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On April 6, 1998, the Court of Appeals rendered its decision, granting BCCs
petition, thus:
Before this Court is a petition for review on certiorari of the decision[1] of the
Court of Appeals in CA-G.R. SP No. 44324, promulgated on April 6, 1998,
and the resolution[2] dated February 24, 1999 denying petitioners motion for
reconsideration.
SO ORDERED.[8]
It reasoned that:
The complaint alleges that: WFPI and the Municipality of Subic entered into
an illegal lease contract, which in turn became the basis of a sub-lease in favor
of BCC; the sub-lease between WFPI and BCC is a violation of the first lease
because the cement plant, which BCC intended to operate in Wawandue,
Subic, Zambales, is not related to the fish port business of WFPI; and BCCs
cement plant is a nuisance because it will cause pollution, endanger the health,
life and limb of the residents and deprive them of the full use and enjoyment
of their properties. The plaintiffs prayed that an order be issued: to restrain
and prohibit BCC from opening, commissioning, or otherwise operating its
cement plant; and to require the defendants to jointly and solidarily pay the
plaintiffs P205,000.00 by way of actual, moral and exemplary damages and
attorneys fees.[3]
Defendants WFPI/Khong Hun and BCC filed separate motions to dismiss,
both alleging that the complaint states no cause of action. BCC, in its motion,
added that: the plaintiffs failed to exhaust administrative remedies before
going to court; that the complaint was premature; and that the RTC has no
jurisdiction on the matter. Respondent Serrano of the DENR also filed a
motion to dismiss stating that there was no cause of action insofar as he is
concerned since there was nothing in the complaint that shows any dereliction
of duty on his part.[4]
On December 6, 1996, Judge Eliodoro G. Ubiadas of RTC Olongapo City,
Branch 72, issued an order denying respondents motions to dismiss and
granting the prayer for a writ of preliminary injunction.[5] Pertinent portions
of the order read as follows:
The Court notes that the powers vested by law under Executive Order 192,
Republic Act 3931 and Presidential Decree 984 are regulatory merely and for
the purpose of determining whether pollution exists.
However, under the laws above-mentioned, the powers granted to the DENR
thru the Pollution Adjudication Board did not expressly exclude the Courts
which under the law are empowered to try both questions of facts and law to
determine whether pollution which maybe nuisance per se or by accidents
(sic) exist or likely to exist. Under the Constitution, the courts are imbued the
inherent power of general jurisdiction to resolve these issues. While it maybe
(sic) true that petitioners might have first to seek relief thru the DENRs
Pollution Adjudication Board a resort to the remedy provided under the
Pollution Adjudication Board is rendered useless and ineffective in the light of
the urgency that the said pollution be restrained outright in lieu of the
impending risk described in the petition. It will be noted that the DENR did
not have the power either in Executive Order 192, Republic Act 3931 and
Presidential Decree 984 to issue a writ of injunction. The argument therefore
for the exhaustion of administrative remedy and lack of jurisdiction does not
warrant the dismissal of this petition against Bacnotan Cement Corporation.
[6]
Respondents motions for reconsideration were likewise denied by the trial
court in an order dated May 13, 1997.[7]
Respondent BCC then went to the Court of Appeals on a petition for certiorari
and prohibition with preliminary injunction and/or temporary restraining order
seeking to reverse and set aside the orders dated December 6, 1996 and May
13, 1997 as well as to lift the writ of preliminary injunction dated December
11, 1996.
FIRSTLY. We find that the denial of said Motion to Dismiss by the Court a
quo, was a grave abuse of discretion because of the doctrine of Administrative
Remedy which requires that where an administrative remedy is provided by
statute, relief must be sought administratively first before the Court will take
action thereon. As ruled by the Supreme Court in the case of Abe Abe, et al.
vs. Manta (90 SCRA 524). When an adequate remedy may be had within the
Executive Department of the government but nevertheless a litigant fails or
refuses to avail himself of the same, the Judiciary shall decline to interfere.
This traditional attitude of the Court is based not only on respect for party
litigants but also on respect for a co-equal office in the government. In fine,
our Supreme Court has categorically explained in Aquino vs. Mariano (129
SCRA 209) that whenever, there is an available Administrative Remedy
provided by law, no judicial recourse can be made until such remedy has been
availed of and exhausted for three (3) reasons that: (1) Resort to court maybe
unnecessary if administrative remedy is available; (2) Administrative Agency
may be given a chance to correct itself; and (3) The principle of Amity and
Convenience requires that no court can act until administrative processes are
completed. Commissioner of Customs vs. Navarro (77 SCRA 264).
SECONDLY, it is a well-settled rule that the jurisdiction of the Regional Trial
Court is general in character, referring to the existence of nuisance under the
provision of Article 694 of the New Civil Code. On the other hand, the
Department of Environment and Natural Resources, through the Pollution
Adjudication Board (PAB) under R.A. 3931 as amended by P.D. 984,
prescribes the Abatement of Pollution. In fine, when it comes to nuisance, the
Court has general jurisdiction under the New Civil Code. But when it comes
to pollution which is specific, the administrative body like the DENR has
jurisdiction. Clearly, nuisance is general or broader in concept while pollution
is specific. Following the rule that the specific issue of pollution, which is
under the jurisdiction of DENR prevails over the general issue of nuisance
which is under the jurisdiction of the RTC (Lagman vs. City of Manila, 17
SCRA 579), there is no doubt that the DENR and not the Court should have
jurisdiction. Hence, the motion to dismiss filed by petitioner should have
been GRANTED by the Court a quo. Since it has no jurisdiction over the
subject matter. Its denial by public respondent was therefore a grave abuse of
discretion, which is correctible by certiorari.
THIRDLY. We should not lose sight of the fact that the authority to construct
in this case is necessarily required prior to the actual construction of
petitioners cement bulk terminal while the permit to operate likewise is
required before the petitioners cement bulk terminal commences its
operation. In this case, the petitioner, at the time, had only the authority to
construct, pursuant to a valid contract between the WFPI and the petitioner
BCC, approved by the Sangguniang Bayan of Subic and Sangguniang
Panlalawigan of Zambales and pursuant to the requisite of DENR. Again, it
should be remembered that, at the time, petitioner did not yet have the permit
to operate (which should properly be made only after a factual determination
of the levels of pollution by the DENR). Hence, the injunction issued in this
case is premature and should not have been issued at all by public respondent.
FOURTHLY. The effect of the writ of injunction enjoining petitioner from
operating the cement bulk terminal (Order of December 6, 1996) and the
public respondents refusal to defer the proceedings below, virtually preempt
the DENR from making such determination, nay even the authority to issue
the permit to operate is likewise preempted. How can we therefore enjoin
operation before the issuance of the permit to operate? It is also a settled rule
that the remedy of injunction is not proper where an administrative remedy is
available. The permit to operate may not even be issued, at all, by the DENR
(Buayan Cattle Co. Inc., vs. Quintillan, 128 SCRA 276).
Evidently, the writ of injunction issued in this case, as We view it, is
premature. In fact, by issuing the Order of Dec. 6, 1996, the public
respondent wrestled the authority from the DENR to determine whether the
cement bulk terminal will cause pollution or not, or whether the pollution may
only be on acceptable level as to justify the issuance of the permit to operate.
While conceding that prior resort should be made to the DENR, the
respondent Judge proceeded to take the contrary stand, following the private
respondents contention that the doctrine of exhaustion of administrative
remedies are [sic] inapplicable, since it would cause irreparable injury if
private respondents should avail of administrative step before taking Court
action.
has an authority to construct and not yet permit to operate at the time of
the filing of the complaint, the writ of injunction issued by the trial court
preempted the DENR from making the determination of whether or not BCC
should be allowed to operate; the complaint was properly dismissed since
petitioners have no legal capacity to bring a suit for abatement of nuisance;
and the right invoked by petitioners is abstract and is not sufficient to confer
locus standi.[18]
In their Reply, petitioners reiterated their arguments and added that they have
fully complied with the requirements of Rule 45.[19]
We do not agree.
The respondents contention is clearly baseless and highly speculative because
how can it possibly produce irreparable injury before the actual operation
since petitioner has not yet been issued permit to operate. Besides, We find no
evidence shown in the complaint or alleged therein that will support the
presence of pollution and which could properly be the subject of injunction.
Finally, it is interesting to note that the complaint filed by the private
respondents has no prayer for preliminary injunction (it was not asked, why
then should it be given?). Furthermore, the Sublease Agreement having been
partly executed, it could no longer be enjoined.
By and large, the lower courts denial of petitioners motion to dismiss is
undoubtedly a grave abuse of discretion amounting to lack of jurisdiction.[9]
The Court of Appeals denied petitioners motion for reconsideration on
February 24, 1999.[10] Hence the present petition alleging that:
I
. . . THE HONORABLE COURT OF APPEALS HAD CLEARLY
DEPARTED
FROM
THE
ESTABLISHED
JURISPRUDENCE
ENUNCIATED BY THIS HONORABLE COURT WHEN IT RULED THAT
THE HEREIN PETITIONERS FAILED TO EXHAUST ADMINISTRATIVE
REMEDIES AVAILABLE TO THEM BEFORE THE DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES (DENR) POLLUTION
ADJUDICATION BOARD (PAB); and that
II
THE COURT OF APPEALS ALSO GROSSLY ERRED IN RULING THAT
THE REGIONAL TRIAL COURT OF OLONGAPO CITY, BRANCH 72
HAS NO JURISDICTION OVER THE ISSUE OF POLLUTION.[11]
Petitioners argue that: prior resort to an administrative agency is futile and
unnecessary since great and irreparable injury would ensue if the cement
repacking plant is allowed to operate in Wawandue, Subic, Zambales; only the
court can grant them speedy, effective and immediate relief since the DENRPollution Adjudication Board (PAB) has no authority to issue the needed writ
of injunction prayed for by petitioners; E.O. No. 192,[12] R.A. No. 3931[13]
or P.D. No. 984[14] does not expressly exclude the power and authority of the
RTC to try both questions of fact and of law relative to the determination of
the existence of pollution arising from the operation of respondents cement
repacking plant either as a nuisance per se or a nuisance per accidens; and the
lower court under the Constitution is imbued with the inherent power and
jurisdiction to resolve the issue of pollution.[15]
In its Comment, BCC contends that: the instant petition should be dismissed
because it is not accompanied by a copy of the petition in CA G.R. SP No.
44324, which violates Rule 45, Sec. 4 of the Rules of Court requiring that the
petition be accompanied by relevant pleadings;[16] the Court of Appeals
correctly held that the jurisdiction to determine the issue of pollution is lodged
primarily with the DENR and not with the RTC; under P.D. No. 984, the task
of determining the existence of pollution was bestowed on the National
Pollution Control Commission (NPCC), the powers of which were assumed
by the DENR under E.O. No. 192; the jurisdiction of the trial courts anent
abatement of nuisance in general cannot prevail over the specific, specialized
and technical jurisdiction of the DENR-PAB; under the doctrine of exhaustion
of administrative remedies, where competence to determine the same issue is
placed in the trial court and an administrative body and the issue involves a
specialized and technical matter, relief should first be sought before the
administrative body prior to instituting suit before the regular courts; the relief
sought by the petitioners to prevent the supposedly injurious operation of
BCCs cement bulk terminal can be effectively obtained from the DENR,
which, under P.D. No. 984, has the authority to grant, modify and revoke
permits, and to issue orders for the abatement of pollution and impose
mandatory pollution control measures for compliance;[17] since the BCC only
The principal issue that needs to be resolved is whether or not the instant case
falls under the exceptional cases where prior resort to administrative agencies
need not be made before going to court.
We answer in the negative.
The doctrine of exhaustion of administrative remedies requires that resort be
first made with the administrative authorities in the resolution of a controversy
falling under their jurisdiction before the same may be elevated to a court of
justice for review.[20] If a remedy within the administrative machinery is still
available, with a procedure pursuant to law for an administrative officer to
decide the controversy, a party should first exhaust such remedy before going
to court. A premature invocation of a courts intervention renders the
complaint without cause of action and dismissible on such ground.[21]
The reason for this is that prior availment of administrative remedy entails
lesser expenses and provides for a speedier disposition of controversies.
