,
development and utilization of mineral resources: Provided, That in case
the applicant has been in the mining industry for any length of time, he
should possess a satisfactory environmental track record as determined
by the Mines and Geosciences Bureau and in consultation with the
Environmental Management Bureau of the Department.
Section 28. Maximum Areas for Mineral Agreement. The maximum
area that a qualified person may hold at any time under a mineral
agreement shall be:
a. Onshore, in any one province
1. for individuals, ten (10) blocks; and
2. for partnerships, cooperatives, associations, or
corporations, one hundred (100) blocks.
b. Onshore, in the entire Philippines
1. for individuals, twenty (20) blocks; and
2. for partnerships, cooperatives, associations, or
corporations, two hundred (200) blocks.
c. Offshore, in the entire Philippines
1. for individuals fifty (50) blocks;
2. for partnerships, cooperatives, associations, or
corporations, five hundred (500) blocks; and
3. for the exclusive economic zone, a larger area to be
or determined by the Secretary.
The maximum areas mentioned above that a contractor may hold under
a mineral agreement shall not include mining/quarry areas under
operating agreements between the contractor and a
claimowner/lessee/permittee/licensee entered into under Presidential
Decree No. 463.
CHAPTER VI
FINANCIAL OR TECHNICAL ASSISTANCE AGREEMENT
Section 33. Eligibility. Any qualified person with technical and financial
capability to undertake large-scale exploration, development, and
utilization of mineral resources in the Philippines may enter into a financial
or technical assistance agreement directly with the Government through
the Department.
Section 34. Maximum Contract Area. The maximum contract area that
may be granted per qualified person, subject to relinquishment shall be:
a. 1,000 meridional blocks onshore;
b. 4,000 meridional blocks offshore; or
c. Combinations of a and b provided that it shall not exceed the
maximum limits for onshore and offshore areas.
Section 69. Environmental Protection. Every contractor shall undertake
an environmental protection and enhancement program covering the
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period of the mineral agreement or permit. Such environmental program
shall be incorporated in the work program which the contractor or
permittee shall submit as an accompanying document to the application
for a mineral agreement or permit. The work program shall include not
only plans relative to mining operations but also to rehabilitation,
regeneration, revegetation and reforestation of mineralized areas, slope
stabilization of mined-out and tailings covered areas, aquaculture,
watershed development and water conservation; and socioeconomic
development.
QUIZ #6
1. R.A. 7942 is also known as the Philippine Mining Act of 1995.
2. Meridional block means an area bounded by one-half (1/2) minute of latitude
and one-half (1/2)minute of longitude, containing approximately eighty-one
hectares (81 has.).
3. Financial or Technical Assistance Agreement means a contract involving
financial or technical assistance for large-scale exploration, development, and
utilization of mineral resources.
4. Minerals refer to all naturally occurring inorganic substance in solid, gas,
liquid, or any intermediate state excluding energy materials such as coal,
petroleum, natural gas, radioactive materials, and geothermal energy.
5. Exploration permit grants the right to conduct exploration for all minerals in
specified areas.
6. Regalian Doctrine is the concept that states that all natural resources are
owned by the State embodied in the 1935, 1973 and 1987 Constitutions, as
well as the recognition of the importance of the country's natural resources,
not only for national economic development, but also for its security and
national defense, ushered in the adoption of the constitutional policy of "full
control and supervision by the State" in the exploration, development and
utilization of the country's natural resources. The options open to the State are
through direct undertaking or by entering into co-production, joint venture; or
production-sharing agreements, or by entering into agreement with foreign-
owned corporations for large-scale exploration, development and utilization.
7. In Miners Association of the Philippines v. Factoran, Jr., the Court ruled that
regardless of the reservation clause, mining leases or agreements granted by
the State, such as those granted pursuant to Executive Order No. 211 referred
to this petition, are subject to alterations through a reasonable exercise of the
police power of the State.
8. Mining industry is an essentially an extractive industry resulting in the
depletion of non-renewable resources.
9. The group that assailed the constitutionality of the Mining Act. La Bugal-
B’laan Tribal Association.
MINERS ASSOCIATION OF THE PHILIPPINES vs. FACTORAN,
JR. & MUYCO (1995)
Case: The instant petition seeks a ruling from this Court on the validity of
two Administrative Orders issued by the Secretary of the Department of
Environment and Natural Resources to carry out the provisions of certain
Executive Orders promulgated by the President in the lawful exercise of
legislative powers.
Facts: Herein controversy was precipitated by the change introduced by
Article XII, Section 2 of the 1987 Constitution on the system of exploration,
development and utilization of the country's natural resources. No longer
is the utilization of inalienable lands of public domain through "license,
concession or lease" under the 1935 and 1973 Constitutions allowed
under the 1987 Constitution.
The adoption of the concept of jura regalia that all natural resources are
owned by the State embodied in the 1935, 1973 and 1987 Constitutions,
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
as well as the recognition of the importance of the country's natural
resources, not only for national economic development, but also for its
security and national defense, ushered in the adoption of the
constitutional policy of "full control and supervision by the State" in the
exploration, development and utilization of the country's natural
resources.
The options open to the State are through direct undertaking or by
entering into co-production, joint venture, or production-sharing
agreements, or by entering into agreement with foreign-owned
corporations for large-scale exploration, development and utilization.
Pursuant to the mandate of the said constitutional provision, legislative
acts were successively issued by the president in the exercise of her
legislative power.
Executive Order No. 211
On July 10, 1987, President Corazon C. Aquino, in the exercise of her then
legislative powers under Article II, Section 1 of the Provisional Constitution
and Article XIII, Section 6 of the 1987 Constitution, promulgated Executive
Order No. 211 prescribing the interim procedures in the processing and
approval of applications for the exploration, development and utilization
of minerals pursuant to the 1987 Constitution in order to ensure the
continuity of mining operations and activities and to hasten the
development of mineral resources.
Executive Order No. 279
On July 25, 1987, President Aquino likewise promulgated Executive Order
No. 279 authorizing the DENR Secretary to negotiate and conclude joint
venture, co-production, or production-sharing agreements for the
exploration, development and utilization of mineral resources, and
prescribing the guidelines for such agreements and those agreements
involving technical or financial assistance by foreign-owned corporations
for large-scale exploration, development, and utilization of minerals.
To implement said legislative acts, the Secretary of the Department of
Environment and Natural Resources in turn promulgated Administrative
Order Nos. 57 and 82, the validity and constitutionality of which are being
challenged in this petition.
DENR Administrative Order No. 57
Pursuant to Section 6 of Executive Order No. 279, the DENR Secretary
issued on June 23, 1989 DENR Administrative Order No. 57, series of
1989, captioned "Guidelines of Mineral Production Sharing Agreement
under Executive Order No. 279.” Under the transitory provision of said
DENR Administrative Order No. 57, embodied in its Article 9, all existing
mining leases or agreements which were granted after the effectivity of
the 1987 Constitution pursuant to Executive Order No. 211, except small
scale mining leases and those pertaining to sand and gravel and quarry
resources covering an area of 20 hectares or less, shall be converted into
production-sharing agreements within 1 year from the effectivity of these
guidelines.
DENR Administrative Order No. 82
On November 20, 1980, the Secretary of the DENR Administrative Order
No. 82, series of 1990, laying down the "Procedural Guidelines on the
Award of Mineral Production Sharing Agreement (MPSA) through
Negotiation."
Section 3 of the aforementioned DENR Administrative Order enumerates
the persons or entities required to submit Letter of Intent (LOIs) and
Mineral Production Sharing Agreement (MPSAs) within two years from the
effectivity of DENR Administrative Order No. 57 or until July 17, 1991.
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Failure to do so within the prescribed period shall cause the abandonment
of mining, quarry and sand and gravel claims.
The petition
The issuance and the impeding implementation by the DENR of
Administrative Order Nos. 57 and 82 after their respective effectivity dates
compelled the petitioner Miners Association of the Philippines, Inc. to
file the instant petition assailing their validity and constitutionality before
this Court, contending:
• that respondent Secretary of DENR issued both Administrative
Order Nos. 57 and 82 in excess of his rule-making power under
Section 6 of Executive Order No. 279.
• that on the assumption that the questioned administrative
orders do not conform with Executive Order Nos. 211 and 279,
both orders violate the non-impairment of contract
provision under Article III, Section 10 of the 1987 Constitution
on the ground that Administrative Order No. 57 unduly pre-
terminates existing mining agreements and automatically
converts them into production-sharing agreements within one
year from its effectivity date.
• that on the other hand, Administrative Order No. 82 declares
that failure to submit Letters of Intent and Mineral Production-
Sharing Agreements within two years from the date of
effectivity of said guideline or on July 17, 1991 shall cause the
abandonment of their mining, quarry and sand gravel permits.
• that invoking Section 7 of said Executive Order No.
279, petitioner maintains that respondent DENR Secretary
cannot provide guidelines such as Administrative Order Nos. 57
and 82 which are inconsistent with the provisions of Executive
Order No. 279 because both Executive Order Nos. 211 and 279
merely reiterated the acceptance and registration of
declarations of location and all other kinds of mining
applications by the Bureau of Mines and Geo-Sciences under
the provisions of Presidential Decree No. 463, as amended, until
Congress opts to modify or alter the same.
Issue: Whether or not DENR Administrative Order Nos. 57 and 82, issued
by the DENR Secretary in the exercise of his rule-making power, are
tainted with invalidity inasmuch as both contravene or subvert the
provisions of Executive Order Nos. 211 and 279 or embrace matters not
covered, nor intended to be covered, by the aforesaid laws. [No]
Petitioner’s contention: DENR Administrative Order Nos. 57 and 82
contravene Executive Order Nos. 211 and 279 as both operate to repeal
or abrogate Presidential Decree No. 463, as amended, and other mining
laws allegedly acknowledged as the principal law under Executive Order
Nos. 211 and 279.
Ruling: The Court disagrees.
Petitioner's insistence on the application of Presidential Decree No. 463,
as amended, as the governing law on the acceptance and approval of
declarations of location and all other kinds of applications for the
exploration, development, and utilization of mineral resources pursuant
to Executive Order No. 211, is erroneous.
Presidential Decree No. 463, as amended, pertains to the old system of
exploration, development and utilization of natural resources through
"license, concession or lease" which, however, has been disallowed by
Article XII, Section 2 of the 1987 Constitution.
By virtue of the said constitutional mandate and its implementing law,
Executive Order No. 279 which superseded Executive Order No. 211, the
provisions dealing on "license, concession or lease" of mineral resources
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from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
under Presidential Decree No. 463, as amended, and other existing mining
laws are deemed repealed and, therefore, ceased to operate as the
governing law. In other words, in all other areas of administration and
management of mineral lands, the provisions of Presidential Decree No.
463, as amended, and other existing mining laws, still govern.
Upon the effectivity of the 1987 Constitution on February 2, 1987, the
State assumed a more dynamic role in the exploration, development and
utilization of the natural resources of the country. Article XII, Section 2 of
the said Charter explicitly ordains that the exploration, development and
utilization of natural resources shall be under the full control and
supervision of the State.
Consonant therewith, the exploration, development and utilization of
natural resources may be undertaken by means of direct act of the State,
or it may opt to enter into co-production, joint venture, or production-
sharing agreements, or it may enter into agreements with foreign-owned
corporations involving either technical or financial assistance for large-
scale exploration, development, and utilization of minerals, petroleum,
and other mineral oils according to the general terms and conditions
provided by law, based on real contributions to the economic growth and
general welfare of the country.
Given these considerations, there is no clear showing that respondent
DENR Secretary has transcended the bounds demarcated by
Executive Order No. 279 for the exercise of his rule-making power
tantamount to a grave abuse of discretion.
Section 6 of Executive Order No. 279 specifically authorizes said official to
promulgate such supplementary rules and regulations as may be
necessary to effectively implement the provisions thereof. Moreover, the
subject sought to be governed and regulated by the questioned orders is
germane to the objects and purposes of Executive Order No. 279
specifically issued to carry out the mandate of Article XII, Section 2 of the
1987 Constitution.
Contentions: Petitioner likewise maintains that Administrative Order No.
57, in relation to Administrative Order No. 82, impairs vested rights as to
violate the non-impairment of contract doctrine guaranteed under Article
III, Section 10 of the 1987 Constitution because Article 9 of Administrative
Order No. 57 unduly pre-terminates and automatically converts mining
leases and other mining agreements into production-sharing agreements
within one year from effectivity of said guideline, while Section 3 of
Administrative Order No. 82, declares that failure to submit Letters of
Intent (LOIs) and MPSAs within two years from the effectivity of
Administrative Order No. 57 or until July 17, 1991 shall cause the
abandonment of mining, quarry, and sand gravel permits.
It is argued by petitioner that Executive Order No. 279 does not
contemplate automatic conversion of mining lease agreements into
mining production-sharing agreement as provided under Article 9,
Administrative Order No. 57 and/or the consequent abandonment of
mining claims for failure to submit LOIs and MPSAs under Section 3,
Administrative Order No. 82 because Section 1 of said Executive Order No.
279 empowers the DENR Secretary to negotiate and enter into voluntary
agreements which must set forth the minimum terms and conditions
provided under Section 2 thereof.
Moreover, petitioner contends that the power to regulate and enter into
mining agreements does not include the power to preterminate existing
mining lease agreements.
Held: The Court dispels the impression created by petitioner's argument
that the questioned administrative orders unduly preterminate existing
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mining leases in general. A distinction which spells a real difference must
be drawn. Article XII, Section 2 of the 1987 Constitution does not apply
retroactively to "license, concession or lease" granted by the government
under the 1973 Constitution or before the effectivity of the 1987
Constitution on February 2, 1987. The intent to apply prospectively said
constitutional provision was stressed during the deliberations in the
Constitutional Commission.
Administrative Order No. 57 applies only to all existing mining leases or
agreements which were granted after the effectivity of the 1987
Constitution pursuant to Executive Order No. 211. It bears mention that
under the text of Executive Order No. 211, there is a reservation clause
which provides that the privileges as well as the terms and conditions of
all existing mining leases or agreements granted after the effectivity of the
1987 Constitution pursuant to Executive Order No. 211, shall be subject
to any and all modifications or alterations which Congress may adopt
pursuant to Article XII, Section 2 of the 1987 Constitution.
Hence, the strictures of the
non-impairment of contract clause under Article III, Section 10 of the 1987
Constitution do not apply to the aforesaid leases or agreements granted
after the effectivity of the 1987 Constitution, pursuant to Executive Order
No. 211. They can be amended, modified or altered by a statute passed
by Congress to achieve the purposes of Article XII, Section 2 of the 1987
Constitution.
Clearly, Executive Order No. 279 issued on July 25, 1987 by President
Corazon C. Aquino in the exercise of her legislative power has the force
and effect of a statute or law passed by Congress. As such, it validly
modified or altered the privileges granted, as well as the terms and
conditions of mining leases and agreements under Executive Order No.
211 after the effectivity of the 1987 Constitution by authorizing the DENR
Secretary to negotiate and conclude joint venture, co-production, or
production-sharing agreements for the exploration, development and
utilization of mineral resources and prescribing the guidelines for such
agreements and those agreements involving technical or financial
assistance by foreign-owned corporations for large-scale exploration,
development, and utilization of minerals.
Rule: Well -settled is the rule, however, that regardless of the reservation
clause, mining leases or agreements granted by the State, such as
those granted pursuant to Executive Order No. 211 referred to this
petition, are subject to alterations through a reasonable exercise of
the police power of the State.
The State, in the exercise of its police power in this regard, may not be
precluded by the constitutional restriction on non-impairment of contract
from altering, modifying and amending the mining leases or agreements
granted under Presidential Decree No. 463, as amended, pursuant to
Executive Order No. 211. Police power, being co-extensive with the
necessities of the case and the demands of public interest; extends to all
the vital public needs. The passage of Executive Order No. 279 which
superseded Executive Order No. 211 provided legal basis for the DENR
Secretary to carry into effect the mandate of Article XII, Section 2 of the
1987 Constitution.
Nowhere in Administrative Order No. 57 is there any provision which
would lead the Court to conclude that the questioned order authorizes
the automatic conversion of mining leases and agreements granted after
the effectivity of the 1987 Constitution, pursuant to Executive Order No.
211, to production-sharing agreements.
The provision in Article 9 of Administrative Order No. 57 that "all such
leases or agreements shall be converted into production sharing
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
agreements within one year from the effectivity of these guidelines" could
not possibility contemplate a unilateral declaration on the part of the
Government that all existing mining leases and agreements are
automatically converted into production-sharing agreements. On the
contrary, the use of the term "production-sharing agreement" if they are
so minded.
Negotiation negates compulsion or automatic conversion as suggested
by petitioner in the instant petition. A mineral production-sharing
agreement (MPSA) requires a meeting of the minds of the parties after
negotiations arrived at in good faith and in accordance with the procedure
laid down in the subsequent Administrative Order No. 82.
The Court therefore rules that the questioned administrative orders are
reasonably directed to the accomplishment of the purposes of the law
under which they were issued and were intended to secure the paramount
interest of the public, their economic growth and welfare. The validity
and constitutionality of Administrative Order Nos. 57 and 82 must be
sustained, and their force and effect upheld.
LA BUGAL-B’LAAN TRIBAL ASSOCIATION vs. RAMOS
(January 2004)
Facts: In 1997, R.A. No. 8371 (Indigenous Peoples Rights Act/IPRA) was
passed.
Isagani Cruz and Cesar Europa filed a petition for prohibition and
mandamus, questioning the constitutionality of certain provisions of
IPRA.
Petitioners’ contentions: The petitioners assail certain provisions of the
IPRA and its IRR on the grounds that:
1. it allows the indigenous cultural communities or indigenous people
(ICCs/IPs) to own natural resources;
2. it defines ancestral lands and ancestral domains in such a way that it
may include private lands owned by other individuals;
3. it categorizes ancestral lands and domains held by native title as
never to have been public land;
4. it violates due process in allowing the National Commission on
Indigenous Peoples {NCIP) to take jurisdiction over IP land disputes
and making customary law apply to these.
5. it amounts to an unlawful deprivation of the State’s ownership over
lands of the public domain as well as minerals and other natural
resources therein, in violation of the Regalian Doctrine embodied in
Section 2, Article XII of the Constitution.
Issues:
1. Whether or not the provisions of the IPRA contravene the
constitution. [No]
2. Whether or not the IPRA violates the Regalian Doctrine.
a. IPRA: Under the IPRA law, lands which have not been
registered before, if granted with a CADT/CALT, will be
recognized as privately owned by the IPs from the
beginning, thus, such lands have never been part of public
domain.
b. Regalian Doctrine: Lands which have not been recognized
as privately owned belongs to the State.
Ruling: There was no final decision. The petition is dismissed due to the
lack of votes. The law remains valid and not unconstitutional (7 to grant
and 7 to dismiss).
No, the provisions of the IPRA do not contravene the Constitution. There
is nothing in the law that grants to the ICCs/IPs ownership over the natural
resources within their ancestral domain. Ownership over the natural
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resources in the ancestral domains remains with the State and rights 2. Their Concept of Land
granted by the IPRA to the ICCs/IPs over the natural resources in their III. The IPRA is a Novel Piece of Legislation
ancestral domains merely gives them, as owners and occupants of the A. Legislative History
land on which the resources are found, the right to the small-scale IV. The Provisions of the IPRA Do Not Contravene the Constitution.
utilization of these resources, and at the same time, a priority in their large A. Ancestral domains and ancestral lands are the private
scale development and exploitation. property of indigenous peoples and do not constitute part
of the land of the public domain.
Additionally, ancestral lands and ancestral domains are not part of the 1. The right to ancestral domains and ancestral
lands of the public domain. They are private lands and belong to the lands: how acquired
ICCs/IPs by native title, which is a concept of private land title that existed 2. The concept of native title
irrespective of any royal grant from the State. However, the right of a. Cariño v. Insular Government
ownership and possession by the ICCs/IPs of their ancestral domains is a b. Indian Title to land
limited form of ownership and does not include the right to alienate the c. Why the Cariño doctrine is unique
same. 3. The option of securing a Torrens title to the
ancestral land
Justice Puno’s separate opinion: IPRA does not violate the Regalian B. The right of ownership and possession by the ICCs/IPs to
Doctine. their ancestral domains is a limited form of ownership and
does not include the right to alienate the same.
SUMMARY 1. The indigenous concept of ownership and
customary law
The lands claimed by the IPs have long been theirs by virtue of native C. Sections 7 (a), 7 (b), and 57 of the IPRA do not violate
title. the Regalian Doctrine enshrined in Section 2, Article XII
They have lived there even before the Spanish colonization. “Native title of the 1987 Constitution.
refers to ICCs/IPs’ pre conquest rights to lands and domains held under a 1. The rights of ICCs/IPs over their ancestral
claim of private ownership as far back as memory reaches. These lands are domains and lands
deemed never to have been public lands and are indisputable presumed to 2. The right of ICCs/IPs to develop lands and
have been held that way since before the Spanish Conquest.” natural resources within the ancestral domains
does not deprive the State of ownership over
The native title is an exception to the Regalian Doctrine. the natural resources, control and supervision in
Oh Cho v. Director of Lands: “This exception would be any land that should their development and exploitation.
have been in the possession of an occupant and of his predecessors-in- a. Section 1, Part II, Rule III of the
interest since time immemorial.” Implementing Rules goes beyond
the parameters of Section 7(a) of the
Native titles provide a different type of private ownership. law on ownership of ancestral
“Section 5. Indigenous concept of ownership. Indigenous concept of domains and is ultra vires.
ownership sustains the view that ancestral domains and all resources found b. The small-scale utilization of natural
therein shall serve as the material bases of their cultural integrity. The resources in Section 7 (b) of the
indigenous concept of ownership generally holds that ancestral domains IPRA is allowed under Paragraph 3,
are the ICCs/IPs private but community property which belong to all Section 2, Article XII of the 1987
generations and therefore cannot be sold, disposed or destroyed. It Constitution.
likewise covers sustainable traditional resource rights.” c. The large-scale utilization of natural
resources in Section 57 of the IPRA
The IPRA complies with Regalian Doctrine: Natural resources within may be harmonized with Paragraphs
ancestral domains are not owned by the IPs. 1 and 4, Section 2, Article XII of the
The IPs claims are limited to “lands, bodies of water traditionally and 1987 Constitution.
actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing V. The IPRA is a Recognition of Our Active Participation in the
grounds, and all improvements made by them at any time within the International Indigenous Movement.
domains.”
DISCUSSION
IPRA did not mention that the IPs also own all the other natural resources
found within the ancestral domains. The Development of the Regalian Doctrine in the Philippine Legal
System.
OUTLINE
1. Laws of the Indies
The Opinion discusses the following: • The Regalian Doctrine or jura regalia is a Western
I. The Development of the Regalian Doctrine in the Philippine Legal legal concept first introduced by the Spaniards into
System. the country through the Laws of the Indies and the
A. The Laws of the Indies Royal Cedulas.”
B. Valenton v. Murciano • By virtue of Spain’s "discovery" and conquest of the
C. The Public Land Acts and the Torrens System Philippines, its lands became the exclusive patrimony
D. The Philippine Constitutions and dominion of the Spanish Crown
II. The Indigenous Peoples Rights Act (IPRA). • Back then, the Spanish Government distributed the
A. Indigenous Peoples lands by issuing royal grants and concessions to
1. Indigenous Peoples: Their History Spaniards, both military and civilian

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2. Valenton v. Murciano (1904, American Regime)
• Long-time occupation will not necessarily lead to
ownership of the land
• "While the State has always recognized the right of the
occupant to a deed if he proves a possession for a
sufficient length of time, yet it has always insisted that
he must make that proof before the proper
administrative officers, and obtain from them his deed,
and until he did that the State remained the absolute
owner."
3. The Public Land Acts and the Torrens System
• 1903: 1st Public Land Act (Act No. 926); Provides rules and
regulations for the homesteading, selling, and leasing of portions
of the public domain of the Philippine Islands
• 1903: Land Registration Law (Act 496); It placed all public and
private lands in the Philippines under the Torrens system; almost
a verbatim copy of the Massachussetts Land Registration Act of
1898
• 1919: 2nd Public Land Act (Act 2874); more comprehensive but
limited the exploitation of agricultural lands to Filipinos,
Americans and citizens of other countries which gave Filipinos the
same privileges
• 1936: Present Public Land Law (Commonwealth Act No. 141);
Almost the same as Act 2874, except that it gave the Filipino
citizens and corporations which were previously only granted to
Americans
The Torrens System
Origin: Patterned after the Merchant Shipping Acts in South Australia by
Sir Robert Richard Torrens.
Government’s role: The government must issue an official certificate of
title attesting to the fact that the person named is the owner of the property
described therein, subject to such liens and encumbrances as thereon
noted or the law warrants or reserves
Certificate of Title: The certificate of title is indefeasible and
imprescriptible and all claims to the parcel of land are quieted upon
issuance of said certificate.
The Regalian Doctrine
• Despite of several legal developments on land distribution, the
Regalian doctrine is still retained in our Constitution.
• Under this concept, all lands of the public domain as well as all
natural resources enumerated therein, whether public or private
land, belong to the State.
LA BUGAL-B’LAAN TRIBAL ASSOCIATION vs. RAMOS
(December 2004)
Facts: The Petition for Prohibition and Mandamus before the Court
challenges the constitutionality of the following:
1. Republic Act No. 7942 – The Philippine Mining Act of 1995;
2. DENR Administrative Order No. 96-40 – R.A. No. 7942’s
Implementing Rules and Regulations; and
3. the Financial and Technical Assistance Agreement (FTAA)
dated March 30, 1995, executed by the government with
Western Mining Corporation Philippines, Inc. (WMCP).
January 27, 2004 Decision
On January 27, 2004, the Court en banc promulgated its Decision granting the
Petition and declaring the unconstitutionality of certain provisions of R.A.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
No. 7942, DAO 96-40, as well as of the entire FTAA executed between the
government and WMCP, mainly on the finding that FTAAs are service
contracts prohibited by the 1987 Constitution.
The Decision struck down the subject FTAA for being similar to service
contracts, which, though permitted under the 1973 Constitution, were
subsequently denounced for being antithetical to the principle of
sovereignty over our natural resources, because they allowed foreign
control over the exploitation of our natural resources, to the prejudice of
the Filipino nation.
The Decision quoted several legal scholars and authors who had criticized
service contracts for, inter alia, vesting in the foreign
contractor exclusive management and control of the enterprise,
including:
• operation of the field in the event petroleum was discovered;
• control of production, expansion and development;
• nearly unfettered control over the disposition and sale of the
products discovered/extracted;
• effective ownership of the natural resource at the point of extraction;
and beneficial ownership of our economic resources.
According to the Decision, Section 2 of Article XII of the 1987
Constitution effectively banned such service contracts.
Motions for Reconsideration
Subsequently, respondents filed separate Motions for Reconsideration. In
a Resolution dated March 9, 2004, the Court required petitioners to
comment thereon. In the Resolution of June 8, 2004, it set the case for
Oral Argument on June 29, 2004.
After hearing the opposing sides, the Court required the parties to submit
their respective Memoranda in amplification of their arguments. In a
Resolution issued later the same day, June 29, 2004, the Court noted, inter
alia, the Manifestation and Motion (in lieu of comment) filed by the Office
of the Solicitor General (OSG) on behalf of public respondents.
OSG: The OSG said that it was not interposing any objection to the Motion
for Intervention filed by the Chamber of Mines of the Philippines, Inc.
(CMP) and was in fact joining and adopting the latters Motion for
Reconsideration.
Memoranda were accordingly filed by the intervenor as well as by
petitioners, public respondents, and private respondent, dwelling at
length on the three issues discussed below. Later, WMCP submitted its
Reply Memorandum, while the OSG -- in obedience to an Order of this
Court -- filed a Compliance submitting copies of more FTAAs entered into
by the government.
Issues: Three issues were identified by the Court:
1. Has the case been rendered moot by the sale of WMC shares in
WMCP to Sagittarius (60 percent of Sagittarius equity is owned by
Filipinos and/or Filipino-owned corporations while 40 percent is
owned by Indophil Resources NL, an Australian company) and by the
subsequent transfer and registration of the FTAA from WMCP to
Sagittarius?
2. Assuming that the case has been rendered moot, would it still be
proper to resolve the constitutionality of the assailed provisions of
the Mining Law, DAO 96-40 and the WMCP FTAA?
3. What is the proper interpretation of the phrase Agreements
Involving Either Technical or Financial Assistance contained in
paragraph 4 of Section 2 of Article XII of the Constitution?
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Ruling: Respondents and intervenors Motions for Reconsideration should
be granted, for the reasons discussed below. The foregoing three issues
identified by the Court shall now be taken up seriatim.
Issue#1:
Mootness
In declaring unconstitutional certain provisions of R.A. No. 7942, DAO 96-
40, and the WMCP FTAA, the majority Decision agreed with petitioners
contention that the subject FTAA had been executed in violation of
Section 2 of Article XII of the 1987 Constitution. According to petitioners,
the FTAAs entered into by the government with foreign-owned
corporations are limited by the fourth paragraph of the said provision to
agreements involving only technical or financial assistance for large-scale
exploration, development and utilization of minerals, petroleum and other
mineral oils. Furthermore, the foreign contractor is allegedly permitted by
the FTAA in question to fully manage and control the mining operations
and, therefore, to acquire beneficial ownership of our mineral resources.
The Decision merely shrugged off the Manifestation by WMPC informing
the Court (1) that on January 23, 2001, WMC had sold all its shares in
WMCP to Sagittarius Mines, Inc., 60 percent of whose equity was held by
Filipinos; and (2) that the assailed FTAA had likewise been transferred from
WMCP to Sagittarius.
The ponencia declared that the instant case had not been rendered moot
by the transfer and registration of the FTAA to a Filipino-owned
corporation, and that the validity of the said transfer remained in dispute
and awaited final judicial determination.
Patently therefore, the Decision is anchored on the assumption that
WMCP had remained a foreign corporation.
The crux of this issue of mootness is the fact that WMCP, at the time it
entered into the FTAA, happened to be wholly owned by WMC Resources
International Pty., Ltd. (WMC), which in turn was a wholly owned
subsidiary of Western Mining Corporation Holdings Ltd., a publicly listed
major Australian mining and exploration company.
The nullity of the FTAA was obviously premised upon the contractor
being a foreign corporation.
Had the FTAA been originally issued to a Filipino-owned corporation,
there would have been no constitutionality issue to speak of.
Conveyance of WMCP FTAA to a filipino corporation would be
validate and the property in question would no longer be owned by a
disqualified vendee.
Upon the other hand, the conveyance of the WMCP FTAA to a Filipino
corporation can be likened to the sale of land to a foreigner who
subsequently acquires Filipino citizenship, or who later resells the same
land to a Filipino citizen. The conveyance would be validated, as the
property in question would no longer be owned by a disqualified vendee.
And, inasmuch as the FTAA is to be implemented now by a Filipino
corporation, it is no longer possible for the Court to declare it
unconstitutional. The case pending in the Court of Appeals is a dispute
between two Filipino companies (Sagittarius and Lepanto), both claiming
the right to purchase the foreign shares in WMCP. So, regardless of which
side eventually wins, the FTAA would still be in the hands of a qualified
Filipino company. Considering that there is no longer any justiciable
controversy, the plea to nullify the Mining Law has become a virtual
petition for declaratory relief, over which this Court has no original
jurisdiction.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
The FTAA are not void and are thus transferrable
Petitioners’ contentions: Petitioners argue that the case has not become
moot, considering the invalidity of the alleged sale of the shares in WMCP
from WMC to Sagittarius, and of the transfer of the FTAA from WMCP to
Sagittarius, resulting in the change of contractor in the FTAA in question.
And even assuming that the said transfers were valid, there still exists an
actual case predicated on the invalidity of R.A. No. 7942 and its
Implementing Rules and Regulations (DAO 96-40).
They insist that the FTAA is void and, hence cannot be transferred; and
that its transfer does not operate to cure the constitutional infirmity that
is inherent in it; neither will a change in the circumstances of one of the
parties serve to ratify the void contract.
They ratiocinate that this Court had declared the FTAA to be void because,
at the time it was executed with WMCP, the latter was a fully foreign-
owned corporation, in which the former vested full control and
management with respect to the exploration, development and utilization
of mineral resources, contrary to the provisions of paragraph 4 of Section
2 of Article XII of the Constitution. And since the FTAA was per se void, no
valid right could be transferred; neither could it be ratified, so petitioners
conclude.
Held: Petitioners have assumed as fact that which has yet to be
established.
1. The Decision of this Court declaring the FTAA void has not yet
become final. That was precisely the reason the Court still heard Oral
Argument in this case.
2. The FTAA does not vest in the foreign corporation full control and
supervision over the exploration, development and utilization of
mineral resources, to the exclusion of the government.
Suffice it to say that a perusal of the FTAA provisions will prove that
the government has effective overall direction and control of the
mining operations, including marketing and product pricing, and
that the contractors work programs and budgets are subject to its
review and approval or disapproval.
The government does not have to micro-manage the mining operations
and dip its hands into the day-to-day management of the enterprise in
order to be considered as having overall control and direction.
Besides, for practical and pragmatic reasons, there is a need for
government agencies to delegate certain aspects of the management
work to the contractor. Thus, the basis for declaring the FTAA void still
has to be revisited, reexamined and reconsidered.
Contention: Petitioners sniff at the citation of Chavez v. Public Estates
Authority, and Halili v. CA, claiming that the doctrines in these cases are
wholly inapplicable to the instant case.
Chavez clearly teaches:
Thus, the Court has ruled consistently that where a Filipino citizen
sells land to an alien who later sells the land to a Filipino, the
invalidity of the first transfer is corrected by the subsequent sale to
a citizen. Similarly, where the alien who buys the land subsequently
acquires Philippine citizenship, the sale is validated since the
purpose of the constitutional ban to limit land ownership to
Filipinos has been achieved. In short, the law disregards the
constitutional disqualification of the buyer to hold land if the land
is subsequently transferred to a qualified party, or the buyer himself
becomes a qualified party.
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In their Comment, petitioners contend that in Chavez and Halili, the
object of the transfer (the land) was not what was assailed for alleged
unconstitutionality.
Rather, it was the transaction that was assailed; hence subsequent
compliance with constitutional provisions would cure its infirmity. In
contrast, in the instant case it is the FTAA itself, the object of the transfer,
that is being assailed as invalid and unconstitutional. So, petitioners claim
that the subsequent transfer of a void FTAA to a Filipino corporation
would not cure the defect.
Held: Petitioners are confusing themselves. The present Petition has been
filed, precisely because the grantee of the FTAA was a wholly owned
subsidiary of a foreign corporation. It cannot be gainsaid that anyone
would have asserted that the same FTAA was void if it had at the outset
been issued to a Filipino corporation. The FTAA, therefore, is not per se
defective or unconstitutional. It was questioned only because it had been
issued to an allegedly non-qualified, foreign-owned corporation.
The Court believes that this case is clearly analogous to Halili, in which the
land acquired by a non-Filipino was re-conveyed to a qualified vendee
and the original transaction was thereby cured. P
Held: Paraphrasing Halili, the same rationale applies to the instant case:
assuming arguendo the invalidity of its prior grant to a foreign
corporation, the disputed FTAA -- being now held by a Filipino
corporation -- can no longer be assailed; the objective of the
constitutional provision -- to keep the exploration, development and
utilization of our natural resources in Filipino hands -- has been served.
More accurately speaking, the present situation is one degree better than
that obtaining in Halili, in which the original sale to a non-Filipino was
clearly and indisputably violative of the constitutional prohibition and thus
void ab initio. In the present case, the issuance/grant of the subject FTAA
to the then foreign-owned WMCP was not illegal, void or unconstitutional
at the time.
The matter had to be brought to court, precisely for adjudication as to
whether the FTAA and the Mining Law had indeed violated the
Constitution. Since, up to this point, the decision of this Court declaring
the FTAA void has yet to become final, to all intents and purposes, the
FTAA must be deemed valid and constitutional.
At bottom, we find completely outlandish petitioners contention that an
FTAA could be entered into by the government only with a foreign
corporation, never with a Filipino enterprise.
Indeed, the nationalistic provisions of the Constitution are all anchored on
the protection of Filipino interests. How petitioners can now argue that
foreigners have the exclusive right to FTAAs totally overturns the entire
basis of the Petition -- preference for the Filipino in the exploration,
development and utilization of our natural resources. It does not take deep
knowledge of law and logic to understand that what the Constitution grants
to foreigners should be equally available to Filipinos.
LEPANTO CONSOLIDATED MINING, CO. vs. WMC RESOURCES
INTL. PTY. LTD., WMC PHILIPPINES, INC. & SAGITTARIUS
MINES, INC. (2006)
Facts: On March 22, 1995, the Philippine Government and WMC
Philippines, the local wholly-owned subsidiary of WMC Resources
International Pty. Ltd. (WMC Resources), executed a Financial and
Technical Assistance Agreement, denominated as the Columbio FTAA
No. 02-95-XI (Columbio FTAA) for the purpose of large-scale exploration,
development, and commercial exploration of possible mineral resources
in an initial contract area of 99,387 hectares located in the provinces of
South Cotabato, Sultan Kudarat, Davao del Sur, and North Cotabato, in
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
accordance with Executive Order No. 279 and Department
Administrative Order No. 63, series of 1991.
Tampakan Option Agreement
The Columbio FTAA is covered in part by 156 mining claims held under
various Mineral Production Sharing Agreements (MPSA)
by Southcot Mining Corporation, Tampakan Mining Corporation, and
Sagittarius Mines, Inc. (collectively called the Tampakan Companies), in
accordance with the Tampakan Option Agreement entered into by
WMC Philippines and the Tampakan Companies on 25 April 1991, as
amended by Amendatory Agreement dated 15 July 1994, for purposes of
exploration of the mining claims in Tampakan, South Cotabato.
The Option Agreement, among other things, provides for the grant of the
right of first refusal to the Tampakan Companies in case WMC
Philippines desires to dispose of its rights and interests in the mining
claims covering the area subject of the agreement.
Sale and Purchase Agreement with petitioner
WMC Resources subsequently divested itself of its rights and interests in
the Columbio FTAA, and on 12 July 2000 executed a Sale and Purchase
Agreement with petitioner Lepanto over its entire shareholdings in
WMC Philippines, subject to the exercise of the Tampakan Companies
exercise of their right of first refusal to purchase the subject shares. On 28
August 2000, petitioner sought the approval of the 12 July
2000 Agreement from the DENR Secretary.
Agreement to exercise right of first refusal
In an Agreement dated 6 October 2000, however,
the Tampakan Companies sought to exercise its right of first refusal. Thus,
in a letter dated 13 October 2000, petitioner assailed
the Tampakan Companies exercise of its right of first refusal, alleging that
the Tampakan Companies failed to match the terms and conditions set
forth in the 12 July 2000 Agreement.
Petitioner’s case
Thereafter, petitioner filed a case for Injunction, Specific Performance,
Annulment of Contracts and Contractual Interference with the RTC
of Makati, Branch 135, against WMC Resources, WMC Philippines, and
the Tampakan Companies.
Motion to dismiss
WMC Philippines and the Tampakan Companies moved for the dismissal
of said case.
Said Motion to Dismiss was denied. WMC Philippines challenged the order
dismissing the Motion on appeal before the Court of Appeals. It
subsequently ordered the dismissal of the case on the ground of forum
shopping. The case was elevated to the SC, which affirmed the decision of
the CA and dismissed the petition.
Another Sale and Purchase Agreement with Tampakan Companies
In the interim, on 10 January 2001, contending that the 12 July Agreement
between petitioner and WMC Philippines had expired due to failure to
meet the necessary preconditions for its validity, WMC Resources and
the Tampakan Companies executed another Sale and Purchase
Agreement, where Sagittarius Mines, Inc. was designated assignee and
corporate vehicle which would acquire the shareholdings and undertake
the Columbio FTAA activities.
Deed of Absolute Sale of Shares of Stocks between WMC and
Sagittarius
On 15 January 2001, Sagittarius Mines, Inc. increased its authorized
capitalization to P250 million. Subsequently, WMC Resources and
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Sagittarius Mines, Inc. executed a Deed of Absolute Sale of Shares of
Stocks on 23 January 2001.
Order by the DENR Secretary
After due consideration and evaluation of the financial and technical
qualifications of Sagittarius Mines, Inc., the DENR Secretary approved the
transfer of the Columbio FTAA from WMC Philippines to Sagittarius
Mines, Inc. in the assailed Order.
According to said Order, pursuant to Section 66 of Department
Administrative Order No. 96-40, as amended, Sagittarius Mines, Inc. meets
the qualification requirements as Contractor-Transferee of FTAA No. 02-
95-XI, and that the application for transfer of said FTAA went thru the
procedure and other requirements set forth under the law.
Petitioner’s petition for review
Aggrieved by the transfer of the Columbio FTAA in favor of Sagittarius
Mines, Inc., petitioner filed a Petition for Review of the Order of the DENR
Secretary with the Office of the President.
Petitioner’s contention: Petitioner assails the validity of the 18
December 2001 Order on the ground that:
1. it violates the constitutional right of Lepanto to due process;
2. it preempts the resolution of very crucial legal issues pending with
the regular courts; and
3. it blatantly violates Section 40 of the Mining Act.
OP: It ruled that the petitioner Lepanto is estopped from assailing the
primary jurisdiction of the DENR since it itself anchored its petition on the
contention that allegedly, the Tampakan Companies failed to match the
terms and conditions of the July 12 Agreement with petitioner in that they
did not possess the financial and technical qualifications under the Mining
Act and its IRR. Petitioner Lepantos objections therefore go into the very
qualifications of a transferee which is a technical issue.
This contention is a recognition by petitioner Lepanto itself of the fact that
the crucial and determinative issue in the instant case is grounded on the
financial and technical qualifications of a transferee, which issue,
indisputably, is within the exclusive domain and expertise of the DENR and
not of the courts.
CA: It dismissed the appeal. It ruled that Section 40 of R.A. 7942 does not
apply to the Columbio FTAA which was entered into by and between the
Philippine Government and WMCP on March 22, 1995, or prior to the
effectivity of R.A. 7942.
The condition of RA No. 7942 requiring the further approval of the
President, if made to apply retroactively to the Columbio FTAA, would
impair the obligation of contracts simply because it constitutes a
restriction on the right of the contractor to assign or transfer its interest
in an FTAA. In other words, it diminished the vested rights of the
contractor to assign or transfer its interests on mere approval of the DENR
Secretary. The restriction is therefore substantive, and not merely
procedural, contrary to the contention of petitioner.
Issue: Whether or not the application to the Columbio FTAA of R.A. No.
7942 or the Philippine Mining Act of 1995, particularly Section 40 thereof,
requiring the approval of the President of the assignment or transfer of
financial or technical assistance agreements is proper. [No]
Petitioner’s contention: Respondents failed to comprehend the express
language of Section 40 of R.A. No. 7942 requiring the approval of the
president on the transfer or assignment of a FTAA.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
Ruling: The petition is denied. It is imperative at this point to stress the
fact that the Columbio FTAA was entered into by the Philippine
Government and WMC Philippines on 22 March 1995, undoubtedly
before the Philippine Mining Act of 1995 took effect on 14 April
1995. Furthermore, it is undisputed that said FTAA was granted in
accordance with Executive Order No. 279 and Department Administrative
Order No. 63, Series of 1991, which does not contain any similar condition
on the transfer or assignment of financial or technical assistance
agreements.
Thus, it would seem that what petitioner would want this Court to espouse
is the retroactive application of the Philippine Mining Act of 1995 to
the Columbio FTAA, a valid agreement concluded prior to the naissance
of said piece of legislation.
This posture of petitioner would clearly contradict the established legal
doctrine that statutes are to be construed as having only a prospective
operation unless the contrary is expressly stated or necessarily implied
from the language used in the law.
There is an absence of either an express declaration or an implication in
the Philippine Mining Act of 1995 that the provisions of said law shall be
made to apply retroactively, therefore, any section of said law must be
made to apply only prospectively, in view of the rule that a statute ought
not to receive a construction making it act retroactively, unless the words
used are so clear, strong, and imperative that no other meaning can be
annexed to them, or unless the intention of the legislature cannot be
otherwise satisfied.
Be that as it may, assuming for the sake of argument that We are to apply
the Philippine Mining Act of 1995 retrospectively to the Columbio FTAA,
the lack of presidential approval will not be fatal as to render the transfer
illegal, especially since, as in the instant case, the alleged lack of
presidential approval has been remedied when petitioner appealed the
matter to the Office of the President which approved the Order of the
DENR Secretary granting the application for transfer of
the Columbio FTAA to Sagittarius Mines, Inc.
Furthermore, if petitioner was indeed of the mind that Section 40 of the
Philippine Mining Act of 1995 is applicable to the Columbio FTAA, thus
necessitating the approval of the President for the validity of its transfer
or assignment, it would seem contradictory that petitioner sought the
approval of the DENR Secretary, and not that of the President, of its 12
July 2000 Sale and Purchase Agreement with WMC Resources. Hence, it
may be glimpsed from the very act of petitioner that it recognized that
the provision of the Columbio FTAA regarding the consent of the DENR
Secretary with respect to the transfer of said FTAA must be upheld.
Section 40 of the Philippine Mining Act of 1995 requiring the
approval of the President with respect to assignment or transfer
of FTAAs, if made applicable retroactively to the Columbio FTAA, would
be tantamount to an impairment of the obligations under said
contract as it would effectively restrict the right of the parties thereto
to assign or transfer their interests in the said FTAA.
By imposing a new condition apart from those already contained in the
agreement, before the parties to the Columbio FTAA may assign or
transfer its rights and interest in the said agreement, Section 40 of the
Philippine Mining Act of 1995, if made to apply to the Columbio FTAA, will
effectively modify the terms of the original contract and thus impair the
obligations of the parties thereto and restrict the exercise of their vested
rights under the original agreement. Such modification of their vested
rights under the original agreement. Such modification to
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the Columbio FTAA, particularly in the conditions imposed for its valid
transfer is equivalent to an impairment of said contract violative of the
Constitution.
BENGUET CORPORATION vs. DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES – MINES
ADJUDICATION BOARD & J.G. REALTY AND MINING
CORPORATION (2008)
Facts: On June 1, 1987, Benguet Corporation and J.G. Realty and
Mining Corporation entered into a Royalty Agreement with Option to
Purchase (RAWOP), wherein J.G. Realty was acknowledged as the owner
of four mining claims
respectively named as Bonito-I, Bonito-II, Bonito-III, and Bonito-IV, with
a total area of 288.8656 hectares, situated in Barangay Luklukam, Sitio
Bagong Bayan, Municipality of Jose Panganiban, Camarines Norte.
The parties also executed a Supplemental Agreement dated June 1,
1987. The mining claims were covered by MPSA Application No. APSA-
V-0009 jointly filed by J.G. Realty as claim-owner and Benguet as
operator.
Contents of the RAWOP
In the RAWOP, Benguet:
• obligated itself to perfect the rights to the mining claims and/or
otherwise acquire the mining rights to the mineral claims.
• within 24 months from the execution of the RAWOP, it should also
cause the examination of the mining claims for the purpose of
determining whether or not they are worth developing with
reasonable probability of profitable production.
• undertook also to furnish J.G. Realty with a report on the
examination, within a reasonable time after the completion of the
examination.
• also within the examination period, it shall conduct all necessary
exploration in accordance with a prepared exploration program.
o If it chooses to do so and before the expiration of the
examination period, it may undertake to develop the
mining claims upon written notice to J.G. Realty.
o It must then place the mining claims into commercial
productive stage within 24 months from the written notice.
It is also provided in the RAWOP that if the mining claims were placed in
commercial production by Benguet, J.G. Realty should be entitled to a
royalty of five percent (5%) of net realizable value, and to royalty for any
production done by Benguet whether during the examination or
development periods.
Letter of intent by Benguet
Thus, on August 9, 1989, the Executive Vice-President of Benguet,
Antonio N. Tachuling, issued a letter informing J.G. Realty of its intention
to develop the mining claims.
Termination of the RAWOP by J.G. Realty
However, on February 9, 1999, J.G. Realty, through its President, Johnny
L. Tan, then sent a letter to the President of Benguet informing the latter
that it was terminating the RAWOP on the following grounds:
a. The fact that your company has failed to perform the
obligations set forth in the RAWOP, i.e., to undertake
development works within 2 years from the execution of the
Agreement;
b. Violation of the Contract by allowing high graders to operate
on our claim.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
c. No stipulation was provided with respect to the term limit of
the RAWOP.
d. Non-payment of the royalties thereon as provided in the
RAWOP.
Benguet’s response
Benguet’s Manager for Legal Services, Reynaldo P. Mendoza, wrote J.G.
Realty a letter dated March 8, 1999, alleging therein that Benguet
complied with its obligations under the RAWOP by investing Php42.4
million to rehabilitate the mines, and that the commercial operation was
hampered by the non-issuance of a Mines Temporary Permit by the
Mines and Geosciences Bureau (MGB) which must be considered as force
majeure, entitling Benguet to an extension of time to prosecute such
permit.
Benguet further claimed that:
• the high graders mentioned by J.G. Realty were already operating
prior to Benguet’s taking over of the premises, and
• that J.G. Realty had the obligation of ejecting such small scale miners.
• the nature of the mining business made it difficult to specify a time
limit for the RAWOP.
• the royalties due to J.G. Realty were in fact in its office and ready to
be picked up at any time.
• previously, the practice by J.G. Realty was to pick-up checks from
Benguet representing such royalties.
• however, starting August 1994, J.G. Realty allegedly refused to collect
such checks from Benguet.
• thus, that there was no valid ground for the termination of the
RAWOP.
It also reminded J.G. Realty that it should submit the disagreement to
arbitration rather than unilaterally terminating the RAWOP.
J.G. Realty’s petition
J.G. Realty filed a petition for declaration of nullity or cancellation of
the RAWOP with the Legaspi City Panel of Arbitrators, docketed as DENR
Case No. 2000-01, entitled J.G. Realty v. Benguet.
POA: It declared the RAWOP and its Supplemental Agreement as
cancelled and without effect. It excluded Benguet from the joint MPSA
Application over the mineral claims denominated as BONITO-I, BONITO-
II, BONITO-III and BONITO-IV.
Benguet filed a Notice of Appeal with the Mining Adjudication Board.
MAB: It upheld the decision of the POA. It likewise denied the MFR, hence
this petition.
Issues:
1. Whether or not the controversy should have first been submitted to
arbitration before the POA took cognizance of the case. [Yes]
2. Whether or not the cancellation of the RAWOP was supported by
evidence. [Yes]
3. Whether or not the cancellation of the RAWOP amounts to the unjust
enrichment of J.G. Realty at the expense of Benguet. [No]
Ruling: The petition is dismissed.
I
The case should have first been brought to voluntary arbitration
before the POA.
Sections 11.01 and 11.02 of the RAWOP pertinently provide:
11.01 Arbitration
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Any disputes, differences or disagreements between BENGUET and the
OWNER with reference to anything whatsoever pertaining to this
Agreement that cannot be amicably settled by them shall not be cause
of any action of any kind whatsoever in any court or administrative
agency but shall, upon notice of one party to the other, be referred to
a Board of Arbitrators consisting of three (3) members, one to be
selected by BENGUET, another to be selected by the OWNER and the
third to be selected by the aforementioned two arbitrators so appointed.
xxxx
11.02 Court Action
No action shall be instituted in court as to any matter in dispute as
hereinabove stated, except to enforce the decision of the majority of the
Arbitrators.
Petitioner’s contention: Benguet argues that the POA should have first
referred the case to voluntary arbitration before taking cognizance of the
case, citing Section 2 of R.A. 876 (The Arbitration Law) on persons and
matters subject to arbitration.
Respondent’s contentions: It argued that:
• R.A. 7942 or the Philippine Mining Act of 1995 is a special law which
should prevail over the stipulations of the parties and over a general
law, such as R.A. 876.
• the POA cannot be considered as a court under the contemplation
of R.A. 876 and that jurisprudence saying that there must be prior
resort to arbitration before filing a case with the courts is inapplicable
to the instant case as the POA is itself already engaged in arbitration.
POA: It ruled that while the parties may establish such stipulations clauses,
terms and conditions as they may deem convenient, the same must not
be contrary to law and public policy. At a glance, there is nothing wrong
with the terms and conditions of the agreement. But to state that an
aggrieved party cannot initiate an action without going to arbitration
would be tying ones hand even if there is a law which allows him to do so.
MAB: It held Benguet as estopped from questioning the jurisdiction of
the POA to hear and decide the case when Benguet itself did not merely
move for the dismissal of the case but also filed an Answer with
counterclaim seeking affirmative reliefs from the POA. It also ruled that
the contractual provision on arbitration merely provides for an additional
forum or venue and does not divest the POA of the jurisdiction to hear
the case.
Held: On this issue, the Court rules for Benguet.
Section 2 of R.A. 876 elucidates the scope of arbitration:
Section 2. Persons and matters subject to arbitration. Two or more
persons or parties may submit to the arbitration of one or more
arbitrators any controversy existing between them at the time of
the submission and which may be the subject of an action, or the
parties to any contract may in such contract agree to settle by
arbitration a controversy thereafter arising between them. Such
submission or contract shall be valid, enforceable and irrevocable,
save upon such grounds as exist at law for the revocation of any
contract.
Such submission or contract may include question[s] arising out of
valuations, appraisals or other controversies which may be collateral,
incidental, precedent or subsequent to any issue between the parties.
In R.A. 9285 or the Alternative Dispute Resolution Act of 2004, the
Congress reiterated the efficacy of arbitration as an alternative mode of
dispute resolution by stating in Section 32 thereof that domestic
arbitration shall still be governed by R.A. 876. Clearly, a contractual
stipulation that requires prior resort to voluntary arbitration before the
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from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
parties can go directly to court is not illegal and is in fact promoted by the
State. Thus, petitioner correctly cites several cases whereby arbitration
clauses have been upheld by this Court. POA has no jurisdiction over the
dispute which is governed by R.A. 876, the arbitration law.
Moreover, the contention that R.A. 7942 prevails over R.A. 876
presupposes a conflict between the two laws. Such is not the case here. To
reiterate, availment of voluntary arbitration before resort is made to the
courts or quasi-judicial agencies of the government is a valid contractual
stipulation that must be adhered to by the parties.
Contention: R.A. 7942 prevails over R.A. 876.
Held: Such contention presupposes a conflict between the two laws. Such
is not the case here. To reiterate, availment of voluntary arbitration
before resort is made to the courts or quasi-judicial agencies of the
government is a valid contractual stipulation that must be adhered
to by the parties.
Contention: J.G. Realty’s contends that prior resort to arbitration is
unavailing in the instant case because the POAs mandate is to arbitrate
disputes involving mineral agreements.
Held: Such contention is misplaced. There is a clear distinction between
compulsory and voluntary arbitration. The arbitration provided by the
POA is compulsory, while the nature of the arbitration provision in the
RAWOP is voluntary, not involving any government agency. Thus, J.G.
Realtys argument on this matter must fail.
Contention: The provisions of R.A. 876 cannot apply to the instant case
which involves an administrative agency.
Held: It must be pointed out that Section 11.01 of the RAWOP states that:
[Any controversy with regard to the contract] shall not be cause of any
action of any kind whatsoever in any court or administrative
agency but shall, upon notice of one party to the other, be referred to a
Board of Arbitrators consisting of three (3) members, one to be selected
by BENGUET, another to be selected by the OWNER and the third to be
selected by the aforementioned two arbiters so appointed.
There can be no quibbling that POA is a quasi-judicial body which forms
part of the DENR, an administrative agency. Hence, the provision on
mandatory resort to arbitration, freely entered into by the parties, must
be held binding against them.
In sum, on the issue of whether POA should have referred the case to
voluntary arbitration, we find that, indeed, POA has no jurisdiction over
the dispute which is governed by R.A. 876, The Arbitration Law.
However, the Court finds that Benguet is already estopped from
questioning the POA’s jurisdiction.
As it were, when J.G. Realty filed DENR Case No. 2000-01, Benguet filed
its answer and participated in the proceedings before the POA, Region
V. Secondly, when the adverse March 19, 2001 POA Decision was
rendered, it filed an appeal with the MAB in Mines Administrative Case
No. R-M-2000-01 and again participated in the MAB proceedings. When
the adverse December 2, 2002 MAB Decision was promulgated, it filed a
motion for reconsideration with the MAB. When the adverse March 17,
2004 MAB Resolution was issued, Benguet filed a petition with this Court
pursuant to Section 79 of RA 7942 impliedly recognizing MABs
jurisdiction. In this factual milieu, the Court rules that the jurisdiction of
POA and that of MAB can no longer be questioned by Benguet at this late
hour. What Benguet should have done was to immediately challenge the
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POAs jurisdiction by a special civil action for certiorari when POA ruled
that it has jurisdiction over the dispute. To redo the proceedings fully
participated in by the parties after the lapse of seven years from date of
institution of the original action with the POA would be anathema to the
speedy and efficient administration of justice.
II
The cancellation of the RAWOP was supported by evidence.
The cancellation of the RAWOP by the POA was based on two grounds:
1. Benguet’s failure to pay J.G. Realty’s royalties for the mining claims;
and
2. Benguet’s failure to seriously pursue MPSA Application No. APSA-V-
0009 over the mining claims.
Contentions: As to the royalties, Benguet claims that:
• the checks representing payments for the royalties of J.G. Realty were
available for pick-up in its office and it is the latter which refused to
claim them.
• thus, it did not violate the RAWOP for non-payment of royalties.
• J.G. Realty has the burden of proving that the former did not pay
such royalties following the principle that the complainants must
prove their affirmative allegations.
• with regard to the failure to pursue the MPSA application, the
lengthy time of approval of the application is due to the failure of
the MGB to approve it.
In other words, Benguet argues that the approval of the application is
solely in the hands of the MGB.
Held: Benguet’s arguments are bereft of merit.
Section 14.05 of the RAWOP provides:
14.05 Bank Account
OWNER shall maintain a bank account at ___________ or any other bank
from time to time selected by OWNER with notice in writing to BENGUET
where BENGUET shall deposit to the OWNER’s credit any and all
advances and payments which may become due the OWNER under this
Agreement as well as the purchase price herein agreed upon in the event
that BENGUET shall exercise the option to purchase provided for in the
Agreement. Any and all deposits so made by BENGUET shall be a full
and complete acquittance and release to [sic] BENGUET from any
further liability to the OWNER of the amounts represented by such
deposits.
Evidently, the RAWOP itself provides for the mode of royalty payment
by Benguet. The fact that there was the previous practice whereby J.G.
Realty picked-up the checks from Benguet is unavailing. The mode of
payment is embodied in a contract between the parties. As such, the
contract must be considered as the law between the parties and binding
on both. Thus, after J.G. Realty informed Benguet of the bank account
where deposits of its royalties may be made, Benguet had the obligation
to deposit the checks. J.G. Realty had no obligation to furnish Benguet
with a Board Resolution considering that the RAWOP itself provided for
such payment scheme.
Notably, Benguet’s claim that J.G. Realty must prove non-payment
of its royalties is both illogical and unsupported by law and
jurisprudence.
3
Mine tailings or mine waste refer to soil and/or rock materials from surface or un
derground mining operations with no present economic value to the generator of
the same (Department of Environment and Natural Resources Administrative Order
No. 96-40 (1996) (DENR DAO No. 96-40), Section 5[be]). Waste from milling
operations or mill tailings is defined as materials whether solid, liquid or both,
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
The allegation of nonpayment is not a positive allegation as claimed by
Benguet. Rather, such is a negative allegation that does not require proof
and in fact transfers the burden of proof to Benguet.
In the instant case, the obligation of Benguet to pay royalties to J.G.
Realty has been admitted and supported by the provisions of the
RAWOP. Thus, the burden to prove such obligation rests on Benguet.
It should also be borne in mind that MPSA Application No. APSA-V-0009
has been pending with the MGB for a considerable length of time.
Benguet, in the RAWOP, obligated itself to perfect the rights to the mining
claims and/or otherwise acquire the mining rights to the mineral claims
but failed to present any evidence showing that it exerted efforts to speed
up and have the application approved. In fact, Benguet never even alleged
that it continuously followed-up the application with the MGB and that it
was in constant communication with the government agency for the
expeditious resolution of the application. Such allegations would show
that, indeed, Benguet was remiss in prosecuting the MPSA application and
clearly failed to comply with its obligation in the RAWOP.
III
There is no unjust enrichment in the instant case.
The cancellation of the RAWOP was based on valid grounds and is,
therefore, justified. The necessary implication of the cancellation is the
cessation of Benguet’s right to prosecute MPSA Application No. APSA-V-
0009 and to further develop such mining claims.
There is no unjust enrichment in the instant case as the cancellation of the
RAWOP, which left Benguet without any legal right to participate in further
developing the mining claims, was brought about by its violation of the
RAWOP. Hence, Benguet has no one to blame but itself for its
predicament.
LONEY, REID, & HERNANDEZ vs. PEOPLE (2006)
Facts: Petitioners John Eric Loney, Steven Paul Reid, and Pedro B.
Hernandez are the President and Chief Executive Officer, Senior Manager,
and Resident Manager for Mining Operations, respectively, of Marcopper
Mining Corporation (Marcopper), a corporation engaged in mining in
the province of Marinduque.
Marcopper had been storing tailings3 from its operations in a pit
in Mt. Tapian, Marinduque. At the base of the pit ran a drainage tunnel
leading to the Boac and Makalupnit rivers. It appears that Marcopper had
placed a concrete plug at the tunnels end. On 24 March 1994, tailings
gushed out of or near the tunnels end. In a few days, the Mt. Tapian pit
had discharged millions of tons of tailings into the Boac and Makalupnit
rivers.
Charges
In August 1996, the Department of Justice separately charged petitioners
in the MTC of Boac, Marinduque with violation of:
• Article 91(B), sub-paragraphs 5 and 6 of Presidential Decree No. 1067
or the Water Code of the Philippines (P.D. 1067),
• Section 8 of Presidential Decree No. 984 or the National Pollution
Control Decree of 1976 (P.D. 984),
• Section 108 of Republic Act No. 7942 or the Philippine Mining Act of
1995 (R.A. 7942), and
segregated from the ores during concentration/milling operations which have no
present economic value to the generator of the same (DENR DAO No. 96-40, Section
5 [au]).
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• Article 365 of the Revised Penal Code (RPC) for Reckless Imprudence
Resulting in Damage to Property.
Motion to quash
Petitioners moved to quash the Informations on the following grounds:
1. the Informations were duplicitous as the Department of Justice
charged more than one offense for a single act;
2. petitioners John Eric Loney and Steven Paul Reid were not yet officers
of Marcopper when the incident subject of the Informations took
place; and
3. the Informations contain allegations which constitute legal excuse or
justification.
MTC: It granted partial reconsideration to its Joint Order and quashing
the informations for violation of P.D. 1067 and P.D. 984 but maintained
the informations for violation of R.A. 7942 and Article 365 of the Revised
Penal Code.
RTC: It denied the petitioners’ petition. It ruled that the different laws
involved cannot absorb one another as the elements of each crime are
different from one another. Each of these laws requires proof of an
additional fact or element which the other does not although they
stemmed from a single act.
CA: It affirmed the ruling of the RTC. It maintained the charges for the
violation of The Philippine Mining Act (R.A. 7942) and reinstated the
charges for the violation of The Water Code (P.D. 1067) and the Pollution
Control Law (P.D. 984).
Issue: Whether or not all the charges filed against petitioners except one
should be quashed for duplicity of charges and only the charge for
Reckless Imprudence Resulting in Damage to Property should stand. [No]
Petitioners’ contention: The informations for violation of The Water
Code (P.D. 1067), The Pollution Control Law (P.D. 984), The Philippine
Mining Act (R.A. 7942), and Article 365 of the Revised Penal Code proceed
from and are based on a single act or incident of polluting the Boac
and Makulapnit Rivers thru dumping of mine tailings.
They contend that they should be charged with one offense only, which is
Reckless Imprudence Resulting in Damage to Property, because:
1. all the charges filed against them proceed from and are based on a
single act or incident of polluting the Boac and Makalupnit rivers thru
dumping of mine tailings and
2. the charge for violation of Article 365 of the RPC absorbs the other
charges since the element of lack of necessary or adequate
protection, negligence, recklessness and imprudence is common
among them.
Ruling: The petition has no merit. The filing of several charges is proper.
A single act or incident might offend against two or more entirely distinct
and unrelated provisions of law thus justifying the prosecution of the
accused for more than one offense. The only limit to this rule is the
Constitutional prohibition that no person shall be twice put in jeopardy of
punishment for the same offense.
In People v. Doriquez, the Court held that two (or more) offenses arising
from the same act are not the same…
x x x if one provision [of law] requires proof of an additional fact or
element which the other does not, x x x. Phrased elsewise, where two
different laws (or articles of the same code) define two crimes, prior
jeopardy as to one of them is no obstacle to a prosecution of the other,
although both offenses arise from the same facts, if each crime involves
some important act which is not an essential element of the other.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
Here, double jeopardy is not at issue because not all of its elements
are present.
The RTC’s comparative analysis of the laws
However, for the limited purpose of controverting petitioners claim that
they should be charged with one offense only, the Court quotse with
approval the RTC’s comparative analysis of P.D. 1067, P.D. 984, R.A. 7942,
and Article 365 of the RPC showing that in each of these laws on which
petitioners were charged, there is one essential element not required of
the others, thus:
1. In P.D. 1067 (Philippine Water Code), the additional element to be
established is the dumping of mine tailings into the Makulapnit River
and the entire Boac River System without prior permit from the
authorities concerned. The gravamen of the offense here is the
absence of the proper permit to dump said mine tailings. This
element is not indispensable in the prosecution for violation of P.D.
984 (Anti-Pollution Law), R.A. 7942 (Philippine Mining Act) and
Article 365 of the Revised Penal Code. One can be validly prosecuted
for violating the Water Code even in the absence of actual pollution,
or even if it has complied with the terms of its Environmental
Compliance Certificate, or further, even if it did take the necessary
precautions to prevent damage to property.
2. In P.D. 984 (Anti-Pollution Law), the additional fact that must be
proved is the existence of actual pollution. The gravamen is the
pollution itself. In the absence of any pollution, the accused must
be exonerated under this law although there was unauthorized
dumping of mine tailings or lack of precaution on its part to prevent
damage to property.
3. In R.A. 7942 (Philippine Mining Act), the additional fact that must
be established is the willful violation and gross neglect on the part
of the accused to abide by the terms and conditions of the
Environmental Compliance Certificate, particularly that the
Marcopper should ensure the containment of run-off and silt
materials from reaching the Mogpog and Boac Rivers. If there was no
violation or neglect, and that the accused satisfactorily proved that
Marcopper had done everything to ensure containment of the run-off
and silt materials, they will not be liable. It does not follow, however,
that they cannot be prosecuted under the Water Code, Anti-Pollution
Law and the Revised Penal Code because violation of the
Environmental Compliance Certificate is not an essential element of
these laws.
4. On the other hand, the additional element that must be established
in Article 365 of the Revised Penal Code is the lack of necessary
or adequate precaution, negligence, recklessness and
imprudence on the part of the accused to prevent damage to
property. This element is not required under the previous
laws. Unquestionably, it is different from dumping of mine tailings
without permit, or causing pollution to the Boac river system, much
more from violation or neglect to abide by the terms of the
Environmental Compliance Certificate. Moreover, the offenses
punished by special law are mala prohibita in contrast with those
punished by the Revised Penal Code which are mala in se.
Consequently, the filing of the multiple charges against petitioners,
although based on the same incident, is consistent with settled
doctrine.
Contention: The charge for violation of Article 365 of the RPC absorbs the
charges for violation of P.D. 1067, P.D. 984, and R.A. 7942.
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Held: Suffice it to say that a mala in se felony (such as Reckless

