G.R. No.

101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by their parents ANTONIO and
RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO,
AMANDA SALUD and PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and NIDA FLORES,
GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION,
all surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor,
represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents JOSE and
MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO,
JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA, minor, represented by his
parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE
GABRIELLE, all surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN,
MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors, represented by their parents MARIO and HAYDEE KING,
DAVID, FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and
TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented by their parents ANTONIO and
MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors, represented by their parents MARIO and
LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and represented by their parents
RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented
by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed
BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL
NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of Environment and Natural
Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.
power, and (k) the reduction of the earth's capacity to process carbon dioxide gases which has led to perplexing and catastrophic climatic
changes such as the phenomenon of global warming, otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so capable of unquestionable
demonstration that the same may be submitted as a matter of judicial notice. This notwithstanding, they expressed their intention to present
expert witnesses as well as documentary, photographic and film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests constituting roughly 53% of
the country's land mass.
9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said rainforests or four per cent
(4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left, barely 2.8% of the entire land
mass of the Philippine archipelago and about 3.0 million hectares of immature and uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors have granted timber license agreements ('TLA's') to various
corporations to cut the aggregate area of 3.89 million hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per hour — nighttime, Saturdays,
Sundays and holidays included — the Philippines will be bereft of forest resources after the end of this ensuing decade, if not earlier.

DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which the petitioners dramatically
associate with the twin concepts of "inter-generational responsibility" and "inter-generational justice." Specifically, it touches on the issue of
whether the said petitioners have a cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the
unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro Manila) of the Regional Trial Court
(RTC), National Capital Judicial Region. The principal plaintiffs therein, now the principal petitioners, are all minors duly represented and
joined by their respective parents. Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-
stock and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action geared for the protection of our
environment and natural resources. The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of
Environment and Natural Resources (DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was
subsequently ordered upon proper motion by the petitioners. 1 The complaint 2 was instituted as a taxpayers' class suit 3 and alleges that the
plaintiffs "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." 4 Consequently, it is prayed for that judgment be rendered:
13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this continued trend of deforestation to
the plaintiff minor's generation and to generations yet unborn are evident and incontrovertible. As a matter of fact, the environmental damages
enumerated in paragraph 6 hereof are already being felt, experienced and suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest stands will work great damage
and irreparable injury to plaintiffs — especially plaintiff minors and their successors — who may never see, use, benefit from and enjoy this
rare and unique natural resource treasure.
This act of defendant constitutes a misappropriation and/or impairment of the natural resource property he holds in trust for the benefit of
plaintiff minors and succeeding generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled to protection by the State in
its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2, 1990, plaintiffs served upon
defendant a final demand to cancel all logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious damage and extreme prejudice of
plaintiffs.

. . . ordering defendant, his agents, representatives and other persons acting in his behalf to — 18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights of plaintiffs, especially
plaintiff minors who may be left with a country that is desertified (sic), bare, barren and devoid of the wonderful flora, fauna and indigenous
(1) Cancel all existing timber license agreements in the country; cultures which the Philippines had been abundantly blessed with.

(2) Cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. 19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy enunciated in the Philippine
Environmental Policy which, in pertinent part, states that it is the policy of the State —
and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5
(a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable
The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land area of thirty million harmony with each other;
(30,000,000) hectares and is endowed with rich, lush and verdant rainforests in which varied, rare and unique species of flora and fauna may
be found; these rainforests contain a genetic, biological and chemical pool which is irreplaceable; they are also the habitat of indigenous (b) to fulfill the social, economic and other requirements of present and future generations of Filipinos and;
Philippine cultures which have existed, endured and flourished since time immemorial; scientific evidence reveals that in order to maintain a
balanced and healthful ecology, the country's land area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover (c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and well-being. (P.D. 1151, 6 June
and forty-six per cent (46%) for agricultural, residential, industrial, commercial and other uses; the distortion and disturbance of this balance 1977)
as a consequence of deforestation have resulted in a host of environmental tragedies, such as (a) water shortages resulting from drying up of
the water table, otherwise known as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of the water table as a result of the 20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory to the Constitutional policy of
intrusion therein of salt water, incontrovertible examples of which may be found in the island of Cebu and the Municipality of Bacoor, Cavite, the State to —
(c) massive erosion and the consequential loss of soil fertility and agricultural productivity, with the volume of soil eroded estimated at one
billion (1,000,000,000) cubic meters per annum — approximately the size of the entire island of Catanduanes, (d) the endangering and a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and efficient use of natural resources
extinction of the country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of cultural communities, including the (sic)." (Section 1, Article XII of the Constitution);
disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and consequential destruction of corals and other
aquatic life leading to a critical reduction in marine resource productivity, (g) recurrent spells of drought as is presently experienced by the b. "protect the nation's marine wealth." (Section 2, ibid);
entire country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the floodings of lowlands and
agricultural plains arising from the absence of the absorbent mechanism of forests, (j) the siltation and shortening of the lifespan of multi- c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article XIV, id.);
billion peso dams constructed and operated for the purpose of supplying water for domestic uses, irrigation and the generation of electric
d. "protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of
nature." (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of humankind — the natural law — and violative of plaintiffs' right to
self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than the instant action to arrest the unabated hemorrhage of
the country's vital life support systems and continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on two (2) 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. In their 12 July 1990 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.
On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In the said order, 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.
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. Again, the parents
of the plaintiffs-minors not only represent their children, but have also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their respective Memoranda after the
Office of the Solicitor General (OSG) filed a Comment in behalf of the respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient allegations concerning their
right to a sound environment based on Articles 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No.
192 creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), 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 the concept of man's inalienable right to self-preservation and self-perpetuation embodied in natural law. Petitioners likewise rely on
the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment.
It is further claimed 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.
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. They likewise submit 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.
On the other hand, the respondents 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." Such
allegations, according to them, do not reveal a valid cause of action. They then reiterate 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.
They therefore assert 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.
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. Petitioners' proposition to have all the TLAs indiscriminately cancelled without the requisite hearing
would be violative of the requirements of due process.
Before going any further, We must first focus on some procedural matters. 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, We hereby rule 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. We likewise declare that the plaintiffs 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.
This case, however, has a special and novel element. 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. 9 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. 10 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.
The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the issues raised and arguments adduced
by the parties, We do not hesitate to find for the petitioners and rule against the respondent Judge's challenged order for having been issued
with grave abuse of discretion amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the defendant. For although we believe that
plaintiffs have but the noblest of all intentions, it (sic) fell short of alleging, with sufficient definiteness, a specific legal right they are seeking
to enforce and protect, or a specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes
that the Complaint is replete with vague assumptions and vague conclusions based on unverified data. In fine, plaintiffs fail to state a cause of
action in its Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter before it, being impressed with political color and involving a matter of public policy,
may not be taken cognizance of by this Court without doing violence to the sacred principle of "Separation of Powers" of the three (3) co-
equal branches of the Government.
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. 11
We do not agree 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:
Sec. 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:
Sec. 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 — 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 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. 12
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 irreversiby disrupted.
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, 13 then President Corazon C.
Aquino promulgated on 10 June 1987 E.O. No. 192, 14 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:
Sec. 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.
This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of 1987, 15 specifically in Section 1
thereof which reads:
Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the Filipino people, the full exploration and development as well
as 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, consistent with the necessity of maintaining a sound ecological balance and protecting
and enhancing the quality of the environment and the objective of making the exploration, development and utilization of such natural
resources equitably accessible to the different segments of the present as well as future generations.
(2) The State shall likewise recognize and apply a true value system that takes into account social and environmental cost
implications relative to the utilization, development and conservation of our natural resources.
The above 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. Said section provides:
Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources shall be primarily responsible for the implementation of the
foregoing policy.
(2) It shall, subject to law and higher authority, be 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. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No.
1152 (Philippine Environment Code) were issued. The former "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." 16 As its goal, it speaks of the "responsibilities of each generation as trustee and
guardian of the environment for succeeding generations." 17 The latter statute, 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. 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.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of the other; and its essential elements are legal right of the plaintiff,
correlative obligation of the defendant, and act or omission of the defendant in violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to state a cause of action, 19 the
question submitted to the court for resolution involves the sufficiency of the facts alleged in the complaint itself. No other matter should be
considered; furthermore, the truth of falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted.
The only issue to be resolved in such a case is: admitting such alleged facts to be true, may the court render a valid judgment in accordance
with the prayer in the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the
utmost care and circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of action] lest, by its failure
to manifest a correct appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or recognizes is effectively
nullified. If that happens, there is a blot on the legal order. The law itself stands in disrepute."
After careful examination of the petitioners' complaint, We find 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 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. 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.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a distinguished member of this Court,
says:
The first part of the authority represents the traditional concept of judicial power, involving the settlement of conflicting rights as conferred as
law. The second part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before
forbidden territory, to wit, the discretion of the political departments of the government.
As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule upon even the wisdom of the
decisions of the executive and the legislature and to declare their acts invalid for lack or excess of jurisdiction because tainted with grave
abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or
contract according to the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume
that the issue presented before us was political in nature, we would still not be precluded from revolving it under the expanded jurisdiction
conferred upon us that now covers, in proper cases, even the political question. Article VII, Section 1, of the Constitution clearly provides: . . .
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. 24
We are not persuaded at all; on the contrary, We are 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 . . .
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, 25 this Court held:
. . . 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: 26
. . . 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 [See Sections 3(ee) and 20 of Pres. Decree No. 705,
as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall be passed. 27
cannot be invoked.
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.
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. 28 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, 29 quoted in Philippine American Life Insurance Co. vs. Auditor
General, 30 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. 31
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.
WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged Order of respondent Judge of 18
July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may therefore amend their complaint to implead as
defendants the holders or grantees of the questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur.
Narvasa, C.J., Puno and Vitug, JJ., took no part.
Separate Opinions
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to my mind, is one of the most
important cases decided by this Court in the last few years. The seminal principles laid down in this decision are likely to influence
profoundly the direction and course of the protection and management of the environment, which of course embraces the utilization of all the
natural resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself, what the Court appears to be
saying.
The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and, maintenance of this suit (Decision, pp.
11-12). Locus standi is not a function of petitioners' claim that their suit is properly regarded as a class suit. I understand locus standi to refer
to the legal interest which a plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of "class" here
involved — membership in this "class" appears to embrace everyone living in the country whether now or in the
future — it appears to me that everyone who may be expected to benefit from the course of action petitioners seek to require public
respondents to take, is vested with the necessary locus standi. The Court may be seen therefore to be recognizing a beneficiaries' right of
action in the field of environmental protection, as against both the public administrative agency directly concerned and the private persons or
entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action may be found under any and all
circumstances, or whether some failure to act, in the first instance, on the part of the governmental agency concerned must be shown ("prior
exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for future determination in an appropriate
case.
The Court has also declared that the complaint has alleged and focused upon "one specific fundamental legal right — the right to a balanced
and healthful ecology" (Decision, p. 14). There is no question that "the right to a balanced and healthful ecology" is "fundamental" and that,
accordingly, it has been "constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it cannot be
characterized as "specific," without doing excessive violence to language. It is in fact very difficult to fashion language more comprehensive
in scope and generalized in character than a right to "a balanced and healthful ecology." The list of particular claims which can be subsumed
under this rubic appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from factories and motor
vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories,
mines and whole communities; of dumping of organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate
land after strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other living sea
resources through the use of dynamite or cyanide and other chemicals; contamination of ground water resources; loss of certain species of
fauna and flora; and so on. The other statements pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1,
Title XIV, Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be formulations of policy, as
general and abstract as the constitutional statements of basic policy in Article II, Section 16 ("the right — to a balanced and healthful
ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other hand, a compendious collection of
more "specific environment management policies" and "environment quality standards" (fourth "Whereas" clause, Preamble) relating to an
extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified the particular provision or
provisions (if any) of the Philippine Environment Code which give rise to a specific legal right which petitioners are seeking to enforce.
Secondly, the Philippine Environment Code identifies with notable care the particular government agency charged with the formulation and
implementation of guidelines and programs dealing with each of the headings and sub-headings mentioned above. The Philippine
Environment Code does not, in other words, appear to contemplate action on the part of private persons who are beneficiaries of
implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the constitutional statements above
noted, the Court is in effect saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially
enforceable even in their present form. The implications of this doctrine will have to be explored in future cases; those implications are too
large and far-reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a more specific legal right — a right cast in language of a
significantly lower order of generality than Article II (15) of the Constitution — that is or may be violated by the actions, or failures to act,
imputed to the public respondent by petitioners so that the trial court can validly render judgment granting all or part of the relief prayed for.
To my mind, the Court should be understood as simply saying that such a more specific legal right or rights may well exist in our corpus of
law, considering the general policy principles found in the Constitution and the existence of the Philippine Environment Code, and that the
trial court should have given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to
dismiss.
It seems to me important that the legal right which is an essential component of a cause of action be a specific, operable legal right, rather
than a constitutional or statutory policy, for at least two (2) reasons. One is that unless the legal right claimed to have been violated or
disregarded is given specification in operational terms, defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration — where a specific violation of law or applicable regulation is not alleged or proved, petitioners
can be expected to fall back on the expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of the
Constitution which reads:
Section 1. ...
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. (Emphasis supplied)
When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to health" are combined with remedial
standards as broad ranging as "a grave abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully
submitted, to propel courts into the uncharted ocean of social and economic policy making. At least in respect of the vast area of
environmental protection and management, our courts have no claim to special technical competence and experience and professional
qualification. Where no specific, operable norms and standards are shown to exist, then the policy making departments — the legislative and
executive departments — must be given a real and effective opportunity to fashion and promulgate those norms and standards, and to
implement them before the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements or TLA's petitioners demand public
respondents should cancel, must be impleaded in the proceedings below. It might be asked that, if petitioners' entitlement to the relief
demanded is not dependent upon proof of breach by the timber companies of one or more of the specific terms and conditions of their
concession agreements (and this, petitioners implicitly assume), what will those companies litigate about? The answer I suggest is that they
may seek to dispute the existence of the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus
between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public respondent administrative agency. They
may also controvert the appropriateness of the remedy or remedies demanded by petitioners, under all the circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the environment, including the forest cover of our territory, is of extreme
importance for the country. The doctrines set out in the Court's decision issued today should, however, be subjected to closer examination.

# Separate Opinions
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to my mind, is one of the most
important cases decided by this Court in the last few years. The seminal principles laid down in this decision are likely to influence
profoundly the direction and course of the protection and management of the environment, which of course embraces the utilization of all the
natural resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself, what the Court appears to be
saying.
The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and, maintenance of this suit (Decision, pp.
11-12). Locus standi is not a function of petitioners' claim that their suit is properly regarded as a class suit. I understand locus standi to refer
to the legal interest which a plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of "class" here
involved — membership in this "class" appears to embrace everyone living in the country whether now or in the
future — it appears to me that everyone who may be expected to benefit from the course of action petitioners seek to require public
respondents to take, is vested with the necessary locus standi. The Court may be seen therefore to be recognizing a beneficiaries' right of
action in the field of environmental protection, as against both the public administrative agency directly concerned and the private persons or
entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action may be found under any and all
circumstances, or whether some failure to act, in the first instance, on the part of the governmental agency concerned must be shown ("prior
exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for future determination in an appropriate
case.
The Court has also declared that the complaint has alleged and focused upon "one specific fundamental legal right — the right to a balanced
and healthful ecology" (Decision, p. 14). There is no question that "the right to a balanced and healthful ecology" is "fundamental" and that,
accordingly, it has been "constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it cannot be
characterized as "specific," without doing excessive violence to language. It is in fact very difficult to fashion language more comprehensive
in scope and generalized in character than a right to "a balanced and healthful ecology." The list of particular claims which can be subsumed
under this rubic appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from factories and motor
vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories,
mines and whole communities; of dumping of organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate
land after strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other living sea
resources through the use of dynamite or cyanide and other chemicals; contamination of ground water resources; loss of certain species of
fauna and flora; and so on. The other statements pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1,
Title XIV, Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be formulations of policy, as
general and abstract as the constitutional statements of basic policy in Article II, Section 16 ("the right — to a balanced and healthful
ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other hand, a compendious collection of
more "specific environment management policies" and "environment quality standards" (fourth "Whereas" clause, Preamble) relating to an
extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified the particular provision or
provisions (if any) of the Philippine Environment Code which give rise to a specific legal right which petitioners are seeking to enforce.
Secondly, the Philippine Environment Code identifies with notable care the particular government agency charged with the formulation and
implementation of guidelines and programs dealing with each of the headings and sub-headings mentioned above. The Philippine
Environment Code does not, in other words, appear to contemplate action on the part of private persons who are beneficiaries of
implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the constitutional statements above
noted, the Court is in effect saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially
enforceable even in their present form. The implications of this doctrine will have to be explored in future cases; those implications are too
large and far-reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a more specific legal right — a right cast in language of a
significantly lower order of generality than Article II (15) of the Constitution — that is or may be violated by the actions, or failures to act,
imputed to the public respondent by petitioners so that the trial court can validly render judgment granting all or part of the relief prayed for.
To my mind, the Court should be understood as simply saying that such a more specific legal right or rights may well exist in our corpus of
law, considering the general policy principles found in the Constitution and the existence of the Philippine Environment Code, and that the
trial court should have given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to
dismiss.
It seems to me important that the legal right which is an essential component of a cause of action be a specific, operable legal right, rather
than a constitutional or statutory policy, for at least two (2) reasons. One is that unless the legal right claimed to have been violated or
disregarded is given specification in operational terms, defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration — where a specific violation of law or applicable regulation is not alleged or proved, petitioners
can be expected to fall back on the expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of the
Constitution which reads:
Section 1. ...
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. (Emphasis supplied)
When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to health" are combined with remedial
standards as broad ranging as "a grave abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully
submitted, to propel courts into the uncharted ocean of social and economic policy making. At least in respect of the vast area of
environmental protection and management, our courts have no claim to special technical competence and experience and professional
qualification. Where no specific, operable norms and standards are shown to exist, then the policy making departments — the legislative and
executive departments — must be given a real and effective opportunity to fashion and promulgate those norms and standards, and to
implement them before the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements or TLA's petitioners demand public
respondents should cancel, must be impleaded in the proceedings below. It might be asked that, if petitioners' entitlement to the relief
demanded is not dependent upon proof of breach by the timber companies of one or more of the specific terms and conditions of their
concession agreements (and this, petitioners implicitly assume), what will those companies litigate about? The answer I suggest is that they
may seek to dispute the existence of the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus
between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public respondent administrative agency. They
may also controvert the appropriateness of the remedy or remedies demanded by petitioners, under all the circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the environment, including the forest cover of our territory, is of extreme
importance for the country. The doctrines set out in the Court's decision issued today should, however, be subjected to closer examination.
PRESIDENTIAL DECREE No. 1586
ESTABLISHING AN ENVIRONMENTAL IMPACT STATEMENT SYSTEM, INCLUDING OTHER ENVIRONMENTAL
MANAGEMENT RELATED MEASURES AND FOR OTHER PURPOSES
WHEREAS, the pursuit of a comprehensive and integrated environment protection program necessitates the establishment and
institutionalization of a system whereby the exigencies of socio-economic undertakings can be reconciled with the requirements of
environmental quality;
WHEREAS, the regulatory requirements of environmental Impact Statements and Assessments instituted in pursuit of this national
environmental protection program have to be worked into their full regulatory and procedural details in a manner consistent with the goals of
the program.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution
do hereby order and declare:
Section 1. Policy. It is hereby declared the policy of the State to attain and maintain a rational and orderly balance between socio-economic
growth and environmental protection.
Section 2. Environmental Impact Statement System. There is hereby established an Environmental Impact Statement System founded and
based on the environmental impact statement required, under Section 4 of Presidential Decree No. 1151, of all agencies and instrumentalities
of the national government, including government-owned or controlled corporations, as well as private corporations, firms and entities, for
every proposed project and undertaking which significantly affect the quality of the environment.
Section 3. Determination of Lead Agency. The Minister of Human Settlements or his designated representative is hereby authorized to name
the lead agencies referred to in Section 4 of Presidential Decree No. 1151 which shall have jurisdiction to undertake the preparation of the
necessary environmental impact statements on declared environmentally critical projects and areas. All Environmental Impact Statements
shall be submitted to the National Environmental Protection Council for review and evaluation.
Section 4. Presidential Proclamation of Environmentally Critical Areas and Projects. The President of the Philippines may, on his own
initiative or upon recommendation of the National Environmental Protection Council, by proclamation declare certain projects, undertakings
or areas in the country as environmentally critical. No person, partnership or corporation shall undertake or operate any such declared
environmentally critical project or area without first securing an Environmental Compliance Certificate issued by the President or his duly
authorized representative. For the proper management of said critical project or area, the President may by his proclamation reorganize such
government offices, agencies, institutions, corporations or instrumentalities including the re-alignment of government personnel, and their
specific functions and responsibilities.
For the same purpose as above, the Ministry of Human Settlements shall: (a) prepare the proper land or water use pattern for said critical NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by law, hereby
project(s) or area (s); (b) establish ambient environmental quality standards; (c) develop a program of environmental enhancement or proclaim the following areas and types of projects as environmentally critical and within the scope of the Environmental Impact Statement
protective measures against calamituous factors such as earthquake, floods, water erosion and others, and (d) perform such other functions as System;
may be directed by the President from time to time.
A. Environmentally Critical Projects
Section 5. Environmentally Non-Critical Projects. All other projects, undertakings and areas not declared by the President as environmentally
critical shall be considered as non-critical and shall not be required to submit an environmental impact statement. The National Environmental I. Heavy Industries
Protection Council, thru the Ministry of Human Settlements may however require non-critical projects and undertakings to provide additional
environmental safeguards as it may deem necessary. a. Non-ferrous metal industries
b. Iron and steel mills
Section 6. Secretariat. The National Environmental Protection Council is hereby authorized to constitute the necessary secretariat which will c. Petroleum and petro-chemical industries including oil and gas
administer the Environmental Impact Statement System and undertake the processing and evaluation of environmental impact statements. d. Smelting plants