Comity and convenience also impel courts of justice to shy away from a
dispute until the system of administrative redress has been completed and
complied with.[22]
As we explained in Gonzales vs. Court of Appeals,[23]
The thrust of the rule on exhaustion of administrative remedies is that the
courts must allow the administrative agencies to carry out their functions and
discharge their responsibilities within the specialized areas of their respective
competence. It is presumed that an administrative agency, if afforded an
opportunity to pass upon a matter, will decide the same correctly, or correct
any previous error committed in its forum. Furthermore, reasons of law,
comity and convenience prevent the courts from entertaining cases proper for
determination by administrative agencies. Hence, premature resort to the
courts necessarily becomes fatal to the cause of action of the petitioner.[24]
While the doctrine of exhaustion of administrative remedies is flexible and
may be disregarded in certain instances, such as:
(1) when there is a violation of due process,
(2) when the issue involved is purely a legal question,
(3) when the administrative action is patently illegal amounting to lack or
excess of jurisdiction,
(4)
when there is estoppel on the part of the administrative agency
concerned,
(5) when there is irreparable injury,
(6) when the respondent is a department secretary whose acts as an alter ego
of the President bears [sic] the implied and assumed approval of the latter,
(7)
when to require exhaustion of administrative remedies would be
unreasonable,
(8) when it would amount to a nullification of a claim,
(9) when the subject matter is a private land in land case proceedings,
(10)
when the rule does not provide a plain, speedy and adequate remedy,
(11)
when there are circumstances indicating the urgency of judicial
intervention,
(12)
when no administrative review is provided by law,
(13)
where the rule of qualified political agency applies, and
(14)
when the issue of non-exhaustion of administrative remedies has been
rendered moot.[25]
we find, however, that the instant case does not fall under any of the
recognized exceptional circumstances.
Petitioners claim that their action before the trial court, without going to the
DENR first, is justified because they are in danger of suffering grave and
irreparable injury from the operation of respondents cement repacking plant
and the DENR does not have the power to grant them the relief they are
praying for.
We do not agree.
Republic Act No. 3931, An Act Creating the National Water and Air Pollution
Control Commission, was passed on June 18, 1964 to maintain reasonable
standards of purity for the waters and air of the country with their utilization
for domestic, agricultural, industrial and other legitimate purposes. It created
the NPCC which had the power, to issue, renew, or deny permits, for the
prevention and abatement of pollution.[26]
In 1976, Presidential Decree No. 984 was enacted to strengthen the NPCC
giving it, among others, the following:
Sec. 6. Powers and Functions . . .
...
(e)
Issue orders or decisions to compel compliance with the provisions of
this Decree and its implementing rules and regulations only after proper notice
and hearing.
(f)
Make, alter or modify orders requiring the discontinuance of pollution
specifying the conditions and the time within which such discontinuance must
be accomplished.
(g)
Issue, renew, or deny permits, under such conditions as it may
determine to be reasonable, for the prevention and abatement of pollution, for
the discharge of sewage, industrial waste, or for the installation or operation of
sewage works and industrial disposal system or parts thereof
(j)
serve as arbitrator for the determination of reparations, or restitution of
the damages and losses resulting from pollution.
P.D. No. 984 also empowered the commission to issue ex parte orders
directing the discontinuance or temporary suspension or cessation of operation
of an establishment or person generating sewage or wastes without the
necessity of prior public hearing whenever it finds a prima facie evidence that
the discharged sewage or wastes are of immediate threat to life, public health,
safety or welfare, or to animal or plant life, or exceed the allowable standards
set by the commission.[27]
In 1987, Executive Order No. 192 was passed, reorganizing the DENR. It
transferred the power of the NPCC to the Environmental Management
Bureau[28] and created the PAB, under the Office of the Secretary, which
assumed the powers and functions of the NPCC with respect to the
adjudication of pollution cases under R.A. No. 3931 and P.D. No. 984.[29]
In Pollution Adjudication Board vs. Court of Appeals,[30] we stated that the
PAB is the very agency of the government with the task of determining
whether the effluents of a particular industrial establishment comply with or
violate applicable anti-pollution statutory and regulatory provisions.[31] We
also recognized its power to issue, ex parte, cease and desist orders, thus:
. . . under . . . Section 7(a) of P.D. No. 984, an ex parte cease and desist order
may be issued by the (PAB) (a) whenever the wastes discharged by an
establishment pose an immediate threat to life, public health, safety or
welfare, or to animal or plant life, or (b) whenever such discharges or wastes
exceed the allowable standards set by the [NPCC]. . . . [I]t is not essential
that the Board prove that an immediate threat to life, public health, safety or
welfare, or to animal or plant life exists before an ex parte cease and desist
order may be issued. It is enough if the Board finds that the wastes discharged
do exceed the allowable standards set by the [NPCC]. In respect of
discharges of wastes as to which allowable standards have been set by the
Commission, the Board may issue an ex parte cease and desist order when
there is prima-facie evidence of an establishment exceeding such allowable
standards. Where, however, the effluents or discharges have not yet been the
subject matter of allowable standards set by the Commission, then the Board
may act on an ex parte basis when it finds at least prima facie proof that the
wastewater or material involved presents an immediate threat to life, public
health, safety or welfare or to animal or plant life. . . .
...
Ex parte cease and desist orders are permitted by law and regulations in
situations like that here presented precisely because stopping continuous
discharge of pollutive and untreated effluents into the rivers and other inland
waters of the Philippines cannot be made to wait until protracted litigation
over the ultimate correctness or propriety of such orders has run its full
course, including multiple and sequential appeals such as those which Solar
has taken, which of course may take several years. The relevant pollution
control statute and implementing regulations were enacted and promulgated in
the exercise of that pervasive, sovereign power to protect the safety, health,
and general welfare and comfort of the public, as well as the protection of
plant and animal life, commonly designated as the police power. It is a
constitutional commonplace that the ordinary requirements of procedural due
process yield to the necessities of protecting vital public interests like those
here involved, through the exercise of police power. . . .[32]
In Laguna Lake Development Authority vs. Court of Appeals,[33] we also
pronounced that:
The matter of determining whether there ispollution of the environment that
requires control, if not prohibition, of the operation of a business
establishment is essentially addressed to the Environmental Management
Bureau (EMB) of the DENR which, by virtue of Section 16 of Executive
Order No. 192, series of 1987 has assumed the powers and functions of the
defunct National Pollution Control Commission created under Republic Act
No. 3931. Under said Executive Order, a Pollution Adjudication Board (PAB)
under the Office of the DENR Secretary now assumes the powers and
functions of the National Pollution Control Commission with respect to
adjudication of pollution cases.
As a general rule, the adjudication of pollution cases generally pertains to the
Pollution Adjudication Board (PAB), except in cases where the special law
provides for another forum.[34]
Clearly, the claim of petitioners that their immediate recourse to the regular
courts is justified because the DENR is powerless to grant them proper relief
is without basis.
The Court of Appeals correctly found that the petitioners failed to exhaust
administrative remedies before going to court which renders their complaint
dismissible on the ground of lack of cause of action.
WHEREFORE, the petition is denied for lack of merit.
SO ORDERED.
Callejo, Sr., and Chico-Nazario, JJ., concur.
Puno, (Chairman), J., on official leave.
Tinga, J., on leave.
We note that under the above-quoted portion of Section 7(a) of P.D. No. 984,
an ex parte cease and desist order may be issued by the Board (a) whenever
the wastes discharged by an establishment pose an "immediate threat to life,
public health, safety or welfare, or to animal or plant life," or (b) whenever
such discharges or wastes exceed "the allowable standards set by the
[NPCC]." On the one hand, it is not essential that the Board prove that an
"immediate threat to life, public health, safety or welfare, or to animal or plant
life" exists before an ex parte cease and desist order may be issued. It is
enough if the Board finds that the wastes discharged do exceed "the allowable
standards set by the [NPCC]." In respect of discharges of wastes as to which
allowable standards have been set by the Commission, the Board may issue an
ex parte cease and desist order when there is prima facie evidence of an
establishment exceeding such allowable standards. Where, however, the
effluents or discharges have not yet been the subject matter of allowable
standards set by the Commission, then the Board may act on an ex parte basis
when it finds at least prima facie proof that the wastewater or material
involved presents an "immediate threat to life, public health, safety or welfare
or to animal or plant life." Since the applicable standards set by the
Commission existing at any given time may well not cover every possible or
imaginable kind of effluent or waste discharge, the general standard of an
"immediate threat to life, public health, safety or welfare, or to animal and
plant life" remains necessary.
platinum
(Apparent
cobalt
Color)
b)
pH
c)
Tempera- 40
Upon the other hand, the Court must assume that the extant allowable
standards have been set by the Commission or Board precisely in order to
avoid or neutralize an "immediate threat to life, public health, safety or
welfare, or to animal or plant life.''
6-8.5
b)
pH
9.3
8.7
c)
Temperature
d)
Phenols in
e)
Suspended 340
80
80
f)
BOD (5-day)
1,100
ture in C (C)
d)
Phenols in 0.1
mg./1.
mg.1
e)
Suspended 75
solids in
solids in
mg./1.
mg./1.
f)
BOD in
152
mg./1.
mg./1
g)
oil/Grease 10
g)
Oil/Grease
h)
Detergents 5
h)
Detergents 2.93
Sec. 68. Water Usage and Classification. The quality of Philippine waters
shall be maintained in a safe and satisfactory condition according to their best
usages. For this purpose, all water shall be classified according to the
following beneficial usages:
Matter, mg./1.
i)
Dissolved 0
oxygen, mg./1.
j)
k)
Settleable 0.4
1.5
610
solved Solids
(a)
Classification
Best usage
xxx
xxx
xxx
Class D
l)
Total Solids
1,400
690
mg./1.
m)
Turbidity
70
processing.
The November 1986 inspections report concluded that:
xxx
xxx
xxx
(Emphases supplied)
The reports on the inspections carried on Solar's wastewater treatment
facilities on 5 and 12 November 1986 and 6 September 1988 set forth the
following Identical finding:
a.
For legal action in [view of] implementing rules and regulations of
P.D. No. 984 and Section 5 of the Effluent Regulations of 1982. 6
Placing the maximum allowable standards set in Section 5 of the Effluent
Regulations of 1982 alongside the findings of the November 1986 and
September 1988 inspection reports, we get the following results:
Records of the Commission show that the plant under its previous owner, Fine
Touch Finishing Corporation, was issued a Notice of Violation on 20
December 1985 directing same to cease and desist from conducting dyeing
operation until such time the waste treatment plant is already completed and
operational. The new owner Solar Textile Corporation informed the
Commission of the plant acquisition thru its letter dated March 1986 (sic).
The new owner was summoned to a hearing held on 13 October 1986 based
on the adverse findings during the inspection/water sampling test conducted
on 08 August 1986. As per instruction of the Legal Division a reinspection/sampling text should be conducted first before an appropriate legal
action is instituted; hence, this inspection.
Based on the above findings, it is clear that the new owner continuously
violates the directive of the Commission by undertaking dyeing operation
without completing first and operating its existing WTP. The analysis of
results on water samples taken showed that the untreated wastewater from the
firm pollutes our water resources. In this connection, it is recommended that
appropriate legal action be instituted immediately against the firm. . . . 10
"Inland
November September
Waters
1986
1988
(Class C & D 7
Report 8 Report 9
Station 1 Station 1
Color in
100
a)
Color units250
125
1.
The plant was undertaking dyeing, bleaching and rinsing
operations during the inspection. The combined wastewater generated from
the said operations was estimated at about 30 gallons per minute. About 80%
of the wastewater was traced directly discharged into a drainage canal leading
to the Tullahan-Tinejeros river by means of a bypass. The remaining 20% was
channeled into the plant's existing wastewater treatment plant (WTP).
2.
The WTP was noted not yet fully operational- some accessories
were not yet installed. Only the sump pit and the holding/collecting tank are
functional but appeared seldom used. The wastewater mentioned channeled
was noted held indefinitely into the collection tank for primary treatment.
There was no effluent discharge [from such collection tank].
3.
A sample from the bypass wastewater was collected for laboratory
analyses. Result of the analyses show that the bypass wastewater is polluted in
terms of color units, BOD and suspended solids, among others. (Please see
attached laboratory resul .) 11
From the foregoing reports, it is clear to this Court that there was at least
prima facie evidence before the Board that the effluents emanating from
Solar's plant exceeded the maximum allowable levels of physical and
chemical substances set by the NPCC and that accordingly there was adequate
basis supporting the ex parte cease and desist order issued by the Board. It is
also well to note that the previous owner of the plant facility Fine Touch
Finishing Corporation had been issued a Notice of Violation on 20 December
1985 directing it to cease and refrain from carrying out dyeing operations until
the water treatment plant was completed and operational. Solar, the new
owner, informed the NPCC of the acquisition of the plant on March 1986.
Solar was summoned by the NPCC to a hearing on 13 October 1986 based on
the results of the sampling test conducted by the NPCC on 8 August 1986.
Petitioner Board refrained from issuing an ex parte cease and desist order until
after the November 1986 and September 1988 re-inspections were conducted
and the violation of applicable standards was confirmed. In other words,
petitioner Board appears to have been remarkably forbearing in its efforts to
enforce the applicable standards vis-a-vis Solar. Solar, on the other hand,
seemed very casual about its continued discharge of untreated, pollutive
effluents into the Tullahan- Tinerejos River, presumably loath to spend the
money necessary to put its Wastewater Treatment Plant ("WTP") in an
operating condition.
In this connection, we note that in Technology Developers, Inc. v. Court of
appeals, et al., 12 the Court very recently upheld the summary closure ordered
by the Acting Mayor of Sta. Maria, Bulacan, of a pollution-causing
establishment, after finding that the records showed that:
1.