Imprudence Resulting in Damage to Property) cannot absorb mala
prohibita crimes (such as those violating P.D. 1067, P.D. 984, and RA 7942).
What makes the former a felony is criminal intent (dolo) or negligence
(culpa); what makes the latter crimes are the special laws enacting them.
DIDIPIO EARTH-SAVERS’ MULTI-PURPOSE ASSOCIATION
INCORPORATED (DESAMA), et. al. vs. GOZUN, RAMOS,
ROMULO, FERRER, & SANDERCOCK (2006)
MGB’s letter
In a letter dated 19 February 2003, the MGB rejected the demand of
counsels for petitioners for the cancellation of the CAMC FTAA.
Petition for prohibition by petitioners
Petitioners thus filed the present petition for prohibition and mandamus,
with a prayer for a temporary restraining order. They pray that the Court
issue an order:

Facts: On 25 July 1987, then President Corazon C. Aquino promulgated

1. enjoining public respondents from acting on any application for
Executive Order No. 279 which authorized the DENR Secretary to accept,
FTAA;
consider and evaluate proposals from foreign-owned corporations or
2. declaring unconstitutional the Philippine Mining Act of 1995 and its
foreign investors for contracts of agreements involving either technical or
Implementing Rules and Regulations;
financial assistance for large-scale exploration, development, and
3. canceling the FTAA issued to CAMC.
utilization of minerals, which, upon appropriate recommendation of the
Secretary, the President may execute with the foreign proponent.
Issues:
1. Whether or not Section 76 of R.A. No. 7942 and Section 107 DAO 96-
On 3 March 1995, then President Fidel V. Ramos signed into law
40 are valid. [No]
Republic Act No. 7942, entitled, An Act Instituting A New System of
Mineral Resources Exploration, Development, Utilization and
Petitioners’ contentions:
Conservation, otherwise known as the Philippine Mining Act of 1995.
• In seeking to nullify R.A. No. 7942 and its implementing rules DAO
96-40 as unconstitutional, petitioners set their sight on Section 76
On 15 August 1995, then DENR Secretary Victor O. Ramos issued
of R.A. No. 7942 and Section 107 of DAO 96-40 which they claim
DENR Administrative Order No. 23, series of 1995, containing the
allow the unlawful and unjust taking of private property for private
implementing guidelines of R.A. No. 7942. This was soon superseded by
purpose in contradiction with Section 9, Article III of the 1987
DAO No. 96-40, s. 1996, which took effect on 23 January 1997 after due
Constitution mandating that private property shall not be taken
publication.
except for public use and the corresponding payment of just
compensation.
Previously, however, or specifically on 20 June 1994, President Ramos
• They assert that public respondent DENR, through the Mining Act
executed an FTAA with Arimco Mining Corporation (AMC) over a total
and its Implementing Rules and Regulations, cannot, on its own,
land area of 37,000 hectares covering the provinces of Nueva Vizcaya
permit entry into a private property and allow taking of land without
and Quirino. Included in this area is Barangay Dipidio, Kasibu, Nueva
payment of just compensation.
Vizcaya.
• Interpreting Section 76 of R.A. No. 7942 and Section 107 of DAO 96-
40, juxtaposed with the concept of taking of property for purposes
Subsequently, AMC consolidated with Climax Mining Limited to form a
of eminent domain in the case of Republic v. Vda. de Castellvi,
single company that now goes under the new name of Climax-
petitioners assert that there is indeed a taking upon entry into private
Arimco Mining Corporation (CAMC), the controlling 99% of
lands and concession areas.
stockholders of which are Australian nationals.
o Republic v. Vda. de Castellvi defines taking under the
concept of eminent domain as entering upon private
Demand letters by petitioners
property for more than a momentary period, and,
On 7 September 2001, counsels for petitioners filed a demand letter
under the warrant or color of legal authority,
addressed to then DENR Secretary Heherson Alvarez, for the
devoting it to a public use, or otherwise informally
cancellation of the CAMC FTAA for the primary reason that R.A. No.
appropriating or injuriously affecting it in such a way
7942 and its Implementing Rules and Regulations DAO 96-40 are
as to substantially oust the owner and deprive him of
unconstitutional.
all beneficial enjoyment thereof.
• From the criteria set forth in the cited case, petitioners claim that:
The Office of the Executive Secretary was also furnished a copy of the said
o the entry into a private property by CAMC, pursuant
letter. There being no response to both letters, another letter of the same
to its FTAA, is for more than a momentary
content dated 17 June 2002 was sent to President
period, i.e., for 25 years, and renewable for another
Gloria Macapagal Arroyo.
25 years;
o the entry into the property is under the warrant or
This letter was indorsed to the DENR Secretary and eventually referred to
color of legal authority pursuant to the FTAA
the Panel of Arbitrators of the Mines and Geosciences Bureau (MGB),
executed between the government and CAMC; and
Regional Office No. 02, Tuguegarao, Cagayan, for further action.
o the entry substantially ousts the owner or possessor
and deprives him of all beneficial enjoyment of the
Letter from the POA
property.
On 12 November 2002, counsels for petitioners received a letter from the
• These facts, according to the petitioners, amount to taking. As such,
Panel of Arbitrators of the MGB requiring the petitioners to comply with
petitioners question the exercise of the power of eminent domain
the Rules of the Panel of Arbitrators before the letter may be acted upon.
as unwarranted because respondents failed to prove that the
entry into private property is devoted for public use.
Another letter to the president
• Petitioners also stress that even without the doctrine in
Yet again, counsels for petitioners sent President Arroyo another demand
the Castellvi case, the nature of the mining activity, the extent of the
letter dated 8 November 2002. Said letter was again forwarded to the
DENR Secretary who referred the same to the MGB, Quezon City.

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land area covered by the CAMC FTAA and the various rights granted property to public use upon
to the proponent or the FTAA holder, such as: payment of just compensation.
a. the right of possession of the Exploration Contract In Republic v. Castellvi, this Court Property condemned under
Area, with full right of ingress and egress and the had the occasion to spell out the police power is usually noxious or
right to occupy the same; requisites of taking in eminent intended for a noxious (harmful)
b. the right not to be prevented from entry into private domain, to wit: purpose; hence, no compensation
lands by surface owners and/or occupants thereof shall be paid.
when prospecting, exploring and exploiting for 1. the expropriator must enter Property rights of private
minerals therein; a private property; individuals are subjected to
c. the right to enjoy easement rights, the use of timber, 2. the entry must be for more restraints and burdens in order to
water and other natural resources in the Exploration than a momentary period. secure the general comfort,
Contract Area; 3. the entry must be under health, and prosperity of the
d. the right of possession of the Mining Area, with full warrant or color of legal state.
right of ingress and egress and the right to occupy authority;
the same; and 4. the property must be
e. the right to enjoy easement rights, water and other devoted to public use or
natural resources in the Mining Area, result in a otherwise informally
taking of private property. appropriated or injuriously
• Petitioners quickly add that even assuming arguendo that there is no affected;
absolute, physical taking, at the very least, Section 76 establishes a 5. the utilization of the
legal easement upon the surface owners, occupants and property for public use must
concessionaires of a mining contract area sufficient to deprive them be in such a way as to oust
of enjoyment and use of the property and that such burden imposed the owner and deprive him
by the legal easement falls within the purview of eminent domain. of beneficial enjoyment of
• To further bolster their claim that the legal easement established is the property.
equivalent to taking, petitioners cite the case of National Power When a property interest is A thorough scrutiny of the extant
Corporation v. Gutierrez, holding that the easement of right-of-way appropriated and applied to some jurisprudence leads to a cogent
imposed against the use of the land for an indefinite period is a public purpose, there is deduction that where a property
taking under the power of eminent domain. compensable taking. interest is merely restricted
because the continued use thereof
Public respondents contentions: They argue that: would be injurious to public
• Section 76 is not a taking provision but a valid exercise of the police welfare, or where property is
power and by virtue of which, the state may prescribe regulations to destroyed because its continued
promote the health, morals, peace, education, good order, safety and existence would be injurious to
general welfare of the people. public interest, there is no
• this government regulation involves the adjustment of rights for the compensable taking.
public good and that this adjustment curtails some potential for the If, in the regulation of the use of Bernas: In the exercise of its
use or economic exploitation of private property. the property, somebody else police power regulation, the state
• to require compensation in all such circumstances would compel the acquires the use or interest restricts the use of private
government to regulate by purchase. thereof, such restriction property, but none of the
constitutes compensable taking. property interests in the bundle
Public respondents are inclined to believe that by entering private lands of rights which constitute
and concession areas, FTAA holders do not oust the owners thereof nor ownership is appropriated for use
deprive them of all beneficial enjoyment of their properties as the said by or for the benefit of the public.
entry merely establishes a legal easement upon surface owners, occupants
and concessionaires of a mining contract area. Use of the property by the owner
was limited, but no aspect of the
Ruling: The instant petition is dismissed. property is used by or for the
public. The deprivation of use can
I in fact be total and it will not
Validity of Section 76 of R.A. 7942 and DAO 96-49 constitute compensable taking if
nobody else acquires use of the
Taking in eminent domain, distinguished from regulation in police property or any interest therein.
power While the power of eminent
Although both police power and the power of eminent domain have the domain often results in the
general welfare for their object, and recent trends show a mingling of the appropriation of title to or
two with the latter being used as an implement of the former, there are possession of property, it need
still traditional distinctions between the two. not always be the case.

Eminent domain Police power Taking may include trespass

is the inherent right of the state is the power of the state to without actual eviction of the
(and of those entities to which the promote public welfare by owner, material impairment of
power has been lawfully restraining and regulating the use the value of the property or
delegated) to condemn private of liberty and property. prevention of the ordinary uses

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for which the property was
intended such as the
establishment of an easement.
A regulation which substantially deprives the owner of his proprietary
rights and restricts the beneficial use and enjoyment for public use
amounts to compensable taking.
In the case under consideration, the entry referred to in Section 76 and
the easement rights under Section 75 of R.A. No. 7942 as well as the
various rights to CAMC under its FTAA are no different from the
deprivation of proprietary rights in the cases discussed which this Court
considered as taking.
The CAMC FTAA grants in favor of CAMC the right of possession of the
Exploration Contract Area, the full right of ingress and egress and the right
to occupy the same. It also bestows CAMC the right not to be prevented
from entry into private lands by surface owners or occupants thereof when
prospecting, exploring and exploiting minerals therein.
The entry referred to in Section 76 is not just a simple right-of-way which
is ordinarily allowed under the provisions of the Civil Code. Here, the
holders of mining rights enter private lands for purposes of conducting
mining activities such as exploration, extraction and processing of
minerals. Mining right holders build mine infrastructure, dig mine shafts
and connecting tunnels, prepare tailing ponds, storage areas and vehicle
depots, install their machinery, equipment and sewer systems. On top of
this, under Section 75, easement rights are accorded to them where they
may build warehouses, port facilities, electric transmission, railroads and
other infrastructures necessary for mining operations.
All these will definitely oust the owners or occupants of the affected areas
the beneficial ownership of their lands. Without a doubt, taking occurs
once mining operations commence.
Section 76 of R.A. No. 7942 is a taking provision
Energy
R.A. 7638 | R.A. 7196 | P.D. 1068 | R.A. 9367
P.D. 1442 | R.A. 8479 | R.A. 9136
NUCLEAR FREE PHILIPPINE COALITION, et al. vs. NATIONAL
POWER CORPORATION, et al. (1986)
G.R. No. 70632
LORENZO M. TAÑADA, et al., vs.
PHILIPPINE ATOMIC ENERGY COMMISSION, et. al.
Facts: In G.R. No. 70632, petitioners Tañada, et. al.:
1. question the competence of respondent PAEC Commissioners to
pass judgment on the safety of the Philippine Nuclear Power Plant-
1 PNPP-1 in PAEC Licensing Proceedings No. 1-77 without however
seeking their ouster from office, although "proven competence" is
one of the qualifications prescribed by law for PAEC Commissioners.
2. assail the validity of the motion (application) filed by the National
Power Corporation (NPC) for the conversion of its construction
permit into an operating license for PNPP-1 on the principal
ground that it contained no information regarding the financial
qualifications of NPC, its source of nuclear fuel, and insurance
coverage for nuclear damage.
3. finally charge respondent PAEC Commissioners with bias and
prejudgment.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
Ruling:
I
Competence of the appointment
The first issue must be resolved against the petitioners. Where the validity
of an appointment is not challenged in an appropriate proceeding, the
question of competence is not within the field of judicial inquiry. If not
considered a qualification the absence of which would vitiate the
appointment, competence is a matter of judgment that is addressed solely
to the appointing power.
II
Legal sufficiency of the NPC motion for conversion
As regards the legal sufficiency of the NPC motion for conversion,
petitioners contend that the deficiencies they have indicated are
jurisdictional infirmities which cannot be cured.
The Court believes however that said deficiencies may be remedied and
supplied in the course of the hearing before PAEC. For this purpose,
respondent-applicant NPC may submit pertinent testimonies and
documents when the PAEC hearing is re-opened, subject to controversion
and counterproof of herein petitioners.
III
On bias and prejudgment
There is merit in the charge of bias and prejudgment. The PAEC
pamphlets- particularly Annexes "JJ", "KK" and "LL" of the petition (G.R.
70632)-clearly indicate the pre-judgment that PNPP-1 is safe.
1st pamphlet
Exhibit "JJ" is an official PAEC 1985 pamphlet entitled "The Philippine
Nuclear Power Plant-l." It gives an overview specifically of PNPP-1, lauds
the safety of nuclear power, and concludes with a statement of the
benefits to be derived when the PNPP-1 start operation.
. . .When the PNPP-1 starts operating, it will generate a power of 620
megawatts enough to supply 15 percent of the electricity needs in Luzon.
This is estimated to result in savings of US$160 million a year, representing
the amount of oil displaced.
Aside from being a reliable source of electricity, nuclear power has
an excellent safety record and has been found to result in lower
occupational and public risks than fossil fired (coal or oil) stations.
2nd pamphlet
The second pamphlet is entitled "NUCLEAR POWER-SAFE CLEAN
ECONOMICAL AND AVAILABLE." On the surface, it merely propagates
the use of nuclear power in general. But its numerous specific references
to the PNPP-1 "which will be operational in 1985" and its advantages give
credence to the charge that Exhibit "KK" was in reality designed to project
PNPP-1 as safe, among others.
When Exhibit "KK" was published, PNPP-1 was the only nuclear plant
under construction in the Philippines. It is the Philippine nuclear plant
specifically mentioned therein that was to be operational in 1985.
Therefore, when the pamphlet states that nuclear power is working now
in other countries and "it should work for us too" because it is "safe" and
economical", it is logical to conclude that the reference is to no other than
the nuclear power to be generated at the PNPP-1
Environmental Law | Page 44
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Also worth quoting is the following passage in Exhibit "KK" which
sweepingly vouch safes all nuclear power plants, including the PNPP-1:
No member of the public has ever been injured during the last 25 years
that commercial nuclear reactors have been generating electricity. As is
to be expected in any complex system as nuclear power plants, there
have been failure of equipment and human errors. However in every
instance, the safety equipment designed into the nuclear reactor self-
terminated the accident without injury to the operators or the public. The
Three Mile Island Incident, serious as it was, did not result in the loss of
life nor did it result in the exposure of anyone beyond permissible limits.
The designers of nuclear plants assume failure to occur, and provide
multiple safeguards protection against every conceivable malfunction.
3rd pamphlet
The third pamphlet (Exh. "LL") is entitled NUCLEAR POWER PLANT and
ENVIRONMENTAL SAFETY. Speaking specifically of the PNPP-1 it
categorically states that the Bataan Nuclear Plant will not adversely affect
the public or the flora or fauna in the area. One of the stated reasons in
support of the conclusion is —
And environmentally, a nuclear power plant emits only insignificant
amount of radioactivity to the environment. It does not cause chemical
pollution of air or water, it does not emit sulfur dioxide or nitrogen oxides
like plants fired by fossil fuels such as coal and oil, Besides, even coal
fired plants may emits radioactive particles of uranium and thorium
because these may be found naturally associated with coal deposits.
Comparatively therefore, a nucelar power plant is the cleanest and the
safest environmentally. No other technology in modern times has been
developed with so dominant concern for public safety as nuclear power.
Respondent PAEC Commissioners cannot escape responsibility for
these official pamphlets.
Exhibit "JJ" was published in 1985, when respondent Commissioners had
already been appointed to their present positions.
Exhibits "KK" and "LL" were issued earlier, but the majority of respondent
Commissioners even then were already occupying positions of
responsibility in the PAEC.
• Commissioner Manuel Eugenio was Acting Chief of the PAEC
Department on Nuclear Technology and Engineering from June,
1980 to July, 1984;
• Commissioner Quirino Navarro was PAEC Chief Science Research
Specialist from May, 1980 to September, 1984; and
• Commissioner Alejandro Ver Albano was PAEC Deputy
Commissioner from March, 1980 to September, 1984. Additionally,
the stubborn fact remains unrebutted that Exhibits "J.J."
"KK" and "LL" continued to be distributed by PAEC as late as March, 1985.
In other words their official distribution continued after the filing of NPC's
motion for conversion on June 27, 1984 and even after PAEC had issued
its order dated February 26, 1985 formally admitting the said motion for
conversion.
At any rate, even if it be assumed that there are some doubts regarding the
conclusion that there has been a prejudgment of the safety of PNPP-1, the
doubts should be resolved in favor of a course of action that will
assure an unquestionably objective inquiry, considering the
circumstances thereof and the number of people vitally interested
therein.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
Having thus prejudged the safety of the PNPP-1, respondent PAEC
Commissioners would be acting with grave abuse of discretion
amounting to lack of jurisdiction were they to sit in judgment upon
the safety of the plant, absent the requisite objectivity that must
characterize such an important inquiry.
The Court therefore resolved to RESTRAIN respondent PAEC
Commissioners from further acting in PAEC Licensing Proceedings No. 1-
77.
G.R. No. L-68474
NUCLEAR FREE PHILIPPINE COALITION, et al. vs.
NATIONAL POWER CORPORATION, et al.
Ruling: In G.R. No. 68474, acting on the motion filed therein dated June
8, 1985 to order PAEC to reconsider its orders of May 31 and June 5,
1985, the urgent motion for mandatory injunction and/or restraining
order dated August 3, 1985, the second urgent motion for mandatory
injunction dated August 12, 1985, and the various pleadings and other
documents submitted by the parties relative thereto, and considering the
paramount need of a reasonable assurance that the operation of
PNPP-1 will not pose an undue risk to the health and safety of the
people, which dictates that the conduct of the inquiry into the safety
aspects of PNPP-1 be characterized by sufficient latitude, the better to
achieve the end in view, unfettered by technical rules of evidence (R.A.
5207, Section 34), and in keeping with the requirements of due process in
administrative proceedings, the Court resolved to ORDER respondent
PAEC (once reconstituted) to re-open the hearing on PNPP-1, so as to
give petitioners sufficient time to complete their cross-examination of the
expert witnesses on quality assurance, to cross-examine the witnesses that
petitioners have failed to cross-examine on and after August 9, 1985, and
to complete the presentation of their evidence, for which purpose,
respondent PAEC shall issue the necessary subpoena and subpoena duces
tecum to compel the attendance of relevant witnesses and/or the
production of relevant documents.
For the said purposes, the PAEC may prescribe a time schedule which shall
reasonably assure the parties sufficient latitude to adequately present
their case consistently with the requirements of dispatch. lt is understood
that the PAEC may give NPC the opportunity to correct or supply
deficiencies in this application or evidence in support thereof.
Ecological Solid Waste Management Act of
2000 (R.A. 9003)
Article 2.
Definition of Terms.
Section 3. Definition of Terms. - For the purposes of this Act:
(e) Collection shall refer to the act of removing solid waste from the
source or from a communal storage point;
(f) Composting shall refer to the controlled decomposition of organic
matter by micro-organisms, mainly bacteria and fungi, into a humus-like
product;
(j) Disposal shall refer to the discharge, deposit, dumping, spilling, leaking
or placing of any solid waste into or in an land;
(l) Ecological solid waste management shall refer to the systematic
administration of activities which provide for segregation at source,
segregated transportation, storage, transfer, processing, treatment, and
Environmental Law | Page 45
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Special contribution by Louis Palma Gil

disposal of solid waste and all other waste management activities which
do not harm the environment;
(p) Hazardous waste shall refer to solid waste management or
combination of solid waste which because of its quantity, concentration
or physical, chemical or infectious characteristics may:
(1) cause, or significantly contribute to an increase in mortality or an
increase in serious irreversible, or incapacitating reversible, illness; or
(2) pose a substantial present or potential hazard to human health or the
environment when improperly treated, stored, transported, or disposed
of, or otherwise managed;
(q) Leachate shall refer to the liquid produced when waste undergo
decomposition, and when water percolate through solid waste
undergoing decomposition. It is contaminated liquid that contains
dissolved and suspended materials;
(r) Materials recovery facility includes a solid waste transfer station or
sorting station, drop-off center, a composting facility, and a recycling
facility;
(bb) Recycling shall refer to the treating of used or waste materials
through a process of making them suitable for beneficial use and for other
purposes, and includes any process by which solid waste materials are
transformed into new products in such a manner that the original product
may lose their identity, and which maybe used as raw materials for the
production of other goods or services: Provided, That the collection,
segregation and re-use of previously used packaging material shall be
deemed recycling under this Act;
(ee) Re-use shall refer to the process of recovering materials intended for
the same or different purpose without the alteration of physical and
chemical characteristics;
(ff) Sanitary landfill shall refer to a waste disposal site designed,
constructed, operated and maintained in a manner that exerts
engineering control over significant potential environment impacts arising
from the development and operation of the facility;
(ii) Segregation shall refer to a solid waste management practice of
separating different materials found in solid waste in order to promote
recycling and re-use of resources and to reduce the volume of waste for
collection and disposal;
(kk) Solid waste shall refer to all discarded household, commercial waste,
non-hazardous institutional and industrial waste, street sweepings,
construction debris, agricultural waste, and other non-hazardous/non-
toxic solid waste.
Unless specifically noted otherwise, the term "solid waste" as used in this
Act shall not include:
(1) Waste identified or listed as hazardous waste of a solid, liquid,
contained gaseous or semisolid form which may cause or contribute to an
increase in mortality or in serious or incapacitating reversible illness, or
acute/chronic effect on the health of persons and other organisms;
(2) Infectious waste from hospitals such as equipment, instruments,
utensils, and fomites of a disposable nature from patients who are
suspected to have or have been diagnosed as having communicable
diseases and must therefore be isolated as required by public health
agencies, laboratory wastes such as pathological specimens (i.e. all tissues,
specimens of blood elements, excreta, and secretions obtained from
patients or laboratory animals) and disposable fomites that may harbor or
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
transmit pathogenic organisms, and surgical operating room pathologic
materials from outpatient areas and emergency rooms; and
(3) Waste resulting from mining activities, including contaminated soil and
debris.
(ll) Solid waste management shall refer to the discipline associated with
the control of generation, storage, collection, transfer and transport,
processing, and disposal of solid wastes in a manner that is in accord with
the best principles of public health, economics, engineering, conservation,
aesthetics, and other environmental considerations, and that is also
responsive to public attitudes;
(mm) Solid waste management facility shall refer to any resource
recovery system or component thereof; any system, program, or facility
for resource conservation; any facility for the collection, source separation,
storage, transportation, transfer, processing, treatment, or disposal of
solid waste;
xxx
CHAPTER II
INSTITUTIONAL MECHANISM
Section 7. The National Ecology Center - There shall be established a
National Ecology Center under the Commission which shall provide
consulting, information, training, and networking services for the
implementation of the provisions of this Act.
In this regard, it shall perform the following functions:
(a) Facilitate training and education in integrated ecological solid waste
management;
(b) Establish and manage a solid waste management information data
base, in coordination with the DTI and other concerned agencies:
(1) on solid waste generation and management techniques as
well as the management, technical and operational approaches
to resource recovery; and
(2) of processors/recyclers, the list of materials being recycled
or bought by them and their respective prices;
(c) Promote the development of a recycling market through the
establishment of a national recycling network that will enhance the
opportunity to recycle;
(d) Provide or facilitate expert assistance in pilot modeling of solid waste
management facilities; and
(e) Develop, test, and disseminate model waste minimization and
reduction auditing procedures for evaluating options.
The National Ecology Center shall be headed by the director of the Bureau
in his ex officio capacity. It shall maintain a multi-sectoral, multi-
disciplinary pool of experts including those from the academe, inventors,
practicing professionals, business and industry, youth , women and other
concerned sectors, who shall be screened according to qualifications set
by the Commission.
Section 10. Role of LGUs in Solid Waste Management - Pursuant to the
relevant provisions of R.A. No. 7160, otherwise known as the Local
government code, the LGUs shall be primarily responsible for the
implementation and enforcement of the provisions of this Act within their
respective jurisdictions.
Segregation and collection of solid waste shall be conducted at the
barangay level specifically for biodegradable, compostable and reusable
wastes: Provided, That the collection of non-recyclable materials and
special wastes shall be the responsibility of the municipality or city.
Environmental Law | Page 46
Compiled and edited by Aila Ampie
Special contribution by Louis Palma Gil

CHAPTER III
COMPREHENSIVE SOLID WASTE MANAGEMENT
Article 1
General Provisions
Section 14. National Solid Waste Management Status Report - The
Department, in coordination with the DOH and other concerned agencies,
shall within six (6) months after the effectivity of this Act, prepare a
National Solid Waste Management Status Report which shall be used as
a basis in formulating the National Solid Waste Management Framework
provided in Sec. 15 of this Act. The concerned agencies shall submit to the
Department relevant data necessary for the completion of the said report
within three (3) months following the effectivity of this Act. The said report
shall include, but shall not be limited to, the following:
(a) Inventory of existing solid waste facilities;
(b) General waste characterization, taking into account the type, quantity
of waste generated and estimation of volume and type of waste for
reduction and recycling;
(c) Projection of waste generation;
(d) The varying regional geologic, hydrologic, climatic, and other factors
vital in the implementation of solid waste practices to ensure the
reasonable protection of:
(1) the quality of surface and groundwater from leachate
contamination;
(2) the quality of surface waters from surface run-off
contamination; and
(3) ambient air quality.
(e) Population density, distribution and projected growth;
(f) The political, economic, organizational, financial and management
problems affecting comprehensive solid waste management;
(g) Systems and techniques of waste reduction, re-use and recycling;
(h) Available markets for recyclable materials;
(i) Estimated cost of collecting, storing, transporting, marketing and
disposal of wastes and recyclable materials; and
(j) Pertinent qualitative and quantitative information concerning the
extent of solid waste management problems and solid waste
management activities undertaken by local government units and the
waste generators.
Provided, That the Department, in consultation with concerned agencies,
shall review, update and publish a National Solid Waste Management
Status Report every two (2) years or as the need arises.
Section 15. National Solid Waste Management Framework - Within
six (6) months from the completion of the national solid waste
management status report under Sec. 14 of this Act, the Commission
created under Sec. 4 of this Act shall, with public participation, formulate
and implement a National Solid Waste Management Framework. Such
framework shall consider and include:
(a) Analysis and evaluation of the current state, trends, projections of solid
waste management on the national, provincial and municipal levels;
(b) Identification of critical solid waste facilities and local government units
which will need closer monitoring and/or regulation;
(c) Characteristics and conditions of collection, storage, processing,
disposal, operating methods, techniques and practices, location of
facilities where such operating methods, techniques and practices are
conducted, taking into account the nature of the waste;
(d) Waste diversion goal pursuant to Sec. 20 of this Act;
(e) Schedule for the closure and/or upgrading of open and controlled
dumps pursuant to Sec. 37 of this Act;
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
(f) Methods of closing or upgrading open dumps for purposes of
eliminating potential health hazards;
(g) The profile of sources, including industrial, commercial, domestic, and
other sources;
(h) Practical applications of environmentally sound techniques of water
minimization such as, but not limited to, resource conservation,
segregation at source, recycling, resource recovery, including waste-to-
energy generation, re-use and composting;
(i) A technical and economic description of the level of performance that
can be attained by various available solid waste management practices
which provide for the protection of public health and the environment;
(j) Appropriate solid waste facilities and conservation systems;
(k) Recycling programs for the recyclable materials, such as but not limited
to glass, paper, plastic and metal;
(l) Venues for public participation from all sectors at all phases/stages of
the waste management program/project;
(m) Information and education campaign strategies;
(n) A description of levels of performance and appropriate methods and
degrees of control that provide, at the minimum, for protection of public
health and welfare through:
(1) Protection of the quality of groundwater and surface waters
from leachate and run-off contamination;
(2) Disease and epidemic prevention and control;
(3) Prevention and control of offensive odor; and
(4) Safety and aesthetics.
(o) Minimum criteria to be used by the local government units to define
ecological solid waste management practices. As much as practicable,
such guidelines shall also include minimum information for use in
deciding the adequate location, design and construction of facilities
associated with solid waste management practices, including the
consideration of regional, geographic, demographic and climatic factors;
and
(p) The method and procedure for the phaseout and the eventual closure
within eighteen (18) months from the effectivity of this Act in case of
existing open dumps and/or sanitary landfills located within an aquifer,
groundwater reservoir or watershed area.
CHAPTER VI
PENAL PROVISIONS
Section 48. Prohibited Acts - The following acts are prohibited:
(1) Littering, throwing, dumping of waste matters in public places, such as
roads, sidewalks, canals, esteros or parks, and establishment, or causing
or permitting the same;
(2) Undertaking activities or operating, collecting or transporting
equipment in violation of sanitation operation and other requirements or
permits set forth in established pursuant;
(3) The open burning of solid waste;
(4) Causing or permitting the collection of non-segregated or unsorted
wastes;
(5) Squatting in open dumps and landfills;
(6) Open dumping, burying of biodegradable or non-biodegradable
materials in flood prone areas;
(7) Unauthorized removal of recyclable material intended for collection by
authorized persons;
(8) The mixing of source-separated recyclable material with other solid
waste in any vehicle, box, container or receptacle used in solid waste
collection or disposal;
(9) Establishment or operation of open dumps as enjoined in this Act, or
closure of said dumps in violation of Sec. 37;
(10) The manufacture, distribution or use of non-environmentally
acceptable packaging materials;
(11) Importation of consumer products packaged in non-environmentally
acceptable materials;
Environmental Law | Page 47
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Special contribution by Louis Palma Gil

(12) Importation of toxic wastes misrepresented as "recyclable" or "with
recyclable content";
(13) Transport and dumplog in bulk of collected domestic, industrial,
commercial, and institutional wastes in areas other than centers or
facilities prescribe under this Act;
(14) Site preparation, construction, expansion or operation of waste
management facilities without an Environmental Compliance Certificate
required pursuant to Presidential Decree No. 1586 and this Act and not
conforming with the land use plan of the LGU;
(15) The construction of any establishment within two hundred (200)
meters from open dumps or controlled dumps, or sanitary landfill; and
(16) The construction or operation of landfills or any waste disposal facility
on any aquifer, groundwater reservoir, or watershed area and or any
portions thereof.
CHAPTER VII
MISCELLANEOUS PROVISIONS
Section 52. Citizens Suits - For the purposes of enforcing the provisions
of this Act or its implementing rules and regulations, any citizen may file
an appropriate civil, criminal or administrative action in the proper
courts/bodies against:
(a) Any person who violates or fails to comply with the provisions of this
Act its implementing rules and regulations; or
(b) The Department or other implementing agencies with respect to
orders, rules and regulations issued inconsistent with this Act; and/or
(c) Any public officer who willfully or grossly neglects the performance of
an act specifically enjoined as a duty by this Act or its implementing rules
and regulations; or abuses his authority in the performance of his duty; or,
in any many improperly performs his duties under this Act or its
implementing rules and regulations; Provided, however, That no suit can
be filed until after thirty-day (30) notice has been given to the public
officer and the alleged violator concerned and no appropriate action has
been taken thereon.
The Court shall exempt such action from the payment of filing fees and
statements likewise, upon prima facieshowing of the non-enforcement or
violation complained of, exempt the plaintiff from the filing of an
injunction bond for the issuance of preliminary injunction.
In the event that the citizen should prevail, the Court shall award
reasonable attorney's fees, moral damages and litigation costs as
appropriate.
Section 53. Suits and Strategic Legal Action Against Public
Participation (SLAPP) and the Enforcement of this Act - Where a suit
is brought against a person who filed an action as provided in Sec. 52 of
this Act, or against any person, institution or government agency that
implements this Act, it shall be the duty of the investigating prosecutor or
the Court, as the case may be, to immediately make a determination not
exceeding thirty (30) days whether said legal action has been filed to
harass, vex, exert undue pressure or stifle such legal recourses of the
person complaining of or enforcing the provisions of this Act. Upon
determination thereof, evidence warranting the same, the Court shall
dismiss the complaint and award the attorney's fees and double damages.
This provision shall also apply and benefit public officers who are sued for
acts committed in their official capacity, there being no grave abuse of
authority, and done in the course of enforcing this Act.
4
Usufruct – gives a right to enjoy the property of another with the obligation of
preserving its form and substance, unless the title constituting it or the law otherwise
provides.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
QUIZ #7
What are the four Rs of solid waste Management?
1. Reduce
2. Reuse
3. Recycle
4. Refuse
5. Ecological Solid Waste Management shall refer to the systematic
administration of activities which provide for segregation at source,
segregated transportation, storage, transfer, processing, treatment
and solid waste and all other waste management activities which do
not harm the environment.
6. Local Government Units (LGUs) shall be primarily responsible for
the implementation and enforcement of solid waste management
within their respective jurisdictions.
7. Materials Recovery Facility (MRF) shall receive mixed waste for
final sorting, segregation, composting, and recycling. The resulting
residual wastes shall be transferred to a long term storage or
disposal facility or sanitary landfill.
8. "The earth belongs in usufruct to the living", as eloquently stated by
Thomas Jefferson.
9. Water is life and must be saved at all cost. The protection of
watershed ensures an adequate supply of water for future
generations and the control of flashfloods that not only damage
property but also cause loss of lives.
10. In Nuclear Free Philippines Coalition v. NPC, the controversy and
surrounding circumstances pertain to the operation of the Philippine
Nuclear Power Plant, more popularly known as the Bataan Nuclear
Power Plant.
11. Who is the Climate Change Commission Chairperson? The
president.
PROVINCE OF RIZAL, et. al. vs. EXECUTIVE SECRETARY, et. al.
(2005)
“The earth belongs in usufruct4 to the living.” – Thomas Jefferson
Overview: At the height of the garbage crisis plaguing Metro Manila and
its environs, parts of the Marikina Watershed Reservation were set aside
by the Office of the President, through Proclamation No. 635 dated 28
August 1995, for use as a sanitary landfill and similar waste disposal
applications. In fact, this site, extending to more or less 18 hectares, had
already been in operation since 19 February 1990 for the solid wastes of
Quezon City, Marikina, San Juan, Mandaluyong, Pateros, Pasig, and
Taguig.
This is a petition filed by the province of Rizal, the municipality of San
Mateo, and various concerned citizens for review on certiorari of the
Decision of the Court of Appeals in CA-G.R. SP No. 41330, denying, for
lack of cause of action, the petition for certiorari, prohibition
and mandamus with application for a temporary restraining order/writ of
preliminary injunction assailing the legality and constitutionality of
Proclamation No. 635.
Environmental Law | Page 48
Compiled and edited by Aila Ampie
Special contribution by Louis Palma Gil