Section 7. Management and Financial Assistance. The Ministry of Human Settlements is hereby authorized to provide management and II. Resource Extractive Industries
financial support to government offices and instrumentalities placed under its supervision pursuant to this Decree financed from its existing
appropriation or from budgetary augmentation as the Minister of Human Settlements may deem necessary. a. Major mining and quarrying projects
b. Forestry projects
Section 8. Rules and Regulations. The National Environmental Protection Council shall issue the necessary rules and regulations to
implement this Decree. For this purpose, the National Pollution Control Commission may be availed of as one of its implementing arms, 1. Logging
consistent with the powers and responsibilities of the National Pollution Control Commission as provided in P.D. No. 984. 2. Major wood processing projects
3. Introduction of fauna (exotic-animals) in public/private forests
Section 9. Penalty for Violation. Any person, corporation or partnership found violating Section 4 of this Decree, or the terms and conditions 4. Forest occupancy
in the issuance of the Environmental Compliance Certificate, or of the standards, rules and regulations issued by the National Environmental 5. Extraction of mangrove products
Protection Council pursuant to this Decree shall be punished by the suspension or cancellation of his/its certificate or and/or a fine in an 6. Grazing
amount not to exceed Fifty Thousand Pesos (P50,000.00) for every violation thereof, at the discretion of the National Environmental
Protection Council. c. Fishery Projects

Section 10. Environmental Revolving Fund. Proceeds from the penalties prescribed in the preceding Section 9 and other penalties imposed by 1. Dikes for/and fishpond development projects
the National Pollution Control Commission as authorized in P.D. 984, shall be automatically appropriated into an Environment Revolving
Fund hereby created as an exemption to P.D. 711 and P.D. 1234. The fund shall be used exclusively for the operation of the National III. Infrastructure Projects
Environmental Protection Council and the National Pollution Control Commission in the implementation of this Decree. The rules and
regulations for the utilization of this fund shall be formulated by the Ministry of Human Settlements and submitted to the President for a. Major dams
approval. b. Major power plants (fossil-fueled, nuclear fueled, hydroelectric or geothermal)
c. Major reclamation projects
Section 11. Repealing Clause. The Inter-Agency Advisory Council of the National Pollution Control Commission created under Section 4 of d. Major roads and bridges
P.D. 984 is hereby abolished and its powers and responsibilities are forthwith delegated and transferred to the Control of the National
Environmental Protection Council. B. Environmentally Critical Areas

All other laws, decrees, executive orders, rules and regulations inconsistent herewith are hereby repealed, amended or modified accordingly. 1. All areas declared by law as national parks, watershed reserves, wildlife preserves and sanctuaries;

Section 12. Effectivity Clause. This Decree shall take effect immediately. 2. Areas set aside as aesthetic potential tourist spots;

DONE in the City of Manila, this 11th day of June, in the year of Our Lord, nineteen hundred and seventy-eight. 3. Areas which constitute the habitat for any endangered or threatened species of indigenous Philippine Wildlife (flora and fauna);

National Government Portal – Edited at the Office of the President of the Philippines Under Commonwealth Act No. 638 4. Areas of unique historic, archaeological, or scientific interests;
Proclamation No. 2146, s. 1981
Signed on December 14, 1981 5. Areas which are traditionally occupied by cultural communities or tribes;
MALACAÑANG
MANILA 6. Areas frequently visited and/or hard-hit by natural calamities (geologic hazards, floods, typhoons, volcanic activity, etc.);

BY THE PRESIDENT OF THE PHILIPPINES 7. Areas with critical slopes;

PROCLAMATION NO. 2146 8. Areas classified as prime agricultural lands;

PROCLAIMING CERTAIN AREAS AND TYPES OF PROJECTS AS ENVIRONMENTALLY CRITICAL AND WITHIN THE SCOPE 9. Recharged areas of aquifers;
OF THE ENVIRONMENTAL IMPACT STATEMENT SYSTEM ESTABLISHED UNDER PRESIDENTIAL DECREE NO. 1586.
10. Water bodies characterized by one or any combination of the following conditions;
WHEREAS, it is the national policy to attain and maintain a rational and orderly balance between socio-economic growth and environmental
conservation and protection; a. tapped for domestic purposes
b. within the controlled and/or protected areas declared by appropriate authorities
WHEREAS, there is an urgent need to bring about an intensive, integrated program of environmental protection through a requirement of c. which support wildlife and fishery activities
environmental impact assessments and statements;
11. Mangrove areas characterized by one or any combination of the following conditions:
WHEREAS, the environmental impact statement system established under Presidential Decree No, 1586 calls for the proper management of
environmentally critical areas; a. with primary pristine and dense young growth;
b. adjoining mouth of major river systems;
WHEREAS, the pursuit of a comprehensive and integrated environmental protection program necessitates the establishment and c. near or adjacent to traditional productive fry or fishing grounds;
institutionalization of a system whereby the exigencies of socio-economic undertakings can be reconciled with the requirements of d. which act as natural buffers against shore erosion, strong winds and storm floods;
environmental protection and conservation; e. on which people are dependent for their livelihood.

WHEREAS, the national leadership mandates the establishment of such a system to regulate and minimize the environmental impacts of 12. Coral reefs characterized by one or any combinations of the following conditions:
projects and undertakings which may significantly affect the quality of the environment in Presidential Decree No. 1586; and
a. With 50% and above live coralline cover;
WHEREAS, in the effective implementation of such a system, there arises the need to identify and declare certain projects determined to be b. Spawning and nursery grounds for fish;
environmentally critical; c. which act as natural breakwater of coastlines.

This Proclamation shall take effect immediately.

IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed.
Done in the City of Manila, this 14th day of December, in the year of Our Lord, nineteen hundred and eighty-one.
(Sgd.)FERDINAND E. MARCOS
President of the Philippines
By the President:
(Sgd.) JUAN C. TUVERA
Presidential Executive Assistant
JURISPRUDENCE
G.R. No. 160932 January 14, 2013
SPECIAL PEOPLE, INC. FOUNDATION, REPRESENTED BY ITS CHAIRMAN, ROBERTO P. CERICOS, Petitioner,
vs.
NESTOR M. CANDA, BIENVENIDO LIPA YON, JULIAN D. AMADOR, BOHOL PROVINCIAL CHIEF, REGIONAL DIRECTOR,
AND NATIONAL DIRECTOR, RESPECTIVELY, ENVIRONMENTAL MANAGEMENT BUREAU, DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES, AND THE SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES, ALL SUED IN BOTH THEIR OFFICIAL AND PRIVATE CAPACITIES, Respondents.
DECISION
BERSAMIN, J.:
The peremptory writ of mandamus is an extraordinary remedy that is issued only in extreme necessity, and the ordinary course of procedure is
powerless to afford an adequate and speedy relief to one who has a clear legal right to the performance of the act to be compelled.
Antecedents
The petitioner was a proponent of a water-resource development and utilization project in Barangay Jimilia-an in the Municipality of Loboc,
Bohol that would involve the tapping and purifying of water from the Loboc River, and the distribution of the purified water to the residents
of Loboc and six other municipalities. The petitioner applied for a Certificate of Non-Coverage (CNC) with the Environmental Management
Bureau (EMB) of the Department of Environment and Natural Resources (DENR), Region 7, seeking to be exempt from the requirement of
the Environmental Compliance Certificate (ECC) under Section 4 of Presidential Decree No. 1586 on the following justifications, to wit:
1) The whole project simply involves tapping of water from the Loboc River, filtering and purifying it, and distributing the same to the
consumers in the covered towns;
2) From the source to the filtration plant, then to the purifier stations, then finally to the consumers’ households, water flows through steel
pipes;
3) The filtration and purifying process employs the latest technology—"electrocatalytic"—internationally accepted for safety and
environment friendliness;
4) No waste is generated, as the electrocatalytic process dissolves all impurities in the water;
5) The project involves no destruction [n]or harm to the environment. On the other hand, it is environment friendly.1
Upon evaluating the nature and magnitude of the environmental impact of the project, respondent Nestor M. Canda, then Chief of EMB in
Bohol, rendered his findings in a letter dated December 4, 2001, as follows:
1) The project is located within a critical area; hence, Initial Environmental Examination is required.
2) The project is socially and politically sensitive therefore proof of social acceptability should be established. Proper indorsement from the
Protected Area Management Bureau or PAMB should be secured.2 (Emphasis supplied)
On January 11, 2002, the petitioner appealed Canda’s findings to respondent EMB Region 7 Director Bienvenido L. Lipayon (RD Lipayon),
claiming that it should also be issued a CNC because the project was no different from the Loboc-Loay waterworks project of the Department
of Public Works and Highways (DPWH) that had recently been issued a CNC.3
On April 3, 2002, RD Lipayon notified the petitioner that its documents substantially complied with the procedural aspects of the EMB’s
review, and that the application was assigned EMB-DENR-7 Control No. CNC-02-080 for easy reference in case of follow-up and
submission of additional requirements.4
Later on, RD Lipayon informed the petitioner that an Initial Environmental Examination document was required for the project due to its
significant impact in the area.5
On August 26, 2002, RD Lipayon required the petitioner to submit the following documents to enable the EMB to determine whether the
project was within an environmentally critical area or not, to wit:
1. Certification from DENR, Provincial Environment and Natural Resources Office (PENRO) that it is not within areas declared by law as
national parks, watershed reserves, wildlife preservation area, sanctuaries and not within the purview of Republic Act No. 7586 or the
National Integrated Protected Areas System (NIPAS) Act, and other issuances including international commitments and declarations;
2. Certification from the DENR Regional Office/ PENRO [that] the areas within the project do not constitute the habitat for any endangered
or threatened species or indigenous wildlife (Flora and Fauna).
3. Certification from the following:
3.1. Philippine Atmospheric Geophysical and Astronomical Services Administration (PAGASA) that the area is not frequently visited or
hard-hit by typhoons. This shall refer to all areas where typhoon signal no. 3 not hoisted for at least twice a year during the last five (5) years
prior to the year of reckoning. Years to be considered shall be from January 1995 to December 2001.
3.2. Philippine Institute of Volcanology and Seismology (PHIVOLCS) that the area was not subjected to an earthquake of at least intensity
VII in the Rossi-Forel scale or its equivalent and hit by tsunamis during the period of 1638 until the year 2001.
3.3. PHIVOLCS that the area was not subjected to earthquakes of at least intensity VII in the Rossi-Forel scale or its equivalent during the
period of 1949 until the year 2001.
3.4. PAGASA that the area is not storm surge-prone.
3.5. Mines and Geosciences Bureau Region 7 (MGB 7) that the area is not located along fault lines or within fault zones and not located in
critical slope.
3.6. City Mayor and/or City Engineers Office that the area is not flood prone.
3.7. Network of Protected Areas for Agriculture (NPAA) of the Bureau of Soils and Water Management (BSWM) that the area is not
classified as Prime Agricultural Land.
4. Certification from the Provincial Tourism Office or its equivalent office that areas in your project are not set-aside as aesthetic potential
tourist spot.
5. Certification from the National Water Resources Board (NWRB) that areas within your project are not recharged areas of aquifer.
6. Certification from DENR regional Office and/or Environmental Management Bureau 7 (EMB 7) that Loboc River is not characterized by
one or any combination of the following conditions:
a. Tapped for domestic purposes;
b. With controlled and/or protected areas declared by appropriate authorities; and
c. Which support wildlife and fishery activities.
A Certificate of Non-Coverage will duly be issued to your foundation once all the above mentioned required certifications are complied with.
Projects that are covered by P.D. 1586 or the Environmental Impact System (EIS) Law should not start unless the Project Proponent should
secure an Environmental Compliance Certificate (ECC), otherwise penalties shall be imposed.6 (Emphases supplied)
On January 28, 2003, the petitioner submitted eight certifications,7 including the certification issued by the Philippine Institute of
Volcanology and Seismology (PHIVOLCS), as follows:
That the project area, Loboc, Bohol was subjected to an earthquake of Intensity VII in the adapted Rossi-Forel scale of I-IX last February 8,
1990. The magnitude of the earthquake is 6.8 and the highest intensity reported was VIII, based on the Rossi-Forel Intensity Scale. During the
said earthquake, the PMI Academy Building collapsed while minor cracks were sustained by the municipal hall, public school, town church
and some other houses in the town. There were reports that immediately after the earthquake, the force of the incoming waves from the sea
caused Alijuan River in the town of Duero to flow inland. The report also states that the waves affected 10-50 meters of the coastal beach of
the towns of Jagna, Duero, Guindulman, Garcia Hernandez and Valencia.8 (Emphases supplied)
The petitioner failed to secure a certification from the Regional Office of the Mines and Geosciences Bureau (RO-MGB) to the effect that the
project area was not located along a fault line/fault zone or a critical slope because RO-MGB did not have the data and expertise to render
such finding, and thus had to forward the petitioner’s request to the MGB Central Office.9
Upon the MGB’s advice, the petitioner sought and obtained the required certification from PHIVOLCS, but the certification did not state
whether the project area was within a critical slope. Instead, the certification stated that the project site was approximately 18 kilometers west
of the East Bohol Fault.10
Given the tenor of the certification from PHIVOLCS, RD Lipayon’s letter dated February 4, 2003 declared that the project was within an
environmentally critical area, and that the petitioner was not entitled to the CNC, viz:
After thorough review of your submitted certifications, it was found out that the area was subjected to an earthquake of Intensity VII in the
adapted Rossi-Forel scale wherein the magnitude of the earthquake is 6.8 with the highest intensity reported of VIII and you fail to support
certification that the project area is not within critical slope. And based on the Water Usage and Classification per Department Order (DAO)
34 Series of 1990, subject river system was officially classified as Class B intended for swimming and bathing purposes. Moreover, one
component of your project involves opening of roadway connected to the barangay road.
Therefore, we reiterate our previous stand that your project is covered by the EIS System pursuant to P.D. 1586, the Environmental Impact
Statement Law.11
On March 27, 2003, the petitioner filed a petition for mandamus and damages in the Regional Trial Court (RTC) in Loay, Bohol,12 alleging
that it was now entitled to a CNC as a matter of right after having complied with the certification requirements; and that the EMB had earlier
issued a CNC to the DPWH for a similar waterworks project in the same area.
In the decision dated November 18, 2003,13 the RTC dismissed the petition for mandamus upon the following considerations, namely: (1)
PHIVOLCS certified that the project site had been subjected to an Intensity VII earthquake in 1990; (2) the CNC issued by the EMB to a
similar waterworks project of the DPWH in the same area was only for the construction of a unit spring box intake and pump house, and the
DENR issued a cease and desist order relative to the DPWH’s additional project to put up a water filtration plant therein; (3) the
determination of whether an area was environmentally critical was a task that pertained to the EMB; (4) the assignment of a control number
by the EMB to the petitioner’s application did not mean that the application was as good as approved; (5) the RTC would not interfere with
the primary prerogative of the EMB to review the merits of the petitioner’s application for the CNC; and (6) there was already a pending
appeal lodged with the DENR Secretary.
Hence, this appeal brought directly to the Court via petition for review on certiorari.
Issues
The petitioner submits the following issues:
A. WHETHER OR NOT, AFTER PETITIONER’S DUE COMPLIANCE WITH THE REQUIREMENTS MANDATED BY
RESPONDENTS FOR THE ISSUANCE OF THE CERTIFICATE OF NON-COVERAGE (CNC) APPLIED FOR BY PETITIONER, IT IS
NOW THE RIPENED DUTY OF RESPONDENTS, THROUGH RESPONDENT EMB REGIONAL DIRECTOR, TO ISSUE SAID
DOCUMENT IN FAVOR OF PETITIONER;
B. WHETHER OR NOT PETITIONER HAS EXHAUSTED AVAILABLE ADMINISTRATIVE REMEDIES THROUGH AN APPEAL TO
RESPONDENT DENR SECRETARY WHO HAS SAT ON SAID APPEAL UP TO THE PRESENT;
C. WHETHER OR NOT PETITIONER IS ENTITLED TO RECOVER DAMAGES FROM RESPONDENTS IN THEIR PERSONAL
CAPACITY.14
The petitioner insists that RD Lipayon already exercised his discretion by finding that the application substantially complied with the
procedural aspects for review and by assigning Control No. CNC-02-080 to its application; that after the petitioner complied with the
requirements enumerated in the August 26, 2002 letter of RD Lipayon, the EMB became duty-bound to issue the CNC to the petitioner; that
the EMB issued a CNC to a similar project of the DPWH in the same area; that it filed an appeal with the DENR Secretary, but the appeal
remained unresolved; and that it brought the petition for mandamus precisely as a speedier recourse.
In their comment, RD Lipayon and Canda aver that the act complained of against them involved an exercise of discretion that could not be
compelled by mandamus; that the petitioner’s proposed project was located within an environmentally critical area, and the activities to be
done were so significant that they would create massive earth movement and environmental degradation; that the petitioner violated the rule
against forum shopping; and that the petitioner had no cause of action against them for failure to exhaust administrative remedies.
On his part, the DENR Secretary, through the Solicitor General, contends that the petition raises questions of fact that are not proper in a
petition for review; that the petitioner should have appealed to the CA under Rule 41 of the Rules of Court; that the grant or denial of a CNC
application is discretionary and cannot be compelled by mandamus; and that the petitioner failed to exhaust administrative remedies.
Accordingly, the Court is called upon to resolve, firstly, whether the appeal directly to this Court from the RTC was proper, and, secondly,
whether the petition for mandamus was the correct recourse.
Ruling
The petition for review is denied for its lack of merit.
1.
Petitioner’s appeal is improper under Rule 45, Rules of Court
This appeal by certiorari is being taken under Rule 45, Rules of Court, whose Section 1 expressly requires that the petition shall raise only
questions of law which must be distinctly set forth. Yet, the petitioner hereby raises a question of fact whose resolution is decisive in this
appeal. That issue of fact concerns whether or not the petitioner established that its project was not located in an environmentally critical area.
For this reason, the Court is constrained to deny due course to the petition for review.
It is a settled rule, indeed, that in the exercise of our power of review, the Court is not a trier of facts and does not normally undertake the re-
examination of the evidence presented by the contending parties during the trial of the case. The Court relies on the findings of fact of the
Court of Appeals or of the trial court, and accepts such findings as conclusive and binding unless any of the following exceptions obtains,
namely: (a) when the findings are grounded entirely on speculation, surmises or conjectures; (b) when the inference made is manifestly
mistaken, absurd or impossible; (c) when there is grave abuse of discretion; (d) when the judgment is based on a misapprehension of facts; (e)
when the findings of facts are conflicting; (f) when in making its findings the Court of Appeals or the trial court went beyond the issues of the
case, or its findings are contrary to the admissions of both the appellant and the appellee; (g) when the findings are contrary to the trial court;
(h) when the findings are conclusions without citation of specific evidence on which they are based; (i) when the facts set forth in the petition
as well as in the petitioner’s main and reply briefs are not disputed by the respondent; (j) when the findings of fact are premised on the
supposed absence of evidence and contradicted by the evidence on record; and (k) when the Court of Appeals or the trial court manifestly
overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion.15 However,
none of the aforementioned exceptions applies herein.
2.
Mandamus was an improper remedy for petitioner
We dismiss the present recourse because the petitioner failed to exhaust the available administrative remedies, and because it failed to show
that it was legally entitled to demand the performance of the act by the respondents.
It is axiomatic, to begin with, that a party who seeks the intervention of a court of law upon an administrative concern should first avail
himself of all the remedies afforded by administrative processes. The issues that an administrative agency is authorized to decide should not
be summarily taken away from it and submitted to a court of law without first giving the agency the opportunity to dispose of the issues upon
due deliberation.16 The court of law must allow the administrative agency to carry out its functions and discharge its responsibilities within
the specialized areas of its competence.17 This rests on the theory that the administrative authority is in a better position to resolve questions
addressed to its particular expertise, and that errors committed by subordinates in their resolution may be rectified by their superiors if given a
chance to do so.18
The records show that the petitioner failed to exhaust the available administrative remedies. At the time RD Lipayon denied the petitioner’s
application for the CNC, Administrative Order No. 42 dated November 2, 200219 had just vested the authority to grant or deny applications
for the ECC in the Director and Regional Directors of the EMB. Notwithstanding the lack of a specific implementing guideline to what office
the ruling of the EMB Regional Director was to be appealed, the petitioner could have been easily guided in that regard by the Administrative
Code of 1987, which provides that the Director of a line bureau, such as the EMB,20 shall have supervision and control over all division and
other units, including regional offices, under the bureau.21 Verily, supervision and control include the power to "review, approve, reverse or
modify acts and decisions of subordinate officials or units."22 Accordingly, the petitioner should have appealed the EMB Regional Director’s
decision to the EMB Director, who exercised supervision and control over the former.
It is relevant to mention that the DENR later promulgated Administrative Order No. 2003-3023 in order to define where appeals should be
taken, providing as follows:
Section 6. Appeal
Any party aggrieved by the final decision on the ECC/CNC applications may, within 15 days from receipt of such decision, file an appeal on
the following grounds:
a. Grave abuse of discretion on the part of the deciding authority, or
b. Serious errors in the review findings.
The DENR may adopt alternative conflict/dispute resolution procedures as a means to settle grievances between proponents and aggrieved
parties to avert unnecessary legal action. Frivolous appeals shall not be countenanced.
The proponent or any stakeholder may file an appeal to the following:
1âwphi1
Deciding Authority Where to file the appeal
EMB Regional Office Director Office of the EMB Director
EMB Central Office Director Office of the DENR Secretary
DENR Secretary Office of the President
Moreover, the petitioner states in its pleadings that it had a pending appeal with the DENR Secretary.1âwphi1 However, the records reveal
that the subject of the appeal of the petitioner was an undated resolution of the DENR Regional Director, Region VII, denying its application
for the CNC,24 not the decision of RD Lipayon. Nonetheless, even assuming that the pending appeal with the DENR Secretary had related to
RD Lipayon’s decision, the petitioner should still have waited for the DENR Secretary to resolve the appeal in line with the principle of
exhaustion of administrative remedies. Its failure to do so rendered its resort to mandamus in the RTC premature. The omission is fatal,
because mandamus is a remedy only when there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law.25
Another reason for denying due course to this review is that the petitioner did not establish that the grant of its application for the CNC was a
purely ministerial in nature on the part of RD Lipayon. Hence, mandamus was not a proper remedy.
The CNC is a certification issued by the EMB certifying that a project is not covered by the Environmental Impact Statement System (EIS
System) and that the project proponent is not required to secure an ECC.26 The EIS System was established by Presidential Decree (P.D.) No.
1586 pursuant to Section 4 of P.D. No. 1151 (Philippine Environmental Policy) that required all entities to submit an EIS for projects that
would have a significant effect on the environment, thus:
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 detailed 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 involves the use of depletable or non-renewable resources, a finding must be made that such use and commitment are
warranted.
xxxx
P.D. No. 1586 exempted from the requirement of an EIS the projects and areas not declared by the President of the Philippines as
environmentally critical,27 thus:
Section 5. Environmentally Non-Critical Projects. - All other projects, undertakings and areas not declared by the Presidents as
environmentally critical shall be considered as non-critical and shall not be required to submit an environmental impact statement. The
National Environmental Protection Council, thru the Ministry of Human Settlements may however require non-critical projects and
undertakings to provide additional environmental safeguards as it may deem necessary.
On December 14, 1981, the President issued Proclamation No. 2146 declaring areas and types of projects as environmentally critical and
within the scope of the EIS System, as follows:
A. Environmentally Critical Projects c. near or adjacent to traditional productive fry or fishing grounds;