No mayor's permit had been secured. While it is true that the
matter of determining whether there is a pollution of the environment that
requires control if not prohibition of the operation of a business is essentially
addressed to the then National Pollution Control Commission of the Ministry
of Human Settlements, now the Environmental Management Bureau of the
Department of Environment and Natural Resources, it must be recognized that
the mayor of a town has as much responsibility to protect its inhabitants from
pollution, and by virtue of his police power, he may deny the application for a
permit to operate a business or otherwise close the same unless appropriate
measures are taken to control and/or avoid injury to the health of the residents
of the community from the emission in the operation of the business.
2.
The Acting Mayor, in a letter of February l6, 1989, called the
attention of petitioner to the pollution emitted by the fumes of its plant whose
offensive odor "not only pollute the air in the locality but also affect the health
of the residents in the area," so that petitioner was ordered to stop its operation
until further orders and it was required to bring the following:
xxx
xxx
xxx
(3)
Region III-Department of Environment and Natural Resources
Anti-Pollution permit. (Annex A-2, petition)
3.
This action of the Acting Mayor was in response to the complaint
of the residents of Barangay Guyong, Sta. Maria, Bulacan, directed to the
Provincial Governor through channels (Annex A-B, petition).. . .
4.
The closure order of the Acting Mayor was issued only after an
investigation was made by Marivic Guina who in her report of December 8,
1988 observed that the fumes emitted by the plant of petitioner goes directly
to the surrounding houses and that no proper air pollution device has been
installed. (Annex A-9, petition)
xxx
xxx
xxx
6.
While petitioner was able to present a temporary permit to operate
by the then National Pollution Control Commission on December 15,1987,
the permit was good only up to May 25,1988 (Annex A-12, petition).
Petitioner had not exerted any effort to extend or validate its permit much less
to install any device to control the pollution and prevent any hazard to the
health of the residents of the community."
In the instant case, the ex parte cease and desist Order was issued not by a
local government official but by the Pollution Adjudication Board, the very
agency of the Government charged with the task of determining whether the
effluents of a particular industrial establishment comply with or violate
applicable anti-pollution statutory and regulatory provisions.
Ex parte cease and desist orders are permitted by law and regulations in
situations like that here presented precisely because stopping the continuous
discharge of pollutive and untreated effluents into the rivers and other inland
waters of the Philippines cannot be made to wait until protracted litigation
over the ultimate correctness or propriety of such orders has run its full
course, including multiple and sequential appeals such as those which Solar
has taken, which of course may take several years. The relevant pollution
control statute and implementing regulations were enacted and promulgated in
the exercise of that pervasive, sovereign power to protect the safety, health,
and general welfare and comfort of the public, as well as the protection of
plant and animal life, commonly designated as the police power. It is a
constitutional commonplace that the ordinary requirements of procedural due
process yield to the necessities of protecting vital public interests like those
here involved, through the exercise of police power. The Board's ex parte
Order and Writ of Execution would, of course, have compelled Solar
temporarily to stop its plant operations, a state of affairs Solar could in any
case have avoided by simply absorbing the bother and burden of putting its
WTP on an operational basis. Industrial establishments are not constitutionally
entitled to reduce their capitals costs and operating expenses and to increase
their profits by imposing upon the public threats and risks to its safety, health,
general welfare and comfort, by disregarding the requirements of antipollution statutes and their implementing regulations.
It should perhaps be made clear the Court is not here saying that the
correctness of the ex parte Order and Writ of Execution may not be contested
by Solar in a hearing before the Board itself. Where the establishment affected
by an ex parte cease and desist order contests the correctness of the prima
facie findings of the Board, the Board must hold a public hearing where such
establishment would have an opportunity to controvert the basis of such ex
parte order. That such an opportunity is subsequently available is really all
that is required by the due process clause of the Constitution in situations like
that we have here. The Board's decision rendered after the public hearing may
then be tested judicially by an appeal to the Court of Appeals in accordance
with Section 7(c) of P.D. No. 984 and Section 42 of the Implementing Rules
and Regulations. A subsequent public hearing is precisely what Solar should
have sought instead of going to court to seek nullification of the Board's Order
and Writ of Execution and instead of appealing to the Court of Appeals. It will
be recalled the at the Board in fact gave Solar authority temporarily to
continue operations until still another inspection of its wastewater treatment
facilities and then another analysis of effluent samples could be taken and
evaluated.
Solar claims finally that the petition for certiorari was the proper remedy as
the questioned Order and Writ of Execution issued by the Board were patent
nullities. Since we have concluded that the Order and Writ of Execution were
entirely within the lawful authority of petitioner Board, the trial court did not
err when it dismissed Solar's petition for certiorari. It follows that the proper
remedy was an appeal from the trial court to the Court of Appeals, as Solar did
in fact appeal.
ACCORDINGLY, the Petition for Review is given DUE COURSE and the
Decision of the Court of Appeals dated 7 February 1990 and its Resolution
dated 10 May 1990 in A.C.-G.R. No. SP 18821 are hereby SET ASIDE. The
Order of petitioner Board dated 22 September 1988 and the Writ of Execution,
as well as the decision of the trial court dated 21 July 1989, are hereby
REINSTATED, without prejudice to the right of Solar to contest the
correctness of the basis of the Board's Order and Writ of Execution at a public
hearing before the Board.
docketed as Civil Case No. C-15598. In its complaint, the City Government of
Caloocan sought to be declared as the sole authority empowered to promote
the health and safety and enhance the right of the people in Caloocan City to a
balanced ecology within its territorial jurisdiction. 9
ROMERO, J.:
On September 25, 1992, the Executive Judge of the Regional Trial Court of
Caloocan City issued a temporary restraining order enjoining the LLDA from
enforcing its cease and desist order. Subsequently, the case was raffled to the
Regional Trial Court, Branch 126 of Caloocan which, at the time, was
presided over by Judge Manuel Jn. Serapio of the Regional Trial Court,
Branch 127, the pairing judge of the recently-retired presiding judge.
The LLDA, for its part, filed on October 2, 1992 a motion to dismiss on the
ground, among others, that under Republic Act No. 3931, as amended by
Presidential Decree No. 984, otherwise known as the Pollution Control Law,
the cease and desist order issued by it which is the subject matter of the
complaint is reviewable both upon the law and the facts of the case by the
Court of Appeals and not by the Regional Trial Court. 10
On October 12, 1992 Judge Manuel Jn. Serapio issued an order consolidating
Civil Case No. C-15598 with Civil Case No. C-15580, an earlier case filed by
the Task Force Camarin Dumpsite entitled "Fr. John Moran, et al. vs. Hon.
Macario Asistio." The LLDA, however, maintained during the trial that the
foregoing cases, being independent of each other, should have been treated
separately.
On October 16, 1992, Judge Manuel Jn. Serapio, after hearing the motion to
dismiss, issued in the consolidated cases an order 11 denying LLDA's motion
to dismiss and granting the issuance of a writ of preliminary injunction
enjoining the LLDA, its agent and all persons acting for and on its behalf,
from enforcing or implementing its cease and desist order which prevents
plaintiff City of Caloocan from dumping garbage at the Camarin dumpsite
during the pendency of this case and/or until further orders of the court.
On November 5, 1992, the LLDA filed a petition for certiorari, prohibition
and injunction with prayer for restraining order with the Supreme Court,
docketed as G.R. No. 107542, seeking to nullify the aforesaid order dated
October 16, 1992 issued by the Regional Trial Court, Branch 127 of Caloocan
City denying its motion to dismiss.
The Court, acting on the petition, issued a Resolution 12 on November 10,
1992 referring the case to the Court of Appeals for proper disposition and at
the same time, without giving due course to the petition, required the
respondents to comment on the petition and file the same with the Court of
Appeals within ten (10) days from notice. In the meantime, the Court issued a
temporary restraining order, effective immediately and continuing until further
orders from it, ordering the respondents: (1) Judge Manuel Jn. Serapio,
Presiding Judge, Regional Trial Court, Branch 127, Caloocan City to cease
and desist from exercising jurisdiction over the case for declaration of nullity
of the cease and desist order issued by the Laguna Lake Development
Authority (LLDA); and (2) City Mayor of Caloocan and/or the City
Government of Caloocan to cease and desist from dumping its garbage at the
Tala Estate, Barangay Camarin, Caloocan City.
Respondents City Government of Caloocan and Mayor Macario A. Asistio, Jr.
filed on November 12, 1992 a motion for reconsideration and/or to
quash/recall the temporary restraining order and an urgent motion for
reconsideration alleging that ". . . in view of the calamitous situation that
would arise if the respondent city government fails to collect 350 tons of
garbage daily for lack of dumpsite (i)t is therefore, imperative that the issue be
resolved with dispatch or with sufficient leeway to allow the respondents to
find alternative solutions to this garbage problem."
On November 17, 1992, the Court issued a Resolution 13 directing the Court
of Appeals to immediately set the case for hearing for the purpose of
determining whether or not the temporary restraining order issued by the
Court should be lifted and what conditions, if any, may be required if it is to
be so lifted or whether the restraining order should be maintained or converted
into a preliminary injunction.
The Court of Appeals set the case for hearing on November 27, 1992, at 10:00
in the morning at the Hearing Room, 3rd Floor, New Building, Court of
Appeals. 14 After the oral argument, a conference was set on December 8,
1992 at 10:00 o'clock in the morning where the Mayor of Caloocan City, the
General Manager of LLDA, the Secretary of DENR or his duly authorized
representative and the Secretary of DILG or his duly authorized representative
were required to appear.
It was agreed at the conference that the LLDA had until December 15, 1992 to
finish its study and review of respondent's technical plan with respect to the
dumping of its garbage and in the event of a rejection of respondent's
technical plan or a failure of settlement, the parties will submit within 10 days
from notice their respective memoranda on the merits of the case, after which
the petition shall be deemed submitted for resolution. 15 Notwithstanding
such efforts, the parties failed to settle the dispute.
(e), (f) and (g) of Executive Order No. 927 series of 1983 which provides,
thus:
On April 30, 1993, the Court of Appeals promulgated its decision holding that:
(1) the Regional Trial Court has no jurisdiction on appeal to try, hear and
decide the action for annulment of LLDA's cease and desist order, including
the issuance of a temporary restraining order and preliminary injunction in
relation thereto, since appeal therefrom is within the exclusive and appellate
jurisdiction of the Court of Appeals under Section 9, par. (3), of Batas
Pambansa Blg. 129; and (2) the Laguna Lake Development Authority has no
power and authority to issue a cease and desist order under its enabling law,
Republic Act No. 4850, as amended by P.D. No. 813 and Executive Order
No. 927, series of 1983.
(c)
Issue orders or decisions to compel compliance with the provisions
of this Executive Order and its implementing rules and regulations only after
proper notice and hearing.
The Court of Appeals thus dismissed Civil Case No. 15598 and the
preliminary injunction issued in the said case was set aside; the cease and
desist order of LLDA was likewise set aside and the temporary restraining
order enjoining the City Mayor of Caloocan and/or the City Government of
Caloocan to cease and desist from dumping its garbage at the Tala Estate,
Barangay Camarin, Caloocan City was lifted, subject, however, to the
condition that any future dumping of garbage in said area, shall be in
conformity with the procedure and protective works contained in the proposal
attached to the records of this case and found on pages 152-160 of the Rollo,
which was thereby adopted by reference and made an integral part of the
decision, until the corresponding restraining and/or injunctive relief is granted
by the proper Court upon LLDA's institution of the necessary legal
proceedings.
Hence, the Laguna Lake Development Authority filed the instant petition for
review on certiorari, now docketed as G.R. No. 110120, with prayer that the
temporary restraining order lifted by the Court of Appeals be re-issued until
after final determination by this Court of the issue on the proper interpretation
of the powers and authority of the LLDA under its enabling law.
On July, 19, 1993, the Court issued a temporary restraining order 16 enjoining
the City Mayor of Caloocan and/or the City Government of Caloocan to cease
and desist from dumping its garbage at the Tala Estate, Barangay Camarin,
Caloocan City, effective as of this date and containing until otherwise ordered
by the Court.
It is significant to note that while both parties in this case agree on the need to
protect the environment and to maintain the ecological balance of the
surrounding areas of the Camarin open dumpsite, the question as to which
agency can lawfully exercise jurisdiction over the matter remains highly open
to question.
The City Government of Caloocan claims that it is within its power, as a local
government unit, pursuant to the general welfare provision of the Local
Government Code, 17 to determine the effects of the operation of the
dumpsite on the ecological balance and to see that such balance is maintained.
On the basis of said contention, it questioned, from the inception of the
dispute before the Regional Trial Court of Caloocan City, the power and
authority of the LLDA to issue a cease and desist order enjoining the dumping
of garbage in the Barangay Camarin over which the City Government of
Caloocan has territorial jurisdiction.
