Philippine Ecological Network, Inc. Vs. Factoran and Rosario (G.R. No.

101083)
Title and Case Number

Parties involved:
Petitioners: Juan Antonio, Anna Rosario, Jose Alfonso, and others (minors)
represented by their parents, and The Philippine Ecological Network, Inc.
Respondents: Hon. Fulgencio S. Factoran, Jr., in his capacity as the Secretary of the
Department of Environment and Natural Resources, and Hon. Eribberto U. Rosario,
Presiding Judge of the RTC, Makati, Branch 66

Key Issues:
1. Interpretation and implementation of environmental laws, specifically the
requirements for obtaining Environmental Compliance Certificates (ECCs)
2. Duty of the Department of Environment and Natural Resources (DENR) to protect
the environment and promote sustainable development
3. Consultation with affected communities and indigenous peoples, as required by
law

Background:
● The petitioners have raised concerns regarding the issuance of ECCs by the DENR
for various projects. They argue that the DENR has been issuing ECCs without
proper evaluation of the projects' environmental impacts, which violates the
principles of sustainable development and the constitutional right to a balanced
and healthful ecology. The petitioners have also cited instances where ECCs were
issued without adequate consultation with affected communities and indigenous
peoples.

Analysis/Application:
● The Court should uphold the principles of sustainable development and social
justice, and ensure that the DENR is held accountable for its actions. The Court
should also recognize the rights of indigenous peoples and ensure that they are
consulted and involved in decision-making processes that affect their communities.
The legal basis for this case is provided by various environmental laws, including
the National Integrated Protected Areas System Act, the Clean Water Act, and the
Indigenous Peoples' Rights Act.

Facts:
● The petitioners have provided evidence that the DENR has failed to meet its
obligations under the law. They have cited instances where ECCs were issued
without proper environmental impact assessments (EIAs) or without adequate
consultation with affected communities. They have also highlighted the potential
negative impacts of the projects on the environment and the rights of indigenous
peoples.

Ruling:
● The Court should grant the petition and review the actions of the DENR regarding
the issuance of ECCs. The Court should also recognize the rights of indigenous
peoples and ensure that they are consulted and involved in decision-making
processes that affect their communities. The Court should hold the DENR
accountable for its actions and ensure that it fulfills its obligations under the law.

Legal Basis:
1. National Integrated Protected Areas System Act (R.A. No. 7586)
2. Clean Water Act (R.A. No. 9272)
3. Indigenous Peoples' Rights Act (R.A. No. 8371)

Conclusion:
● The Court should uphold the principles of sustainable development and social
justice, and ensure that the DENR is held accountable for its actions. The Court
should also recognize the rights of indigenous peoples and ensure that they are
consulted and involved in decision-making processes that affect their communities.
The Court should grant the petition and review the actions of the DENR regarding
the issuance of ECCs.
 Resident Marine Mammals of Tanon Strait Vs. Reyes and Atienza (G.R. No. 180771)
Title and Case Number

Parties Involved:
Petitioners: Resident marine mammals of Tañon Strait, represented by Gloria
Estenzo Ramos and Rose-Liza Eisma-Osorio.
Respondents: Secretary Angelo Reyes (Department of Energy), Secretary Jose L.
Atienza (Department of Environment and Natural Resources), Leonardo R. Sibbaluca
(DENR Regional Director-Region VII and Chairperson of the Tañon Strait Protected
Seascape Management Board), Bureau of Fisheries and Aquatic Resources (BFAR),
Director Malcolm J. Sarmiento, Jr. (BFAR Regional Director for Region VII), Andres
M. Bojos, Japan Petroleum Exploration Co., Ltd. (JAPEX), represented by its
Philippine Agent, Supply Oilfield Services, Inc.

Key Issues:
1. Protection of marine mammals in the Tanon Strait, which is a protected seascape,
from the negative impacts of oil and gas exploration and development activities.
2. Compliance with environmental laws and policies, particularly the National
Integrated Protected Areas System Act (R.A. No. 7586), the Clean Water Act (R.A. No.
9272), and the Philippine Fisheries Code (R.A. No. 8550).
3. Consultation and participation of affected communities, including indigenous
peoples, in decision-making processes that affect their rights and livelihoods.

Background:
● The petitioners, who represent the resident marine mammals in the Tanon Strait,
have raised concerns regarding the potential negative impacts of oil and gas
exploration and development activities on their habitat and survival. They argue
that the respondents, particularly the DOE, DENR, and BFAR, have failed to
adequately consider the environmental and social impacts of these activities and
have not consulted and involved affected communities in decision-making
processes.