I. Heavy Industries d. which act as natural buffers against shore erosion, strong winds and storm floods;

a. Non-ferrous metal industries e. on which people are dependent for their livelihood.

b. Iron and steel mills 12. Coral reef, characterized by one or any combination of the following conditions:

c. Petroleum and petro-chemical industries including oil and gas a. with 50% and above live coralline cover;

d. Smelting plants b. spawning and nursery grounds for fish;

II. Resource Extractive Industries c. which act as natural breakwater of coastlines.

a. Major mining and quarrying projects Projects not included in the foregoing enumeration were considered non-critical to the environment and were entitled to the CNC.

b. Forestry projects The foregoing considerations indicate that the grant or denial of an application for ECC/CNC is not an act that is purely ministerial in nature,
but one that involves the exercise of judgment and discretion by the EMB Director or Regional Director, who must determine whether the
1. Logging project or project area is classified as critical to the environment based on the documents to be submitted by the applicant.

2. Major wood processing projects The petitioner maintains that RD Lipayon already exercised his discretion in its case when he made his finding that the application
substantially complied with the procedural requirements for review. As such, he was then obliged to issue the CNC once the petitioner had
3. Introduction of fauna (exotic-animals) in public/private forests submitted the required certifications.

4. Forest occupancy The petitioner errs on two grounds.

5. Extraction of mangrove products Firstly, RD Lipayon had not yet fully exercised his discretion with regard to the CNC application when he made his finding. It is clear that his
finding referred to the "procedural requirements for review" only. He had still to decide on the substantive aspect of the application, that is,
6. Grazing whether the project and the project area were considered critical to the environment. In fact, this was the reason why RD Lipayon required the
petitioner to submit certifications from the various government agencies concerned. Surely, the required certifications were not mere
c. Fishery Projects formalities, because they would serve as the bases for his decision on whether to grant or deny the application.

1. Dikes for fishpond development projects Secondly, there is no sufficient showing that the petitioner satisfactorily complied with the requirement to submit the needed certifications.
For one, it submitted no certification to the effect that the project site was not within a critical slope. Also, the PHIVOLCS’s certification
III. Infrastructure Projects showed that the project site had experienced an Intensity VII earthquake in 1990, a fact that sufficed to place the site in the category of "areas
frequently visited and/or hard-hit by natural calamities." Clearly, the petitioner failed to establish that it had the legal right to be issued the
a. Major dams CNC applied for, warranting the denial of its application.

b. Major power plants (fossil-fueled, nuclear fueled, hydroelectric or geothermal) It is not amiss for us to observe, therefore, that the petitioner grossly misunderstood the nature of the remedy of mandamus. To avoid similar
misunderstanding of the remedy hereafter, a short exposition on the nature and office of the remedy is now appropriate.
c. Major reclamation projects
The writ of mandamus is of very ancient and obscure origin. It is believed that the writ was originally part of the class of writs or mandates
d. Major roads and bridges. issued by the English sovereign to direct his subjects to perform a particular act or duty.28 The earliest writs were in the form of letters
missive, and were mere personal commands. The command was a law in itself, from which there was no appeal. The writ of mandamus was
B. Environmentally Critical Areas not only declaratory of a duty under an existing law, but was a law in itself that imposed the duty, the performance of which it commanded.29
The King was considered as the fountain and source of justice, and when the law did not afford a remedy by the regular forms of proceedings,
1. All areas declared by law as national parks, watershed reserves, wildlife preserves and sanctuaries; the prerogative powers of the sovereign were invoked in aid of the ordinary powers of the courts.30

2. Areas set aside as aesthetic potential tourist spots;
3. Areas which constitute the habitat for any endangered or threatened species of indigenous Philippine Wildlife (flora and fauna);
4. Areas of unique historic, archaeological, or scientific interests;
5. Areas which are traditionally occupied by cultural communities or tribes;
6. Areas frequently visited and/or hard-hit by natural calamities (geologic hazards, floods, typhoons, volcanic activity, etc.);
7. Areas with critical slopes;
A judicial writ of mandamus, issued in the King’s name out of the court of King’s Bench that had a general supervisory power over all
inferior jurisdictions and officers, gradually supplanted the old personal command of the sovereign.31 The court of King’s Bench, acting as
the general guardian of public rights and in the exercise of its authority to grant the writ, rendered the writ of mandamus the suppletory means
of substantial justice in every case where there was no other specific legal remedy for a legal right, and ensured that all official duties were
fulfilled whenever the subject-matter was properly within its control.32 Early on, the writ of mandamus was particularly used to compel
public authorities to return the petitioners to public offices from which they had been unlawfully removed.33
Mandamus was, therefore, originally a purely prerogative writ emanating from the King himself, superintending the police and preserving the
peace within the realm.34 It was allowed only in cases affecting the sovereign, or the interest of the public at large.35 The writ of mandamus
grew out of the necessity to compel the inferior courts to exercise judicial and ministerial powers invested in them by restraining their
excesses, preventing their negligence and restraining their denial of justice.36

8. Areas classified as prime agricultural lands; Over time, the writ of mandamus has been stripped of its highly prerogative features and has been assimilated to the nature of an ordinary
remedy. Nonetheless, the writ has remained to be an extraordinary remedy in the sense that it is only issued in extraordinary cases and where
9. Recharged areas of aquifers; the usual and ordinary modes of proceeding and forms of remedy are powerless to afford redress to a party aggrieved, and where without its
aid there would be a failure of justice.37
10. Water bodies characterized by one or any combination of the following conditions;
The writ of mandamus has also retained an important feature that sets it apart from the other remedial writs, i.e., that it is used merely to
a. tapped for domestic purposes compel action and to coerce the performance of a pre-existing duty.38 In fact, a doctrine well-embedded in our jurisprudence is that
mandamus will issue only when the petitioner has a clear legal right to the performance of the act sought to be compelled and the respondent
b. within the controlled and/or protected areas declared by appropriate authorities has an imperative duty to perform the same.39 The petitioner bears the burden to show that there is such a clear legal right to the performance
of the act, and a corresponding compelling duty on the part of the respondent to perform the act.40
c. which support wildlife and fishery activities
A key principle to be observed in dealing with petitions for mandamus is that such extraordinary remedy lies to compel the performance of
11. Mangrove areas characterized by one or any combination of the following conditions: duties that are purely ministerial in nature, not those that are discretionary.41 A purely ministerial act or duty is one that an officer or tribunal
performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of
a. with primary pristine and dense young growth; its own judgment upon the propriety or impropriety of the act done. The duty is ministerial only when its discharge requires neither the
exercise of official discretion or judgment.42
b. adjoining mouth of major river systems;
The petitioner's disregard of the foregoing fundamental requisites for mandamus rendered its petition in the RTC untenable and devoid of LEONARDO-DE CASTRO,
merit. BRION,
PERALTA,
WHEREFORE, the Court DENIES the petition for review on certiorari; and ORDERS the petitioner to pay the costs of suit. BERSAMIN,
DEL CASTILLO,
SO ORDERED. ABAD,
VILLARAMA, JR.,
LUCAS P. BERSAMIN PEREZ,
Associate Justice MENDOZA,*
SERENO,
WE CONCUR: REYES, and
PERLAS-BERNABE, JJ.
MARIA LOURDES P.A. SERENO
Chief Justice
Promulgated:
TERESITA J. LEONARDO-DE CASTRO
Associate Justice MARTIN S. VILLARAMA, JR.
Associate Justice June 26, 2012
BIENVENIDO L. REYES x--------------------------------------------------x
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation DECISION
before the case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P.A. SERENO

Chief Justice
LEONARDO-DE CASTRO, J.:
Republic of the Philippines
Supreme Court
Manila
In resolving this controversy, the Court took into consideration that all the parties involved share common goals in pursuit of certain
EN BANC primordial State policies and principles that are enshrined in the Constitution and pertinent laws, such as the protection of the environment,
the empowerment of the local government units, the promotion of tourism, and the encouragement of the participation of the private sector.
The Court seeks to reconcile the respective roles, duties and responsibilities of the petitioner and respondents in achieving these shared goals
BORACAY FOUNDATION, INC., within the context of our Constitution, laws and regulations.
Petitioner,
Nature of the Case

This is an original petition for the issuance of an Environmental Protection Order in the nature of a continuing mandamus under A.M. No. 09-
6-8-SC, otherwise known as the Rules of Procedure for Environmental Cases, promulgated on April 29, 2010.

The Parties

Petitioner Boracay Foundation, Inc. (petitioner) is a duly registered, non-stock domestic corporation. Its primary purpose is to foster a united,
- versus - concerted and environment-conscious development of Boracay Island, thereby preserving and maintaining its culture, natural beauty and
ecological balance, marking the island as the crown jewel of Philippine tourism, a prime tourist destination in Asia and the whole world.[1] It
counts among its members at least sixty (60) owners and representatives of resorts, hotels, restaurants, and similar institutions; at least five
community organizations; and several environmentally-conscious residents and advocates.[2]

Respondent Province of Aklan (respondent Province) is a political subdivision of the government created pursuant to Republic Act No. 1414,
represented by Honorable Carlito S. Marquez, the Provincial Governor (Governor Marquez).

Respondent Philippine Reclamation Authority (respondent PRA), formerly called the Public Estates Authority (PEA), is a government entity
created by Presidential Decree No. 1084,[3] which states that one of the purposes for which respondent PRA was created was to reclaim land,
including foreshore and submerged areas. PEA eventually became the lead agency primarily responsible for all reclamation projects in the
THE PROVINCE OF AKLAN, REPRESENTED BY GOVERNOR CARLITO S. MARQUEZ, THE PHILIPPINE RECLAMATION country under Executive Order No. 525, series of 1979. In June 2006, the President of the Philippines issued Executive Order No. 543,
AUTHORITY, AND THE DENR-EMB (REGION VI), delegating the power to approve reclamation projects to PRA through its governing Board, subject to compliance with existing laws and rules
Respondents. and further subject to the condition that reclamation contracts to be executed with any person or entity (must) go through public bidding.[4]

G.R. No. 196870 Respondent Department of Environment and Natural Resources Environmental Management Bureau (DENR-EMB), Regional Office VI
(respondent DENR-EMB RVI), is the government agency in the Western Visayas Region authorized to issue environmental compliance
certificates regarding projects that require the environments protection and management in the region.[5]

Present: Summary of Antecedent Facts

CARPIO,
VELASCO, JR.,
Boracay Island (Boracay), a tropical paradise located in the Western Visayas region of the Philippines and one of the countrys most popular
tourist destinations, was declared a tourist zone and marine reserve in 1973 under Presidential Proclamation No. 1801.[6] The island
comprises the barangays of Manoc-manoc, Balabag, and Yapak, all within the municipality of Malay, in the province of Aklan.[7]
Petitioner describes Boracay as follows:
Boracay is well-known for its distinctive powdery white-sand beaches which are the product of the unique ecosystem dynamics of the area.
The island itself is known to come from the uplifted remnants of an ancient reef platform. Its beaches, the sandy land strip between the water
and the area currently occupied by numerous establishments, is the primary draw for domestic and international tourists for its color, texture
and other unique characteristics. Needless to state, it is the premier domestic and international tourist destination in the Philippines.[8]
More than a decade ago, respondent Province built the Caticlan Jetty Port and Passenger Terminal at Barangay Caticlan to be the main
gateway to Boracay. It also built the corresponding Cagban Jetty Port and Passenger Terminal to be the receiving end for tourists in Boracay.
Respondent Province operates both ports to provide structural facilities suited for locals, tourists and guests and to provide safety and security
measures.[9]
In 2005, Boracay 2010 Summit was held and participated in by representatives from national government agencies, local government units
(LGUs), and the private sector. Petitioner was one of the organizers and participants thereto. The Summit aimed to re-establish a common
vision of all stakeholders to ensure the conservation, restoration, and preservation of Boracay Island and to develop an action plan that [would
allow] all sectors to work in concert among and with each other for the long term benefit and sustainability of the island and the community.
[10] The Summit yielded a Terminal Report[11] stating that the participants had shared their dream of having world-class land, water and air
infrastructure, as well as given their observations that government support was lacking, infrastructure was poor, and, more importantly, the
influx of tourists to Boracay was increasing. The Report showed that there was a need to expand the port facilities at Caticlan due to
congestion in the holding area of the existing port, caused by inadequate facilities, thus tourists suffered long queues while waiting for the
boat ride going to the island.[12]
Respondent Province claimed that tourist arrivals to Boracay reached approximately 649,559 in 2009 and 779,666 in 2010, and this was
expected to reach a record of 1 million tourist arrivals in the years to come. Thus, respondent Province conceptualized the expansion of the
port facilities at Barangay Caticlan.[13]
The Sangguniang Barangay of Caticlan, Malay Municipality, issued Resolution No. 13, s. 2008[14] on April 25, 2008 stating that it had
learned that respondent Province had filed an application with the DENR for a foreshore lease of areas along the shorelines of Barangay
Caticlan, and manifesting its strong opposition to said application, as the proposed foreshore lease practically covered almost all the coastlines
of said barangay, thereby technically diminishing its territorial jurisdiction, once granted, and depriving its constituents of their statutory right
of preference in the development and utilization of the natural resources within its jurisdiction. The resolution further stated that respondent
Province did not conduct any consultations with the Sangguniang Barangay of Caticlan regarding the proposed foreshore lease, which failure
the Sanggunian considered as an act of bad faith on the part of respondent Province.[15]
On November 20, 2008, the Sangguniang Panlalawigan of respondent Province approved Resolution No. 2008-369,[16] formally authorizing
Governor Marquez to enter into negotiations towards the possibility of effecting self-liquidating and income-producing development and
livelihood projects to be financed through bonds, debentures, securities, collaterals, notes or other obligations as provided under Section 299
of the Local Government Code, with the following priority projects: (a) renovation/rehabilitation of the Caticlan/Cagban Passenger Terminal
Buildings and Jetty Ports; and (b) reclamation of a portion of Caticlan foreshore for commercial purposes.[17] This step was taken as
respondent Provinces existing jetty port and passenger terminal was funded through bond flotation, which was successfully redeemed and
paid ahead of the target date. This was allegedly cited as one of the LGUs Best Practices wherein respondent Province was given the
appropriate commendation.[18]
Respondent Province included the proposed expansion of the port facilities at Barangay Caticlan in its 2009 Annual Investment Plan,[19]
envisioned as its project site the area adjacent to the existing jetty port, and identified additional areas along the coastline of Barangay
Caticlan as the site for future project expansion.[20]
Governor Marquez sent a letter to respondent PRA on March 12, 2009[21] expressing the interest of respondent Province to reclaim about
2.64 hectares of land along the foreshores of Barangay Caticlan, Municipality of Malay, Province of Aklan.
Sometime in April 2009, respondent Province entered into an agreement with the Financial Advisor/Consultant that won in the bidding
process held a month before, to conduct the necessary feasibility study of the proposed project for the Renovation/Rehabilitation of the
Caticlan Passenger Terminal Building and Jetty Port, Enhancement and Recovery of Old Caticlan Coastline, and Reclamation of a Portion of
Foreshore for Commercial Purposes (the Marina Project), in Malay, Aklan.[22]
Subsequently, on May 7, 2009, the Sangguniang Panlalawigan of respondent Province issued Resolution No. 2009110,[23] which authorized
Governor Marquez to file an application to reclaim the 2.64 hectares of foreshore area in Caticlan, Malay, Aklan with respondent PRA.
Sometime in July 2009, the Financial Advisor/Consultant came up with a feasibility study which focused on the land reclamation of 2.64
hectares by way of beach enhancement and recovery of the old Caticlan coastline for the rehabilitation and expansion of the existing jetty
port, and for its future plans the construction of commercial building and wellness center. The financial component of the said study was Two
Hundred Sixty Million Pesos (P260,000,000.00). Its suggested financing scheme was bond flotation.[24]
Meanwhile, the Sangguniang Bayan of the Municipality of Malay expressed its strong opposition to the intended foreshore lease application,
through Resolution No. 044,[25] approved on July 22, 2009, manifesting therein that respondent Provinces foreshore lease application was for
business enterprise purposes for its benefit, at the expense of the local government of Malay, which by statutory provisions was the rightful
entity to develop, utilize and reap benefits from the natural resources found within its jurisdiction.[26]
In August 2009, a Preliminary Geohazard Assessment[27] for the enhancement/expansion of the existing Caticlan Jetty Port and Passenger
Terminal through beach zone restoration and Protective Marina Developments in Caticlan, Malay, Aklan was completed.
Thereafter, Governor Marquez submitted an Environmental Performance Report and Monitoring Program (EPRMP)[28] to DENR-EMB RVI,
which he had attached to his letter[29] dated September 19, 2009, as an initial step for securing an Environmental Compliance Certificate
(ECC). The letter reads in part:
With the project expected to start its construction implementation next month, the province hereby assures your good office that it will give
preferential attention to and shall comply with whatever comments that you may have on this EPRMP.[30] (Emphasis added.)
Respondent Province was then authorized to issue Caticlan Super Marina Bonds for the purpose of funding the renovation of the Caticlan
Jetty Port and Passenger Terminal Building, and the reclamation of a portion of the foreshore lease area for commercial purposes in Malay,
Aklan through Provincial Ordinance No. 2009-013, approved on September 10, 2009. The said ordinance authorized Governor Marquez to
negotiate, sign and execute agreements in relation to the issuance of the Caticlan Super Marina Bonds in the amount not exceeding
P260,000,000.00.[31]
Subsequently, the Sangguniang Panlalawigan of the Province of Aklan issued Provincial Ordinance No. 2009-015[32] on October 1, 2009,
amending Provincial Ordinance No. 2009-013, authorizing the bond flotation of the Province of Aklan through Governor Marquez to fund the
Marina Project and appropriate the entire proceeds of said bonds for the project, and further authorizing Governor Marquez to negotiate, sign
and execute contracts or agreements pertinent to the transaction.[33]
Within the same month of October 2009, respondent Province deliberated on the possible expansion from its original proposed reclamation
area of 2.64 hectares to forty (40) hectares in order to maximize the utilization of its resources and as a response to the findings of the
Preliminary Geohazard Assessment study which showed that the recession and retreat of the shoreline caused by coastal erosion and scouring
should be the first major concern in the project site and nearby coastal area. The study likewise indicated the vulnerability of the coastal zone
within the proposed project site and the nearby coastal area due to the effects of sea level rise and climate change which will greatly affect the
social, economic, and environmental situation of Caticlan and nearby Malay coastal communities.[34]
In his letter dated October 22, 2009 addressed to respondent PRA, Governor Marquez wrote:
With our substantial compliance with the requirements under Administrative Order No. 2007-2 relative to our request to PRA for approval of
the reclamation of the [proposed Beach Zone Restoration and Protection Marine Development in Barangays Caticlan and Manoc-Manoc] and
as a result of our discussion during the [meeting with the respondent PRA on October 12, 2009], may we respectfully submit a revised
Reclamation Project Description embodying certain revisions/changes in the size and location of the areas to be reclaimed. x x x.
On another note, we are pleased to inform your Office that the bond flotation we have secured with the Local Government Unit Guarantee
Corporation (LGUGC) has been finally approved last October 14, 2009. This will pave the way for the implementation of said project.
Briefly, the Province has been recognized by the Bureau of Local Government Finance (BLGF) for its capability to meet its loan obligations.
x x x.
With the continued increase of tourists coming to Boracay through Caticlan, the Province is venturing into such development project with the
end in view of protection and/or restoring certain segments of the shoreline in Barangays Caticlan (Caticlan side) and Manoc-manoc (Boracay
side) which, as reported by experts, has been experiencing tremendous coastal erosion.
For the project to be self-liquidating, however, we will be developing the reclaimed land for commercial and tourism-related facilities and for
other complementary uses.[35] (Emphasis ours.)
Then, on November 19, 2009, the Sangguniang Panlalawigan enacted Resolution No. 2009-299[36] authorizing Governor Marquez to enter
into a Memorandum of Agreement (MOA) with respondent PRA in the implementation of the Beach Zone Restoration and Protection Marina
Development Project, which shall reclaim a total of 40 hectares in the areas adjacent to the jetty ports at Barangay Caticlan and Barangay
Manoc-manoc. The Sangguniang Panlalawigan approved the terms and conditions of the necessary agreements for the implementation of the
bond flotation of respondent Province to fund the renovation/rehabilitation of the existing jetty port by way of enhancement and recovery of
the Old Caticlan shoreline through reclamation of an area of 2.64 hectares in the amount of P260,000,000.00 on December 1, 2009.[37]