The Court of Appeals sustained the position of the City of Caloocan on the
theory that Section 7 of Presidential Decree No. 984, otherwise known as the
Pollution Control law, authorizing the defunct National Pollution Control
Commission to issue an ex-parte cease and desist order was not incorporated
in Presidential Decree No. 813 nor in Executive Order No. 927, series of
1983. The Court of Appeals ruled that under Section 4, par. (d), of Republic
Act No. 4850, as amended, the LLDA is instead required "to institute the
necessary legal proceeding against any person who shall commence to
implement or continue implementation of any project, plan or program within
the Laguna de Bay region without previous clearance from the Authority."
The LLDA now assails, in this partition for review, the abovementioned ruling
of the Court of Appeals, contending that, as an administrative agency which
was granted regulatory and adjudicatory powers and functions by Republic
Act No. 4850 and its amendatory laws, Presidential Decree No. 813 and
Executive Order No. 927, series of 1983, it is invested with the power and
authority to issue a cease and desist order pursuant to Section 4 par. (c), (d),
Sec. 4.
Additional Powers and Functions. The authority shall have the
following powers and functions:
xxx
xxx
xxx
(d)
Make, alter or modify orders requiring the discontinuance of
pollution specifying the conditions and the time within which such
discontinuance must be accomplished.
(e)
Issue, renew, or deny permits, under such conditions as it may
determine to be reasonable, for the prevention and abatement of pollution, for
the discharge of sewage, industrial waste, or for the installation or operation of
sewage works and industrial disposal system or parts thereof.
(f)
After due notice and hearing, the Authority may also revoke,
suspend or modify any permit issued under this Order whenever the same is
necessary to prevent or abate pollution.
(g)
Deputize in writing or request assistance of appropriate
government agencies or instrumentalities for the purpose of enforcing this
Executive Order and its implementing rules and regulations and the orders and
decisions of the Authority.
The LLDA claims that the appellate court deliberately suppressed and totally
disregarded the above provisions of Executive Order No. 927, series of 1983,
which granted administrative quasi-judicial functions to LLDA on pollution
abatement cases.
In light of the relevant environmental protection laws cited which are
applicable in this case, and the corresponding overlapping jurisdiction of
government agencies implementing these laws, the resolution of the issue of
whether or not the LLDA has the authority and power to issue an order which,
in its nature and effect was injunctive, necessarily requires a determination of
the threshold question: Does the Laguna Lake Development Authority, under
its Charter and its amendatory laws, have the authority to entertain the
complaint against the dumping of garbage in the open dumpsite in Barangay
Camarin authorized by the City Government of Caloocan which is allegedly
endangering the health, safety, and welfare of the residents therein and the
sanitation and quality of the water in the area brought about by exposure to
pollution caused by such open garbage dumpsite?
The matter of determining whether there is such pollution of the environment
that requires control, if not prohibition, of the operation of a business
establishment is essentially addressed to the Environmental Management
Bureau (EMB) of the DENR which, by virtue of Section 16 of Executive
Order No. 192, series of 1987, 18 has assumed the powers and functions of
the defunct National Pollution Control Commission created under Republic
Act No. 3931. Under said Executive Order, a Pollution Adjudication Board
(PAB) under the Office of the DENR Secretary now assumes the powers and
functions of the National Pollution Control Commission with respect to
adjudication of pollution cases. 19
As a general rule, the adjudication of pollution cases generally pertains to the
Pollution Adjudication Board (PAB), except in cases where the special law
provides for another forum. It must be recognized in this regard that the
LLDA, as a specialized administrative agency, is specifically mandated under
Republic Act No. 4850 and its amendatory laws to carry out and make
effective the declared national policy 20 of promoting and accelerating the
development and balanced growth of the Laguna Lake area and the
surrounding provinces of Rizal and Laguna and the cities of San Pablo,
Manila, Pasay, Quezon and Caloocan 21 with due regard and adequate
provisions for environmental management and control, preservation of the
quality of human life and ecological systems, and the prevention of undue
ecological disturbances, deterioration and pollution. Under such a broad grant
and power and authority, the LLDA, by virtue of its special charter, obviously
has the responsibility to protect the inhabitants of the Laguna Lake region
from the deleterious effects of pollutants emanating from the discharge of
wastes from the surrounding areas. In carrying out the aforementioned
declared policy, the LLDA is mandated, among others, to pass upon and
approve or disapprove all plans, programs, and projects proposed by local
government offices/agencies within the region, public corporations, and
private persons or enterprises where such plans, programs and/or projects are
related to those of the LLDA for the development of the region. 22
In the instant case, when the complainant Task Force Camarin Dumpsite of
Our Lady of Lourdes Parish, Barangay Camarin, Caloocan City, filed its
letter-complaint before the LLDA, the latter's jurisdiction under its charter
was validly invoked by complainant on the basis of its allegation that the open
dumpsite project of the City Government of Caloocan in Barangay Camarin
was undertaken without a clearance from the LLDA, as required under
Section 4, par. (d), of Republic Act. No. 4850, as amended by P.D. No. 813
and Executive Order No. 927. While there is also an allegation that the said
project was without an Environmental Compliance Certificate from the
Environmental Management Bureau (EMB) of the DENR, the primary
jurisdiction of the LLDA over this case was recognized by the Environmental
Management Bureau of the DENR when the latter acted as intermediary at the
meeting among the representatives of the City Government of Caloocan, Task
Force Camarin Dumpsite and LLDA sometime in July 1992 to discuss the
possibility of
re-opening the open dumpsite.
Having thus resolved the threshold question, the inquiry then narrows down to
the following issue: Does the LLDA have the power and authority to issue a
"cease and desist" order under Republic Act No. 4850 and its amendatory
laws, on the basis of the facts presented in this case, enjoining the dumping of
garbage in Tala Estate, Barangay Camarin, Caloocan City.
The irresistible answer is in the affirmative.
The cease and desist order issued by the LLDA requiring the City Government
of Caloocan to stop dumping its garbage in the Camarin open dumpsite found
by the LLDA to have been done in violation of Republic Act No. 4850, as
amended, and other relevant environment laws, 23 cannot be stamped as an
unauthorized exercise by the LLDA of injunctive powers. By its express
terms, Republic Act No. 4850, as amended by P.D. No. 813 and Executive
Order No. 927, series of 1983, authorizes the LLDA to "make, alter or modify
order requiring the discontinuance or pollution." 24 (Emphasis supplied)
Section 4, par. (d) explicitly authorizes the LLDA to make whatever order
may be necessary in the exercise of its jurisdiction.
To be sure, the LLDA was not expressly conferred the power "to issue and exparte cease and desist order" in a language, as suggested by the City
Government of Caloocan, similar to the express grant to the defunct National
Pollution Control Commission under Section 7 of P.D. No. 984 which,
admittedly was not reproduced in P.D. No. 813 and E.O. No. 927, series of
1983. However, it would be a mistake to draw therefrom the conclusion that
there is a denial of the power to issue the order in question when the power "to
make, alter or modify orders requiring the discontinuance of pollution" is
expressly and clearly bestowed upon the LLDA by Executive Order No. 927,
series of 1983.
Assuming arguendo that the authority to issue a "cease and desist order" were
not expressly conferred by law, there is jurisprudence enough to the effect that
the rule granting such authority need not necessarily be express. 25 While it is
a fundamental rule that an administrative agency has only such powers as are
expressly granted to it by law, it is likewise a settled rule that an
administrative agency has also such powers as are necessarily implied in the
exercise of its express powers. 26 In the exercise, therefore, of its express
powers under its charter as a regulatory and quasi-judicial body with respect
to pollution cases in the Laguna Lake region, the authority of the LLDA to
issue a "cease and desist order" is, perforce, implied. Otherwise, it may well
be reduced to a "toothless" paper agency.
In this connection, it must be noted that in Pollution Adjudication Board v.
Court of Appeals, et al., 27 the Court ruled that the Pollution Adjudication
Board (PAB) has the power to issue an ex-parte cease and desist order when
there is prima facie evidence of an establishment exceeding the allowable
standards set by the anti-pollution laws of the country. The ponente, Associate
Justice Florentino P. Feliciano, declared:
Ex parte cease and desist orders are permitted by law and regulations in
situations like that here presented precisely because stopping the continuous
discharge of pollutive and untreated effluents into the rivers and other inland
waters of the Philippines cannot be made to wait until protracted litigation
over the ultimate correctness or propriety of such orders has run its full
course, including multiple and sequential appeals such as those which Solar
has taken, which of course may take several years. The relevant pollution
control statute and implementing regulations were enacted and promulgated in
the exercise of that pervasive, sovereign power to protect the safety, health,
and general welfare and comfort of the public, as well as the protection of
plant and animal life, commonly designated as the police power. It is a
constitutional commonplace that the ordinary requirements of procedural due
process yield to the necessities of protecting vital public interests like those
here involved, through the exercise of police power. . . .
The immediate response to the demands of "the necessities of protecting vital
public interests" gives vitality to the statement on ecology embodied in the
Declaration of Principles and State Policies or the 1987 Constitution. Article
II, Section 16 which provides:
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.
As a constitutionally guaranteed right of every person, it carries the correlative
duty of non-impairment. This is but in consonance with the declared policy of
the state "to protect and promote the right to health of the people and instill
health consciousness among them." 28 It is to be borne in mind that the
Philippines is party to the Universal Declaration of Human Rights and the
Alma Conference Declaration of 1978 which recognize health as a
fundamental human right. 29
The issuance, therefore, of the cease and desist order by the LLDA, as a
practical matter of procedure under the circumstances of the case, is a proper
exercise of its power and authority under its charter and its amendatory laws.
Had the cease and desist order issued by the LLDA been complied with by the
City Government of Caloocan as it did in the first instance, no further legal
steps would have been necessary.
The charter of LLDA, Republic Act No. 4850, as amended, instead of
conferring upon the LLDA the means of directly enforcing such orders, has
provided under its Section 4 (d) the power to institute "necessary legal
proceeding against any person who shall commence to implement or continue
implementation of any project, plan or program within the Laguna de Bay
region without previous clearance from the LLDA."
Clearly, said provision was designed to invest the LLDA with sufficiently
broad powers in the regulation of all projects initiated in the Laguna Lake
region, whether by the government or the private sector, insofar as the
implementation of these projects is concerned. It was meant to deal with cases
which might possibly arise where decisions or orders issued pursuant to the
exercise of such broad powers may not be obeyed, resulting in the thwarting
of its laudabe objective. To meet such contingencies, then the writs of
mandamus and injunction which are beyond the power of the LLDA to issue,
may be sought from the proper courts.
Insofar as the implementation of relevant anti-pollution laws in the Laguna
Lake region and its surrounding provinces, cities and towns are concerned, the
Court will not dwell further on the related issues raised which are more
appropriately addressed to an administrative agency with the special
knowledge and expertise of the LLDA.
WHEREFORE, the petition is GRANTED. The temporary restraining order
issued by the Court on July 19, 1993 enjoining the City Mayor of Caloocan
and/or the City Government of Caloocan from dumping their garbage at the
Tala Estate, Barangay Camarin, Caloocan City is hereby made permanent.
May 2, 1988, the Office of the President denied MMCs requests for issuance
of restraining orders against the orders of the PAB. Consequently, MMC filed
an Urgent Ex-Parte Partial Motion for Reconsideration dated May 6, 1988,
seeking the reconsideration of the above Order. In an Order dated May 13,
1988, the Office of the President granted the above partial motion for
reconsideration, thus:
WHEREFORE, the instant Urgent Ex-Parte Motion for Reconsideration is
hereby GRANTED, and the Order of this Office, dated May 2, 1988, is hereby
set aside insofar as it denies respondent-appellants requests for issuance of
restraining orders.
Accordingly, the Pollution Adjudication Board, its agents, deputies or
representatives are hereby enjoined from enforcing its cease and desist order
of April 15, 1988 pending resolution by this Office of respondent-appellants
appeal from said orders.
It is further directed that the status quo obtaining prior to the issuance of said
cease and desist order be maintained until further orders from this Office.
It is understood, however, that during the efficacy of this restraining order,
respondent-appellant shall immediately undertake, at a cost of not less than
P30,000.00 a day, the building of artificial reefs and planting of sea grass,
mangroves and vegetation on the causeway of Calancan Bay under the
supervision of the Pollution Adjudication Board and subject to such guidelines
as the Board may impose.
SO ORDERED.[10]
In line with the directive from the Office of the President, the Calancan Bay
Rehabilitation Project (CBRP) was created, and MMC remitted the amount of
P30,000.00 a day, starting from May 13, 1988 to the Ecology Trust Fund
(ETF) thereof. However, on June 30, 1991, MMC stopped discharging its
tailings in the Bay, hence, it likewise ceased from making further deposits to
the ETF.