Facts: On 17 November 1988, the respondent Secretaries of the
Department of Public Works and Highways (DPWH) and the
Department of Environment and Natural Resources (DENR) and the
Governor of the Metropolitan Manila Commission (MMC) entered into
a Memorandum of Agreement (MOA), which provides in part:
1. The DENR agrees to immediately allow the utilization by the
Metropolitan Manila Commission of its land property located at
Pintong Bocaue in San Mateo, Rizal as a sanitary landfill site, subject to
whatever restrictions that the government impact assessment might
require.
2. Upon signing of this Agreement, the DPWH shall commence the
construction/development of said dumpsite.
3. The MMC shall:
a. take charge of the relocation of the families within and
around the site;
b. oversee the development of the areas as a sanitary landfill;
c. coordinate/monitor the construction of infrastructure
facilities by the DPWH in the said site; and
d. ensure that the necessary civil works are properly undertaken
to safeguard against any negative environmental impact in
the area.
Letter by the Sangguniang Bayan of San Mateo
On 7, 8 and 10 February 1989, the Sangguniang Bayan of San Mateo
wrote Governor Elfren Cruz of the MMC, Secretary Fiorello Estuar of
the DPWH, the Presidential Task Force on Solid Waste Management,
Executive Secretary Catalino Macaraig, and Secretary Fulgencio
Factoran, Jr., pointing out that it had recently passed a Resolution
banning the creation of dumpsites for Metro Manila garbage within its
jurisdiction, asking that their side be heard, and that the addressees
suspend and temporarily hold in abeyance all and any part of your
operations with respect to the San Mateo Landfill Dumpsite. No action
was taken on these letters.
It turns out that the land subject of the MOA of 17 November 1988 and
owned by the DENR was part of the Marikina Watershed Reservation
Area.
Memorandum by the CENRO
Thus, on 31 May 1989, forest officers of the Forest Engineering and
Infrastructure Unit of the Community Environment and Natural Resource
Office, (CENRO) DENR-IV, Rizal Province, submitted a Memorandum on
the On-going Dumping Site Operation of the MMC inside the Upper
Portion of Marikina Watershed Reservation, located at Barangay Pintong
Bocaue, San Mateo, Rizal, and nearby localities. Said Memorandum reads
in part:
Observations:
3.1 The subject area is arable and agricultural in nature;
3.2 Soil type and its topography are favorable for agricultural and
forestry productions;
...
3.5 Said Dumping Site is observed to be confined within the said
Watershed Reservation, bearing in the northeastern part of Lungsod
Silangan Townsite Reservation. Such illegal Dumping site operation
inside the Watershed Reservation is in violation of P.D. 705,
otherwise known as the Revised Forestry Code, as amended. . .
Recommendations:
5.1 The MMC Dumping Site Inside Marikina Watershed Reservation,
particularly at Brgy. Pintong Bocaue, San Mateo, Rizal and at Bo. Pinugay,
Baras/Antipolo, Rizal which are the present garbage zones must totally
be stopped and discouraged without any political intervention and
delay in order to save our healthy ecosystems found therein, to
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
avoid much destruction, useless efforts and loss of millions of public
funds over the land in question; (emphasis by Court)
Investigation Report 1
On 19 June 1989, the CENRO submitted another Investigation Report to
the Regional Executive Director which states in part that:
1. About two hectares had been excavated by bulldozers and garbage
dumping operations are going on.
2. The dumping site is without the concurrence of the Provincial
Governor, Rizal Province and without any permit from DENR who has
functional jurisdiction over the Watershed Reservation; and
3. About 1,192 families residing and cultivating areas covered by four
barangays surrounding the dumping site will adversely be affected by
the dumping operations of MMC including their sources of domestic
water supply. x x x x
Investigation Report 2
On 22 January 1990, the CENRO submitted still another Investigation
Report to the Regional Executive Director which states that:
Findings show that the areas used as Dumping Site of the MMC are
found to be within the Marikina Watershed which are part of the
Integrated Social Forestry Project (ISF) as per recorded inventory of
Forest Occupancy of this office.
It also appears that as per record, there was no permit issued to the
MMC to utilize these portions of land for dumping purposes.
It is further observed that the use of the areas as dumping site greatly
affects the ecological balance and environmental factors in this
community.
Grant of an Environmental Compliance Certificate
On 19 February 1990, the DENR Environmental Management Bureau,
through Undersecretary for Environment and Research Celso R. Roque,
granted the Metro Manila Authority (MMA [formerly MMC]) an
Environmental Compliance Certificate (ECC) for the operation of a two-
and-a-half-hectare garbage dumpsite.
The ECC was sought and granted to comply with the requirement of
Presidential Decree No. 1586, establishing an Environmental Impact
Statement System, Section 4 of which states in part that, no persons,
partnership or corporation shall undertake or operate any such declared
environmentally critical project or area without first securing an
Environmental Compliance Certificate.
Proclamation No. 2146, passed on 14 December 1981, designates all
areas declared by law as national parks, watershed reserves, wildlife
preserves, and sanctuaries as Environmentally Critical Areas.
LLDA’s letter to the MMA
On 09 March 1990, respondent Laguna Lake Development Authority
(LLDA), through its Acting General Manager, sent a letter to the MMA,
which reads in part:
Through this letter we would like to convey our reservation on the choice
of the sites for solid waste disposal inside the watershed of Laguna Lake.
As you may already know, the Metropolitan Waterworks and
Sewerage System (MWSS) has scheduled the abstraction of water
from the lake to serve the needs of about 1.2 million residents of
Muntinlupa, Paranaque, Las Pinas, and Bacoor, Cavite by
1992. Accordingly, the Laguna Lake Development Authority (LLDA) is
accelerating its environmental management program to upgrade the
water quality of the lake in order to make it suitable as a source of
domestic water supply the whole year round. The said program
regards dumpsites as incompatible within the watershed because of
the heavy pollution, including the risk of diseases, generated by such
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activities which would negate the governments efforts to upgrade
the water quality of the lake. Consequently, please consider our
objection to the proposed location of the dumpsites within the
watershed. (Emphasis supplied by petitioners)
Roque’s suspension of the ECC
On 31 July 1990, less than six months after the issuance of the ECC,
Undersecretary Roque suspended the ECC in a letter addressed to the
respondent Secretary of DPWH, stating in part that:
Upon site investigation conducted by Environmental Management
Bureau staff on development activities at the San Mateo Landfill Site, it
was ascertained that ground slumping and erosion have resulted
from improper development of the site. We believe that this will
adversely affect the environmental quality in the area if the proper
remedial measures are not instituted in the design of the landfill site. This
is therefore contradictory to statements made in the Environmental
Impact Statement (EIS) submitted that above occurrences will be
properly mitigated.
In view of this, we are forced to suspend the Environmental
Compliance Certificate (ECC) issued until appropriate modified plans
are submitted and approved by this Office for
implementation. (Emphasis by the Court)
Letter to President Ramos
On 21 June 1993, the Acting Mayor of San Mateo, Enrique Rodriguez,
Jr., Barangay Captain Dominador Vergara, and petitioner Rolando E.
Villacorte, Chairman of the Pintong Bocaue Multipurpose Cooperative
(PBMC) wrote then President Fidel V. Ramos expressing their objections
to the continued operation of the MMA dumpsite for causing unabated
pollution and degradation of the Marikina Watershed Reservation.
Investigation Report 3
On 14 July 1993, another Investigation Report submitted by the Regional
Technical Director to the DENR Undersecretary for Environment and
Research contained the following findings and recommendations:
Remarks and findings:
xxx
5. Interview with Mr. Dayrit, whose lot is now being endangered
because soil erosion has caused severe siltation and sedimentation of
the Dayrit Creek which water is greatly polluted by the dumping of
soil bulldozed to the creek;
6. Also interview with Mrs. Vilma Montajes, the multi-grade teacher of
Pintong Bocaue Primary School which is located only about 100
meters from the landfill site. She disclosed that bad odor has greatly
affected the pupils who are sometimes sick with respiratory illnesses.
These odors show that MMA have (sic) not instituted/sprayed any
disinfectant chemicals to prevent air pollution in the area. Besides large
flies (Bangaw) are swarming all over the playground of the school. The
teacher also informed the undersigned that plastic debris are being
blown whenever the wind blows in their direction.
7. As per investigation report there are now 15 hectares being used as
landfill disposal sites by the MMA. The MMA is intending to expand
its operation within the 50 hectares.
8. Lots occupied within 50 hectares are fully planted with fruit
bearing trees like Mangoes, Santol, Jackfruit, Kasoy, Guyabano,
Kalamansi and Citrus which are now bearing fruits and being harvested
and marketed to nearby San Mateo Market and Masinag Market in
Antipolo.
....
Recommendations:
1. As previously recommended, the undersigned also strongly
recommend(s) that the MMA be made to relocate the landfill site
because the area is within the Marikina Watershed Reservation and
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
Lungsod Silangan. The leachate treatment plant has been eroded twice
already and contaminated the nearby creeks which is the source of
potable water of the residents. The contaminated water also flows to
Wawa Dam and Boso-boso River which also flows to Laguna de Bay.
2. The proposed Integrated Social Forestry Project be pushed through or
be approved. ISF project will not only uplift the socio-economic
conditions of the participants but will enhance the rehabilitation of the
Watershed considering that fruit bearing trees are vigorously growing in
the area. Some timber producing species are also planted like Mahogany
and Gmelina Arboiea. There are also portions where dipterocarp
residuals abound in the area.
3. The sanitary landfill should be relocated to some other area, in
order to avoid any conflict with the local government of San Mateo and
the nearby affected residents who have been in the area for almost 10-
20 years.
DENR Secretary Alcala’s letter to MMA Chairman Mathay. Jr.
On 16 November 1993, DENR Secretary Angel C. Alcala sent MMA
Chairman Ismael A. Mathay, Jr. a letter stating that after a series of
investigations by field officials of the DENR, the agency realized that
the MOA entered into on 17 November 1988 is a very costly error
because the area agreed to be a garbage dumpsite is inside the
Marikina Watershed Reservation.
He then strongly recommended that all facilities and infrastructure in
the garbage dumpsite in Pintong Bocaue be dismantled, and the
garbage disposal operations be transferred to another area outside
the Marikina Watershed Reservation to protect the health and general
welfare of the residents of San Mateo in particular and the residents of
Metro Manila in general.
Petitioner Villacorte’s letter to President Ramos
On 06 June 1995, petitioner Villacorte, Chairman of the PBMC,
wrote President Ramos, through the Executive Secretary, informing the
President of the issues involved:
• that the dumpsite is located near three public elementary schools,
the closest of which is only fifty meters away, and
• that its location violates the municipal zoning ordinance of San
Mateo and,
• in truth, the Housing and Land Use Regulatory Board had denied the
then MMA chairman’s application for a locational clearance on this
ground.
Sangguniang Bayan of San Mateo’s Resolution
On 21 August 1995, the Sangguniang Bayan of San Mateo issued a
Resolution expressing a strong objection to the planned expansion of
the landfill operation in Pintong Bocaue and requesting President
Ramos to disapprove the draft Presidential Proclamation segregating
71.6 Hectares from Marikina Watershed Reservation for the landfill
site in Pintong Bocaue, San Mateo, Rizal.
Proclamation No. 635
Despite the various objections and recommendations raised by the
government agencies aforementioned, the Office of the President,
through Executive Secretary Ruben Torres, signed and issued
Proclamation No. 635 on 28 August 1995, Excluding from the Marikina
Watershed Reservation Certain Parcels of Land Embraced Therein for
Use as Sanitary Landfill Sites and Similar Waste Disposal Under the
Administration of the Metropolitan Manila Development Authority.
PAWB letter to DENR
On 06 September 1995, Director Wilfrido S. Pollisco of the Protected
Areas and Wildlife Bureau wrote the DENR Secretary to express the
bureaus stand against the dumpsite at Pintong Bocaue, and that it is our
view . . . that the mere presence of a garbage dumpsite inside a watershed
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reservation is definitely not compatible with the very purpose and
objectives for which the reservation was established.
Petitioners’ letter to President Ramos
On 24 November 1995, the petitioners Municipality of San Mateo and
the residents of Pintong Bocaue, represented by former Senator Jovito
Salonga, sent a letter to President Ramos requesting him to reconsider
Proclamation No. 635. Receiving no reply, they sent another letter on 02
January 1996 reiterating their previous request.
On 04 March 1996, then chairman of the Metro Manila Development
Authority (MMDA [formerly MMA]) Prospero I. Oreta addressed a letter
to Senator Salonga, stating in part that:
2. Considering the circumstances under which we are pursuing the
project, we are certain you will agree that, unless we are prepared
with a better alternative, the project simply has to be pursued in the
best interest of the greater majority of the population, particularly
their health and welfare.
2.1 The San Mateo Sanitary Landfill services, at least, 38% of the waste
disposal site requirements of Metro Manila where an estimated 9 million
population reside.
2.2 Metro Manila is presently estimated to be generating, at least, 15,700
cubic meters of household or municipal waste, a 1.57 hectare of land
area will be filled in a months time with a pile 31 meters high of garbage,
or in a year, the accumulated volume will require 18.2 hectares.
4. The sanitary landfill projects are now on their fifth year of
implementation. The amount of effort and money already invested
in the project by the government cannot easily be disregarded,
much more set aside in favor of the few settlers/squatters who
chose to ignore the earlier notice given to them that the area would
be used precisely for the development of waste disposal sites, and
are now attempting to arouse opposition to the project.
4.2 There is no place within the jurisdiction of Metro Manila, with an area
big enough to accommodate at least 3 to 5 years of waste disposal
requirements. x x x x
4.21 The present site at San Mateo was selected because, at the time
consideration was being made, and up to the present, it is found to have
the attributes that positively respond to the criteria established:
4.21.1 The site was a government property and would not require any
outlay for it to be acquired.
4.21.2 It is far from any sizeable community/settlements that could be
affected by the development that would be introduced and yet, was
within economic hauling distance from the areas they are designed to
serve.
4.21.21 At the time it was originally decided to locate the landfills at the
present site, there were not more that fifteen (15) settlers in the area and
they had hardly established themselves. The community settlements
were located far from the site.
4.21.22 The area was hardly accessible, especially to any public transport.
The area was being served by a public utility jeep that usually made only
two trips daily. During the rainy season, it could only be reached by
equipping the vehicle with tire chains to traverse the slippery muddy trail
roads.
4.21.3 There was, at least, seventy-three (73) hectares available at the site.
4.3 While the site was within the Marikina Watershed Reservation under
the administration of the DENR, the site was located at the lower
periphery of the buffer zone; was evaluated to be least likely to affect the
underground water supply; and could, in fact, be excluded from the
reservation.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
4.31 It was determined to be far from the main water containment area
for it to pose any immediate danger of contaminating the underground
water, in case of a failure in any of the mitigating measures that would
be installed.
4.32 It was likewise too far from the nearest body of water, the Laguna
Lake, and the distance, plus the increasing accumulation of water from
other tributaries toward the lake, would serve to dilute and mitigate any
contamination it may emit, in case one happened.
4.33 To resolve the recurring issue regarding its being located within the
Marikina Watershed Reservation, the site had been recommended by the
DENR, and approved by the President, to already be excluded from the
Marikina Watershed reservation and placed under the administration of
MMDA, since the site was deemed to form part of the land resource
reserve then commonly referred to as buffer zone.
5. Contrary to the impression that you had been given, relocating the site
at this point and time would not be easy, if not impracticable, because
aside from the investments that had been made in locating the present
site, further investments have been incurred in:
5.1 The conduct of the technical studies for the development being
implemented. Through a grant-in-aid from the World Bank, US$600,000
was initially spent for the conduct of the necessary studies on the area
and the design of the landfill. This was augmented by, at least, another
P1.5 million from the government for the studies to be completed, or a
total cost at the time (1990) of approximately P20 million.
5.2. Additionally, the government has spent approximately P33 million
in improving on the roadway to make the site accessible from the main
road/highway.
5.3 To achieve the necessary economies in the development of the site,
the utilities had been planned so that their use could be maximized.
These include the access roads, the drainage system, the leacheate
collection system, the gas collection system, and the waste water
treatment system. Their construction are designed so that instead of
having to construct independent units for each area, the use of existing
facilities can be maximized through a system of interconnection. On the
average, the government is spending P14.8 million to develop a hectare
of sanitary landfill area.
6. Despite the preparations and the investments that are now being
made on the project, it is estimated that the total available area, at an
accelerated rate of disposal, assuming that all open dump sites were to
be closed, will only last for 39 months.
6.1 We are still hard pressed to achieve advanced development on the
sites to assure against any possible crisis in garbage from again being
experienced in Metro Manila, aside from having to look for the additional
sites that may be used after the capacities shall have been exhausted.
6.2 Faced with the prospects of having the 15,700 cubic meters of
garbage generated daily strewn all over Metro Manila, we are certain you
will agree that it would be futile to even as much as consider a
suspension of the waste disposal operations at the sanitary landfills.
Petition before the CA
On 22 July 1996, the petitioners filed before the Court of Appeals a civil
action for certiorari, prohibition and mandamus with application for a
temporary restraining order/writ of preliminary injunction. The hearing on
the prayer for preliminary injunction was held on 14 August 1996.
CA: On 13 June 1997, the court a quo rendered a Decision denying the
petition for lack of cause of action. Hence, this petition.
Events while appeal was pending
On 05 January 1998, while the appeal was pending, the petitioners filed a
Motion for Temporary Restraining Order, pointing out that the effects
of the El Nio phenomenon would be aggravated by the relentless
destruction of the Marikina Watershed Reservation. They noted that
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respondent MMDA had, in the meantime, continued to expand the area
of the dumpsite inside the Marikina Watershed Reservation, cutting down
thousands of mature fruit trees and forest trees, and leveling hills and
mountains to clear the dumping area. Garbage disposal operations were
also being conducted on a 24-hour basis, with hundreds of metric tons of
wastes being dumped daily, including toxic and infectious hospital wastes,
intensifying the air, ground and water pollution.[18]
The petitioners reiterated their prayer that respondent MMDA be
temporarily enjoined from further dumping waste into the site and from
encroaching into the area beyond its existing perimeter fence so as not to
render the case moot and academic.
On 28 January 1999, the petitioners filed a Motion for Early Resolution,
calling attention to the continued expansion of the dumpsite by the
MMDA that caused the people of Antipolo to stage a rally and barricade
the Marcos Highway to stop the dump trucks from reaching the site for
five successive days from 16 January 1999. On the second day of the
barricade, all the municipal mayors of the province of Rizal openly
declared their full support for the rally, and notified the MMDA that they
would oppose any further attempt to dump garbage in their province.[20]
As a result, MMDA officials, headed by then Chairman Jejomar Binay,
agreed to abandon the dumpsite after six months. Thus, the municipal
mayors of Rizal, particularly the mayors of Antipolo and San Mateo,
agreed to the use of the dumpsite until that period, which would end on
20 July 1999.[21]
On 13 July 1999, the petitioners filed an Urgent Second Motion for Early
Resolution in anticipation of violence between the conflicting parties as
the date of the scheduled closure of the dumpsite neared.
President Estrada’s Memorandum for closure of the dumpsite
On 19 July 1999, then President Joseph E. Estrada, taking cognizance of
the gravity of the problems in the affected areas and the likelihood that
violence would erupt among the parties involved, issued a Memorandum
ordering the closure of the dumpsite on 31 December 2000.
Accordingly, on 20 July 1999, the Presidential Committee on Flagship
Programs and Projects and the MMDA entered into a MOA with the
Provincial Government of Rizal, the Municipality of San Mateo, and
the City of Antipolo, wherein the latter agreed to further extend the use
of the dumpsite until its permanent closure on 31 December 2000.
Reopening of the dumpsite
On 11 January 2001, President Estrada directed Department of Interior
and Local Government Secretary Alfredo Lim and MMDA Chairman
Binay to reopen the San Mateo dumpsite in view of the emergency
situation of uncollected garbage in Metro Manila, resulting in a critical
and imminent health and sanitation epidemic.
Urgent Petition for Restraining Order
Claiming the above events constituted a clear and present danger of
violence erupting in the affected areas, the petitioners filed an Urgent
Petition for Restraining Order on 19 January 2001.
On 24 January 2001, this Court issued the Temporary Restraining Order
prayed for, effective immediately and until further orders.
R.A. No. 9003 signed into law
Meanwhile, on 26 January 2001, Republic Act No. 9003, otherwise known
as The Ecological Solid Waste Management Act of 2000, was signed
into law by President Estrada.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
Issues:
1. Whether or not the permanent closure of the San Mateo landfill is
mandated by R.A. No. 9003. [Yes]
2. Whether or not Proclamation No. 365 is illegal. [Yes]
Ruling: The Court holds that the San Mateo Landfill will remain
permanently closed.
The law and the facts indicate that a mere MOA does not guarantee the
dumpsites permanent closure.
Recap of the facts
The rally and barricade staged by the people of Antipolo on 28 January
1999, with the full support of all the mayors of Rizal Province caused the
MMDA to agree that it would abandon the dumpsite after six months. In
return, the municipal mayors allowed the use of the dumpsite until 20 July
1999.
On 20 July 1999, with much fanfare and rhetoric, the Presidential
Committee on Flagship Programs and Projects and the MMDA entered
into a MOA with the Provincial Government of Rizal, the Municipality of
San Mateo, and the City of Antipolo, whereby the latter agreed to an
extension for the use of the dumpsite until 31 December 2000, at which
time it would be permanently closed.
Despite this agreement, President Estrada directed Department of Interior
and Local Government Secretary Alfredo Lim and MMDA Chairman Binay
to reopen the San Mateo dumpsite on 11 January 2001, in view of the
emergency situation of uncollected garbage in Metro Manila, resulting in
a critical and imminent health and sanitation epidemic; our issuance
of a TRO on 24 January 2001 prevented the dumpsites reopening.
Freedom of contract is not absolute
Were it not for the TRO, then President Estrada’s instructions would have
been lawfully carried out, for as we observed in Oposa v. Factoran, the
freedom of contract is not absolute. Thus:
.. In Abe vs. Foster Wheeler Corp., this Court stated: "The freedom of
contract, under our system of government, is not meant to be
absolute. The same is understood to be subject to reasonable legislative
regulation aimed at the promotion of public health, moral, safety and
welfare. In other words, the constitutional guaranty of non-impairment of
obligations of contract is limited by the exercise of the police power of the
State, in the interest of public health, safety, moral and general
welfare." The reason for this is emphatically set forth in Nebia vs. New
York, quoted in Philippine American Life Insurance Co. vs. Auditor
General, to wit: "'Under our form of government the use of property and
the making of contracts are normally matters of private and not of public
concern. The general rule is that both shall be free of governmental
interference. But neither property rights nor contract rights are absolute;
for government cannot exist if the citizen may at will use his property to
the detriment of his fellows, or exercise his freedom of contract to work
them harm. Equally fundamental with the private right is that of the public
to regulate it in the common interest.'" In short, the non-impairment
clause must yield to the police power of the state. (Citations omitted,
emphasis supplied)
Two important facts
The Court thus feels there is also the added need to reassure the residents
of the Province of Rizal that this is indeed a final resolution of this
controversy, for a brief review of the records of this case indicates two
self-evident facts.
1. First, the San Mateo site has adversely affected its environs, and
2. Second, sources of water should always be protected.
First point
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As to the first point, the adverse effects of the site were reported as early
as 19 June 1989, when the Investigation Report of the Community
Environment and Natural Resources Officer of DENR-IV-1 stated that the
sources of domestic water supply of over one thousand families would be
adversely affected by the dumping operations.
The succeeding report included the observation that the use of the areas
as dumping site greatly affected the ecological balance and
environmental factors of the community.
Respondent LLDA in fact informed the MMA that the heavy pollution and
risk of disease generated by dumpsites rendered the location of a
dumpsite within the Marikina Watershed Reservation incompatible with
its program of upgrading the water quality of the Laguna Lake.
The DENR suspended the sites ECC after investigations revealed ground
slumping and erosion had resulted from improper development of the
site.
Another Investigation Report submitted by the Regional Technical
Director to the DENR reported respiratory illnesses among pupils of a
primary school located approximately 100 meters from the site, as well as
the constant presence of large flies and windblown debris all over the
schools playground. It further reiterated reports that the leachate
treatment plant had been eroded twice already, contaminating the nearby
creeks that were sources of potable water for the residents. The
contaminated water was also found to flow to the Wawa Dam and
Boso-boso River, which in turn empties into Laguna de Bay.
Second point
This brings us to the second self-evident point. Water is life, and must
be saved at all costs. In Collado v. Court of Appeals, we had occasion to
reaffirm our previous discussion in Sta. Rosa Realty Development
Corporation v. Court of Appeals, in the primordial importance of watershed
areas, thus:
The most important product of a watershed is water, which is one
of the most important human necessities. The protection of
watersheds ensures an adequate supply of water for future generations
and the control of flashfloods that not only damage property but also
cause loss of lives. Protection of watersheds is an intergenerational
responsibility that needs to be answered now.
National Water Crisis Act
Three short months before Proclamation No. 635 was passed to avert the
garbage crisis, Congress had enacted the National Water Crisis Act to
adopt urgent and effective measures to address the nationwide water
crisis which adversely affects the health and well-being of the
population, food production, and industrialization process. One of the
issues the law sought to address was the protection and conservation
of watersheds.
In other words, while respondents were blandly declaring that the reason
for the creation of the Marikina Watershed Reservation, i.e., to protect
Marikina River as the source of water supply of the City of Manila, no
longer exists, the rest of the country was gripped by a shortage of potable
water so serious, it necessitated its own legislation.
Respondents’ actions in the face of such grave environmental
consequences defy all logic.
The petitioners rightly noted that instead of providing solutions, they
have, with unmitigated callousness, worsened the problem. It is this
readiness to wreak irrevocable damage on our natural heritage in pursuit
of what is expedient that has compelled us to rule at length on this issue.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
The Court ignores the unrelenting depletion of our natural heritage at our
peril.
I.
THE REORGANIZATION ACT OF THE DENR DEFINES AND
LIMITS ITS POWERS OVER THE COUNTRY’S NATURAL RESOURCES
Contention: The respondents next point out that the Marikina Watershed
Reservation, and thus the San Mateo Site, is located in the public domain.
They allege that as such, neither the Province of Rizal nor the municipality
of San Mateo has the power to control or regulate its use since properties
of this nature belong to the national, and not to the local governments.
Held: It is ironic that the respondents should pursue this line of
reasoning.
Regalian Doctrine
In Cruz v. Secretary of Environment and Natural Resources, the Court had
occasion to observe that one of the fixed and dominating objectives of
the 1935 Constitutional Convention was the nationalization and
conservation of the natural resources of the country. There was an
overwhelming sentiment in the convention in favor of the principle of
state ownership of natural resources and the adoption of the Regalian
doctrine. State ownership of natural resources was seen as a necessary
starting point to secure recognition of the state’s power to control their
disposition, exploitation, development, or utilization.
The Regalian doctrine was embodied in the 1935 Constitution, in Section
1 of Article XIII on Conservation and Utilization of Natural Resources. This
was reiterated in the 1973 Constitution under Article XIV on the National
Economy and the Patrimony of the Nation, and reaffirmed in the 1987
Constitution in Section 2 of Article XII on National Economy and Patrimony.
Clearly, the state is, and always has been, zealous in preserving as much
of our natural and national heritage as it can, enshrining as it did the
obligation to preserve and protect the same within the text of our
fundamental law.
It was with this objective in mind that the respondent DENR was mandated
by then President Corazon C. Aquino, under Section 4 of Executive Order
No. 192, otherwise known as The Reorganization Act of the Department
of Environment and Natural Resources, to be the primary government
agency responsible for the conservation, management, development,
and proper use of the country’s environment and natural resources,
specifically forest and grazing lands, mineral resources, including those
in reservation and watershed areas, and lands of the public domain. It
is also responsible for the licensing and regulation of all natural resources
as may be provided for by law in order to ensure equitable sharing of
the benefits derived therefrom for the welfare of the present and
future generations of Filipinos.
The Court expounded on this matter in the landmark case of Oposa v.
Factoran, where the Court held that the right to a balanced and
healthful ecology is a fundamental legal right that carries with it the
correlative duty to refrain from impairing the environment.
This right implies, among other things, the judicious management and
conservation of the country’s resources, which duty is reposed in the
DENR under the aforequoted Section 4 of Executive Order No. 192.
With great power comes great responsibility. It is the height of irony that
the public respondents have vigorously arrogated to themselves the
power to control the San Mateo site, but have deftly ignored their
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corresponding responsibility as guardians and protectors of this
tormented piece of land.
II.
THE LOCAL GOVERNMENT CODE GIVES TO LOCAL GOVERNMENT
UNITS ALL THE NECESSARY POWERS TO PROMOTE THE GENERAL
WELFARE OF THEIR INHABITANTS
The circumstances under which Proclamation No. 635 was passed
also violates R.A. No. 7160, or the Local Government Code.
Contrary to the averment of the respondents, Proclamation No. 635, which
was passed on 28 August 1995, is subject to the provisions of the Local
Government Code, which was approved four years earlier, on 10 October
1991.
The municipal mayors acted within the scope of their powers, and were in
fact fulfilling their mandate, when they did this. Section 16 allows every
local government unit to exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers necessary, appropriate,
or incidental for its efficient and effective governance, and those which
are essential to the promotion of the general welfare, which involve,
among other things, promot(ing) health and safety, enhance(ing) the
right of the people to a balanced ecology, and preserv(ing) the
comfort and convenience of their inhabitants.
Moreover, Section 447, which enumerates the powers, duties and
functions of the municipality, grants the sangguniang bayan the power to,
among other things, enact ordinances, approve resolutions and
appropriate funds for the general welfare of the municipality and its
inhabitants pursuant to Section 16 of the Code.
Two requisites before a national that affects local communities can
be implemented
Under the Local Government Code, therefore, two requisites must be met
before a national project that affects the environmental and ecological
balance of local communities can be implemented:
prior consultation with the affected local communities, and
prior approval of the project by the appropriate sanggunian. Absent
either of these mandatory requirements, the projects implementation is
illegal.
III.
WASTE DISPOSAL IS REGULATED BY THE ECOLOGICAL
SOLID WASTE MANAGEMENT ACT OF 2000
The respondents would have us overlook all the abovecited laws because
the San Mateo site is a very expensive - and necessary - fait accompli5.
Contention: The respondents cite the millions of pesos and hundreds of
thousands of dollars the government has already expended in its
development and construction, and the lack of any viable alternative sites.
Held: The Court acknowledges that these are valid concerns. Nevertheless,
the lower court should have been mindful of the legal truism that it is the
legislature, by its very nature, which is the primary judge of the necessity,
adequacy, wisdom, reasonableness and expediency of any law.
Moreover, these concerns are addressed by R.A. No. 9003. Approved on
26 January 2001, The Ecological Solid Waste Management Act of 2000
was enacted pursuant to the declared policy of the state to adopt a
systematic, comprehensive and ecological solid waste management
system which shall ensure the protection of public health and
5
Fait accompli – a thing that has already happened or been decided before those
affected hear about it, leaving them with no option but to accept it.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
environment, and utilize environmentally sound methods that
maximize the utilization of valuable resources and encourage
resource conservation and recovery.
It requires the adherence to a Local Government Solid Waste
Management Plan with regard to the collection and transfer, processing,
source reduction, recycling, composting and final disposal of solid wastes,
the handling and disposal of special wastes, education and public
information, and the funding of solid waste management projects.
National Solid Waste Management Framework
The said law mandates the formulation of a National Solid Waste
Management Framework, which should include, among other things,
the method and procedure for the phaseout and the eventual closure
within eighteen months from effectivity of the Act in case of existing open
dumps and/or sanitary landfills located within an aquifer,
groundwater reservoir, or watershed area.
Any landfills subsequently developed must comply with the minimum
requirements laid down in Section 40, specifically that the site
selected must be consistent with the overall land use plan of the local
government unit, and that the site must be located in an area where
the landfills operation will not detrimentally affect environmentally
sensitive resources such as aquifers, groundwater reservoirs or
watershed areas.
Proclamation No. 635 is illegal
This writes finis to any remaining aspirations respondents may have of
reopening the San Mateo Site. Having declared Proclamation No. 635
illegal, the Court sees no compelling need to tackle the remaining issues
raised in the petition and the parties respective memoranda.
A final word – Laws pertaining to the protection of the environment
were not drafted in a vacuum.
Congress passed these laws fully aware of the perilous state of both our
economic and natural wealth. It was precisely to minimize the adverse
impact humanity’s actions on all aspects of the natural world, at the same
time maintaining and ensuring an environment under which man and
nature can thrive in productive and enjoyable harmony with each other,
that these legal safeguards were put in place. They should thus not be so
lightly cast aside in the face of what is easy and expedient.
Dispositive portion: Wherefore, the petition is granted. The Decision of
the Court of Appeals is reversed and set aside. The temporary restraining
order issued by the Court on 24 January 2001 is hereby made permanent.
Clean Water Act of 2004 (R.A. 9275)
ARTICLE 2
DEFINITION OF TERMS
Section 4. Definition of Terms. - As used in this Act:
a) Aquifer - means a layer of water-bearing rock located underground
that transmits water in sufficient quantity to supply pumping wells or
natural springs.
c) Beneficial use - means the use of the environment or any element or
segment thereof conducive to public or private welfare, safety and health;
and shall include, but not be limited to, the use of water for domestic,
municipal, irrigation, power generation, fisheries, livestock raising,
industrial, recreational and other purposes.
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1. Use of water for domestic purposes - means the utilization of
water for drinking, washing, bathing, cooking or other
household needs, home gardens and watering of lawns or
domestic animals;
2. Use of water for municipal purposes - means the utilization
of water for supplying water requirements of the community;
3. Use of water for irrigation - means the utilization of water for
producing agricultural crops;
4. Use of water for power generation - means the utilization of
water for producing electrical or mechanical power;
5. Use of water for fisheries - means the utilization of water for
the propagation of culture of fish as a commercial enterprise;
6. Use of water for livestock raising - means the utilization of
water for large herds or flocks of animals raised as a commercial
enterprise;
7. Use of water for industrial purposes - means the utilization of
water in factories, industrial plants and mines, including the use
of water as an ingredient of a finished product; and
8. Use of water for recreational purposes - means the utilization
of water for swimming pools, bath houses, boating, water
skiing, golf courses and other similar facilities in resorts and
other places of recreation.
m) Effluent - means discharge from known sources which is passed into
a body of water or land, or wastewater flowing out of a manufacturing
plant, industrial plant including domestic, commercial and recreational
facilities.
n) Effluent standard - means any legal restriction or limitation on
quantities, rates, and/or concentrations or any combination thereof, of
physical, chemical or biological parameters of effluent which a person or
point source is allowed to discharge into a body of water or land.
Section 14. Discharge Pemits. - The Department shall require owners or
operators of facilities that discharge regulated effluents pursuant to this
Act to secure a permit to discharge. The discharge permit shall be the legal
authorization granted by the Department to discharge wastewater:
Provided, That the discharge permit shall specify among others, the
quantity and quality of effluent that said facilities are allowed to discharge
into a particular water body, compliance schedule and monitoring
requirement.
As part of the permitting procedure, the Department shall encourage the
adoption of waste minimization and waste treatment technologies when
such technologies are deemed cost effective. The Department shall also
develop procedures to relate the current water quality guideline or the
projected water quality guideline of the receiving water body/ies with
total pollution loadings from various sources, so that effluent quotas can
be properly allocated in the discharge permits. For industries without any
discharge permit, they may be given a period of twelve {12) months after
the effectivity of the implementing rules and regulations promulgated
pursuant to this Act, to secure a discharge permit.
Effluent trading may be allowed per management area.
CHAPTER 5
CIVIL LIABILITY/PENAL PROVISIONS
Section 27. Prohibited Acts. - The following acts are hereby prohibited:
a. Discharging, depositing or causing to be deposited material of any
kind directly or indirectly into the water bodies or along the margins
of any surface water, where, the same shall be liable to be washed
into such surface water, either by tide action or by storm, floods or
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from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
otherwise, which could cause water pollution or impede natural flow
in the water body;
b. Discharging, injecting or allowing to seep into the soil or sub-soil any
substance in any form that would pollute groundwater. In the case
of geothermal projects, and subject to the approval of the
Department, regulated discharge for short- term activities (e.g. well
testing, flushing, commissioning, venting) and deep re-injection of
geothermal liquids may be allowed: Provided, That safety measures
are adopted to prevent the contamination of the groundwater;
c. Operating facilities that discharge regulated water pollutants without
the valid required permits or after the permit was revoked for any
violation of any condition therein;
d. Disposal of potentially infectious medical waste into sea water by
vessels unless the health or safety of individuals on board the vessel
is threatened by a great and imminent peril;
e. Unauthorized transport or dumping into sea waters of sewage
sludge or solid waste as defined under Republic Act No.9003;
f. Transport, dumping or discharge of prohibited chemicals,
substances or pollutants listed under Republic Act No.6969;
g. Operate facilities that discharge or allow to seep, willfully or through
gross negligence, prohibited chemicals, substances or pollutants
listed under R. A. No. 6969 into water bodies or wherein the same
shall be liable to be washed into such surface, ground, coastal, and
marine water;
h. Undertaking activities or development and expansion of projects, or
operating wastewater/sewerage facilities in violation of Presidential
Decree. No.1586 and its implementing rules, and regulations;
i. Discharging regulated water pollutants without the valid required
discharge permit pursuant to this Act or after the permit was revoked
for any violation of condition therein;
j. Non-compliance of the LGU with the Water Quality Framework and
Management Area Action Plan. In such a case, sanctions shall be
imposed on the local government officials concerned;
k. Refusal to allow entry, inspection and monitoring by the Department
in accordance with this Act;
l. Refusal to allow access by the Department to relevant reports and
records in accordance with this Act;
m. Refusal or failure to submit reports whenever required by the
Department in accordance with this Act;
n. Refusal or failure to designate pollution control officers whenever
required by, the Department in accordance with this Act; and
o. Directly using booster pumps in the distribution system or tampering
with the water supply in such a way as to alter or impair the water
quality.
STA. ROSA REALTY DEVELOPMENT CORPORATION vs. COURT
OF APPEALS, AMANTE, et. al. (2001)
Overview: The case before the Court is a petition for review
on certiorari of the decision of the Court of Appeals affirming the decision
of the Department of Agrarian Reform Adjudication Board (DARAB),
ordering the compulsory acquisition of petitioners property under the
Comprehensive Agrarian Reform Program (CARP).
Facts: Petitioner Sta. Rosa Realty Development Corporation (SRRDC)
was the registered owner of two parcels of land, situated at Barangay
Casile, Cabuyao, Laguna covered by TCT Nos. 81949 and 84891, with a
total area of 254.6 hectares.
According to petitioner, the parcels of land are watersheds, which
provide clean potable water to the Canlubang community, and that
ninety light industries are now located in the area.
Petitioner alleged that respondents Amante, et. al. usurped its rights
over the property, thereby destroying the ecosystem.
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Civil case by respondents
Sometime in December 1985, respondents filed a civil case with the
Regional Trial Court, Laguna, seeking an easement of a right of way to
and from Barangay Casile.
Counterclaim and ejectment suit by petitioner
By way of counterclaim, however, petitioner sought the ejectment of
private respondents.
Complaints for forcible entry
In October 1986 to August 1987, petitioner filed with the Municipal Trial
Court, Cabuyao, Laguna separate complaints for forcible entry against
respondents.
Respondents petition before the DAR
After the filing of the ejectment cases, respondents petitioned the
Department of Agrarian Reform (DAR) for the compulsory acquisition
of the SRRDC property under the CARP.
Conference
On August 11, 1989, the Municipal Agrarian Reform Officer (MARO) of
Cabuyao, Laguna issued a notice of coverage to petitioner and invited
its officials or representatives to a conference on August 18, 1989.
During the meeting, the following were present: representatives of
petitioner, the Land Bank of the Philippines, PARCCOM, PARO of Laguna,
MARO of Laguna, the BARC Chairman of Barangay Casile and some
potential farmer beneficiaries, who are residents of Barangay Casile,
Cabuyao, Laguna. It was the consensus and recommendation of the
assembly that the landholding of SRRDC be placed under compulsory
acquisition.
On August 17, 1989, petitioner filed with the MARO, Cabuyao, Laguna a
Protest and Objection to the compulsory acquisition of the property
on the ground that the area was not appropriate for agricultural
purposes. The area was rugged in terrain with slopes of 18% and above
and that the occupants of the land were squatters, who were not entitled
to any land as beneficiaries.
On August 29, 1989, the farmer beneficiaries together with the BARC
chairman answered the protest and objection stating that the slope of the
land is not 18% but only 5-10% and that the land is suitable and
economically viable for agricultural purposes, as evidenced by the
Certification of the Department of Agriculture, municipality of Cabuyao,
Laguna.
On September 8, 1989, MARO Belen dela Torre made a summary
investigation report and forwarded the Compulsory Acquisition Folder
Indorsement (CAFI) to the Provincial Agrarian Reform Officer
(hereafter, PARO).
On September 21, 1989, PARO Durante Ubeda forwarded his
endorsement of the compulsory acquisition to the Secretary of Agrarian
Reform.
On November 23, 1989, Acting Director Eduardo C. Visperas of the
Bureau of Land Acquisition and Development, DAR forwarded two
Compulsory Acquisition Claim Folders covering the landholding of
SRRDC, covered by TCT Nos. T-81949 and T-84891 to the President, Land
Bank of the Philippines for further review and evaluation.
SAR Defensor-Santiago’s 2 notices of acquisition
On December 12, 1989, Secretary of Agrarian Reform Miriam Defensor
Santiago sent two notices of acquisition to petitioner, stating that
petitioners landholdings covered by TCT Nos. 81949 and 84891,
containing an area of 188.2858 and 58.5800 hectares, valued at
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from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
P4,417,735.65 and P1,220,229.93, respectively, had been placed under
the Comprehensive Agrarian Reform Program.
Letters by SRRDC; formal protest
On February 6, 1990, petitioner SRRDC in two letters separately addressed
to Secretary Florencio B. Abad and the Director, Bureau of Land
Acquisition and Distribution, sent its formal protest, protesting not
only the amount of compensation offered by DAR for the property but
also the two notices of acquisition.
On March 17, 1990, Secretary Abad referred the case to the DARAB for
summary proceedings to determine just compensation under R.A. No.
6657, Section 16.
On March 23, 1990, the LBP returned the two claim folders previously
referred for review and evaluation to the Director of BLAD mentioning its
inability to value the SRRDC landholding due to some deficiencies.
On March 28, 1990, Executive Director Emmanuel S. Galvez wrote Land
Bank President Deogracias Vistan to forward the two claim folders
involving the property of SRRDC to the DARAB for it to conduct summary
proceedings to determine the just compensation for the land.
On April 6, 1990, petitioner sent a letter to the Land Bank of the Philippines
stating that its property under the aforesaid land titles were exempt from
CARP coverage because they had been classified as watershed area and
were the subject of a pending petition for land conversion.
On May 10, 1990, Director Narciso Villapando of BLAD turned over the
two claim folders (CACFs) to the Executive Director of the DAR
Adjudication Board for proper administrative valuation. Acting on the
CACFs, on September 10, 1990, the Board promulgated a resolution
asking the office of the Secretary of Agrarian Reform (DAR) to first
resolve two issues before it proceeds with the summary land valuation
proceedings.
Issues before the DAR
The issues that need to be threshed out were as follows:
1. Whether the subject parcels of land fall within the coverage of the
Compulsory Acquisition Program of the CARP; and
2. Whether the petition for land conversion of the parcels of land may
be granted.
Report on the two issues
On December 7, 1990, the Office of the Secretary, DAR, through the
Undersecretary for Operations (Assistant Secretary for Luzon Operations)
and the Regional Director of Region IV, submitted a report answering the
two issues raised.
According to them, firstly, by virtue of the issuance of the notice of
coverage on August 11, 1989, and notice of acquisition on December 12,
1989, the property is covered under compulsory acquisition.
Secondly, Administrative Order No. 1, Series of 1990, Section IV-D also
supports the DAR position on the coverage of the said property. During
the consideration of the case by the Board, there was no pending petition
for land conversion specifically concerning the parcels of land in question.
On February 19, 1991, the Board sent a notice of hearing to all the parties
interested, setting the hearing for the administrative valuation of the
subject parcels of land on March 6, 1991. However, on February 22, 1991,
Atty. Ma. Elena P. Hernandez-Cueva, counsel for SRRDC, wrote the Board
requesting for its assistance in the reconstruction of the records of the
case because the records could not be found as her co-counsel, Atty.
Ricardo Blancaflor, who originally handled the case for SRRDC and had
possession of all the records of the case was on indefinite leave and could
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not be contacted. The Board granted counsels request and moved the
hearing to April 4, 1991.
On March 18, 1991, SRRDC submitted a petition to the Board for the latter
to resolve SRRDCs petition for exemption from CARP coverage before any
administrative valuation of their landholding could be had by the Board.
On April 4, 1991, the initial DARAB hearing of the case was held and
subsequently, different dates of hearing were set without objection from
counsel of SRRDC. During the April 15, 1991 hearing, the subdivision plan
of subject property at Casile, Cabuyao, Laguna was submitted and marked
as Exhibit 5 for SRRDC. At the hearing on April 23, 1991, the Land Bank
asked for a period of one month to value the land in dispute.
Certification from the Deputy Zoning Administrator
At the hearing on April 23, 1991, certification from Deputy Zoning
Administrator Generoso B. Opina was presented. The certification issued
on September 8, 1989, stated that the parcels of land subject of the case
were classified as industrial Park per Sanguniang Bayan Resolution
No. 45-89 dated March 29, 1989.
Petition before the DARAB by petitioner
To avert any opportunity that the DARAB might distribute the lands to the
farmer beneficiaries, on April 30, 1991, petitioner filed a petition with
DARAB to disqualify private respondents as beneficiaries. However,
DARAB refused to address the issue of beneficiaries.
RTC: In the meantime, on January 20, 1992, the Regional Trial Court,
Laguna, Branch 24, rendered a decision, finding that private respondents
illegally entered the SRRDC property, and ordered them evicted.
Memorandum by DAR Secretary Leong
DAR: On July 11, 1991, DAR Secretary Benjamin T. Leong issued a
memorandum directing the Land Bank of the Philippines to open a
trust account in favor of SRRDC, for P5,637,965.55, as valuation for the
SRRDC property.
On December 19, 1991, DARAB promulgated a decision, the decretal
portion of which reads:
WHEREFORE, based on the foregoing premises, the Board hereby orders:
1. The dismissal for lack of merit of the protest against the
compulsory coverage of the landholdings of Sta. Rosa Realty
Development Corporation (Transfer Certificates of Title Nos.
81949 and 84891 with an area of 254.766 hectares) in Barangay
Casile, Municipality of Cabuyao, Province of Laguna under the
Comprehensive Agrarian Reform Program is hereby affirmed; Two modes of acquisition of private land under R.A. 6657
2. The Land Bank of the Philippines (LBP) to pay Sta. Rosa Realty
Development Corporation the amount of Seven Million Eight
Hundred Forty-One Thousand, Nine Hundred Ninety Seven Pesos
and Sixty-Four centavos (P7,841,997.64) for its landholdings
covered by the two Transfer Certificates of Title mentioned
above. Should there be a rejection of the payment tendered, to
open, if none has yet been made, a trust account for said amount
in the name of Sta. Rosa Realty Development Corporation;
3. The Register of Deeds of the Province of Laguna to cancel with
dispatch Transfer certificate of Title Nos. 84891 and 81949 and new
one be issued in the name of the Republic of the Philippines, free
from liens and encumbrances;
xxx
RTC: On January 20, 1992, the Regional Trial Court, Laguna, Branch 24,
rendered a decision in Civil Case No. B-2333 ruling that respondents
were builders in bad faith.
Petition before the CA
On February 6, 1992, petitioner filed with the Court of Appeals a petition
for review of the DARAB decision.
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from the discussions and syllabus of
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CA: On November 5, 1993, the Court of Appeals promulgated a decision
affirming the decision of DARAB. It affirmed the decision of the DARAB
without prejudice to petitioner Sta. Rosa Realty Development Corporation
ventilating its case with the Special Agrarian Court on the issue of just
compensation. Hence, this petition.
Court resolution
On December 15, 1993, the Court issued a Resolution which reads:
G. R. Nos. 112526 (Sta. Rosa Realty Development Corporation vs. Court
of Appeals, et. al.) Considering the compliance, dated December 13,
1993, filed by counsel for petitioner, with the resolution of December 8,
1993 which required petitioner to post a cash bond or surety bond in the
amount of P1,500,000.00 Pesos before issuing a temporary restraining
order prayed for, manifesting that it has posted a CASH BOND in the
same amount with the Cashier of the Court as evidenced by the attached
official receipt no. 315519, the Court resolved to ISSUE the Temporary
Retraining Order prayed for.
The Court therefore, resolved to restrain:
a. the Department of Agrarian Reform Adjudication Board from
enforcing its decision dated December 19, 1991 in DARAB
Case No. JC-R-IV-LAG-0001, which was affirmed by the Court
of Appeals in a Decision dated November 5, 1993, and which
ordered, among others, the Regional Office of the
Department of Agrarian Reform through its Municipal and
Provincial Reform Office to take immediate possession of the
landholding in dispute after title shall have been transferred
to the name of the Republic of the Philippines and to
distribute the same through the immediate issuance of
Emancipation Patents to the farmer-beneficiaries as
determined by the Municipal Agrarian Officer of Cabuyao,
Laguna,
b. The Department of Agrarian Reform and/or the Department
of Agrarian Reform Adjudication Board, and all persons
acting for and in their behalf and under their authority from
entering the properties involved in this case and from
introducing permanent infrastructures thereon; and
c. the private respondents from further clearing the said
properties of their green cover by the cutting or burning of
trees and other vegetation, effective today until further
orders from this Court.
Issue: Whether the property in question is covered by CARP despite the
fact that the entire property formed part of a watershed area prior to the
enactment of R.A. No. 6657. [No]
Ruling: The decision of the CA is set aside.
Under Republic Act No. 6657, there are two modes of acquisition of
private land: compulsory and voluntary.
In this case: The Department of Agrarian Reform sought the compulsory
acquisition of subject property under R. A. No. 6657, Section 16, to wit:
Section 16. Procedure for Acquisition of Private Lands. For purposes of
acquisition of private lands, the following procedures shall be followed:
a. After having identified the land, the landowners and the beneficiaries,
the DAR shall send its notice to acquire the land to the owners thereof,
by personal delivery or registered mail, and post the same in a
conspicuous place in the municipal building and barangay hall of the
place where the property is located. Said notice shall contain the offer of
the DAR to pay corresponding value in accordance with the valuation set
forth in Sections 17, 18, and other pertinent provisions hereof.
b. Within thirty (30) days from the date of the receipt of written notice by
personal delivery or registered mail, the landowner, his administrator or
representative shall inform the DAR of his acceptance or rejection of the
offer.
c. If the landowner accepts the offer of the DAR, the LBP shall pay the
landowner the purchase price of the land within thirty (30) days after he
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executes and delivers a deed of transfer in favor of the government and
other muniments of title.
d. In case of rejection or failure to reply, the DAR shall conduct summary
administrative proceedings to determine the compensation for the land
requiring the landowner, the LBP and other interested parties to submit
fifteen (15) days from receipt of the notice. After the expiration of the
above period, the matter is deemed submitted for decision. The DAR
shall decide the case within thirty (30) days after it is submitted for
decision.
e. Upon receipt by the landowner of the corresponding payment, or, in case
of rejection or no response from the landowner, upon the deposit with
an accessible bank designated by the DAR of the compensation in cash
or in LBP bonds in accordance with this act, the DAR shall make
immediate possession of the land and shall request the proper Register
of Deeds to issue Transfer Certificate of Titles (TCT) in the name of the
Republic of the Philippines. The DAR shall thereafter proceed with the
redistribution of the land to the qualified beneficiaries.
f. Any party who disagrees with the decision may bring the matter to the
court of proper jurisdiction for final determination of just compensation.
Compulsory acquisition of private lands
In compulsory acquisition of private lands, the landholding, the
landowners and farmer beneficiaries must first be identified. After
identification, the DAR shall send a notice of acquisition to the
landowner, by personal delivery or registered mail, and post it in a
conspicuous place in the municipal building and barangay hall of the
place where the property is located.
Within thirty days from receipt of the notice of acquisition, the landowner,
his administrator or representative shall inform the DAR of his
acceptance or rejection of the offer.
If the landowner accepts, he executes and delivers a deed of transfer in
favor of the government and surrenders the certificate of title. Within
thirty days from the execution of the deed of transfer, the Land Bank of
the Philippines (LBP) pays the owner the purchase price.
If the landowner rejects the DAR’s offer or fails to make a reply, the DAR
conducts summary administrative proceedings to determine just
compensation for the land. The landowner, the LBP representative and
other interested parties may submit evidence on just compensation within
fifteen days from notice. Within thirty days from submission, the DAR shall
decide the case and inform the owner of its decision and the amount of
just compensation.
Upon receipt by the owner of the corresponding payment, or, in case of
rejection or lack of response from the latter, the DAR shall deposit the
compensation in cash or in LBP bonds with an accessible bank.
The DAR shall immediately take possession of the land and cause the
issuance of a transfer certificate of title in the name of the Republic
of the Philippines. The land shall then be redistributed to the farmer
beneficiaries. Any party may question the decision of the DAR in the
special agrarian courts (provisionally the Supreme Court designated
branches of the regional trial court as special agrarian courts) for final
determination of just compensation.
The DAR has made compulsory acquisition the priority mode of land
acquisition to hasten the implementation of the Comprehensive
Agrarian Reform Program (CARP).
Under Section 16 of the CARL, the first step in compulsory acquisition is
the identification of the land, the landowners and the farmer
beneficiaries. However, the law is silent on how the identification process
shall be made.
DAR Administrative Order No. 12, series of 1989
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from the discussions and syllabus of
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To fill this gap, on July 26, 1989, the DAR issued Administrative Order
No. 12, series of 1989, which set the operating procedure in the
identification of such lands.
Administrative Order No. 12, Series of 1989 requires that the Municipal
Agrarian Reform Officer (MARO) keep an updated master list of all
agricultural lands under the CARP in his area of responsibility
containing all the required information.
The MARO prepares a Compulsory Acquisition Case Folder (CACF) for
each title covered by CARP. The MARO then sends the landowner a Notice
of Coverage and a letter of invitation to a conference/ meeting over the
land covered by the CACF. He also sends invitations to the prospective
farmer-beneficiaries, the representatives of the Barangay Agrarian Reform
Committee (BARC), the Land Bank of the Philippines (LBP) and other
interested parties to discuss the inputs to the valuation of the property
and solicit views, suggestions, objections or agreements of the parties. At
the meeting, the landowner is asked to indicate his retention area.
The MARO shall make a report of the case to the Provincial Agrarian
Reform Officer (PARO) who shall complete the valuation of the
land. Ocular inspection and verification of the property by the PARO shall
be mandatory when the computed value of the estate exceeds
P500,000.00. Upon determination of the valuation, the PARO shall forward
all papers together with his recommendation to the Central Office of the
DAR. The DAR Central Office, specifically, the Bureau of Land Acquisition
and Distribution (BLAD) shall prepare, on the signature of the Secretary or
his duly authorized representative, a notice of acquisition of the subject
property. From this point, the provisions of R. A. No. 6657, Section 16 shall
apply.
Two notices required for the valid implementation of the CARP
For a valid implementation of the CARP Program, two notices are required:
1. the notice of coverage and letter of invitation to a preliminary
conference sent to the landowner, the representative of the BARC,
LBP, farmer beneficiaries and other interested parties pursuant to
DAR A. O. No. 12, series of 1989; and
2. the notice of acquisition sent to the landowner under Section 16 of
the CARL.
The importance of the first notice, that is, the notice of coverage and
the letter of invitation to a conference, and its actual conduct cannot be
understated. They are steps designed to comply with the requirements of
administrative due process.
The implementation of the CARL is an exercise of the State’s police
power and the power of eminent domain. To the extent that the CARL
prescribes retention limits to the landowners, there is an exercise of police
power for the regulation of private property in accordance with the
Constitution.
But where, to carry out such regulation, the owners are deprived of lands
they own in excess of the maximum area allowed, there is also a taking
under the power of eminent domain.
The taking contemplated is not mere limitation of the use of the
land. What is required is the surrender of the title to and physical
possession of the excess and all beneficial rights accruing to the owner in
favor of the farmer beneficiary.
The payment of just compensation was not in accordance with the
procedural requirement
In this case: The DAR has executed the taking of the property in
question. However, payment of just compensation was not in
accordance with the procedural requirement. The law required
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payment in cash or LBP bonds, not by trust account as was done by
DAR.
Rule: In Association of Small Landowners in the Philippines v. Secretary of
Agrarian Reform, the Court held that the CARP Law, for its part, conditions
the transfer of possession and ownership of the land to the
government on receipt of the landowner of the corresponding
payment or the deposit by the DAR of the compensation in cash or
LBP bonds with an accessible bank. Until then, title also remains with
the landowner. No outright change of ownership is contemplated either.
In this case: Consequently, petitioner questioned before the Court of
Appeals DARAB’s decision ordering the compulsory acquisition of
petitioners property. Here, petitioner pressed the question of whether
the property was a watershed, not covered by CARP.
Article 67 of the Water Code of the Philippines (P. D. No. 1067)
provides:
Article 67. Any watershed or any area of land adjacent to any surface
water or overlying any ground water may be declared by the
Department of Natural Resources as a protected area. Rules and
regulations may be promulgated by such Department to prohibit or
control such activities by the owners or occupants thereof within the
protected area which may damage or cause the deterioration of the
surface water or ground water or interfere with the investigation, use,
control, protection, management or administration of such waters.
Watersheds may be defined as an area drained by a river and its
tributaries and enclosed by a boundary or divide which separates it
from adjacent watersheds.
The DANR had not declared the property as a watershed area when
the property was titled in the name of SRRDC
Watersheds generally are outside the commerce of man, so why was the
Casile property titled in the name of SRRDC? The answer is simple. At the
time of the titling, the Department of Agriculture and Natural
Resources had not declared the property as watershed area.
The parcels of land in Barangay Casile were declared as PARK by a Zoning
Ordinance adopted by the municipality of Cabuyao in 1979, as certified
by the Housing and Land Use Regulatory Board. On January 5, 1994, the
Sangguniang Bayan of Cabuyao, Laguna issued a Resolution voiding the
zoning classification of the land at Barangay Casile as Park and declaring
that the land is now classified as agricultural land.
The authority of the municipality of Cabuyao, Laguna to issue zoning
classification is an exercise of its police power, not the power of eminent
domain. A zoning ordinance is defined as a local city or municipal
legislation which logically arranges, prescribes, defines and apportions a
given political subdivision into specific land uses as present and future
projection of needs.
In Natalia Realty, Inc. v. Department of Agrarian Reform, the Court held
that lands classified as non-agricultural prior to the effectivity of the
CARL may not be compulsorily acquired for distribution to farmer
beneficiaries.
However, more than the classification of the subject land as PARK is the
fact that subsequent studies and survey showed that the parcels of
land in question form a vital part of a watershed area.
Now, petitioner has offered to prove that the land in dispute is a
watershed or part of the protected area for watershed purposes.
Ecological balances and environmental disasters in our day and age seem
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
to be interconnected. Property developers and tillers of the land must be
aware of this deadly combination.
In this case: DAR included the disputed parcels of land for compulsory
acquisition simply because the land was allegedly devoted to agriculture
and was titled to SRRDC, hence, private and alienable land that may be
subject to CARP.
However, the scenario has changed, after an in-depth study, survey and
reassessment. The Court cannot ignore the fact that the disputed parcels
of land form a vital part of an area that need to be protected for
watershed purposes.
Report by ERDB
In a report of the Ecosystems Research and Development Bureau
(ERDB), a research arm of the DENR, regarding the environmental
assessment of the Casile and Kabanga-an river watersheds, they
concluded that:
The Casile barangay covered by CLOA in question is situated in the
heartland of both watersheds. Considering the barangays proximity to
the Matangtubig waterworks, the activities of the farmers which are in
conflict with proper soil and water conservation practices jeopardize and
endanger the vital waterworks. Degradation of the land would have
double edge detrimental effects. On the Casile side this would mean
direct siltation of the Mangumit river which drains to the water
impounding reservoir below. On the Kabanga-an side, this would mean
destruction of forest covers which acts as recharged areas of the Matang
Tubig springs. Considering that the people have little if no direct interest
in the protection of the Matang Tubig structures they couldnt care less
even if it would be destroyed.
The Casile and Kabanga-an watersheds can be considered a most vital
life support system to thousands of inhabitants directly and indirectly
affected by it. From these watersheds come the natural God-given
precious resource water. x x x x x
Clearing and tilling of the lands are totally inconsistent with sound
watershed management. More so, the introduction of earth disturbing
activities like road building and erection of permanent
infrastructures. Unless the pernicious agricultural activities of the Casile
farmers are immediately stopped, it would not be long before these
watersheds would cease to be of value. The impact of watershed
degredation threatens the livelihood of thousands of people dependent
upon it. Toward this, we hope that an acceptable comprehensive
watershed development policy and program be immediately formulated
and implemented before the irreversible damage finally happens.
Hence, the following are recommended:
7.2 The Casile farmers should be relocated and given financial assistance.
7.3 Declaration of the two watersheds as critical and in need of
immediate rehabilitation.
7.4 A comprehensive and detailed watershed management plan and
program be formulated and implemented by the Canlubang Estate in
coordination with pertinent government agencies.
The ERDB report was prepared by a composite team headed by Dr. Emilio
Rosario, the ERDB Director, who holds a doctorate degree in water
resources from U.P. Los Banos in 1987; Dr. Medel Limsuan, who obtained
his doctorate degree in watershed management from Colorado University
(US) in 1989; and Dr. Antonio M. Dano, who obtained his doctorate degree
in Soil and Water management Conservation from U.P. Los Banos in 1993.
Memorandum
Also, DENR Secretary Angel Alcala submitted a Memorandum for the
President dated September 7, 1993 (Subject: PFVR HWI Ref.: 933103
Presidential Instructions on the Protection of Watersheds of the
Canlubang Estates at Barrio Casile, Cabuyao, Laguna) which reads:
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It is the opinion of this office that the area in question must be
maintained for watershed purposes for ecological and environmental
considerations, among others. Although the 88 families who are the
proposed CARP beneficiaries will be affected, it is important that a larger
view of the situation be taken as one should also consider the adverse
effect on thousands of residents downstream if the watershed will not
be protected and maintained for watershed purposes.
The foregoing considered, it is recommended that if possible, an
alternate area be allocated for the affected farmers, and that the
Canlubang Estates be mandated to protect and maintain the area in
question as a permanent watershed reserved.
The definition does not exactly depict the complexities of a watershed. The
most important product of a watershed is water which is one of the
most important human necessity.
The protection of watersheds ensures an adequate supply of water
for future generations and the control of flashfloods that not only
damage property but cause loss of lives. Protection of watersheds is an
intergenerational responsibility that needs to be answered now.
Casile property has slopes of 18% and over, which exempted the land
from the coverage of CARL
Another factor that needs to be mentioned is the fact that during the
DARAB hearing, petitioner presented proof that the Casile property has
slopes of 18% and over, which exempted the land from the coverage of
CARL. R. A. No. 6657, Section 10, provides:
Section 10. Exemptions and Exclusions. Lands actually, directly and
exclusively used and found to be necessary for parks, wildlife, forest
reserves, reforestration, fish sanctuaries and breeding
grounds, watersheds and mangroves, national defense, school sites and
campuses including experimental farm stations operated by public or
private schools for educational purposes, seeds and seedlings research
and pilot production centers, church sites and convents appurtenent
thereto, communal burial grounds and cemeteries, penal colonies and
penal farms actually worked by the inmates, government and private
research and quarantine centers, and all lands with eighteen percent
(18%) slope and over, except those already developed shall be exempt
from coverage of this Act.
Hence, during the hearing at DARAB, there was proof showing that the
disputed parcels of land may be excluded from the compulsory acquisition
coverage of CARP because of its very high slopes.
To resolve the issue as to the true nature of the parcels of land involved
in the case at bar, the Court directs the DARAB to conduct a re-evaluation
of the issue.
Dispositive portion: The Court sets aside the decision of the Court of
Appeals in CA-G. R. SP No. 27234.
In lieu thereof, the Court remands the case to the DARAB for re-
evaluation and determination of the nature of the parcels of land involved
to resolve the issue of its coverage by the Comprehensive Land Reform
Program.
In the meantime, the effects of the CLOAs issued by the DAR to supposed
farmer beneficiaries shall continue to be stayed by the temporary
restraining order issued on December 15, 1993, which shall remain in
effect until final decision on the case. No costs.
Clean Air Act of 1999 (R.A. 8749)
Article Two
Definition of Terms
Section 5. Definitions. - As used in this Act:
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
a. "Air pollutant" means any matter found in the atmosphere other
than oxygen, nitrogen, water vapor, carbon dioxide, and the inert
gases in their natural or normal concentrations, that is detrimental to
health or the environment, which includes but not limited to smoke,
dust, soot, cinders, fly ash, solid particles of any kind, gases, fumes,
chemical mists, steam and radio-active substances;
b. "Air pollution" means any alteration of the physical, chemical and
biological properties of the atmospheric air, or any discharge thereto
of any liquid, gaseous or solid substances that will or is likely to
create or to render the air resources of the country harmful,
detrimental, or injurious to public health, safety or welfare or which
will adversely affect their utilization for domestic, commercial,
industrial, agricultural, recreational, or other legitimate purposes;
c. "Ambient air quality guideline values" mean the concentration of
air over specified periods classified as short-term and long-term
which are intended to serve as goals or objectives for the protection
of health and/or public welfare. These values shall be used for air
quality management purposes such as determining time trends,
evaluating stages of deterioration or enhancement of the air quality,
and in general, used as basis for taking positive action in preventing,
controlling, or abating air pollution;
d. "Ambient air quality" means the general amount of pollution
present in a broad area; and refers to the atmosphere's average
purity as distinguished from discharge measurements taken at the
source of pollution;
e. "Certificate of Conformity" means a certificate issued by the
Department of Environment and Natural Resources to a vehicle
manufacturer/assembler or importer certifying that a particular new
vehicle or vehicle type meets the requirements provided under this
Act and its rules and regulations;
f. "Department" means the Department of Environment and Natural
Resources;
g. "Eco-profile" means the geographic-based instrument for planners
and decision-makers which present an evaluation of the
environmental quality and carrying capacity of an area. It is the result
of the integration of primary and secondary data and information on
natural resources and anthropogenic activities on the land which are
evaluated by various environmental risk assessment and forecasting
methodologies that enable the Department to anticipate the type of
development control necessary in the planning area;
h. "Emission" means any air contaminant, pollutant, gas stream or
unwanted sound from a known source which is passed into the
atmosphere;
i. "Greenhouse gases" mean those gases that can potentially or can
reasonably be expected to induce global warming, which include
carbon dioxide, methane, oxides of nitrogen, chlorofluorocarbons,
and the like;
j. "Hazardous substances" mean those substances which present
either: (1) short-term acute hazards such as acute toxicity by
ingestion, inhalation, or skin absorption, corrosivity or other skin or
eye contact hazard or the risk of fire explosion; or (2) longterm
toxicity upon repeated exposure, carcinogenicity (which in some
cases result in acute exposure but with a long latent period),
resistance to detoxification process such as biodegradation, the
potential to pollute underground or surface waters;
k. "Infectious waste" means that portion of medical waste that could
transmit an infectious disease;
l. "Medical waste" means the materials generated as a result of
patient diagnosis, treatment, or immunization of human beings or
animals;
m. "Mobile source" means any vehicle propelled by or through
combustion of carbon-based or other fuel, constructed and operated
principally for the conveyance of persons or the transportation of
property goods;
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n. "Motor vehicle" means any vehicle propelled by a gasoline or diesel
engine or by any means other than human or animal power,
constructed and operated principally for the conveyance of persons
or the transportation of property or goods in a public highway or
street open to public use;
o. "Municipal waste" means the waste materials generated from
communities within a specific locality;
p. "New vehicle" means a vehicle constructed entirely from new parts
that has never been sold or registered with the DOTC or with the
appropriate agency or authority, and operated on the highways of
the Philippines, any foreign state or country;
q. "Octane Rating or the Anti-Knock Index (AKI)" means the rating
of the anti-knock characteristics of a grade or type of automotive
gasoline as determined by dividing by two (2) the sum of the
Research Octane Number (RON), plus the Motor Octane Number
(MON); the octane requirement, with respect to automotive gasoline
for use in a motor vehicle or a class thereof, whether imported,
manufactured, or assembled by a manufacturer, shall refer to the
minimum octane rating of such automotive gasoline which such
manufacturer recommends for the efficient operation of such motor
vehicle, or a substantial portion of such class, without knocking;
r. "Ozone Depleting Substances (ODS)" means those substances that
significantly deplete or otherwise modify the ozone layer in a manner
that is likely to result in adverse effects of human health and the
environment such as, but not limited to, chloroflourocarbons, halons
and the like;
s. "Persistent Organic Pollutants (POPs)" means the organic
compounds that persist in the environment, bioaccumulate through
the food web, and pose a risk of causing adverse effects to human
health and the environment. These compounds resist photolytic,
chemical and biological degradation, which shall include but not be
limited to dioxin, furan, Polychlorinated Biphenyls (PCBs),
organochlorine pesticides, such as aldrin, dieldrin, DDT,
hexachlorobenzene, lindane, toxaphere and chlordane;
t. "Poisonous and toxic fumes" means any emissions and fumes
which are beyond internationally - accepted standards, including but
not limited to the World Health Organization (WHO) guideline
values;
u. "Pollution control device" means any device or apparatus used to
prevent, control or abate the pollution of air caused by emissions
from identified pollution sources at levels within the air pollution
control standards established by the Department;
v. "Pollution control technology" means the pollution control devices,
production process, fuel combustion processes or other means that
effectively prevent or reduce emissions or effluent;
w. "Standard of performance" means a standard for emissions of air
pollutant which reflects the degree of emission limitation achievable
through the application of the best system of emission reduction,
taking into account the cost of achieving such reduction and any
non-air quality health and environmental impact and energy
requirement which the Department determines, and adequately
demonstrates; and
x. "Stationary source" means any building or immobile structure,
facility or installation which emits or may emit any air pollutant.
Section 9. Airsheds. - Pursuant to Sec. 8 of this Act, the designation of
airsheds shall be on the basis of, but not limited to, areas with similar
climate, meteorology and topology which affect the interchange and
diffusion of pollutants in the atmosphere, or areas which share common
interest or face similar development programs, prospects or problems.
For a more effective air quality management, a system of planning and
coordination shall be established and a common action plan shall be
formulated for each airshed.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
To effectively carry out the formulated action plans, a Governing Board is
hereby created, hereinafter referred to as the Board.
The Board shall be headed by the Secretary of the Department of
Environment and Natural Resources as chairman. The members shall be
as follows:
a) Provincial Governors from areas belonging to the airshed;
b) City/Municipal Mayors from areas belonging to the airshed;
c) A representative from each concerned government agency;
d) Representatives from people’s organizations;
e) Representatives from non-government organizations; and
f) Representatives from the private sector.
The Board shall perform the following functions:
a) Formulation of policies;
b) Preparation of a common action plan;
c) Coordination of functions among its members; and
d) Submission and publication of an annual Air Quality Status
Report for each airshed.
Upon consultation with appropriate local government authorities, the
Department shall, from time to time, revise the designation of airsheds
utilizing eco-profiling techniques and undertaking scientific studies.
Emissions trading may be allowed among pollution sources within an
airshed.
Section 20. Ban on Incineration. - Incineration, hereby defined as the
burning of municipal, biomedical and hazardous waste, which process
emits poisonous and toxic fumes is hereby prohibited; Provided, however,
That the prohibition shall not apply to traditional small-scale method of
community/neighborhood sanitation "siga", traditional, agricultural,
cultural, health, and food preparation and crematoria; Provided, Further,
That existing incinerators dealing with a biomedical wastes shall be out
within three (3) years after the effectivity of this Act; Provided, Finally, that
in the interim, such units shall be limited to the burning of pathological
and infectious wastes, and subject to close monitoring by the Department.
Local government units are hereby mandated to promote, encourage and
implement in their respective jurisdiction a comprehensive ecological
waste management that includes waste segregation, recycling and
composting.
With due concern on the effects of climate change, the Department shall
promote the use of state-of-the-art, environmentally-sound and safe non-
burn technologies for the handling, treatment, thermal destruction,
utilization, and disposal of sorted, unrecycled, uncomposted, biomedical
and hazardous wastes.
Section 22. Regulation of All Motor Vehicles and Engines. - Any
imported new or locally-assembled new motor vehicle shall not be
registered unless it complies with the emission standards set pursuant to
this Act, as evidenced by a Certificate of Conformity (COC) issued by the
Department.
Any imported new motor vehicle engine shall not be introduced into
commerce, sold or used unless it complies with emission standards set
pursuant to this Act.
Any imported used motor vehicle or rebuilt motor vehicle using new or
used engines, major parts or components shall not be registered unless it
complies with the emission standards.
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In case of non-compliance, the importer or consignee may be allowed to
modify or rebuild the vehicular engine so it will be in compliance with
applicable emission standards.
No motor vehicle registration (MVR) shall be issued unless such motor
vehicle passes the emission testing requirement promulgated in
accordance with this Act. Such testing shall be conducted by the DOTC or
its authorized inspection centers within sixty (60) days prior to date of
registration.
The DTI shall promulgate the necessary regulations prescribing the useful
life of vehicles and engines including devices in order to ensure that such
vehicles will conform to the emissions which they were certified to meet.
These regulations shall include provisions for ensuring the durability of
emission devices.
Section 23. Second-Hand Motor Vehicle Engines. - Any imported
second-hand motor vehicle engine shall not be introduced into
commerce, sold or used unless it complies with emission standards set
pursuant to this Act.
Article Two
Other Pollutants
Section 30. Ozone-Depleting Substances. - Consistent with the terms
and conditions of the Montreal Protocol on Substances that Deplete the
Ozone Layer and other international agreements and protocols to which
the Philippines is a signatory, the Department shall phase out ozone-
depleting substances.
Within sixty (60) days after the enactment of this Act, the Department shall
publish a list of substances which are known to cause harmful effects on
the stratospheric ozone layer.
Chapter 5
Actions
Section 40. Administrative Action. - Without prejudice to the right of
any affected person to file an administrative action, the Department shall,
on its own instance or upon verified complaint by any person, institute
administrative proceedings against any person who violates:
(a) Standards or limitation provided under this Act; or
(b) Any order, rule or regulation issued by the Department with respect to
such standard or limitation.
Section 41. Citizen Suits. - For purposes of enforcing the provisions of
this Act or its implementing rules and regulations, any citizen may file an
appropriate civil, criminal or administrative action in the proper courts
against:
(a) Any person who violates or fails to comply with the provisions of this
Act or its implementing rules and regulations; or
(b) The Department or other implementing agencies with respect to
orders, rules and regulations issued inconsistent with this Act; and/or
(c) Any public officer who willfully or grossly neglects the performance of
an act specifically enjoined as a duty by this Act or its implementing rules
and regulations; or abuses his authority in the performance of his duty; or,
in any manner, improperly performs his duties under this Act or its
implementing rules and regulations: Provided, however, That no suit can
be filed until thirty-day (30) notice has been taken thereon.
The court shall exempt such action from the payment of filing fees, except
fees for actions not capable of pecuniary estimations, and shall likewise,
upon prima facie showing of the non-enforcement or violation
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
complained of, exempt the plaintiff from the filing of an injunction bond
for the issuance of a preliminary injunction.
Within thirty (30) days, the court shall make a determination if the
compliant herein is malicious and/or baseless and shall accordingly
dismiss the action and award attorney's fees and damages.
Section 43. Suits and Strategic Legal Actions Against Public
Participation and the Enforcement of This Act. - Where a suit is brought
against a person who filed an action as provided in Sec. 41 of this Act, or
against any person, institution or government agency that implements
this Act, it shall be the duty of the investigating prosecutor or the court,
as the case may be, to immediately make a determination not exceeding
thirty (30) days whether said legal action has been filed to harass, vex,
exert undue pressure or stifle such legal recourses of the person
complaining of or enforcing the provisions of this Act. Upon
determination thereof, evidence warranting the same, the court shall
dismiss the case and award attorney's fees and double damages.
This provision shall also apply and benefit public officers who are sued for
acts committed in their official capacity, their being no grave abuse of
authority, and done in the course of enforcing this Act.
QUIZ #8
1. Section 30 of the Philippine Clean Air Act states: Ozone-Depleting Substances.
– Consistent with the terms and conditions of the ___________ on Substances
that Deplete the Ozone Layer and other international agreements and
protocols to which the Philippines is a signatory, the Department shall phase
out ozone-depleting substances.
a. Montreal Protocol
b. Kyoto Protocol
c. Basel Convention
d. Rotterdam Convention
2. True or False. Section 20 of the Philippine Clean Air Act does not absolutely
prohibit incineration as a mode of waste disposal; rather, only those burning
process which emits poisonous and toxic fumes are banned.
3. True or False. This is one of the ways by which government officials can be
prodded into action to empower the citizen to sue both the violator and the
government official. This legal empowerment of the Clean Air Act is known as
the people power provision. – The correct answer is citizen suits.
4. True or False. The Suits and Strategic Legal Actions Against Public Participation
is one of the provisions of the Clean Air Act. It embodies a suit that brought
against a person who filed an action as provided in Section 41 of this Act, or
against any person, institution or government agency that implements this Act,
it shall be the duty of the investigating prosecutor or the court, as the case
may be, to immediately make a determination not exceeding thirty (30) days
whether said legal action has been filed to harass, vex, exert undue pressure
or stifle such legal recourses of the person complaining of or enforcing the
provisions of this Act. Upon determination thereof, evidence warranting the
same, the court shall dismiss the case and award attorney's fees and double
damages.
5. National Integrated Protected Areas System (NIPAS) is the classification
and administration of all designated protected areas to maintain essential
ecological processes and life support systems, to preserve genetic diversity, to
ensure sustainable use of resources found therein, and to maintain their
natural conditions to the greatest extent possible. /Ancestral lands and
customary rights and interest arising shall be accorded due recognition. The
DENR shall prescribe rules and regulations to govern ancestral lands within
protected areas.
6. True or False. As discussed in Tano vs. Socrates, a marginal fisherman is an
individual engaged in fishing whose margin of return or reward in his harvest
of fish as measured by existing price levels is barely sufficient to yield a profit
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or cover the cost of gathering the fish, while a subsistence fisherman is one
whose catch yields but the irreducible minimum for his livelihood.
7. This is the State policy enshrined in the Constitution regarding the duty of the
State to protect and advance the right of the people to a healthful and
balanced ecology in accord with the rhythm and harmony of nature. The
General Welfare Clause of the Local Government Code expressly mentions
the right within their respective territorial jurisdictions, local government units
shall ensure and support, among other things, the preservation and
enrichment of culture, and enhance the right of the people to a balanced
ecology.
8. True or False. The right to a balanced and healthful ecology carries with it the
correlative duty to refrain from impairing the environment.
9. True or False. National Integrated Protected Areas System is the classification
and administration of all designated protected areas to maintain essential
ecological processes and life support systems, to preserve genetic diversity, to
ensure sustainable use of resources found therein, and to maintain their
natural conditions to the greatest extent possible. /Ancestral lands and
customary rights be subservient to be protected areas.
10. Adaptation is the adjustment in natural or human systems in response to
stimuli or their effects, which moderates harm or exploits beneficial
opportunities.
METROPOLITAN MANILA DEVELOPMENT AUTHORITY vs.
JANCOM ENVIRONMENTAL CORPORATION & JANCOM
INTERNATIONAL DEVELOPMENT PROJECTS PTY. LIMITED OF
AUSTRALIA (2002)
Overview: Before the Court is a petition for review on certiorari under
Rule 45 of the Rules of Civil Procedure filed by petitioner Metropolitan
Manila Development Authority (MMDA), seeking to reverse and set
aside the November 13, 2000 decision of the Court of Appeals declaring
valid and perfected the waste management contract entered into by the
Republic of the Philippines, represented by the Secretary of National
Resources and the Executive Committee to oversee the build-operate-
transfer implementation of solid waste management projects, and
JANCOM Environmental Corporation.
Facts: In 1994, then President Fidel V. Ramos issued Presidential
Memorandum Order No. 202 creating the Executive Committee
(EXECOM) to oversee the build-operate-transfer (BOT) implementation of
solid waste management projects, headed by the Chairman of the MMDA
and the Cabinet Officer for Regional Development-National Capital
Region (CORD-NCR).
EXECOM function
The EXECOM was to oversee and develop waste-to-energy projects for
the waste disposal sites in San Mateo, Rizal and Carmona, Cavite under
the build-operate-transfer (BOT) scheme. The terms of reference for the
waste-to-energy projects provided that its proponents should have the
capability to establish municipal solid waste thermal plants using
incineration technology. This type of technology was selected because of
its alleged advantages of greatly reduced waste volume, prolongation of
the service life of the disposal site, and generation of electricity.
While eleven proponents submitted their pre-qualification documents,
most failed to comply with the requirements under Section 5.4 of the
Implementing Rules and Regulations (IRR) of Republic Act No. 6957,
otherwise known as the Build-Operate-Transfer Law.
PBAC recommendation
On July 21, 1995, the Pre-qualification, Bids and Awards Committee
(PBAC) recommended the pre-qualification of three proponents, namely:
1. JANCOM International Pty. Ltd.;
2. First Philippine International W-E Managers; and
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
3. PACTECH Development Corporation.
On July 26, 1995, the EXECOM approved the recommendation of the
PBAC. On July 27, 1995, MMDA forwarded to the Investment
Coordinating Committee (ICC) Secretariat the pre-feasibility study on the
privatization of the Carmona and San Mateo landfill sites. The project
was later presented to the ICC-Technical Board (ICC-TB) and then
endorsed to the ICC-Cabinet Committee (ICC-CC).
Formed partnerships
Subsequently, JANCOM entered into a partnership with Asea Brown
Boveri (ABB) to form JANCOM Environmental Corporation while First
Philippines formed a partnership with OGDEN. Due to the change in the
composition of the proponents, particularly in their technology partners
and contractors, the PBAC conducted a post pre-qualification evaluation.
Second bid conference
On February 12, 1997, JANCOM and First Philippines were declared the
winning bidders, respectively, for the San Mateo and the Carmona
projects.
Letter by MMDA Chairman to JANCOM CEO
In a letter dated February 27, 1997, then MMDA Chairman Prospero I.
Oreta informed JANCOM’s Chief Executive Officer Jay Alparslan that the
EXECOM had approved the PBAC recommendation to award to JANCOM
the San Mateo Waste-to-Energy Project on the basis of the final
Evaluation Report declaring JANCOM International Ltd., Pty., together
with Asea Brown Boveri (ABB), as the sole complying (winning) bidder
for the San Mateo Waste Disposal site, subject to negotiation and
mutual approval of the terms and conditions of the contract of award.
The letter also notified Alparslan that the EXECOM had created a
negotiating team composed of Secretary General Antonio Hidalgo of the
Housing and Urban Development Coordinating Council, Director Ronald
G. Fontamillas, General Manager Roberto Nacianceno of MMDA, and Atty.
Eduardo Torres of the host local government unit to work out and finalize
the contract award. Chairman Oreta requested JANCOM to submit to the
EXECOM the composition of its own negotiating team.
Draft BOT contract
Thereafter, after a series of meetings and consultations between the
negotiating teams of EXECOM and JANCOM, a draft BOT contract was
prepared and presented to the Presidential Task Force on Solid Waste
Management.
Signing of BOT Contract
On December 19, 1997, the BOT Contract for the waste-to-energy project
was signed between JANCOM and the Philippine Government,
represented by the Presidential Task Force on Solid Waste Management
through DENR Secretary Victor Ramos, CORD-NCR Chairman Dionisio
dela Serna, and MMDA Chairman Prospero Oreta.
Submission to President Ramos; endorsement to President Estrada
On March 5, 1998, the BOT contract was submitted to President Ramos
for approval but this was too close to the end of his term which expired
without him signing the contract. President Ramos, however, endorsed
the contract to incoming President Joseph E. Estrada.
Change of administration
With the change of administration, the composition of the EXECOM also
changed. Memorandum Order No. 19 appointed the Chairman of the
Presidential Committee on Flagship Programs and Project to be the
EXECOM chairman.
R.A. 8749 and closure of San Mateo landfill
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Republic Act No. 8749, otherwise known as the Clean Air Act of 1999,
was passed by Congress. And due to the clamor of residents of Rizal
province, President Estrada had, in the interim, also ordered the closure of
the San Mateo landfill.
Implementation of the BOT contract to no longer be pursued
Due to these circumstances, the Greater Manila Solid Waste
Management Committee adopted a resolution not to pursue the BOT
contract with JANCOM.
Subsequently, in a letter dated November 4, 1999, Roberto Aventajado,
Chairman of the Presidential Committee on Flagship Programs and Project
informed Mr. Jay Alparslan, Chairman of JANCOM, that due to changes
in policy and economic environment (Clean Air Act and non-availability
of the San Mateo landfill), the implementation of the BOT contract
executed and signed between JANCOM and the Philippine
Government would no longer be pursued. The letter stated that other
alternative implementation arrangements for solid waste management for
Metro Manila would be considered instead.
JANCOM’s appeal to President Estrada
JANCOM appealed to President Joseph Estrada the position taken by the
EXECOM not to pursue the BOT Contract executed and signed between
JANCOM and the Philippine Government, refuting the cited reasons for
non-implementation.
MMDA’s invitation
Despite the pendency of the appeal, the petitioner Metropolitan Manila
Development Authority, on February 22, 2000, caused the publication in
a newspaper of an invitation to pre-qualify and to submit proposals
for solid waste management projects for Metro Manila.
JANCOM’s petition with the RTC of Pasig
JANCOM thus filed with the Regional Trial Court of Pasig a petition
for certiorari to declare:
• the resolution of the Greater Metropolitan Manila Solid Waste
Management Committee disregarding the BOT Contract, and
• the acts of MMDA calling for bids and authorizing a new contract for
Metro Manila waste management, as illegal, unconstitutional, and
void; and
• for prohibition to enjoin the Greater Metropolitan Manila Solid
Waste Management Committee and MMDA from implementing the
assailed resolution and disregarding the Award to, and the BOT
contract with, JANCOM, and from making another award in its place.
RTC: It rendered a judgment in favor of JANCOM Environmental
Corpotation and JANCOM International Development Projects Pty.,
Limited of Australia, and declared the Resolution of respondent Greater
Metropolitan Manila Solid Waste Management Committee disregarding
petitioners BOT Award Contract and calling for bids for and authorizing a
new contract for the Metro Manila waste management illegal and void.
Moreover, respondents and their agents were prohibited and enjoined
from implementing the aforesaid Resolution and disregarding
petitioners BOT Award Contract and from making another award in its
place.
Let it be emphasized that this Court is not preventing or stopping the
government from implementing infrastructure projects as it is aware of
the proscription under P.D. 1818. On the contrary, the Court is paving
the way for the necessary and modern solution to the perennial garbage
problem that has been the major headache of the government and in
the process would serve to attract more investors in the country.
SPA for certiorari and prayer for a TRO before the CA
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
Instead of appealing the decision, MMDA filed a special civil action
for certiorari with prayer for a temporary restraining order with the Court
of Appeals.
The appellate court not only required JANCOM to comment on the
petition, it also granted MMDA’s prayer for a temporary restraining order.
During the pendency of the petition for certiorari, JANCOM moved for the
execution of the RTC decision, which was opposed by MMDA.
RTC’s motion for execution
However, the RTC granted the motion for execution on the ground that
its decision had become final since MMDA had not appealed the same to
the Court of Appeals. MMDA moved to declare respondents and the RTC
judge in contempt of court, alleging that the RTC’s grant of execution was
abuse of and interference with judicial rules and processes.
CA: It dismissed the petition. Hence, this petition.
Appeal before the SC
MMDA’s motion for reconsideration of said decision having been denied,
MMDA filed the instant petition, alleging that the Court of Appeals gravely
erred in finding that:
1. There is a valid and binding contract between the Republic of the
Philippines and JANCOM given that:
a. the contract does not bear the signature of the President
of the Philippines;
b. the conditions precedent specified in the contract were
not complied with; and
c. there was no valid notice of award.
2. The MMDA had not seasonably appealed the Decision of the lower
court via a petition for certiorari.
Issues:
1. Whether it is fatal to petitioners cause, that rather than appealing the
trial court’s decision to the Court of Appeals, it instead filed a petition
for certiorari. [Yes]
2. Whether or not there is a valid and binding contract between the
Republic of the Philippines and JANCOM. [Yes]
Ruling: The petition is dismissed.
I
Procedural issue
In the instant case, however, MMDA has not sufficiently established the
existence of any fact or reason to justify its resort to the extraordinary
remedy of certiorari. Neither does the record show that the instant case,
indeed, falls under any of the exceptions.
The Court thus holds that the Court of Appeals did not err in declaring
that the trial court’s decision has become final due to the failure of MMDA
to perfect an appeal within the reglementary period.
With the foregoing disquisition, it would appear unnecessarily to discuss
and resolve the substantive issue posed before the Court. However, the
procedural flaw notwithstanding, the Court deems it judicious to take
cognizance of the substantive question, if only to put petitioners mind to
rest.
II
Substantive issue
The MMDA’s contentions hold no water.
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Contentions: In the case at bar, the reasons cited by MMDA for not
pushing through with the subject contract were:
1. the passage of the Clean Air Act, which allegedly bans incineration;
2. the closure of the San Mateo landfill site; and
3. the costly tipping fee.
Held: These reasons are bereft of merit. Once again, the Court makes
reference to the insightful declarations of the CA:
Section 20 of the Clean Air Act pertinently reads:
Section 20. Ban on Incineration. Incineration, hereby
defined as the burning of municipal, bio-chemical and
hazardous wastes, which process emits poisonous and
toxic fumes, is hereby prohibited: x x x.
Section 20 does not absolutely prohibit incineration as a mode of waste
disposal; rather only those burning processes which emit poisonous
and toxic fumes are banned.
As regards the projected closure of the San Mateo landfill vis-a-vis the
implementability of the contract, Article 2.3 thereof expressly states that
[i]n the event the project Site is not delivered x x x, the Presidential task
Force on Solid Waste Management (PTFSWM) and the Client,
shall provide within a reasonable period of time, a suitable
alternative acceptable to the BOT COMPANY.
With respect to the alleged financial non-viability of the project because
the MMDA and the local government units cannot afford the tipping fees
under the contract, this circumstance cannot, by itself, abrogate the
entire agreement.
Doctrinal is the rule that neither the law nor the courts will extricate a
party from an unwise or undesirable contract, or stipulation for that
matter, he or she entered into with full awareness of its consequences
(Opulencia vs. CA, 293 SCRA 385). Indeed, the terms and conditions of
the subject contract were arrived at after due negotiations between the
parties thereto.
National Integrated Protected Areas System
(NIPAS) Act of 1992 (R.A. 7586)
Renewable Energy Act of 2008 (R.A. 9513)
Role of Local Governments
Philippine Disaster Risk Reduction and Management Act of
2010 (R.A. 10121)
SOCIAL JUSTICE SOCIETY, CABIGAO, & TUMBOKON vs.
ATIENZA, JR. (2008)
Chevron Philippines, Inc., Petron Corporation, & Pilipinas Shell
Petroleum Corporation, movants-intervenors.
Department of Energy, movant-intervenor.
Overview: After we promulgated our decision in this case on March 7,
2007, Chevron Philippines Inc. (Chevron), Petron Corporation (Petron)
and Pilipinas Shell Petroleum Corporation (Shell) (collectively, the oil
companies) and the Republic of the Philippines, represented by the
Department of Energy (DOE), filed their respective motions for leave to
intervene and for reconsideration of the decision.
Chevron is engaged in the business of importing, distributing and
marketing of petroleum products in the Philippines, while Shell and
Petron are engaged in the business of manufacturing, refining and
likewise importing, distributing and marketing of petroleum products in
the Philippines.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
The DOE is a governmental agency created under Republic Act No. 7638
and tasked to prepare, integrate, coordinate, supervise and control all
plans, programs, projects and activities of the government relative to
energy exploration, development, utilization, distribution and
conservation.
Facts: Petitioners Social Justice Society, Vladimir Alarique T. Cabigao
and Bonifacio S. Tumbokon, in an original petition for mandamus under
Rule 65 of the Rules of Court, sought to compel respondent Hon. Jose L.
Atienza, Jr., then mayor of the City of Manila, to enforce Ordinance
No. 8027.
Ordinance No. 8027
This ordinance was enacted by the Sangguniang Panlungsod of Manila on
November 20, 2001, approved by respondent Mayor on November 28,
2001, and became effective on December 28, 2001 after publication.
Sections 1 and 3 thereof state:
Section 1. For the purpose of promoting sound urban planning and ensuring health,
public safety, and general welfare of the residents of Pandacan and Sta. Ana as well
as its adjoining areas, the land use of [those] portions of land bounded by the Pasig
River in the north, PNR Railroad Track in the east, Beata St. in the south, Palumpong
St. in the southwest, and Estero de Pandacan in the west[,] PNR Railroad in the
northwest area, Estero de Pandacan in the [n]ortheast, Pasig River in the southeast
and Dr. M.L. Carreon in the southwest. The area of Punta, Sta. Ana bounded by the
Pasig River, Marcelino Obrero St., Mayo 28 St., and F. Manalo Street, are hereby
reclassified from Industrial II to Commercial I.
Section 3. Owners or operators of industries and other businesses, the operation
of which are no longer permitted under Section 1 hereof, are hereby given a period
of six (6) months from the date of effectivity of this Ordinance within which to
cease and desist from the operation of businesses which are hereby in
consequence, disallowed.
Ordinance No. 8027 reclassified the area described therein from industrial
to commercial and directed the owners and operators of businesses
disallowed under the reclassification to cease and desist from operating
their businesses within six months from the date of effectivity of the
ordinance. Among the businesses situated in the area are the so-called
Pandacan Terminals of the oil companies.
Memorandum of understanding with oil companies
On June 26, 2002, the City of Manila and the Department of Energy
(DOE) entered into a memorandum of understanding (MOU) with the
oil companies and they agreed that the scaling down of the Pandacan
Terminals was the most viable and practicable option.
Resolution No. 97
The Sangguniang Panlungsod ratified the MOU in Resolution No. 97. In
the same resolution, the Sanggunian declared that the MOU was effective
only for a period of six months starting July 25, 2002. Thereafter, on
January 30, 2003, the Sanggunian adopted Resolution No. 13 extending
the validity of Resolution No. 97 to April 30, 2003 and authorizing the
mayor of Manila to issue special business permits to the oil companies.
This was the factual backdrop presented to the Court which became the
basis of our March 7, 2007 decision.
Supreme Court’s March 7, 2007 ruling
The Court ruled that:
• respondent had the ministerial duty under the Local Government
Code (LGC) to enforce all laws and ordinances relative to the
governance of the city, including Ordinance No. 8027.
• the Court need not resolve the issue of whether the MOU entered
into by respondent with the oil companies and the subsequent
resolutions passed by the Sanggunian could amend or repeal
Ordinance No. 8027 since the resolutions which ratified the MOU and
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made it binding on the City of Manila expressly gave it full force and
effect only until April 30, 2003.
• in conclusion, there was nothing that legally hindered respondent
from enforcing Ordinance No. 8027.
Motion for reconsideration
After the Court rendered its decision on March 7, 2007, the oil companies
and DOE sought to intervene and filed motions for reconsideration in
intervention on March 12, 2007 and March 21, 2007 respectively.
Chevron’s complaint against the City of Manila
The oil companies called our attention to the fact that on April 25, 2003,
Chevron had filed a complaint against respondent and the City of Manila
in the Regional Trial Court of Manila, Branch 39, for the annulment of
Ordinance No. 8027 with application for writs of preliminary
prohibitory injunction and preliminary mandatory injunction. The
case was docketed as civil case no. 03-106377.
Shell’s petition
On the same day, Shell filed a petition for prohibition
and mandamus likewise assailing the validity of Ordinance No. 8027
and with application for writs of preliminary prohibitory injunction
and preliminary mandatory injunction. This was docketed as civil case
no. 03-106380.
Later on, these two cases were consolidated and the RTC of Manila, issued
an order dated May 19, 2003 granting the applications for writs of
preliminary prohibitory injunction and preliminary mandatory injunction.
Petron’s petition
Petron likewise filed its own petition in the RTC of Manila, Branch 42, also
attacking the validity of Ordinance No. 8027 with prayer for the
issuance of a writ of preliminary injunction and/or temporary
restraining order (TRO). This was docketed as civil case no. 03-106379.
Ordinance No. 8119
Thereafter, in 2006, the city council of Manila enacted Ordinance No.
8119, also known as the Manila Comprehensive Land Use Plan and
Zoning Ordinance of 2006. This was approved by respondent on June
16, 2006.
Chevron and Shell’s complaint
Aggrieved anew, Chevron and Shell filed a complaint in the RTC of Manila,
Branch 20, asking for the nullification of Ordinance No. 8119. This was
docketed as civil case no. 06-115334.
Petron’s complaint
Petron filed its own complaint on the same causes of action in the RTC of
Manila, Branch 41. This was docketed as civil case no. 07-116700. The
court issued a TRO in favor of Petron, enjoining the City of Manila and
respondent from enforcing Ordinance No. 8119.
Issues: Given these additional pieces of information, the following were
submitted as issues for the Court’s resolution:
1. Whether movants-intervenors should be allowed to intervene in this
case. [Yes]
2. Whether the following are impediments to the execution of our
March 7, 2007 decision. [No]
a. Ordinance No. 8119, the enactment and existence of
which were not previously brought by the parties to the
attention of the Court, and
b. writs of preliminary prohibitory injunction and preliminary
mandatory injunction and status quo order issued by the
RTC of Manila, Branches 39 and 42.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
3. Whether the implementation of Ordinance No. 8027 will unduly
encroach upon the DOEs powers and functions involving energy
resources.
During the oral arguments, the parties submitted to this Court’s power to
rule on the constitutionality and validity of Ordinance No. 8027
despite the pendency of consolidated cases involving this issue in the
RTC. The importance of settling this controversy as fully and as
expeditiously as possible was emphasized, considering its impact on
public interest. Thus, we will also dispose of this issue here.
History of the Pandacan Terminals
Before the Court resolves these issues, a brief review of the history of the
Pandacan Terminals is called for to put our discussion in the proper
context.
Pandacan (one of the districts of the City of Manila) is situated along the
banks of the Pasig River. At the turn of the twentieth century, Pandacan
was unofficially designated as the industrial center of Manila.
The area, then largely uninhabited, was ideal for various emerging
industries as the nearby river facilitated the transportation of goods and
products. In the 1920s, it was classified as an industrial zone.
Among its early industrial settlers were the oil companies. Shell
established its installation there on January 30, 1914.
Caltex (now Chevron) followed suit in 1917 when the company began
marketing its products in the country. In 1922, it built a warehouse depot
which was later converted into a key distribution terminal.
The corporate presence in the Philippines of Esso (Petrons predecessor)
became more keenly felt when it won a concession to build and operate
a refinery in Bataan in 1957.
It then went on to operate a state-of-the-art lube oil blending plant in
the Pandacan Terminals where it manufactures lubes and greases.
On December 8, 1941, the Second World War reached the shores of the
Philippine Islands. Although Manila was declared an open city, the
Americans had no interest in welcoming the Japanese. In fact, in their
zealous attempt to fend off the Japanese Imperial Army, the United States
Army took control of the Pandacan Terminals and hastily made plans to
destroy the storage facilities to deprive the advancing Japanese Army of
a valuable logistics weapon. The U.S. Army burned unused petroleum,
causing a frightening conflagration. The fire consequently destroyed the
Pandacan Terminals and rendered its network of depots and service
stations inoperative.
After the war, the oil depots were reconstructed. Pandacan changed as
Manila rebuilt itself. The three major oil companies resumed the
operation of their depots. But the district was no longer a sparsely
populated industrial zone; it had evolved into a bustling, hodgepodge
community.
Today, Pandacan has become a densely populated area inhabited by
about 84,000 people, majority of whom are urban poor who call it home.
Aside from numerous industrial installations, there are also small
businesses, churches, restaurants, schools, daycare centers and residences
situated there.
Malacañang Palace, the official residence of the President of the
Philippines and the seat of governmental power, is just two kilometers
away. There is a private school near the Petron depot. Along the walls of
the Shell facility are shanties of informal settlers. More than 15,000
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students are enrolled in elementary and high schools situated near these
facilities. A university with a student population of about 25,000 is located
directly across the depot on the banks of the Pasig river.
The 36-hectare Pandacan Terminals house the oil companies distribution
terminals and depot facilities. The refineries of Chevron and Shell in
Tabangao and Bauan, both in Batangas, respectively, are connected to the
Pandacan Terminals through a 114-kilometerunderground pipeline
system. Petrons refinery in Limay, Bataan, on the other hand, also services
the depot. The terminals store fuel and other petroleum products and
supply 95% of the fuel requirements of Metro Manila, 50% of Luzon’s
consumption and 35% nationwide. Fuel can also be transported through
barges along the Pasig river or tank trucks via the South Luzon
Expressway.
Issue #1
Movants-intervenors are allowed to intervene in this case.
Intervention Of The Oil Companies And The DOE Should Be Allowed
In The Interest of Justice
Intervention is a remedy by which a third party, not originally impleaded
in the proceedings, becomes a litigant therein to enable him, her or it to
protect or preserve a right or interest which may be affected by such
proceedings.
The following are the requisites for intervention of a non-party:
1. Legal interest
a. in the matter in controversy; or
b. in the success of either of the parties; or
c. against both parties; or
d. person is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of
the court or of an officer thereof;
2. Intervention will not unduly delay or prejudice the adjudication of rights of
original parties;
3. Intervenors rights may not be fully protected in a separate proceeding,
and
4. The motion to intervene may be filed at any time before rendition of
judgment by the trial court.
For both the oil companies and DOE, the last requirement is definitely
absent. The Court, however, has recognized exceptions to Section 2, Rule
19 in the interest of substantial justice.
The oil companies assert that they have a legal interest in this case
because the implementation of Ordinance No. 8027 will directly affect
their business and property rights.
The Court agrees that the oil companies have a direct and immediate
interest in the implementation of Ordinance No. 8027. Their claim is that
they will need to spend billions of pesos if they are compelled to relocate
their oil depots out of Manila.
Considering that they admitted knowing about this case from the time of
its filing on December 4, 2002, they should have intervened long before
our March 7, 2007 decision to protect their interests. But they did not.
Neither did they offer any worthy explanation to justify their late
intervention.
Be that as it may, although their motion for intervention was not filed on
time, the Court will allow it because they raised and presented novel issues
and arguments that were not considered by the Court in its March 7, 2007
decision.
After all, the allowance or disallowance of a motion to intervene is
addressed to the sound discretion of the court before which the case is
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
pending. Considering the compelling reasons favoring intervention, the
Court does not think that this will unduly delay or prejudice the
adjudication of rights of the original parties. In fact, it will be expedited
since their intervention will enable us to rule on the constitutionality of
Ordinance No. 8027 instead of waiting for the RTC’s decision.
The DOE, on the other hand, alleges that its interest in this case is also
direct and immediate as Ordinance No. 8027 encroaches upon its
exclusive and national authority over matters affecting the oil industry. It
seeks to intervene in order to represent the interests of the members of
the public who stand to suffer if the Pandacan Terminals operations are
discontinued. Suffice it to say at this point that, for the purpose of hearing
all sides and considering the transcendental importance of this case, the
Court will also allow DOEs intervention.
Issue #2
The injunctive writs are not impediments to the enforcement of Ordinance
No. 8027.
We now proceed to the issue of whether the injunctive writs are legal
impediments to the enforcement of Ordinance No. 8027.
There are two requisites for the issuance of a preliminary injunction:
1. the right to be protected exists prima facie, and
2. the acts sought to be enjoined are violative of that right.
It must be proven that the violation sought to be prevented will cause an
irreparable injustice.
The act sought to be restrained here was the enforcement of Ordinance
No. 8027. It is a settled rule that an ordinance enjoys the presumption of
validity and, as such, cannot be restrained by injunction. Nevertheless,
when the validity of the ordinance is assailed, the courts are not precluded
from issuing an injunctive writ against its enforcement. However, the
Court has declared that the issuance of said writ is proper only when:
...the petitioner assailing the ordinance has made out a case of
unconstitutionality strong enough to overcome, in the mind of the
judge, the presumption of validity, in addition to a showing of a clear
legal right to the remedy sought... (Emphasis supplied)
Nowhere in the judge’s discussion can we see that, in addition to a
showing of a clear legal right of Chevron and Shell to the remedy
sought, he was convinced that they had made out a case of
unconstitutionality or invalidity strong enough to overcome the
presumption of validity of the ordinance. Statutes and ordinances are
presumed valid unless and until the courts declare the contrary in clear
and unequivocal terms. The mere fact that the ordinance is alleged to be
unconstitutional or invalid will not entitle a party to have its enforcement
enjoined. The presumption is all in favor of validity.
Contention: The oil companies argue that this presumption must be set
aside when the invalidity or unreasonableness appears on the face of the
ordinance itself.
The Court sees no reason to set aside the presumption. The ordinance, on
its face, does not at all appear to be unconstitutional. It reclassified the
subject area from industrial to commercial. Prima facie, this power is
within the power of municipal corporations.
Courts will not invalidate an ordinance unless it clearly appears that it is
unconstitutional. There is no such showing here. Therefore, the injunctive
writs issued in the Manila RTCs May 19, 2003 order had no leg to stand
on.
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The Court is aware that the issuance of these injunctive writs is not being
assailed as tainted with grave abuse of discretion. However, the Court is
confronted with the question of whether these writs issued by a lower
court are impediments to the enforcement of Ordinance No. 8027 (which
is the subject of the mandamus petition). As already discussed, the Court
rules in the negative.
Ordinance No. 8027 was not superseded by Ordinance No. 8119
The March 7, 2007 decision did not take into consideration the passage
of Ordinance No. 8119 entitled An Ordinance Adopting the Manila
Comprehensive Land Use Plan and Zoning Regulations of 2006 and
Providing for the Administration, Enforcement and Amendment thereto
which was approved by respondent on June 16, 2006. The simple reason
was that the Court was never informed about this ordinance.
While courts are required to take judicial notice of the laws enacted by
Congress, the rule with respect to local ordinances is different. Ordinances
are not included in the enumeration of matters covered by mandatory
judicial notice under Section 1, Rule 129 of the Rules of Court.[73]
Although, Section 50 of RA 409[74] provides that:
Section 50 Judicial notice of ordinances. - All courts sitting in the city shall take
judicial notice of the ordinances passed by the [Sangguniang Panglungsod].
This cannot be taken to mean that this Court, since it has its seat in the
City of Manila, should have taken steps to procure a copy of the ordinance
on its own, relieving the party of any duty to inform the Court about it.
Even where there is a statute that requires a court to take judicial notice
of municipal ordinances, a court is not required to take judicial notice of
ordinances that are not before it and to which it does not have access. The
party asking the court to take judicial notice is obligated to supply the
court with the full text of the rules the party desires it to have notice of.
Counsel should take the initiative in requesting that a trial court take
judicial notice of an ordinance even where a statute requires courts to take
judicial notice of local ordinances.
The intent of a statute requiring a court to take judicial notice of a local
ordinance is to remove any discretion a court might have in determining
whether or not to take notice of an ordinance. Such a statute does not
direct the court to act on its own in obtaining evidence for the record and
a party must make the ordinance available to the court for it to take notice.
In its defense, respondent claimed that he did not inform the Court about
the enactment of Ordinance No. 8119 because he believed that it was
different from Ordinance No. 8027 and that the two were not inconsistent
with each other.
In the same way that we deem the intervenors late intervention in this
case unjustified, we find the failure of respondent, who was an original
party here, inexcusable.
Ordinance No. 8119 did not impliedly repeal Ordinance No. 8027
Both the oil companies and DOE argue that Ordinance No. 8119 repealed
Ordinance No. 8027. They assert that although there was no express
repeal of Ordinance No. 8027, Ordinance No. 8119 impliedly repealed it.
According to the oil companies, Ordinance No. 8119 reclassified the area
covering the Pandacan Terminals to High Density Residential/Mixed Use
Zone (R-3/MXD) whereas Ordinance No. 8027 reclassified the same area
from Industrial II to Commercial I.
Moreover, Ordinance No. 8119 provides for a phase-out of seven years.
This is opposed to Ordinance No. 8027 which compels affected entities to
vacate the area within six months from the effectivity of the ordinance.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
Ordinance No. 8119 also designated the Pandacan oil depot area as a
Planned Unit Development/Overlay Zone (O-PUD).
Section 23. Use Regulations in Planned Unit Development/Overlay Zone (O-
PUD). O-PUD Zones are identified specific sites in the City of Manila wherein
the project site is comprehensively planned as an entity via unitary site plan
which permits flexibility in planning/ design, building siting, complementarily of
building types and land uses, usable open spaces and the preservation of
significant natural land features, pursuant to regulations specified for each
particular PUD. Enumerated below are identified PUD:
Respondent claims that in passing Ordinance No. 8119,
the Sanggunian did not intend to repeal Ordinance No. 8027 but meant
instead to carry over 8027s provisions to 8119 for the purpose of making
Ordinance No. 8027 applicable to the oil companies even after the
passage of Ordinance No. 8119.
We agree with respondent. Repeal by implication proceeds on the
premise that where a statute of later date clearly reveals the intention of
the legislature to abrogate a prior act on the subject, that intention must
be given effect.[91]
There are two kinds of implied repeal. The first is: where the provisions in
the two acts on the same subject matter are irreconcilably contradictory,
the latter act, to the extent of the conflict, constitutes an implied repeal of
the earlier one.[92] The second is: if the later act covers the whole subject
of the earlier one and is clearly intended as a substitute, it will operate to
repeal the earlier law.[93] The oil companies argue that the situation here
falls under the first category.
Implied repeals are not favored and will not be so declared unless the
intent of the legislators is manifest.[94] As statutes and ordinances are
presumed to be passed only after careful deliberation and with knowledge
of all existing ones on the subject, it follows that, in passing a law, the
legislature did not intend to interfere with or abrogate a former law
relating to the same subject matter.[95] If the intent to repeal is not clear,
the later act should be construed as a continuation of, and not a substitute
for, the earlier act.[96]
These standards are deeply enshrined in our jurisprudence. We disagree
that, in enacting Ordinance No. 8119, there was any indication of the
legislative purpose to repeal Ordinance No. 8027.[97] The excerpt quoted
above is proof that there was never such an intent. While it is true that
both ordinances relate to the same subject matter, i.e. classification of the
land use of the area where Pandacan oil depot is located, if there is no
intent to repeal the earlier enactment, every effort at reasonable
construction must be made to reconcile the ordinances so that both can
be given effect:
The fact that a later enactment may relate to the same subject matter as that
of an earlier statute is not of itself sufficient to cause an implied repeal of the
prior act, since the new statute may merely be cumulative or a continuation of
the old one. What is necessary is a manifest indication of legislative purpose
to repeal.[98]
For the first kind of implied repeal, there must be an irreconcilable conflict
between the two ordinances. There is no conflict between the two
ordinances. Ordinance No. 8027 reclassified the Pandacan area from
Industrial II to Commercial I. Ordinance No. 8119, in Section 23,
designated it as a Planned Unit Development/Overlay Zone (O-PUD). In
its Annex C which defined the zone boundaries,[99] the Pandacan area was
shown to be within the High Density Residential/Mixed Use Zone (R-
3/MXD). These zone classifications in Ordinance No. 8119 are not
inconsistent with the reclassification of the Pandacan area from Industrial
to Commercial in Ordinance No. 8027. The O-PUD classification merely
made Pandacan a project site ... comprehensively planned as an entity via
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unitary site plan which permits flexibility in planning/design, building
siting, complementarity of building types and land uses, usable open
spaces and the preservation of significant natural land features....[100] Its
classification as R-3/MXD means that it should be used primarily for high-
rise housing/dwelling purposes and limited
complementary/supplementary trade, services and business
activities.[101] There is no conflict since both ordinances actually have a
common objective, i.e., to shift the zoning classification from industrial to
commercial (Ordinance No. 8027) or mixed residential/commercial
(Ordinance No. 8119).
Moreover, it is a well-settled rule in statutory construction that a
subsequent general law does not repeal a prior special law on the same
subject unless it clearly appears that the legislature has intended by the
latter general act to modify or repeal the earlier special law. Generalia
specialibus non derogant (a general law does not nullify a specific or
special law).[102] This is so even if the provisions of the general law are
sufficiently comprehensive to include what was set forth in the special
act.[103] The special act and the general law must stand together, one as
the law of the particular subject and the other as the law of general
application.[104] The special law must be taken as intended to constitute
an exception to, or a qualification of, the general act or provision.[105]
The reason for this is that the legislature, in passing a law of special character,
considers and makes special provisions for the particular circumstances dealt
with by the special law. This being so, the legislature, by adopting a general
law containing provisions repugnant to those of the special law and without
making any mention of its intention to amend or modify such special law,
cannot be deemed to have intended an amendment, repeal or modification of
the latter.
[106]
Ordinance No. 8027 is a special law[107] since it deals specifically with a
certain area described therein (the Pandacan oil depot area) whereas
Ordinance No. 8119 can be considered a general law[108] as it covers the
entire city of Manila.
The oil companies assert that even if Ordinance No. 8027 is a special law,
the existence of an all-encompassing repealing clause in Ordinance No.
8119 evinces an intent on the part of the Sanggunian to repeal the earlier
ordinance:
Section 84. Repealing Clause. All ordinances, rules, regulations in conflict with
the provisions of this Ordinance are hereby repealed; PROVIDED, That the
rights that are vested upon the effectivity of this Ordinance shall not be
impaired.
They cited Hospicio de San Jose de Barili, Cebu City v. Department of
Agrarian Reform:[109]
The presence of such general repealing clause in a later statute clearly
indicates the legislative intent to repeal all prior inconsistent laws on the subject
matter, whether the prior law is a general law or a special law... Without such
a clause, a later general law will ordinarily not repeal a prior special law on the
same subject. But with such clause contained in the subsequent general law,
the prior special law will be deemed repealed, as the clause is a clear
legislative intent to bring about that result.
[110]
This ruling in not applicable here. The repealing clause of Ordinance No.
8119 cannot be taken to indicate the legislative intent to repeal all prior
inconsistent laws on the subject matter, including Ordinance No. 8027, a
special enactment, since the aforequoted minutes (an official record of the
discussions in the Sanggunian) actually indicated the clear intent to
preserve the provisions of Ordinance No. 8027.
To summarize, the conflict between the two ordinances is more apparent
than real. The two ordinances can be reconciled. Ordinance No. 8027 is
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applicable to the area particularly described therein whereas Ordinance
No. 8119 is applicable to the entire City of Manila.
Mandamus Lies To Compel Respondent Mayor To Enforce Ordinance
No. 8027
The oil companies insist that mandamus does not lie against respondent
in consideration of the separation of powers of the executive and
judiciary.[111] This argument is misplaced. Indeed,
[the] Courts will not interfere by mandamus proceedings with the legislative [or
executive departments] of the government in the legitimate exercise of its
powers, except to enforce mere ministerial acts required by law to be
performed by some officer thereof. (Emphasis Supplied)
[112]
since this is the function of a writ of mandamus, which is the power to
compel the performance of an act which the law specifically enjoins as a
duty resulting from office, trust or station.[113]
They also argue that petitioners had a plain, speedy and adequate remedy
to compel respondent to enforce Ordinance No. 8027 which was to seek
relief from the President of the Philippines through the Secretary of the
Department of Interior and Local Government (DILG) by virtue of the
Presidents power of supervision over local government units. Again, we
disagree. A party need not go first to the DILG in order to compel the
enforcement of an ordinance. This suggested process would be
unreasonably long, tedious and consequently injurious to the interests of
the local government unit (LGU) and its constituents whose welfare is
sought to be protected. Besides, petitioners resort to an original action
for mandamusbefore this Court is undeniably allowed by the
Constitution.[114]
Ordinance No. 8027 Is Constitutional And Valid
Having ruled that there is no impediment to the enforcement of
Ordinance No. 8027, we now proceed to make a definitive ruling on its
constitutionality and validity.
The tests of a valid ordinance are well established. For an ordinance to be
valid, it must not only be within the corporate powers of the LGU to enact
and be passed according to the procedure prescribed by law, it must also
conform to the following substantive requirements: (1) must not
contravene the Constitution or any statute; (2) must not be unfair or
oppressive; (3) must not be partial or discriminatory; (4) must not prohibit
but may regulate trade; (5) must be general and consistent with public
policy and (6) must not be unreasonable.[115]
The City of Manila Has The Power To Enact Ordinance No. 8027
Ordinance No. 8027 was passed by the Sangguniang Panlungsod of
Manila in the exercise of its police power. Police power is the plenary
power vested in the legislature to make statutes and ordinances to
promote the health, morals, peace, education, good order or safety and
general welfare of the people.[116] This power flows from the recognition
that salus populi est suprema lex (the welfare of the people is the supreme
law).[117] While police power rests primarily with the national legislature,
such power may be delegated.[118] Section 16 of the LGC, known as the
general welfare clause, encapsulates the delegated police power to local
governments:[119]
Section 16. General Welfare. ― Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as
powers necessary, appropriate, or incidental for its efficient and effective
governance, and those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local government units
shall ensure and support, among other things, the preservation and enrichment
of culture, promote health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of appropriate and
self-reliant scientific and technological capabilities, improve public morals,
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enhance economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve the comfort
and convenience of their inhabitants.
LGUs like the City of Manila exercise police power through their respective
legislative bodies, in this case, the Sangguniang Panlungsod or the city
council. Specifically, the Sanggunian can enact ordinances for the general
welfare of the city:
Section. 458. Powers, Duties, Functions and Compensation. (a)
The sangguniang panglungsod, as the legislative branch of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare
of the city and its inhabitants pursuant to Section 16 of this Codexxxx
This police power was also provided for in RA 409 or the Revised Charter
of the City of Manila:
Section 18. Legislative powers. The [City Council] shall have the following
legislative powers:
xxx xxx xxx
(g) To enact all ordinances it may deem necessary and proper for the
sanitation and safety, the furtherance of the prosperity, and the promotion of
the morality, peace, good order, comfort, convenience, and general welfare of
the city and its inhabitants, and such others as may be necessary to carry into
effect and discharge the powers and duties conferred by this chapter xxxx [120]
Specifically, the Sanggunian has the power to reclassify land within the
jurisdiction of the city.[121]
The Enactment Of Ordinance No. 8027 Is A Legitimate Exercise Of
Police Power
As with the State, local governments may be considered as having
properly exercised their police power only if the following requisites are
met: (1) the interests of the public generally, as distinguished from those
of a particular class, require its exercise and (2) the means employed are
reasonably necessary for the accomplishment of the purpose and not
unduly oppressive upon individuals. In short, there must be a concurrence
of a lawful subject and a lawful method.[122]
Ordinance No. 8027 was enacted for the purpose of promoting sound
urban planning, ensuring health, public safety and general welfare[123]of
the residents of Manila. The Sanggunian was impelled to take measures
to protect the residents of Manila from catastrophic devastation in case
of a terrorist attack on the Pandacan Terminals. Towards this objective,
the Sanggunian reclassified the area defined in the ordinance from
industrial to commercial.
The following facts were found by the Committee on Housing,
Resettlement and Urban Development of the City of Manila which
recommended the approval of the ordinance:
(1) the depot facilities contained 313.5 million liters of highly flammable
and highly volatile products which include petroleum gas, liquefied
petroleum gas, aviation fuel, diesel, gasoline, kerosene and fuel oil among
others;
(2) the depot is open to attack through land, water or air;
(3) it is situated in a densely populated place and near Malacaang Palace
and
(4) in case of an explosion or conflagration in the depot, the fire could
spread to the neighboring communities.[124]
The ordinance was intended to safeguard the rights to life, security and
safety of all the inhabitants of Manila and not just of a particular
class.[125]The depot is perceived, rightly or wrongly, as a representation of
western interests which means that it is a terrorist target. As long as it
there is such a target in their midst, the residents of Manila are not safe. It
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therefore became necessary to remove these terminals to dissipate the
threat.According to respondent:
Such a public need became apparent after the 9/11 incident which showed that
what was perceived to be impossible to happen, to the most powerful country
in the world at that, is actually possible. The destruction of property and the
loss of thousands of lives on that fateful day became the impetus for a public
need. In the aftermath of the 9/11 tragedy, the threats of terrorism continued
[such] that it became imperative for governments to take measures to combat
their effects.
[126]
Wide discretion is vested on the legislative authority to determine not only
what the interests of the public require but also what measures are
necessary for the protection of such interests.[127] Clearly,
the Sanggunian was in the best position to determine the needs of its
constituents.
In the exercise of police power, property rights of individuals may be
subjected to restraints and burdens in order to fulfill the objectives of the
government.[128] Otherwise stated, the government may enact legislation
that may interfere with personal liberty, property, lawful businesses and
occupations to promote the general welfare.[129] However, the
interference must be reasonable and not arbitrary. And to forestall
arbitrariness, the methods or means used to protect public health, morals,
safety or welfare must have a reasonable relation to the end in view.[130]
The means adopted by the Sanggunian was the enactment of a zoning
ordinance which reclassified the area where the depot is situated from
industrial to commercial. A zoning ordinance is defined as a local city or
municipal legislation which logically arranges, prescribes, defines and
apportions a given political subdivision into specific land uses as present
and future projection of needs.[131] As a result of the zoning, the continued
operation of the businesses of the oil companies in their present location
will no longer be permitted. The power to establish zones for industrial,
commercial and residential uses is derived from the police power itself
and is exercised for the protection and benefit of the residents of a
locality.[132] Consequently, the enactment of Ordinance No. 8027 is within
the power of the Sangguniang Panlungsod of the City of Manila and any
resulting burden on those affected cannot be said to be unjust:
There can be no doubt that the City of Manila has the power to divide its
territory into residential and industrial zones, and to prescribe that offensive
and unwholesome trades and occupations are to be established exclusively in
the latter zone.
The benefits to be derived by cities adopting such regulations (zoning) may be
summarized as follows: They attract a desirable and assure a permanent
citizenship; they foster pride in and attachment to the city; they promote
happiness and contentment; they stabilize the use and value of property and
promote the peace, [tranquility], and good order of the city. We do not hesitate
to say that the attainment of these objects affords a legitimate field for the
exercise of the police power. He who owns property in such a district is not
deprived of its use by such regulations. He may use it for the purposes to which
the section in which it is located is dedicated. That he shall not be permitted to
use it to the desecration of the community constitutes no unreasonable or
permanent hardship and results in no unjust burden.
Xxx xxx xxx
The 14th Amendment protects the citizen in his right to engage in any lawful
business, but it does not prevent legislation intended to regulate useful
occupations which, because of their nature or location, may prove injurious or
offensive to the public.
[133]
We entertain no doubt that Ordinance No. 8027 is a valid police power
measure because there is a concurrence of lawful subject and lawful
method.
Ordinance No. 8027 Is Not Unfair, Oppressive Or Confiscatory Which
Amounts To Taking Without Compensation
According to the oil companies, Ordinance No. 8027 is unfair and
oppressive as it does not only regulate but also absolutely prohibits them
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from conducting operations in the City of Manila. Respondent counters
that this is not accurate since the ordinance merely prohibits the oil
companies from operating their businesses in the Pandacan area.
Indeed, the ordinance expressly delineated in its title and in Section 1 what
it pertained to. Therefore, the oil companies contention is not supported
by the text of the ordinance. Respondent succinctly stated that:
The oil companies are not forbidden to do business in the City of Manila. They
may still very well do so, except that their oil storage facilities are no longer
allowed in the Pandacan area. Certainly, there are other places in the City of
Manila where they can conduct this specific kind of business.Ordinance No.
8027 did not render the oil companies illegal. The assailed ordinance affects
the oil companies business only in so far as the Pandacan area is concerned.
[134]
The oil companies are not prohibited from doing business in other
appropriate zones in Manila. The City of Manila merely exercised its power
to regulate the businesses and industries in the zones it established:
As to the contention that the power to regulate does not include the power to
prohibit, it will be seen that the ordinance copied above does not prohibit the
installation of motor engines within the municipality of Cabanatuan but only
within the zone therein fixed. If the municipal council of Cabanatuan is
authorized to establish said zone, it is also authorized to provide what kind of
engines may be installed therein. In banning the installation in said zone of all
engines not excepted in the ordinance, the municipal council of Cabanatuan
did no more than regulate their installation by means of zonification. [135]
The oil companies aver that the ordinance is unfair and oppressive
because they have invested billions of pesos in the depot.[136] Its forced
closure will result in huge losses in income and tremendous costs in
constructing new facilities.
Their contention has no merit. In the exercise of police power, there is a
limitation on or restriction of property interests to promote public welfare
which involves no compensable taking. Compensation is necessary only
when the states power of eminent domain is exercised. In eminent
domain, property is appropriated and applied to some public purpose.
Property condemned under the exercise of police power, on the other
hand, is noxious or intended for a noxious or forbidden purpose and,
consequently, is not compensable.[137] The restriction imposed to protect
lives, public health and safety from danger is not a taking. It is merely the
prohibition or abatement of a noxious use which interferes with
paramount rights of the public.
Property has not only an individual function, insofar as it has to provide
for the needs of the owner, but also a social function insofar as it has to
provide for the needs of the other members of society.[138] The principle
is this:
Police power proceeds from the principle that every holder of property,
however absolute and unqualified may be his title, holds it under the implied
liability that his use of it shall not be injurious to the equal enjoyment of others
having an equal right to the enjoyment of their property, nor injurious to the
right of the community. Rights of property, like all other social and conventional
rights, are subject to reasonable limitations in their enjoyment as shall prevent
them from being injurious, and to such reasonable restraints and regulations
established by law as the legislature, under the governing and controlling
power vested in them by the constitution, may think necessary and expedient.
[139]
In the regulation of the use of the property, nobody else acquires the use
or interest therein, hence there is no compensable taking.[140] In this case,
the properties of the oil companies and other businesses situated in the
affected area remain theirs. Only their use is restricted although they can
be applied to other profitable uses permitted in the commercial zone.
Ordinance No. 8027 Is Not Partial And Discriminatory
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from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
The oil companies take the position that the ordinance has discriminated
against and singled out the Pandacan Terminals despite the fact that the
Pandacan area is congested with buildings and residences that do not
comply with the National Building Code, Fire Code and Health and
Sanitation Code.[141]
This issue should not detain us for long. An ordinance based on
reasonable classification does not violate the constitutional guaranty of
the equal protection of the law.[142] The requirements for a valid and
reasonable classification are: (1) it must rest on substantial distinctions; (2)
it must be germane to the purpose of the law; (3) it must not be limited
to existing conditions only and (4) it must apply equally to all members of
the same class.[143]
The law may treat and regulate one class differently from another class
provided there are real and substantial differences to distinguish one class
from another.[144] Here, there is a reasonable classification. We reiterate
that what the ordinance seeks to prevent is a catastrophic devastation that
will result from a terrorist attack. Unlike the depot, the surrounding
community is not a high-value terrorist target. Any damage caused by fire
or explosion occurring in those areas would be nothing compared to the
damage caused by a fire or explosion in the depot itself. Accordingly,
there is a substantial distinction. The enactment of the ordinance which
provides for the cessation of the operations of these terminals removes
the threat they pose. Therefore it is germane to the purpose of the
ordinance. The classification is not limited to the conditions existing when
the ordinance was enacted but to future conditions as well. Finally, the
ordinance is applicable to all businesses and industries in the area it
delineated.
Ordinance No. 8027 is Not Inconsistent With RA 7638 And RA 8479
The oil companies and the DOE assert that Ordinance No. 8027 is
unconstitutional because it contravenes RA 7638 (DOE Act of 1992)[145]and
RA 8479 (Downstream Oil Industry Deregulation Law of 1998).[146] They
argue that through RA 7638, the national legislature declared it a policy
of the state to ensure a continuous, adequate, and economic supply of
energy[147] and created the DOE to implement this policy. Thus, under
Section 5 I, DOE is empowered to establish and administer programs for
the exploration, transportation, marketing, distribution, utilization,
conservation, stockpiling, and storage of energy resources. Considering
that the petroleum products contained in the Pandacan Terminals are
majorand critical energy resources, they conclude that their
administration, storage, distribution and transport are of national interest
and fall under DOEs primary and exclusive jurisdiction.[148]
They further assert that the terminals are necessary for the delivery of
immediate and adequate supply of oil to its recipients in the most
economical way.[149] Local legislation such as Ordinance No. 8027 (which
effectively calls for the removal of these terminals) allegedly frustrates the
state policy of ensuring a continuous, adequate, and economic supply of
energy expressed in RA 7638, a national law.[150] Likewise, the ordinance
thwarts the determination of the DOE that the terminals operations
should be merely scaled down and not discontinued.[151] They insist that
this should not be allowed considering that it has a nationwide economic
impact and affects public interest transcending the territorial jurisdiction
of the City of Manila.[152]
According to them, the DOEs supervision over the oil industry under RA
7638 was subsequently underscored by RA 8479, particularly in Section 7
thereof:
SECTION 7. Promotion of Fair Trade Practices. ― The Department of Trade
and Industry (DTI) and DOE shall take all measures to promote fair trade and
prevent cartelization, monopolies, combinations in restraint of trade, and any
unfair competition in the Industry as defined in Article 186 of the Revised Penal
Code, and Articles 168 and 169 of Republic Act No. 8293, otherwise known as
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the Intellectual Property Rights Law. The DOE shall continue to encourage
certain practices in the Industry which serve the public interest and
are intended to achieve efficiency and cost reduction, ensure continuous
supply of petroleum products, and enhance environmental protection.
These practices may include borrow-and-loan agreements, rationalized depot
and manufacturing operations, hospitality agreements, joint tanker and
pipeline utilization, and joint actions on oil spill control and fire
prevention. (Emphasis supplied)
Respondent counters that DOEs regulatory power does not preclude LGUs
from exercising their police power.[153]
Indeed, ordinances should not contravene existing statutes enacted by
Congress. The rationale for this was clearly explained in Magtajas vs. Pryce
Properties Corp., Inc.:[154]
The rationale of the requirement that the ordinances should not contravene a
statute is obvious. Municipal governments are only agents of the national
government. Local councils exercise only delegated legislative powers
conferred on them by Congress as the national lawmaking body. The delegate
cannot be superior to the principal or exercise powers higher than those of the
latter. It is a heresy to suggest that the local government units can undo the
acts of Congress, from which they have derived their power in the first place,
and negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and rights
wholly from the legislature. It breathes into them the breath of life, without
which they cannot exist. As it creates, so it may destroy. As it may destroy, it
may abridge and control. Unless there is some constitutional limitation on the
right, the legislature might, by a single act, and if we can suppose it capable of
so great a folly and so great a wrong, sweep from existence all of the municipal
corporations in the State, and the corporation could not prevent it. We know of
no limitation on the right so far as to the corporation themselves are concerned.
They are, so to phrase it, the mere tenants at will of the legislature.
This basic relationship between the national legislature and the local
government units has not been enfeebled by the new provisions in the
Constitution strengthening the policy of local autonomy. Without meaning to
detract from that policy, we here confirm that Congress retains control of the
local government units although in significantly reduced degree now than
under our previous Constitutions. The power to create still includes the power
to destroy. The power to grant still includes the power to withhold or recall.
True, there are certain notable innovations in the Constitution, like the direct
conferment on the local government units of the power to tax, which cannot
now be withdrawn by mere statute. By and large, however, the national
legislature is still the principal of the local government units, which cannot defy
its will or modify or violate it.
[155]
The question now is whether Ordinance No. 8027 contravenes RA 7638
and RA 8479. It does not.
Under Section 5 I of RA 7638, DOE was given the power to establish and
administer programs for the exploration, transportation, marketing,
distribution, utilization, conservation, stockpiling, and storage of energy
resources. On the other hand, under Section 7 of RA 8749, the DOE shall
continue to encourage certain practices in the Industry which serve the
public interest and are intended to achieve efficiency and cost reduction,
ensure continuous supply of petroleum products. Nothing in these
statutes prohibits the City of Manila from enacting ordinances in the
exercise of its police power.
The principle of local autonomy is enshrined in and zealously protected
under the Constitution. In Article II, Section 25 thereof, the people
expressly adopted the following policy:
Section 25. The State shall ensure the autonomy of local governments.
An entire article (Article X) of the Constitution has been devoted to
guaranteeing and promoting the autonomy of LGUs. The LGC was
specially promulgated by Congress to ensure the autonomy of
local governments as mandated by the Constitution:
Section 2. Declaration of Policy. ― (a) It is hereby declared the policy of the
State that the territorial and political subdivisions of the State shall enjoy
genuine and meaningful local autonomy to enable them to attain their
fullest development as self-reliant communities and make them more
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from the discussions and syllabus of
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effective partners in the attainment of national goals. Toward this end, the
State shall provide for a more responsive and accountable local government
structure instituted through a system of decentralization whereby local
government units shall be given more powers, authority, responsibilities, and
resources. The process of decentralization shall proceed from the National
Government to the local government units. (Emphasis supplied)
We do not see how the laws relied upon by the oil companies and DOE
stripped the City of Manila of its power to enact ordinances in the exercise
of its police power and to reclassify the land uses within its jurisdiction. To
guide us, we shall make a brief survey of our decisions where the police
power measure of the LGU clashed with national laws.
In Tan v. Perea,[156] the Court ruled that Ordinance No. 7 enacted by the
municipality of Daanbantayan, Cebu allowing the operation of three
cockpits was invalid for violating P.D. 449 (or the Cockfighting Law of
1974) which permitted only one cockpit per municipality.
In Batangas CATV, Inc. v. Court of Appeals,[157] the Sangguniang
Panlungsod of Batangas City enacted Resolution No. 210
granting Batangas CATV, Inc. a permit to operate a cable television (CATV)
system in Batangas City. The Court held that the LGU did not have the
authority to grant franchises to operate a CATV system because it was the
National Telecommunications Commission (NTC) that had the power
under EO Nos. 205 and 436 to regulate CATV operations. EO 205
mandated the NTC to grant certificates of authority to CATV operators
while EO 436 vested on the NTC the power to regulate and supervise the
CATV industry.
In Lina, Jr. v. Pao,[158] we held that Kapasiyahan Bilang 508, Taon 1995 of
the Sangguniang Panlalawigan of Laguna could not be used as
justification to prohibit lotto in the municipality of San Pedro, Laguna
because lotto was duly authorized by RA 1169, as amended by BP 42. This
law granted a franchise to the Philippine Charity Sweepstakes Office and
allowed it to operate lotteries.
In Magtajas v. Pryce Properties Corp., Inc.,[159] the Sangguniang
Panlungsod of Cagayan de Oro City passed Ordinance Nos. 3353 and
3375-93 prohibiting the operation of casinos in the city. We ruled that
these ordinances were void for contravening P.D. 1869 or the charter of
the Philippine Amusements and Gaming Corporation which had the
power to operate casinos.
The common dominator of all of these cases is that the national laws were
clearly and expressly in conflict with the ordinances/resolutions of the
LGUs. The inconsistencies were so patent that there was no room for
doubt. This is not the case here.
The laws cited merely gave DOE general powers to establish and
administer programs for the exploration, transportation, marketing,
distribution, utilization, conservation, stockpiling, and storage of energy
resources and to encourage certain practices in the [oil] industry which
serve the public interest and are intended to achieve efficiency and cost
reduction, ensure continuous supply of petroleum products. These
powers can be exercised without emasculating the LGUs of the powers
granted them. When these ambiguous powers are pitted against the
unequivocal power of the LGU to enact police power and zoning
ordinances for the general welfare of its constituents, it is not difficult to
rule in favor of the latter. Considering that the powers of the DOE
regarding the Pandacan Terminals are not categorical, the doubt must be
resolved in favor of the City of Manila:
SECTION 5. Rules of Interpretation. ― In the interpretation of the provisions
of this Code, the following rules shall apply:
(a) Any provision on a power of a local government unit shall be liberally
interpreted in its favor, and in case of doubt, any question thereon shall be
resolved in favor of devolution of powers and of the lower local government
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unit. Any fair and reasonable doubt as to the existence of the power shall be
interpreted in favor of the local government unit concerned;
xxx xxx xxx
(g) IThe general welfare provisions in this Code shall be liberally interpreted to
give more powers to local government units in accelerating economic
development and upgrading the quality of life for the people in the community
xxxx
The least we can do to ensure genuine and meaningful local autonomy is
not to force an interpretation that negates powers explicitly granted to
local governments. To rule against the power of LGUs to reclassify areas
within their jurisdiction will subvert the principle of local autonomy
guaranteed by the Constitution.[160] As we have noted in earlier decisions,
our national officials should not only comply with the constitutional
provisions on local autonomy but should also appreciate the spirit and
liberty upon which these provisions are based.[161]
The DOE Cannot Exercise The Power Of Control Over LGUs
Another reason that militates against the DOEs assertions is that Section
4 of Article X of the Constitution confines the Presidents power over LGUs
to one of general supervision:
SECTION 4. The President of the Philippines shall exercise general
supervision over local governments. Xxxx
Consequently, the Chief Executive or his or her alter egos, cannot exercise
the power of control over them.[162] Control and supervision are
distinguished as follows:
[Supervision] means overseeing or the power or authority of an officer to see
that subordinate officers perform their duties. If the latter fail or neglect to fulfill
them, the former may take such action or step as prescribed by law to make
them perform their duties. Control, on the other hand, means the power of an
officer to alter or modify or nullify or set aside what a subordinate officer ha[s]
done in the performance of his duties and to substitute the judgment of the
former for that of the latter.[163]
Supervisory power, when contrasted with control, is the power of mere
oversight over an inferior body; it does not include any restraining
authority over such body.[164] It does not allow the supervisor to annul the
acts of the subordinate.[165] Here, what the DOE seeks to do is to set aside
an ordinance enacted by local officials, a power that not even its principal,
the President, has. This is because:
Under our present system of government, executive power is vested in the
President. The members of the Cabinet and other executive officials are
merely alter egos. As such, they are subject to the power of control of the
President, at whose will and behest they can be removed from office; or their
actions and decisions changed, suspended or reversed. In contrast, the heads
of political subdivisions are elected by the people. Their sovereign powers
emanate from the electorate, to whom they are directly accountable. By
constitutional fiat, they are subject to the Presidents supervision only, not
control, so long as their acts are exercised within the sphere of their legitimate
powers. By the same token, the President may not withhold or alter any
authority or power given them by the Constitution and the law. [166]
Thus, the President and his or her alter egos, the department heads,
cannot interfere with the activities of local governments, so long as they
act within the scope of their authority. Accordingly, the DOE cannot
substitute its own discretion for the discretion exercised by
the sanggunian of the City of Manila. In local affairs, the wisdom of local
officials must prevail as long as they are acting within the parameters of
the Constitution and the law.[167]
Ordinance No. 8027 Is Not Invalid For Failure To Comply With RA
7924 And EO 72
The oil companies argue that zoning ordinances of LGUs are required to
be submitted to the Metropolitan Manila Development Authority (MMDA)
for review and if found to be in compliance with its metropolitan physical
framework plan and regulations, it shall endorse the same to the Housing
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
and Land Use Regulatory Board (HLURB). Their basis is Section 3 (e) of RA
7924:[168]
SECTION 3. Scope of MMDA Services. ― Metro-wide services under the
jurisdiction of the MMDA are those services which have metro-wide impact
and transcend local political boundaries or entail huge expenditures such that
it would not be viable for said services to be provided by the individual [LGUs]
comprising Metropolitan Manila. These services shall include:
xxx xxx xxx
(g) Urban renewal, zoning, and land use planning, and shelter services
which include the formulation, adoption and implementation of policies,
standards, rules and regulations, programs and projects to rationalize and
optimize urban land use and provide direction to urban growth and expansion,
the rehabilitation and development of slum and blighted areas, the
development of shelter and housing facilities and the provision of necessary
social services thereof. (Emphasis supplied)
Reference was also made to Section 15 of its implementing rules:
Section 15. Linkages with HUDCC, HLURB, NHA, LGUs and Other National
Government Agencies Concerned on Urban Renewal, Zoning and Land Use
Planning and Shelter Services. Within the context of the National Housing and
Urban Development Framework, and pursuant to the national standards,
guidelines and regulations formulated by the Housing and Land Use
Regulatory Board [HLURB] on land use planning and zoning, the [MMDA] shall
prepare a metropolitan physical framework plan and regulations which shall
complement and translate the socio-economic development plan for Metro
Manila into physical or spatial terms, and provide the basis for the preparation,
review, integration and implementation of local land use plans and zoning,
ordinance of cities and municipalities in the area.
Said framework plan and regulations shall contain, among others, planning
and zoning policies and procedures that shall be observed by local government
units in the preparation of their own plans and ordinances pursuant to Section
447 and 458 of RA 7160, as well as the identification of sites and projects that
are considered to be of national or metropolitan significance.
Cities and municipalities shall prepare their respective land use plans
and zoning ordinances and submit the same for review and integration
by the [MMDA] and indorsement to HLURB in accordance with Executive
Order No. 72 and other pertinent laws.
In the preparation of a Metropolitan Manila physical framework plan and
regulations, the [MMDA] shall coordinate with the Housing and Urban
Development Coordinating Council, HLURB, the National Housing Authority,
Intramuros Administration, and all other agencies of the national government
which are concerned with land use and zoning, urban renewal and shelter
services. (Emphasis supplied)
They also claim that EO 72[169] provides that zoning ordinances of cities
and municipalities of Metro Manila are subject to review by the HLURB to
ensure compliance with national standards and guidelines. They cite
Section 1, paragraphs I, (e), (f) and (g):
SECTION 1. Plan formulation or updating. ―
xxx xxx xxx
(g) Cities and municipalities of Metropolitan Manila shall continue to formulate
or update their respective comprehensive land use plans, in accordance
with the land use planning and zoning standards and guidelines prescribed by
the HLURB pursuant to EO 392, S. of 1990, and other pertinent national
policies.
Xxx xxx xxx
(e) Pursuant to LOI 729, S. of 1978, EO 648, S. of 1981, and RA 7279,
the comprehensive land use plans of provinces, highly urbanized cities and
independent component cities shall be reviewed and ratified by the HLURB to
ensure compliance with national standards and guidelines.
(f) Pursuant to EO 392, S. of 1999, the comprehensive land use plans of
cities and municipalities of Metropolitan Manila shall be reviewed by the
HLURB to ensure compliance with national standards and guidelines.
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(g) Said review shall be completed within three (3) months upon receipt thereof
otherwise, the same shall be deemed consistent with law, and, therefore,
valid. (Emphasis supplied)
They argue that because Ordinance No. 8027 did not go through this
review process, it is invalid.
The argument is flawed.
RA 7942 does not give MMDA the authority to review land use plans and
zoning ordinances of cities and municipalities. This was only found in its
implementing rules which made a reference to EO 72. EO 72 expressly
refers to comprehensive land use plans (CLUPs) only. Ordinance No. 8027
is admittedly not a CLUP nor intended to be one. Instead, it is a very
specific ordinance which reclassified the land use of a defined area in
order to prevent the massive effects of a possible terrorist attack. It is
Ordinance No. 8119 which was explicitly formulated as the Manila [CLUP]
and Zoning Ordinance of 2006. CLUPs are the ordinances which should
be submitted to the MMDA for integration in its metropolitan physical
framework plan and approved by the HLURB to ensure that they conform
with national guidelines and policies.
Moreover, even assuming that the MMDA review and HLURB ratification
are necessary, the oil companies did not present any evidence to show
that these were not complied with. In accordance with the presumption
of validity in favor of an ordinance, its constitutionality or legality should
be upheld in the absence of proof showing that the procedure prescribed
by law was not observed. The burden of proof is on the oil companies
which already had notice that this Court was inclined to dispose of all the
issues in this case. Yet aside from their bare assertion, they did not present
any certification from the MMDA or the HLURB nor did they append these
to their pleadings. Clearly, they failed to rebut the presumption of validity
of Ordinance No. 8027.[170]
Conclusion
Essentially, the oil companies are fighting for their right to property. They
allege that they stand to lose billions of pesos if forced to relocate.
However, based on the hierarchy of constitutionally protected rights, the
right to life enjoys precedence over the right to property.
The reason is obvious: life is irreplaceable, property is not. When the state
or LGUs exercise of police power clashes with a few individuals right to
property, the former should prevail.
Both law and jurisprudence support the constitutionality and validity of
Ordinance No. 8027. Without a doubt, there are no impediments to its
enforcement and implementation. Any delay is unfair to the inhabitants
of the City of Manila and its leaders who have categorically expressed their
desire for the relocation of the terminals. Their power to chart and control
their own destiny and preserve their lives and safety should not be
curtailed by the intervenors warnings of doomsday scenarios and threats
of economic disorder if the ordinance is enforced.
Secondary to the legal reasons supporting the immediate implementation
of Ordinance No. 8027 are the policy considerations which drove Manilas
government to come up with such a measure:
... [The] oil companies still were not able to allay the apprehensions of the city
regarding the security threat in the area in general. No specific action plan or
security measures were presented that would prevent a possible large-scale
terrorist or malicious attack especially an attack aimed at Malacaang. The
measures that were installed were more directed towards their internal security
and did not include the prevention of an external attack even on a bilateral level
of cooperation between these companies and the police and military.
Xxx xxx xxx
It is not enough for the city government to be told by these oil companies that
they have the most sophisticated fire-fighting equipments and have invested
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