Respondent Province gave an initial presentation of the project with consultation to the Sangguniang Bayan of Malay[38] on December 9,
2009.
Respondent PRA approved the reclamation project on April 20, 2010 in its Resolution No. 4094 and authorized its General Manager/Chief
Executive Officer (CEO) to enter into a MOA with respondent Province for the implementation of the reclamation project.[39]
On April 27, 2010, DENR-EMB RVI issued to respondent Province ECC-R6-1003-096-7100 (the questioned ECC) for Phase 1 of the
Reclamation Project to the extent of 2.64 hectares to be done along the Caticlan side beside the existing jetty port.[40]
On May 17, 2010, respondent Province entered into a MOA[41] with respondent PRA. Under Article III, the Project was described therein as
follows:
The proposed Aklan Beach Zone Restoration and Protection Marina Development Project involves the reclamation and development of
approximately forty (40) hectares of foreshore and offshore areas of the Municipality of Malay x x x.
The land use development of the reclamation project shall be for commercial, recreational and institutional and other applicable uses.[42]
(Emphases supplied.)
It was at this point that respondent Province deemed it necessary to conduct a series of what it calls information-education campaigns, which
provided the venue for interaction and dialogue with the public, particularly the Barangay and Municipal officials of the Municipality of
Malay, the residents of Barangay Caticlan and Boracay, the stakeholders, and the non-governmental organizations (NGOs). The details of the
campaign are summarized as follows[43]:
a. June 17, 2010 at Casa Pilar Beach Resort, Boracay Island, Malay, Aklan;[44]
b. July 28, 2010 at Caticlan Jetty Port and Passenger Terminal;[45]
c. July 31, 2010 at Barangay Caticlan Plaza;[46]
d. September 15, 2010 at the Office of the Provincial Governor with Municipal Mayor of Malay Mayor John P. Yap;[47]
e. October 12, 2010 at the Office of the Provincial Governor with the Provincial Development Council Executive Committee;[48] and
f. October 29, 2010 at the Office of the Provincial Governor with Officials of LGU-Malay and Petitioner.[49]
Petitioner claims that during the public consultation meeting belatedly called by respondent Province on June 17, 2010, respondent Province
presented the Reclamation Project and only then detailed the actions that it had already undertaken, particularly: the issuance of the Caticlan
Super Marina Bonds; the execution of the MOA with respondent PRA; the alleged conduct of an Environmental Impact Assessment (EIA)
study for the reclamation project; and the expansion of the project to forty (40) hectares from 2.64 hectares.[50]
In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the Malay Municipality reiterated its strong opposition to respondent
Provinces project and denied its request for a favorable endorsement of the Marina Project.[51]
The Malay Municipality subsequently issued Resolution No. 016, Series of 2010, adopted on August 3, 2010, to request respondent PRA not
to grant reclamation permit and notice to proceed to the Marina Project of the [respondent] Provincial Government of Aklan located at
Caticlan, Malay, Aklan.[52]
In a letter[53] dated October 12, 2010, petitioner informed respondent PRA of its opposition to the reclamation project, primarily for the
reason that, based on the opinion of Dr. Porfirio M. Alio, an expert from the University of the Philippines Marine Science Institute (UPMSI),
which he rendered based on the documents submitted by respondent Province to obtain the ECC, a full EIA study is required to assess the
reclamation projects likelihood of rendering critical and lasting effect on Boracay considering the proximity in distance, geographical
location, current and wind direction, and many other environmental considerations in the area. Petitioner noted that said documents had failed
to deal with coastal erosion concerns in Boracay. It also noted that respondent Province failed to comply with certain mandatory provisions of
the Local Government Code, particularly, those requiring the project proponent to conduct consultations with stakeholders.
Petitioner likewise transmitted its Resolution No. 001, Series of 2010, registering its opposition to the reclamation project to respondent
Province, respondent PRA, respondent DENR-EMB, the National Economic Development Authority Region VI, the Malay Municipality, and
other concerned entities.[54]
Petitioner alleges that despite the Malay Municipalitys denial of respondent Provinces request for a favorable endorsement, as well as the
strong opposition manifested both by Barangay Caticlan and petitioner as an NGO, respondent Province still continued with the
implementation of the Reclamation Project.[55]
On July 26, 2010, the Sangguniang Panlalawigan of respondent Province set aside Resolution No. 046, s. 2010, of the Municipality of Malay
and manifested its support for the implementation of the aforesaid project through its Resolution No. 2010-022.[56]
On July 27, 2010, the MOA was confirmed by respondent PRA Board of Directors under its Resolution No. 4130. Respondent PRA wrote to
respondent Province on October 19, 2010, informing the latter to proceed with the reclamation and development of phase 1 of site 1 of its
proposed project. Respondent PRA attached to said letter its Evaluation Report dated October 18, 2010.[57]
Petitioner likewise received a copy of respondent PRAs letter dated October 19, 2010, which authorized respondent Province to proceed with
phase 1 of the reclamation project, subject to compliance with the requirements of its Evaluation Report. The reclamation project was
described as:
[A] seafront development involving reclamation of an aggregate area of more or less, forty (40) hectares in two (2) separate sites both in
Malay Municipality, Aklan Province. Site 1 is in Brgy. Caticlan with a total area of 36.82 hectares and Site 2 in Brgy. Manoc-Manoc,
Boracay Island with a total area of 3.18 hectares. Sites 1 and 2 are on the opposite sides of Tabon Strait, about 1,200 meters apart. x x x. [58]
(Emphases added.)
The Sangguniang Panlalawigan of Aklan, through Resolution No. 2010-034,[59] addressed the apprehensions of petitioner embodied in its
Resolution No. 001, s. 2010, and supported the implementation of the project. Said resolution stated that the apprehensions of petitioner with
regard to the economic, social and political negative impacts of the projects were mere perceptions and generalities and were not anchored on
definite scientific, social and political studies.
In the meantime, a study was commissioned by the Philippine Chamber of Commerce and Industry-Boracay (PCCI-Boracay), funded by the
Department of Tourism (DOT) with the assistance of, among others, petitioner. The study was conducted in November 2010 by several
marine biologists/experts from the Marine Environmental Resources Foundation (MERF) of the UPMSI. The study was intended to determine
the potential impact of a reclamation project in the hydrodynamics of the strait and on the coastal erosion patterns in the southern coast of
Boracay Island and along the coast of Caticlan.[60]
After noting the objections of the respective LGUs of Caticlan and Malay, as well as the apprehensions of petitioner, respondent Province
issued a notice to the contractor on December 1, 2010 to commence with the construction of the project.[61]
On April 4, 2011, the Sangguniang Panlalawigan of Aklan, through its Committee on Cooperatives, Food, Agriculture, and Environmental
Protection and the Committee on Tourism, Trade, Industry and Commerce, conducted a joint committee hearing wherein the study
undertaken by the MERF-UPMSI was discussed.[62] In attendance were Mr. Ariel Abriam, President of PCCI-Boracay, representatives from
the Provincial Government, and Dr. Cesar Villanoy, a professor from the UPMSI. Dr. Villanoy said that the subject project, consisting of 2.64
hectares, would only have insignificant effect on the hydrodynamics of the strait traversing the coastline of Barangay Caticlan and Boracay,
hence, there was a distant possibility that it would affect the Boracay coastline, which includes the famous white-sand beach of the island.[63]
Thus, on April 6, 2011, the Sangguniang Panlalawigan of Aklan enacted Resolution No. 2011-065[64] noting the report on the survey of the
channel between Caticlan and Boracay conducted by the UPMSI in relation to the effects of the ongoing reclamation to Boracay beaches, and
stating that Dr. Villanoy had admitted that nowhere in their study was it pointed out that there would be an adverse effect on the white-sand
beach of Boracay.
During the First Quarter Regular Meeting of the Regional Development Council, Region VI (RDC-VI) on April 16, 2011, it approved and
supported the subject project (covering 2.64 hectares) through RDC-VI Resolution No. VI-26, series of 2011.[65]
Subsequently, Mr. Abriam sent a letter to Governor Marquez dated April 25, 2011 stating that the study conducted by the UPMSI confirms
that the water flow across the Caticlan-Boracay channel is primarily tide-driven, therefore, the marine scientists believe that the 2.64-hectare
project of respondent Province would not significantly affect the flow in the channel and would unlikely impact the Boracay beaches. Based
on this, PCCI-Boracay stated that it was not opposing the 2.64-hectare Caticlan reclamation project on environmental grounds.[66]
On June 1, 2011, petitioner filed the instant Petition for Environmental Protection Order/Issuance of the Writ of Continuing Mandamus. On
June 7, 2011, this Court issued a Temporary Environmental Protection Order (TEPO) and ordered the respondents to file their respective
comments to the petition.[67]
After receiving a copy of the TEPO on June 9, 2011, respondent Province immediately issued an order to the Provincial Engineering Office
and the concerned contractor to cease and desist from conducting any construction activities until further orders from this Court.
The petition is premised on the following grounds:

I.
THE RESPONDENT PROVINCE, PROPONENT OF THE RECLAMATION PROJECT, FAILED TO COMPLY WITH RELEVANT
RULES AND REGULATIONS IN THE ACQUISITION OF AN ECC.
A. THE RECLAMATION PROJECT IS CO-LOCATED WITHIN ENVIRONMENTALLY CRITICAL AREAS REQUIRING THE
PERFORMANCE OF A FULL, OR PROGRAMMATIC, ENVIRONMENTAL IMPACT ASSESSMENT.
B. RESPONDENT PROVINCE FAILED TO OBTAIN THE FAVORABLE ENDORSEMENT OF THE LGU CONCERNED.
C. RESPONDENT PROVINCE FAILED TO CONDUCT THE REQUIRED CONSULTATION PROCEDURES AS REQUIRED BY
THE LOCAL GOVERNMENT CODE.
D. RESPONDENT PROVINCE FAILED TO PERFORM A FULL ENVIRONMENTAL IMPACT ASSESSMENT AS REQUIRED BY
LAW AND RELEVANT REGULATIONS.
II.
THE RECLAMATION OF LAND BORDERING THE STRAIT BETWEEN CATICLAN AND BORACAY SHALL ADVERSELY
AFFECT THE FRAIL ECOLOGICAL BALANCE OF THE AREA.[68]
Petitioner objects to respondent Provinces classification of the reclamation project as single instead of co-located, as non-environmentally
critical, and as a mere rehabilitation of the existing jetty port. Petitioner points out that the reclamation project is on two sites (which are
situated on the opposite sides of Tabon Strait, about 1,200 meters apart):
36.82 hectares Site 1, in Bgy. Caticlan
3.18 hectares Site 2, in Manoc-manoc, Boracay Island[69]
Phase 1, which was started in December 2010 without the necessary permits,[70] is located on the Caticlan side of a narrow strait separating
mainland Aklan from Boracay. In the implementation of the project, respondent Province obtained only an ECC to conduct Phase 1, instead
of an ECC on the entire 40 hectares. Thus, petitioner argues that respondent Province abused and exploited the Revised Procedural Manual
for DENR Administrative Order No. 30, Series of 2003 (DENR DAO 2003-30)[71] relating to the acquisition of an ECC by:
1. Declaring the reclamation project under Group II Projects-Non-ECP (environmentally critical project) in ECA (environmentally critical
area) based on the type and size of the area, and
2. Failing to declare the reclamation project as a co-located project application which would have required the Province to submit a
Programmatic Environmental Impact Statement (PEIS)[72] or Programmatic Environmental [Performance] Report Management Plan
(PE[P]RMP).[73] (Emphases ours.)
Petitioner further alleges that the Revised Procedural Manual (on which the classification above is based, which merely requires an
Environmental Impact Statement [EIS] for Group II projects) is patently ultra vires, and respondent DENR-EMB RVI committed grave abuse
of discretion because the laws on EIS, namely, Presidential Decree Nos. 1151 and 1586, as well as Presidential Proclamation No. 2146,
clearly indicate that projects in environmentally critical areas are to be immediately considered environmentally critical. Petitioner complains
that respondent Province applied for an ECC only for Phase 1; hence, unlawfully
evading the requirement that co-located projects[74] within Environmentally Critical Areas (ECAs) must submit a PEIS and/or a PEPRMP.
Petitioner argues that respondent Province fraudulently classified and misrepresented the project as a Non-ECP in an ECA, and as a single
project instead of a co-located one. The impact assessment allegedly performed gives a patently erroneous and wrongly-premised appraisal of
the possible environmental impact of the reclamation project. Petitioner contends that respondent Provinces choice of classification was
designed to avoid a comprehensive impact assessment of the reclamation project.
Petitioner further contends that respondent DENR-EMB RVI willfully and deliberately disregarded its duty to ensure that the environment is
protected from harmful developmental projects because it allegedly performed only a cursory and superficial review of the documents
submitted by the respondent Province for an ECC, failing to note that all the information and data used by respondent Province in its
application for the ECC were all dated and not current, as data was gathered in the late 1990s for the ECC issued in 1999 for the first jetty
port. Thus, petitioner alleges that respondent DENR-EMB RVI ignored the environmental impact to Boracay, which involves changes in the
structure of the coastline that could contribute to the changes in the characteristics of the sand in the beaches of both Caticlan and Boracay.
Petitioner insists that reclamation of land at the Caticlan side will unavoidably adversely affect the Boracay side and notes that the declared
objective of the reclamation project is for the exploitation of Boracays tourist trade, since the project is intended to enhance support services
thereto. But, petitioner argues, the primary reason for Boracays popularity is its white-sand beaches which will be negatively affected by the
project.
Petitioner alleges that respondent PRA had required respondent Province to obtain the favorable endorsement of the LGUs of Barangay
Caticlan and Malay Municipality pursuant to the consultation procedures as required by the Local Government Code.[75] Petitioner asserts
that the reclamation project is in violation not only of laws on EIS but also of the Local Government Code as respondent Province failed to
enter into proper consultations with the concerned LGUs. In fact, the Liga ng mga Barangay-Malay Chapter also expressed strong opposition
against the project.[76]
Petitioner cites Sections 26 and 27 of the Local Government Code, which require consultations if the project or program may cause pollution,
climactic change, depletion of non-renewable resources, etc. According to petitioner, respondent Province ignored the LGUs opposition
expressed as early as 2008. Not only that, respondent Province belatedly called for public consultation meetings on June 17 and July 28, 2010,
after an ECC had already been issued and the MOA between respondents PRA and Province had already been executed. As the petitioner saw
it, these were not consultations but mere project presentations.
Petitioner claims that respondent Province, aided and abetted by respondents PRA and DENR-EMB, ignored the spirit and letter of the
Revised Procedural Manual, intended to implement the various regulations governing the Environmental Impact Assessments (EIAs) to
ensure that developmental projects are in line with sustainable development of natural resources. The project was conceptualized without
considering alternatives.
Further, as to its allegation that respondent Province failed to perform a full EIA, petitioner argues that while it is true that as of now, only the
Caticlan side has been issued an ECC, the entire project involves the Boracay side, which should have been considered a co-located project.
Petitioner claims that any project involving Boracay requires a full EIA since it is an ECA. Phase 1 of the project will affect Boracay and
Caticlan as they are separated only by a narrow strait; thus, it should be considered an ECP. Therefore, the ECC and permit issued must be
invalidated and cancelled.
Petitioner contends that a study shows that the flow of the water through a narrower channel due to the reclamation project will likely divert
sand transport off the southwest part of Boracay, whereas the characteristic coast of the Caticlan side of the strait indicate stronger sediment
transport.[77] The white-sand beaches of Boracay and its surrounding marine environment depend upon the natural flow of the adjacent
waters.
Regarding its claim that the reclamation of land bordering the strait between Caticlan and Boracay shall adversely affect the frail ecological
balance of the area, petitioner submits that while the study conducted by the MERF-UPMSI only considers the impact of the reclamation
project on the land, it is undeniable that it will also adversely affect the already frail ecological balance of the area. The effect of the project
would have been properly assessed if the proper EIA had been performed prior to any implementation of the project.
According to petitioner, respondent Provinces intended purposes do not prevail over its duty and obligation to protect the environment.
Petitioner believes that rehabilitation of the Jetty Port may be done through other means.
In its Comment[78] dated June 21, 2011, respondent Province claimed that application for reclamation of 40 hectares is advantageous to the
Provincial Government considering that its filing fee would only cost Php20,000.00 plus Value Added Tax (VAT) which is also the minimum
fee as prescribed under Section 4.2 of Administrative Order No. 2007-2.[79]
Respondent Province considers the instant petition to be premature; thus, it must necessarily fail for lack of cause of action due to the failure
of petitioner to fully exhaust the available administrative remedies even before seeking judicial relief. According to respondent Province, the
petition primarily assailed the decision of respondent DENR-EMB RVI in granting the ECC for the subject project consisting of 2.64 hectares
and sought the cancellation of the ECC for alleged failure of respondent Province to submit proper documentation as required for its issuance.
Hence, the grounds relied upon by petitioner can be addressed within the confines of administrative processes provided by law.
Respondent Province believes that under Section 5.4.3 of DENR Administrative Order No. 2003-30 (DAO 2003-30),[80] the issuance of an
ECC[81] is an official decision of DENR-EMB RVI on the application of a project proponent.[82] It cites Section 6 of DENR DAO 2003-30,
which provides for a remedy available to the party aggrieved by the final decision on the proponents ECC applications.
Respondent Province argues that the instant petition is anchored on a wrong premise that results to petitioners unfounded fears and baseless
apprehensions. It is respondent Provinces contention that its 2.64-hectare reclamation project is considered as a stand alone project, separate
and independent from the approved area of 40 hectares. Thus, petitioner should have observed the difference between the future development
plan of respondent Province from its actual project being undertaken.[83]
Respondent Province clearly does not dispute the fact that it revised its original application to respondent PRA from 2.64 hectares to 40
hectares. However, it claims that such revision is part of its future plan, and implementation thereof is still subject to availability of funds,
independent scientific environmental study, separate application of ECC and notice to proceed to be issued by respondent PRA.[84]
Respondent Province goes on to claim that [p]etitioners version of the Caticlan jetty port expansion project is a bigger project which is still at
the conceptualization stage. Although this project was described in the Notice to Proceed issued by respondent PRA to have two phases,
36.82 hectares in Caticlan and 3.18 hectares in Boracay [Island,] it is totally different from the [ongoing] Caticlan jetty port expansion project.
[85]
Respondent Province says that the Accomplishment Report[86] of its Engineering Office would attest that the actual project consists of 2.64
hectares only, as originally planned and conceptualized, which was even reduced to 2.2 hectares due to some construction and design
modifications.
Thus, respondent Province alleges that from its standpoint, its capability to reclaim is limited to 2.64 hectares only, based on respondent
PRAs Evaluation Report[87] dated October 18, 2010, which was in turn the basis of the issuance of the Notice to Proceed dated October 19,
2010, because the projects financial component is P260,000,000.00 only. Said Evaluation Report indicates that the implementation of the
other phases of the project including site 2, which consists of the other portions of the 40-hectare area that includes a portion in Boracay, is
still within the 10-year period and will depend largely on the availability of funds of respondent Province.[88]
So, even if respondent PRA approved an area that would total up to 40 hectares, it was divided into phases in order to determine the period of
its implementation. Each phase was separate and independent because the source of funds was also separate. The required documents and
requirements were also specific for each phase. The entire approved area of 40 hectares could be implemented within a period of 10 years but
this would depend solely on the availability of funds.[89]
As far as respondent Province understands it, additional reclamations not covered by the ECC, which only approved 2.64 hectares, should
undergo another EIA. If respondent Province intends to commence the construction on the other component of the 40 hectares, then it agrees
that it is mandated to secure a new ECC.[90]
Respondent Province admits that it dreamt of a 40-hectare project, even if it had originally planned and was at present only financially
equipped and legally compliant to undertake 2.64 hectares of the project, and only as an expansion of its old jetty port.[91]
Respondent Province claims that it has complied with all the necessary requirements for securing an ECC. On the issue that the reclamation
project is within an ECA requiring the performance of a full or programmatic EIA, respondent Province reiterates that the idea of expanding
the area to 40 hectares is only a future plan. It only secured an ECC for 2.64 hectares, based on the limits of its funding and authority. From
the beginning, its intention was to rehabilitate and expand the existing jetty port terminal to accommodate an increasing projected traffic. The
subject project is specifically classified under DENR DAO 2003-30 on its Project Grouping Matrix for Determination of EIA Report Type
considered as Minor Reclamation Projects falling under Group II Non ECP in an ECA. Whether 2.64 or 40 hectares in area, the subject
project falls within this classification.
Consequently, respondent Province claims that petitioner erred in considering the ongoing reclamation project at Caticlan, Malay, Aklan, as
co-located within an ECA.
Respondent Province, likewise argues that the 2.64-hectare project is not a component of the approved 40-hectare area as it is originally
planned for the expansion site of the existing Caticlan jetty port. At present, it has no definite conceptual construction plan of the said portion
in Boracay and it has no financial allocation to initiate any project on the said Boracay portion.
Furthermore, respondent Province contends that the present project is located in Caticlan while the alleged component that falls within an
ECA is in Boracay. Considering its geographical location, the two sites cannot be considered as a contiguous area for the reason that it is
separated by a body of water a strait that traverses between the mainland Panay wherein Caticlan is located and Boracay. Hence, it is
erroneous to consider the two sites as a co-located project within an ECA. Being a stand alone project and an expansion of the existing jetty
port, respondent DENR-EMB RVI had required respondent Province to perform an EPRMP to secure an ECC as sanctioned by Item No. 8(b),
page 7 of DENR DAO 2003-30.
Respondent Province contends that even if, granting for the sake of argument, it had erroneously categorized its project as Non-ECP in an
ECA, this was not a final determination. Respondent DENR-EMB RVI, which was the administrator of the EIS system, had the final decision
on this matter. Under DENR DAO 2003-30, an application for ECC, even for a Category B2 project where an EPRMP is conducted, shall be
subjected to a review process. Respondent DENR-EMB RVI had the authority to deny said application. Its Regional Director could either
issue an ECC for the project or deny the application. He may also require a more comprehensive EIA study. The Regional Director issued the
ECC based on the EPRMP submitted by respondent Province and after the same went through the EIA review process.
Thus, respondent Province concludes that petitioners allegation of this being a co-located project is premature if not baseless as the bigger
reclamation project is still on the conceptualization stage. Both respondents PRA and Province are yet to complete studies and feasibility
studies to embark on another project.
Respondent Province claims that an ocular survey of the reclamation project revealed that it had worked within the limits of the ECC.[92]
With regard to petitioners allegation that respondent Province failed to get the favorable endorsement of the concerned LGUs in violation of
the Local Government Code, respondent Province contends that consultation vis--vis the favorable endorsement from the concerned LGUs as
contemplated under the Local Government Code are merely tools to seek advice and not a power clothed upon the LGUs to unilaterally
approve or disapprove any government projects. Furthermore, such endorsement is not necessary for projects falling under Category B2
unless required by the DENR-EMB RVI, under Section 5.3 of DENR DAO 2003-30.
Moreover, DENR Memorandum Circular No. 08-2007 no longer requires the issuance of permits and certifications as a pre-requisite for the
issuance of an ECC. Respondent Province claims to have conducted consultative activities with LGUs in connection with Sections 26 and 27
of the Local Government Code. The vehement and staunch objections of both the Sangguniang Barangay of Caticlan and the Sangguniang
Bayan of Malay, according to respondent Province, were not rooted on its perceived impact upon the people and the community in terms of
environmental or ecological balance, but due to an alleged conflict with their principal position to develop, utilize and reap benefits from the
natural resources found within its jurisdiction.[93] Respondent Province argues that these concerns are not within the purview of the Local
Government Code. Furthermore, the Preliminary Geohazard Assessment Report and EPRMP as well as Sangguniang Panlalawigan
Resolution Nos. 2010-022 and 2010-034 should address any environmental issue they may raise.
Respondent Province posits that the spirit and intent of Sections 26 and 27 of the Local Government Code is to create an avenue for parties,
the proponent and the LGU concerned, to come up with a tool in harmonizing its views and concerns about the project. The duty to consult
does not automatically require adherence to the opinions during the consultation process. It is allegedly not within the provisions to give the
full authority to the LGU concerned to unilaterally approve or disapprove the project in the guise of requiring the proponent of securing its
favorable endorsement. In this case, petitioner is calling a halt to the project without providing an alternative resolution to harmonize its
position and that of respondent Province.
Respondent Province claims that the EPRMP[94] would reveal that:
[T]he area fronting the project site is practically composed of sand. Dead coral communities may be found along the vicinity. Thus, fish life at
the project site is quite scarce due to the absence of marine support systems like the sea grass beds and coral reefs.
x x x [T]here is no coral cover at the existing Caticlan jetty port. [From] the deepest point of jetty to the shallowest point, there was no more
coral patch and the substrate is sandy. It is of public knowledge that the said foreshore area is being utilized by the residents ever since as
berthing or anchorage site of their motorized banca. There will be no possibility of any coral development therein because of its continuous
utilization. Likewise, the activity of the strait that traverses between the main land Caticlan and Boracay Island would also be a factor of the
coral development. Corals [may] only be formed within the area if there is scientific human intervention, which is absent up to the present.
In light of the foregoing premise, it casts serious doubt on petitioners allegations pertaining to the environmental effects of Respondent-LGUs
2.64 hectares reclamation project. The alleged environmental impact of the subject project to the beaches of Boracay Island remains
unconfirmed. Petitioner had unsuccessfully proven that the project would cause imminent, grave and irreparable injury to the community.[95]
Respondent Province prayed for the dissolution of the TEPO, claiming that the rules provide that 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. Respondent
Province contends that the TEPO would cause irreparable damage in two aspects:
a. Financial dislocation and probable bankruptcy; and
b. Grave and imminent danger to safety and health of inhabitants of immediate area, including tourists and passengers serviced by the jetty
port, brought about by the abrupt cessation of development works.
As regards financial dislocation, the arguments of respondent Province are summarized below:
1. This project is financed by bonds which the respondent Province had issued to its creditors as the financing scheme in funding the
present project is by way of credit financing through bond flotation.
2. The funds are financed by a Guarantee Bank getting payment from bonds, being sold to investors, which in turn would be paid by the
income that the project would realize or incur upon its completion.
3. While the project is under construction, respondent Province is appropriating a portion of its Internal Revenue Allotment (IRA) budget
from the 20% development fund to defray the interest and principal amortization due to the Guarantee Bank.
4. The respondent Provinces IRA, regular income, and/or such other revenues or funds, as may be permitted by law, are being used as security
for the payment of the said loan used for the projects construction.
5. The inability of the subject project to earn revenues as projected upon completion will compel the Province to shoulder the full amount of (b) Final master development and land use plan for the project;
the obligation, starting from year 2012.

(c) Detailed engineering studies, detailed engineering design, plans and specification for reclamation works, reclamation plans and
6. Respondent province is mandated to assign its IRA, regular income and/or such other revenues or funds as permitted by law; if project is methodology, plans for the sources of fill materials;
stopped, detriment of the public welfare and its constituents.[96]

(d) Drainage plan vis-a-vis the land-form approved by DPWH Regional Office to include a cost effective and efficient drainage
system as may be required based on the results of the studies;

As to the second ground for the dissolution of the TEPO, respondent Province argues:
(e) Detailed project cost estimates and quantity take-off per items of work of the rawland reclamation components, e.g. reclamation
containment structures and soil consolidation;
1. Non-compliance with the guidelines of the ECC may result to environmental hazards most especially that reclaimed land if not properly
secured may be eroded into the sea.
(f) Organizational chart of the construction arm, manning table, equipment schedule for the project; and,

2. The construction has accomplished 65.26 percent of the project. The embankment that was deposited on the project has no proper
concrete wave protection that might be washed out in the event that a strong typhoon or big waves may occur affecting the strait and the (g) Project timetable (PERT/CPM) for the entire project construction period.[104]
properties along the project site. It is already the rainy season and there is a big possibility of typhoon occurrence.

3. If said incident occurs, the aggregates of the embankment that had been washed out might be transferred to the adjoining properties
which could affect its natural environmental state. In fact, respondent PRA further required respondent Province under Article IV (B)(24) of the MOA to strictly comply with all conditions of
the DENR-EMB-issued ECC and/or comply with pertinent local and international commitments of the Republic of the Philippines to ensure
environmental protection.[105]
4. It might result to the total alteration of the physical landscape of the area attributing to environmental disturbance.

5. The lack of proper concrete wave protection or revetment would cause the total erosion of the embankment that has been dumped on the
accomplished area.[97]
In its August 11, 2010 letter,[106] respondent PRA referred for respondent Provinces appropriate action petitioners Resolution 001, series of
2010 and Resolution 46, series of 2010, of the Sangguniang Bayan of Malay. Governor Marquez wrote respondent PRA[107] on September
16, 2010 informing it that respondent Province had already met with the different officials of Malay, furnishing respondent PRA with the
copies of the minutes of such meetings/presentations. Governor Marquez also assured respondent PRA that it had complied with the
consultation requirements as far as Malay was concerned.

Respondent Province claims that petitioner will not stand to suffer immediate, grave and irreparable injury or damage from the ongoing
project. The petitioners perceived fear of environmental destruction brought about by its erroneous appreciation of available data is
unfounded and does not translate into a matter of extreme urgency. Thus, under the Rules of Procedure on Environmental Cases, the TEPO
may be dissolved.
Respondent PRA claims that in evaluating respondent Provinces project and in issuing the necessary NTP for Phase 1 of Site 1 (2.64 hectares)
of the Caticlan Jetty Port expansion and modernization, respondent PRA gave considerable weight to all pertinent issuances, especially the
ECC issued by DENR-EMB RVI.[108] Respondent PRA stresses that its earlier approval of the 40-hectare reclamation project under its
Resolution No. 4094, series of 2010, still requires a second level of compliance requirements from the proponent. Respondent Province could
not possibly begin its reclamation works since respondent PRA had yet to issue an NTP in its favor.

Respondent PRA filed its Comment[98] on June 22, 2011. It alleges that on June 24, 2006, Executive Order No. 543 delegated the power to
approve reclamation projects to respondent PRA through its governing Board, subject to compliance with existing laws and rules and further Respondent PRA alleges that prior to the issuance of the NTP to respondent Province for Phase 1 of Site 1, it required the submission of the
subject to the condition that reclamation contracts to be executed with any person or entity (must) go through public bidding. following pre-construction documents:

Section 4 of respondent PRAs Administrative Order No. 2007-2 provides for the approval process and procedures for various reclamation (a) Land-Form Plan (with technical description);
projects to be undertaken. Respondent PRA prepared an Evaluation Report on November 5, 2009[99] regarding Aklans proposal to increase
its project to 40 hectares.
(b) Site Development Plan/Land Use Plan including,

Respondent PRA contends that it was only after respondent Province had complied with the requirements under the law that respondent PRA,
through its Board of Directors, approved the proposed project under its Board Resolution No. 4094.[100] In the same Resolution, respondent (i) sewer and drainage systems and
PRA Board authorized the General Manager/CEO to execute a MOA with the Aklan provincial government to implement the reclamation
project under certain conditions.
(ii) waste water treatment;

The issue for respondent PRA was whether or not it approved the respondent Provinces 2.64-hectare reclamation project proposal in willful
disregard of alleged numerous irregularities as claimed by petitioner.[101] (c) Engineering Studies and Engineering Design;

Respondent PRA claims that its approval of the Aklan Reclamation Project was in accordance with law and its rules. Indeed, it issued the (d) Reclamation Methodology;
notice to proceed only after Aklan had complied with all the requirements imposed by existing laws and regulations. It further contends that
the 40 hectares involved in this project remains a plan insofar as respondent PRA is concerned. What has been approved for reclamation by
respondent PRA thus far is only the 2.64-hectare reclamation project. Respondent PRA reiterates that it approved this reclamation project (e) Sources of Fill Materials, and,
after extensively reviewing the legal, technical, financial, environmental, and operational aspects of the proposed reclamation.[102]

(f) The ECC.[109]

One of the conditions that respondent PRA Board imposed before approving the Aklan project was that no reclamation work could be started
until respondent PRA has approved the detailed engineering plans/methodology, design and specifications of the reclamation. Part of the
required submissions to respondent PRA includes the drainage design as approved by the Public Works Department and the ECC as issued by
the DENR, all of which the Aklan government must submit to respondent PRA before starting any reclamation works.[103] Under Article
IV(B)(3) of the MOA between respondent PRA and Aklan, the latter is required to submit, apart from the ECC, the following requirements Respondent PRA claims that it was only after the evaluation of the above submissions that it issued to respondent Province the NTP, limited
for respondent PRAs review and approval, as basis for the issuance of a Notice to Proceed (NTP) for Reclamation Works: to the 2.64-hectare reclamation project. Respondent PRA even emphasized in its evaluation report that should respondent Province pursue the
other phases of its project, it would still require the submission of an ECC for each succeeding phases before the start of any reclamation
works.[110]
(a) Land-form plan with technical description of the metes and bounds of the same land-form;

Respondent PRA, being the national governments arm in regulating and coordinating all reclamation projects in the Philippines a mandate
conferred by law manifests that it is incumbent upon it, in the exercise of its regulatory functions, to diligently evaluate, based on its technical
competencies, all reclamation projects submitted to it for approval. Once the reclamation projects requirements set forth by law and related
rules have been complied with, respondent PRA is mandated to approve the same. Respondent PRA claims, [w]ith all the foregoing rigorous
and detailed requirements submitted and complied with by Aklan, and the attendant careful and meticulous technical and legal evaluation by
respondent PRA, it cannot be argued that the reclamation permit it issued to Aklan is founded upon numerous irregularities; as recklessly and
baselessly imputed by BFI.[111]
In its Comment[112] dated July 1, 2011, respondent DENR-EMB RVI asserts that its act of issuing the ECC certifies that the project had
undergone the proper EIA process by assessing, among others, the direct and indirect impact of the project on the biophysical and human
environment and ensuring that these impacts are addressed by appropriate environmental protection and enhancement measures, pursuant to
Presidential Decree No. 1586, the Revised Procedural Manual for DENR DAO 2003-30, and the existing rules and regulations.[113]
Respondent DENR-EMB RVI stresses that the declaration in 1978 of several islands, which includes Boracay as tourist zone and marine
reserve under Proclamation No. 1801, has no relevance to the expansion project of Caticlan Jetty Port and Passenger Terminal for the very
reason that the project is not located in the Island of Boracay, being located in Barangay Caticlan, Malay, which is not a part of mainland
Panay. It admits that the site of the subject jetty port falls within the ECA under Proclamation No. 2146 (1981), being within the category of a
water body. This was why respondent Province had faithfully secured an ECC pursuant to the Revised Procedural Manual for DENR DAO
2003-30 by submitting the necessary documents as contained in the EPRMP on March 19, 2010, which were the bases in granting ECC No.
R6-1003-096-7100 (amended) on April 27, 2010 for the expansion of Caticlan Jetty Port and Passenger Terminal, covering 2.64 hectares.
[114]
Respondent DENR-EMB RVI claims that the issues raised by the LGUs of Caticlan and Malay had been considered by the DENR-Provincial
Environment and Natural Resources Office (PENRO), Aklan in the issuance of the Order[115] dated January 26, 2010, disregarding the claim
of the Municipality of Malay, Aklan of a portion of the foreshore land in Caticlan covered by the application of the Province of Aklan; and
another Order of Rejection dated February 5, 2010 of the two foreshore applications, namely FLA No. 060412-43A and FLA No. 060412-
43B, of the Province of Aklan.[116]
Respondent DENR-EMB RVI contends that the supporting documents attached to the EPRMP for the issuance of an ECC were merely for
the expansion and modernization of the old jetty port in Barangay Caticlan covering 2.64 hectares, and not the 40-hectare reclamation project
in Barangay Caticlan and Boracay. The previous letter of respondent Province dated October 14, 2009 addressed to DENR-EMB RVI
Regional Executive Director, would show that the reclamation project will cover approximately 2.6 hectares.[117] This application for ECC
was not officially accepted due to lack of requirements or documents.
Although petitioner insists that the project involves 40 hectares in two sites, respondent DENR-EMB RVI looked at the documents submitted
by respondent Province and saw that the subject area covered by the ECC application and subsequently granted with ECC-R6-1003-096-7100
consists only of 2.64 hectares; hence, respondent DENR-EMB RVI could not comment on the excess area.[118]
Respondent DENR-EMB RVI admits that as regards the classification of the 2.64-hectare reclamation project under Non ECP in ECA, this
does not fall within the definition of a co-located project because the subject project is merely an expansion of the old Caticlan Jetty Port,
which had a previously issued ECC (ECC No. 0699-1012-171 on October 12, 1999). Thus, only an EPRMP, not a PEIS or PEPRMP, is
required.[119]
Respondent Province submitted to respondent DENR-EMB RVI the following documents contained in the EPRMP:
a. The Observations on the Floor Bottom and its Marine Resources at the Proposed Jetty Ports at Caticlan and Manok-manok, Boracay,
Aklan, conducted in 1999 by the Bureau of Fisheries Aquatic Resources (BFAR) Central Office, particularly in Caticlan site, and
b. The Study conducted by Dr. Ricarte S. Javelosa, Ph. D, Mines and Geosciences Bureau (MGB), Central Office and Engr. Roger Esto,
Provincial Planning and Development Office (PPDO), Aklan in 2009 entitled Preliminary Geo-hazard Assessment for the Enhancement of the
Existing Caticlan Jetty Port Terminal through Beach Zone Restoration and Protective Marina Development in Malay, Aklan.
Respondent DENR-EMB RVI claims that the above two scientific studies were enough for it to arrive at a best professional judgment to issue
an amended ECC for the Aklan Marina Project covering 2.64 hectares.[120] Furthermore, to confirm that the 2.64-hectare reclamation has no
significant negative impact with the surrounding environment particularly in Boracay, a more recent study was conducted, and respondent
DENR-EMB RVI alleges that [i]t is very important to highlight that the input data in the [MERF- UPMSI] study utilized the [40-hectare]
reclamation and [200-meter] width seaward using the tidal and wave modelling.[121] The study showed that the reclamation of 2.64 hectares
had no effect to the hydrodynamics of the strait between Barangay Caticlan and Boracay.
Respondent DENR-EMB RVI affirms that no permits and/or clearances from National Government Agencies (NGAs) and LGUs are required
pursuant to the DENR Memorandum Circular No. 2007-08, entitled Simplifying the Requirements of ECC or CNC Applications; that the
EPRMP was evaluated and processed based on the Revised Procedural Manual for DENR DAO 2003-30 which resulted to the issuance of
ECC-R6-1003-096-7100; and that the ECC is not a permit per se but a planning tool for LGUs to consider in its decision whether or not to
issue a local permit.[122]
Respondent DENR-EMB RVI concludes that in filing this case, petitioner had bypassed and deprived the DENR Secretary of the opportunity
to review and/or reverse the decision of his subordinate office, EMB RVI pursuant to the Revised Procedural Manual for DENR DAO 2003-
30. There is no extreme urgency that necessitates the granting of Mandamus or issuance of TEPO that put to balance between the life and
death of the petitioner or present grave or irreparable damage to environment.[123]
After receiving the above Comments from all the respondents, the Court set the case for oral arguments on September 13, 2011.
Meanwhile, on September 8, 2011, respondent Province filed a Manifestation and Motion[124] praying for the dismissal of the petition, as the
province was no longer pursuing the implementation of the succeeding phases of the project due to its inability to comply with Article IV
B.2(3) of the MOA; hence, the issues and fears expressed by petitioner had become moot. Respondent Province alleges that the petition is
premised on a serious misappreciation of the real extent of the contested reclamation project as certainly the ECC covered only a total of
2,691 square meters located in Barangay Caticlan, Malay, Aklan; and although the MOA spoke of 40 hectares, respondent Provinces
submission of documents to respondent PRA pertaining to said area was but the first of a two-step process of approval. Respondent Province
claims that its failure to comply with the documentary requirements of respondent PRA within the period provided, or 120 working days from
the effectivity of the MOA, indicated its waiver to pursue the remainder of the project.[125] Respondent Province further manifested:
Confirming this in a letter dated 12 August 2011,[126] Governor Marquez informed respondent PRA that the Province of Aklan is no longer
pursuing the implementation of the succeeding phases of the project with a total area of 37.4 hectares for our inability to comply with Article
IV B.2 (3) of the MOA; hence, the existing MOA will cover only the project area of 2.64 hectares.
In his reply-letter dated August 22, 2011,[127] [respondent] PRA General Manager informed Governor Marquez that the [respondent] PRA
Board of Directors has given [respondent] PRA the authority to confirm the position of the Province of Aklan that the Aklan Beach Zone
Restoration and Protection Marine Development Project will now be confined to the reclamation and development of the 2.64 hectares, more
or less.
It is undisputed from the start that the coverage of the Project is in fact limited to 2.64 hectares, as evidenced by the NTP issued by respondent
PRA. The recent exchange of correspondence between respondents Province of Aklan and [respondent] PRA further confirms the intent of
the parties all along. Hence, the Project subject of the petition, without doubt, covers only 2.64 and not 40 hectares as feared. This completely
changes the extent of the Project and, consequently, moots the issues and fears expressed by the petitioner.[128] (Emphasis supplied.)
Based on the above contentions, respondent Province prays that the petition be dismissed as no further justiciable controversy exists since the
feared adverse effect to Boracay Islands ecology had become academic all together.[129]
The Court heard the parties oral arguments on September 13, 2011 and gave the latter twenty (20) days thereafter to file their respective
memoranda.
Respondent Province filed another Manifestation and Motion,[130] which the Court received on April 2, 2012 stating that:
1. it had submitted the required documents and studies to respondent DENR-EMB RVI before an ECC was issued in its favor;
2. it had substantially complied with the requirements provided under PRA Administrative Order 2007-2, which compliance caused
respondent PRAs Board to approve the reclamation project; and
3. it had conducted a series of consultative [presentations] relative to the reclamation project before the LGU of Malay
Municipality, the Barangay Officials of Caticlan, and stakeholders of Boracay Island.
Respondent Province further manifested that the Barangay Council of Caticlan, Malay, Aklan enacted on February 13, 2012 Resolution No.
003, series of 2012, entitled Resolution Favorably Endorsing the 2.6 Hectares Reclamation/MARINA Project of the Aklan Provincial
Government at Caticlan Coastline[131] and that the Sangguniang Bayan of the Municipality of Malay, Aklan enacted Resolution No. 020,
series of 2012, entitled Resolution Endorsing the 2.6 Hectares Reclamation Project of the Provincial Government of Aklan Located at
Barangay Caticlan, Malay, Aklan.[132]
Respondent Province claims that its compliance with the requirements of respondents DENR-EMB RVI and PRA that led to the approval of
the reclamation project by the said government agencies, as well as the recent enactments of the Barangay Council of Caticlan and the
Sangguniang Bayan of the Municipality of Malay favorably endorsing the said project, had categorically addressed all the issues raised by the
Petitioner in its Petition dated June 1, 2011. Respondent Province prays as follows:
WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that after due proceedings, the following be
rendered:
1. The Temporary Environmental Protection Order (TEPO) it issued on June 7, 2011 be lifted/dissolved.
2. The instant petition be dismissed for being moot and academic.
3. Respondent Province of Aklan prays for such other reliefs that are just and equitable under the premises. (Emphases in the original.)
 4. That the local transportation operators/cooperatives will not be displaced; and