From the issuance of the Order on May 13, 1988 until the cessation of the
tailings disposal on June 30, 1991, MMC made its contribution to the ETF in
the total amount of Thirty-Two Million Nine Hundred and Seventy-Five
Thousand Pesos (P32,975,000.00). Thereafter, MMC filed a Motion dated
July 9, 1991 manifesting that it would discontinue its contributions/deposits
to the ETF since it had stopped dumping tailings in the Bay. MMC prayed
that the Order issued by the Office of the President on May 13, 1988 be lifted.
On February 5, 1993, the Office of the President rendered a decision in O.P.
Case No. 3802 dismissing the appeal; affirming the cease and desist Order
issued by the PAB; and lifting the TRO dated May 13, 1988. The Office of
the President resolved the appeal in this wise:
This brings to the fore the primordial issue of whether or not the Secretary
of Environment and Natural Resources gravely erred in declaring the TPO No.
POW-86-454-EJ issued to respondent-appellant MMC expired on February
10, 1987, and in ordering the latter to cease and desist from discharging mine
tailings into Calancan Bay.
Respondent-appellant argues that the cease and desist orders were issued by
the PAB ex-parte, in violation of its procedural and substantive rights
provided for under Section 7 (a) of P.D. No. 984 requiring a public hearing
before any order or decision for the discontinuance of discharge of a sewage
or industrial wastes into the water, air or land could be issued by the PAB.
We are not persuaded.
Section 7(a) of P.D. No. 984, reads in part:
Sec. 7(a) Public Hearing. Public hearing shall be conducted by the
Commissioner, Deputy Commissioner or any senior official duly designated
by the Commissioner prior to issuance or promulgation of any order or
decision by the Commissioner requiring the discontinuance of discharge of
sewage, industrial wastes and other wastes into the water, air or land resources
of the Philippines as provided in the Decree: provided, that whenever the
Commission finds a prima facie evidence that the discharged sewage or
wastes are of immediate threat to life, public health, safety or welfare, or to
animal or plant life, or exceeds the allowable standards set by the
Commission, the Commissioner may issue an ex-parte order directing the
discontinuance of the same or the temporary suspension or cessation of
operation of the establishment or person generating such sewage or wastes
all mineral resources in public and private lands within the territory and
exclusive economic zone of the Republic of the Philippines, through the
combined efforts of government and the private sector in order to enhance
national growth and protect the rights of affected communities. (Sec. 2, R.A.
7942).
Under this expansive authority, the Mines Regional Director, by virtue of this
special law, has the primary responsibility to protect the communities
surrounding a mining site from the deleterious effects of pollutants emanating
from the dumping of tailing wastes from the surrounding areas. Thus, in the
exercise of its express powers under this special law, the authority of the
Mines Regional Director to impose appropriate protective and/or preventive
measures with respect to pollution cases within mining operations is perforce,
implied. Otherwise, the special law granting this authority may well be
relegated to a mere paper tiger talking protection but allowing pollution.
It bears mention that the Pollution Adjudication Board has the power to issue
an ex-parte order when there is prima facie evidence of an establishment
exceeding the allowable standards set by the anti-pollution laws of the
country. (Pollution Adjudication Board v. Court of Appeals, et al., 195 SCRA
112). However, with the passage of R.A. 7942, insofar as the regulation,
monitoring and enforcement of anti-pollution laws are concerned with respect
to mining establishments, the Mines Regional Director has a broad grant of
power and authority. Clearly, pollution-related issues in mining operations are
addressed to the Mines Regional Director, not the Pollution Adjudication
Board.
This being the case, the questioned Order dated 23 April 1997 requiring MMC
to pay its arrears in deposits was beyond the power and authority of the
Pollution Adjudication Board to issue and as such, petitioner may seek
appropriate injunctive relief from the court. Thus, certiorari lies against
public respondent PAB.[16]
The Court of Appeals likewise ruled that the obligation of MMC to contribute
to the ETF of the CBRP ceased inasmuch as the latter discontinued dumping
tailings into the Bay and the actual funds in the ETF are sufficient to
rehabilitate the Bay. It ratiocinated thus:
In the instant case, it is of record that petitioner MMC undertakes its
obligation to provide for the rehabilitation of the Bay waters. This obligation,
through its monetary contribution to the ETF, is however anchored on its
continuing disposal of the mines tailings waste into the Bay. Hence, since it
ceased its mining operations in the affected area as of July 1991 and had not
been discharging any tailings wastes since then, its consequent duty to
rehabilitate the polluted waters, if any, no longer exists.
law. The OSG further argues that the portion of the Order of May 13, 1988,
setting the period of time within which MMC shall pay P30,000.00 per day,
which is during the efficacy of the restraining order was never questioned or
appealed by MMC. Finally, the OSG argues that PAB did not violate MMCs
right to due process by the issuance of the Order dated April 23, 1988 without
notice and hearing as it was simply requiring MMC to comply with an
obligation in an Order which has long become final and executory.
In the context of the established facts, the issue that actually emerges is: Has
the PAB under RA 3931 as amended by PD 984 (National Pollution Control
Decree of 1976) been divested of its authority to try and hear pollution cases
connected with mining operations by virtue of the subsequent enactment of
RA 7942 (Philippine Mining Act of 1995)? As mentioned earlier, the PAB
took cognizance and ruled on the letter-complaint (for violation of PD 984 and
its implementing rules and regulations) filed against MMC by Marinduque
Mayor Wilfredo Red. In the subject Order dated April 23, 1997, the PAB
ruled that MMC should pay its arrears in deposits to the ETF of the CBRP
computed from the day it stopped dumping and paying on July 1, 1991 up to
the lifting of the Order of the Office of the President dated May 13, 1988 on
February 5, 1993.
The answer is in the negative. We agree with the Solicitor General that the
Court of Appeals committed reversible error in ruling that the PAB had no
authority to issue the Order dated April 23, 1997.
Republic Act No. 3931 (An Act Creating The National Water And Air
Pollution Control Commission) was passed in June 18, 1964 to maintain
reasonable standards of purity for the waters and air of the country with their
utilization for domestic, agricultural, industrial and other legitimate purposes.
Said law was revised in 1976 by Presidential Decree No. 984 (Providing For
The Revision Of Republic Act No. 3931, Commonly Known As The Pollution
Control Law, And For Other Purposes) to strengthen the National Pollution
Control Commission to best protect the people from the growing menace of
environmental pollution. Subsequently, Executive Order No. 192, s. 1987
(The Reorganization Act of the DENR) was passed. The internal structure,
organization and description of the functions of the new DENR, particularly
the Mines and Geosciences Bureau, reveals no provision pertaining to the
resolution of cases involving violations of the pollution laws.[18] The Mines
and Geo-Sciences Bureau was created under the said EO 192 to absorb the
functions of the abolished Bureau of Mines and Geo-Sciences, Mineral
Reservations Development Board and the Gold Mining Industry Development
Board to, among others, recommend policies, regulations and programs
pertaining to mineral resources development; assist in the monitoring and
evaluation of the Bureaus programs and projects; and to develop and
promulgate standards and operating procedures on mineral resources
development.[19]
x x x
Be that as it may, this Court observes that out of the approximate sum of
thirty-two (32) million pesos contributed by the petitioner to the ETF there is
admittedly an existing estimated balance of fourteen (14) million pesos in the
Fund. For its part, petitioner does not renege on its obligation to rehabilitate
and in fact undertakes to continue the rehabilitation process until its
completion within two (2) years time and which would only cost six (6)
million pesos. Thus, as petitioner convincingly argued and which respondent
unsatisfactorily rebuked, the existing fourteen (14) million pesos in the ETF is
more than enough to complete the rehabilitation project. (TSN, Hearing dated
15 September 1997, at pp. 56 to 62, Rollo).
xxx. Without much ado, the Court concurs with the finding that to demand a
daily deposit of thirty thousand (P30, 000.00) pesos even if the root of the
obligation, that is, the dumping of tailings waste, had ceased to exist, is
indubitably of a herculean and onerous burden on the part of petitioner
amounting to a deprivation of its property and a denial of its right to due
process.[17]
Unsatisfied, the OSG argues that the Philippine Mining Act of 1995 did not
amend or repeal the provisions of Republic Act No. 3931, as amended by
Presidential Decree No. 984 (otherwise known as the National Pollution
Control Decree of 1976); that the Mines Regional Director has no power over
areas outside mining installations and over areas which are not part of the
mining or quarrying operations such as Calancan Bay; that the powers of the
Mines Regional Director cannot be exercised to the exclusion of other
government agencies; that the jurisdiction of a Mines Regional Director with
respect to anti-pollution laws is limited to practices committed within the
confines of a mining or quarrying installation; that the dumping of mine
tailings into Calancan Bay occurred long before the effectivity of the
Philippine Mining Act and that MMC cannot hide under cover of this new
On the other hand, the PAB was created and granted under the same EO 192
broad powers to adjudicate pollution cases in general. Thus,
SEC. 19. Pollution Adjudication Board. There is hereby created a Pollution
Adjudication Board under the Office of the Secretary. The Board shall be
composed of the Secretary as Chairman, two (2) Undersecretaries as may be
designated by the Secretary, the Director of Environmental management, and
three (3) others to be designated by the Secretary as members. The Board
shall assume the powers and functions of the Commission/Commissioners of
the National Pollution Control Commission with respect to the adjudication of
pollution cases under Republic Act 3931 and Presidential Decree 984,
particularly with respect to Section 6 letters e, f, g, j, k, and p of P.D. 984. The
Environmental Management Bureau shall serve as the Secretariat of the
Board. These powers and functions may be delegated to the regional offices
of the Department in accordance with rules and regulations to be promulgated
by the Board.[20]
Section 6 letters e, f, g, j, k, and p of PD 984 referred to above are quoted as
follows:
SEC. 6. Powers and Functions. The Commission shall have the following
powers and functions:
(e) Issue orders or decision to compel compliance with the provisions of this
Decree and its implementing rules and regulations only after proper notice and
hearing.
(f) Make, alter or modify orders requiring the discontinuance of pollution
specifying the conditions and the time within which such discontinuance must
be accomplished.
(g) Issue, renew, or deny permits, under such conditions as it may determine
to be reasonable, for the prevention and abatement of pollution, for the
discharge of sewage, industrial waste, or for the installation or operation of
sewage works and industrial disposal system or parts thereof: Provided,
however, That the Commission, by rules and regulations, may require
subdivisions, condominium, hospitals, public buildings and other similar
human settlements to put up appropriate central sewerage system and sewage
treatment works, except that no permits shall be required to any sewage
works or changes to or extensions of existing works that discharge only
domestic or sanitary wastes from a singles residential building provided with
septic tanks or their equivalent. The Commission may impose reasonable fees
and charges for the issuance or renewal of all permits required herein.
(h)
(i)
(j) Serve as arbitrator for the determination of reparations, or restitution of the
damages and losses resulting from pollution.
(k) Deputize in writing or request assistance of appropriate government
agencies or instrumentalities for the purpose of enforcing this Decree and its
implementing rules and regulations and the orders and decisions of the
Commission.
(l)
(m)
(n)
(o)
(p) Exercise such powers and perform such other functions as may be
necessary to carry out its duties and responsibilities under this Decree.
Section 7(a) of P.D. No. 984 further provides in part:
Sec. 7(a) Public Hearing. Public hearing shall be conducted by the
Commissioner, Deputy Commissioner or any senior official duly designated
by the Commissioner prior to issuance or promulgation of any order or
decision by the Commissioner requiring the discontinuance of discharge of
sewage, industrial wastes and other wastes into the water, air or land resources
of the Philippines as provided in the Decree: provided, that whenever the
Commission finds a prima facie evidence that the discharged sewage or
wastes are of immediate threat to life, public health, safety or Welfare, or to
animal or plant life, or exceeds the allowable standards set by the
Commission, the Commissioner may issue and ex-parte order directing the
discontinuance of the same or the temporary suspension or cessation of
operation of the establishment or person generating such sewage or wastes
without the necessity of a prior public hearing. x x x . (underscoring
supplied).
The ruling of the Court of Appeals that the PAB has been divested of authority
to act on pollution-related matters in mining operations is anchored on the
following provisions of RA 7942 (Philippine Mining Act of 1995):
SEC. 67. Power to Issue Orders. The mines regional director shall, in
consultation with the Environmental Management Bureau, forthwith or within
such time as specified in his order, require the contractor to remedy any
practice connected with mining or quarrying operations, which is not in
accordance with safety and anti-pollution laws and regulations. In case of
imminent danger to life or property, the mines regional director may
summarily suspend the mining or quarrying operations until the danger is
removed, or appropriate measures are taken by the contractor or permittee.
And
SEC. 115. Repealing and Amending Clause. All laws, executive orders,
presidential decrees, rules and regulations, or parts thereof which are
inconsistent with any of the provisions of this Act are hereby repealed or
amended accordingly.
The other provisions in Chapter XI on Safety and Environmental Protection
found in RA 7942 promote the safe and sanitary upkeep of mining areas to
achieve waste-free and efficient mine development with particular concern for
the physical and social rehabilitation of areas and communities affected by
permits and those involving surface owners, occupants and claimholders/concessionaires.[24] The scope of authority of the Panel of
Arbitrators and the Mines Adjudication Board conferred by RA 7942 clearly
exclude adjudicative responsibility over pollution cases. Nowhere is there
vested any authority to adjudicate cases involving violations of pollution laws
and regulations in general.