Analysis/Application:
● The Court should uphold the rights of the resident marine mammals in the Tanon
Strait and ensure that their habitat and survival are protected from the negative
impacts of oil and gas exploration and development activities. The Court should
also ensure that the respondents, particularly the DOE, DENR, and BFAR, fulfill their
obligations under environmental laws and policies, such as the National Integrated
Protected Areas System Act (R.A. No. 7586), the Clean Water Act (R.A. No. 9272), and
the Philippine Fisheries Code (R.A. No. 8550). The Court should also recognize the
rights of affected communities, including indigenous peoples, and ensure that they
are consulted and involved in decision-making processes that affect their rights and
livelihoods.

Facts:
● The petitioners have provided evidence that the respondents have failed to
adequately consider the environmental and social impacts of oil and gas exploration
and development activities on the Tanon Strait and its resident marine mammals.
They have also cited instances where affected communities, including indigenous
peoples, were not consulted and involved in decision-making processes.

Ruling:
● The Court should grant the petition and review the actions of the respondents
regarding oil and gas exploration and development activities in the Tanon Strait.
The Court should also ensure that the respondents fulfill their obligations under
environmental laws and policies and consult and involve affected communities,
including indigenous peoples, in decision-making processes.

Legal Basis:
1. National Integrated Protected Areas System Act (R.A. No. 7586)
2. Clean Water Act (R.A. No. 9272)
3. Philippine Fisheries Code (R.A. No. 8550)

Conclusion:
● The Court should uphold the rights of the resident marine mammals in the Tanon
Strait and ensure that their habitat and survival are protected from the negative
impacts of oil and gas exploration and development activities. The Court should
also ensure that the respondents fulfill their obligations under environmental laws
and policies and consult and involve affected communities, including indigenous
peoples, in decision-making processes. The Court should grant the petition and
review the actions of the respondents regarding oil and gas exploration and
development activities in the Tanon Strait.
Part V The environment and natural resources, 15 Legal aspects of
the protection of the environment
From: James Crawford SC, FBA

Legal Aspects of the Protection of the Environment

1. Role of International Law:

● Increased appreciation for environmental risks and potential irreversible damage
● Enhanced legal protection of the environment through collective action,
international organizations, and non-governmental organizations
● Extensive environmental agenda includes issues such as ozone depletion, climate
change, nuclear power, polar regions, endangered species, and waste disposal
● General international law provides legal underpinnings for environmental
protection, including principles of state responsibility and territorial sovereignty
● Environmental issues have involved cases concerning nuclear tests, Nauru, and
international seabed mining

2. Deficiencies in the Adversarial System of Responsibility:

● Focuses on addressing harm after it has occurred instead of prevention
● Difficulty in selecting and deploying an appropriate basis of claim due to
incremental and complex causal mechanisms
● Requirement of material or significant damage as a necessary condition of claim can
be uneasy in relation to scientific proof of environmental harm and multiple
causation

3. Rio Conference and Development of International Environmental Law:

● Evidence of international concern for environmental protection through earlier
international agreements
● Broader political and legal agenda culminating in the Rio Conference in 1992
● Call for further development of international law on sustainable development,
linking environmental and developmental concerns
● Production of Agenda 21, Rio Declaration, and two new conventions (Biodiversity
Convention and UNFCCC)
● Importance of preventive action in the area of environmental protection gaining
support
● Requests for interim measures of protection in international claims due to the long
resolution time of environmental claims

Emergent Legal Principles

● A number of candidate legal principles have emerged from this ferment of activity:
the more important of these may be briefly reviewed.

1. Preventive principle
a. Requires action to be taken at an early stage to prevent environmental harm,
as prevention is of the utmost importance due to the often irreversible nature
of environmental damage and limitations of reparation after the fact. This
principle is supported through a range of domestic and international
measures, including prohibiting harmful activities and enforcing compliance
with standards.

2. Precautionary principle
a. This principle is still evolving and lacks a clear and uniform understanding
among states and other members of the international community. It is
defined as a strategy for addressing risk and is used to justify precautionary
regulation in some national systems. The principle is supported in the Rio
Declaration, which states that where there are threats of serious or
irreversible damage, lack of full scientific certainty shall not be used as a
reason for postponing cost-effective measures to prevent environmental
degradation.

3. Concept of sustainable development

 a. This concept is better understood as a collection or collocation of different
legal categories, and as a general guideline. It includes trade, investment, and
social concerns, and aims to achieve development by integrating social,
economic, and environmental considerations in a way that provides for and
protects the long-term well-being of populations.