ISSUES
5. The Provincial Government of Aklan conduct a simultaneous comprehensive study on the environmental impact of the reclamation
project especially during Habagat and Amihan seasons and put in place as early as possible mitigating measures on the effect of the project to
The Court will now resolve the following issues: the environment.

I. Whether or not the petition should be dismissed for having been rendered moot and academic WHEREAS, having presented these stipulations, failure to comply herewith will leave this August Body no choice but to revoke this
endorsement, hence faithful compliance of the commitment of the Provincial Government is highly appealed for[.][135] (Emphases added.)

II. Whether or not the petition is premature because petitioner failed to exhaust administrative remedies before filing this case
The Sangguniang Bayan of Malay obviously imposed explicit conditions for respondent Province to comply with on pain of revocation of its
endorsement of the project, including the need to conduct a comprehensive study on the environmental impact of the reclamation project,
III. Whether or not respondent Province failed to perform a full EIA as required by laws and regulations based on the scope and which is the heart of the petition before us. Therefore, the contents of the two resolutions submitted by respondent Province do not support its
classification of the project conclusion that the subsequent favorable endorsement of the LGUs had already addressed all the issues raised and rendered the instant
petition moot and academic.

IV. Whether or not respondent Province complied with all the requirements under the pertinent laws and regulations
On the issue of failure to exhaust administrative remedies

V. Whether or not there was proper, timely, and sufficient public consultation for the project
DISCUSSION Respondents, in essence, argue that the present petition should be dismissed for petitioners failure to exhaust administrative remedies and
even to observe the hierarchy of courts. Furthermore, as the petition questions the issuance of the ECC and the NTP, this involves factual and
technical verification, which are more properly within the expertise of the concerned government agencies.

On the issue of whether or not the Petition should be dismissed for having been rendered moot and academic Respondents anchor their argument on Section 6, Article II of DENR DAO 2003-30, which provides:

Section 6. Appeal

Respondent Province claims in its Manifestation and Motion filed on April 2, 2012 that with the alleged favorable endorsement of the
reclamation project by the Sangguniang Barangay of Caticlan and the Sangguniang Bayan of the Municipality of Malay, all the issues raised Any party aggrieved by the final decision on the ECC / CNC applications may, within 15 days from receipt of such decision, file an appeal on
by petitioner had already been addressed, and this petition should be dismissed for being moot and academic. the following grounds:

On the contrary, a close reading of the two LGUs respective resolutions would reveal that they are not sufficient to render the petition moot a. Grave abuse of discretion on the part of the deciding authority, or
and academic, as there are explicit conditions imposed that must be complied with by respondent Province. In Resolution No. 003, series of b. Serious errors in the review findings.
2012, of the Sangguniang Barangay of Caticlan it is stated that any vertical structures to be constructed shall be subject for barangay
endorsement.[133] Clearly, what the barangay endorsed was the reclamation only, and not the entire project that includes the construction of a
commercial building and wellness center, and other tourism-related facilities. Petitioners objections, as may be recalled, pertain not only to The DENR may adopt alternative conflict/dispute resolution procedures as a means to settle grievances between proponents and aggrieved
the reclamation per se, but also to the building to be constructed and the entire projects perceived ill effects to the surrounding environment. parties to avert unnecessary legal action. Frivolous appeals shall not be countenanced.

Resolution No. 020, series of 2012, of the Sangguniang Bayan of Malay[134] is even more specific. It reads in part: The proponent or any stakeholder may file an appeal to the following:

WHEREAS, noble it seems the reclamation project to the effect that it will generate scores of benefits for the Local Government of Malay in Deciding Authority
terms of income and employment for its constituents, but the fact cannot be denied that the project will take its toll on the environment Where to file the appeal
especially on the nearby fragile island of Boracay and the fact also remains that the project will eventually displace the local transportation EMB Regional Office Director
operators/cooperatives; Office of the EMB Director
EMB Central Office Director
Office of the DENR Secretary
WHEREAS, considering the sensitivity of the project, this Honorable Body through the Committee where this matter was referred conducted DENR Secretary
several consultations/committee hearings with concerned departments and the private sector specifically Boracay Foundation, Inc. and they Office of the President
are one in its belief that this Local Government Unit has never been against development so long as compliance with the law and proper (Emphases supplied.)
procedures have been observed and that paramount consideration have been given to the environment lest we disturb the balance of nature to
the end that progress will be brought to naught;

WHEREAS, time and again, to ensure a healthy intergovernmental relations, this August Body requires no less than transparency and faithful Respondents argue that since there is an administrative appeal provided for, then petitioner is duty bound to observe the same and may not be
commitment from the Provincial Government of Aklan in the process of going through these improvements in the Municipality because it granted recourse to the regular courts for its failure to do so.
once fell prey to infidelities in matters of governance;

We do not agree with respondents appreciation of the applicability of the rule on exhaustion of administrative remedies in this case. We are
WHEREAS, as a condition for the grant of this endorsement and to address all issues and concerns, this Honorable Council necessitates a reminded of our ruling in Pagara v. Court of Appeals,[136] which summarized our earlier decisions on the procedural requirement of
sincere commitment from the Provincial Government of Aklan to the end that: exhaustion of administrative remedies, to wit:

1. To allocate an office space to LGU-Malay within the building in the reclaimed area; The rule regarding exhaustion of administrative remedies is not a hard and fast rule. It is not applicable (1) where the question in dispute is
purely a legal one, or (2) where the controverted act is patently illegal or was performed without jurisdiction or in excess of jurisdiction; or (3)
where the respondent is a department secretary, whose acts as an alter ego of the President bear the implied or assumed approval of the latter,
2. To convene the Cagban and Caticlan Jetty Port Management Board before the resumption of the reclamation project; unless actually disapproved by him, or (4) where there are circumstances indicating the urgency of judicial intervention, - Gonzales vs.
Hechanova, L-21897, October 22, 1963, 9 SCRA 230; Abaya vs. Villegas, L-25641, December 17, 1966, 18 SCRA; Mitra vs. Subido, L-
21691, September 15, 1967, 21 SCRA 127.
3. That the reclamation project shall be limited only to 2.6 hectares in Barangay Caticlan and not beyond;
Said principle may also be disregarded when it does not provide a plain, speedy and adequate remedy, (Cipriano vs. Marcelino, 43 SCRA
291), when there is no due process observed (Villanos vs. Subido, 45 SCRA 299), or where the protestant has no other recourse (Sta. Maria
vs. Lopez, 31 SCRA 637).[137] (Emphases supplied.)
As petitioner correctly pointed out, the appeal provided for under Section 6 of DENR DAO 2003-30 is only applicable, based on the first
sentence thereof, if the person or entity charged with the duty to exhaust the administrative remedy of appeal to the appropriate government
agency has been a party or has been made a party in the proceedings wherein the decision to be appealed was rendered. It has been established
by the facts that petitioner was never made a party to the proceedings before respondent DENR-EMB RVI. Petitioner was only informed that
the project had already been approved after the ECC was already granted.[138] Not being a party to the said proceedings, it does not appear
that petitioner was officially furnished a copy of the decision, from which the 15-day period to appeal should be reckoned, and which would
warrant the application of Section 6, Article II of DENR DAO 2003-30.
Although petitioner was not a party to the proceedings where the decision to issue an ECC was rendered, it stands to be aggrieved by the
decision,[139] because it claims that the reclamation of land on the Caticlan side would unavoidably adversely affect the Boracay side, where
petitioners members own establishments engaged in the tourism trade. As noted earlier, petitioner contends that the declared objective of the
reclamation project is to exploit Boracays tourism trade because the project is intended to enhance support services thereto; however, this
objective would not be achieved since the white-sand beaches for which Boracay is famous might be negatively affected by the project.
Petitioners conclusion is that respondent Province, aided and abetted by respondents PRA and DENR-EMB RVI, ignored the spirit and letter
of our environmental laws, and should thus be compelled to perform their duties under said laws.
The new Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, provides a relief for petitioner under the writ of continuing
mandamus, which is a special civil action that may be availed of to compel the performance of an act specifically enjoined by law[140] and
which provides for the issuance of a TEPO as an auxiliary remedy prior to the issuance of the writ itself.[141] The Rationale of the said Rules
explains the writ in this wise:
Environmental law highlights the shift in the focal-point from the initiation of regulation by Congress to the implementation of regulatory
programs by the appropriate government agencies.
Thus, a government agencys inaction, if any, has serious implications on the future of environmental law enforcement. Private individuals, to
the extent that they seek to change the scope of the regulatory process, will have to rely on such agencies to take the initial incentives, which
may require a judicial component. Accordingly, questions regarding the propriety of an agencys action or inaction will need to be analyzed.
This point is emphasized in the availability of the remedy of the writ of mandamus, which allows for the enforcement of the conduct of the
tasks to which the writ pertains: the performance of a legal duty.[142] (Emphases added.)
The writ of continuing mandamus permits the court to retain jurisdiction after judgment in order to ensure the successful implementation of
the reliefs mandated under the courts decision and, in order to do this, the court may compel the submission of compliance reports from the
respondent government agencies as well as avail of other means to monitor compliance with its decision.[143]
According to petitioner, respondent Province acted pursuant to a MOA with respondent PRA that was conditioned upon, among others, a
properly-secured ECC from respondent DENR-EMB RVI. For this reason, petitioner seeks to compel respondent Province to comply with
certain environmental laws, rules, and procedures that it claims were either circumvented or ignored. Hence, we find that the petition was
appropriately filed with this Court under Rule 8, Section 1, A.M. No. 09-6-8-SC, which reads:
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.
Petitioner had three options where to file this case under the rule: the Regional Trial Court exercising jurisdiction over the territory where the
actionable neglect or omission occurred, the Court of Appeals, or this Court.
Petitioner had no other plain, speedy, or adequate remedy in the ordinary course of law to determine the questions of unique national and
local importance raised here that pertain to laws and rules for environmental protection, thus it was justified in coming to this Court.
Having resolved the procedural issue, we now move to the substantive issues.
On the issues of whether, based on the scope and classification of the project, a full EIA is required by laws and regulations, and whether
respondent Province complied with all the requirements under the pertinent laws and regulations
Petitioners arguments on this issue hinges upon its claim that the reclamation project is misclassified as a single project when in fact it is co-
located. Petitioner also questions the classification made by respondent Province that the reclamation project is merely an expansion of the
existing jetty port, when the project descriptions embodied in the different documents filed by respondent Province describe commercial
establishments to be built, among others, to raise revenues for the LGU; thus, it should have been classified as a new project. Petitioner
likewise cries foul to the manner by which respondent Province allegedly circumvented the documentary requirements of the DENR-EMB
RVI by the act of connecting the reclamation project with its previous project in 1999 and claiming that the new project is a mere expansion
of the previous one.
As previously discussed, respondent Province filed a Manifestation and Motion stating that the ECC issued by respondent DENR-EMB RVI
covered an area of 2,691 square meters in Caticlan, and its application for reclamation of 40 hectares with respondent PRA was conditioned
on its submission of specific documents within 120 days. Respondent Province claims that its failure to comply with said condition indicated
its waiver to pursue the succeeding phases of the reclamation project and that the subject matter of this case had thus been limited to 2.64
hectares. Respondent PRA, for its part, declared through its General Manager that the Aklan Beach Zone Restoration and Protection Marine
Development Project will now be confined to the reclamation and development of the 2.64 hectares, more or less.[144]
The Court notes such manifestation of respondent Province. Assuming, however, that the area involved in the subject reclamation project has
been limited to 2.64 hectares, this case has not become moot and academic, as alleged by respondents, because the Court still has to check
whether respondents had complied with all applicable environmental laws, rules, and regulations pertaining to the actual reclamation project.
We recognize at this point that the DENR is the government agency vested with delegated powers to review and evaluate all EIA reports, and
to grant or deny ECCs to project proponents.[145] It is the DENR that has the duty to implement the EIS system. It appears, however, that
respondent DENR-EMB RVIs evaluation of this reclamation project was problematic, based on the valid questions raised by petitioner.
Being the administrator of the EIS System, respondent DENR-EMB RVIs submissions bear great weight in this case. However, the following
are the issues that put in question the wisdom of respondent DENR-EMB RVI in issuing the ECC:
1. Its approval of respondent Provinces classification of the project as a mere expansion of the existing jetty port in Caticlan, instead of
classifying it as a new project;
2. Its classification of the reclamation project as a single instead of a co-located project;
3. The lack of prior public consultations and approval of local government agencies; and
4. The lack of comprehensive studies regarding the impact of the reclamation project to the environment.
The above issues as raised put in question the sufficiency of the evaluation of the project by respondent DENR-EMB RVI.
Nature of the project
The first question must be answered by respondent DENR-EMB RVI as the agency with the expertise and authority to state whether this is a
new project, subject to the more rigorous environmental impact study requested by petitioner, or it is a mere expansion of the existing jetty
port facility.
The second issue refers to the classification of the project by respondent Province, approved by respondent DENR-EMB RVI, as single
instead of co-located. Under the Revised Procedural Manual, the Summary List of Additional Non-Environmentally-Critical Project (NECP)
Types in ECAs Classified under Group II (Table I-2) lists buildings, storage facilities and other structures as a separate item from transport
terminal facilities. This creates the question of whether this project should be considered as consisting of more than one type of activity, and
should more properly be classified as co-located, under the following definition from the same Manual, which reads:
f) Group IV (Co-located Projects in either ECA or NECA): A co-located project is a group of single projects, under one or more
proponents/locators, which are located in a contiguous area and managed by one administrator, who is also the ECC applicant. The co-located
project may be an economic zone or industrial park, or a mix of projects within a catchment, watershed or river basin, or any other
geographical, political or economic unit of area. Since the location or threshold of specific projects within the contiguous area will yet be
derived from the EIA process based on the carrying capacity of the project environment, the nature of the project is called programmatic.
(Emphasis added.)
Respondent DENR-EMB RVI should conduct a thorough and detailed evaluation of the project to address the question of whether this could
be deemed as a group of single projects (transport terminal facility, building, etc.) in a contiguous area managed by respondent Province, or as
a single project.
 Any impact on the Boracay side cannot be totally ignored, as Caticlan and Boracay are separated only by a narrow strait. This becomes more
imperative because of the significant contributions of Boracays white-sand beach to the countrys tourism trade, which requires respondent
The third item in the above enumeration will be discussed as a separate issue. Province to proceed with utmost caution in implementing projects within its vicinity.

The answer to the fourth question depends on the final classification of the project under items 1 and 3 above because the type of EIA study We had occasion to emphasize the duty of local government units to ensure the quality of the environment under Presidential Decree No.
required under the Revised Procedural Manual depends on such classification. 1586 in Republic of the Philippines v. The City of Davao,[148] wherein we held:

The very definition of an EIA points to what was most likely neglected by respondent Province as project proponent, and what was in turn
overlooked by respondent DENR-EMB RVI, for it is defined as follows:
An [EIA] is a process that involves predicting and evaluating the likely impacts of a project (including cumulative impacts) on the
environment during construction, commissioning, operation and abandonment. It also includes designing appropriate preventive, mitigating
and enhancement measures addressing these consequences to protect the environment and the communitys welfare.[146] (Emphases
supplied.)
Section 15 of Republic Act 7160, otherwise known as the Local Government Code, defines a local government unit as a body politic and
corporate endowed with powers to be exercised by it in conformity with law. As such, it performs dual functions, governmental and
proprietary. Governmental functions are those that concern the health, safety and the advancement of the public good or welfare as affecting
the public generally. Proprietary functions are those that seek to obtain special corporate benefits or earn pecuniary profit and intended for
private advantage and benefit. When exercising governmental powers and performing governmental duties, an LGU is an agency of the
national government. When engaged in corporate activities, it acts as an agent of the community in the administration of local affairs.
Found in Section 16 of the Local Government Code is the duty of the LGUs to promote the peoples right to a balanced ecology. Pursuant to
this, an LGU, like the City of Davao, can not claim exemption from the coverage of PD 1586. As a body politic endowed with governmental
functions, an LGU has the duty to ensure the quality of the environment, which is the very same objective of PD 1586.