Yes, Your Honor, that the Calancan rehabilitation program is being funded
by Marcopper through the Ecology Trust Fund.
JUSTICE RASUL:
Will the construction be finished in two years time?
That matter settled, we now go to the issue of whether the appellate court
erred in ruling that there is no basis for further payments by MMC to the
Ecology Trust Fund of the Calancan Bay Rehabilitation Project considering
that MMC convincingly argued and which respondent unsatisfactorily
rebuked, the existing fourteen (14) million pesos in the ETF is more than
enough to complete the rehabilitation project. Indeed, the records reveal that
witness for PAB, Mr. Edel Genato, who is the Technical Resource person of
the PAB for the project admitted that the funds in the ETF amounting to about
Fourteen Million Pesos are more than sufficient to cover the costs of
rehabilitation. Hereunder are excerpts from the transcript of stenographic
notes taken during the hearing held on September 15, 1997:
ATTY. HERNANDEZ:[27]
I would like your Honor, if the court will allow, our witness from the
EBRB Your Honor would attest to that . . .
JUSTICE JACINTO:
Is it not being taken from the 14 million?
ATTY. HERNANDEZ:
Yes, Your Honor.
JUSTICE RASUL:
What is his role?
ATTY. HERNANDEZ:
He is our Technical Resource person Your Honor, of the project.
You have already made your comment, but you received some signal
from your lawyer.
ATTY. HERNANDEZ:
Your Honor . . .
MR. EDEL GENATO:
No, no Your Honor. . .
JUSTICE RASUL:
My question is, do you agree with him that the 14 million fund will be
enough to sustain the construction up to the end?
JUSTICE RASUL:
MR. EDEL GENATO:
In other words, he has participated in the . . (inaudible)?
Two years?
ATTY. HERNANDEZ:
JUSTICE RASUL:
Yes, Your Honor.
Yes.
JUSTICE RASUL:
MR. EDEL GENATO:
Do you agree with him?
Your Honor. . .
MR. EDEL GENATO:
JUSTICE AMIN:
Categorical answer.
JUSTICE RASUL:
You just answer, is it enough, in your own honest way, on your honor?
MR. EDEL GENATO:
I think so Your Honor.[28]
We must sustain the appellate court on this point on account of the testimony
of Mr. Edel Genato. Further, we note that the Office of the President never
objected nor ruled on the manifestation dated July 9, 1991 filed by MMC that
it would stop paying since it already ceased dumping mine tailings into the
bay. Still further, the order of the OP directing MMC to rehabilitate at a cost
of P30,000.00 a day during the efficacy of the restraining order had become
functus officio since MMC voluntarily stopped dumping mine tailings into the
bay.
To sum up, PAB has jurisdiction to act and rule on the letter-complaint of
Mayor Wilfredo Red of Marinduque for violation of PD 984 and its
implementing rules and regulations which jurisdiction was not lost upon the
passage of RA 7942 (the Philippine Mining Act of 1995). Nevertheless,
MMC must be declared not to have arrears in deposits as admittedly, the ETF
already has more than sufficient funds to undertake the rehabilitation of
Calancan Bay.
WHEREFORE, the petition is hereby partially GRANTED. The assailed
Decision is REVERSED insofar as the jurisdiction of the PAB to act on the
complaint is concerned; but AFFIRMED insofar as Marcopper Mining
Corporation has no arrears in deposits with the Ecology Trust Fund of the
Calancan Bay Rehabilitation Project.
1.
In holding that Ordinance No. 13, series of 1952, of the
Municipality of Virac, Catanduanes, is a legitimate and valid exercise of
police power of the Municipal Council, and therefore, constitutional;
2.
In giving the ordinance a meaning other than and different from
what it provided by declaring that petitioner violated the same by using the
warehouse for storage of abaca and copra when what is prohibited and
penalized by the ordinance is the construction of warehouses.
3.
In refusing to take judicial notice of the fact that in the
municipality, there are numerous establishments similarly situated as
appellants' warehouses but which are not prosecuted.
We find no merit in the Petition.
Ordinance No. 13, series of 1952, was passed by the Municipal Council of
Virac in the exercise of its police power. It is a settled principle of law that
municipal corporations are agencies of the State for the promotion and
maintenance of local self-government and as such are endowed with the
police powers in order to effectively accomplish and carry out the declared
objects of their creation. 3 Its authority emanates from the general welfare
clause under the Administrative Code, which reads:
The municipal council shall enact such ordinances and make such regulations,
not repugnant to law, as may be necessary to carry into effect and discharge
the powers and duties conferred upon it by law and such as shall seem
necessary and proper to provide for the health and safety, promote the
prosperity, improve the morals, peace, good order, comfort and convenience
of the municipality and the inhabitants thereof, and for the protection of
property therein. 4
For an ordinance to be valid, it must not only be within the corporate powers
of the municipality to enact but must also be passed according to the
procedure prescribed by law, and must be in consonance with certain well
established and basic principles of a substantive nature. These principles
require that a municipal ordinance (1) must not contravene the Constitution or
any statute (2) must not be unfair or oppressive (3) must not be partial or
discriminatory (4) must not prohibit but may regulate trade (5) must be
general and consistent with public policy, and (6) must not be unreasonable. 5
Ordinance No. 13, Series of 1952, meets these criteria.
As to the petitioner's second assignment of error, the trial court did not give
the ordinance in question a meaning other than what it says. Ordinance No. 13
passed by the Municipal Council of Virac on December 29, 1952, 6 reads:
AN ORDINANCE STRICTLY PROHIBITING THE CONSTRUCTION OF
WAREHOUSE IN ANY FORM NEAR A BLOCK OF HOUSES EITHER IN
POBLACION OR BARRIO WITH NECESSARY DISTANCE TO AVOID
GREAT LOSSES OF PROPERTY AND LIVES BY FIRE ACCIDENT.
Section 1 provides:
It is strictly prohibited to construct warehouses in any form to any person,
persons, entity, corporation or merchants, wherein to keep or store copra,
hemp, gasoline, petroleum, alcohol, crude oil, oil of turpentine and the like
products or materials if not within the distance of 200 meters from a block of
houses either in the poblacion or barrios to avoid great losses of properties
inclusive lives by fire accident.
Section 2 provides: 7
Owners of warehouses in any form, are hereby given advice to remove their
said warehouses this ordinance by the Municipal Council, provided however,
that if those warehouses now in existence should no longer be utilized as such
warehouse for the above-described products in Section 1 of this ordinance
after a lapse of the time given for the removal of the said warehouses now in
existence, same warehouses shall be exempted from the spirit of the provision
of section 1 of this ordinance, provided further, that these warehouses now in
existence, shall in the future be converted into non-inflammable products and
materials warehouses.
In spite of its fractured syntax, basically, what is regulated by the ordinance is
the construction of warehouses wherein inflammable materials are stored
where such warehouses are located at a distance of 200 meters from a block of
houses and not the construction per se of a warehouse. The purpose is to avoid
the loss of life and property in case of fire which is one of the primordial
obligation of the government.
Laguna Lake area and the surrounding provinces, cities and towns hereinafter
referred to as the region, within the context of the national and regional plans
and policies for social and economic development and to carry out the
development of the Laguna Lake region with due regard and adequate
provisions for environmental management and control, preservation of the
quality of human life and ecological systems, and the prevention of undue
ecological disturbances, deterioration and pollution. 1
Special powers of the Authority, pertinent to the issues in this case, include:
Sec. 3.
Section 4 of the same Act is hereby further amended by adding
thereto seven new paragraphs to be known as paragraphs (j), (k), (l), (m), (n),
(o), and (p) which shall read as follows:
xxx
xxx
xxx
(j)
The provisions of existing laws to the contrary notwithstanding, to
engage in fish production and other aqua-culture projects in Laguna de Bay
and other bodies of water within its jurisdiction and in pursuance thereof to
conduct studies and make experiments, whenever necessary, with the
collaboration and assistance of the Bureau of Fisheries and Aquatic
Resources, with the end in view of improving present techniques and
practices. Provided, that until modified, altered or amended by the procedure
provided in the following sub-paragraph, the present laws, rules and permits
or authorizations remain in force;
(k)
For the purpose of effectively regulating and monitoring activities
in Laguna de Bay, the Authority shall have exclusive jurisdiction to issue new
permit for the use of the lake waters for any projects or activities in or
affecting the said lake including navigation, construction, and operation of
fishpens, fish enclosures, fish corrals and the like, and to impose necessary
safeguards for lake quality control and management and to collect necessary
fees for said activities and projects: Provided, That the fees collected for
fisheries may be shared between the Authority and other government agencies
and political sub-divisions in such proportion as may be determined by the
President of the Philippines upon recommendation of the Authority's Board:
Provided, further, That the Authority's Board may determine new areas of
fishery development or activities which it may place under the supervision of
the Bureau of Fisheries and Aquatic Resources taking into account the overall
development plans and programs for Laguna de Bay and related bodies of
water: Provided, finally, That the Authority shall subject to the approval of the
President of the Philippines promulgate such rules and regulations which shall
govern fisheries development activities in Laguna de Bay which shall take
into consideration among others the following: socio-economic amelioration
of bonafide resident fishermen whether individually or collectively in the form
of cooperatives, lakeshore town development, a master plan for fishpen
construction and operation, communal fishing ground for lake shore town
residents, and preference to lake shore town residents in hiring laborer for
fishery projects;
(l)
To require the cities and municipalities embraced within the region
to pass appropriate zoning ordinances and other regulatory measures
necessary to carry out the objectives of the Authority and enforce the same
with the assistance of the Authority;
(m)
The provisions of existing laws to the contrary notwithstanding, to
exercise water rights over public waters within the Laguna de Bay region
whenever necessary to carry out the Authority's projects;
(n)
To act in coordination with existing governmental agencies in
establishing water quality standards for industrial, agricultural and municipal
waste discharges into the lake and to cooperate with said existing agencies of
the government of the Philippines in enforcing such standards, or to separately
pursue enforcement and penalty actions as provided for in Section 4 (d) and
Section 39-A of this Act: Provided, That in case of conflict on the appropriate
water quality standard to be enforced such conflict shall be resolved thru the
NEDA Board. 2
To more effectively perform the role of the Authority under Republic Act No.
4850, as though Presidential Decree No. 813 were not thought to be
completely effective, the Chief Executive, feeling that the land and waters of
the Laguna Lake Region are limited natural resources requiring judicious
management to their optimal utilization to insure renewability and to preserve
the ecological balance, the competing options for the use of such resources
and conflicting jurisdictions over such uses having created undue constraints
on the institutional capabilities of the Authority in the light of the limited
powers vested in it by its charter, Executive Order No. 927 further defined and
enlarged the functions and powers of the Authority and named and
enumerated the towns, cities and provinces encompassed by the term "Laguna
de Bay Region".
Also, pertinent to the issues in this case are the following provisions of
Executive Order No. 927 which include in particular the sharing of fees:
Sec 2.
Water Rights Over Laguna de Bay and Other Bodies of Water
within the Lake Region: To effectively regulate and monitor activities in the
Laguna de Bay region, the Authority shall have exclusive jurisdiction to issue
permit for the use of all surface water for any projects or activities in or
affecting the said region including navigation, construction, and operation of
fishpens, fish enclosures, fish corrals and the like.
For the purpose of this Executive Order, the term "Laguna de Bay Region"
shall refer to the Provinces of Rizal and Laguna; the Cities of San Pablo,
Pasay, Caloocan, Quezon, Manila and Tagaytay; the towns of Tanauan, Sto.
Tomas and Malvar in Batangas Province; the towns of Silang and Carmona in
Cavite Province; the town of Lucban in Quezon Province; and the towns of
Marikina, Pasig, Taguig, Muntinlupa, and Pateros in Metro Manila.
Sec 3.
Collection of Fees. The Authority is hereby empowered to collect
fees for the use of the lake water and its tributaries for all beneficial purposes
including but not limited to fisheries, recreation, municipal, industrial,
agricultural, navigation, irrigation, and waste disposal purpose; Provided, that
the rates of the fees to be collected, and the sharing with other government
agencies and political subdivisions, if necessary, shall be subject to the
approval of the President of the Philippines upon recommendation of the
Authority's Board, except fishpen fee, which will be shared in the following
manner; 20 percent of the fee shall go to the lakeshore local governments, 5
percent shall go to the Project Development Fund which shall be administered
by a Council and the remaining 75 percent shall constitute the share of LLDA.
However, after the implementation within the three-year period of the Laguna
Lake Fishery Zoning and Management Plan, the sharing will be modified as
follows: 35 percent of the fishpen fee goes to the lakeshore local governments,
5 percent goes to the Project Development Fund and the remaining 60 percent
shall be retained by LLDA; Provided, however, that the share of LLDA shall
form part of its corporate funds and shall not be remitted to the National
Treasury as an exception to the provisions of Presidential Decree No. 1234.