millions of pesos for these equipments. The city government wants to be
assured that its residents are safe at any time from these installations, and in
the three public hearings and in their position papers, not one statement has
been said that indeed the absolute safety of the residents from the hazards
posed by these installations is assured.
[173]
We are also putting an end to the oil companies determination to prolong
their stay in Pandacan despite the objections of Manilas residents. As early
as October 2001, the oil companies signed a MOA with the DOE obliging
themselves to:
... undertake a comprehensive and comparative study ... [which] shall include
the preparation of a Master Plan, whose aim is to determine the scope and
timing of the feasible location of the Pandacan oil terminals and all associated
facilities and infrastructure including government support essential for the
relocation such as the necessary transportation infrastructure, land and right
of way acquisition, resettlement of displaced residents and environmental and
social acceptability which shall be based on mutual benefit of the Parties and
the public.
[174]
Now that they are being compelled to discontinue their operations in the
Pandacan Terminals, they cannot feign unreadiness considering that they
had years to prepare for this eventuality.
Just the same, this Court is not about to provoke a crisis by ordering the
immediate relocation of the Pandacan Terminals out of its present site.
The enforcement of a decision of this Court, specially one with far-
reaching consequences, should always be within the bounds of reason, in
accordance with a comprehensive and well-coordinated plan, and within
a time-frame that complies with the letter and spirit of our resolution. To
this end, the oil companies have no choice but to obey the law.
A Warning To Petitioners Counsel
We draw the attention of the parties to a matter of grave concern to the
legal profession.
Petitioners and their counsel, Atty. Samson Alcantara, submitted a four-
page memorandum that clearly contained either substance nor research.
It is absolutely insulting to this Court.
We have always tended towards judicial leniency, temperance and
compassion to those who suffer from a wrong perception of what the
majesty of the law means. But for a member of the bar, an officer of the
court, to file in this Court a memorandum of such unacceptable quality is
an entirely different matter.
It is indicative less of a personal shortcoming or contempt of this Court
and more of a lawyers sorry descent from a high sense of duty and
responsibility. As a member of the bar and as an officer of the court, a
lawyer ought to be keenly aware that the chief safeguard of the body
politic is respect for the law and its magistrates.
There is nothing more effective than the written word by which counsel
can persuade this Court of the righteousness of his cause. For if truth were
self-evident, a memorandum would be completely unnecessary and
superfluous.
The inability of counsel to prepare a memorandum worthy of this Courts
consideration is an ejemplo malo to the legal profession as it betrays no
genuine interest in the cause he claims to espouse. Or did counsel think
he can earn his moment of glory without the hard work and dedication
called for by his petition?
A Final Word
On Wednesday, January 23, 2008, a defective tanker containing 2,000
liters of gasoline and 14,000 liters of diesel exploded in the middle of the
street a short distance from the exit gate of the Pandacan Terminals,
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causing death, extensive damage and a frightening conflagration in the
vicinity of the incident. Need we say anthing about what will happen if it
is the estimated 162 to 211 million liters[175] of petroleum products in the
terminal complex which blow up?
Dispositive portion: The motions for leave to intervene of Chevron
Philippines Inc., Petron Corporation and Pilipinas Shell Petroleum
Corporation, and the Republic of the Philippines, represented by the
Department of Energy, are hereby granted. their respective motions for
reconsideration are hereby denied. the regional trial court, manila,
branch 39 is ordered to dismiss the consolidated cases of civil case no.
03-106377 and civil case no. 03-106380.
We reiterate our order to respondent Mayor of the City of Manila to
enforce Ordinance No. 8027. In coordination with the appropriate
agencies and other parties involved, respondent Mayor is hereby ordered
to oversee the relocation and transfer of the Pandacan Terminals out of
its present site.
To ensure the orderly transfer, movement and relocation of assets and
personnel, the intervenors Chevron Philippines Inc., Petron Corporation
and Pilipinas Shell Petroleum Corporation shall, within a non-extendible
period of ninety (90) days, submit to the Regional Trial Court of Manila,
Branch 39, the comprehensive plan and relocation schedule which have
allegedly been prepared. The presiding judge of Manila RTC, Branch 39
will monitor the strict enforcement of this resolution.
Atty. Samson Alcantara is hereby ordered to explain within five (5) days
from notice why he should not be disciplined for his refusal, or inability,
to file a memorandum worthy of the consideration of this Court.
Treble costs against petitioners counsel, Atty. Samson Alcantara.
TANO, et. al. vs. SOCRATES, MEMBERS OF SANGGUNIAN
PANLALAWIGAN OF PALAWAN (1997)
Overview: Petitioners caption their petition as one
for Certiorari, Injunction With Preliminary Mandatory Injunction, with
Prayer for Temporary Restraining Order and pray that this Court:
1. declare as unconstitutional:
a. Ordinance No. 15-92, dated 15 December 1992, of
the Sangguniang Panlungsod of Puerto Princesa;
b. Office Order No. 23, Series of 1993, dated 22 January 1993,
issued by Acting City Mayor Amado L. Lucero of Puerto
Princesa City; and
c. Resolution No. 33, Ordinance No. 2, Series of 1993, dated
Office Order No. 23
19 February 1993, of the Sangguniang Panlalawigan of
To implement said city ordinance, then Acting City Mayor Amado L.
Palawan;
Lucero issued Office Order No. 23, Series of 1993 dated January 22, 1993
2. enjoin the enforcement thereof; and
which reads as follows:
3. restrain respondents Provincial and City Prosecutors of Palawan and
Puerto Princesa City and Judges of Regional Trial Courts,
Metropolitan Trial Courts and Municipal Circuit Trial Courts in
Palawan from assuming jurisdiction over and hearing cases
concerning the violation of the Ordinances and of the Office Order.
More appropriately, the petition is, and shall be treated as, a special civil
action for certiorari and prohibition.
Facts: On December 15, 1992, the Sangguniang Panlungsod ng Puerto
Princesa City enacted Ordinance No. 15-92 which took effect on January
1, 1993 entitled: AN ORDINANCE BANNING THE SHIPMENT OF ALL LIVE
FISH AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1,
1993 TO JANUARY 1, 1998 AND PROVIDING EXEMPTIONS, PENALTIES
AND FOR OTHER PURPOSES THEREOF, the full text of which reads as
follows:
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
Section 1. Title of the Ordinance. – This Ordinance is entitled: AN
ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH AND LOBSTER
OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY
1, 1998 AND PROVIDING EXEMPTIONS, PENALTIES AND FOR OTHER
PURPOSES THEREOF.
Section 2. Purpose, scope, and coverage. - To effectively free our City Sea
Waters from Cyanide and other Obnoxious substance, and shall cover all
persons and/or entities operating within and outside the City of Puerto
Princesa who is are [sic] directly or indirectly in the business or shipment
of live fish and lobster outside the City.
Section 3. Definition of terms. – For purpose of this Ordinance the
following are hereby defined:
a. Sea bass - A kind of fish under the family of Centropomidae,
better known as APAHAP;
b. Catfish - A kind of fish under the family of Plotosidae, better
known as HITO-HITO;
c. Mudfish - A kind of fish under the family of Orphicaphalisae
better known as DALAG
d. All live fish - All alive, breathing not necessarily moving of
all specie[s] use for food and for aquarium purposes.
e. Live lobster - Several relatively, large marine crustaceans of
the genus Homarus that are alive and breathing not
necessarily moving.
Section 4. It shall be unlawful [for] any person or any business enterprise
or company to ship out from Puerto Princesa City to any point of
destination either via aircraft or seacraft of any live fish and lobster
except SEA BASS, CATFISH, MUDFISH, AND MILKFISH FRIES.
Section 5. Penalty clause. – Any person/s and or business entity violating
this Ordinance shall be penalized with a fine of not more than P5,000.00
or imprisonment of not more than twelve (12) months, cancellation of
their permit to do business in the City of Puerto Princesa or all of the
herein stated penalties, upon the discretion of the court.
Section 6. If the owner and/or operator of the establishment found
vilating the provisions of this ordinance is a corporation or a partnership,
the penalty prescribed in Section 5 hereof shall be imposed upon its
president and/or General Manager or Managing Partner and/or
Manager, as the case maybe [sic].
Section 7. Any existing ordinance or any provision of any ordinance
inconsistent to [sic] this ordinance is deemed repealed.
Section 8. This Ordinance shall take effect on January 1, 1993. SO
ORDAINED. xxx
In the interest of public service and for purposes of City Ordinance No.
PD426-14-74, otherwise known as AN ORDINANCE REQUIRING ANY
PERSON ENGAGED OR INTENDING TO ENGAGE IN ANY BUSINESS,
TRADE, OCCUPATION, CALLING OR PROFESSION OR HAVING IN HIS
POSSESSION ANY OF THE ARTICLES FOR WHICH A PERMIT IS REQUIRED
TO BE HAD, TO OBTAIN FIRST A MAYORS PERMIT and City Ordinance
No. 15-92, AN ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH
AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1,
1993 TO JANUARY 1, 1998, you are hereby authorized and directed to
check or conduct necessary inspections on cargoes containing live
fish and lobster being shipped out from the Puerto Princesa Airport,
Puerto Princesa Wharf or at any port within the jurisdiction of the
City to any point of destinations [sic] either via aircraft or seacraft.
The purpose of the inspection is to ascertain whether the shipper
possessed the required Mayors Permit issued by this Office and the
shipment is covered by invoice or clearance issued by the local office of
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the Bureau of Fisheries and Aquatic Resources and as to compliance with
all other existing rules and regulations on the matter.
Any cargo containing live fish and lobster without the required
documents as stated herein must be held for proper disposition.
In the pursuit of this Order, you are hereby authorized to coordinate with
the PAL Manager, the PPA Manager, the local PNP Station and other
offices concerned for the needed support and cooperation. Further, that
the usual courtesy and diplomacy must be observed at all times in the
conduct of the inspection.
Please be guided accordingly.
xxx
Resolution No. 33
On February 19, 1993, the Sangguniang Panlalawigan, Provincial
Government of Palawan enacted Resolution No. 33 entitled: A
RESOLUTION PROHIBITING THE CATCHING, GATHERING, POSSESSING,
BUYING, SELLING AND SHIPMENT OF LIVE MARINE CORAL DWELLING
AQUATIC ORGANISMS, TO WIT: FAMILY: SCARIDAE (MAMENG), EPINE
PHELUS FASCIATUS (SUNO). CROMILEPTES ALTIVELIS (PANTHER OR
SENORITA), LOBSTER BELOW 200 GRAMS AND SPAWNING, TRADACNA
GIGAS (TAKLOBO), PINCTADA MARGARITEFERA (MOTHER PEARL,
OYSTERS, GIANT CLAMS AND OTHER SPECIES), PENAEUS
MONODON (TIGER PRAWN-BREEDER SIZE OR MOTHER), EPINEPHELUS
SUILLUS (LOBA OR GREEN GROUPER) AND
FAMILY: BALISTIDAE(TROPICAL AQUARIUM FISHES) FOR A PERIOD FIVE
(5) YEARS IN AND COMING FROM PALAWAN WATERS, the full text of
which reads as follows:
WHEREAS, scientific and factual researches [sic] and studies disclose that
only five (5) percent of the corals of our province remain to be in
excellent condition as [a] habitat of marine coral dwelling aquatic
organisms;
WHEREAS, it cannot be gainsaid that the destruction and devastation of
the corals of our province were principally due to illegal fishing activities
like dynamite fishing, sodium cyanide fishing, use of other obnoxious
substances and other related activities;
WHEREAS, there is an imperative and urgent need to protect and
preserve the existence of the remaining excellent corals and allow the
devastated ones to reinvigorate and regenerate themselves into vitality
within the span of five (5) years;
WHEREAS, Section 468, Par. 1, Sub-Par. VI of the [sic] R.A. 7160 otherwise
known as the Local Government Code of 1991 empowers the
Sangguniang Panlalawigan to protect the environment and impose
appropriate penalties [upon] acts which endanger the environment such
as dynamite fishing and other forms of destructive fishing, among others.
NOW, THEREFORE, on motion by Kagawad Nelson P. Peneyra and upon
unanimous decision of all the members present;
Be it resolved as it is hereby resolved, to approve Resolution No. 33,
Series of 1993 of the Sangguniang Panlalawigan and to enact Ordinance
No. 2 for the purpose, to wit:
ORDINANCE NO. 2
Series of 1993
BE IT ORDAINED BY THE SANGGUNIANG PANLALAWIGAN IN SESSION
ASSEMBLED:
Section I. Title. - This Ordinance shall be known as an Ordinance
Prohibiting the catching, gathering, possessing, buying, selling and
shipment of live marine coral dwelling aquatic organisms, to wit:
1. Family: Scaridae (Mameng), 2. Epinephelus Fasciatus (Suno), 3.
Cromileptes altivelis (Panther or Senorita), lobster below 200 grams and
spawning), 4. Tridacna Gigas (Taklobo), 5. Pinctada Margaretefera
(Mother Pearl, Oysters, Giant Clams and other species), 6. Penaeus
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
Monodon (Tiger Prawn-breeder size or mother), 7. Epinephelus Suillus
(Loba or Green Grouper) and 8. Family: Balistidae (Topical Aquarium
Fishes) for a period of five (5) years in and coming from Palawan Waters.
Section II. Preliminary considerations.
1. Section 2-A (Rep. Act 7160). It is hereby declared, the policy
of the state that the territorial and political subdivisions of
the State shall enjoy genuine and meaningful local autonomy
to enable them to attain their fullest development as self
reliant communities and make them more effective partners
in the attainment of national goals. Toward this end, the
State shall provide for [a] more responsive and accountable
local government structure instituted through a system of
decentralization whereby local government units shall be
given more powers, authority, responsibilities and resources.
2. Section 5-A (R.A. 7160). Any provision on a power of [a] local
Government Unit shall be liberaly interpreted in its favor, and
in case of doubt, any question thereon shall be resolved in
favor of devolution of powers and of the lower government
units. Any fair and reasonable doubts as to the existence of
the power shall be interpreted in favor of the Local
Government Unit concerned.
3. Section 5-C (R.A. 7160). The general welfare provisions in this
Code shall be liberally interpreted to give more powers to
local government units in accelerating economic
development and upgrading the quality of life for the people
in the community.
4. Section 16 (R.A. 7160). General Welfare. - Every local
government unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and
effective governance; and those which are essential to the
promotion of the general welfare.
Section III. Declaration of policy. - It is hereby declared to be the policy
of the Province of Palawan to protect and conserve the marine resources
of Palawan not only for the greatest good of the majority of the present
generation but with [the] proper perspective and consideration of [sic]
their prosperity, and to attain this end, the Sangguniang Panlalawigan
henceforth declares that is [sic] shall be unlawful for any person or any
business entity to engage in catching, gathering, possessing, buying,
selling and shipment of live marine coral dwelling aquatic organisms as
enumerated in Section 1 hereof in and coming out of Palawan Waters
for a period of five (5) years;
Section IV. Penalty clause. - Any person and/or business entity violating
this Ordinance shall be penalized with a fine of not more than Five
Thousand Pesos (P5,000.00), Philippine Currency, and/or imprisonment
of six (6) months to twelve (12) months and confiscation and forfeiture
of paraphernalias [sic] and equipment in favor of the government at the
discretion of the Court;
Section V. Separability clause. - If for any reason, a Section or provision
of this Ordinance shall be held as unconditional [sic] or invalid, it shall
not affect the other provisions hereof.
Section VI. Repealing clause. - Any existing Ordinance or a provision of
any ordinance inconsistent herewith is deemed modified, amended or
repealed.
Section VII. Effectivity. - This Ordinance shall take effect ten (10) days
after its publication.
SO ORDAINED.
xxx
Petitioners’ charges
The respondents implemented the said ordinances, Annexes A and C
hereof thereby depriving all the fishermen of the whole province of
Palawan and the City of Puerto Princesa of their only means of livelihood
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and the petitioners Airline Shippers Association of Palawan and other
marine merchants from performing their lawful occupation and trade.
Petitioners Alfredo Tano, Baldomero Tano, Teocenes Midello, Angel
de Mesa, Eulogio Tremocha, and Felipe Ongonion, Jr. were even
charged criminally under criminal case no. 93-05-C in the 1st Municipal
Circuit Trial Court of Cuyo-Agutaya-Magsaysay, an original carbon copy
of the criminal complaint dated April 12, 1993 is hereto attached as Annex
D; while xerox copies are attached as Annex D to the copies of the petition.
Petitioners Robert Lim and Virginia Lim, on the other hand, were
charged by the respondent PNP with the respondent City Prosecutor
of Puerto Princesa City, a xerox copy of the complaint is hereto attached
as Annex E.
Petitioners’ contentions
Without seeking redress from the concerned local government units,
prosecutors office and courts, petitioners directly invoked our original
jurisdiction by filing this petition on 4 June 1993. In sum, petitioners
contend that:
First, the Ordinances deprived them of due process of law, their
livelihood, and unduly restricted them from the practice of their
trade, in violation of Section 2, Article XII and Sections 2 and 7
of Article XIII of the 1987 Constitution.
Second, Office Order No. 23 contained no regulation nor
condition under which the Mayors permit could be granted or
denied; in other words, the Mayor had the absolute authority to
determine whether or not to issue permit.
Third, as Ordinance No. 2 of the Province of Palawan altogether
prohibited the catching, gathering, possession, buying, selling
and shipping of live marine coral dwelling organisms, without
any distinction whether it was caught or gathered through
lawful fishing method, the Ordinance took away the right of
petitioners-fishermen to earn their livelihood in lawful ways;
and insofar as petitioners-members of Airline Shippers
Association are concerned, they were unduly prevented from
pursuing their vocation and entering into contracts which are
proper, necessary, and essential to carry out their business
endeavors to a successful conclusion.
Finally, as Ordinance No. 2 of the Sangguniang Panlalawigan is
null and void, the criminal cases based thereon against
petitioners Tano and the others have to be dismissed.
Public respondents’ defense
In their comment filed on 13 August 1993, public respondents Governor
Socrates and Members of the Sangguniang Panlalawigan of Palawan:
• defended the validity of Ordinance No.2, Series of 1993, as a valid
exercise of the Provincial Governments power under the general
welfare clause (Section 16 of the Local Government Code of 1991
[hereafter, LGC]), and its specific power to protect the environment
and impose appropriate penalties for acts which endanger the
environment, such as dynamite fishing and other forms of
destructive fishing under Section 447 (a) (1) (vi), Section 458 (a) (1)
(vi), and Section 468 (a) (1) (vi), of the LGC.
• claimed that in the exercise of such powers, the Province of Palawan
had the right and responsibilty to insure that the remaining coral
reefs, where fish dwells [sic], within its territory remain healthy for the
future generation. further asserted that the Ordinance, covered
only live marine coral dwelling aquatic organisms which were
enumerated in the ordinance and excluded other kinds of live marine
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aquatic organisms not dwelling in coral reefs; besides the prohibition
was for only five (5) years to protect and preserve the pristine coral
and allow those damaged to regenerate.
• maintained that there was no violation of due process and equal
protection clauses of the Constitution. As to the former, public
hearings were conducted before the enactment of the Ordinance
which, undoubtedly, had a lawful purpose and employed reasonable
means; while as to the latter, a substantial distinction existed
between a fisherman who catches live fish with the intention of
selling it live, and a fisherman who catches live fish with no intention
at all of selling it live, i.e., the former uses sodium cyanide while the
latter does not. Further, the Ordinance applied equally to all those
belonging to one class.
Ruling: After due deliberation on the pleadings filed, the Court resolved
to dismiss this petition for want of merit.
I
Two petitioners in this case
There are actually two sets of petitioners in this case.
1. First set:
a. Alfredo Tano, Baldomero Tano, Danilo Tano, Romualdo Tano,
Teocenes Midello, Angel de Mesa, Eulogio Tremocha, Felipe
Ongonion, Jr., Andres Linijan, and Felimon de Mesa, who were
criminally charged with violating Sangguniang
Panlalawigan Resolution No. 33 and Ordinance No. 2, Series of
1993, of the Province of Palawan, in Criminal Case No. 93-05-C
of the 1 Municipal Circuit Trial Court (MCTC) of Palawan.
st
b. Robert Lim and Virginia Lim who were charged with violating
City Ordinance No. 15-92 of Puerto Princesa City and Ordinance
No. 2, Series of 1993, of the Province of Palawan before the
Office of the City Prosecutor of Puerto Princesa. All of them,
[4]
with the exception of Teocenes Midello, Felipe Ongonion, Jr.,
Felimon de Mesa, Robert Lim and Virginia Lim, are likewise the
accused in Criminal Case No. 11223 for the violation of
Ordinance No. 2 of the Sangguniang Panlalawigan of Palawan,
pending before Branch 50 of the Regional Trial Court of
Palawan.
2. Second set: is composed of the rest of the petitioners numbering
seventy-seven (77), all of whom, except the Airline Shippers
Association of Palawan – an alleged private association of several
marine merchants – are natural persons who claim to be fishermen.
Primary interest of the petitioners
1. The first set of petitioners seek to prevent the prosecution, trial and
determination of the criminal cases until the constitutionality or
legality of the Ordinances they allegedly violated shall have been
resolved.
2. The second set of petitioners merely claim that they being fishermen
or marine merchants, they would be adversely affected by the
ordinances.
As to the first set of petitioners, this special civil for certiorari must
fail on the ground of prematurity amounting to a lack of cause of
action.
There is no showing that the said petitioners, as the accused in the criminal
cases, have filed motions to quash the informations therein and that the
same were denied. The ground available for such motions is that the facts
charged therein do not constitute an offense because the ordinances in
question are unconstitutional. It cannot then be said that the lower courts
acted without or in excess of jurisdiction or with grave abuse of discretion
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to justify recourse to the extraordinary remedy of certiorari or
prohibition.
As to the second set of petitioners, the action must fail as this Court
is not possessed of original jurisdiction over petitions for declaratory
relief.
The instant petition is obviously one for DECLARATORY RELIEF, i.e., for a
declaration that the Ordinances in question are a nullity for being
unconstitutional. As such, their petition must likewise fail, as this Court is
not possessed of original jurisdiction over petitions for declaratory relief
even if only questions of law are involved, it being settled that the Court
merely exercises appellate jurisdiction over such petitions.
II
xxx
III
Notwithstanding the foregoing procedural obstacles against the first set
of petitioners, we opt to resolve this case on its merits considering that
the lifetime of the challenged Ordinances is about to end.
Ordinance No. 15-92 of the City of Puerto Princesa is effective only up to
1 January 1998, while Ordinance No. 2 of the Province of Palawan, enacted
on 19 February 1993, is effective for only five (5) years. Besides, these
Ordinances were undoubtedly enacted in the exercise of powers under
the new LGC relative to the protection and preservation of the
environment and are thus novel and of paramount importance. No further
delay then may be allowed in the resolution of the issues raised.
It is of course settled that laws (including ordinances enacted by local
government units) enjoy the presumption of constitutionality. To
overthrow this presumption, there must be a clear and unequivocal breach
of the Constitution, not merely a doubtful or argumentative contradiction.
In short, the conflict with the Constitution must be shown beyond
reasonable doubt. Where doubt exists, even if well founded, there can be
no finding of unconstitutionality. To doubt is to sustain.
The challenged Ordinances do not suffer from any infirmity
After a scrunity of the challenged Ordinances and the provisions of the
Constitution petitioners claim to have been violated, the Court finds
petitioners contentions baseless and so hold that the former do not suffer
from any infirmity, both under the Constitution and applicable laws.
Petitioners specifically point to Section 2, Article XII and Sections 2 and
7, Article XIII of the Constitution as having been transgressed by the
Ordinances.
The pertinent portion of Section 2 of Article XII reads:
Section 2. x x x
The State shall protect the nation's marine wealth in its archipelagic
waters, territorial sea, and exclusive economic zone, and reserve its use
and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural
resources by Filipino citizens, as well as cooperative fish farming, with
priority to subsistence fishermen and fishworkers in rivers, lakes, bays,
and lagoons.
Sections 2 and 7 of Article XIII provide:
Section 2. The promotion of social justice shall include the commitment
to create economic opportunities based on freedom of initiative and
self-reliance.
xxx
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Section 7. The State shall protect the rights of subsistence fishermen,
especially of local communities, to the preferential use of the communal
marine and fishing resources, both inland and offshore. It shall provide
support to such fishermen through appropriate technology and
research, adequate financial, production, and marketing assistance, and
other services. The State shall also protect, develop, and conserve such
resources. The protection shall extend to offshore fishing grounds of
subsistence fishermen against foreign intrusion. Fishworkers shall receive
a just share from their labor in the utilization of marine and fishing
resources.
Held: There is absolutely no showing that any of the petitioners qualifies
as a subsistence or marginal fisherman. In their petition, petitioner Airline
Shippers Association of Palawan is described as a private association
composed of Marine Merchants; petitioners Robert Lim and Virginia Lim,
as merchants; while the rest of the petitioners claim to be fishermen,
without any qualification, however, as to their status.
Since the Constitution does not specifically provide a definition of the
terms subsistence or marginal fishermen, they should be construed in
their general and ordinary sense.
A marginal fisherman is an individual engaged in fishing whose margin
of return or reward in his harvest of fish as measured by existing price
levels is barely sufficient to yield a profit or cover the cost of gathering the
fish, while a subsistence fisherman is one whose catch yields but the
irreducible minimum for his livelihood.
Section 131(p) of the LGC (R.A. No. 7160) defines a marginal farmer or
fisherman as an individual engaged in subsistence farming or fishing
which shall be limited to the sale, barter or exchange of agricultural or
marine products produced by himself and his immediate family. It bears
repeating that nothing in the record supports a finding that any petitioner
falls within these definitions.
Besides, Section 2 of Article XII aims primarily not to bestow any right to
subsistence fishermen, but to lay stress on the duty of the State to protect
the nations marine wealth. What the provision merely recognizes is that
the State may allow, by law, cooperative fish farming, with priority to
subsistence fishermen and fish workers in rivers, lakes, bays, and lagoons.
Our survey of the statute books reveals that the only provision of law
which speaks of the preferential right of marginal fishermen is Section 149
of the LGC of 1991 which pertinently provides:
Section 149. Fishery Rentals, Fees and Charges. -- x x x
(b) The sangguniang bayan may:
(1) Grant fishery privileges to erect fish corrals, oyster, mussels or other aquatic beds
or bangus fry areas, within a definite zone of the municipal waters, as determined by
it: Provided, however, That duly registered organizations and cooperatives of
marginal fishermen shall have preferential right to such fishery privileges....
In a Joint Administrative Order No. 3, dated 25 April 1996, the Secretary
of the Department of Agriculture and the Secretary of the Department of
Interior and Local Government prescribed the guidelines on the
preferential treatment of small fisherfolk relative to the fishery right
mentioned in Section 149. This case, however, does not involve such
fishery right.
Anent Section 7 of Article XIII, it speaks not only of the use of communal
marine and fishing resources, but of their protection, development, and
conservation. As hereafter shown, the ordinances in question are meant
precisely to protect and conserve our marine resources to the end that
their enjoyment by the people may be guaranteed not only for the present
generation, but also for the generations to come.
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The so-called preferential right of subsistence or marginal fishermen
to the use of marine resources is not at all absolute.
In accordance with the Regalian Doctrine, marine resources belong to the
State, and, pursuant to the first paragraph of Section 2, Article XII of the
Constitution, their exploration, development and utilization ... shall be
under the full control and supervision of the State. Moreover, their
mandated protection, development, and conservation as necessarily
recognized by the framers of the Constitution, imply certain restrictions
on whatever right of enjoyment there may be in favor of anyone. Thus, as
to the curtailment of the preferential treatment of marginal fisherman, the
following exchange between Commissioner Francisco Rodrigo and
Commissioner Jose F.S. Bengzon, Jr., took place at the plenary session of
the Constitutional Commission:
MR. RODRIGO:
Let us discuss the implementation of this because I would not raise the hopes of our
people, and afterwards fail in the implementation. How will this be implemented?Will
there be a licensing or giving of permits so that government officials will know that
one is really a marginal fisherman? Or if policeman say that a person is not a marginal
fisherman, he can show his permit, to prove that indeed he is one.
MR. BENGZON:
Certainly, there will be some mode of licensing insofar as this is concerned and this
particular question could be tackled when we discuss the Article on Local
Governments -- whether we will leave to the local governments or to Congress on
how these things will be implemented. But certainly, I think our Congressmen and
our local officials will not be bereft of ideas on how to implement this mandate.
xxx
MR. RODRIGO:
So, once one is licensed as a marginal fisherman, he can go anywhere in the
Philippines and fish in any fishing grounds.
MR. BENGZON:
Subject to whatever rules and regulations and local laws that may be
passed, may be existing or will be passed.
Right of the people to a balanced and healthful ecology in accord with
the rhythm and harmony of nature
What must likewise be borne in mind is the state policy enshrined in the
Constitution regarding the duty of the State to protect and advance the
right of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature. On this score, in Oposa v. Factoran, this
Court declared:
While the right to balanced and healthful ecology is to be found under the
Declaration of Principles the State Policies and not under the Bill of Rights, it does
not follow that it is less important than any of the civil and political rights enumerated
in the latter. Such a right belongs to a different category of rights altogether for it
concerns nothing less than self-preservation and self-perpetuation - aptly and
fittingly stressed by the petitioners - the advancement of which may even be said to
predate all governments and constitutions. As a matter of fact, these basic rights
need not even be written in the Constitution for they are assumed to exist from the
inception of humankind. If they are now explicitly mentioned in the fundamental
charter, it is because of the well-founded fear of its framers that unless the rights to
a balanced and healthful ecology and to health are mandated as state policies by the
Constitution itself, thereby highlighting their continuing importance and imposing
upon the state a solemn obligation to preserve the first and protect and advance the
second , the day would not be too far when all else would be lost not only for the
present generation, but also for those to come - generations which stand to inherit
nothing but parched earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it a correlative duty to
refrain from impairing the environment...
The LGC provisions invoked by private respondents merely seek to give
flesh and blood to the right of the people to a balanced and healthful
ecology. In fact, the General Welfare Clause, expressly mentions this right:
Section 16. General Welfare. – Every local government unit shall
exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental for its
efficient and effective governance, and those which are essential to the
promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among
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from the discussions and syllabus of
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other things, the preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a balanced
ecology, encourage and support the development of appropriate and
self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full
employment among their residents, maintain peace and order, and
preserve the comfort and convenience of their inhabitants.
(underscoring supplied).
Moreover, Section 5(c) of the LGC explicitly mandates that the general
welfare provisions of the LGC shall be liberally interpreted to give more
powers to the local government units in accelerating economic
development and upgrading the quality of life for the people of the
community.
The LGC vests municipalities with the power to grant fishery privileges in
municipal waters and to impose rentals, fees or charges therefor; to
penalize, by appropriate ordinances, the use of explosives, noxious or
poisonous substances, electricity, muro-ami, and other deleterious
methods of fishing; and to prosecute any violation of the provisions of
applicable fishery laws. Further, the sangguniang bayan, the sangguniang
panlungsod and the sangguniang panlalawigan are directed to enact
ordinances for the general welfare of the municipality and its inhabitants,
which shall include, inter alia, ordinances that [p]rotect the environment
and impose appropriate penalties for acts which endanger the
environment such as dynamite fishing and other forms of destructive
fishing ... and such other activities which result in pollution, acceleration
of eutrophication of rivers and lakes or of ecological imbalance.
Finally, the centerpiece of LGC is the system of decentralization as [26]
expressly mandated by the Constitution. Indispensable thereto[27]
is devolution and the LGC expressly provides that [a]ny provision on a
power of a local government unit shall be liberally interpreted in its favor,
and in case of doubt, any question thereon shall be resolved in favor of
devolution of powers and of the lower local government unit. Any fair and
reasonable doubt as to the existence of the power shall be interpreted in
favor of the local government unit concerned, Devolution refers to the
[28]
act by which the National Government confers power and authority upon
the various local government units to perform specific functions and
responsibilities.
[29]
One of the devolved powers enumerated in the section of the LGC on
devolution is the enforcement of fishery laws in municipal waters
including the conservation of mangroves. This necessarily includes
[30]
enactment of ordinances to effectively carry out such fishery laws within
the municipal waters.
The term municipal waters, in turn, include not only streams, lakes, and
tidal waters within the municipality, not being the subject of private
ownership and not comprised within the national parks, public forest,
timber lands, forest reserves, or fishery reserves, but also marine waters
included between two lines drawn perpendicularly to the general coastline
from points where the boundary lines of the municipality or city touch the
sea at low tide and a third line parallel with the general coastline and
fifteen kilometers from it. Under P.D. No. 704, the marine waters included
[31]
in municipal waters is limited to three nautical miles from the general
coastline using the above perpendicular lines and a third parallel line.
These fishery laws which local government units may enforce under
Section 17(b), (2), (i) in municipal waters include: (1) P.D. No. 704; (2) P.D.
No. 1015 which, inter alia, authorizes the establishment of a closed season
in any Philippine water if necessary for conservation or ecological
purposes; (3) P.D. No. 1219 which provides for the exploration,
exploitation, utilization, and conservation of coral resources; (4) R.A. No.
5474, as amended by B.P. Blg. 58, which makes it unlawful for any person,
association, or corporation to catch or cause to be caught, sell, offer to
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sell, purchase, or have in possession any of the fish specie
called gobiidae or ipon during closed season; and (5) R.A. No. 6451 which
prohibits and punishes electrofishing, as well as various issuances of the
BFAR.
To those specifically devolved insofar as the control and regulation of
fishing in municipal waters and the protection of its marine environment
are concerned, must be added the following:
1. Issuance of permits to construct fish cages within municipal waters;
2. Issuance of permits to gather aquarium fishes within municipal waters;
3. Issuance of permits to gather kapis shells within municipal waters;
4. Issuance of permits to gather/culture shelled mollusks within municipal waters;
5. Issuance of licenses to establish seaweed farms within municipal waters;
6. Issuance of licenses to establish culture pearls within municipal waters;
7. Issuance of auxiliary invoice to transport fish and fishery products; and
8. Establishment of closed season in municipal waters.
These functions are covered in the Memorandum of Agreement of 5 April
1994 between the Department of Agriculture and the Department of
Interior and Local Government.
In light then of the principles of decentralization and devolution enshrined
in the LGC and the powers granted to local government units under
Section 16 (the General Welfare Clause), and under Sections 149, 447 (a)
(1) (vi), 458 (a) (1) (vi) and 468 (a) (1) (vi), which unquestionably involve the
exercise of police power, the validity of the questioned Ordinances cannot
be doubted.
Parenthetically, we wish to add that these Ordinances find full support
under R.A. No. 7611, otherwise known as the Strategic Environmental Plan
(SEP) for Palawan Act, approved on 19 July 1992. This statute adopts a
comprehensive framework for the sustainable development of Palawan
compatible with protecting and enhancing the natural resources and
endangered environment of the province, which shall serve to guide the
local government of Palawan and the government agencies concerned in
the formulation and implementation of plans, programs and projects
affecting said province.
At this time then, it would be appropriate to determine the relation
between the assailed Ordinances and the aforesaid powers of
the Sangguniang Panlungsod of the City of Puerto Princesa and
the Sangguniang Panlalawigan of the Province of Palawan to protect the
environment. To begin, we ascertain the purpose of the Ordinances as set
forth in the statement of purposes or declaration of policies quoted
earlier.
It is clear to the Court that both Ordinances have two principal objectives
or purposes:
1. to establish a closed season for the species of fish or aquatic animals
covered therein for a period of five years, and
2. to protect the corals of the marine waters of the City of Puerto
Princesa and the Province of Palawan from further destruction due
to illegal fishing activities.
The accomplishment of the first objective is well within the devolved
power to enforce fishery laws in municipal waters, such as P.D. No. 1015,
which allows the establishment of closed seasons. The devolution of such
power has been expressly confirmed in the Memorandum of Agreement
of 5 April 1994 between the Department of Agriculture and the
Department of Interior and Local Government.
The realization of the second objective falls within both the general
welfare clause of the LGC and the express mandate thereunder to cities
and provinces to protect the environment and impose appropriate
penalties for acts which endanger the environment.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
The destruction of the coral reefs results in serious, if not irreparable,
ecological imbalance, for coral reefs are among the natures life-support
systems. They collect, retain, and recycle nutrients for adjacent nearshore
[34]
areas such as mangroves, seagrass beds, and reef flats; provide food for
marine plants and animals; and serve as a protective shelter for aquatic
organisms. It is said that [e]cologically, the reefs are to the oceans what
[35]
forests are to continents: they are shelter and breeding grounds for fish
and plant species that will disappear without them.
The prohibition against catching live fish stems, in part, from the modern
phenomenon of live-fish trade which entails the catching of so-called
exotic tropical species of fish not only for aquarium use in the West, but
also for the market for live banquet fish [which] is virtually insatiable in
ever more affluent Asia.
These exotic species are coral-dwellers, and fishermen catch them by
diving in shallow water with corraline habitats and squirting sodium
cyanide poison at passing fish directly or onto coral crevices; once affected
the fish are immobilized [merely stunned] and then scooped by hand. The
diver then surfaces and dumps his catch into a submerged net attached
to the skiff . Twenty minutes later, the fish can swim normally. Back on
shore, they are placed in holding pens, and within a few weeks, they expel
the cyanide from their system and are ready to be hauled. Then they are
placed in saltwater tanks or packaged in plastic bags filled with seawater
for shipment by air freight to major markets for live food fish.
While the fish are meant to survive, the opposite holds true for their
former home as [a]fter the fisherman squirts the cyanide, the first thing to
perish is the reef algae, on which fish feed. Days later, the living coral starts
to expire.Soon the reef loses its function as habitat for the fish, which eat
both the algae and invertebrates that cling to the coral. The reef becomes
an underwater graveyard, its skeletal remains brittle, bleached of all color
and vulnerable to erosion from the pounding of the waves. It has been
found that cyanide fishing kills most hard and soft corals within three
months of repeated application.
The nexus then between the activities barred by Ordinance No. 15-92 of
the City of Puerto Princesa and the prohibited acts provided in Ordinance
No. 2, Series of 1993 of the Province of Palawan, on one hand, and the use
of sodium cyanide, on the other, is painfully obvious. In sum, the public
purpose and reasonableness of the Ordinances may not then be
controverted.
As to Office Order No. 23, Series of 1993, issued by Acting City Mayor
Amado L. Lucero of the City of Puerto Princesa, we find nothing therein
violative of any constitutional or statutory provision. The Order refers to
the implementation of the challenged ordinance and is not the Mayors
Permit.
The dissenting opinion of Mr. Justice Josue N. Bellosillo relies upon the
lack of authority on the part of the Sangguniang Panlungsod of Puerto
Princesa to enact Ordinance No. 15, Series of 1992, on the theory that the
subject thereof is within the jurisdiction and responsibility of the Bureau
of Fisheries and Aquatic Resources (BFAR) under P.D. No. 704, otherwise
known as the Fisheries Decree of 1975; and that, in any event, the
Ordinance is unenforceable for lack of approval by the Secretary of the
Department of Natural Resources (DNR), likewise in accordance with P.D.
No. 704.
The majority is unable to accommodate this view. The jurisdiction and
responsibility of the BFAR under P. D. no. 704, over the management,
conservation, development, protection, utilization and disposition of all
fishery and aquatic resources of the country is not all-encompassing. First,
Section 4 thereof excludes from such jurisdiction and responsibility
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municipal waters, which shall be under the municipal or city government
concerned, except insofar as fishpens and seaweed culture in municipal in
municipal centers are concerned. This section provides, however, that all
municipal or city ordinances and resolutions affecting fishing and fisheries
and any disposition thereunder shall be submitted to the Secretary of the
Department of Natural Resources for appropriate action and shall have
full force and effect only upon his approval.
Second, it must at once be pointed out that the BFAR is no longer under
the Department of Natural Resources (now Department of Environment
and Natural Resources). Executive Order No. 967 of 30 June 1984
transferred the BFAR from the control and supervision of the Minister
(formerly Secretary) of Natural Resources to the Ministry of Agriculture
and Food (MAF) and converted it into a mere staff agency thereof,
integrating its functions with the regional offices of the MAF.
In Executive Order No. 116 of 30 January 1987, which reorganized the
MAF, the BFAR was retained as an attached agency of the MAF. And under
the Administrative Code of 1987, the BFAR is placed under the Title
concerning the Department of Agriculture.
Therefore, it is incorrect to say that the challenged Ordinance of the
City of Puerto Princesa is invalid or unenforceable because it was not
approved by the Secretary of the DENR. If at all, the approval that
should be sought would be that of the Secretary of the Department of
Agriculture (not DENR) of municipal ordinances affecting fishing and
fisheries in municipal waters has been dispensed with in view of the
following reasons:
(1) Section 534 (Repealing Clause) of the LGC expressly repeals or amends
Section 16 and 29 of P.D. No. 704 insofar that they are inconsistent with
[45]
the provisions of the LGC.
(2) As discussed earlier, under the general welfare clause of the LGC, local
government units have the power, inter alia, to enact ordinances to
enhance the right of the people to a balanced ecology. It likewise
specifically vests municipalities with the power to grant fishery privileges
in municipal waters, and impose rentals, fees or charges therefor; to
penalize, by appropriate ordinances, the use of explosives, noxious or
poisonous substances, electricity, muro-ami, and other deleterious
methods of fishing; and to prosecute other methods of fishing; and to
prosecute any violation of the provisions of applicable fishing
laws. Finally, it imposes upon the sangguniang bayan, the sangguniang
[46]
panlungsod, and the sangguniang panlalawigan the duty to enact
ordinances to [p]rotect the environment and impose appropriate
penalties for acts which endanger the environment such as dynamite
fishing and other forms of destructive fishing and such other activities
which result in pollution, acceleration of eutrophication of rivers and lakes
or of ecological imbalance.
In closing, we commend the Sangguniang Panlungsod of the City of
Puerto Princesa and Sangguniang Panlalawigan of the Province of
Palawan for exercising the requisite political will to enact urgently needed
legislation to protect and enhance the marine environment, thereby
sharing in the herculean task of arresting the tide of ecological
destruction. We hope that other local government units shall now be
roused from their lethargy and adopt a more vigilant stand in the battle
against the decimation of our legacy to future generations. At this time,
the repercussions of any further delay in their response may prove
disastrous, if not, irreversible.
The instant petition is dismissed for lack of merit and the temporary
restraining order issued on 11 November 1993 is lifted.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
TATEL vs. MUNICIPALITY OF VIRAC, et. al. (1992)
Overview: This is a Petition for Prohibition with Preliminary Injunction
with the Court of First Instance of Catanduanes filed by petitioner
Celestino Tatel against the Municipal Council of Virac, Catanduanes
and its municipal officials enjoining them from enforcing Resolution No
29 of the Council, declaring the warehouse of petitioner in barrio Sta.
Elena of the said municipality a public nuisance within the purview of
Article 694 of the Civil Code of the Philippines and directing the petitioner
to remove and transfer said warehouse to a more suitable place within
two months from receipt of the said resolution.
Facts: It appears from the records that on the basis of complaints received
from the residents of barrio Sta. Elena on March 18, 1966 against the
disturbance caused by the operation of the abaca bailing machine inside
the warehouse of petitioner Celestino Tatel, a businessman engaged in
the import and export of abaca and other products, which affected the
peace and tranquility of the neighborhood due to the smoke, obnoxious
odor and dust emitted by the machine, a committee was appointed by
the Municipal Council of Virac to investigate the matter.
The committee noted the crowded nature of the neighborhood with
narrow roads and the surrounding residential houses, so much so that an
accidental fire within the warehouse of the petitioner occasioned by the
continuance of the activity inside the warehouse and the storing of
inflammable materials created a danger to the lives and properties of the
people within the neighborhood.
Resultantly, Resolution No. 29 was passed by the Municipal Council of
Virac on April 22, 1966 declaring the warehouse owned and operated by
petitioner a public nuisance within the purview of Article 694 of the New
Civil Code.
His motion for reconsideration having been denied by the Municipal
Council of Virac, petitioner instituted the present petition for prohibition
with preliminary injunction.
Respondents’ contention: Respondent municipal officials contend that
petitioner's warehouse was constructed in violation of Ordinance No. 13,
series of 1952, prohibiting the construction of warehouses near a block of
houses either in the poblacion or barrios without maintaining the
necessary distance of 200 meters from said block of houses to avoid loss
of lives and properties by accidental fire.
Petitioner’s contention: He contends that said ordinance is
unconstitutional, contrary to the due process and equal protection clause
of the Constitution and null and void for not having been passed in
accordance with law.
Issues before the CFI
1. Whether petitioner's warehouse is a nuisance within the meaning of
Article 694 of the Civil Code.
2. Whether Ordinance No. 13, S. 1952 of the Municipality of Virac is
unconstitutional and void.
CFI: In a decision dated September 18, 1969, the court a quo ruled as
follows:
1. The warehouse in question was legally constructed under a valid permit
issued by the Municipality of Virac in accordance with existing
regulations and may not be destroyed or removed from its present
location;
2. Ordinance No. 13, series of 1952, is a legitimate and valid exercise of
police power by the Municipal Council of Virac is not (sic)
unconstitutional and void as claimed by the petitioner;
3. The storage by the petitioner of abaca and copra in the warehouse is not
only in violation of the provisions of the ordinance but poses a grave
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danger to the safety of the lives and properties of the residents of the
neighborhood due to accidental fire and constitutes a public nuisance
under the provisions of Article 694 of the New Civil code of the
Philippines and may be abated;
4. Accordingly, the petitioner is hereby directed to remove from the said
warehouse all abaca and copra and other inflammable articles stored
therein which are prohibited under the provisions of Ordinance No. 13,
within a period of two months from the time this decision becomes final
and that henceforth, the petitioner is enjoined from storing such
prohibited articles in the warehouse. With costs against petitioner.
Issues:
1. Whether or not Ordinance No. 13, series of 1952, of the Municipality
of Virac, Catanduanes, is a legitimate and valid exercise of police
power of the Municipal Council, and therefore, constitutional. [Yes]
2. Whether or not the court a quo erred in giving the ordinance a
meaning other than and different from what it provided, by
declaring that petitioner violated the same by using the warehouse
for storage of abaca and copra when what is prohibited and
penalized by the ordinance is the construction of warehouses. [The
Court did not give the ordinance a different meaning.]
3. Whether or not the court a quo erred in refusing to take judicial
notice of the fact that in the municipality, there are numerous
establishments similarly situated as appellants' warehouses but
which are not prosecuted. [No]
Ruling: The Court finds no merit in the petition.
I will show that this is not uncommon in law making bodies in
Ordinance No. 13, series of 1952, was passed by the Municipal Council
of Virac in the exercise of its police power.
It is a settled principle of law that municipal corporations are agencies of
the State for the promotion and maintenance of local self-government
and as such are endowed with the police powers in order to effectively
accomplish and carry out the declared objects of their creation. Its
authority emanates from the general welfare clause under the
Administrative Code.
6 criteria of a good ordinance
For an ordinance to be valid, it must not only be within the corporate
powers of the municipality to enact but must also be passed according to
the procedure prescribed by law, and must be in consonance with certain
well established and basic principles of a substantive nature.
These principles require that a municipal ordinance:
1. must not contravene the Constitution or any statute;
2. must not be unfair or oppressive;
3. must not be partial or discriminatory;
4. must not prohibit but may regulate trade;
5. must be general and consistent with public policy, and
6. must not be unreasonable.
Ordinance No. 13, Series of 1952, meets these criteria.
II
The trial court did not give the ordinance in question a meaning other
than what it says.
Ordinance No. 13 passed by the Municipal Council of Virac on December
29, 1952, reads:
AN ORDINANCE STRICTLY PROHIBITING THE CONSTRUCTION OF
WAREHOUSE IN ANY FORM NEAR A BLOCK OF HOUSES EITHER IN
POBLACION OR BARRIO WITH NECESSARY DISTANCE TO AVOID GREAT
LOSSES OF PROPERTY AND LIVES BY FIRE ACCIDENT.
Section 1 provides:
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from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
It is strictly prohibited to construct warehouses in any form to any
person, persons, entity, corporation or merchants, wherein to keep or
store copra, hemp, gasoline, petroleum, alcohol, crude oil, oil of
turpentine and the like products or materials if not within the distance of
200 meters from a block of houses either in the poblacion or barrios to
avoid great losses of properties inclusive lives by fire accident.
Section 2 provides:
Owners of warehouses in any form, are hereby given advice to remove
their said warehouses this ordinance by the Municipal
Council, provided however, that if those warehouses now in existence
should no longer be utilized as such warehouse for the above-described
products in Section 1 of this ordinance after a lapse of the time given for
the removal of the said warehouses now in existence, same warehouses
shall be exempted from the spirit of the provision of section 1 of this
ordinance,provided further, that these warehouses now in existence, shall
in the future be converted into non-inflammable products and materials
warehouses.
In spite of its fractured syntax, basically, what is regulated by the ordinance
is the construction of warehouses wherein inflammable materials are
stored where such warehouses are located at a distance of 200 meters
from a block of houses and not the construction per se of a warehouse.
The purpose is to avoid the loss of life and property in case of fire which
is one of the primordial obligation of the government.
This was also the observation of the trial court:
A casual glance of the ordinance at once reveals a manifest
disregard of the elemental rules of syntax. Experience, however,
small towns where local authorities and in particular the
persons charged with the drafting and preparation of municipal
resolutions and ordinances lack sufficient education and
training and are not well grounded even on the basic and
fundamental elements of the English language commonly used
throughout the country in such matters. Nevertheless, if one
scrutinizes the terms of the ordinance, it is clear that what is
prohibited is the construction of warehouses by any person,
entity or corporation wherein copra, hemp, gasoline and other
inflammable products mentioned in Section 1 may be stored
unless at a distance of not less than 200 meters from a block of
houses either in the poblacion or barrios in order to avoid loss
of property and life due to fire. Under Section 2, existing
warehouses for the storage of the prohibited articles were given
one year after the approval of the ordinance within which to
remove them but were allowed to remain in operation if they
had ceased to store such prohibited articles.
The ambiguity therefore is more apparent than real and springs
from simple error in grammatical construction but otherwise,
the meaning and intent is clear that what is prohibited is the
construction or maintenance of warehouses for the storage of
inflammable articles at a distance within 200 meters from a
block of houses either in the poblacion or in the barrios. And
the purpose of the ordinance is to avoid loss of life and property
in case of accidental fire which is one of the primordial and basic
obligation of any government.
Clearly, the lower court did not add meaning other than or different from
what was provided in the ordinance in question. It merely stated the
purpose of the ordinance and what it intends to prohibit to accomplish its
purpose.
III
The mere fact that the municipal authorities of Virac have not
proceeded against other warehouses in the municipality allegedly
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violating Ordinance No. 13 is no reason to claim that the ordinance
is discriminatory.
A distinction must be made between the law itself and the manner in
which said law is implemented by the agencies in charge with its
administration and enforcement.
There is no valid reason for the petitioner to complain, in the absence of
proof that the other bodegas mentioned by him are operating in violation
of the ordinance and that the complaints have been lodged against the
bodegas concerned without the municipal authorities doing anything
about it.
The objections interposed by the petitioner to the validity of the ordinance
have not been substantiated. Its purpose is well within the objectives of
sound government. No undue restraint is placed upon the petitioner or
for anybody to engage in trade but merely a prohibition from storing
inflammable products in the warehouse because of the danger of fire to
the lives and properties of the people residing in the vicinity. As far as
public policy is concerned, there can be no better policy than what has
been conceived by the municipal government.
As to petitioner's contention of want of jurisdiction by the lower court we
find no merit in the same. The case is a simple civil suit for abatement of
a nuisance, the original jurisdiction of which falls under the then Court of
First Instance. The petition is hereby DISMISSED.
QUIZ #9
1. True or False. The right to a balanced and healthful ecology carries with
it a correlative duty to refrain from impairing the environment.
2. True or False. The Rules of Procedure for Environmental Cases has the
following objectives:
a. To protect and advance the constitutional right of the people to a
balanced and healthful ecology;
b. To provide a simplified, speedy and inexpensive procedure for the
enforcement of environmental rights and duties recognized under the
Constitution, existing laws, rules and regulations, and international
agreements;
c. To introduce and adopt innovations and best practices ensuring the
effective enforcement of remedies and redress for violation of
environmental laws and;
d. To enable the courts to monitor and exact compliance with orders and
judgments in environmental cases.
3. Continuing mandamus is a writ issued by a court in an environmental
case directing any agency or instrumentality of the government or officer
thereof to perform an act or series of acts decreed by final judgment
which shall remain effective until judgment is fully satisfied.
4. Environmental Protection Order (EPO) refers to an order issued by the
court directing or enjoining any person or government agency to perform
or desist from performing an act in order to protect, preserve, or
rehabilitate the environment.
5. Consent decree refers to a judicially approved settlement between
concerned parties based on public interest and public policy to protect
and preserve the environment.
6. Precautionary principle states that when human activities may lead to
threats of serious and irreversible damage to the environment that is
scientifically plausible but uncertain, actions shall be taken to avoid or
diminish the threat.
7. Writ of Kalikasan is a remedy available to a natural or juridical person,
entity authorized by law, people’s organizations, non-governmental
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from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
organization, or any public interest group accredited by or registered with
any government agency, on behalf of persons whose constitutional right
to a balanced and healthful ecology is violated, or threatened with
violation by an unlawful act or omission of a public official or employee,
or private individual or entity without involving environmental damage of
such magnitude as to prejudice the life, health or property of inhabitants
in two or more cities or provinces.
8. Strategic Lawsuit Against Public Participation (SLAPP) refers to an
action whether civil, criminal, or administrative, brought against any
person, institution or any government agency or local government unit
or its officials and employees, with the intent to harass, vex, exert undue
pressure or stifle any legal recourse that such person, institution, or
government agency, has taken or may take in the enforcement of
environmental laws, protection of the environment or assertion of
environmental rights.
9. In the MMDA v. Concerned Citizens of Manila Bay case, the government
agencies were mandated to clean up, rehabilitate and preserve Manila
Bay, and restore and maintain its waters to make it fit for swimming,
skindiving, and other forms of contract recreation. Further, in line with the
principle of continuing mandamus, shall, from finality of the Supreme
Court decision, shall each submit to the Court a quarterly progressive
report of the activities undertaken in accordance with the decision.
10. In Oposa v. Factoran, Jr. the Court stated that the right to a balanced and
healthful ecology need not even be written in the Constitution for it is
assumed, like other civil and political rights guaranteed in the Bill of
Rights, to exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational implications.
METROPOLITAN MANILA DEVELOPMENT AUTHORITY,
DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES, DEPARTMENT OF EDUCATION, CULTURE AND
SPORTS (now Department of Education), DEPARTMENT OF
HEALTH, DEPARTMENT OF AGRICULTURE, DEPARTMENT OF
PUBLIC WORKS AND HIGHWAYS, DEPARTMENT OF BUDGET
AND MANAGEMENT, PHILIPPINE COAST GUARD, PHILIPPINE
NATIONAL POLICE MARITIME GROUP, and DEPARTMENT OF
THE INTERIOR AND LOCAL GOVERNMENT vs. CONCERNED
RESIDENTS OF MANILA BAY (2008)
Perfunctory statement: The need to address environmental pollution, as
a cause of climate change, has of late gained the attention of the
international community. Media have finally trained their sights on the ill
effects of pollution, the destruction of forests and other critical habitats,
oil spills, and the unabated improper disposal of garbage. And rightly so,
for the magnitude of environmental destruction is now on a scale few ever
foresaw and the wound no longer simply heals by itself. But amidst hard
evidence and clear signs of a climate crisis that need bold action, the voice
of cynicism, naysayers, and procrastinators can still be heard.
This case turns on government agencies and their officers who, by the
nature of their respective offices or by direct statutory command, are
tasked to protect and preserve, at the first instance, our internal waters,
rivers, shores, and seas polluted by human activities. To most of these
agencies and their official complement, the pollution menace does not
seem to carry the high national priority it deserves, if their track records
are to be the norm. Their cavalier attitude towards solving, if not
mitigating, the environmental pollution problem, is a sad commentary on
bureaucratic efficiency and commitment.
Facts: At the core of the case is the Manila Bay, a place with a proud
historic past, once brimming with marine life and, for so many decades in
the past, a spot for different contact recreation activities, but now a dirty
and slowly dying expanse mainly because of the abject official indifference
of people and institutions that could have otherwise made a difference.
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Complaint by respondents
This case started when, on January 29, 1999, respondents Concerned
Residents of Manila Bay filed a complaint before the Regional Trial
Court in Imus, Cavite against several government agencies, among them
the petitioners Metro Manila Development Authority, et. al., for the
cleanup, rehabilitation, and protection of the Manila Bay.
The complaint alleged that the water quality of the Manila Bay had
fallen way below the allowable standards set by law, specifically
Presidential Decree No. 1152 or the Philippine Environment Code. This
environmental aberration, the complaint stated, stemmed from:
x x x [The] reckless, wholesale, accumulated and ongoing acts of
omission or commission [of the petitioners], resulting in the clear
and present danger to public health and in the depletion and
contamination of the marine life of Manila Bay, [for which reason]
ALL defendants must be held jointly and/or solidarily liable and be
collectively ordered to clean up Manila Bay and to restore its water
quality to class B waters fit for swimming, skin-diving, and other
forms of contact recreation.
In their individual causes of action, respondents alleged that the
continued neglect of petitioners in abating the pollution of
the Manila Bay constitutes a violation of, among others:
1. Respondents’ constitutional right to life, health, and a balanced ecology;
2. The Environment Code (P.D. 1152);
3. The Pollution Control Law (P.D. 984);
4. The Water Code (P.D. 1067);
5. The Sanitation Code (P.D. 856);
6. The Illegal Disposal of Wastes Decree (P.D. 825);
7. The Marine Pollution Law (P.D. 979);
8. The Reorganization Act of the DENR (E.O. 192);
9. The Toxic and Hazardous Wastes Law (R.A. 6969);
10. Civil Code provisions on nuisance and human relations;
11. The Trust Doctrine and the Principle of Guardianship; and
12. International Law.
Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be
ordered to clean the Manila Bayand submit to the RTC a concerted
concrete plan of action for the purpose.
Hearing; petitioners’ witness
The trial of the case started off with a hearing at the Manila Yacht Club
followed by an ocular inspection of the Manila Bay. Renato T. Cruz, the
Chief of the Water Quality Management Section, Environmental
Management Bureau, Department of Environment and Natural Resources
(DENR), testifying for petitioners, stated that water samples collected from
different beaches around the Manila Bay showed that the amount of
fecal coliform content ranged from 50,000 to 80,000 most probable
number (MPN)/ml, when what DENR Administrative Order No. 34-90
prescribed as a safe level for bathing and other forms of contact
recreational activities, or the SB level, is one not exceeding 200
MPN/100 ml.
Rebecca de Vera, for Metropolitan Waterworks and Sewerage System
(MWSS) and in behalf of other petitioners, testified about the MWSS
efforts to reduce pollution along the Manila Bay through the Manila
Second Sewerage Project.
For its part, the Philippine Ports Authority (PPA) presented, as part of its
evidence, its memorandum circulars on the study being conducted on
ship-generated waste treatment and disposal, and its Linis Dagat (Clean
the Ocean) project for the cleaning of wastes accumulated or washed to
shore.
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from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
RTC: On September 13, 2002, the RTC rendered a Decision in favor of
respondents. It ordered the petitioner government agencies, jointly and
solidarily, to clean up and rehabilitate Manila Bay and restore its waters to
SB classification to make it fit for swimming, skin-diving and other forms
of contact recreation. To attain this, defendant-agencies, with defendant
DENR as the lead agency, are directed, within six (6) months from receipt
hereof, to act and perform their respective duties by devising a
consolidated, coordinated and concerted scheme of action for the
rehabilitation and restoration of the bay. In particular:
Defendant MWSS is directed to install, operate and maintain adequate
[sewerage] treatment facilities in strategic places under its jurisdiction
and increase their capacities.
Defendant LWUA, to see to it that the water districts under its wings,
provide, construct and operate sewage facilities for the proper disposal
of waste.
Defendant DENR, which is the lead agency in cleaning up Manila Bay,
to install, operate and maintain waste facilities to rid the bay of toxic and
hazardous substances.
Defendant PPA, to prevent and also to treat the discharge not only of
ship-generated wastes but also of other solid and liquid wastes from
docking vessels that contribute to the pollution of the bay.
Defendant MMDA, to establish, operate and maintain an adequate and
appropriate sanitary landfill and/or adequate solid waste and liquid
disposal as well as other alternative garbage disposal system such as re-
use or recycling of wastes.
Defendant DA, through the Bureau of Fisheries and Aquatic Resources,
to revitalize the marine life in Manila Bayand restock its waters with
indigenous fish and other aquatic animals.
Defendant DBM, to provide and set aside an adequate budget solely
for the purpose of cleaning up and rehabilitation of Manila Bay.
Defendant DPWH, to remove and demolish structures and other
nuisances that obstruct the free flow of waters to the bay. These
nuisances discharge solid and liquid wastes which eventually end up
in Manila Bay. As the construction and engineering arm of the
government, DPWH is ordered to actively participate in removing debris,
such as carcass of sunken vessels, and other non-biodegradable garbage
in the bay.
Defendant DOH, to closely supervise and monitor the operations of
septic and sludge companies and require them to have proper facilities
for the treatment and disposal of fecal sludge and sewage coming from
septic tanks.
Defendant DECS, to inculcate in the minds and hearts of the people
through education the importance of preserving and protecting the
environment.
Defendant Philippine Coast Guard and the PNP Maritime Group, to
protect at all costs the Manila Bay from all forms of illegal fishing.
Appeal to the CA
The MWSS, Local Water Utilities Administration (LWUA), and PPA filed
before the Court of Appeals (CA) individual Notices of Appeal which were
eventually consolidated and docketed as CA-G.R. CV No. 76528.
Appeal to the SC; sent to CA
On the other hand, the DENR, DPWH, MMDA, Philippine Coast Guard
(PCG), PNP Maritime Group, and five other executive departments and
agencies filed directly with this Court a petition for review under Rule 45.
The Court, in a Resolution of December 9, 2002, sent the said petition to
the CA for consolidation with the consolidated appeals of MWSS, LWUA,
and PPA, docketed as CA-G.R. SP No. 74944.
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Petitioners’ contention before the CA
Petitioners, before the CA, were one in arguing in the main that:
• the pertinent provisions of the Environment Code (P.D. 1152) relate
only to the cleaning of specific pollution incidents and do not cover
cleaning in general; and
• apart from raising concerns about the lack of funds appropriated for
cleaning purposes, petitioners also asserted that the cleaning of
the Manila Bay is not a ministerial act which can be compelled by
mandamus.
CA: The CA denied petitioners appeal and affirmed the decision of the
RTC in toto, stressing that the trial court’s decision did not require
petitioners to do tasks outside of their usual basic functions under existing
laws.
Issues: The issues before the Court are two-fold.
1. Whether or not Sections 17 and 20 of P.D. 1152 under the
headings, Upgrading of Water Quality and Clean-up Operations,
envisage a clean-up in general or are they limited only to the cleanup
of specific pollution incidents? [Yes, they include a clean-up in
general]
2. Whether or not petitioners be compelled by mandamus to clean up
and rehabilitate the Manila Bay? [Yes]
Ruling: The petition is denied. The Court shall first dwell on the propriety
of the issuance of mandamus under the premises.
II
The cleaning or rehabilitation of Manila Bay can be compelled by
mandamus
When the writ of mandamus lies
Generally, the writ of mandamus lies to require the execution of a
ministerial duty. A ministerial duty is one that requires neither the
exercise of official discretion nor judgment. It connotes an act in which
nothing is left to the discretion of the person executing it. It is a simple,
definite duty arising under conditions admitted or proved to exist and
imposed by law. Mandamus is available to compel action, when refused,
on matters involving discretion, but not to direct the exercise of judgment
or discretion one way or the other.
Petitioners’ contention: Petitioners maintain that the MMDA’s duty to
take measures and maintain adequate solid waste and liquid disposal
systems necessarily involves policy evaluation and the exercise of
judgment on the part of the agency concerned. They argue that the
MMDA, in carrying out its mandate, has to make decisions, including
choosing where a landfill should be located by undertaking feasibility
studies and cost estimates, all of which entail the exercise of discretion.
Respondents’ contention: Respondents, on the other hand, counter that
the statutory command is clear and that petitioners duty to comply with
and act according to the clear mandate of the law does not require the
exercise of discretion. According to respondents, petitioners, the MMDA
in particular, are without discretion, for example, to choose which bodies
of water they are to clean up, or which discharge or spill they are to
contain. By the same token, respondents maintain that petitioners are
bereft of discretion on whether or not to alleviate the problem of solid
and liquid waste disposal; in other words, it is the MMDA’s ministerial duty
to attend to such services.
Held: The Court agrees with respondents. First off, the Court wishes to
state that petitioners’ obligation to perform their duties as defined by law,
on one hand, and how they are to carry out such duties, on the other, are
two different concepts. While the implementation of the MMDA’s
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mandated tasks may entail a decision-making process, the enforcement of
the law or the very act of doing what the law exacts to be done is
ministerial in nature and may be compelled by mandamus. The Court said
so in Social Justice Society v. Atienza in which the Court directed the
City of Manila to enforce, as a matter of ministerial duty, its Ordinance
No. 8027 directing the three big local oil players to cease and desist from
operating their business in the so-called Pandacan Terminals within six
months from the effectivity of the ordinance.
In this case, the MMDA’s duty to put up an adequate and appropriate
sanitary landfill and solid waste and liquid disposal as well as other
alternative garbage disposal systems is ministerial, its duty being a
statutory imposition.
The MMDA’s duty in this regard is spelled out in Section 3(c) of R.A. No.
7924 creating the MMDA. This section defines and delineates the scope
of the MMDA’s waste disposal services to include:
Solid waste disposal and management which include formulation
and implementation of policies, standards, programs and projects
for proper and sanitary waste disposal. It shall likewise include
the establishment and operation of sanitary land fill and
related facilities and the implementation of other alternative
programs intended to reduce, reuse and recycle solid waste.
The MMDA is duty-bound to comply with Section 41 of the Ecological Solid
Waste Management Act (R.A. 9003) which prescribes the minimum criteria
for the establishment of sanitary landfills and Section 42 which provides
the minimum operating requirements that each site operator shall
maintain in the operation of a sanitary landfill. Complementing Section 41
are Sections 36 and 37 of R.A. 9003, enjoining the MMDA and local
government units, among others, after the effectivity of the law on
February 15, 2001, from using and operating open dumps for solid waste
and disallowing, five years after such effectivity, the use of controlled
dumps.
The MMDA’s duty in the area of solid waste disposal, as may be noted,
is set forth not only in the Environment Code (P.D. 1152) and R.A.
9003, but in its charter as well.
This duty of putting up a proper waste disposal system cannot be
characterized as discretionary, for, as earlier stated, discretion
presupposes the power or right given by law to public functionaries to act
officially according to their judgment or conscience. A discretionary duty
is one that allows a person to exercise judgment and choose to perform
or not to perform. Any suggestion that the MMDA has the option whether
or not to perform its solid waste disposal-related duties ought to be
dismissed for want of legal basis.
A perusal of other petitioners respective charters or like enabling
statutes and pertinent laws would yield this conclusion: these
government agencies are enjoined, as a matter of statutory
obligation, to perform certain functions relating directly or indirectly
to the cleanup, rehabilitation, protection, and preservation of the
Manila Bay.
They are precluded from choosing not to perform these duties. Consider:
1. The DENR, under E.O. 192, is the primary agency responsible for the
conservation, management, development, and proper use of the countrys
environment and natural resources. Section 19 of the Philippine Clean Water
Act of 2004 (R.A. 9275), on the other hand, designates the DENR as the primary
government agency responsible for its enforcement and implementation,
more particularly over all aspects of water quality management. On water
pollution, the DENR, under the Acts Section 19(k), exercises jurisdiction over all
aspects of water pollution, determine[s] its location, magnitude, extent,
severity, causes and effects and other pertinent information on pollution, and
[takes] measures, using available methods and technologies, to prevent and
abate such pollution.
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The DENR, under R.A. 9275, is also tasked to prepare a National Water Quality
Status Report, an Integrated Water Quality Management Framework, and a 10-
year Water Quality Management Area Action Plan which is nationwide in scope
covering the Manila Bay and adjoining areas. Section 19 of R.A. 9275 provides:
Section 19. Lead Agency. The [DENR] shall be the primary government agency
responsible for the implementation and enforcement of this Act x x x unless
otherwise provided herein. As such, it shall have the following functions, powers and
responsibilities:
a) Prepare a National Water Quality Status report within twenty-four (24) months
from the effectivity of this Act: Provided, That the Department shall thereafter
review or revise and publish annually, or as the need arises, said report;
b) Prepare an Integrated Water Quality Management Framework within twelve
(12) months following the completion of the status report;
c) Prepare a ten (10) year Water Quality Management Area Action Plan within 12
months following the completion of the framework for each designated
water management area. Such action plan shall be reviewed by the water
quality management area governing board every five (5) years or as need
arises.
The DENR has prepared the status report for the period 2001 to 2005 and is in the
process of completing the preparation of the Integrated Water Quality Management
Framework.[16] Within twelve (12) months thereafter, it has to submit a final Water
Quality Management Area Action Plan.[17] Again, like the MMDA, the DENR should
be made to accomplish the tasks assigned to it under R.A. 9275.
Parenthetically, during the oral arguments, the DENR Secretary manifested that the
DENR, with the assistance of and in partnership with various government agencies
and non-government organizations, has completed, as of December 2005, the final
draft of a comprehensive action plan with estimated budget and time frame,
denominated as Operation Plan for the Manila Bay Coastal Strategy, for the
rehabilitation, restoration, and rehabilitation of the Manila Bay.
The completion of the said action plan and even the implementation of some of its
phases should more than ever prod the concerned agencies to fast track what are
assigned them under existing laws.
2. The MWSS, under Section 3 of R.A. 6234, is vested with jurisdiction,
supervision, and control over all waterworks and sewerage systems in the
territory comprising what is now the cities of Metro Manila and several towns
of the provinces of Rizal and Cavite, and charged with the duty:
(g) To construct, maintain, and operate such sanitary sewerages as may be
necessary for the proper sanitation and other uses of the cities and towns
comprising the System; x x x
3. The LWUA under P.D. 198 has the power of supervision and control over local
water districts. It can prescribe the minimum standards and regulations for the
operations of these districts and shall monitor and evaluate local water
standards. The LWUA can direct these districts to construct, operate, and
furnish facilities and services for the collection, treatment, and disposal of
sewerage, waste, and storm water. Additionally, under R.A. 9275, the LWUA, as
attached agency of the DPWH, is tasked with providing sewerage and
sanitation facilities, inclusive of the setting up of efficient and safe collection,
treatment, and sewage disposal system in the different parts of the country. In
relation to the instant petition, the LWUA is mandated to provide sewerage
and sanitation facilities in Laguna, Cavite, Bulacan, Pampanga, and Bataanto
prevent pollution in the Manila Bay.
4. The Department of Agriculture (DA), pursuant to the Administrative Code of
1987 (EO 292), is designated as the agency tasked to promulgate and enforce
all laws and issuances respecting the conservation and proper utilization of
agricultural and fishery resources. Furthermore, the DA, under the Philippine
Fisheries Code of 1998 (RA 8550), is, in coordination with local government
units (LGUs) and other concerned sectors, in charge of establishing a
monitoring, control, and surveillance system to ensure that fisheries and
aquatic resources in Philippine waters are judiciously utilized and managed on
a sustainable basis. Likewise under R.A. 9275, the DA is charged with
coordinating with the PCG and DENR for the enforcement of water quality
standards in marine waters. More specifically, its Bureau of Fisheries and
Aquatic Resources (BFAR) under Section 22(c) of R.A. 9275 shall primarily be
responsible for the prevention and control of water pollution for the
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
development, management, and conservation of the fisheries and aquatic
resources.
5. The DPWH, as the engineering and construction arm of the national
government, is tasked under EO 292 to provide integrated planning, design,
and construction services for, among others, flood control and water resource
development systems in accordance with national development objectives and
approved government plans and specifications.
In Metro Manila, however, the MMDA is authorized by Section 3(d), RA 7924
to perform metro-wide services relating to flood control and sewerage
management which include the formulation and implementation of policies,
standards, programs and projects for an integrated flood control, drainage and
sewerage system.
On July 9, 2002, a Memorandum of Agreement was entered into between the
DPWH and MMDA, whereby MMDA was made the agency primarily
responsible for flood control in Metro Manila. For the rest of the country,
DPWH shall remain as the implementing agency for flood control services. The
mandate of the MMDA and DPWH on flood control and drainage services shall
include the removal of structures, constructions, and encroachments built
along rivers, waterways, and esteros (drainages) in violation of RA 7279, P.D.
1067, and other pertinent laws.
6. The PCG, in accordance with Section 5(p) of P.D. 601, or the Revised Coast
Guard Law of 1974, and Section 6 of P.D. 979, or the Marine Pollution Decree
of 1976, shall have the primary responsibility of enforcing laws, rules, and
regulations governing marine pollution within the territorial waters of
the Philippines. It shall promulgate its own rules and regulations in accordance
with the national rules and policies set by the National Pollution Control
Commission upon consultation with the latter for the effective implementation
and enforcement of P.D. 979. It shall, under Section 4 of the law, apprehend
violators who:
a. discharge, dump x x x harmful substances from or out of any ship, vessel, barge,
or any other floating craft, or other man-made structures at sea, by any method,
means or manner, into or upon the territorial and inland navigable waters of the
Philippines;
b. throw, discharge or deposit, dump, or cause, suffer or procure to be thrown,
discharged, or deposited either from or out of any ship, barge, or other floating craft
or vessel of any kind, or from the shore, wharf, manufacturing establishment, or mill
of any kind, any refuse matter of any kind or description whatever other than that
flowing from streets and sewers and passing therefrom in a liquid state into tributary
of any navigable water from which the same shall float or be washed into such
navigable water; and
c. deposit x x x material of any kind in any place on the bank of any navigable water
or on the bank of any tributary of any navigable water, where the same shall be
liable to be washed into such navigable water, either by ordinary or high tides, or
by storms or floods, or otherwise, whereby navigation shall or may be impeded or
obstructed or increase the level of pollution of such water.
7. When RA 6975 or the Department of the Interior and Local Government
(DILG) Act of 1990 was signed into law on December 13, 1990, the PNP
Maritime Group was tasked to perform all police functions over the Philippine
territorial waters and rivers. Under Section 86, RA 6975, the police functions of
the PCG shall be taken over by the PNP when the latter acquires the capability
to perform such functions. Since the PNP Maritime Group has not yet attained
the capability to assume and perform the police functions of PCG over marine
pollution, the PCG and PNP Maritime Group shall coordinate with regard to
the enforcement of laws, rules, and regulations governing marine pollution
within the territorial waters of the Philippines. This was made clear in Section
124, RA 8550 or the Philippine Fisheries Code of 1998, in which both the PCG
and PNP Maritime Group were authorized to enforce said law and other fishery
laws, rules, and regulations.[25]
8. In accordance with Section 2 of E.O. 513, the PPA is mandated to establish,
develop, regulate, manage and operate a rationalized national port system in
support of trade and national development.[26] Moreover, Section 6-c of EO
513 states that the PPA has police authority within the
ports administered by it as may be necessary to carry out its powers and functions
and attain its purposes and objectives, without prejudice to the exercise of the
functions of the Bureau of Customs and other law enforcement bodies within the
area. Such police authority shall include the following:
xxxx
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b) To regulate the entry to, exit from, and movement within the port, of persons and
vehicles, as well as movement within the port of watercraft.
Lastly, as a member of the International Marine Organization and a signatory
to the International Convention for the Prevention of Pollution from Ships, as
amended by MARPOL 73/78, the Philippines, through the PPA, must ensure
the provision of adequate reception facilities at ports and terminals for the
reception of sewage from the ships docking in Philippine ports. Thus, the PPA
is tasked to adopt such measures as are necessary to prevent the discharge
and dumping of solid and liquid wastes and other ship-generated wastes into
the Manila Bay waters from vessels docked at ports and apprehend the
violators. When the vessels are not docked at ports but within Philippine
territorial waters, it is the PCG and PNP Maritime Group that have jurisdiction
over said vessels.
9. The MMDA, as earlier indicated, is duty-bound to put up and maintain
adequate sanitary landfill and solid waste and liquid disposal system as well as
other alternative garbage disposal systems. It is primarily responsible for the
implementation and enforcement of the provisions of R.A. 9003, which would
necessary include its penal provisions, within its area of jurisdiction.
Among the prohibited acts under Section 48, Chapter VI of R.A. 9003 that are
frequently violated are dumping of waste matters in public places, such as
roads, canals or esteros, open burning of solid waste, squatting in open dumps
and landfills, open dumping, burying of biodegradable or non- biodegradable
materials in flood-prone areas, establishment or operation of open dumps as
enjoined in R.A. 9003, and operation of waste management facilities without
an environmental compliance certificate.
Under Section 28 of the Urban Development and Housing Act of 1992 (RA
7279), eviction or demolition may be allowed when persons or entities occupy
danger areas such as esteros, railroad tracks, garbage dumps, riverbanks,
shorelines, waterways, and other public places such as sidewalks, roads, parks
and playgrounds. The MMDA, as lead agency, in coordination with the DPWH,
LGUs, and concerned agencies, can dismantle and remove all structures,
constructions, and other encroachments built in breach of RA 7279 and other
pertinent laws along the rivers, waterways, and esteros in Metro Manila. With
respect to rivers, waterways, and esteros in Bulacan, Bataan, Pampanga, Cavite,
and Laguna that discharge wastewater directly or eventually into the Manila
Bay, the DILG shall direct the concerned LGUs to implement the demolition
and removal of such structures, constructions, and other encroachments built
in violation of RA 7279 and other applicable laws in coordination with the
DPWH and concerned agencies.
10. The Department of Health (DOH), under Article 76 of P.D. 1067 (the Water
Code), is tasked to promulgate rules and regulations for the establishment of
waste disposal areas that affect the source of a water supply or a reservoir for
domestic or municipal use. And under Section 8 of R.A. 9275, the DOH, in
coordination with the DENR, DPWH, and other concerned agencies, shall
formulate guidelines and standards for the collection, treatment, and disposal
of sewage and the establishment and operation of a centralized sewage
treatment system. In areas not considered as highly urbanized cities, septage
or a mix sewerage-septage management system shall be employed.
In accordance with Section 72 of P.D. 856, the Code of Sanitation of
the Philippines, and Section 5.1.1 of Chapter XVII of its implementing rules, the
DOH is also ordered to ensure the regulation and monitoring of the proper
disposal of wastes by private sludge companies through the strict enforcement
of the requirement to obtain an environmental sanitation clearance of sludge
collection treatment and disposal before these companies are issued their
environmental sanitation permit.
11. The Department of Education (DepEd), under the Philippine Environment
Code (P.D. 1152), is mandated to integrate subjects on environmental
education in its school curricula at all levels. Under Section 118 of RA 8550, the
DepEd, in collaboration with the DA, Commission on Higher Education, and
Philippine Information Agency, shall launch and pursue a nationwide
educational campaign to promote the development, management,
conservation, and proper use of the environment. Under the Ecological Solid
Waste Management Act (R.A. 9003), on the other hand, it is directed to
strengthen the integration of environmental concerns in school curricula at all
levels, with an emphasis on waste management principles.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
12. The Department of Budget and Management (DBM) is tasked under Section
2, Title XVII of the Administrative Code of 1987 to ensure the efficient and sound
utilization of government funds and revenues so as to effectively achieve the
country’s development objectives.
One of the country’s development objectives is enshrined in R.A. 9275 or the
Philippine Clean Water Act of 2004. This law stresses that the State shall pursue
a policy of economic growth in a manner consistent with the protection,
preservation, and revival of the quality of our fresh, brackish, and marine
waters. It also provides that it is the policy of the government, among others:
• to streamline processes and procedures in the prevention, control, and
abatement of pollution mechanisms for the protection of water
resources;
• to promote environmental strategies and use of appropriate economic
instruments and of control mechanisms for the protection of water
resources;
• to formulate a holistic national program of water quality management
that recognizes that issues related to this management cannot be
separated from concerns about water sources and ecological protection,
water supply, public health, and quality of life; and
• to provide a comprehensive management program for water pollution
focusing on pollution prevention.
Thus, the DBM shall then endeavor to provide an adequate budget to attain
the noble objectives of R.A. 9275 in line with the country’s development
objectives.
All told, the aforementioned enabling laws and issuances are in
themselves clear, categorical, and complete as to what are the obligations
and mandate of each agency/petitioner under the law. The Court need not
belabor the issue that their tasks include the cleanup of the Manila Bay.
I
Section 17 and 20 of the Environment Code include cleaning in
general
Now, as to the crux of the petition. Do Sections 17 and 20 of the
Environment Code encompass the cleanup of water pollution in general,
not just specific pollution incidents? The disputed sections are quoted as
follows:
Section 17. Upgrading of Water Quality. Where the quality of water
has deteriorated to a degree where its state will adversely affect its best
usage, the government agencies concerned shall take such measures as
may be necessary to upgrade the quality of such water to meet the
prescribed water quality standards.
Section 20. Clean-up Operations. It shall be the responsibility of the
polluter to contain, remove and clean-up water pollution incidents at
his own expense. In case of his failure to do so, the government agencies
concerned shall undertake containment, removal and clean-up
operations and expenses incurred in said operations shall be charged
against the persons and/or entities responsible for such pollution.
When the Clean Water Act (R.A. 9275) took effect, its Section 16 on the
subject, Cleanup Operations, amended the counterpart provision (Section
20) of the Environment Code (P.D. 1152). Section 17 of P.D. 1152
continues, however, to be operational. The amendatory Section 16 of R.A.
9275 reads:
Section 16. Cleanup Operations. Notwithstanding the provisions of
Sections 15 and 26 hereof, any person who causes pollution in or pollutes
water bodies in excess of the applicable and prevailing standards shall
be responsible to contain, remove and clean up any pollution incident
at his own expense to the extent that the same water bodies have been
rendered unfit for utilization and beneficial use: Provided, That in the
event emergency cleanup operations are necessary and the polluter fails
to immediately undertake the same, the [DENR] in coordination with
other government agencies concerned, shall undertake containment,
removal and cleanup operations. Expenses incurred in said operations
shall be reimbursed by the persons found to have caused such pollution
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under proper administrative determination x x x. Reimbursements of the
cost incurred shall be made to the Water Quality Management Fund or
to such other funds where said disbursements were sourced.
As may be noted, the amendment to Section 20 of the Environment Code
is more apparent than real since the amendment, insofar as it is relevant
to this case, merely consists in the designation of the DENR as lead
agency in the cleanup operations.
Petitioners’ contention: Petitioners contend at every turn that Sections
17 and 20 of the Environment Code concern themselves only with the
matter of cleaning up in specific pollution incidents, as opposed to
cleanup in general. They aver that:
• the twin provisions would have to be read alongside the succeeding
Section 62(g) and (h), which defines the terms cleanup operations and
accidental spills, as follows:
g. Clean-up Operations [refer] to activities conducted in removing
the pollutants discharged or spilled in water to restore it to pre-
spill condition.
h. Accidental Spills [refer] to spills of oil or other hazardous substances
in water that result from accidents such as collisions and groundings.
• Sections 17 and 20 of P.D. 1152 merely direct the government
agencies concerned to undertake containment, removal, and
cleaning operations of a specific polluted portion or portions of the
body of water concerned.
• the application of said Section 20 is limited only to water pollution
incidents, which are situations that presuppose the occurrence of
specific, isolated pollution events requiring the corresponding
containment, removal, and cleaning operations.
• the aforequoted Section 62(g) requires cleanup operations to restore
the body of water to pre-spill condition, which means that there must
have been a specific incident of either intentional or accidental
spillage of oil or other hazardous substances, as mentioned in Section
62(h).
Respondents’ contention: Respondents argue that:
• petitioners erroneously read Section 62(g) as delimiting the
application of Section 20 to the containment, removal, and cleanup
operations for accidental spills only.
• contrary to petitioners posture, respondents assert that Section 62(g),
in fact, even expanded the coverage of Section 20.
• without its Section 62(g), P.D. 1152 may have indeed covered only
pollution accumulating from the day-to-day operations of
businesses around the Manila Bay and other sources of pollution
that slowly accumulated in the bay.
• Section 62(g), far from being a delimiting provision, in fact even
enlarged the operational scope of Section 20, by including accidental
spills as among the water pollution incidents contemplated in Section
17 in relation to Section 20 of P.D. 1152.
To respondents, petitioners parochial view on environmental issues,
coupled with their narrow reading of their respective mandated roles, has
contributed to the worsening water quality of the Manila Bay. Assuming,
respondents assert, that petitioners are correct in saying that the cleanup
coverage of Section 20 of P.D. 1152 is constricted by the definition of the
phrase cleanup operations embodied in Section 62(g), Section 17 is not
hobbled by such limiting definition. As pointed out, the phrases cleanup
operations and accidental spills do not appear in said Section 17, not even
in the chapter where said section is found.
Held: Respondents are correct. For one thing, said Section 17 does not in
any way state that the government agencies concerned ought to confine
themselves to the containment, removal, and cleaning operations when a
specific pollution incident occurs.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
On the contrary, Section 17 requires them to act even in the absence
of a specific pollution incident, as long as water quality has
deteriorated to a degree where its state will adversely affect its best
usage. This section, to stress, commands concerned government
agencies, when appropriate, to take such measures as may be necessary
to meet the prescribed water quality standards. In fine, the underlying
duty to upgrade the quality of water is not conditional on the occurrence
of any pollution incident.
For another, a perusal of Section 20 of the Environment Code, as couched,
indicates that it is properly applicable to a specific situation in which the
pollution is caused by polluters who fail to clean up the mess they
left behind. In such instance, the concerned government agencies shall
undertake the cleanup work for the polluters account.
Contention: Petitioners assert that they have to perform cleanup
operations in the Manila Bay only when there is a water pollution incident
and the erring polluters do not undertake the containment, removal, and
cleanup operations.
Held: Such contention is quite off mark. As earlier discussed, the
complementary Section 17 of the Environment Code comes into play and
the specific duties of the agencies to clean up come in even if there are
no pollution incidents staring at them. Petitioners, thus, cannot
plausibly invoke and hide behind Section 20 of P.D. 1152 or Section 16 of
R.A. 9275 on the pretext that their cleanup mandate depends on the
happening of a specific pollution incident.
In this regard, what the CA said with respect to the impasse over Sections
17 and 20 of P.D. 1152 is at once valid as it is practical. The appellate court
wrote: P.D. 1152 aims to introduce a comprehensive program of
environmental protection and management. This is better served by
making Sections 17 & 20 of general application rather than limiting them
to specific pollution incidents.
Granting arguendo that petitioners position thus described vis-a-vis
the implementation of Section 20 is correct, they seem to have
overlooked the fact that the pollution of the Manila Bay is of such
magnitude and scope that it is well-nigh impossible to draw the line
between a specific and a general pollution incident.
And such impossibility extends to pinpointing with reasonable certainty
who the polluters are. The Court notes that Section 20 of P.D. 1152
mentions water pollution incidents which may be caused by polluters in
the waters of the Manila Bay itself or by polluters in adjoining lands and
in water bodies or waterways that empty into the bay. Section 16 of R.A.
9275, on the other hand, specifically adverts to any person who causes
pollution in or pollutes water bodies, which may refer to an individual or
an establishment that pollutes the land mass near the Manila Bay or the
waterways, such that the contaminants eventually end up in the bay. In
this situation, the water pollution incidents are so numerous and involve
nameless and faceless polluters that they can validly be categorized as
beyond the specific pollution incident level.
Not to be ignored of course is the reality that the government agencies
concerned are so undermanned that it would be almost impossible to
apprehend the numerous polluters of the Manila Bay. It may perhaps not
be amiss to say that the apprehension, if any, of the Manila Bay polluters
has been few and far between. Hence, practically nobody has been
required to contain, remove, or clean up a given water pollution
incident.In this kind of setting, it behooves the Government to step in and
undertake cleanup operations. Thus, Section 16 of R.A. 9275, previously
Section 20 of P.D. 1152, covers for all intents and purposes a general
cleanup situation.
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The cleanup and/or restoration of the Manila Bay is only an aspect
and the initial stage of the long-term solution.
The preservation of the water quality of the bay after the rehabilitation
process is as important as the cleaning phase. It is imperative then that
the wastes and contaminants found in the rivers, inland bays, and other
bodies of water be stopped from reaching the Manila Bay. Otherwise, any
cleanup effort would just be a futile, cosmetic exercise, for, in no time at
all, the Manila Bay water quality would again deteriorate below the ideal
minimum standards set by P.D. 1152, R.A. 9275, and other relevant laws.
It thus behooves the Court to put the heads of the petitioner-department-
agencies and the bureaus and offices under them on continuing notice
about, and to enjoin them to perform, their mandates and duties towards
cleaning up the Manila Bay and preserving the quality of its water to the
ideal level.
Doctrine of continuing mandamus
Under what other judicial discipline describes as continuing mandamus,
the Court may, under extraordinary circumstances, issue directives with
the end in view of ensuring that its decision would not be set to naught
by administrative inaction or indifference.
In India, the doctrine of continuing mandamus was used to enforce
directives of the court to clean up the length of the Ganges River from
industrial and municipal pollution.
The Court can take judicial notice of the presence of shanties and other
unauthorized structures which do not have septic tanks along the Pasig-
Marikina-San Juan Rivers, the National Capital Region (NCR) (Paraaque-
Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers,
the Meycuayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan)
River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers
and connecting waterways, river banks, and esteros which discharge their
waters, with all the accompanying filth, dirt, and garbage, into the major
rivers and eventually the Manila Bay.
If there is one factor responsible for the pollution of the major river
systems and the Manila Bay, these unauthorized structures would be on
top of the list. And if the issue of illegal or unauthorized structures is not
seriously addressed with sustained resolve, then practically all efforts to
cleanse these important bodies of water would be for naught. The DENR
Secretary said as much.
Giving urgent dimension to the necessity of removing these illegal
structures is Article 51 of P.D. 1067 or the Water Code, which prohibits the
building of structures within a given length along banks of rivers and other
waterways. Art. 51 reads:
The banks of rivers and streams and the shores of the seas and
lakes throughout their entire length and within a zone of three (3)
meters in urban areas, twenty (20) meters in agricultural areas and forty
(40) meters in forest areas, along their margins, are subject to the
easement of public use in the interest of recreation, navigation,
floatage, fishing and salvage. No person shall be allowed to stay in
this zone longer than what is necessary for recreation, navigation,
floatage, fishing or salvage or to build structures of any kind.
Judicial notice may likewise be taken of factories and other industrial
establishments standing along or near the banks of the Pasig River, other
major rivers, and connecting waterways. But while they may not be treated
as unauthorized constructions, some of these establishments
undoubtedly contribute to the pollution of the Pasig River and
waterways.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
The DILG and the concerned LGUs, have, accordingly, the duty to see to it
that non-complying industrial establishments set up, within a reasonable
period, the necessary waste water treatment facilities and infrastructure to
prevent their industrial discharge, including their sewage waters, from
flowing into the Pasig River, other major rivers, and connecting
waterways. After such period, non-complying establishments shall be shut
down or asked to transfer their operations.
At this juncture, and if only to dramatize the urgency of the need for
petitioners-agencies to comply with their statutory tasks, we cite the
Asian Development Bank-commissioned study on the garbage
problem in Metro Manila, the results of which are embodied in the The
Garbage Book. As there reported, the garbage crisis in the metropolitan
area is as alarming as it is shocking. Some highlights of the report:
1. As early as 2003, three land-filled dumpsites in Metro Manila - the
Payatas, Catmon and Rodriquez dumpsites - generate an alarming
quantity of lead and leachate or liquid run-off. Leachate are toxic liquids
that flow along the surface and seep into the earth and poison the
surface and groundwater that are used for drinking, aquatic life, and the
environment.
2. The high level of fecal coliform confirms the presence of a large
amount of human waste in the dump sites and surrounding areas, which
is presumably generated by households that lack alternatives to
sanitation. To say that Manila Bay needs rehabilitation is an
understatement.
3. Most of the deadly leachate, lead and other dangerous contaminants
and possibly strains of pathogens seeps untreated into ground water
and runs into the Marikina and Pasig River systems and Manila Bay.
Given the above perspective, sufficient sanitary landfills should now more
than ever be established as prescribed by the Ecological Solid Waste
Management Act (R.A. 9003). Particular note should be taken of the blatant
violations by some LGUs and possibly the MMDA of Section 37,
reproduced below:
Section 37. Prohibition against the Use of Open Dumps for Solid
Waste. No open dumps shall be established and operated, nor any
practice or disposal of solid waste by any person, including LGUs which
[constitute] the use of open dumps for solid waste, be allowed after the
effectivity of this Act: Provided, further that no controlled dumps shall
be allowed (5) years following the effectivity of this Act.
R.A. 9003 took effect on February 15, 2001 and the adverted grace period
of five (5) years which ended on February 21, 2006 has come and gone,
but no single sanitary landfill which strictly complies with the prescribed
standards under R.A. 9003 has yet been set up.
In addition, there are rampant and repeated violations of Section 48 of R.A.
9003, like littering, dumping of waste matters in roads, canals, esteros, and
other public places, operation of open dumps, open burning of solid
waste, and the like. Some sludge companies which do not have proper
disposal facilities simply discharge sludge into the Metro Manila sewerage
system that ends up in the Manila Bay.
Equally unabated are violations of Section 27 of R.A. 9275, which enjoins
the pollution of water bodies, groundwater pollution, disposal of
infectious wastes from vessels, and unauthorized transport or dumping
into sea waters of sewage or solid waste and of Sections 4 and 102 of R.A.
8550 which proscribes the introduction by human or machine of
substances to the aquatic environment including dumping/disposal of
waste and other marine litters, discharge of petroleum or residual
products of petroleum of carbonaceous materials/substances [and other]
radioactive, noxious or harmful liquid, gaseous or solid substances, from
any water, land or air transport or other human-made structure.
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In the light of the ongoing environmental degradation, the Court
wishes to emphasize the extreme necessity for all concerned executive
departments and agencies to immediately act and discharge their
respective official duties and obligations.
Indeed, time is of the essence; hence, there is a need to set timetables for
the performance and completion of the tasks, some of them as defined
for them by law and the nature of their respective offices and mandates.
The importance of the Manila Bay as a sea resource, playground, and as a
historical landmark cannot be over-emphasized. It is not yet too late in the
day to restore the Manila Bay to its former splendor and bring back the
plants and sea life that once thrived in its blue waters. But the tasks ahead,
daunting as they may be, could only be accomplished if those mandated,
with the help and cooperation of all civic-minded individuals, would put
their minds to these tasks and take responsibility. This means that the
State, through petitioners, has to take the lead in the preservation and
protection of the Manila Bay.
The era of delays, procrastination, and ad hoc measures is over. Petitioners
must transcend their limitations, real or imaginary, and buckle down to
work before the problem at hand becomes unmanageable. Thus, we must
reiterate that different government agencies and instrumentalities cannot
shirk from their mandates; they must perform their basic functions in
cleaning up and rehabilitating the Manila Bay. We are disturbed by
petitioners hiding behind two untenable claims: (1) that there ought to be
a specific pollution incident before they are required to act; and (2) that
the cleanup of the bay is a discretionary duty.
R.A. 9003 is a sweeping piece of legislation enacted to radically transform
and improve waste management. It implements Section 16, Art. II of the
1987 Constitution, which explicitly provides that the State shall
protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature.
So it was that in Oposa v. Factoran, Jr. the Court stated that the right to
a balanced and healthful ecology need not even be written in the
Constitution for it is assumed, like other civil and political rights
guaranteed in the Bill of Rights, to exist from the inception of mankind
and it is an issue of transcendental importance with intergenerational
implications. Even assuming the absence of a categorical legal provision
specifically prodding petitioners to clean up the bay, they and the men
and women representing them cannot escape their obligation to future
generations of Filipinos to keep the waters of the Manila Bay clean and
clear as humanly as possible. Anything less would be a betrayal of the trust
reposed in them.
Dispositive portion: The petition is denied. The September 28, 2005
Decision of the CA in CA-G.R. CV No. 76528 and SP No. 74944 and the
September 13, 2002 Decision of the RTC in Civil Case No. 1851-99
are affirmed but with modifications in view of subsequent
developments or supervening events in the case. The fallo of the RTC
Decision shall now read:
WHEREFORE, judgment is hereby rendered ordering the abovenamed
defendant-government agencies to clean up, rehabilitate, and
preserve Manila Bay, and restore and maintain its waters to SB level (Class B
sea waters per Water Classification Tables under DENR Administrative Order
No. 34 [1990]) to make them fit for swimming, skin-diving, and other forms of
contact recreation. In particular:
1. Pursuant to Section 4 of EO 192, assigning the DENR as the primary
agency responsible for the conservation, management, development,
and proper use of the country’s environment and natural resources, and
Section 19 of R.A. 9275, designating the DENR as the primary
government agency responsible for its enforcement and
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from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
implementation, the DENR is directed to fully implement its Operational
Plan for the Manila Bay Coastal Strategy for the rehabilitation,
restoration, and conservation of the Manila Bay at the earliest possible
time. It is ordered to call regular coordination meetings with concerned
government departments and agencies to ensure the successful
implementation of the aforesaid plan of action in accordance with its
indicated completion schedules.
2. Pursuant to Title XII (Local Government) of the Administrative Code of
1987 and Section 25 of the Local Government Code of 1991,[42] the
DILG, in exercising the Presidents power of general supervision and its
duty to promulgate guidelines in establishing waste management
programs under Section 43 of the Philippine Environment Code (P.D.
1152), shall direct all LGUs in Metro Manila, Rizal, Laguna, Cavite,
Bulacan, Pampanga, and Bataan to inspect all factories, commercial
establishments, and private homes along the banks of the major river
systems in their respective areas of jurisdiction, such as but not limited
to the Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las
Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the
Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan)
River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers
and waterways that eventually discharge water into the Manila Bay; and
the lands abutting the bay, to determine whether they have wastewater
treatment facilities or hygienic septic tanks as prescribed by existing laws,
ordinances, and rules and regulations. If none be found, these LGUs shall
be ordered to require non-complying establishments and homes to set
up said facilities or septic tanks within a reasonable time to prevent
industrial wastes, sewage water, and human wastes from flowing into
these rivers, waterways, esteros, and the Manila Bay, under pain of
closure or imposition of fines and other sanctions.
3. As mandated by Section 8 of R.A. 9275, the MWSS is directed to provide,
install, operate, and maintain the necessary adequate waste water
treatment facilities in Metro Manila, Rizal, and Cavite where needed at
the earliest possible time.
4. Pursuant to R.A. 9275, the LWUA, through the local water districts and in
coordination with the DENR, is ordered to provide, install, operate, and
maintain sewerage and sanitation facilities and the efficient and safe
collection, treatment, and disposal of sewage in the provinces of Laguna,
Cavite, Bulacan, Pampanga, and Bataan where needed at the earliest
possible time.
5. Pursuant to Section 65 of RA 8550, the DA, through the BFAR, is ordered
to improve and restore the marine life of the Manila Bay. It is also
directed to assist the LGUs in Metro Manila, Rizal, Cavite, Laguna,
Bulacan, Pampanga, and Bataan in developing, using recognized
methods, the fisheries and aquatic resources in the Manila Bay.
6. The PCG, pursuant to Sections 4 and 6 of P.D. 979, and the PNP Maritime
Group, in accordance with Section 124 of RA 8550, in coordination with
each other, shall apprehend violators of P.D. 979, RA 8550, and other
existing laws and regulations designed to prevent marine pollution in
the Manila Bay.
7. Pursuant to Sections 2 and 6-c of EO 513[46] and the International
Convention for the Prevention of Pollution from Ships, the PPA is ordered
to immediately adopt such measures to prevent the discharge and
dumping of solid and liquid wastes and other ship-generated wastes into
the Manila Bay waters from vessels docked at ports and apprehend the
violators.
8. The MMDA, as the lead agency and implementor of programs and
projects for flood control projects and drainage services in Metro Manila,
in coordination with the DPWH, DILG, affected LGUs, PNP Maritime
Group, Housing and Urban Development Coordinating Council
(HUDCC), and other agencies, shall dismantle and remove all structures,
constructions, and other encroachments established or built in violation
of RA 7279, and other applicable laws along the Pasig-Marikina-San Juan
Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the Navotas-
Malabon-Tullahan-Tenejeros Rivers, and connecting waterways
and esteros in Metro Manila. The DPWH, as the principal implementor of
programs and projects for flood control services in the rest of the country
more particularly in Bulacan, Bataan, Pampanga, Cavite, and Laguna, in
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coordination with the DILG, affected LGUs, PNP Maritime Group, HUDCC,
and other concerned government agencies, shall remove and demolish
all structures, constructions, and other encroachments built in breach of
RA 7279 and other applicable laws along the Meycauayan-Marilao-
Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite)
River, the Laguna De Bay, and other rivers, connecting waterways,
and esteros that discharge wastewater into the Manila Bay.
In addition, the MMDA is ordered to establish, operate, and maintain a
sanitary landfill, as prescribed by R.A. 9003, within a period of one (1)
year from finality of this Decision. On matters within its territorial
jurisdiction and in connection with the discharge of its duties on the
maintenance of sanitary landfills and like undertakings, it is also ordered
to cause the apprehension and filing of the appropriate criminal cases
against violators of the respective penal provisions of R.A.
9003,[47] Section 27 of R.A. 9275 (the Clean Water Act), and other
existing laws on pollution.
9. The DOH shall, as directed by Art. 76 of P.D. 1067 and Section 8 of R.A.
9275, within one (1) year from finality of this Decision, determine if all
licensed septic and sludge companies have the proper facilities for the
treatment and disposal of fecal sludge and sewage coming from septic
tanks. The DOH shall give the companies, if found to be non-complying,
a reasonable time within which to set up the necessary facilities under
pain of cancellation of its environmental sanitation clearance.
10. Pursuant to Section 53 of P.D. 1152, Section 118 of RA 8550, and Section
56 of R.A. 9003, the DepEd shall integrate lessons on pollution
prevention, waste management, environmental protection, and like
subjects in the school curricula of all levels to inculcate in the minds and
hearts of students and, through them, their parents and friends, the
importance of their duty toward achieving and maintaining a balanced
and healthful ecosystem in the Manila Bay and the entire Philippine
archipelago.
11. The DBM shall consider incorporating an adequate budget in the General
Appropriations Act of 2010 and succeeding years to cover the expenses
relating to the cleanup, restoration, and preservation of the water quality
of the Manila Bay, in line with the country’s development objective to
attain economic growth in a manner consistent with the protection,
preservation, and revival of our marine waters.
12. The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA,
DPWH, DBM, PCG, PNP Maritime Group, DILG, and also of MWSS, LWUA,
and PPA, in line with the principle of continuing mandamus, shall, from
finality of this Decision, each submit to the Court a quarterly progressive
report of the activities undertaken in accordance with this Decision.
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
PART I
RULE 1
GENERAL PROVISIONS
Section 1. Title. — These Rules shall be known as "The Rules of Procedure
for Environmental Cases."
Section 2. Scope. — These Rules shall govern the procedure in civil,
criminal and special civil actions before the Regional Trial Courts,
Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial
Courts and Municipal Circuit Trial Courts involving enforcement or
violations of environmental and other related laws, rules and regulations
such as but not limited to the following:
a. Act No. 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees;
b. P.D. No. 705, Revised Forestry Code;
c. P.D. No. 856, Sanitation Code;
d. P.D. No. 979, Marine Pollution Decree;
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from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
e. P.D. No. 1067, Water Code;
f. P.D. No. 1151, Philippine Environmental Policy of 1977;
g. P.D. No. 1433, Plant Quarantine Law of 1978;
h. P.D. No. 1586, Establishing an Environmental Impact Statement System
Including Other Environmental Management Related Measures and for Other
Purposes;
i. R.A. No. 3571, Prohibition Against the Cutting, Destroying or Injuring of
Planted or Growing Trees, Flowering Plants and Shrubs or Plants of Scenic
Value along Public Roads, in Plazas, Parks, School Premises or in any Other
Public Ground;
j. R.A. No. 4850, Laguna Lake Development Authority Act;
k. R.A. No. 6969, Toxic Substances and Hazardous Waste Act;
l. R.A. No. 7076, People’s Small-Scale Mining Act;
m. R.A. No. 7586, National Integrated Protected Areas System Act including all
laws, decrees, orders, proclamations and issuances establishing protected
areas;
n. R.A. No. 7611, Strategic Environmental Plan for Palawan Act;
o. R.A. No. 7942, Philippine Mining Act;
p. R.A. No. 8371, Indigenous Peoples Rights Act;
q. R.A. No. 8550, Philippine Fisheries Code;
r. R.A. No. 8749, Clean Air Act;
s. R.A. No. 9003, Ecological Solid Waste Management Act;
t. R.A. No. 9072, National Caves and Cave Resource Management Act;
u. R.A. No. 9147, Wildlife Conservation and Protection Act;
v. R.A. No. 9175, Chainsaw Act;
w. R.A. No. 9275, Clean Water Act;
x. R.A. No. 9483, Oil Spill Compensation Act of 2007; and
y. Provisions in C.A. No. 141, The Public Land Act; R.A. No. 6657, Comprehensive
Agrarian Reform Law of 1988; R.A. No. 7160, Local Government Code of 1991;
R.A. No. 7161, Tax Laws Incorporated in the Revised Forestry Code and Other
Environmental Laws (Amending the NIRC); R.A. No. 7308, Seed Industry
Development Act of 1992; R.A. No. 7900, High-Value Crops Development
Rules of Procedure for Environmental Cases Act; R.A. No. 8048,
Coconut Preservation Act; R.A. No. 8435, Agriculture and Fisheries
Modernization Act of 1997; R.A. No. 9522, The Philippine Archipelagic
Baselines Law; R.A. No. 9593, Renewable Energy Act of 2008; R.A. No. 9637,
Philippine Biofuels Act; and other existing laws that relate to the
conservation, development, preservation, protection and utilization of the
environment and natural resources.
Section 3. Objectives. - The objectives of these Rules are:
(a) To protect and advance the constitutional right of the people
to a balanced and healthful ecology;
(b) To provide a simplified, speedy and inexpensive procedure
for the enforcement of environmental rights and duties
recognized under the Constitution, existing laws, rules and
regulations, and international agreements;
(c) To introduce and adopt innovations and best practices
ensuring the effective enforcement of remedies and redress for
violation of environmental laws; and
(d) To enable the courts to monitor and exact compliance with
orders and judgments in environmental cases.
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Section 4. Definition of Terms. -
(a) By-product or derivatives means any part taken or
substance extracted from wildlife, in raw or in processed form
including stuffed animals and herbarium specimens. 1avvphi1
(b) Consent decree refers to a judicially-approved settlement
between concerned parties based on public interest and public
policy to protect and preserve the environment.
(c) Continuing mandamus is a writ issued by a court in an
environmental case directing any agency or instrumentality of
the government or officer thereof to perform an act or series of
acts decreed by final judgment which shall remain effective until
judgment is fully satisfied.
(d) Environmental protection order (EPO) refers to an order
issued by the court directing or enjoining any person or
government agency to perform or desist from performing an
act in order to protect, preserve or rehabilitate the
environment.
(e) Mineral refers to all naturally occurring inorganic substance
in solid, gas, liquid, or any intermediate state excluding energy
materials such as coal, petroleum, natural gas, radioactive
materials and geothermal energy.
(f) Precautionary principle states that when human activities
may lead to threats of serious and irreversible damage to the
environment that is scientifically plausible but uncertain, actions
shall be taken to avoid or diminish that threat.
(g) Strategic lawsuit against public participation (SLAPP)
refers to an action whether civil, criminal or administrative,
brought against any person, institution or any government
agency or local government unit or its officials and employees,
with the intent to harass, vex, exert undue pressure or stifle any
legal recourse that such person, institution or government
agency has taken or may take in the enforcement of
environmental laws, protection of the environment or assertion
of environmental rights.
(h) Wildlife means wild forms and varieties of flora and fauna,
in all developmental stages including those which are in
captivity or are being bred or propagated.
PART II
CIVIL PROCEDURE
RULE 2
PLEADINGS AND PARTIES
Section 1. Pleadings and motions allowed. — The pleadings and motions
that may be filed are complaint, answer which may include compulsory
counterclaim and cross-claim, motion for intervention, motion for
discovery and motion for reconsideration of the judgment.
Motion for postponement, motion for new trial and petition for relief from
judgment shall be allowed in highly meritorious cases or to prevent a
manifest miscarriage of justice.
Section 2. Prohibited pleadings or motions. — The following pleadings or
motions shall not be allowed:
(a) Motion to dismiss the complaint;
(b) Motion for a bill of particulars;
(c) Motion for extension of time to file pleadings, except to file
answer, the extension not to exceed fifteen (15) days;
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from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
(d) Motion to declare the defendant in default;
(e) Reply and rejoinder; and
(f) Third party complaint.
Section 3. Verified complaint. — The verified complaint shall contain the
names of the parties, their addresses, the cause of action and the reliefs
prayed for.
The plaintiff shall attach to the verified complaint all evidence proving or
supporting the cause of action consisting of the affidavits of witnesses,
documentary evidence and if possible, object evidence. The affidavits shall
be in question and answer form and shall comply with the rules of
admissibility of evidence.
The complaint shall state that it is an environmental case and the law
involved. The complaint shall also include a certification against forum
shopping. If the complaint is not an environmental complaint, the
presiding judge shall refer it to the executive judge for re-raffle.
Section 4. Who may file. — Any real party in interest, including the
government and juridical entities authorized by law, may file a civil action
involving the enforcement or violation of any environmental law.
Section 5. Citizen suit. — Any Filipino citizen in representation of others,
including minors or generations yet unborn, may file an action to enforce
rights or obligations under environmental laws. Upon the filing of a citizen
suit, the court shall issue an order which shall contain a brief description
of the cause of action and the reliefs prayed for, requiring all interested
parties to manifest their interest to intervene in the case within fifteen (15)
days from notice thereof. The plaintiff may publish the order once in a
newspaper of a general circulation in the Philippines or furnish all affected
barangays copies of said order.
Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall be governed
by their respective provisions.
Section 6. Service of the complaint on the government or its agencies. -
Upon the filing of the complaint, the plaintiff is required to furnish the
government or the appropriate agency, although not a party, a copy of
the complaint. Proof of service upon the government or the appropriate
agency shall be attached to the complaint.
Section 7. Assignment by raffle. - If there is only one (1) designated
branch in a multiple-sala court, the executive judge shall immediately refer
the case to said branch. If there are two (2) or more designated branches,
the executive judge shall conduct a special raffle on the day the complaint
is filed.
Section 8. Issuance of Temporary Environmental Protection Order
(TEPO). - If it appears from the verified complaint with a prayer for the
issuance of an Environmental Protection Order (EPO) that the matter is of
extreme urgency and the applicant will suffer grave injustice and
irreparable injury, the executive judge of the multiple-sala court before
raffle or the presiding judge of a single-sala court as the case may be, may
issue ex parte a TEPO effective for only seventy-two (72) hours from date
of the receipt of the TEPO by the party or person enjoined. Within said
period, the court where the case is assigned, shall conduct a summary
hearing to determine whether the TEPO may be extended until the
termination of the case.
The court where the case is assigned, shall periodically monitor the
existence of acts that are the subject matter of the TEPO even if issued by
the executive judge, and may lift the same at any time as circumstances
may warrant.
The applicant shall be exempted from the posting of a bond for the
issuance of a TEPO.
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Section 9. Action on motion for dissolution of TEPO. - The grounds for
motion to dissolve a TEPO shall be supported by affidavits of the party or
person enjoined which the applicant may oppose, also by affidavits.
The TEPO may be dissolved if it appears after hearing that its issuance or
continuance would cause irreparable damage to the party or person
enjoined while the applicant may be fully compensated for such damages
as he may suffer and subject to the posting of a sufficient bond by the
party or person enjoined.
Section 10. Prohibition against temporary restraining order (TRO) and
preliminary injunction. - Except the Supreme Court, no court can issue a
TRO or writ of preliminary injunction against lawful actions of government
agencies that enforce environmental laws or prevent violations thereof.
Section 11. Report on TEPO, EPO, TRO or preliminary injunction. - The
judge shall report any action taken on a TEPO, EPO, TRO or a preliminary
injunction, including its modification and dissolution, to the Supreme
Court, through the Office of the Court Administrator, within ten (10) days
from the action taken.
Section 12. Payment of filing and other legal fees. - The payment of filing
and other legal fees by the plaintiff shall be deferred until after judgment
unless the plaintiff is allowed to litigate as an indigent. It shall constitute
a first lien on the judgment award.
For a citizen suit, the court shall defer the payment of filing and other legal
fees that shall serve as first lien on the judgment award.
Section 13. Service of summons, orders and other court processes. - The
summons, orders and other court processes may be served by the sheriff,
his deputy or other proper court officer or for justifiable reasons, by the
counsel or representative of the plaintiff or any suitable person authorized
or deputized by the court issuing the summons.
Any private person who is authorized or deputized by the court to serve
summons, orders and other court processes shall for that purpose be
considered an officer of the court.
The summons shall be served on the defendant, together with a copy of
an order informing all parties that they have fifteen (15) days from the
filing of an answer, within which to avail of interrogatories to parties under
Rule 25 of the Rules of Court and request for admission by adverse party
under Rule 26, or at their discretion, make use of depositions under Rule
23 or other measures under Rules 27 and 28.
Should personal and substituted service fail, summons by publication shall
be allowed. In the case of juridical entities, summons by publication shall
be done by indicating the names of the officers or their duly authorized
representatives.
Section 14. Verified answer. - Within fifteen (15) days from receipt of
summons, the defendant shall file a verified answer to the complaint and
serve a copy thereof on the plaintiff. The defendant shall attach affidavits
of witnesses, reports, studies of experts and all evidence in support of the
defense.
Affirmative and special defenses not pleaded shall be deemed waived,
except lack of jurisdiction.
Cross-claims and compulsory counterclaims not asserted shall be
considered barred. The answer to counterclaims or cross-claims shall be
filed and served within ten (10) days from service of the answer in which
they are pleaded.
Section 15. Effect of failure to answer. - Should the defendant fail to
answer the complaint within the period provided, the court shall declare
defendant in default and upon motion of the plaintiff, shall receive
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Atty. Jeffrey Jefferson Coronel
evidence ex parte and render judgment based thereon and the reliefs
prayed for.
RULE 3
PRE-TRIAL
Section 1. Notice of pre-trial. - Within two (2) days from the filing of the
answer to the counterclaim or cross-claim, if any, the branch clerk of court
shall issue a notice of the pre-trial to be held not later than one (1) month
from the filing of the last pleading.
The court shall schedule the pre-trial and set as many pre-trial conferences
as may be necessary within a period of two (2) months counted from the
date of the first pre-trial conference.
Section 2. Pre-trial brief. - At least three (3) days before the pretrial, the
parties shall submit pre-trial briefs containing the following:
(a) A statement of their willingness to enter into an amicable
settlement indicating the desired terms thereof or to submit the
case to any of the alternative modes of dispute resolution;
(b) A summary of admitted facts and proposed stipulation of
facts;
(c) The legal and factual issues to be tried or resolved. For each
factual issue, the parties shall state all evidence to support their
positions thereon. For each legal issue, parties shall state the
applicable law and jurisprudence supporting their respective
positions thereon;
(d) The documents or exhibits to be presented, including
depositions, answers to interrogatories and answers to written
request for admission by adverse party, stating the purpose
thereof;
(e) A manifestation of their having availed of discovery
procedures or their intention to avail themselves of referral to a
commissioner or panel of experts;
(f) The number and names of the witnesses and the substance
of their affidavits;
(g) Clarificatory questions from the parties; and
(h) List of cases arising out of the same facts pending before
other courts or administrative agencies. Failure to comply with
the required contents of a pre-trial brief may be a ground for
contempt.
Failure to file the pre-trial brief shall have the same effect as failure to
appear at the pre-trial.
Section 3. Referral to mediation. - At the start of the pre-trial conference,
the court shall inquire from the parties if they have settled the dispute;
otherwise, the court shall immediately refer the parties or their counsel, if
authorized by their clients, to the Philippine Mediation Center (PMC) unit
for purposes of mediation. If not available, the court shall refer the case
to the clerk of court or legal researcher for mediation.
Mediation must be conducted within a non-extendible period of thirty
(30) days from receipt of notice of referral to mediation.
The mediation report must be submitted within ten (10) days from the
expiration of the 30-day period.
Section 4. Preliminary conference. - If mediation fails, the court will
schedule the continuance of the pre-trial. Before the scheduled date of
continuance, the court may refer the case to the branch clerk of court for
a preliminary conference for the following purposes:
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(a) To assist the parties in reaching a settlement;
(b) To mark the documents or exhibits to be presented by the
parties and copies thereof to be attached to the records after
comparison with the originals;
(c) To ascertain from the parties the undisputed facts and
admissions on the genuineness and due execution of the
documents marked as exhibits;
(d) To require the parties to submit the depositions taken under
Rule 23 of the Rules of Court, the answers to written
interrogatories under Rule 25, and the answers to request for
admissions by the adverse party under Rule 26;
(e) To require the production of documents or things requested
by a party under Rule 27 and the results of the physical and
mental examination of persons under Rule 28;
(f) To consider such other matters as may aid in its prompt
disposition;
(g) To record the proceedings in the "Minutes of Preliminary
Conference" to be signed by both parties or their counsels;
(h) To mark the affidavits of witnesses which shall be in question
and answer form and shall constitute the direct examination of
the witnesses; and
(i) To attach the minutes together with the marked exhibits
before the pre-trial proper.
The parties or their counsel must submit to the branch clerk of court the
names, addresses and contact numbers of the affiants.
During the preliminary conference, the branch clerk of court shall also
require the parties to submit the depositions taken under Rule 23 of the
Rules of Court, the answers to written interrogatories under Rule 25 and
the answers to request for admissions by the adverse party under Rule 26.
The branch clerk of court may also require the production of documents
or things requested by a party under Rule 27 and the results of the
physical and mental examination of persons under Rule 28.
Section 5. Pre-trial conference; consent decree. - The judge shall put the
parties and their counsels under oath, and they shall remain under oath
in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties to arrive at a
settlement of the dispute. The judge may issue a consent decree
approving the agreement between the parties in accordance with law,
morals, public order and public policy to protect the right of the people
to a balanced and healthful ecology.
Evidence not presented during the pre-trial, except newly-discovered
evidence, shall be deemed waived.
Section 6. Failure to settle. - If there is no full settlement, the judge shall:
(a) Adopt the minutes of the preliminary conference as part of
the pre-trial proceedings and confirm the markings of exhibits
or substituted photocopies and admissions on the genuineness
and due execution of documents;
(b) Determine if there are cases arising out of the same facts
pending before other courts and order its consolidation if
warranted;
(c) Determine if the pleadings are in order and if not, order the
amendments if necessary;
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from the discussions and syllabus of
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(d) Determine if interlocutory issues are involved and resolve
the same;
(e) Consider the adding or dropping of parties;
(f) Scrutinize every single allegation of the complaint, answer
and other pleadings and attachments thereto, and the contents
of documents and all other evidence identified and pre-marked
during pre-trial in determining further admissions;
(g) Obtain admissions based on the affidavits of witnesses and
evidence attached to the pleadings or submitted during pre-
trial;
(h) Define and simplify the factual and legal issues arising from
the pleadings and evidence. Uncontroverted issues and
frivolous claims or defenses should be eliminated;
(i) Discuss the propriety of rendering a summary judgment or a
judgment based on the pleadings, evidence and admissions
made during pre-trial;
(j) Observe the Most Important Witness Rule in limiting the
number of witnesses, determining the facts to be proved by
each witness and fixing the approximate number of hours per
witness;
(k) Encourage referral of the case to a trial by commissioner
under Rule 32 of the Rules of Court or to a mediator or
arbitrator under any of the alternative modes of dispute
resolution governed by the Special Rules of Court on
Alternative Dispute Resolution;
(l) Determine the necessity of engaging the services of a
qualified expert as a friend of the court (amicus curiae); and
(m) Ask parties to agree on the specific trial dates for
continuous trial, comply with the one-day examination of
witness rule, adhere to the case flow chart determined by the
court which shall contain the different stages of the
proceedings up to the promulgation of the decision and use
the time frame for each stage in setting the trial dates.
Section 7. Effect of failure to appear at pre-trial. - The court shall not
dismiss the complaint, except upon repeated and unjustified failure of the
plaintiff to appear. The dismissal shall be without prejudice, and the court
may proceed with the counterclaim.
If the defendant fails to appear at the pre-trial, the court shall receive
evidence ex parte.
Section 8. Minutes of pre-trial. - The minutes of each pre-trial conference
shall contain matters taken up therein, more particularly admissions of
facts and exhibits, and shall be signed by the parties and their counsel.
Section 9. Pre-trial order. - Within ten (10) days after the termination of
the pre-trial, the court shall issue a pre-trial order setting forth the actions
taken during the pre-trial conference, the facts stipulated, the admissions
made, the evidence marked, the number of witnesses to be presented and
the schedule of trial. Said order shall bind the parties, limit the trial to
matters not disposed of and control the course of action during the trial.
Section 10. Efforts to settle. - The court shall endeavor to make the parties
agree to compromise or settle in accordance with law at any stage of the
proceedings before rendition of judgment.
RULE 4
TRIAL
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Section 1. Continuous trial. - The judge shall conduct continuous trial
which shall not exceed two (2) months from the date of the issuance of
the pre-trial order.
Before the expiration of the two-month period, the judge may ask the
Supreme Court for the extension of the trial period for justifiable cause.
Section 2. Affidavits in lieu of direct examination. - In lieu of direct
examination, affidavits marked during the pre-trial shall be presented as
direct examination of affiants subject to cross-
examination by the adverse party.
Section 3. One-day examination of witness rule. - The court shall strictly
adhere to the rule that a witness has to be fully examined in one (1) day,
subject to the court’s discretion of extending the examination for
justifiable reason. After the presentation of the last witness, only oral offer
of evidence shall be allowed, and the opposing party shall immediately
interpose his objections. The judge shall forthwith rule on the offer of
evidence in open court.
Section 4. Submission of case for decision; filing of memoranda. - After the
last party has rested its case, the court shall issue an order submitting the
case for decision.
The court may require the parties to submit their respective memoranda,
if possible in electronic form, within a non-extendible period of thirty (30)
days from the date the case is submitted for decision.
The court shall have a period of sixty (60) days to decide the case from the
date the case is submitted for decision.
Section 5. Period to try and decide. - The court shall have a period of one
(1) year from the filing of the complaint to try and decide the case. Before
the expiration of the one-year period, the court may petition the Supreme
Court for the extension of the period for justifiable cause.
The court shall prioritize the adjudication of environmental cases.
RULE 5
JUDGMENT AND EXECUTION
Section 1. Reliefs in a citizen suit. - If warranted, the court may grant to
the plaintiff proper reliefs which shall include the protection, preservation
or rehabilitation of the environment and the payment of attorney’s fees,
costs of suit and other litigation expenses. It may also require the violator
to submit a program of rehabilitation or restoration of the environment,
the costs of which shall be borne by the violator, or to contribute to a
special trust fund for that purpose subject to the control of the court.
Section 2. Judgment not stayed by appeal. - Any judgment directing the
performance of acts for the protection, preservation or rehabilitation of
the environment shall be executory pending appeal unless restrained by
the appellate court.
Section 3. Permanent EPO; writ of continuing mandamus. - In the
judgment, the court may convert the TEPO to a permanent EPO or issue a
writ of continuing mandamus directing the performance of acts which
shall be effective until the judgment is fully satisfied.
The court may, by itself or through the appropriate government agency,
monitor the execution of the judgment and require the party concerned
to submit written reports on a quarterly basis or sooner as may be
necessary, detailing the progress of the execution and satisfaction of the
judgment. The other party may, at its option, submit its comments or
observations on the execution of the judgment.
Section 4. Monitoring of compliance with judgment and orders of the court
by a commissioner. - The court may motu proprio, or upon motion of the
Environmental Law Reviewer
from the discussions and syllabus of
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prevailing party, order that the enforcement of the judgment or order be
referred to a commissioner to be appointed by the court. The
commissioner shall file with the court written progress reports on a
quarterly basis or more frequently when necessary.
Section 5. Return of writ of execution. - The process of execution shall
terminate upon a sufficient showing that the decision or order has been
implemented to the satisfaction of the court in accordance with Section
14, Rule 39 of the Rules of Court.
RULE 6
STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION
Section 1. Strategic lawsuit against public participation (SLAPP). - A legal
action filed to harass, vex, exert undue pressure or stifle any legal recourse
that any person, institution or the government has taken or may take in
the enforcement of environmental laws, protection of the environment or
assertion of environmental rights shall be treated as a SLAPP and shall be
governed by these Rules.
Section 2. SLAPP as a defense; how alleged. - In a SLAPP filed against a
person involved in the enforcement of environmental laws, protection of
the environment, or assertion of environmental rights, the defendant may
file an answer interposing as a defense that the case is a SLAPP and shall
be supported by documents, affidavits, papers and other evidence; and,
by way of counterclaim, pray for damages, attorney’s fees and costs of
suit.
The court shall direct the plaintiff or adverse party to file an opposition
showing the suit is not a SLAPP, attaching evidence in support thereof,
within a non-extendible period of five (5) days from receipt of notice that
an answer has been filed.
The defense of a SLAPP shall be set for hearing by the court after issuance
of the order to file an opposition within fifteen (15) days from filing of the
comment or the lapse of the period.
Section 3. Summary hearing. - The hearing on the defense of a SLAPP
shall be summary in nature. The parties must submit all available evidence
in support of their respective positions. The party seeking the dismissal of
the case must prove by substantial evidence that his act for the
enforcement of environmental law is a legitimate action for the protection,
preservation and rehabilitation of the environment. The party filing the
action assailed as a SLAPP shall prove by preponderance of evidence that
the action is not a SLAPP and is a valid claim.
Section 4. Resolution of the defense of a SLAPP. - The affirmative defense
of a SLAPP shall be resolved within thirty (30) days after the summary
hearing. If the court dismisses the action, the court may award damages,
attorney’s fees and costs of suit under a counterclaim if such has been
filed. The dismissal shall be with prejudice.
If the court rejects the defense of a SLAPP, the evidence adduced during
the summary hearing shall be treated as evidence of the parties on the
merits of the case. The action shall proceed in accordance with the Rules
of Court.
PART III
SPECIAL CIVIL ACTIONS
RULE 7
WRIT OF KALIKASAN
Section 1. Nature of the writ. - The writ is a remedy available to a natural
or juridical person, entity authorized by law, people’s organization, non-
governmental organization, or any public interest group accredited by or
registered with any government agency, on behalf of persons whose
constitutional right to a balanced and healthful ecology is violated, or
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threatened with violation by an unlawful act or omission of a public official
or employee, or private individual or entity, involving environmental
damage of such magnitude as to prejudice the life, health or property of
inhabitants in two or more cities or provinces.
Section 2. Contents of the petition. - The verified petition shall contain the
following:
(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the respondent or
if the name and personal circumstances are unknown and
uncertain, the respondent may be described by an assumed
appellation;
(c) The environmental law, rule or regulation violated or
threatened to be violated, the act or omission complained of,
and the environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants in two or
more cities or provinces.
(d) All relevant and material evidence consisting of the affidavits
of witnesses, documentary evidence, scientific or other expert
studies, and if possible, object evidence;
(e) The certification of petitioner under oath that: (1) petitioner
has not commenced any action or filed any claim involving the
same issues in any court, tribunal or quasi-judicial agency, and
no such other action or claim is pending therein; (2) if there is
such other pending action or claim, a complete statement of its
present status; (3) if petitioner should learn that the same or
similar action or claim has been filed or is pending, petitioner
shall report to the court that fact within five (5) days therefrom;
and
(f) The reliefs prayed for which may include a prayer for the
issuance of a TEPO.
Section 3. Where to file. - The petition shall be filed with the Supreme
Court or with any of the stations of the Court of Appeals.
Section 4. No docket fees. - The petitioner shall be exempt from the
payment of docket
fees.
Section 5. Issuance of the writ. - Within three (3) days from the date of
filing of the petition, if the petition is sufficient in form and substance, the
court shall give an order: (a) issuing the writ; and (b) requiring the
respondent to file a verified return as provided in Section 8 of this Rule.
The clerk of court shall forthwith issue the writ under the seal of the court
including the issuance of a cease and desist order and other temporary
reliefs effective until further order.
Section 6. How the writ is served. - The writ shall be served upon the
respondent by a court officer or any person deputized by the court, who
shall retain a copy on which to make a return of service. In case the writ
cannot be served personally, the rule on substituted service shall apply.
Section 7. Penalty for refusing to issue or serve the writ. - A clerk of court
who unduly delays or refuses to issue the writ after its allowance or a court
officer or deputized person who unduly delays or refuses to serve the
same shall be punished by the court for contempt without prejudice to
other civil, criminal or administrative actions.
Section 8. Return of respondent; contents. - Within a non-extendible
period of ten (10) days after service of the writ, the respondent shall file a
verified return which shall contain all defenses to show that respondent
did not violate or threaten to violate, or allow the violation of any
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from the discussions and syllabus of
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environmental law, rule or regulation or commit any act resulting to
environmental damage of such magnitude as to prejudice the life, health
or property of inhabitants in two or more cities or provinces.
All defenses not raised in the return shall be deemed waived.
The return shall include affidavits of witnesses, documentary evidence,
scientific or other expert studies, and if possible, object evidence, in
support of the defense of the respondent.
A general denial of allegations in the petition shall be considered as an
admission thereof.
Section 9. Prohibited pleadings and motions. - The following pleadings
and motions are prohibited:
(a) Motion to dismiss;
(b) Motion for extension of time to file return;
(c) Motion for postponement;
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third-party complaint;
(g) Reply; and
(h) Motion to declare respondent in default.
Section 10. Effect of failure to file return. - In case the respondent fails to
file a return, the court shall proceed to hear the petition ex parte.
Section 11. Hearing. - Upon receipt of the return of the respondent, the
court may call a preliminary conference to simplify the issues, determine
the possibility of obtaining stipulations or admissions from the parties,
and set the petition for hearing.
The hearing including the preliminary conference shall not extend beyond
sixty (60) days and shall be given the same priority as petitions for the
writs of habeas corpus, amparo and habeas data.
Section 12. Discovery Measures. - A party may file a verified motion for
the following reliefs:
(a) Ocular Inspection; order — The motion must show that an
ocular inspection order is necessary to establish the magnitude
of the violation or the threat as to prejudice the life, health or
property of inhabitants in two or more cities or provinces. It
shall state in detail the place or places to be inspected. It shall
be supported by affidavits of witnesses having personal
knowledge of the violation or threatened violation of
environmental law.
After hearing, the court may order any person in possession or
control of a designated land or other property to permit entry
for the purpose of inspecting or
photographing the property or any relevant object or operation
thereon.
The order shall specify the person or persons authorized to
make the inspection and the date, time, place and manner of
making the inspection and may prescribe other conditions to
protect the constitutional rights of all parties.
(b) Production or inspection of documents or things; order – The
motion must show that a production order is necessary to
establish the magnitude of the violation or the threat as to
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prejudice the life, health or property of inhabitants in two or
more cities or provinces.
After hearing, the court may order any person in possession,
custody or control of any designated documents, papers,
books, accounts, letters, photographs, objects or tangible
things, or objects in digitized or electronic form, which
constitute or contain evidence relevant to the petition or the
return, to produce and permit their inspection, copying or
photographing by or on behalf of the movant.
The production order shall specify the person or persons authorized to
make the production and the date, time, place and manner of making the
inspection or production and may prescribe other conditions to protect
the constitutional rights of all parties.
Section 13. Contempt. - The court may after hearing punish the
respondent who refuses or unduly delays the filing of a return, or who
makes a false return, or any person who disobeys or resists a lawful
process or order of the court for indirect contempt under Rule 71 of the
Rules of Court.
Section 14. Submission of case for decision; filing of memoranda. - After
hearing, the court shall issue an order submitting the case for decision.
The court may require the filing of memoranda and if possible, in its
electronic form, within a non-extendible period of thirty (30) days from
the date the petition is submitted for decision.
Section 15. Judgment. - Within sixty (60) days from the time the petition
is submitted for decision, the court shall render judgment granting or
denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from
committing acts or neglecting the performance of a duty in
violation of environmental laws resulting in environmental
destruction or damage;
(b) Directing the respondent public official, government
agency, private person or entity to protect, preserve,
rehabilitate or restore the environment;
(c) Directing the respondent public official, government agency,
private person or entity to monitor strict compliance with the
decision and orders of the court;
(d) Directing the respondent public official, government
agency, or private person or entity to make periodic reports on
the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the people to
a balanced and healthful ecology or to the protection,
preservation, rehabilitation or restoration of the
environment, except the award of damages to individual
petitioners.
Section 16. Appeal. - Within fifteen (15) days from the date of notice of
the adverse judgment or denial of motion for reconsideration, any party
may appeal to the Supreme Court under Rule 45 of the Rules of Court.
The appeal may raise questions of fact.
Section 17. Institution of separate actions. - The filing of a petition for the
issuance of the writ of kalikasan shall not preclude the filing of separate
civil, criminal or administrative actions.
RULE 8
WRIT OF CONTINUING MANDAMUS
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from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
Section 1. Petition for continuing mandamus. - When any agency or
instrumentality of the government or officer thereof unlawfully neglects
the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust or station in connection with the
enforcement or violation of an environmental law rule or regulation or a
right therein, or unlawfully excludes another from the use or enjoyment
of such right and there is no other plain, speedy and adequate remedy in
the ordinary course of law, the person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty,
attaching thereto supporting evidence, specifying that the petition
concerns an environmental law, rule or regulation, and praying that
judgment be rendered commanding the respondent to do an act or series
of acts until the judgment is fully satisfied, and to pay damages sustained
by the petitioner by reason of the malicious neglect to perform the duties
of the respondent, under the law, rules or regulations. The petition shall
also contain a sworn certification of non-forum shopping.
Section 2. Where to file the petition. - The petition shall be filed with the
Regional Trial Court exercising jurisdiction over the territory where the
actionable neglect or omission occurred or with the Court of Appeals or
the Supreme Court.
Section 3. No docket fees. - The petitioner shall be exempt from the
payment of docket fees.
Section 4. Order to comment. - If the petition is sufficient in form and
substance, the court shall issue the writ and require the respondent to
comment on the petition within ten (10) days from receipt of a copy
thereof. Such order shall be served on the respondents in such manner as
the court may direct, together with a copy of the petition and any annexes
thereto.
Section 5. Expediting proceedings; TEPO. - The court in which the petition
is filed may issue such orders to expedite the proceedings, and it may also
grant a TEPO for the preservation of the rights of the parties pending such
proceedings.
Section 6. Proceedings after comment is filed. - After the comment is filed
or the time for the filing thereof has expired, the court may hear the case
which shall be summary in nature or require the parties to submit
memoranda. The petition shall be resolved without delay within sixty (60)
days from the date of the submission of the petition for resolution.
Section 7. Judgment. - If warranted, the court shall grant the privilege of
the writ of continuing mandamus requiring respondent to perform an act
or series of acts until the judgment is fully satisfied and to grant such other
reliefs as may be warranted resulting from the wrongful or illegal acts of
the respondent. The court shall require the respondent to submit periodic
reports detailing the progress and execution of the judgment, and the
court may, by itself or through a commissioner or the appropriate
government agency, evaluate and monitor compliance. The petitioner
may submit its comments or observations on the execution of the
judgment.
Section 8. Return of the writ. - The periodic reports submitted by the
respondent detailing compliance with the judgment shall be contained in
partial returns of the writ.
Upon full satisfaction of the judgment, a final return of the writ shall be
made to the court by the respondent. If the court finds that the judgment
has been fully implemented, the satisfaction of judgment shall be entered
in the court docket.
PART IV
CRIMINAL PROCEDURE
RULE 9
PROSECUTION OF OFFENSES
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Section 1. Who may file. - Any offended party, peace officer or any public
officer charged with the enforcement of an environmental law may file a
complaint before the proper officer in accordance with the Rules of Court.
Section 2. Filing of the information. - An information, charging a person
with a violation of an environmental law and subscribed by the prosecutor,
shall be filed with the court.
Section 3. Special prosecutor. - In criminal cases, where there is no private
offended party, a counsel whose services are offered by any person or
organization may be allowed by the court as special prosecutor, with the
consent of and subject to the control and supervision of the public
prosecutor.
RULE 10
PROSECUTION OF CIVIL ACTIONS
Section 1. Institution of criminal and civil actions. - When a criminal action
is instituted, the civil action for the recovery of civil liability arising from
the offense charged, shall be deemed instituted with the criminal action
unless the complainant waives the civil action, reserves the right to
institute it separately or institutes the civil action prior to the criminal
action.
Unless the civil action has been instituted prior to the criminal action, the
reservation of the right to institute separately the civil action shall be made
during arraignment.
In case civil liability is imposed or damages are awarded, the filing and
other legal fees shall be imposed on said award in accordance with Rule
141 of the Rules of Court, and the fees shall constitute a first lien on the
judgment award. The damages awarded in cases where there is no private
offended party, less the filing fees, shall accrue to the funds of the agency
charged with the implementation of the environmental law violated. The
award shall be used for the restoration and rehabilitation of the
environment adversely affected.
RULE 11
ARREST
Section 1. Arrest without warrant; when lawful. - A peace officer or an
individual deputized by the proper government agency may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing or is attempting to commit
an offense; or
(b) When an offense has just been committed, and he has
probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has
committed it. Individuals deputized by the proper government
agency who are enforcing environmental laws shall enjoy the
presumption of regularity under Section 3(m), Rule 131 of the
Rules of Court when effecting arrests for violations of
environmental laws.
Section 2. Warrant of arrest. - All warrants of arrest issued by the court
shall be accompanied by a certified true copy of the information filed with
the issuing court.
RULE 12
CUSTODY AND DISPOSITION OF SEIZED ITEMS, EQUIPMENT,
PARAPHERNALIA, CONVEYANCES AND INSTRUMENTS
Section 1. Custody and disposition of seized items. - The custody and
disposition of seized items shall be in accordance with the applicable laws
or rules promulgated by the concerned government agency.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
Section 2. Procedure. - In the absence of applicable laws or rules
promulgated by the concerned government agency, the following
procedure shall be observed:
(a) The apprehending officer having initial custody and control
of the seized items, equipment, paraphernalia, conveyances and
instruments shall physically inventory and whenever
practicable, photograph the same in the presence of the person
from whom such items were seized.
(b) Thereafter, the apprehending officer shall submit to the
issuing court the return of the search warrant within five (5) days
from date of seizure or in case of warrantless arrest, submit
within five (5) days from date of seizure, the inventory report,
compliance report, photographs, representative samples and
other pertinent documents to the public prosecutor for
appropriate action.
(c) Upon motion by any interested party, the court may direct
the auction sale of seized items, equipment, paraphernalia,
tools or instruments of the crime. The court shall, after hearing,
fix the minimum bid price based on the recommendation of the
concerned government agency. The sheriff shall conduct the
auction.
(d) The auction sale shall be with notice to the accused, the
person from whom the items were seized, or the owner thereof
and the concerned government agency.
(e) The notice of auction shall be posted in three conspicuous
places in the city or municipality where the items, equipment,
paraphernalia, tools or instruments of the crime were seized.
(f) The proceeds shall be held in trust and deposited with the
government depository bank for disposition according to the
judgment.
RULE 13
PROVISIONAL REMEDIES
Section 1. Attachment in environmental cases. - The provisional remedy
of attachment under Rule 127 of the Rules of Court may be availed of in
environmental cases.
Section 2. Environmental Protection Order (EPO); Temporary
Environmental Protection Order (TEPO) in criminal cases. - The procedure
for and issuance of EPO and TEPO shall be governed by Rule 2 of these
Rules.
RULE 14
BAIL
Section 1. Bail, where filed. - Bail in the amount fixed may be filed with
the court where the case is pending, or in the absence or unavailability of
the judge thereof, with any regional trial judge, metropolitan trial judge,
municipal trial judge or municipal circuit trial judge in the province, city or
municipality. If the accused is arrested in a province, city or municipality
other than where the case is pending, bail may also be filed with any
Regional Trial Court of said place, or if no judge thereof is available, with
any metropolitan trial judge, municipal trial judge or municipal circuit trial
judge therein. If the court grants bail, the court may issue a hold-
departure order in appropriate cases.
Section 2. Duties of the court. - Before granting the application for bail,
the judge must read the information in a language known to and
understood by the accused and require the accused to sign a written
undertaking, as follows:
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(a) To appear before the court that issued the warrant of arrest
for arraignment purposes on the date scheduled, and if the
accused fails to appear without justification on the date of
arraignment, accused waives the reading of the information and
authorizes the court to enter a plea of not guilty on behalf of
the accused and to set the case for trial;
(b) To appear whenever required by the court where the case is
pending; and
(c) To waive the right of the accused to be present at the trial,
and upon failure of the accused to appear without justification
and despite due notice, the trial may proceed in absentia.
RULE 15
ARRAIGNMENT AND PLEA
Section 1. Arraignment. - The court shall set the arraignment of the
accused within fifteen (15) days from the time it acquires jurisdiction over
the accused, with notice to the public prosecutor and offended party or
concerned government agency that it will entertain plea-bargaining on
the date of the arraignment.
Section 2. Plea-bargaining. - On the scheduled date of arraignment, the
court shall consider plea-bargaining arrangements. Where the
prosecution and offended party or concerned government agency agree
to the plea offered by the accused, the court shall:
(a) Issue an order which contains the plea-bargaining arrived
at;
(b) Proceed to receive evidence on the civil aspect of the case,
if any; and
(c) Render and promulgate judgment of conviction, including
the civil liability for damages.
RULE 16
PRE-TRIAL
Section 1. Setting of pre-trial conference. - After the arraignment, the
court shall set the pre-trial conference within thirty (30) days. It may refer
the case to the branch clerk of court, if warranted, for a preliminary
conference to be set at least three (3) days prior to the pre-trial.
Section 2. Preliminary conference. - The preliminary conference shall be
for the following purposes:
(a) To assist the parties in reaching a settlement of the civil
aspect of the case;
(b) To mark the documents to be presented as exhibits;
(c) To attach copies thereof to the records after comparison
with the originals;
(d) To ascertain from the parties the undisputed facts and
admissions on the genuineness and due execution of
documents marked as exhibits;
(e) To consider such other matters as may aid in the prompt
disposition of the case;
(f) To record the proceedings during the preliminary conference
in the Minutes of Preliminary Conference to be signed by the
parties and counsel;
(g) To mark the affidavits of witnesses which shall be in question
and answer form and shall constitute the direct examination of
the witnesses; and
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(h) To attach the Minutes and marked exhibits to the case
record before the pre-trial proper. The parties or their counsel
must submit to the branch clerk of court the names, addresses
and contact numbers of the affiants.
Section 3. Pre-trial duty of the judge. - During the pre-trial, the court
shall:
(a) Place the parties and their counsels under oath;
(b) Adopt the minutes of the preliminary conference as part of
the pre-trial proceedings, confirm markings of exhibits or
substituted photocopies and admissions on the genuineness
and due execution of documents, and list object and
testimonial evidence;
(c) Scrutinize the information and the statements in the
affidavits and other documents which form part of the record
of the preliminary investigation together with other documents
identified and marked as exhibits to determine further
admissions of facts as to:
i. The court’s territorial jurisdiction relative to the
offense(s) charged;
ii. Qualification of expert witnesses; and
iii. Amount of damages;
(d) Define factual and legal issues;
(e) Ask parties to agree on the specific trial dates and adhere to
the flow chart determined by the court which shall contain the
time frames for the different stages of the proceeding up to
promulgation of decision;
(f) Require the parties to submit to the branch clerk of court the
names, addresses and contact numbers of witnesses that need
to be summoned by subpoena; and
(g) Consider modification of order of trial if the accused admits
the charge but interposes a lawful defense.
Section 4. Manner of questioning. - All questions or statements must be
directed to the court.
Section 5. Agreements or admissions. - All agreements or admissions
made or entered during the pre-trial conference shall be reduced in
writing and signed by the accused and counsel; otherwise, they cannot be
used against the accused. The agreements covering the matters referred
to in Section 1, Rule 118 of the Rules of Court shall be approved by the
court.
Section 6. Record of proceedings. - All proceedings during the pre-trial
shall be recorded, the transcripts prepared and the minutes signed by the
parties or their counsels.
Section 7. Pre-trial order. - The court shall issue a pre-trial order within
ten (10) days after the termination of the pre-trial, setting forth the actions
taken during the pre-trial conference, the facts stipulated, the admissions
made, evidence marked, the number of witnesses to be presented and the
schedule of trial. The order shall bind the parties and control the course
of action during the trial.
RULE 17
TRIAL
Section 1. Continuous trial. - The court shall endeavor to conduct
continuous trial which shall not exceed three (3) months from the date of
the issuance of the pre-trial order.
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 Environmental Law Reviewer
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Section 2. Affidavit in lieu of direct examination. - Affidavit in lieu of direct
examination shall be used, subject to cross-examination and the right to
object to inadmissible portions of the affidavit.
Section 3. Submission of memoranda. - The court may require the parties
to submit their respective memoranda and if possible, in electronic form,
within a non-extendible period of thirty (30) days from the date the case
is submitted for decision.
The constitutional right of the people to a balanced and healthful ecology
shall be given the benefit of the doubt.
Section 2. Standards for application. - In applying the precautionary
principle, the following factors, among others, may be considered: (1)
threats to human life or health; (2) inequity to present or future
generations; or (3) prejudice to the environment without legal
consideration of the environmental rights of those affected.