Thus, the EIA process must have been able to predict the likely impact of the reclamation project to the environment and to prevent any harm
that may otherwise be caused. xxxx

The project now before us involves reclamation of land that is more than five times the size of the original reclaimed land. Furthermore, the Section 4 of PD 1586 clearly states that no person, partnership or corporation shall undertake or operate any such declared environmentally
area prior to construction merely contained a jetty port, whereas the proposed expansion, as described in the EPRMP submitted by respondent critical project or area without first securing an Environmental Compliance Certificate issued by the President or his duly authorized
Province to respondent DENR-EMB RVI involves so much more, and we quote: representative. The Civil Code defines a person as either natural or juridical. The state and its political subdivisions, i.e., the local government
units are juridical persons. Undoubtedly therefore, local government units are not excluded from the coverage of PD 1586.

The expansion project will be constructed at the north side of the existing jetty port and terminal that will have a total area of 2.64 hectares,
more or less, after reclamation. The Phase 1 of the project construction costing around P260 million includes the following:
1. Reclamation - 3,000 sq m (expansion of jetty port)
Lastly, very clear in Section 1 of PD 1586 that said law intends to implement the policy of the state to achieve a balance between socio-
economic development and environmental protection, which are the twin goals of sustainable development. The above-quoted first paragraph
of the Whereas clause stresses that this can only be possible if we adopt a comprehensive and integrated environmental protection program
where all the sectors of the community are involved, i.e., the government and the private sectors. The local government units, as part of the
machinery of the government, cannot therefore be deemed as outside the scope of the EIS system.[149] (Emphases supplied.)

2. Reclamation - 13,500 sq m (buildable area)

3. Terminal annex building - 250 sq m The Court chooses to remand these matters to respondent DENR-EMB RVI for it to make a proper study, and if it should find necessary, to
require respondent Province to address these environmental issues raised by petitioner and submit the correct EIA report as required by the
projects specifications. The Court requires respondent DENR-EMB RVI to complete its study and submit a report within a non-extendible
4. 2-storey commercial building 2,500 sq m (1,750 sq m of leasable space) period of three months. Respondent DENR-EMB RVI should establish to the Court in said report why the ECC it issued for the subject
project should not be canceled.

5. Health and wellness center

Lack of prior public consultation

6. Access road - 12 m (wide)

7. Parking, perimeter fences, lighting and water treatment sewerage system The Local Government Code establishes the duties of national government agencies in the maintenance of ecological balance, and requires
them to secure prior public consultation and approval of local government units for the projects described therein.

8. Rehabilitation of existing jetty port and terminal

xxxx
The succeeding phases of the project will consist of [further] reclamation, completion of the commercial center building, bay walk
commercial strip, staff building, ferry terminal, a cable car system and wharf marina. This will entail an additional estimated cost of P785
million bringing the total investment requirement to about P1.0 billion.[147] (Emphases added.)
In the case before us, the national agency involved is respondent PRA. Even if the project proponent is the local government of Aklan, it is
respondent PRA which authorized the reclamation, being the exclusive agency of the government to undertake reclamation nationwide.
Hence, it was necessary for respondent Province to go through respondent PRA and to execute a MOA, wherein respondent PRAs authority
to reclaim was delegated to respondent Province. Respondent DENR-EMB RVI, regional office of the DENR, is also a national government
institution which is tasked with the issuance of the ECC that is a prerequisite to projects covered by environmental laws such as the one at bar.
This project can be classified as a national project that affects the environmental and ecological balance of local communities, and is covered
by the requirements found in the Local Government Code provisions that are quoted below:

As may be gleaned from the breakdown of the 2.64 hectares as described by respondent Province above, a significant portion of the reclaimed
area would be devoted to the construction of a commercial building, and the area to be utilized for the expansion of the jetty port consists of a
mere 3,000 square meters (sq. m). To be true to its definition, the EIA report submitted by respondent Province should at the very least predict
the impact that the construction of the new buildings on the reclaimed land would have on the surrounding environment. These new
constructions and their environmental effects were not covered by the old studies that respondent Province previously submitted for the
construction of the original jetty port in 1999, and which it re-submitted in its application for ECC in this alleged expansion, instead of
conducting updated and more comprehensive studies.
Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall be the duty of every national agency
or government-owned or controlled corporation authorizing or involved in the planning and implementation of any project or program that
may cause pollution, climatic change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover, and extinction of
animal or plant species, to consult with the local government units, nongovernmental organizations, and other sectors concerned and explain
the goals and objectives of the project or program, its impact upon the people and the community in terms of environmental or ecological
balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof.
Section 27. Prior Consultations Required. - No project or program shall be implemented by government authorities unless the consultations
mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided, That
occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in
accordance with the provisions of the Constitution.

In Lina, Jr. v. Pao,[150] we held that Section 27 of the Local Government Code applies only to national programs and/or projects which are to
be implemented in a particular local community[151] and that it should be read in conjunction with Section 26. We held further in this
manner:
Thus, the projects and programs mentioned in Section 27 should be interpreted to mean projects and programs whose effects are among those
enumerated in Section 26 and 27, to wit, those that: (1) may cause pollution; (2) may bring about climatic change; (3) may cause the depletion
of non-renewable resources; (4) may result in loss of crop land, range-land, or forest cover; (5) may eradicate certain animal or plant species
from the face of the planet; and (6) other projects or programs that may call for the eviction of a particular group of people residing in the
locality where these will be implemented. Obviously, none of these effects will be produced by the introduction of lotto in the province of
Laguna.[152] (Emphasis added.)
During the oral arguments held on September 13, 2011, it was established that this project as described above falls under Section 26 because
the commercial establishments to be built on phase 1, as described in the EPRMP quoted above, could cause pollution as it could generate
garbage, sewage, and possible toxic fuel discharge.[153]
Our ruling in Province of Rizal v. Executive Secretary[154] is instructive:
We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v. Lanzanas, where we held that there was no statutory requirement for
the sangguniang bayan of Puerto Galera to approve the construction of a mooring facility, as Sections 26 and 27 are inapplicable to projects
which are not environmentally critical.
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 th(e) Code. These include:
(1) Approving ordinances and passing resolutions to protect the environment and impose appropriate penalties for acts which endanger the
environment, such as dynamite fishing and other forms of destructive fishing, illegal logging and smuggling of logs, smuggling of natural
resources products and of endangered species of flora and fauna, slash and burn farming, and such other activities which result in pollution,
acceleration of eutrophication of rivers and lakes, or of ecological imbalance; [Section 447 (1)(vi)]
(2) Prescribing reasonable limits and restraints on the use of property within the jurisdiction of the municipality, adopting a
comprehensive land use plan for the municipality, reclassifying land within the jurisdiction of the city, subject to the pertinent provisions of
this Code, enacting integrated zoning ordinances in consonance with the approved comprehensive land use plan, subject to existing laws,
rules and regulations; establishing fire limits or zones, particularly in populous centers; and regulating the construction, repair or modification
of buildings within said fire limits or zones in accordance with the provisions of this Code; [Section 447 (2)(vi-ix)]
(3) Approving ordinances which shall ensure the efficient and effective delivery of the basic services and facilities as provided for under
Section 17 of this Code, and in addition to said services and facilities, providing for the establishment, maintenance, protection, and
conservation of communal forests and watersheds, tree parks, greenbelts, mangroves, and other similar forest development projects and,
subject to existing laws, establishing and providing for the maintenance, repair and operation of an efficient waterworks system to supply
water for the inhabitants and purifying the source of the water supply; regulating the construction, maintenance, repair and use of hydrants,
pumps, cisterns and reservoirs; protecting the purity and quantity of the water supply of the municipality and, for this purpose, extending the
coverage of appropriate ordinances over all territory within the drainage area of said water supply and within one hundred (100) meters of the
reservoir, conduit, canal, aqueduct, pumping station, or watershed used in connection with the water service; and regulating the consumption,
use or wastage of water. [Section 447 (5)(i) & (vii)]
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.[155]
(Emphasis added.)
Based on the above, therefore, prior consultations and prior approval are required by law to have been conducted and secured by the
respondent Province. Accordingly, the information dissemination conducted months after the ECC had already been issued was insufficient to
comply with this requirement under the Local Government Code. Had they been conducted properly, the prior public consultation should
have considered the ecological or environmental concerns of the stakeholders and studied measures alternative to the project, to avoid or
minimize adverse environmental impact or damage. In fact, respondent Province once tried to obtain the favorable endorsement of the
Sangguniang Bayan of Malay, but this was denied by the latter.
Moreover, DENR DAO 2003-30 provides:
5.3 Public Hearing / Consultation Requirements
For projects under Category A-1, the conduct of public hearing as part of the EIS review is mandatory unless otherwise determined by EMB.
For all other undertakings, a public hearing is not mandatory unless specifically required by EMB.
Proponents should initiate public consultations early in order to ensure that environmentally relevant concerns of stakeholders are taken into
consideration in the EIA study and the formulation of the management plan. All public consultations and public hearings conducted during
the EIA process are to be documented. The public hearing/consultation Process report shall be validated by the EMB/EMB RD and shall
constitute part of the records of the EIA process. (Emphasis supplied.)
In essence, the above-quoted rule shows that in cases requiring public consultations, the same should be initiated early so that concerns of
stakeholders could be taken into consideration in the EIA study. In this case, respondent Province had already filed its ECC application before
it met with the local government units of Malay and Caticlan.
The claim of respondent DENR-EMB RVI is that no permits and/or clearances from National Government Agencies (NGAs) and LGUs are
required pursuant to the DENR Memorandum Circular No. 2007-08. However, we still find that the LGC requirements of consultation and
approval apply in this case. This is because a Memorandum Circular cannot prevail over the Local Government Code, which is a statute and
which enjoys greater weight under our hierarchy of laws.
Subsequent to the information campaign of respondent Province, the Municipality of Malay and the Liga ng mga Barangay-Malay Chapter
still opposed the project. Thus, when respondent Province commenced the implementation project, it violated Section 27 of the LGC, which
clearly enunciates that [no] project or program shall be implemented by government authorities unless the consultations mentioned in
Sections 2(c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained.
The lack of prior public consultation and approval is not corrected by the subsequent endorsement of the reclamation project by the
Sangguniang Barangay of Caticlan on February 13, 2012, and the Sangguniang Bayan of the Municipality of Malay on February 28, 2012,
which were both undoubtedly achieved at the urging and insistence of respondent Province. As we have established above, the respective
resolutions issued by the LGUs concerned did not render this petition moot and academic.
It is clear that both petitioner and respondent Province are interested in the promotion of tourism in Boracay and the protection of the
environment, lest they kill the proverbial hen that lays the golden egg. At the beginning of this decision, we mentioned that there are common
goals of national significance that are very apparent from both the petitioners and the respondents respective pleadings and memoranda.
The parties are evidently in accord in seeking to uphold the mandate found in Article II, Declaration of Principles and State Policies, of the
1987 Constitution, which we quote below:
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.
xxxx
SECTION 20. The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to
needed investments.
The protection of the environment in accordance with the aforesaid constitutional mandate is the aim, among others, of Presidential Decree
No. 1586, Establishing an Environmental Impact Statement System, Including Other Environmental Management Related Measures and For
Other Purposes, which declared in its first Section that it is the policy of the State to attain and maintain a rational and orderly balance
between socio-economic growth and environmental protection.
The parties undoubtedly too agree as to the importance of promoting tourism, pursuant to Section 2 of Republic Act No. 9593, or The
Tourism Act of 2009, which reads:
SECTION 2. Declaration of Policy. The State declares tourism as an indispensable element of the national economy and an industry of
national interest and importance, which must be harnessed as an engine of socioeconomic growth and cultural affirmation to generate
investment, foreign exchange and employment, and to continue to mold an enhanced sense of national pride for all Filipinos. (Emphasis ours.)
The primordial role of local government units under the Constitution and the Local Government Code of 1991 in the subject matter of this
case is also unquestionable. The Local Government Code of 1991 (Republic Act No. 7160) pertinently provides:
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 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.[156] (Emphases ours.)
As shown by the above provisions of our laws and rules, the speedy and smooth resolution of these issues would benefit all the parties. Thus,
respondent Provinces cooperation with respondent DENR-EMB RVI in the Court-mandated review of the proper classification and
environmental impact of the reclamation project is of utmost importance.
WHEREFORE, premises considered, the petition is hereby PARTIALLY GRANTED. The TEPO issued by this Court is hereby converted
into a writ of continuing mandamus specifically as follows:
1. Respondent Department of Environment and Natural Resources-Environmental Management Bureau Regional Office VI shall revisit and
review the following matters:
a. its classification of the reclamation project as a single instead of a co-located project;
b. its approval of respondent Provinces classification of the project as a mere expansion of the existing jetty port in Caticlan, instead of
classifying it as a new project; and
c. the impact of the reclamation project to the environment based on new, updated, and comprehensive studies, which should forthwith be
ordered by respondent DENR-EMB RVI.
2. Respondent Province of Aklan shall perform the following:
a. fully cooperate with respondent DENR-EMB RVI in its review of the reclamation project proposal and submit to the latter the
appropriate report and study; and
b. secure approvals from local government units and hold proper consultations with non-governmental organizations and other stakeholders
and sectors concerned as required by Section 27 in relation to Section 26 of the Local Government Code.
3. Respondent Philippine Reclamation Authority shall closely monitor the submission by respondent Province of the requirements to be
issued by respondent DENR-EMB RVI in connection to the environmental concerns raised by petitioner, and shall coordinate with
respondent Province in modifying the MOA, if necessary, based on the findings of respondent DENR-EMB RVI.
4. The petitioner Boracay Foundation, Inc. and the respondents The Province of Aklan, represented by Governor Carlito S. Marquez, The
Philippine Reclamation Authority, and The DENR-EMB (Region VI) are mandated to submit their respective reports to this Court regarding
their compliance with the requirements set forth in this Decision no later than three (3) months from the date of promulgation of this Decision.
5. In the meantime, the respondents, their concerned contractor/s, and/or their agents, representatives or persons acting in their place or
stead, shall immediately cease and desist from continuing the implementation of the project covered by ECC-R6-1003-096-7100 until further
orders from this Court. For this purpose, the respondents shall report within five (5) days to this Court the status of the project as of their
receipt of this Decision, copy furnished the petitioner.
This Decision is immediately executory.
SO ORDERED.
REPUBLIC OF THE PHILIPPINES, represented by HON. HEHERSON T. ALVAREZ, in his capacity as Secretary of the DEPARTMENT
OF ENVIRONMENT AND NATURAL RESOURCES (DENR), CLARENCE L. BAGUILAT, in his capacity as the Regional Executive
Director of DENR-Region XI and ENGR. BIENVENIDO L. LIPAYON, in his capacity as the Regional Director of the DENR-
ENVIRONMENTAL MANAGEMENT BUREAU (DENR-EMB), Region XI, petitioners, vs. THE CITY OF DAVAO, represented by
BENJAMIN C. DE GUZMAN, City Mayor, respondent.
DECISION
YNARES-SANTIAGO, J.:
Before us is a petition for review[1] on certiorari assailing the decision[2] dated May 28, 2001 of the Regional Trial Court of Davao City,
Branch 33, which granted the writ of mandamus and injunction in favor of respondent, the City of Davao, and against petitioner, the
Republic, represented by the Department of Environment and Natural Resources (DENR). The trial court also directed petitioner to issue a
Certificate of Non-Coverage in favor of respondent.
The antecedent facts of the case are as follows:
On August 11, 2000, respondent filed an application for a Certificate of Non-Coverage (CNC) for its proposed project, the Davao City Artica
Sports Dome, with the Environmental Management Bureau (EMB), Region XI. Attached to the application were the required documents for
its issuance, namely, a) detailed location map of the project site; b) brief project description; and c) a certification from the City Planning and
Development Office that the project is not located in an environmentally critical area (ECA). The EMB Region XI denied the application after
finding that the proposed project was within an environmentally critical area and ruled that, pursuant to Section 2, Presidential Decree No.
1586, otherwise known as the Environmental Impact Statement System, in relation to Section 4 of Presidential Decree No, 1151, also known
as the Philippine Environment Policy, the City of Davao must undergo the environmental impact assessment (EIA) process to secure an
Environmental Compliance Certificate (ECC), before it can proceed with the construction of its project.
Believing that it was entitled to a Certificate of Non-Coverage, respondent filed a petition for mandamus and injunction with the Regional
Trial Court of Davao, docketed as Civil Case No. 28,133-2000. It alleged that its proposed project was neither an environmentally critical
project nor within an environmentally critical area; thus it was outside the scope of the EIS system. Hence, it was the ministerial duty of the
DENR, through the EMB-Region XI, to issue a CNC in favor of respondent upon submission of the required documents.
The Regional Trial Court rendered judgment in favor of respondent, the dispositive portion of which reads as follows:
WHEREFORE, finding the petition to be meritorious, judgment granting the writ of mandamus and injunction is hereby rendered in favor of
the petitioner City of Davao and against respondents Department of Environment and Natural Resources and the other respondents by:
1) directing the respondents to issue in favor of the petitioner City of Davao a Certificate of Non-Coverage, pursuant to Presidential Decree
No. 1586 and related laws, in connection with the construction by the City of Davao of the Artica Sports Dome;
2) making the preliminary injunction issued on December 12, 2000 permanent.
Costs de oficio.
SO ORDERED.[3]
The trial court ratiocinated that there is nothing in PD 1586, in relation to PD 1151 and Letter of Instruction No. 1179 (prescribing guidelines
for compliance with the EIA system), which requires local government units (LGUs) to comply with the EIS law. Only agencies and
instrumentalities of the national government, including government owned or controlled corporations, as well as private corporations, firms
and entities are mandated to go through the EIA process for their proposed projects which have significant effect on the quality of the
environment. A local government unit, not being an agency or instrumentality of the National Government, is deemed excluded under the
principle of expressio unius est exclusio alterius.
The trial court also declared, based on the certifications of the DENR-Community Environment and Natural Resources Office (CENRO)-
West, and the data gathered from the Philippine Institute of Volcanology and Seismology (PHIVOLCS), that the site for the Artica Sports
Dome was not within an environmentally critical area. Neither was the project an environmentally critical one. It therefore becomes
mandatory for the DENR, through the EMB Region XI, to approve respondents application for CNC after it has satisfied all the requirements
for its issuance. Accordingly, petitioner can be compelled by a writ of mandamus to issue the CNC, if it refuses to do so.
Petitioner filed a motion for reconsideration, however, the same was denied. Hence, the instant petition for review.
With the supervening change of administration, respondent, in lieu of a comment, filed a manifestation expressing its agreement with
petitioner that, indeed, it needs to secure an ECC for its proposed project. It thus rendered the instant petition moot and academic. However,
for the guidance of the implementors of the EIS law and pursuant to our symbolic function to educate the bench and bar,[4] we are inclined to
address the issue raised in this petition.
Section 15 of Republic Act 7160,[5] otherwise known as the Local Government Code, defines a local government unit as a body politic and
corporate endowed with powers to be exercised by it in conformity with law. As such, it performs dual functions, governmental and
proprietary. Governmental functions are those that concern the health, safety and the advancement of the public good or welfare as affecting
the public generally.[6] Proprietary functions are those that seek to obtain special corporate benefits or earn pecuniary profit and intended for
private advantage and benefit.[7] When exercising governmental powers and performing governmental duties, an LGU is an agency of the
national government.[8] When engaged in corporate activities, it acts as an agent of the community in the administration of local affairs.[9]
Found in Section 16 of the Local Government Code is the duty of the LGUs to promote the peoples right to a balanced ecology.[10] Pursuant
to this, an LGU, like the City of Davao, can not claim exemption from the coverage of PD 1586. As a body politic endowed with
governmental functions, an LGU has the duty to ensure the quality of the environment, which is the very same objective of PD 1586.
Further, it is a rule of statutory construction that every part of a statute must be interpreted with reference to the context, i.e., that every part
must be considered with other parts, and kept subservient to the general intent of the enactment.[11] The trial court, in declaring local
government units as exempt from the coverage of the EIS law, failed to relate Section 2 of PD 1586[12] to the following provisions of the
same law:
WHEREAS, the pursuit of a comprehensive and integrated environmental protection program necessitates the establishment and
institutionalization of a system whereby the exigencies of socio-economic undertakings can be reconciled with the requirements of
environmental quality; x x x.
Section 1. Policy. It is hereby declared the policy of the State to attain and maintain a rational and orderly balance between socio-economic
growth and environmental protection.
xxxxxxxxx
Section 4. Presidential Proclamation of Environmentally Critical Areas and Projects. The President of the Philippines may, on his own
initiative or upon recommendation of the National Environmental Protection Council, by proclamation declare certain projects, undertakings
or areas in the country as environmentally critical. No person, partnership or corporation shall undertake or operate any such declared
environmentally critical project or area without first securing an Environmental Compliance Certificate issued by the President or his duly
authorized representative. For the proper management of said critical project or area, the President may by his proclamation reorganize such Pursuant thereto, Proclamation No. 2146 was issued on December 14, 1981, proclaiming the following areas and types of projects as
government offices, agencies, institutions, corporations or instrumentalities including the realignment of government personnel, and their environmentally critical and within the scope of the Environmental Impact Statement System established under PD 1586:
specific functions and responsibilities.
A. Environmentally Critical Projects
Section 4 of PD 1586 clearly states that no person, partnership or corporation shall undertake or operate any such declared environmentally
critical project or area without first securing an Environmental Compliance Certificate issued by the President or his duly authorized I. Heavy Industries
representative.[13] The Civil Code defines a person as either natural or juridical. The state and its political subdivisions, i.e., the local
government units[14] are juridical persons.[15] Undoubtedly therefore, local government units are not excluded from the coverage of PD a. Non-ferrous metal industries
1586. b. Iron and steel mills
c. Petroleum and petro-chemical industries including oil and gas
Lastly, very clear in Section 1 of PD 1586 that said law intends to implement the policy of the state to achieve a balance between socio- d. Smelting plants
economic development and environmental protection, which are the twin goals of sustainable development. The above-quoted first paragraph
of the Whereas clause stresses that this can only be possible if we adopt a comprehensive and integrated environmental protection program II. Resource Extractive Industries
where all the sectors of the community are involved, i.e., the government and the private sectors. The local government units, as part of the
machinery of the government, cannot therefore be deemed as outside the scope of the EIS system.[16] a. Major mining and quarrying projects
b. Forestry projects
The foregoing arguments, however, presuppose that a project, for which an Environmental Compliance Certificate is necessary, is
environmentally critical or within an environmentally critical area. In the case at bar, respondent has sufficiently shown that the Artica Sports 1. Logging
Dome will not have a significant negative environmental impact because it is not an environmentally critical project and it is not located in an 2. Major wood processing projects
environmentally critical area. In support of this contention, respondent submitted the following: 3. Introduction of fauna (exotic-animals) in public/private forests
4. Forest occupancy
1. Certification from the City Planning and Development Office that the project is not located in an environmentally critical area; 5. Extraction of mangrove products
6. Grazing
2. Certification from the Community Environment and Natural Resources Office (CENRO-West) that the project area is within the 18-30%
slope, is outside the scope of the NIPAS (R.A. 7586), and not within a declared watershed area; and c. Fishery Projects