4. Polluter-pays principle
a. This principle is essentially a general guideline, and its content is vague. It
entails that the polluter should, in principle, bear the cost of pollution, with
due regard to the public interest and without distorting international trade
and investment.

5. Sic utere tuo principle

a. This principle requires states to ensure that activities within their
jurisdiction and control respect the environment of other states and areas
beyond national control.

Environmental impact assessment

● This technique integrates environmental considerations into decision-making
processes and is required by Principle 17 of the Rio Declaration for proposed
activities that are likely to have a significant adverse impact on the environment.
The Espoo Convention on Environmental Impact Assessment in a Transboundary
Context requires parties to assess the transboundary environmental effects of
certain actions within their jurisdiction and to notify and consult with potentially
affected states about those effects.

Quantification of environmental damages

● This is a challenging issue that courts and tribunals will have to address as
environmental regulations at the international level become more effective. The
Certain Activities case involved the assessment and quantification of damages to a
small area of Costa Rican wetland affected by unlawful Nicaraguan dredging
activities. The amount awarded for impairment was criticized for being too low,
with the dissenting opinion describing it as a "token" amount and unreasoned.

Development of multilateral standard-setting conventions

● The development of international environmental law is marked by conventions that
regulate economic activities contributing to environmental harm. Examples, such as
CITES, the Vienna Convention on the Protection of the Ozone Layer, and the Basel
Convention on Transboundary Movements of Hazardous Wastes, establish
international regimes offering structure and resources to address environmental
problems through regulatory measures.

Climate change
● The Fifth Assessment Report of the Intergovernmental Panel on Climate Change
confirmed greenhouse gas emissions' significant role in climate change. The
international climate change regime, consisting of the UNFCCC, Kyoto Protocol, and
Paris Agreement, seeks to address this issue. The Paris Agreement adopts a
bottom-up approach, allowing member states to independently determine and
enhance their nationally determined contributions while incorporating
transparency measures through international reporting and verification
mechanisms.

Traffic in endangered species

● The Convention on International Trade in Endangered Species of Wild Fauna and
Flora (CITES) aims to regulate the trade in species threatened with extinction by
requiring strict regulation and authorization only in exceptional circumstances. The
case of Whaling in the Antarctic involved Japan's whaling program, which was
conducted despite the declared moratorium on commercial whaling. The court held
that the choice of lethal methods and the sample sizes for fin and humpback whales
were not driven by strictly scientific considerations.

Protection of the ozone layer

● The Vienna Convention on the Protection of the Ozone Layer is largely a framework
requiring further action by the parties. The Montreal Protocol established
 substantive controls on substances linked to ozone depletion, a mechanism for
reporting progress, and a multilateral fund for financial and technical cooperation.
This regime has been described as dynamic and flexible in its operation, and its
universal ratification, in combination with some evidence supporting a reduction in
ozone depletion, suggests a measure of success.

Transboundary movement of hazardous waste

● The Basel Convention addresses international hazardous waste transport, allowing
exports if the sending country lacks disposal capacity and the waste is needed for
recycling in the receiving country. Despite criticisms for not regulating internal
hazardous waste production and contributing to environmental issues in developing
nations, the convention is seen as a step forward given the complexities of the
political landscape surrounding the issue.

Protection of the marine environment:

➔ Control of marine pollution is an increasingly important environmental concern.
➔ UNCLOS provides a general obligation for states to protect and preserve the marine
environment (Article 192).
➔ Regional agreements such as the OSPAR Convention and UNEP Regional Seas
programme address aspects of marine environmental protection.
➔ Specific instruments such as MARPOL 73/78 and the London Convention address
pollution from vessels and dumping of waste, respectively.
➔ Greatest difficulties lie in effectively regulating pollution from land-based activities,
which is by far the largest source of marine pollution.
➔ General Assembly recommends adoption of a legally binding instrument concerning
conservation and sustainable use of marine biological diversity in areas beyond
national jurisdiction.

Other conventions and institutions:

● Exist to regulate different types of environmental risks and impacts, such as the
Convention on Early Notification of a Nuclear Accident, the Convention on the
Protection and Use of Transboundary Watercourses and Lakes, and the Biodiversity
Convention and its Protocols on Biosafety and Genetic Resources.

Conclusion:
● General principles of international law have been adapted to reflect concerns as to
the protection of the environment, including the preventive principle, the
precautionary principle, the polluter-pays principle, and sustainable development.
● Implementation of these instruments in national law and practice remains uneven,
but the authoritative statement of principles in international environmental treaties
and the dispute-resolution and law-making institutions attached to them provide a
reference point for future development in the field.