With or without any memoranda filed, the court shall have a period of
sixty (60) days to decide the case counted from the last day of the 30-day
period to file the memoranda.
Section 4. Disposition period. - The court shall dispose the case within a
period of ten (10) months from the date of arraignment.
Section 5. Pro bono lawyers. - If the accused cannot afford the services of
counsel or there is no available public attorney, the court shall require the
Integrated Bar of the Philippines to provide pro bono lawyers for the
accused.
RULE 18
SUBSIDIARY LIABILITY
Section 1. Subsidiary liability. - In case of conviction of the accused and
subsidiary liability is allowed by law, the court may, by motion of the
person entitled to recover under judgment, enforce such subsidiary
liability against a person or corporation subsidiary liable under Article 102
and Article 103 of the Revised Penal Code.
RULE 21
DOCUMENTARY EVIDENCE
Section 1. Photographic, video and similar evidence. - Photographs,
videos and similar evidence of events, acts, transactions of wildlife, wildlife
by-products or derivatives, forest products or mineral resources subject
of a case shall be admissible when authenticated by the person who took
the same, by some other person present when said evidence was taken,
or by any other person competent to testify on the accuracy thereof.
Section 2. Entries in official records. - Entries in official records made in
the performance of his duty by a public officer of the Philippines, or by a
person in performance of a duty specially enjoined by law, are prima facie
evidence of the facts therein stated.
RULE 22
FINAL PROVISIONS
Section 1. Effectivity. - These Rules shall take effect within fifteen (15) days
following publication once in a newspaper of general circulation.