3. Certification from PHILVOCS that the project site is thirty-seven (37) kilometers southeast of the southernmost extension of the Davao 1. Dikes for/and fishpond development projects
River Fault and forty-five (45) kilometers west of the Eastern Mindanao Fault; and is outside the required minimum buffer zone of five (5)
meters from a fault zone. III. Infrastructure Projects

The trial court, after a consideration of the evidence, found that the Artica Sports Dome is not within an environmentally critical area. Neither a. Major dams
is it an environmentally critical project. It is axiomatic that factual findings of the trial court, when fully supported by the evidence on record, b. Major power plants (fossil-fueled, nuclear fueled, hydroelectric or geothermal)
are binding upon this Court and will not be disturbed on appeal.[17] This Court is not a trier of facts.[18] c. Major reclamation projects
d. Major roads and bridges
There are exceptional instances when this Court may disregard factual findings of the trial court, namely: a) when the conclusion is a finding
grounded entirely on speculations, surmises, or conjectures; b) when the inference made is manifestly mistaken, absurd, or impossible; c) B. Environmentally Critical Areas
where there is a grave abuse of discretion; d) when the judgment is based on a misapprehension of facts; e) when the findings of fact are
conflicting; f) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same are contrary to the 1. All areas declared by law as national parks, watershed reserves, wildlife preserves and sanctuaries;
admissions of both appellant and appellee; g) when the findings of the Court of Appeals are contrary to those of the trial court; h) when the 2. Areas set aside as aesthetic potential tourist spots;
findings of fact are conclusions without citation of specific evidence on which they are based; i) when the finding of fact of the Court of 3. Areas which constitute the habitat for any endangered or threatened species of indigenous Philippine Wildlife (flora and fauna);
Appeals is premised on the supposed absence of evidence but is contradicted by the evidence on record; and j) when the Court of Appeals 4. Areas of unique historic, archaeological, or scientific interests;
manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different 5. Areas which are traditionally occupied by cultural communities or tribes;
conclusion.[19] None of these exceptions, however, obtain in this case. 6. Areas frequently visited and/or hard-hit by natural calamities (geologic hazards, floods, typhoons, volcanic activity, etc.);
7. Areas with critical slopes;
The Environmental Impact Statement System, which ensures environmental protection and regulates certain government activities affecting 8. Areas classified as prime agricultural lands;
the environment, was established by Presidential Decree No. 1586. Section 2 thereof states: 9. Recharged areas of aquifers;
10. Water bodies characterized by one or any combination of the following conditions;
There is hereby established an Environmental Impact Statement System founded and based on the environmental impact statement required
under Section 4 of Presidential Decree No. 1151, of all agencies and instrumentalities of the national government, including government- a. tapped for domestic purposes
owned or controlled corporations, as well as private corporations, firms and entities, for every proposed project and undertaking which b. within the controlled and/or protected areas declared by appropriate authorities
significantly affect the quality of the environment. c. which support wildlife and fishery activities

Section 4 of PD 1151, on the other hand, provides: 11. Mangrove areas characterized by one or any combination of the following conditions:

Environmental Impact Statements. Pursuant to the above enunciated policies and goals, all agencies and instrumentalities of the national a. with primary pristine and dense young growth;
government, including government-owned or controlled corporations, as well as private corporations, firms and entities shall prepare, file and b. adjoining mouth of major river systems;
include in every action, project or undertaking which significantly affects the quality of the environment a detailed statement on c. near or adjacent to traditional productive fry or fishing grounds;
d. which act as natural buffers against shore erosion, strong winds and storm floods;
(a) the environmental impact of the proposed action, project or undertaking e. on which people are dependent for their livelihood.
12. Coral reefs, characterized by one or any combinations of the following conditions:
(b) any adverse environmental effect which cannot be avoided should the proposal be implemented
a. with 50% and above live coralline cover;
(c) alternative to the proposed action b. spawning and nursery grounds for fish;
c. which act as natural breakwater of coastlines.
(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 In this connection, Section 5 of PD 1586 expressly states:

(e) whenever a proposal involves the use of depletable or nonrenewable 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.
Under Article II, Section 1, of the Rules and Regulations Implementing PD 1586, the declaration of certain projects or areas as
environmentally critical, and which shall fall within the scope of the Environmental Impact Statement System, shall be by Presidential
Proclamation, in accordance with Section 4 of PD 1586 quoted above.
Environmentally Non-Critical Projects. All other projects, undertakings and areas not declared by the President as environmentally critical
shall be considered as non-critical and shall not be required to submit an environmental impact statement. The National Environmental
Protection Council, thru the Ministry of Human Settlements may however require non-critical projects and undertakings to provide additional
environmental safeguards as it may deem necessary.
The Artica Sports Dome in Langub does not come close to any of the projects or areas enumerated above. Neither is it analogous to any of
them. It is clear, therefore, that the said project is not classified as environmentally critical, or within an environmentally critical area.
Consequently, the DENR has no choice but to issue the Certificate of Non-Coverage. It becomes its ministerial duty, the performance of
which can be compelled by writ of mandamus, such as that issued by the trial court in the case at bar.
WHEREFORE, in view of the foregoing, the instant petition is DENIED. The decision of the Regional Trial Court of Davao City, Branch 33,
in Civil Case No. 28,133-2000, granting the writ of mandamus and directing the Department of Environment and Natural Resources to issue
in favor of the City of Davao a Certificate of Non-Coverage, pursuant to Presidential Decree No. 1586 and related laws, in connection with
the construction of the Artica Sports Dome, is AFFIRMED.
SO ORDERED.
G.R. Nos. 171947-48 December 18, 2008
METROPOLITAN MANILA DEVELOPMENT AUTHORITY, DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES,
DEPARTMENT OF EDUCATION, CULTURE AND SPORTS,1 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, petitioners,
vs.
CONCERNED RESIDENTS OF MANILA BAY, represented and joined by DIVINA V. ILAS, SABINIANO ALBARRACIN, MANUEL
SANTOS, JR., DINAH DELA PEÑA, PAUL DENNIS QUINTERO, MA. VICTORIA LLENOS, DONNA CALOZA, FATIMA QUITAIN,
VENICE SEGARRA, FRITZIE TANGKIA, SARAH JOELLE LINTAG, HANNIBAL AUGUSTUS BOBIS, FELIMON SANTIAGUEL,
and JAIME AGUSTIN R. OPOSA, respondents.
DECISION
VELASCO, JR., J.:
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.2 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.
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.
This case started when, on January 29, 1999, respondents Concerned Residents of Manila Bay filed a complaint before the Regional Trial
Court (RTC) in Imus, Cavite against several government agencies, among them the petitioners, for the cleanup, rehabilitation, and protection
of the Manila Bay. Raffled to Branch 20 and docketed as Civil Case No. 1851-99 of the RTC, 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. (PD) 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 defendants] 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.3
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 (PD 1152);
(3) The Pollution Control Law (PD 984);
(4) The Water Code (PD 1067);
(5) The Sanitation Code (PD 856);
(6) The Illegal Disposal of Wastes Decree (PD 825);
(7) The Marine Pollution Law (PD 979);
(8) Executive Order No. 192;
(9) The Toxic and Hazardous Wastes Law (Republic Act No. 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 Bay and submit to the RTC a concerted
concrete plan of action for the purpose.
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.4
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.
The RTC Ordered Petitioners to Clean Up and Rehabilitate Manila Bay
On September 13, 2002, the RTC rendered a Decision5 in favor of respondents. The dispositive portion reads:
WHEREFORE, finding merit in the complaint, judgment is hereby rendered ordering the abovenamed defendant-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 Bay and 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.
No pronouncement as to damages and costs.
SO ORDERED.
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.
On the other hand, the DENR, Department of Public Works and Highways (DPWH), Metropolitan Manila Development Authority (MMDA),
Philippine Coast Guard (PCG), Philippine National Police (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.
Petitioners, before the CA, were one in arguing in the main that the pertinent provisions of the Environment Code (PD 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.
The CA Sustained the RTC

By a Decision6 of September 28, 2005, 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.7
Petitioners are now before this Court praying for the allowance of their Rule 45 petition on the following ground and supporting arguments:
THE [CA] DECIDED A QUESTION OF SUBSTANCE NOT HERETOFORE PASSED UPON BY THE HONORABLE COURT, I.E., IT
AFFIRMED THE TRIAL COURT’S DECISION DECLARING THAT SECTION 20 OF [PD] 1152 REQUIRES CONCERNED
GOVERNMENT AGENCIES TO REMOVE ALL POLLUTANTS SPILLED AND DISCHARGED IN THE WATER SUCH AS FECAL
COLIFORMS.
ARGUMENTS
I
[SECTIONS] 17 AND 20 OF [PD] 1152 RELATE ONLY TO THE CLEANING OF SPECIFIC POLLUTION INCIDENTS AND [DO]
NOT COVER CLEANING IN GENERAL
II
THE CLEANING OR REHABILITATION OF THE MANILA BAY IS NOT A MINISTERIAL ACT OF PETITIONERS THAT CAN BE
COMPELLED BY MANDAMUS.
The issues before us are two-fold. First, do Sections 17 and 20 of PD 1152 under the headings, Upgrading of Water Quality and Clean-up
Operations, envisage a cleanup in general or are they limited only to the cleanup of specific pollution incidents? And second, can petitioners
be compelled by mandamus to clean up and rehabilitate the Manila Bay?
On August 12, 2008, the Court conducted and heard the parties on oral arguments.
Our Ruling
We shall first dwell on the propriety of the issuance of mandamus under the premises.
The Cleaning or Rehabilitation of Manila Bay
Can be Compelled by Mandamus
Generally, the writ of mandamus lies to require the execution of a ministerial duty.8 A ministerial duty is one that "requires neither the
exercise of official discretion nor judgment."9 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."10 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 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, 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.
We agree with respondents.
First off, we wish 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 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. We said so in Social Justice Society v. Atienza11 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. But to illustrate with respect to the instant 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 Sec. 3(c) of Republic
Act No. (RA) 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. (Emphasis added.)
The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid Waste Management Act (RA 9003) which prescribes the minimum
criteria for the establishment of sanitary landfills and Sec. 42 which provides the minimum operating requirements that each site operator
shall maintain in the operation of a sanitary landfill. Complementing Sec. 41 are Secs. 36 and 37 of RA 9003,12 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 (PD 1152) and RA
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.13 A discretionary duty is one that "allows a person to exercise judgment and choose to perform or not to perform."14 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 Executive Order No. (EO) 192,15 is the primary agency responsible for the conservation, management, development,
and proper use of the country’s environment and natural resources. Sec. 19 of the Philippine Clean Water Act of 2004 (RA 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 Act’s Sec. 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."
The DENR, under RA 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. Sec. 19 of RA 9275 provides:
Sec. 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 RA 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 Sec. 3 of RA 6234,18 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 PD 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 RA 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.19 In
relation to the instant petition, the LWUA is mandated to provide sewerage and sanitation facilities in Laguna, Cavite, Bulacan, Pampanga,
and Bataan to prevent pollution in the Manila Bay.
(4) The Department of Agriculture (DA), pursuant to the Administrative Code of 1987 (EO 292),20 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.21 Likewise under RA 9275, the DA is charged with
coordinating with the PCG and DENR for the enforcement of water quality standards in marine waters.22 More specifically, its Bureau of
Fisheries and Aquatic Resources (BFAR) under Sec. 22(c) of RA 9275 shall primarily be responsible for the prevention and control of water
pollution for the 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 29223 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 Sec. 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, PD 1067, and other pertinent
laws.
(6) The PCG, in accordance with Sec. 5(p) of PD 601, or the Revised Coast Guard Law of 1974, and Sec. 6 of PD 979,24 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 PD 979. It
shall, under Sec. 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 Sec. 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 Sec. 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 Sec. 2 of EO 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, Sec. 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
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.27
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 73/78,28 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 RA 9003, which would necessary include its penal provisions, within its area of jurisdiction.29
Among the prohibited acts under Sec. 48, Chapter VI of RA 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 RA 9003, and operation of
waste management facilities without an environmental compliance certificate.
Under Sec. 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 PD 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 Sec. 8
of RA 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 Sec. 7230 of PD 856, the Code of Sanitation of the Philippines, and Sec. 5.1.131 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 (PD 1152), is mandated to integrate subjects on
environmental education in its school curricula at all levels.32 Under Sec. 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
(RA 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.33
(12) The Department of Budget and Management (DBM) is tasked under Sec. 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.34
One of the country’s development objectives is enshrined in RA 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 RA 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. We need not belabor the issue that their tasks include the cleanup of the Manila Bay.
Now, as to the crux of the petition. Do Secs. 17 and 20 of the Environment Code encompass the cleanup of water pollution in general, not just
specific pollution incidents?
Secs. 17 and 20 of the Environment Code
Include Cleaning in General
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 (RA 9275) took effect, its Sec. 16 on the subject, o, amended the counterpart provision (Sec. 20) of the
Environment Code (PD 1152). Sec. 17 of PD 1152 continues, however, to be operational.
The amendatory Sec. 16 of RA 9275 reads:
SEC. 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 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 Sec. 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 contend at every turn that Secs. 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 Sec. 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.
Petitioners proffer the argument that Secs. 17 and 20 of PD 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. They maintain that the application
of said Sec. 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. Pushing the point further, they argue that the aforequoted
Sec. 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 Sec. 62(h).
As a counterpoint, respondents argue that petitioners erroneously read Sec. 62(g) as delimiting the application of Sec. 20 to the containment,
removal, and cleanup operations for accidental spills only. Contrary to petitioners’ posture, respondents assert that Sec. 62(g), in fact, even
expanded the coverage of Sec. 20. Respondents explain that without its Sec. 62(g), PD 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. Respondents, however, emphasize that Sec. 62(g), far from being a delimiting provision, in fact even enlarged the operational scope
of Sec. 20, by including accidental spills as among the water pollution incidents contemplated in Sec. 17 in relation to Sec. 20 of PD 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 Sec. 20 of PD 1152 is constricted by the definition of the phrase "cleanup operations" embodied in Sec. 62(g), Sec. 17 is
not hobbled by such limiting definition. As pointed out, the phrases "cleanup operations" and "accidental spills" do not appear in said Sec. 17,
not even in the chapter where said section is found.
Respondents are correct. For one thing, said Sec. 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. On the contrary, Sec. 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 Sec. 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. Petitioners’ assertion, 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, is
quite off mark. As earlier discussed, the complementary Sec. 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 Sec. 20 of PD 1152 or Sec. 16 of RA 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 Secs. 17 and 20 of PD 1152 is at once valid as it is practical. The
appellate court wrote: "PD 1152 aims to introduce a comprehensive program of environmental protection and management. This is better
served by making Secs. 17 & 20 of general application rather than limiting them to specific pollution incidents."35
Granting arguendo that petitioners’ position thus described vis-à-vis the implementation of Sec. 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. We note that
Sec. 20 of PD 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. Sec. 16 of RA 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, Sec. 16 of RA 9275,
previously Sec. 20 of PD 1152, covers for all intents and purposes a general cleanup situation.
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 PD 1152, RA 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. Under what other judicial discipline
describes as "continuing mandamus,"36 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.37
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) (Parañaque-Zapote, Las Piñas) 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.38
Giving urgent dimension to the necessity of removing these illegal structures is Art. 51 of PD 1067 or the Water Code,39 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. (Emphasis added.)
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. 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.40
Given the above perspective, sufficient sanitary landfills should now more than ever be established as prescribed by the Ecological Solid
Waste Management Act (RA 9003). Particular note should be taken of the blatant violations by some LGUs and possibly the MMDA of Sec.
37, reproduced below:
Sec. 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. (Emphasis
added.)
RA 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 RA 9003 has yet been set up.
In addition, there are rampant and repeated violations of Sec. 48 of RA 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 Sec. 27 of RA 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 Secs. 4 and 102 of RA 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."
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.
RA 9003 is a sweeping piece of legislation enacted to radically transform and improve waste management. It implements Sec. 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.41 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.
WHEREFORE, 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 Sec. 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 Sec. 19 of RA 9275, designating the DENR as the primary
government agency responsible for its enforcement and 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 Sec. 25 of the Local Government Code of 1991,42 the
DILG, in exercising the President’s power of general supervision and its duty to promulgate guidelines in establishing waste management
programs under Sec. 43 of the Philippine Environment Code (PD 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 (Parañaque-Zapote,
Las Piñas) 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 Sec. 8 of RA 9275,43 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 RA 9275,44 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 Sec. 65 of RA 8550,45 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 Secs. 4 and 6 of PD 979, and the PNP Maritime Group, in accordance with Sec. 124 of RA 8550, in coordination
with each other, shall apprehend violators of PD 979, RA 8550, and other existing laws and regulations designed to prevent marine pollution
in the Manila Bay.
(7) Pursuant to Secs. 2 and 6-c of EO 51346 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 (Parañaque-Zapote, Las Piñas)
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 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 RA 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 RA 9003,47 Sec. 27 of RA 9275 (the Clean Water Act), and other existing laws
on pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 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 Sec. 53 of PD 1152,48 Sec. 118 of RA 8550, and Sec. 56 of RA 9003,49 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.
No costs.
SO ORDERED.
PRESIDENTIAL DECREE No. 1151
PHILIPPINE ENVIRONMENTAL POLICY
WHEREAS, the individual and, at times, conflicting, demands of population growth, urbanization, industrial expansion, rapid natural
resources utilization and increasing technological advances have resulted in a piecemeal-approach concept of environmental protection;
WHEREAS, such tunnel-vision concept is not conducive to the attainment of an ideal environmental situation where man and nature can
thrive in harmony with one another; and
WHEREAS, there is now an urgent need to formulate an intensive, integrated program of environmental protection that will bring about a
concerted effort towards the protection of the entire spectrum of the environment through a requirement of environmental impact assessments
and statements:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution,
do hereby order and decree:
Section 1. Policy. It is hereby 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.
Section 2. Goal. In pursuing this policy, it shall be the responsibility of the Government, in cooperation with concerned private organizations
and entities, to use all practicable means, consistent with other essential considerations of national policy, in promoting the general welfare to
the end that the Nation may (a) recognize, discharge and fulfill the responsibilities of each generation as trustee and guardian of the
environment for succeeding generations, (b) assure the people of a safe, decent, healthful, productive and aesthetic environment, (c)
encourage the widest exploitation of the environment without degrading it, or endangering human life, health and safety or creating
conditions adverse to agriculture, commerce and industry, (d) preserve important historic and cultural aspects of the Philippine heritage, (e)
attain a rational and orderly balance between population and resource use, and (f) improve the utilization of renewable and non-renewable
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.
Section 6. Repealing Clause. All Acts, Presidential Decrees, executive orders, rules and regulations or parts thereof which are inconsistent
with the provisions of this Decree are hereby repealed, amended or modified accordingly.
Section 7. Effectivity. This Decree shall take effect immediately.
Done in the City of Manila this 6th day of June in the year of Our Lord, nineteen hundred and seventy-nine.