(Emphasis supplied)
It is important to note that Section 29 of Presidential Decree No. 813 defined
the term "Laguna Lake" in this manner:
Sec 41.
Definition of Terms.
(11)
Laguna Lake or Lake. Whenever Laguna Lake or lake is used in
this Act, the same shall refer to Laguna de Bay which is that area covered by
the lake water when it is at the average annual maximum lake level of
elevation 12.50 meters, as referred to a datum 10.00 meters below mean lower
low water (M.L.L.W). Lands located at and below such elevation are public
lands which form part of the bed of said lake.
Then came Republic Act No. 7160, the Local Government Code of 1991. The
municipalities in the Laguna Lake Region interpreted the provisions of this
law to mean that the newly passed law gave municipal governments the
exclusive jurisdiction to issue fishing privileges within their municipal waters
because R.A. 7160 provides:
xxx
xxx
xxx
(XI)
Subject to the provisions of Book II of this Code, grant exclusive
privileges of constructing fish corrals or fishpens, or the taking or catching of
bangus fry, prawn fry or kawag-kawag or fry of any species or fish within the
municipal waters.
xxx
xxx
xxx
(1)
Grant fishing privileges to erect fish corrals, oyster, mussel or
other aquatic beds or bangus fry areas, within a definite zone of the municipal
waters, as determined by it; . . . .
(2)
Grant privilege to gather, take or catch bangus fry, prawn fry or
kawag-kawag or fry of other species and fish from the municipal waters by
nets, traps or other fishing gears to marginal fishermen free from any rental
fee, charges or any other imposition whatsoever.
xxx
xxx
xxx
One month, thereafter, the Authority sent notices to the concerned owners of
the illegally constructed fishpens, fishcages and other aqua-culture structures
advising them to dismantle their respective structures within 10 days from
receipt thereof, otherwise, demolition shall be effected.
Reacting thereto, the affected fishpen owners filed injunction cases against the
Authority before various regional trial courts, to wit: (a) Civil Case No. 759B, for Prohibition, Injunction and Damages, Regional Trial Court, Branch 70,
Binangonan, Rizal, filed by Fleet Development, Inc. and Carlito Arroyo; (b)
Civil Case No. 64049, for Injunction, Regional Trial Court, Branch 162,
Pasig, filed by IRMA Fishing and Trading Corp., ARTM Fishing Corp., BDR
Corp., MIRT Corp. and TRIM Corp.; (c) Civil Case No. 566, for Declaratory
Relief and Injunction, Regional Trial Court, Branch 163, Pasig, filed by
Manila Marine Life Business Resources, Inc. and Tobias Reynaldo M. Tianco;
(d) Civil Case No. 556-M, for Prohibition, Injunction and Damages, Regional
Trial Court, Branch 78, Morong, Rizal, filed by AGP Fishing Ventures, Inc.;
(e) Civil Case No. 522-M, for Prohibition, Injunction and Damages, Regional
Trial Court, Branch 78, Morong, Rizal, filed by Blue Lagoon and Alcris
Chicken Growers, Inc.; (f) Civil Case No. 554-, for Certiorari and Prohibition,
Regional Trial Court, Branch 79, Morong, Rizal, filed by Greenfields Ventures
Industrial Corp. and R.J. Orion Development Corp.; and (g) Civil Case No.
64124, for Injunction, Regional Trial Court, Branch 15, Pasig, filed by SEAMAR Trading Co., Inc. and Eastern Lagoon Fishing Corp. and Minamar
Fishing Corporation.
The Authority filed motions to dismiss the cases against it on jurisdictional
grounds. The motions to dismiss were invariably denied. Meanwhile,
temporary restraining order/writs of preliminary mandatory injunction were
issued in Civil Cases Nos. 64124, 759 and 566 enjoining the Authority from
demolishing the fishpens and similar structures in question.
Hence, the herein petition for certiorari, prohibition and injunction, G.R. Nos.
120865-71, were filed by the Authority with this court. Impleaded as partiesrespondents are concerned regional trial courts and respective private parties,
and the municipalities and/or respective Mayors of Binangonan, Taguig and
Jala-jala, who issued permits for the construction and operation of fishpens in
Laguna de Bay. The Authority sought the following reliefs, viz.:
(A)
Nullification of the temporary restraining order/writs
preliminary injunction issued in Civil Cases Nos. 64125, 759 and 566;
of
(B)
Permanent prohibition against the regional trial courts from
exercising jurisdiction over cases involving the Authority which is a co-equal
body;
(C)
Judicial pronouncement that R.A. 7610 (Local Government Code
of 1991) did not repeal, alter or modify the provisions of R.A. 4850, as
amended, empowering the Authority to issue permits for fishpens, fishcages
and other aqua-culture structures in Laguna de Bay and that, the Authority the
government agency vested with exclusive authority to issue said permits.
By this Court's resolution of May 2, 1994, the Authority's consolidated
petitions were referred to the Court of Appeals.
In a Decision, dated June 29, 1995, the Court of Appeals dismissed the
Authority's consolidated petitions, the Court of Appeals holding that: (A)
LLDA is not among those quasi-judicial agencies of government whose
decision or order are appealable only to the Court of Appeals; (B) the LLDA
charter does vest LLDA with quasi-judicial functions insofar as fishpens are
concerned; (C) the provisions of the LLDA charter insofar as fishing
privileges in Laguna de Bay are concerned had been repealed by the Local
Government Code of 1991; (D) in view of the aforesaid repeal, the power to
grant permits devolved to and is now vested with their respective local
government units concerned.
Not satisfied with the Court of Appeals decision, the Authority has returned to
this Court charging the following errors:
1.
THE HONORABLE COURT OF APPEALS PROBABLY
COMMITTED AN ERROR WHEN IT RULED THAT THE LAGUNA
LAKE DEVELOPMENT AUTHORITY IS NOT A QUASI-JUDICIAL
AGENCY.
2.
THE HONORABLE COURT OF APPEALS COMMITTED
SERIOUS ERROR WHEN IT RULED THAT R.A. 4850 AS AMENDED BY
P.D. 813 AND E.O. 927 SERIES OF 1983 HAS BEEN REPEALED BY
REPUBLIC ACT 7160. THE SAID RULING IS CONTRARY TO
ESTABLISHED PRINCIPLES AND JURISPRUDENCE OF STATUTORY
CONSTRUCTION.
3.
THE HONORABLE COURT OF APPEALS COMMITTED
SERIOUS ERROR WHEN IT RULED THAT THE POWER TO ISSUE
FISHPEN PERMITS IN LAGUNA DE BAY HAS BEEN DEVOLVED TO
CONCERNED (LAKESHORE) LOCAL GOVERNMENT UNITS.
We take a simplistic view of the controversy. Actually, the main and only issue
posed is: Which agency of the Government the Laguna Lake Development
Authority or the towns and municipalities comprising the region should
exercise jurisdiction over the Laguna Lake and its environs insofar as the
issuance of permits for fishery privileges is concerned?
Section 4 (k) of the charter of the Laguna Lake Development Authority,
Republic Act No. 4850, the provisions of Presidential Decree No. 813, and
Section 2 of Executive Order No. 927, cited above, specifically provide that
the Laguna Lake Development Authority shall have exclusive jurisdiction to
issue permits for the use of all surface water for any projects or activities in or
affecting the said region, including navigation, construction, and operation of
fishpens, fish enclosures, fish corrals and the like. On the other hand, Republic
Act No. 7160, the Local Government Code of 1991, has granted to the
municipalities the exclusive authority to grant fishery privileges in municipal
waters. The Sangguniang Bayan may grant fishery privileges to erect fish
corrals, oyster, mussels or other aquatic beds or bangus fry area within a
definite zone of the municipal waters.
We hold that the provisions of Republic Act No. 7160 do not necessarily
repeal the aforementioned laws creating the Laguna Lake Development
Authority and granting the latter water rights authority over Laguna de Bay
and the lake region.
The Local Government Code of 1991 does not contain any express provision
which categorically expressly repeal the charter of the Authority. It has to be
conceded that there was no intent on the part of the legislature to repeal
Republic Act No. 4850 and its amendments. The repeal of laws should be
made clear and expressed.
It has to be conceded that the charter of the Laguna Lake Development
Authority constitutes a special law. Republic Act No. 7160, the Local
Government Code of 1991, is a general law. It is basic in statutory
construction that the enactment of a later legislation which is a general law
cannot be construed to have repealed a special law. It is a well-settled rule in
this jurisdiction that "a special statute, provided for a particular case or class
of cases, is not repealed by a subsequent statute, general in its terms,
provisions and application, unless the intent to repeal or alter is manifest,
although the terms of the general law are broad enough to include the cases
embraced in the special law." 3
Where there is a conflict between a general law and a special statute, the
special statute should prevail since it evinces the legislative intent more
clearly than the general statute. The special law is to be taken as an exception
to the general law in the absence of special circumstances forcing a contrary
conclusion. This is because implied repeals are not favored and as much as
possible, effect must be given to all enactments of the legislature. A special
law cannot be repealed, amended or altered by a subsequent general law by
mere implication. 4
Thus, it has to be concluded that the charter of the Authority should prevail
over the Local Government Code of 1991.
Considering the reasons behind the establishment of the Authority, which are
environmental protection, navigational safety, and sustainable development,
there is every indication that the legislative intent is for the Authority to
proceed with its mission.
We are on all fours with the manifestation of petitioner Laguna Lake
Development Authority that "Laguna de Bay, like any other single body of
water has its own unique natural ecosystem. The 900 km lake surface water,
the eight (8) major river tributaries and several other smaller rivers that drain
into the lake, the 2,920 km basin or watershed transcending the boundaries of
Laguna and Rizal provinces, greater portion of Metro Manila, parts of Cavite,
Batangas, and Quezon provinces, constitute one integrated delicate natural
ecosystem that needs to be protected with uniform set of policies; if we are to
be serious in our aims of attaining sustainable development. This is an
exhaustible natural resource a very limited one which requires judicious
management and optimal utilization to ensure renewability and preserve its
ecological integrity and balance."
"Managing the lake resources would mean the implementation of a national
policy geared towards the protection, conservation, balanced growth and
sustainable development of the region with due regard to the intergenerational use of its resources by the inhabitants in this part of the earth.
The authors of Republic Act 4850 have foreseen this need when they passed
this LLDA law the special law designed to govern the management of our
Laguna de Bay lake resources."
"Laguna de Bay therefore cannot be subjected to fragmented concepts of
management policies where lakeshore local government units exercise
exclusive dominion over specific portions of the lake water. The garbage
thrown or sewage discharged into the lake, abstraction of water therefrom or
construction of fishpens by enclosing its certain area, affect not only that
specific portion but the entire 900 km of lake water. The implementation of a
cohesive and integrated lake water resource management policy, therefore, is
necessary to conserve, protect and sustainably develop Laguna de Bay." 5
The power of the local government units to issue fishing privileges was
clearly granted for revenue purposes. This is evident from the fact that Section
xxx
xxx
xxx
Removal from the Authority of the aforesaid licensing authority will render
nugatory its avowed purpose of protecting and developing the Laguna Lake
Region. Otherwise stated, the abrogation of this power would render useless
its reason for being and will in effect denigrate, if not abolish, the Laguna
Lake Development Authority. This, the Local Government Code of 1991 had
never intended to do.
xxx
Separate Opinions
Asserting their right to clean air, petitioners contend that the bases for their
petition for a writ of mandamus to order the LTFRB to require PUVs to use
CNG as an alternative fuel, lie in Section 16,[12] Article II of the 1987
Constitution, our ruling in Oposa v. Factoran, Jr.,[13] and Section 4[14] of
Republic Act No. 8749 otherwise known as the Philippine Clean Air Act of
1999.
Meantime, following a subsequent motion, the Court granted
petitioners motion to implead the Department of Transportation and
Communications (DOTC) as additional respondent.
In his Comment for respondents LTFRB and DOTC, the Solicitor General,
cites Section 3, Rule 65 of the Revised Rules of Court and explains that the
writ of mandamus is not the correct remedy since the writ may be issued only
to command a tribunal, corporation, board or person to do an act that is
required to be done, when he or it unlawfully neglects the performance of an
act which the law specifically enjoins as a duty resulting from an office, trust
or station, or unlawfully excludes another from the use and enjoyment of a
right or office to which such other is entitled, there being no other plain,
speedy and adequate remedy in the ordinary course of law.[15] Further citing
existing jurisprudence, the Solicitor General explains that in contrast to a
discretionary act, a ministerial act, which a mandamus is, is one in which an
officer or tribunal performs in a given state of facts, in a prescribed manner, in
obedience to a mandate of legal authority, without regard to or the exercise of
his own judgment upon the propriety or impropriety of an act done.