RULE 19 Section 2. Application of the Rules of Court. - The Rules of Court shall
STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION IN apply in a suppletory manner, except as otherwise provided herein.
CRIMINAL CASES
Writ of Kalikasan vs. Writ of Continuing Mandamus
Section 1. Motion to dismiss. - Upon the filing of an information in court
and before arraignment, the accused may file a motion to dismiss on the According to the Rules of Procedure for Environmental Cases, the two are
ground that the criminal action is a SLAPP. distinct in the following aspects:
Section 2. Summary hearing. - The hearing on the defense of a SLAPP
shall be summary in nature. The parties must submit all the available Aspect Writ of Kalikasan Writ of Continuing
evidence in support of their respective positions. The party seeking the Mandamus
dismissal of the case must prove by substantial evidence that his acts for The writ is a remedy available …the person
the enforcement of environmental law is a legitimate action for the to a natural or juridical aggrieved thereby
protection, preservation and rehabilitation of the environment. The party person, entity authorized by may file a verified
filing the action assailed as a SLAPP shall prove by preponderance of law, people’s organization, petition in the proper
evidence that the action is not a SLAPP. non-governmental court, alleging the
organization, or any public facts with certainty,
Section 3. Resolution. - The court shall grant the motion if the accused interest group accredited by attaching thereto
establishes in the summary hearing that the criminal case has been filed or registered with any supporting evidence,
with intent to harass, vex, exert undue pressure or stifle any legal recourse government agency, on specifying that the
that any person, institution or the government has taken or may take in behalf of persons whose petition concerns an
the enforcement of environmental laws, protection of the environment or constitutional right to a environmental law,
assertion of environmental rights. balanced and healthful rule or regulation,
ecology is violated, or and praying that
If the court denies the motion, the court shall immediately proceed with Who may
threatened with violation by judgment be
the arraignment of the accused. file
an unlawful act or omission rendered
PART V of a public official or commanding the
EVIDENCE employee, or private respondent to do an
individual or entity, involving act or series of acts
RULE 20 environmental damage of until the judgment is
PRECAUTIONARY PRINCIPLE such magnitude as to fully satisfied, and to
prejudice the life, health or pay damages
Section 1. Applicability. - When there is a lack of full scientific certainty in property of inhabitants in sustained by the
establishing a causal link between human activity and environmental two or more cities or petitioner by reason
effect, the court shall apply the precautionary principle in resolving the provinces (Rule 7, Section 1). of the malicious
case before it. neglect to perform
the duties of the
respondent, under
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the law, rules or
regulations. The
petition shall also
contain a sworn
certification of non-
forum shopping
(Rule 8, Section 1).
The following requisites must When any agency or
be present to avail of the instrumentality of the
extraordinary remedy of a government or
writ of kalikasan: officer thereof
1. there is an actual unlawfully neglects
or threatened the performance of
violation of the an act which the law
constitutional right specifically enjoins as
to a balanced and a duty resulting from
healthful ecology; an office, trust or
2. the actual or station in connection
threatened with the enforcement
violation arises or violation of an
from an unlawful environmental law
act or omission of rule or regulation or
When
a public official or a right therein, or
available
employee, or unlawfully excludes
private individual another from the use
or entity; and or enjoyment of such
3. the actual or right and there is no
threatened other plain, speedy
violation involves and adequate
or will lead to an remedy in the
environmental ordinary course of
damage of such law… (Rule 8, Section
magnitude as to 1).
prejudice the life,
health, or property
of inhabitants in
two or more cities
or provinces.
Public official or employee, or Any agency or
Who it is private individual or entity. instrumentality of the
filed against government or
officer thereof.
The petition shall be filed The petition shall be
with the Supreme Court or filed with the
with any of the stations of the Regional Trial Court
Court of Appeals (Rule 7, exercising
Section 3). jurisdiction over the
Where it is territory where the
filed actionable neglect or
omission occurred or
with the Court of
Appeals or the
Supreme Court (Rule
8, Section 2).
(a) Ocular Inspection; order None
— The motion must show
that an ocular inspection
order is necessary to
Modes of establish the magnitude of
discovery the violation or the threat as
to prejudice the life, health or
property of inhabitants in
two or more cities or
provinces. It shall state in
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
detail the place or places to
be inspected. It shall be
supported by affidavits of
witnesses having personal
knowledge of the violation or
threatened violation of
environmental law.
After hearing, the court may
order any person in
possession or control of a
designated land or other
property to permit entry for
the purpose of inspecting or
photographing the property
or any relevant object or
operation thereon.
The order shall specify the
person or persons authorized
to make the inspection and
the date, time, place and
manner of making the
inspection and may prescribe
other conditions to protect
the constitutional rights of all
parties.
(b) Production or inspection
of documents or
things; order – The motion
must show that a production
order is necessary to
establish the magnitude of
the violation or the threat as
to prejudice the life, health or
property of inhabitants in
two or more cities or
provinces.
After hearing, the court may
order any person in
possession, custody or
control of any designated
documents, papers, books,
accounts, letters,
photographs, objects or
tangible things, or objects in
digitized or electronic form,
which constitute or contain
evidence relevant to the
petition or the return, to
produce and permit their
inspection, copying or
photographing by or on
behalf of the movant.
The production order shall
specify the person or persons
authorized to make the
production and the date,
time, place and manner of
making the inspection or
production and may
prescribe other (Rule 7,
Section 12).
The reliefs that may be …respondent to do
Reliefs granted under the writ are an act or series of
the following: acts until the
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 Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel

a. Directing respondent to judgment is fully

permanently cease and satisfied, and to pay HENARES, JR., AGUSTIN, HENARES, et. al. vs. LAND
desist from committing damages sustained TRANSPORTATION FRANCHISING AND REGULATORY
acts or neglecting the by the petitioner by BOARD & DEPARTMENT OF TRANSPORTATION AND
performance of a duty reason of the
COMMUNICATIONS (2006)
in violation of malicious neglect to
Facts: Petitioners Henares. et al. challenge this Court to issue a writ of
environmental laws perform the duties of
mandamus commanding respondents Land Transportation
resulting in the respondent,
Franchising and Regulatory Board (LTFRB) and the Department of
environmental under the law, rules
Transportation and Communications (DOTC) to require public utility
destruction or damage; or regulations (Rule
vehicles (PUVs) to use compressed natural gas (CNG) as alternative fuel.
b. Directing the 8, Section 1).
respondent public
Petitioners’ contentions:
official, government
agency, private person • the particulate matters (PM) – complex mixtures of dust, dirt, smoke,
or entity to protect, and liquid droplets, varying in sizes and compositions emitted into
preserve, rehabilitate or the air from various engine combustions – have caused detrimental
restore the effects on health, productivity, infrastructure and the overall quality
environment; of life.
c. Directing the • Petitioners particularly cite the effects of certain fuel emissions from
respondent public engine combustion when these react to other pollutants such as
official, government smog, acid rain, release of harmful nitrates in the air, retardation and
agency, private person leaf bleaching in plants.
or entity to monitor • Further, carbon monoxide (CO), when not completely burned but
strict compliance with emitted into the atmosphere and then inhaled can disrupt the
the decision and orders necessary oxygen in blood. CO affects the nervous system and can
of the court; be lethal to people with weak hearts.
d. Directing the • CNG is a natural gas comprised mostly of methane which although
respondent public containing small amounts of propane and butane, and is colorless
official, government and odorless and considered the cleanest fossil fuel because it
agency, or private produces much less pollutants than coal and petroleum; produces
person or entity to make up to 90 percent less CO compared to gasoline and diesel fuel;
periodic reports on the reduces NOx emissions by 50 percent and cuts hydrocarbon
execution of the final emissions by half; emits 60 percent less PMs; and releases virtually
judgment; and no sulfur dioxide. Although, according to petitioners, the only
e. (e) Such other reliefs drawback of CNG is that it produces more methane, one of the gases
which relate to the right blamed for global warming.
of the people to a • Section 16 Article II of the 1987 Constitution is the policy statement
balanced and healthful that bestows on the people the right to breathe clean air in a
ecology or to the healthy environment. This policy is enunciated in Oposa. The
protection, implementation of this policy is articulated in Rep. Act No. 8749.
preservation, These, according to petitioners, are the bases for their standing to
rehabilitation or file the instant petition. When there is an omission by the
restoration of government to safeguard a right, in this case their right to clean air,
the environment, except then, the citizens can resort to and exhaust all remedies to challenge
the award of damages this omission by the government. This, they say, is embodied in
to individual petitioners Section 4of Rep. Act No. 8749.
(Rule 7, Section 15).
Respondents’ contentions: The LTFRB, DOTC, and the Solicitor General
ISO 14000 Allege that:
• the writ of mandamus is not the correct remedy since the writ may
International Organization for Standardization (ISO) – an international be issued only to command a tribunal, corporation, board, or
standard-setting body composed of representatives from various national person to do an act that is required to be done, when he or it
standard organizations. unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust or station,
Founded on February 23, 1947, the organization promulgates worldwide or unlawfully excludes another from the use and enjoyment of a
proprietary, industrial, and commercial standards. It has its headquarters right or office to which such other is entitled, there being no other
in Geneva, Switzerland. plain, speedy and adequate remedy in the ordinary course of law.
• That Rep. Act No. 8749 does not even mention the existence of
The ISO 14000 family of standards provides practical tools for companies CNG as alternative fuel and avers that unless this law is amended
and organizations of all kinds looking to manage their environmental to provide CNG as alternative fuel for PUVs, the respondents
responsibilities. cannot propose that PUVs use CNG as alternative fuel.
• it is the DENR that is tasked to implement Rep. Act No. 8749 and not
Writ of Kalikasan the LTFRB nor the DOTC.
*See Rule 7 of the Rules of Procedure for Environmental Cases.

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Issues:
1. Whether or not petitioners Henares, et. al. have the personality to
bring this case. [Yes]
2. Whether or not mandamus issues against respondents to compel
PUVs to use CNG as alternative fuel? [No. It is the wrong remedy.]
Ruling:
I
Undeniably, the right to clean air not only is an issue of paramount
importance to petitioners for it concerns the air they breathe, but it is also
impressed with public interest. The consequences of the counter-
productive and retrogressive effects of a neglected environment due to
emissions of motor vehicles immeasurably affect the wellbeing of
petitioners. On these considerations, the legal standing of the petitioners
deserves recognition.
II
Mandamus lies under any of the following cases:
1. against any tribunal which unlawfully neglects the performance of an
act which the law specifically enjoins as a duty;
2. in case any corporation, board or person unlawfully neglects the
performance of an act which the law enjoins as a duty;
3. resulting from an office, trust, or station; and
4. in case any tribunal, corporation, board or person unlawfully
excludes another from the use and enjoyment of a right or office to
which such other is legally entitled; and
5. there is no other plain, speedy, and adequate remedy in the ordinary
course of law.
Regrettably, however, the plain, speedy and adequate remedy herein
sought by petitioners, i.e., a writ of mandamus commanding the
respondents to require PUVs to use CNG, is unavailing. Mandamus is
available only to compel the doing of an act specifically enjoined by law
as a duty. Here, there is no law that mandates the respondents LTFRB
and the DOTC to order owners of motor vehicles to use CNG. At most
the LTFRB has been tasked by E.O. No. 290 in par. 4.5 (ii), Section 4 "to
grant preferential and exclusive Certificates of Public Convenience (CPC)
or franchises to operators of NGVs based on the results of the DOTC
surveys."
Further, mandamus will not generally lie from one branch of
government to a coordinate branch, for the obvious reason that
neither is inferior to the other. The need for future changes in both
legislation and its implementation cannot be preempted by orders from
this Court, especially when what is prayed for is procedurally infirm.
Besides, comity with and courtesy to a coequal branch dictate that we give
sufficient time and leeway for the coequal branches to address by
themselves the environmental problems raised in this petition.
It is the firm belief of this Court that in this case, it is timely to reaffirm the
premium we have placed on the protection of the environment in the
landmark case of Oposa. Yet, as serious as the statistics are on air
pollution, with the present fuels deemed toxic as they are to the
environment, as fatal as these pollutants are to the health of the citizens,
and urgently requiring resort to drastic measures to reduce air pollutants
emitted by motor vehicles, we must admit in particular that petitioners
are unable to pinpoint the law that imposes an indubitable legal duty
on respondents that will justify a grant of the writ of mandamus
compelling the use of CNG for public utility vehicles. It appears to us
that more properly, the legislature should provide first the specific
statutory remedy to the complex environmental problems bared by
herein petitioners before any judicial recourse by mandamus is taken.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
Additional notes:
In R.A. No. 8749, the Philippine Clean Air Act of 1999. Paragraph (a),
Section 21 of the Act specifically provides that when PUVs are concerned,
the responsibility of implementing the policy falls on respondent DOTC.
Section 21. Pollution from Motor Vehicles. – a) The DOTC shall
implement the emission standards for motor vehicles set pursuant to and
as provided in this Act. To further improve the emission standards, the
Department [DENR] shall review, revise and publish the standards every
two (2) years, or as the need arises. It shall consider the maximum limits
for all major pollutants to ensure substantial improvement in air quality
for the health, safety and welfare of the general public. Paragraph (b)
states:
b) The Department [DENR] in collaboration with the DOTC,
DTI and LGUs, shall develop an action plan for the control
and management of air pollution from motor vehicles
consistent with the Integrated Air Quality Framework . . .
.
There is no dispute that under the Clean Air Act it is the DENR that is
tasked to set the emission standards for fuel use and the task of
developing an action plan. As far as motor vehicles are concerned, it
devolves upon the DOTC and the line agency whose mandate is to
oversee that motor vehicles prepare an action plan and implement
the emission standards for motor vehicles, namely the LTFRB.
WEST TOWER CONDOMINIUM CORPORATION vs. FIRST
PHILIPPINE INDUSTRIAL CORPORATION, FIRST GEN
CORPORATION, JOHN DOES & RICHARD DOES (2015)
Facts: This is a petition for the issuance of a writ of kalikasan filed
following the leak in the oil pipeline owned by respondent First
Philippine Industrial Corporation (FPIC) in Makati City.
West Tower Condominium Corporation (West Tower Corp.)
interposed the present petition for the issuance of a writ of kalikasan on
behalf of the residents of West Tower and in representation of the
surrounding communities in Barangay Bangkal, Makati City. Praying that:
FPIC and its board of directors and officers, and First Gen Corporation
(FGC) and its board of directors and officers be directed to:
1. permanently cease and desist from committing acts of
negligence in the performance of their functions as a common
carrier;
2. continue to check the structural integrity of the whole 117-
kilometer pipeline and to replace the same;
3. make periodic reports on their findings with regard to the 117-
kilometer pipeline and their replacement of the same;
4. rehabilitate and restore the environment, especially Barangay
Bangkal and West Tower, at least to what it was before the signs
of the leak became manifest; and
5. to open a special trust fund to answer for similar and future
contingencies in the future. Furthermore, petitioners pray that
respondents be prohibited from opening the pipeline and allowing
the use thereof until the same has been thoroughly checked and
replaced, and be temporarily restrained from operating the
pipeline until the final resolution of the case.
Petitioner’s contentions:
• FPIC's omission or failure to timely replace its pipelines and to
observe extraordinary diligence caused the petroleum spill in the City
of Makati.
• Further they argue that the 7-year old pipeline would not only be
a hazard or a threat to the lives, health, and property of those
who live or sojourn in all the municipalities in which the pipeline
is laid, but would also affect the rights of the generations yet
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unborn to live in a balanced and "healthful ecology,"
guaranteed under Section 16, Article II of the 1987 Constitution.
Respondents’ contentions: The Writ of Kalikasan was issued so the First
Philippine Industrial prayed for the dismissal of the petition and denial of
the privilege of the Writ, claiming that:
• petitioners had no legal capacity to institute the petition;
• there is no allegation that the environmental damage affected the
inhabitants of two (2) or more cities or provinces;
• and the continued operation of the pipeline should be allowed in the
interest of maintaining adequate petroleum supply to the public.
Issues:
1. Whether petitioner West Tower Corp. has the legal capacity to
represent the other petitioners and whether the other petitioners,
apart from the residents of West Tower and Barangay Bangkal, are
real parties-ininterest. [Yes]
2. Whether or not the precautionary principle applies. [No]
3. Whether a special trust fund should be opened by respondents to
answer for future similar contingencies. [No]
4. Whether FGC and the directors and officers of respondents FPIC and
FGC may be held liable under the environmental protection order.
[No]
Ruling:
I
On the procedural aspect, We agree with the CA that petitioners who are
affected residents of West Tower and Barangay Bangkal have the requisite
concern to be real parties-in-interest to pursue the instant petition. As to
the residents of Barangay Bangkal, they are similarly situated with the unit
owners and residents of West Tower and are real parties-in-interest to the
instant case, i.e., if they so wish to join the petitioners.
II
The precautionary principle only applies when the link between the
cause, that is the human activity sought to be inhibited, and the effect,
that is the damage to the environment, cannot be established with full
scientific certainty.
Here, however, such absence of a link is not an issue. Detecting the
existence of a leak or the presence of defects in the White Oil Pipeline
(WOPL) System, which is the issue in the case at bar, is different from
determining whether the spillage of hazardous materials into the
surroundings will cause environmental damage or will harm human health
or that of other organisms. As a matter of fact, the petroleum leak and the
harm that it caused to the environment and to the residents of the
affected areas is not even questioned by FPIC.
III
Under Section 1, Rule 5 of the Rules of Procedure for Environmental Cases,
a trust fund is limited solely for the purpose of rehabilitating or restoring
the environment.
In this the prayer is for the creation of a trust fund for similar future
contingencies. This is clearly outside the limited purpose of a special trust
fund under the Rules of Procedure for Environmental Cases, which is to
rehabilitate or restore the environment that has presumably already
suffered. Hence, the Court affirms with concurrence the observation of the
appellate court that the prayer is but a claim for damages, which is
prohibited by the Rules of Procedure for Environmental Cases. As such,
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
the Court is of the considered view that the creation of a special trust fund
is misplaced.
IV
The individual directors and officers of FPIC and FGC are not liable in their
individual capacities.
The Court will refrain from ruling on the finding of the CA that the
individual directors and officers of FPIC and FGC are not liable due to the
explicit rule in the Rules of Procedure for Environmental cases that in a
petition for a writ of kalikasan, the Court cannot grant the award of
damages to individual petitioners under Rule 7, Sec. 15(e) of the
Rules of Procedure for Environmental Cases. As duly noted by the CA,
the civil case and criminal complaint filed by petitioners against
respondents are the proper proceedings to ventilate and determine the
individual liability of respondents, if any, on their exercise of corporate
powers and the management of FPIC relative to the dire environmental
impact of the dumping of petroleum products stemming from the leak in
the WOPL in Barangay Bangkal, Makati City. Hence, the Court will not rule
on the alleged liability on the part of the FPIC and FGC officials which can,
however, be properly resolved in the civil and criminal cases now pending
against them.
Final matters
The Court Ordered the following:
• The Department of Energy (DOE) is hereby ORDERED to oversee the
strict implementation
o Preparatory to the Test Run of the entire stretch of the
WOPL
o Actual Test Run
o the DOE shall determine if the activities and the results of
the test run warrant the re-opening of the WOPL
o In the event that the DOE is satisfied that the WOPL is safe
for continued commercial operations, it shall issue an
order allowing FPIC to resume the operations of the
pipeline.
o Once the WOPL is re-opened, the DOE shall see to it that
FPIC strictly complies with strict directives
• Respondent FPIC is also DIRECTED to undertake and continue the
remediation, rehabilitation and restoration of the affected Barangay
Bangkal environment until full restoration of the affected area to its
condition prior to the leakage is achieved. For this purpose,
respondent FPIC must strictly comply with the measures, directives
and permits issued by the DENR for its remediation activities in
Barangay Bangkal, including but not limited to, the Wastewater
Discharge Permit and Permit to Operate. The DENR has the authority
to oversee and supervise the aforesaid activities on said affected
barangay
• The Inter-Agency Committee on Environmental Health under the
City Government of Makati shall SUBMIT to the DENR its evaluation
of the Remediation Plan prepared by CH2M Hill Philippines, Inc.
within thirty (30) days from receipt hereof.
SECRETARY OF DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES PAJE vs. CASIÑO, PLATINO,
MARIANO, et. al. (2015)
This is a consolidation of four cases.
Facts: Subic Bay Metropolitan Authority (SBMA), a government
agency organized and established under Republic Act No. 7227, and
Taiwan Cogeneration Corporation (TCC) entered into a Memorandum
of Understanding (MOU) expressing their intention to build a power
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plant in Subic Bay which would supply reliable and affordable power to
Subic Bay Industrial Park (SBIP).
To which they were issued an Environmental Compliance Certificate
(ECC) which was amended several times.
Subsequently, Several Parties (Casiño Group) filed before the Court a
Petition for Writ of Kalikasan against RP Energy, SBMA, and Hon.
Ramon Jesus P. Paje, in his capacity as Secretary of the DENR. They argue
that:
• it is entitled to a Writ of Kalikasan as it was able to prove that the
operation of the power plant would cause environmental damage
and pollution, and that this would adversely affect the residents of
the provinces of Bataan and Zambales
o which allegedly admits that acid rain may occur in the
combustion of coal
o that the incidence of asthma attacks among residents in
the vicinity of the project site may increase due to
exposure to suspended particles from plant operations
o that increased sulfur oxides (SOx) and nitrogen oxides
(NOx) emissions may occur during plant operations
• It also claims that when the SBMA conducted Social Acceptability
Policy Consultations with different stakeholders on the proposed
power plant, the results indicated that the overall persuasion of the
participants was a clear aversion to the project due to environmental,
health, economic and socio-cultural concerns
• the ECC third amendment should also be nullified for failure to
comply with the procedures and requirements for the issuance of the
ECC
Discussion on Writ of Kalikasan
The Rules on the Writ of Kalikasan, which is Part III of the Rules of
Procedure for Environmental Cases, was issued by the Court pursuant to
its power to promulgate rules for the protection and enforcement of
constitutional rights, in particular, the individual’s right to a balanced and
healthful ecology. Section 1 of Rule 7 provides:
Section 1. Nature of the writ. – The writ is a remedy available to a
natural or juridical person, entity authorized by law, people’s
organization, nongovernmental organization, or any public interest
group accredited by or registered with any government agency, on
behalf of persons whose constitutional right to a balanced and healthful
ecology is violated, or threatened with violation by an unlawful act or
omission of a public official or employee, or private individual or entity,
involving environmental damage of such magnitude as to prejudice the
life, health or property of inhabitants in two or more cities or provinces.
The writ is categorized as a special civil action and was, thus,
conceptualized as an extraordinary remedy, which aims to provide
judicial relief from threatened or actual violation/s of the constitutional
right to a balanced and healthful ecology of a magnitude or degree of
damage that transcends political and territorial boundaries. It is intended
"to provide a strongerdefense for environmental rights through judicial
efforts where institutional arrangements of enforcement, implementation
and legislation have fallen short" and seeks "to address the potentially
exponential nature of large-scale ecological threats.
Requisites for Writ of Kalikasan
Under Section 1 of Rule 7, the following requisites must be present to avail
of this extraordinary remedy:
1. there is an actual or threatened violation of the constitutional
right to a balanced and healthful ecology;
2. the actual or threatened violation arises from an unlawful act or
omission of a public official or employee, or private individual
or entity; and
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
3. the actual or threatened violation involves or will lead to an
environmental damage of such magnitude as to prejudice the
life, health or property of inhabitants in two or more cities or
provinces.
Reliefs granted under the Writ of Kalikasan:
The reliefs that may be granted under the writ are the following:
a. Directing respondent to permanently cease and desist from
committing acts or neglecting the performance of a duty in
violation of environmental laws resulting in environmental
destruction or damage;
b. Directing the respondent public official, government agency,
private person or entity to protect, preserve, rehabilitate or
restore the environment;
c. Directing the respondent public official, government agency,
private person or entity to monitor strict compliance with the
decision and orders of the court;
d. Directing the respondent public official, government agency, or
private person or entity to make periodic reports on the
execution of the final judgment; and
e. Such other reliefs which relate to the right of the people to a
balanced and healthful ecology or to the protection,
preservation, rehabilitation or restoration of the environment,
except the award of damages to individual petitioners.
It must be noted, however, that the above enumerated reliefs are non-
exhaustive. The reliefs that may be granted under the writ are broad,
comprehensive and non-exclusive.
Issues:
1. Can the validity of an ECC be challenged via a writ of kalikasan? [No]
2. Whether the Casiño Group was able to prove that the construction
and operation of the power plant will cause grave environmental
damage. [No]
Ruling:
I
The writ of kalikasan is principally predicated on an actual or threatened
violation of the constitutional right to a balanced and healthful
ecology, which involves environmental damage of a magnitude that
transcends political and territorial boundaries. A party, therefore, who
invokes the writ based on alleged defects or irregularities in the
issuance of an ECC must not only allege and prove such defects or
irregularities, but must also provide a causal link or, at least, a
reasonable connection between the defects or irregularities in the
issuance of an ECC and the actual or threatened violation of the
constitutional right to a balanced and healthful ecology of the
magnitude contemplated under the Rules. Otherwise, the petition
should be dismissed outright and the action re-filed before the proper
forum with due regard to the doctrine of exhaustion of administrative
remedies. This must be so if we are to preserve the noble and laudable
purposes of the writ against those who seek to abuse it.
An example of a defect or an irregularity in the issuance of an ECC, which
could conceivably warrant the granting of the extraordinary remedy of the
writ of kalikasan, is a case where there are serious and substantial
misrepresentations or fraud in the application for the ECC, which, if
not immediately nullified, would cause actual negative
environmental impacts of the magnitude contemplated under the Rules,
because the government agenciesand LGUs, with the final authority to
implement the project, may subsequently rely on such substantially
defective or fraudulent ECC in approving the implementation of the
project.
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In this case: As to the claims that the issuance of the ECC violated the
IPRA Law and LGC and that the LDA, likewise, violated the IPRA Law,
we find the same not to be within the coverage of the writ of
kalikasan because, assuming there was non-compliance therewith, no
reasonable connection can be made to an actual or threatened violation
of the right to a balanced and healthful ecology of the magnitude
contemplated under the Rules. To elaborate, the alleged lackof approval
of the concerned sanggunians over the subject project would not lead
toor is not reasonably connected with environmental damage but, rather,
it is an affront to the local autonomy of LGUs. Similarly, the alleged lack
of a certificate precondition that the project site does not overlap with an
ancestral domain would not result inor is not reasonably connected with
environmental damage but, rather, it is an impairment of the right of
Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) to their
ancestral domains. These alleged violationscould be the subject of
appropriate remedies before the proper administrative bodies (like the
NCIP) or a separate action to compel compliance before the courts, as the
case may be. However, the writ of kalikasan would not be the
appropriate remedy to address and resolve such issues.
II
The appellate court correctly ruled that the Casiño Group failed to
substantiate its claims thatthe construction and operation of the power
plant will cause environmental damage of the magnitude contemplated
under the writ of kalikasan. On the other hand, RP Energy presented
evidenceto establish that the subject project will not cause grave
environmental damage, through its Environmental Management Plan,
which will ensure thatthe project will operate within the limits of existing
environmental laws and standards;
the three witnesses presented by the Casiño Group are not experts on the
CFB technology or on environmental matters. Clearly, the Casiño Group
failed to carry the onus of proving the alleged significant negative
environmental impacts of the project. In comparison, RP Energy presented
several experts to refute the allegations of the Casiño Group.
The alleged scientific studies mentioned in the Petition cannot be
classified as learned treatises. We cannot take judicial notice of the same,
and no witness expert in the subjectmatter of this case testified, that the
writers of the said scientific studies are recognized in their profession or
calling as experts in the subject.
Other findings of the court (not really important but just in case):
2. The appellate court erred when it invalidated the ECC on the ground of
lack of signature of Mr. Aboitiz in the ECC’s Statement of Accountability
relative to the copy of the ECC submitted by RP Energy to the appellate
court. While the signature is necessary for the validity of the ECC, the
particular circumstances of this case show that the DENR and RP Energy
were not properly apprised of the issue of lack of signature in order for
them to present controverting evidence and arguments on this point, as
the issue only arose during the course of the proceedings upon
clarificatory questions from the appellate court. Consequently, RP Energy
cannot be faulted for submitting the certified true copy of the ECC only
after it learned that the ECC had been invalidatedon the ground of lack of
signature in the January 30, 2013 Decision of the appellate court. The
certified true copy of the ECC, bearing the signature of Mr. Aboitiz in the
Statement of Accountability portion, was issued by the DENR-EMB, and
remains uncontroverted. It showed that the Statement of Accountability
was signed by Mr. Aboitiz on December 24, 2008. Because the signing was
done after the official release of the ECC on December 22, 2008, wenote
that the DENR did not strictly follow its rules, which require that the
signing of the Statement of Accountability should be done before the
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official release of the ECC. However, considering that the issue was not
adequately argued norwas evidence presented before the appellate court
on the circumstances at the time of signing, there is insufficient basis to
conclude that the procedure adoptedby the DENR was tainted with bad
faith or inexcusable negligence. We remind the DENR, however, to be
more circumspect in following its rules. Thus, we rule that the signature
requirement was substantially complied with pro hac vice.
3. The appellate court erred when it ruled that the first and second
amendments to the ECC were invalid for failure to comply with a new EIA
and for violating DAO 2003-30 and the Revised Manual. It failed to
properly consider the applicable provisions in DAO 2003-30 and the
Revised Manual for amendment to ECCs. Our own examination of the
provisions on amendments to ECCs in DAO 2003-30 and the Revised
Manual, as wellas the EPRMP and PDR themselves, shows that the DENR
reasonably exercised its discretion in requiring an EPRMP and a PDR for
the first and second amendments, respectively. Through these
documents, which the DENR reviewed, a new EIA was conducted relative
to the proposed project modifications. Hence, absent sufficient showing
of grave abuse of discretion or patent illegality, relative to both the
procedure and substance of the amendment process, we uphold the
validity of these amendments;
4. The appellate court erred when it invalidated the ECC for failure to
comply with Section 59 of the IPRA Law.1âwphi1 The ECC is not the license
or permit contemplated under Section 59 of the IPRA Law and its
implementing rules. Hence, there is no necessity to secure the CNO under
Section 59 before an ECC may be issued, and the issuance of the subject
ECC without first securing the aforesaid certification does not render it
invalid;
5. The appellate court erred when it invalidated the LDA between SBMA
and RP Energy for failure to comply withSection 59 of the IPRA Law. While
we find that a CNO should have been secured prior to the consummation
of the LDA between SBMA and RP Energy, considering that this is the first
time we lay down the rule of action appropriate to the application of
Section 59, we refrain from invalidating the LDA for reasons of equity;
6. The appellate court erred when it ruled that compliance with Section
27, in relation to Section 26, of the LGC (i.e., approval of the concerned
sanggunian requirement) is necessary prior to issuance of the subjectECC.
The issuance of an ECC does not, by itself, result inthe implementation of
the project. Hence, there is no necessity to secure prior compliance with
the approval of the concerned sanggunian requirement, and the issuance
of the subject ECC without first complying with the aforesaid requirement
does not render it invalid. The appellate court also erred when it ruled that
compliance with the aforesaid requirement is necessary prior to the
consummation of the LDA. By virtue of the clear provisions of RA 7227,
the project is not subject to the aforesaid requirement and the SBMA’s
decision to approve the project prevails over the apparent objections of
the concerned sanggunians. Thus, the LDA entered into between SBMA
and RP Energy suffers from no infirmity despite the lack of approval of the
concerned sanggunians; and
7. The appellate court correctly ruled thatthe issue as to the validity of the
third amendment to the ECC cannot be resolved in this case because it
was not one of the issues set during the preliminary conference, and
would, thus, violate RP Energy’s right to due process. WHEREFORE, the
Court resolves to: 1. DENY the Petition in G.R. No. 207282; and 2. GRANT
the Petitions in G.R.Nos. 207257, 207366 and 207276: 2.1. The January 30,
2013 Decision and May 22, 2013 Resolution of the Court of Appeals in
CAG.R. SP No. 00015 are reversed and set aside; 2.2. The Petition for Writ
of Kalikasan, docketed as CA-G.R. SP No. 00015, is denied for insufficiency
of evidence; 2.3. The validity of the December 22, 2008 Environmental
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Compliance Certificate, as well as the July 8, 2010 first amendment and
the May 26, 2011 second amendment thereto, issued by the Department
of Environment and Natural Resources in favor of Redondo Peninsula
Energy, Inc., are upheld; and 2.4. The validity of the June 8, 2010 Lease and
Development Agreement between Subic Bay Metropolitan Authority and
Redondo Peninsula Energy, Inc. is upheld.
ARIGO, et. al. vs. SWIFT (2014)
Facts: The name “Tubbataha” came from the Samal (seafaring people of
southern Philippines) language which means “long reef exposed at low
tide.”
Tubbataha is composed of two huge coral atolls – the north atoll and the
south atoll – and the Jessie Beazley Reef, a smaller coral structure about
20 kilometers north of the atolls. The reefs of Tubbataha and Jessie
Beazley are considered part of Cagayancillo, a remote island municipality
of Palawan.
Proclamation No. 306
In 1988, Tubbataha was declared a National Marine Park by virtue of
Proclamation No. 306 issued by President Corazon C. Aquino on August
11, 1988. Located in the middle of Central Sulu Sea, 150 kilometers
southeast of Puerto Princesa City, Tubbataha lies at the heart of the Coral
Triangle, the global center of marine biodiversity.
UNESCO
In 1993, Tubbataha was inscribed by the United Nations Educational
Scientific and Cultural Organization (UNESCO) as a World Heritage Site.
It was recognized as one of the Philippines’ oldest ecosystems, containing
excellent examples of pristine reefs and a high diversity of marine life. The
97,030-hectare protected marine park is also an important habitat for
internationally threatened and endangered marine species.
UNESCO cited Tubbataha’s outstanding universal value as an important
and significant natural habitat for in situ conservation of biological
diversity; an example representing significant on-going ecological and
biological processes; and an area of exceptional natural beauty and
aesthetic importance.
Republic Act No. 10067
On April 6, 2010, Congress passed Republic Act No. 10067, otherwise
known as the “Tubbataha Reefs Natural Park (TRNP) Act of 2009” “to
ensure the protection and conservation of the globally significant
economic, biological, sociocultural, educational and scientific values of the
Tubbataha Reefs into perpetuity for the enjoyment of present and future
generations.” Under the “no-take” policy, entry into the waters of TRNP
is strictly regulated and many human activities are prohibited and
penalized or fined, including fishing, gathering, destroying and disturbing
the resources within the TRNP. The law likewise created the Tubbataha
Protected Area Management Board (TPAMB) which shall be the sole
policy-making and permit-granting body of the TRNP.
USS Guardian
The USS Guardian is an Avenger-class mine countermeasures ship of the
US Navy. In December 2012, the US Embassy in the Philippines requested
diplomatic clearance for the said vessel “to enter and exit the territorial
waters of the Philippines and to arrive at the port of Subic Bay for the
purpose of routine ship replenishment, maintenance, and crew liberty.”
On January 6, 2013, the ship left Sasebo, Japan for Subic Bay, arriving on
January 13, 2013 after a brief stop for fuel in Okinawa, Japan.
On January 15, 2013, the USS Guardian departed Subic Bay for its next
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port of call in Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while
transiting the Sulu Sea, the ship ran aground on the northwest side of
South Shoal of the Tubbataha Reefs, about 80 miles east-southeast of
Palawan. No one was injured in the incident, and there have been no
reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift,
expressed regret for the incident in a press statement. Likewise, US
Ambassador to the Philippines Harry K. Thomas, Jr., in a meeting at
the Department of Foreign Affairs on February 4, “reiterated his regrets
over the grounding incident and assured Foreign Affairs Secretary Albert
F. del Rosario that the United States will provide appropriate
compensation for damage to the reef caused by the ship.
By March 30, 2013, the US Navy-led salvage team had finished removing
the last piece of the grounded ship from the coral reef.
The Petition
On April 17, 2013, the above-named petitioners on their behalf and in
representation of their respective sector/organization and others,
including minors or generations yet unborn, filed the present petition
against Scott H. Swift in his capacity as Commander of the US 7th Fleet,
Mark A. Rice in his capacity as Commanding Officer of the USS
Guardian and Lt. Gen. Terry G. Robling, US Marine Corps Forces, Pacific
and Balikatan 2013 Exercises Co-Director (“US respondents”); and
President Benigno S. Aquino III in his capacity as Commander-in-Chief of
the Armed Forces of the Philippines (AFP), DFA Secretary Albert F. Del
Rosario, Executive Secretary Paquito Ochoa, Jr., Secretary Voltaire T.
Gazmin (Department of National Defense), Secretary Jesus P. Paje
(Department of Environment and Natural Resources), Vice-Admiral Jose
Luis M. Alano (Philippine Navy Flag Officer in Command, AFP), Admiral
Rodolfo D. Isorena (Philippine Coast Guard Commandant), Commodore
Enrico Efren Evangelista (Philippine Coast Guard-Palawan), and Major
General Virgilio O. Domingo (AFP Commandant), collectively the
“Philippine respondents.”
Petitioner’s contentions: Petitioners claim that the grounding, salvaging
and post-salvaging operations of the USS Guardian cause and continue to
cause environmental damage of such magnitude as to affect the provinces
of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros
Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which events
violate their constitutional rights to a balanced and healthful ecology.
They also seek a directive from this Court for the institution of civil,
administrative and criminal suits for acts committed in violation of
environmental laws and regulations in connection with the grounding
incident.
Specifically, petitioners cite the following violations committed by US
respondents under R.A. No. 10067:
• unauthorized entry (Section 19);
• non-payment of conservation fees (Section 21);
• obstruction of law enforcement officer (Section 30);
• damages to the reef (Section 20); and destroying and disturbing
resources (Section 26[g]).
Furthermore, petitioners assail certain provisions of the Visiting Forces
Agreement (VFA) which they want this Court to nullify for being
unconstitutional.
Respondents’ contentions: In their consolidated comment with
opposition to the application for a TEPO and ocular inspection and
production orders, respondents assert that:
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• the grounds relied upon for the issuance of a TEPO or writ
of Kalikasan have become fait accompli as the salvage operations on
the USS Guardian were already completed;
• the petition is defective in form and substance;
• the petition improperly raises issues involving the VFA between the
Republic of the Philippines and the United States of America; and
• the determination of the extent of responsibility of the US
Government as regards the damage to the Tubbataha Reefs rests
exclusively with the executive branch.
Issues:
1. Whether this Court has jurisdiction over the US respondents who did
not submit any pleading or manifestation in this case. [No]
2. Whether or not the United States, a non-party to the UNCLOS, may
be held liable. [Technically no, but the US’ refusal to the UNCLOS has
nothing to do with its acceptance of the customary rules on
navigation, hence, its non-membership does not mean that it will
disregard the rights of the Philippines over its internal waters and
territorial sea.]
Ruling: The petition is denied.
Legal standing
As a preliminary matter, there is no dispute on the legal standing of
petitioners to file the present petition.
In the landmark case of Oposa v. Factoran, Jr., we recognized the “public
right” of citizens to “a balanced and healthful ecology which, for the first
time in our constitutional history, is solemnly incorporated in the
fundamental law.” We declared that the right to a balanced and healthful
ecology need not be written in the Constitution for it is assumed, like other
civil and political rights guaranteed in the Bill of Rights, to exist from the
inception of mankind and it is an issue of transcendental importance with
intergenerational implications. Such right carries with it the correlative
duty to refrain from impairing the environment.
On the novel element in the class suit filed by the petitioners minors
in Oposa, this Court ruled that not only do ordinary citizens have legal
standing to sue for the enforcement of environmental rights, they can do
so in representation of their own and future generations. Thus:
Petitioners minors assert that they represent their generation as well as
generations yet unborn. We find no difficulty in ruling that they can, for
themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the
succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced
and healthful ecology is concerned. Such a right, as hereinafter
expounded, considers the “rhythm and harmony of nature.” Nature
means the created world in its entirety. Such rhythm and harmony
indispensably include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country’s forest, mineral,
land, waters, fisheries, wildlife, off-shore areas and other natural
resources to the end that their exploration, development and utilization
be equitably accessible to the present as well as future generations.
Needless to say, every generation has a responsibility to the next to
preserve that rhythm and harmony for the full enjoyment of a balanced
and healthful ecology. Put a little differently, the minors’ assertion of
their right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right for
the generations to come.
Ctizen suit in environmental cases
The liberalization of standing first enunciated in Oposa, insofar as it refers
to minors and generations yet unborn, is now enshrined in the Rules which
allows the filing of a citizen suit in environmental cases. The provision on
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citizen suits in the Rules “collapses the traditional rule on personal and
direct interest, on the principle that humans are stewards of nature.”
State immunity from suit
The immunity of the State from suit, known also as the doctrine of
sovereign immunity or non-suability of the State, is expressly provided in
Article XVI of the 1987 Constitution which states:
Section 3. The State may not be sued without its consent.
In United States of America v. Judge Guinto, we discussed the principle of
state immunity from suit, as follows:
x x x As applied to the local state, the doctrine of state immunity is based
on the justification given by Justice Holmes that “there can be no legal
right against the authority which makes the law on which the right
depends.”[Kawanakoa v. Polybank, 205 U.S. 349] There are other
practical reasons for the enforcement of the doctrine. In the case of the
foreign state sought to be impleaded in the local jurisdiction, the
added inhibition is expressed in the maxim par in parem, non habet
imperium. All states are sovereign equals and cannot assert
jurisdiction over one another. A contrary disposition would, in the
language of a celebrated case, “unduly vex the peace of
nations.” [De Haber v. Queen of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the state
without its consent, it is also applicable to complaints filed against
officials of the state for acts allegedly performed by them in the
discharge of their duties. The rule is that if the judgment against such
officials will require the state itself to perform an affirmative act to satisfy
the same, such as the appropriation of the amount needed to pay the
damages awarded against them, the suit must be regarded as against
the state itself although it has not been formally impleaded. [Garcia v.
Chief of Staff, 16 SCRA 120] In such a situation, the state may move to
dismiss the complaint on the ground that it has been filed without its
consent.
The precept that a State cannot be sued in the courts of a foreign state is
a long-standing rule of customary international law then closely identified
with the personal immunity of a foreign sovereign from suit and, with the
emergence of democratic states, made to attach not just to the person of
the head of state, or his representative, but also distinctly to the state itself
in its sovereign capacity. If the acts giving rise to a suit are those of a
foreign government done by its foreign agent, although not
necessarily a diplomatic personage, but acting in his official capacity,
the complaint could be barred by the immunity of the foreign
sovereign from suit without its consent. Suing a representative of a
state is believed to be, in effect, suing the state itself. The proscription is
not accorded for the benefit of an individual but for the State, in whose
service he is, under the maxim - par in parem, non habet imperium - thatall
states are sovereign equals and cannot assert jurisdiction over one
another. The implication, in broad terms, is that if the judgment against
an official would require the state itself to perform an affirmative act to
satisfy the award, such as the appropriation of the amount needed to pay
the damages decreed against him, the suit must be regarded as being
against the state itself, although it has not been formally impleaded.
This traditional rule of State immunity which exempts a State from being
sued in the courts of another State without the former’s consent or waiver
has evolved into a restrictive doctrine which distinguishes sovereign and
governmental acts (jure imperii) from private, commercial and proprietary
acts (jure gestionis). Under the restrictive rule of State immunity, State
immunity extends only to acts jure imperii. The restrictive application of
State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities
or economic affairs.
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It is a different matter where the public official is made to account in
his capacity as such for acts contrary to law and injurious to the rights
of plaintiff. The state that the doctrine of immunity from suit will not
apply and may not be invoked where the public official is being sued
in his private and personal capacity as an ordinary citizen. The cloak
of protection afforded the officers and agents of the government is
removed the moment they are sued in their individual capacity. This
situation usually arises where the public official acts without authority or
in excess of the powers vested in him. It is a well-settled principle of law
that a public official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with malice
and in bad faith, or beyond the scope of his authority or jurisdiction.
The suit is deemed to be one against the US itself
In this case: The US respondents were sued in their official capacity as
commanding officers of the US Navy who had control and supervision
over the USS Guardian and its crew.
The alleged act or omission resulting in the unfortunate grounding of
the USS Guardian on the TRNP was committed while they were
performing official military duties. Considering that the satisfaction of a
judgment against said officials will require remedial actions and
appropriation of funds by the US government, the suit is deemed to be
one against the US itself. The principle of State immunity therefore bars
the exercise of jurisdiction by this Court over the persons of respondents
Swift, Rice and Robling.
Article 31 of the UNCLOS
During the deliberations, Senior Associate Justice Antonio T. Carpio took
the position that the conduct of the US in this case, when its warship
entered a restricted area in violation of R.A. No. 10067 and caused damage
to the TRNP reef system, brings the matter within the ambit of Article 31
of the United Nations Convention on the Law of the Sea (UNCLOS).
He explained that while historically, warships enjoy sovereign immunity
from suit as extensions of their flag State, Article 31 of the UNCLOS creates
an exception to this rule in cases where they fail to comply with the rules
and regulations of the coastal State regarding passage through the latter’s
internal waters and the territorial sea.
According to Justice Carpio, although the US to date has not ratified the
UNCLOS, as a matter of long-standing policy the US considers itself bound
by customary international rules on the “traditional uses of the oceans” as
codified in UNCLOS, as can be gleaned from previous declarations by
former Presidents Reagan and Clinton, and the US judiciary in the case
of United States v. Royal Caribbean Cruise Lines, Ltd.
International law of the sea
The international law of the sea is generally defined as “a body of treaty
rules and customary norms governing the uses of the sea, the exploitation
of its resources, and the exercise of jurisdiction over maritime regimes. It
is a branch of public international law, regulating the relations of states
with respect to the uses of the oceans.”28 The UNCLOS is a multilateral
treaty which was opened for signature on December 10, 1982 at Montego
Bay, Jamaica. It was ratified by the Philippines in 1984 but came into force
on November 16, 1994 upon the submission of the 60th ratification.
The UNCLOS is a product of international negotiation that seeks to
balance State sovereignty (mare clausum) and the principle of freedom of
the high seas (mare liberum).29 The freedom to use the world’s marine
waters is one of the oldest customary principles of international law.30 The
UNCLOS gives to the coastal State sovereign rights in varying degrees
over the different zones of the sea which are: 1) internal waters, 2)
territorial sea, 3) contiguous zone, 4) exclusive economic zone, and 5) the
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high seas. It also gives coastal States more or less jurisdiction over foreign
vessels depending on where the vessel is located.
Insofar as the internal waters and territorial sea is concerned, the Coastal
State exercises sovereignty, subject to the UNCLOS and other rules of
international law. Such sovereignty extends to the air space over the
territorial sea as well as to its bed and subsoil.32cralawlawlibrary
In the case of warships, as pointed out by Justice Carpio, they continue to
enjoy sovereign immunity subject to the following exceptions:
Article 30
Non-compliance by warships with the laws and regulations
of the coastal State
If any warship does not comply with the laws and regulations of the
coastal State concerning passage through the territorial sea and
disregards any request for compliance therewith which is made to it, the
coastal State may require it to leave the territorial sea immediately.
Article 31
Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or
damage to the coastal State resulting from the non-compliance by
a warship or other government ship operated for non-
commercial purposes with the laws and regulations of the coastal
State concerning passage through the territorial sea or with the
provisions of this Convention or other rules of international law.
Article 32
Immunities of warships and other government ships
operated for non-commercial purposes
With such exceptions as are contained in subsection A and in articles 30
and 31, nothing in this Convention affects the immunities of warships
and other government ships operated for non-commercial purposes.
Effect of the US not being a party to the UNCLOS
A foreign warship’s unauthorized entry into our internal waters with
resulting damage to marine resources is one situation in which the above
provisions may apply. But what if the offending warship is a non-party
to the UNCLOS, as in this case, the US?
An overwhelming majority – over 80% -- of nation states are now
members of UNCLOS, but despite this the US, the world’s leading
maritime power, has not ratified it.
While the Reagan administration was instrumental in UNCLOS'
negotiation and drafting, the U.S. delegation ultimately voted against and
refrained from signing it due to concerns over deep seabed mining
technology transfer provisions contained in Part XI. In a remarkable,
multilateral effort to induce U.S. membership, the bulk of UNCLOS
member states cooperated over the succeeding decade to revise the
objectionable provisions. The revisions satisfied the Clinton
administration, which signed the revised Part XI implementing agreement
in 1994. In the fall of 1994, President Clinton transmitted UNCLOS and the
Part XI implementing agreement to the Senate requesting its advice and
consent. Despite consistent support from President Clinton, each of his
successors, and an ideologically diverse array of stakeholders, the Senate
has since withheld the consent required for the President to
internationally bind the United States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee (SFRC)
during the 108th and 110th Congresses, its progress continues to be
hamstrung by significant pockets of political ambivalence over U.S.
participation in international institutions. Most recently, 111th Congress
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SFRC Chairman Senator John Kerry included “voting out” UNCLOS for full
Senate consideration among his highest priorities. This did not occur, and
no Senate action has been taken on UNCLOS by the 112th Congress.
Justice Carpio invited our attention to the policy statement given by
President Reagan on March 10, 1983 that the US will “recognize the rights
of the other states in the waters off their coasts, as reflected in the
convention [UNCLOS], so long as the rights and freedom of the United
States and others under international law are recognized by such coastal
states”, and President Clinton’s reiteration of the US policy “to act in a
manner consistent with its [UNCLOS] provisions relating to traditional
uses of the oceans and to encourage other countries to do
likewise.” Since Article 31 relates to the “traditional uses of the oceans,”
and “if under its policy, the US ‘recognize[s] the rights of the other states
in the waters off their coasts,’” Justice Carpio postulates that “there is more
reason to expect it to recognize the rights of other states in their internal
waters, such as the Sulu Sea in this case.”
US refusal has nothing to do with its acceptance of customary
international rules on navigation
As to the non-ratification by the US, Justice Carpio emphasizes that “the
US’ refusal to join the UNCLOS was centered on its disagreement with
UNCLOS’ regime of deep seabed mining (Part XI) which considers the
oceans and deep seabed commonly owned by mankind,” pointing out
that such “has nothing to do with its [the US’] acceptance of
customary international rules on navigation.”
It may be mentioned that even the US Navy Judge Advocate General’s
Corps publicly endorses the ratification of the UNCLOS, as shown by the
following statement posted on its official website:
The Convention is in the national interest of the United States because it
establishes stable maritime zones, including a maximum outer limit for
territorial seas; codifies innocent passage, transit passage, and
archipelagic sea lanes passage rights; works against “jurisdictional creep”
by preventing coastal nations from expanding their own maritime zones;
and reaffirms sovereign immunity of warships, auxiliaries and
government aircraft.
xxxx
Economically, accession to the Convention would support our national
interests by enhancing the ability of the US to assert its sovereign rights
over the resources of one of the largest continental shelves in the world.
Further, it is the Law of the Sea Convention that first established the
concept of a maritime Exclusive Economic Zone out to 200 nautical miles,
and recognized the rights of coastal states to conserve and manage the
natural resources in this Zone.
The Court fully concurs with Justice Carpio’s view that non-
membership in the UNCLOS does not mean that the US will disregard
the rights of the Philippines as a Coastal State over its internal waters
and territorial sea.
We thus expect the US to bear “international responsibility” under
Article 31 in connection with the USS Guardian grounding which adversely
affected the Tubbataha reefs. Indeed, it is difficult to imagine that our
long-time ally and trading partner, which has been actively supporting the
country’s efforts to preserve our vital marine resources, would shirk from
its obligation to compensate the damage caused by its warship while
transiting our internal waters. Much less can we comprehend a
Government exercising leadership in international affairs, unwilling to
comply with the UNCLOS directive for all nations to cooperate in the
global task to protect and preserve the marine environment as provided
in Article 197, viz:
Article 197
Cooperation on a global or regional basis
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States shall cooperate on a global basis and, as appropriate, on a
regional basis, directly or through competent international
organizations, in formulating and elaborating international rules,
standards and recommended practices and procedures consistent with
this Convention, for the protection and preservation of the marine
environment, taking into account characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present controversy
is beyond dispute.
Although the said treaty upholds the immunity of warships from the
jurisdiction of Coastal States while navigating the latter’s territorial sea,
the flag States shall be required to leave the territorial sea
immediately if they flout the laws and regulations of the Coastal
State, and they will be liable for damages caused by their warships or
any other government vessel operated for non-commercial purposes
under Article 31.
Contention: Petitioners argue that there is a waiver of immunity from suit
found in the VFA. Likewise, they invoke federal statutes in the US under
which agencies of the US have statutorily waived their immunity to any
action. Even under the common law tort claims, petitioners asseverate that
the US respondents are liable for negligence, trespass and nuisance.
Held: The Court is not persuaded.
The VFA is an agreement which defines the treatment of United States
troops and personnel visiting the Philippines to promote “common
security interests” between the US and the Philippines in the region. It
provides for the guidelines to govern such visits of military personnel, and
further defines the rights of the United States and the Philippine
government in the matter of criminal jurisdiction, movement of vessel and
aircraft, importation and exportation of equipment, materials and
supplies.36 The invocation of US federal tort laws and even common law is
thus improper considering that it is the VFA which governs disputes
involving US military ships and crew navigating Philippine waters in
pursuance of the objectives of the agreement.
The waiver of State immunity under the VFA pertains only to criminal
jurisdiction and not to special civil actions such as the present petition
for issuance of a writ of Kalikasan.
In fact, it can be inferred from Section 17, Rule 7 of the Rules that a
criminal case against a person charged with a violation of an
environmental law is to be filed separately:
Section 17. Institution of separate actions. — The filing of a petition
for the issuance of the writ of kalikasan shall not preclude the filing of
separate civil, criminal or administrative actions.
In any case, it is our considered view that a ruling on the application or
non-application of criminal jurisdiction provisions of the VFA to US
personnel who may be found responsible for the grounding of the USS
Guardian, would be premature and beyond the province of a petition for
a writ of Kalikasan. We also find it unnecessary at this point to determine
whether such waiver of State immunity is indeed absolute. In the same
vein, we cannot grant damages which have resulted from the violation of
environmental laws. The Rules allows the recovery of damages, including
the collection of administrative fines under R.A. No. 10067, in a separate
civil suit or that deemed instituted with the criminal action charging the
same violation of an environmental law.
Petition has become moot
The Court agrees with respondents (Philippine officials) in asserting that
this petition has become moot in the sense that the salvage operation
sought to be enjoined or restrained had already been accomplished when
petitioners sought recourse from this Court. But insofar as the directives
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to Philippine respondents to protect and rehabilitate the coral reef
structure and marine habitat adversely affected by the grounding incident
are concerned, petitioners are entitled to these reliefs notwithstanding the
completion of the removal of the USS Guardian from the coral reef.
However, we are mindful of the fact that the US and Philippine
governments both expressed readiness to negotiate and discuss the
matter of compensation for the damage caused by the USS Guardian. The
US Embassy has also declared it is closely coordinating with local scientists
and experts in assessing the extent of the damage and appropriate
methods of rehabilitation.
Exploring avenues for settlement of environmental cases is not proscribed
by the Rules. As can be gleaned from the following provisions, mediation
and settlement are available for the consideration of the parties, and
which dispute resolution methods are encouraged by the court.
The petition for the issuance of the privilege of the Writ of Kalikasan is
hereby denied.
GREENPEACE SOUTHEAST ASIA vs. ENVIRONMENTAL
MANAGEMENT BUREAU of the DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES
The CA conducted "hot tubbing," the colloquial term for concurrent
expert evidence, a method used for giving evidence in civil cases in
Australia. In a "hot tub" hearing, the judge can hear all the experts
discussing the same issue at the same time to explain each of their points
in a discussion with a professional colleague. The objective is to achieve
greater efficiency and expedition, by reduced emphasis on cross-
examination and increased emphasis on professional dialogue, and
swifter identification of the critical areas of disagreement between the
experts.
RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE
TAÑON STRAIT, joined in and represented herein by human
beings RAMOS, EISMA-OSORIO, in their capacity as legal
guardians of the lesser life-forms and as responsible stewards
of God’s creation vs. REYES, ATIENZA, SIBBALUCA, et. al.
(2015)
CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER, et.
al. vs. REYES, ATIENZA, SIBBALUCA, et,. al. (2014)
Facts: This case involves two consolidated Petitions filed under Rule 65 of
the 1997 Rules of Court, concerning Service Contract No. 46 (SC-46),
which allowed the exploration, development, and exploitation of
petroleum resources within Tañon Strait, a narrow passage of water
situated between the islands of Negros and Cebu.
• G.R. No. 180771 is an original Petition for Certiorari,
Mandamus, and Injunction, which seeks to enjoin respondents
from implementing SC-46 and to have it nullified for willful
and gross violation of the 1987 Constitution and certain
international and municipal laws
• G.R. No. 181527 is an original Petition for Certiorari,
Prohibition, and Mandamus, which seeks to nullify the
Environmental Compliance Certificate (ECC) issued by the
Environmental Management Bureau (EMB) of the Department
of Environment and Natural Resources (DENR), Region VII in
connection with SC46; to prohibit respondents from
implementing SC-46; and to compel public respondents to
provide petitioners access to the pertinent documents involving
the Tañon Strait Oil Exploration Project
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
Petitioners in G.R. No. 180771, collectively referred to as the "Resident
Marine Mammals" in the petition, are the toothed whales, dolphins,
porpoises, and other cetacean species, which inhabit the waters in
and around the Tañon Strait. They are joined by Gloria Estenzo Ramos
(Ramos) and Rose-Liza Eisma-Osorio (Eisma-Osorio) as their legal
guardians and as friends (to be collectively known as "the Stewards")
who allegedly empathize with, and seek the protection of, the
aforementioned marine species. Also impleaded as an unwilling co-
petitioner is former President Gloria Macapagal-Arroyo, for her
express declaration and undertaking in the ASEAN Charter to protect the
Tañon Strait, among others. (HAHAHAHHA unwilling co-petitioner may
gnun pala - lois)
Petitioners in G.R. No. 181527 are the Central Visayas Fisherfolk
Development Center (FIDEC), a non-stock, nonprofit, non-governmental
organization, established for the welfare of the marginal fisherfolk in
Region VII; and Cerilo D. Engarcial (Engarcial), Ramon Yanong (Yanong)
and Francisco Labid (Labid), in their personal capacities and as
representatives of the subsistence fisherfolk of the municipalities of
Aloguinsan and Pinamungajan, Cebu.
Petitioners’ contentions:
• Protesting the adverse ecological impact of JAPEX's oil
exploration activities in the Tañon Strait, petitioners Resident
Marine Mammals and Stewards aver that a study made after the
seismic survey showed that the fish catch was reduced
drastically by 50 to 70 percent.
o They claim that before the seismic survey, the
average harvest per day would be from 15 to 20 kilos;
but after the activity, the fisherfolk could only catch
an average of 1 to 2 kilos a day. They attribute this
"reduced fish catch" to the destruction of the
''payao," also known as the "fish aggregating device"
or "artificial reef."31 Petitioners Resident Marine
Mammals and Stewards also impute the incidences
of "fish kill"32observed by some of the local fisherfolk
to the seismic survey.
• And they further allege that the ECC obtained by private
respondent JAPEX is invalid because public consultations and
discussions with the affected stakeholders, a pre-requisite to
the issuance of the ECC, were not held prior to the ECC's
issuance.
Public Respondents contend that:
• Resident Marine Mammals and Stewards have no legal standing
to file the present petition;
• SC-46 does not violate the 1987 Constitution and the various
laws cited in the petitions; that the ECC was issued in
accordance with existing laws and regulations;
• that public respondents may not be compelled by mandamus
to furnish petitioners copies of all documents relating to SC-46;
and that all the petitioners failed to show that they are entitled
to injunctive relief.
• the issues raised in these petitions have been rendered moot
and academic by the fact that SC-46 had been mutually
terminated by the parties thereto effective June 21, 2008
Issues:
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1. Whether or not petitioners have Locus Standi to file this Petition.
(The issue of whether or not animals or even inanimate objects
should be given legal standing in actions before courts of law). [Yes,
the Stewards have legal standing.]
2. Whether or not SC-46 is violative of the 1987 Constitution.
3. Whether or not the on-going exploration and proposed exploitation
for oil and natural gas at, around, and underneath the marine waters
of the Tañon Strait protected seascape is inconsistent with the
Philippine commitments to international environmental laws and
instruments (as to legality of SC-46). [Yes, they are not legal]
4. Whether or not the issuance of the Environmental Compliance
Certificate (ECC) in environmentally critical areas and habitats of
marine wildlife and endangered species is legal and proper. [No]
Ruling:
I report it to Congress to give that branch of government an
The Stewards have legal standing.
Note: Section 1, Rule 3 of the Rules of Court requires parties to an action to be either
natural or juridical persons.
Even before the Rules of Procedure for Environmental Cases became
effective, this Court had already taken a permissive position on the issue
of locus standi in environmental cases.
In Oposa, we allowed the suit to be brought in the name of generations
yet unborn "based on the concept of intergenerational responsibility
insofar as the right to a balanced and healthful ecology is concerned."
Furthermore, we said that the right to a balanced and healthful ecology, a
right that does not even need to be stated in our Constitution as it is
assumed to exist from the inception of humankind, carries with it the
correlative duty to refrain from impairing the environment.
In light of the foregoing, the need to give the Resident Marine Mammals
legal standing has been eliminated by our Rules, which allow any Filipino
citizen, as a steward of nature, to bring a suit to enforce our environmental
laws. It is worth noting here that the Stewards are joined as real parties in
the Petition and not just in representation of the named cetacean species.
The Stewards, Ramos and Eisma-Osorio, having shown in their petition
that there may be possible violations of laws concerning the habitat of the
Resident Marine Mammals, are therefore declared to possess the legal
standing to file this petition.
Further the Court held that former President Macapagal-Arroyo cannot
be impleaded as one of the petitioners in this suit. Thus, her name is
stricken off the title of this case.
II
SC-46 is indeed null and void for noncompliance with the
requirements of the 1987 Constitution.
The phrase “agreements involving either technical or financial assistance”,
referred to in paragraph 4, are in fact service contracts. But unlike those
of the 1973 variety, the new ones are between foreign corporations acting
as contractors on the one hand; and on the other, the government as
principal or "owner" of the works. In the new service contracts, the foreign
contractors provide capital, technology and technical know-how, and
managerial expertise in the creation and operation of large-scale
mining/extractive enterprises; and the government, through its agencies
(DENR, MGB), actively exercises control and supervision over the entire
operation.
In summarizing the matters discussed in the ConCom, we established that
paragraph 4, with the safeguards in place, is the exception to paragraph
1, Section 2 of Article XII.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
The following are the safeguards this Court enumerated in La Bugal:
Such service contracts may be entered into only with respect to minerals,
petroleum and other mineral oils. The grant thereof is subject to several
safeguards, among which are these requirements:
1. The service contract shall be crafted in accordance with a general law
that will set standard or uniform terms, conditions and requirements,
presumably to attain a certain uniformity in provisions and avoid the
possible insertion of terms disadvantageous to the country.
2. The President shall be the signatory for the government because,
supposedly before an agreement is presented to the President for
signature, it will have been vetted several times over at different
levels to ensure that it conforms to law and can withstand public
scrutiny.
3. Within thirty days of the executed agreement, the President shall
opportunity to look over the agreement and interpose timely
objections, if any
Adhering to the aforementioned guidelines, this Court finds that SC-46 is
indeed null and void for noncompliance with the requirements of the 1987
Constitution.
1. The disposition, exploration, development, exploitation, and
utilization of indigenous petroleum in the Philippines are governed
by Presidential Decree No. 87 or the Oil Exploration and
Development Act of 1972. Consequently, we find no merit in
petitioners' contention that SC-46 is prohibited on the ground that
there is no general law prescribing the standard or uniform terms,
conditions, and requirements for service contracts involving oil
exploration and extraction.
2. President was not the signatory to SC-46 and the same was not
submitted to Congress
While the requirements in executing service contracts in paragraph 4,
Section 2 of Article XII of the 1987 Constitution seem like mere formalities,
they are the safeguards put in place by the framers of the Constitution to
"eliminate or minimize the abuses prevalent during the martial law
regime.” They are requirements placed, not just in an ordinary statute, but
in the fundamental law, the non-observance of which will nullify the
contract
III
Contention: The public respondents argue that they had complied with
the procedures in obtaining an ECC103 and that SC-46 falls under the
exceptions in Section 14 of the NIP AS Act, due to the following reasons:
1. The Tañon Strait is not a strict nature reserve or natural park;
2. Exploration is only for the purpose of gathering information on
possible energy resources; and
3. Measures are undertaken to ensure that the exploration is being
done with the least damage to surrounding areas.
Held: We do not agree with the arguments raised by the public
respondents.
Sections 12 and 14 of the NIPAS Act read:
Section 12. Environmental Impact Assessment. - Proposals for
activities which are outside the scope of the management plan for
protected areas shall be subject to an environmental impact assessment
as required by law before they are adopted, and the results thereof shall
be taken into consideration in the decision-making process.
No actual implementation of such activities shall be allowed without the
required Environmental Compliance Certificate (ECC) under the
Philippine Environmental Impact Assessment (EIA) system. In instances
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where such activities are allowed to be undertaken, the proponent shall
plan and carry them out in such manner as will minimize any adverse
effects and the preventive and remedial action when appropriate. The
proponent shall be liable for any damage due to lack of caution or
indiscretion.
Section 14. Survey for Energy Resources. - Consistent with the policies
declared in Section 2 hereof, protected areas, except strict nature
reserves and natural parks, may be subjected to exploration only for the
purpose of gathering information on energy resources and only if such
activity is carried out with the least damage to surrounding areas.
Surveys shall be conducted only in accordance with a program approved
by the DENR, and the result of such surveys shall be made available to
the public and submitted to the President for recommendation to
Congress. Any exploitation and utilization of energy resources found
within NIP AS areas shall be allowed only through a law passed by
Congress.
The rationale for such additional requirements are incorporated m Section
2 of the NIPAS Act, to wit:
Section 2. Declaration of Policy - Cognizant of the profound impact of
man's activities on all components of the natural environment
particularly the effect of increasing population, resource exploitation and
industrial advancement and recognizing the critical importance of
protecting and maintaining the natural biological and physical diversities
of the environment notably on areas with biologically unique features to
sustain human life and development, as well as plant and animal life, it is
hereby declared the policy of the State to secure for the Filipino people
of present and future generations the perpetual existence of all native
plants and animals through the establishment of a comprehensive
system of integrated protected areas within the classification of national
park as provided for in the Constitution. It is hereby recognized that
these areas, although distinct in features, possess common ecological
values that may be incorporated into a holistic plan representative of our
natural heritage; that effective administration of this area is possible only
through cooperation among national government, local government
and concerned private organizations; that the use and enjoyment of
these protected areas must be consistent with the principles of biological
diversity and sustainable development. To this end, there is hereby
established a National Integrated Protected Areas System (NIPAS), which
shall encompass outstandingly remarkable areas and biologically
important public lands that are habitats of rare and endangered species
of plants and animals, biogeographic zones and related ecosystems,
whether terrestrial, wetland or marine, all of which shall be designated
as "protected areas."
Note: The respondents' subsequent compliance with the EISS for the
second sub-phase of SC-46 cannot and will not cure this violation.
Section 9 of Presidential Decree No. 1586 provides for the penalty
involving violations of the ECC requirement:
Section 9. Penalty for Violation. - Any person, corporation or
partnership found violating Section 4 of this Decree, or the terms and
conditions in the issuance of the Environmental Compliance Certificate,
or of the standards, rules and regulations issued by the National
Environmental Protection Council pursuant to this Decree shall be
punished by the suspension or cancellation of his/its certificates and/or
a fine in an amount not to exceed Fifty Thousand Pesos (₱50,000.00) for
every violation thereof, at the discretion of the National Environmental
Protection Council.
Violations of the NIP AS Act entails the following fines and/or
imprisonment under Section 21:
Section 21. Penalties. - Whoever violates this Act or any rules and
regulations issued by the Department pursuant to this Act or whoever is
found guilty by a competent court of justice of any of the offenses in the
preceding section shall be fined in the amount of not less than Five
thousand pesos (₱5,000) nor more than Five hundred thousand pesos
(₱500,000), exclusive of the value of the thing damaged or imprisonment
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
for not less than one (1) year but not more than six (6) years, or both, as
determined by the court: Provided, that, if the area requires rehabilitation
or restoration as determined by the court, the offender shall be required
to restore or compensate for the restoration to the damages: Provided,
further, that court shall order the eviction of the offender from the land
and the forfeiture in favor of the Government of all minerals, timber or
any species collected or removed including all equipment, devices and
firearms used in connection therewith, and any construction or
improvement made thereon by the offender. If the offender is an
association or corporation, the president or manager shall be directly
responsible for the act of his employees and laborers: Provided, finally,
that the DENR may impose administrative fines and penalties consistent
with this Act.
SC-46 was not executed for the mere purpose of gathering information
on the possible energy resources in the Tañon Strait as it also provides for
the parties' rights and obligations relating to extraction and petroleum
production should oil in commercial quantities be found to exist in the
area. While Presidential Decree No. 87 may serve as the general law upon
which a service contract for petroleum exploration and extraction may be
authorized, the exploitation and utilization of this energy resource in
the present case may be allowed only through a law passed by
Congress, since the Tañon Strait is a NIPAS area.Since there is no such
law specifically allowing oil exploration and/or extraction in the
Tañon Strait, no energy resource exploitation and utilization may be
done in said protected seascape.
Ban aerial spray (precautionary principle)
20 Reasons to Ban Aerial Spraying in Davao City
1. All pesticides are hazardous since they are made of chemicals
designed to kill or inhibit the growth of an organism considered as
pest by humans. They can kill humans too.
2. According to the National Research Council in the US, only 10% of
pesticides in common use have been adequately assessed for
hazards. We do not know the long-term effects of most of them.
Pesticides are like time bombs. They can kill a lot of people. In fact
according to the World Health Organization and United Nations
Environment Programme, as many as 25 million people are seriously
poisoned by pesticides every year.
3. The chemical identities of many of the inert ingredients, which make
up 80-90% by weight of a pesticide, have not been made known to
the general public because they are classified as business trade
secrets. The US Environment Protection Agency (EPA) is now
evaluating these inert ingredients and it has labeled 100 of them “of
known or potential toxicological concern”. But until now the general
public and even authorities still has no toxicity information on most
inert ingredients used in pesticides.
4. The 1,820 so called inert ingredients (such as chlorinated
hydrocarbon solvents) in pesticides may not kill pests but many of
them may be active chemically or biologically in or on other
organisms, including humans and various wildlife species.
5. Stephan Muller and Thomas Bucheli of the Swiss Federal Institute for
Environmental Science showed in their research that pesticides could
also evaporate and become absorbed into clouds. The highest
concentrations of such pollutants are found in the first rainfall after
long dry periods. There are still people who get their drinking water
from rain.
6. Only 1-2% of the sprayed chemicals actually reach the target pests.
And the US National Research Council characterizes the amount of
aerial drift as “considerable” – from 5% under optimal-low wind
conditions to 60% under more typical conditions.
7. In virtually every study available and reviewed in the Journal of
Pesticide Reform (16 articles), pesticides were detected as far away
from the area of application as samples were taken. “a predictable
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percentage of spray will transport potentially as far as 2 or more
miles from the treatment site” according to a 1994 report from the
US-EPA Ecological Effects Branch.
8. Drift can contaminate open/exposed bodies of water such as river,
wetlands and springs where people get drinking water. Some houses
within plantation areas still depend on rainwater. Spray drifts
contaminate their roofs where they collect rainwater.
9. Some of the fungicides used by banana plantations are banned in
other countries like tridemorph is banned in UK because it can cause
birth defects. It is not registered in the US, Canada, Denmark, Finland,
Netherlands, Portugal, New Zealand, Uganda, Tanzania, Nigeria,
Madagascar, Gambia, Chad, Cape Verde, Cameroon and Burkina
Faso. Another fungicide still used in Davao is Chlorothalonil, which
Chiquita in 1988 voluntarily took off their approved list because of
worker safety concerns and its toxicity to aquatic life. It is banned in
Sweden and not registered in Netherlands.
10. Although mancozeb, the most commonly used fungicide during
aerial spraying is not considered highly toxic in acute exposure, it is
a probable human carcinogen, meaning there is sufficient
documentation of the carcinogenic potential in animal studies. It is
also listed as a cancer-causing chemical by California’s Office of
Health Hazard Assessment under Proposition 65. Mancozeb is
converted into ETU or ethylenethiourea as degradation product or
metabolite. It is an acknowledged thyroid toxin, known to cause birth
defects and tumors. Experimental evidence suggests mancozeb may
cause mutations in chromosomes. In a reproductive toxicity test,
pituitary abnormalities and thyroid and kidney problems were
observed. Due to this and other evidence, mancozeb is considered
endocrine disruptor and known skin sensitizers, causing allergic and
contact dermatitis in humans. It is not registered in Chad, Gambia,
Burkina Faso, Nigeria; restricted in Sweden and banned in Libya.
11. In California where pesticide illness reporting is more complete than
in other states or in other countries like the Philippines, over 350
illnesses and injuries were reported as a result of drift in 1991.
12. A recent Comprehensive Review of Pesticide Research by the Ontario
College of Family Physicians (OCFP) highlights link between pesticide
exposure and serious illnesses and diseases with children as
particularly vulnerable. And there are people living within the
plantations where aerial spraying is practiced in Davao (Mandug,
Tigatto, Tamayong, Subasta, Sirib, Dacudao, and Manuel Guianga).
Thus, allowing aerial spraying is tantamount to spraying those
people directly with pesticides.
13. Most fungicides are very toxic to aquatic life such as fish and some
aquatic invertebrates.
14. There is no strong buffer zone in the areas where aerial spraying is
carried out. Buffer zones are important to protect communities and
water sources such as springs and rivers. Without a properly planted
buzzer zone, people and water sources will continue to be exposed
to the hazards of pesticide drifts.
15. There is still a need to collect more and better data on the ecological
and health effects of a mixture of pesticides that are being sprayed
by plantations. Current registration and regulation system is based
on exposure to a single pesticide and scientists to date have no
effective and affordable way to study the effects of multiple
exposures to various pesticides.
16. Banning aerial spray would be one of the few examples of a pollution
prevention or Precautionary Principle. The Precautionary Principle is
still the best way to protect human health and the environment.
Given the nature of pesticides, they are toxic chemicals designed to
kill thus, they have inherent characteristics to harm. Therefore
following the precautionary principle and taking the side of caution,
it is just right to ban aerial spraying of pesticides to be safe.
Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel
17. Regulating aerial spray is not enough and hard to monitor
considering that the Fertilizer and Pesticide Authority has only 2 staff
for the entire city.
18. It is not true that prohibiting aerial spray will kill the banana
industry. A classic example is the province of Bukidnon where there
are also plantations of banana and pineapple and not one company
is practicing aerial spray yet they continue to earn profits as
evidenced by their continued operation.
19. The call to ban aerial spraying of pesticides is a worldwide trend – in
Ecuador, Alaska, Maine (USA), Victoria (Canada), New Zealand, India
and some countries in Europe.
20. Aerial spraying of pesticides is already banned in some
countries. Total ban exist currently in Denmark, Estonia, Slovenia,
with partial bans in Italy, Cyprus, Austria and Belgium.
What is a drift?
The US EPA defines spray drift as the physical movement of a pesticide
through the air at the time of application or soon thereafter, to any site
other than that intended for application (often referred to as off target).
Prepared by IDIS (May 2005)
Lawyers Back Davao Ordinance Versus Aerial Spraying
The Sentro ng Alternatibong Lingap Panlegal (Saligan), a national law
group, asserts that there is no law that would be affected by the proposed
ordinance banning aerial spraying, a fact that gives the Davao City
government a wide space for local legislation.
The absence of a national law on aerial spraying has already been
repeatedly stressed by officials of the Fertilizer and Pesticide Authority in
several instances. No less than Dr. Norito Gicana, executive director of
FPA, said in a letter that there is no specific law, circular or administrative
order on aerial spraying.
Saligan, in maintaining the constitutionality of the proposed ordinance,
said the only law created regarding pesticides is the one that resulted in
the creation of FPA. The law, however, is limited to which kinds of
chemicals should be available in the market for agricultural usage.
We agree that the mode of application is secondary to the form of
substance. However, no national law governs this activity, Saligan-
Mindanao said in a position paper signed by lawyers Raissa Jajurie, Jason
Christopher Co, Raymond Salas, Rosalinda Torrefranca, and Maria Julita
Asis.
Saligan is a legal resource nongovernment organization doing alternative
or developmental legal assistance with farmers, fisherfolk, labor, urban
poor, Moro and indigenous peoples on issues of local governance, peace
and environment.
The group said that the proposed ordinance banning aerial spraying in
the city will test the city governments readiness and will to exercise its
police power articulated under the General Welfare Clause of the Local
Government Code of 1991.
One of the issues raised by some of the local lawmakers is the
constitutionality of the proposed ordinance.
The group said that the General Welfare Clause relates to ordinances and
regulations as maybe necessary to carry into effect and discharge the
powers and duties conferred upon the city council by law.
This power authorizes such ordinances as shall seem necessary and proper
to provide for the health and safety, promote the prosperity, improve the
morals, peace, good order, comfort, and convenience of the city and the
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 Environmental Law Reviewer
from the discussions and syllabus of
Atty. Jeffrey Jefferson Coronel

inhabitants thereof, and for the protection of property therein, the group not only by lobby efforts of interest groups, but also from other areas —
said. locally and internationally.

The group said that the tests of a valid ordinance are well established. The
proposed ordinance, for one, does not contravene the Constitution or any
statute; it is not unfair and oppressive; not partial and discriminatory; does
not prohibit but regulate trade; general and consistent with public policy;
and it is reasonable.
Does it prohibit trade? Definitely not as it merely bans an activity of an
agricultural entity and not prohibit any trade. Agricultural entities can still
perform its business even without an aerial spraying activity, the group
said.
We cannot undermine the urgency of the matter as the state of health of
the people and the environment is at risk in this case. Davao city is actually
trailblazing on this mattermost importantly, we are all accountable to the
people of Davao, whose interest is to preserve the bounty of the harvest
and the richness of our nature, for the next generations of Davaoenos and
those yet unborn, the group said.
Fin.

The Supreme Court has consistently ruled in favor of local government

units asserting their power to prohibit some activities which the LGU
believes to be harmful to its inhabitants and the environment, the group
added.

The group cited the 1992 Tatel v. Municipality of Virac case where the
court concluded that a municipality may, by way of an ordinance,
prohibited the construction of warehouses which store inflammable
product near houses so as to protect lives and property and thereafter
enforce a resolution declaring a subject warehouse a public nuisance and
direct the owners to remove and transfer the warehouse.

Citing another case, Tano v. Socrates, the Supreme Court declared as

constitutional the city and province ordinances of Puerto Princesa and
Palawan, respectively banning the shipment of all live fish and lobster
outside their respective jurisdictions and explain that the general welfare
clause provisions shall be liberally interpreted to give more powers to the
LGU.

In that case, the Supreme Court also noted that there is a specific mention
in the local government code which sought to give flesh and blood to the
constitutionality of guaranteed right of the people to a balanced and
healthy environment.
When we heal the world,
Former Chief Justice Hilario Davide, when he wrote the decision, said we
commend the Sangguniang Panlungsod for exercising the requisite
🌿
we heal ourselves.

political will to enact urgently needed legislation to protect and enhance

the environment, thereby sharing in the herculean task of arresting the
tide of ecological destruction. We hope that other LGUs shall not be
roused from lethargy and adopt a more vigilant stand in the battle against
the decimation of our legacy to the future generations. At this time, the
repercussion of any further delay in their response may prove disastrous,
if not, irreversible.

These cases reflect the encompassing power of the city and its council as
its basis in enforcing a ban on aerial spraying. Aside from that, the council
should be guided by the precautionary principle in international
environmental laws, the group said.

This principle states that local decision makers should take immediate
preventive action using the best available knowledge, in situations where
there is reason to think that something is causing a potentially severe or
irreparable environmental harm — even in the absence of conclusive
scientific evidence establishing a causal link. Let us not put the burden on
the environment on this case, but instead heed on the call to end this
development pressure, the group added.

If the City Council will pass the ordinance, the group said, it will again
become an additional feat for Davao as it is being watched closely now,

Environmental Law | Page 115

Compiled and edited by Aila Ampie
Special contribution by Louis Palma Gil