The Solicitor General also notes that nothing in Rep. Act No. 8749 that
petitioners invoke, prohibits the use of gasoline and diesel by owners of motor
vehicles. Sadly too, according to the Solicitor General, Rep. Act No. 8749
does not even mention the existence of CNG as alternative fuel and avers that
unless this law is amended to provide CNG as alternative fuel for PUVs, the
respondents cannot propose that PUVs use CNG as alternative fuel.
The Solicitor General also adds that it is the DENR that is tasked to
implement Rep. Act No. 8749 and not the LTFRB nor the DOTC. Moreover,
he says, it is the Department of Energy (DOE), under Section 26[16] of Rep.
Act No. 8749, that is required to set the specifications for all types of fuel and
fuel-related products to improve fuel compositions for improved efficiency
and reduced emissions. He adds that under Section 21[17] of the cited
Republic Act, the DOTC is limited to implementing the emission standards
for motor vehicles, and the herein respondents cannot alter, change or modify
the emission standards. The Solicitor General opines that the Court should
declare the instant petition for mandamus without merit.
Petitioners, in their Reply, insist that the respondents possess the
administrative and regulatory powers to implement measures in accordance
with the policies and principles mandated by Rep. Act No. 8749, specifically
Section 2[18] and Section 21.[19] Petitioners state that under these laws and
with all the available information provided by the DOE on the benefits of
CNG, respondents cannot ignore the existence of CNG, and their failure to
recognize CNG and compel its use by PUVs as alternative fuel while air
pollution brought about by the emissions of gasoline and diesel endanger the
environment and the people, is tantamount to neglect in the performance of a
duty which the law enjoins.
Lastly, petitioners aver that other than the writ applied for, they have no other
plain, speedy and adequate remedy in the ordinary course of law. Petitioners
insist that the writ in fact should be issued pursuant to the very same Section
3, Rule 65 of the Revised Rules of Court that the Solicitor General invokes.
In their Memorandum, petitioners phrase the issues before us as follows:
I.
WHETHER OR NOT THE PETITIONERS HAVE THE
PERSONALITY TO BRING THE PRESENT ACTION
II.
WHETHER OR NOT THE PRESENT ACTION IS
SUPPORTED BY LAW
III.
WHETHER OR NOT THE RESPONDENT IS THE AGENCY
RESPONSIBLE TO IMPLEMENT THE SUGGESTED ALTERNATIVE OF
REQUIRING PUBLIC UTILITY VEHICLES TO USE COMPRESSED
NATURAL GAS (CNG)
IV.
WHETHER OR NOT THE RESPONDENT CAN BE
COMPELLED TO REQUIRE PUBLIC UTILITY VEHICLES TO USE
COMPRESSED
NATURAL GAS
THROUGH A WRIT
OF
MANDAMUS[20]
Briefly put, the issues are two-fold. First, Do petitioners have legal
personality to bring this petition before us? Second, Should mandamus issue
against respondents to compel PUVs to use CNG as alternative fuel?
According to petitioners, Section 16,[21] Article II of the 1987 Constitution is
the policy statement that bestows on the people the right to breathe clean air in
a healthy environment. This policy is enunciated in Oposa.[22] The
implementation of this policy is articulated in Rep. Act No. 8749. These,
according to petitioners, are the bases for their standing to file the instant
petition. They aver that when there is an omission by the government to
safeguard a right, in this case their right to clean air, then, the citizens can
resort to and exhaust all remedies to challenge this omission by the
government. This, they say, is embodied in Section 4[23] of Rep. Act No.
8749.
Petitioners insist that since it is the LTFRB and the DOTC that are the
government agencies clothed with power to regulate and control motor
vehicles, particularly PUVs, and with the same agencies awareness and
knowledge that the PUVs emit dangerous levels of air pollutants, then, the
responsibility to see that these are curbed falls under respondents functions
and a writ of mandamus should issue against them.
The Solicitor General, for his part, reiterates his position that the
respondent government agencies, the DOTC and the LTFRB, are not in a
position to compel the PUVs to use CNG as alternative fuel. The Solicitor
General explains that the function of the DOTC is limited to implementing the
emission standards set forth in Rep. Act No. 8749 and the said law only goes
as far as setting the maximum limit for the emission of vehicles, but it does
not recognize CNG as alternative engine fuel. The Solicitor General avers that
the petition should be addressed to Congress for it to come up with a policy
that would compel the use of CNG as alternative fuel.
Patently, this Court is being asked to resolve issues that are not only
procedural. Petitioners challenge this Court to decide if what petitioners
propose could be done through a less circuitous, speedy and unchartered
course in an issue that Chief Justice Hilario G. Davide, Jr. in his ponencia in
the Oposa case,[24] describes as inter-generational responsibility and intergenerational justice.
Now, as to petitioners standing. There is no dispute that petitioners
have standing to bring their case before this Court. Even respondents do not
question their standing. This petition focuses on one fundamental legal right
of petitioners, their right to clean air. Moreover, as held previously, a partys
standing before this Court is a procedural technicality which may, in the
exercise of the Courts discretion, be set aside in view of the importance of the
issue raised. We brush aside this issue of technicality under the principle of
the transcendental importance to the public, especially so if these cases
demand that they be settled promptly.
Undeniably, the right to clean air not only is an issue of paramount
importance to petitioners for it concerns the air they breathe, but it is also
impressed with public interest. The consequences of the counter-productive
and retrogressive effects of a neglected environment due to emissions of
motor vehicles immeasurably affect the well-being of petitioners. On these
considerations, the legal standing of the petitioners deserves recognition.
Our next concern is whether the writ of mandamus is the proper
remedy, and if the writ could issue against respondents.
Under Section 3, Rule 65 of the Rules of Court, mandamus lies under
any of the following cases: (1) against any tribunal which unlawfully neglects
the performance of an act which the law specifically enjoins as a duty; (2) in
case any corporation, board or person unlawfully neglects the performance of
an act which the law enjoins as a duty resulting from an office, trust, or
station; and (3) in case any tribunal, corporation, board or person unlawfully
excludes another from the use and enjoyment of a right or office to which
such other is legally entitled; and there is no other plain, speedy, and adequate
remedy in the ordinary course of law.
In University of San Agustin, Inc. v. Court of Appeals,[25] we said,
It is settled that mandamus is employed to compel the performance,
when refused, of a ministerial duty, this being its main objective. It does not
lie to require anyone to fulfill contractual obligations or to compel a course of
conduct, nor to control or review the exercise of discretion. On the part of the
petitioner, it is essential to the issuance of a writ of mandamus that he should
have a clear legal right to the thing demanded and it must be the imperative
duty of the respondent to perform the act required. It never issues in doubtful
cases. While it may not be necessary that the duty be absolutely expressed, it
must however, be clear. The writ will not issue to compel an official to do
anything which is not his duty to do or which is his duty not to do, or give to
the applicant anything to which he is not entitled by law. The writ neither
confers powers nor imposes duties. It is simply a command to exercise a
power already possessed and to perform a duty already imposed. (Emphasis
supplied.)
In this petition the legal right which is sought to be recognized and enforced
hinges on a constitutional and a statutory policy already articulated in
operational terms, e.g. in Rep. Act No. 8749, the Philippine Clean Air Act of
1999. Paragraph (a), Section 21 of the Act specifically provides that when
PUVs are concerned, the responsibility of implementing the policy falls on
respondent DOTC. It provides as follows:
SEC 21. Pollution from Motor Vehicles. - a) The DOTC shall implement the
emission standards for motor vehicles set pursuant to and as provided in this
Act. To further improve the emission standards, the Department [DENR]
shall review, revise and publish the standards every two (2) years, or as the
need arises. It shall consider the maximum limits for all major pollutants to
ensure substantial improvement in air quality for the health, safety and welfare
of the general public.
Paragraph (b) states:
b) The Department [DENR] in collaboration with the DOTC, DTI and LGUs,
shall develop an action plan for the control and management of air pollution
from motor vehicles consistent with the Integrated Air Quality Framework . . .
. (Emphasis supplied.)
There is no dispute that under the Clean Air Act it is the DENR that is tasked
to set the emission standards for fuel use and the task of developing an action
plan. As far as motor vehicles are concerned, it devolves upon the DOTC and
the line agency whose mandate is to oversee that motor vehicles prepare an
action plan and implement the emission standards for motor vehicles, namely
the LTFRB.
In Oposa[26] we said, the right to a balanced and healthful ecology carries
with it the correlative duty to refrain from impairing the environment. We
also said, it is clearly the duty of the responsible government agencies to
advance the said right.
Petitioners invoke the provisions of the Constitution and the Clean Air Act in
their prayer for issuance of a writ of mandamus commanding the respondents
to require PUVs to use CNG as an alternative fuel. Although both are general
mandates that do not specifically enjoin the use of any kind of fuel,
particularly the use of CNG, there is an executive order implementing a
program on the use of CNG by public vehicles. Executive Order No. 290,
entitled Implementing the Natural Gas Vehicle Program for Public Transport
(NGVPPT), took effect on February 24, 2004. The program recognized,
among others, natural gas as a clean burning alternative fuel for vehicle which
has the potential to produce substantially lower pollutants; and the
Malampaya Gas-to-Power Project as representing the beginning of the natural
gas industry of the Philippines. Paragraph 1.2, Section 1 of E.O. No. 290 cites
as one of its objectives, the use of CNG as a clean alternative fuel for
transport. Furthermore, one of the components of the program is the
development of CNG refueling stations and all related facilities in strategic
locations in the country to serve the needs of CNG-powered PUVs. Section 3
of E.O. No. 290, consistent with E.O. No. 66, series of 2002, designated the
DOE as the lead agency (a) in developing the natural gas industry of the
country with the DENR, through the EMB and (b) in formulating emission
standards for CNG. Most significantly, par. 4.5, Section 4 tasks the DOTC,
working with the DOE, to develop an implementation plan for a gradual shift
to CNG fuel utilization in PUVs and promote NGVs [natural gas vehicles] in
Metro Manila and Luzon through the issuance of directives/orders providing
preferential franchises in present day major routes and exclusive franchises to
NGVs in newly opened routes A thorough reading of the executive order
assures us that implementation for a cleaner environment is being addressed.
To a certain extent, the instant petition had been mooted by the issuance of
E.O. No. 290.
Regrettably, however, the plain, speedy and adequate remedy herein
sought by petitioners, i.e., a writ of mandamus commanding the respondents
to require PUVs to use CNG, is unavailing. Mandamus is available only to
compel the doing of an act specifically enjoined by law as a duty. Here, there
is no law that mandates the respondents LTFRB and the DOTC to order
owners of motor vehicles to use CNG. At most the LTFRB has been tasked
by E.O. No. 290 in par. 4.5 (ii), Section 4 to grant preferential and exclusive
Certificates of Public Convenience (CPC) or franchises to operators of NGVs
based on the results of the DOTC surveys.
Further, mandamus will not generally lie from one branch of government to a
coordinate branch, for the obvious reason that neither is inferior to the other.
[27] The need for future changes in both legislation and its implementation
cannot be preempted by orders from this Court, especially when what is
...
3.5
Said Dumping Site is observed to be confined within the said
Watershed Reservation, bearing in the northeastern part of Lungsod Silangan
Townsite Reservation. Such illegal Dumping Site operation inside (the)
Watershed Reservation is in violation of P.D. 705, otherwise known as the
Revised Forestry Code, as amended. . .
Recommendations:
5.1
The MMC Dumping Site Inside Marikina Watershed Reservation,
particularly at Brgy. Pintong Bocaue, San Mateo, Rizal and at Bo. Pinugay,
Baras/Antipolo, Rizal which are the present garbage zones must totally be
stopped and discouraged without any political intervention and delay in order
to save our healthy ecosystems found therein, to avoid much destruction,
useless efforts and lost (sic) of millions of public funds over the land in
question; (Emphasis ours)
domestic water supply the whole year round. The said program regards
dumpsites as incompatible within the watershed because of the heavy
pollution, including the risk of diseases, generated by such activities which
would negate the governments efforts to upgrade the water quality of the
lake. Consequently, please consider our objection to the proposed location of
the dumpsites within the watershed. (Emphasis supplied by petitioners)
On 31 July 1990, less than six months after the issuance of the ECC,
Undersecretary Roque suspended the ECC in a letter[9] addressed to the
respondent Secretary of DPWH, stating in part that:
Upon site investigation conducted by Environmental Management Bureau
staff on development activities at the San Mateo Landfill Site, it was
ascertained that ground slumping and erosion have resulted from improper
development of the site. We believe that this will adversely affect the
environmental quality in the area if the proper remedial measures are not
instituted in the design of the landfill site. This is therefore contradictory to
statements made in the Environmental Impact Statement (EIS) submitted that
above occurrences will be properly mitigated.
In view of this, we are forced to suspend the Environmental Compliance
Certificate (ECC) issued until appropriate modified plans are submitted and
approved by this Office for implementation. (Emphasis ours)
On 21 June 1993, the Acting Mayor of San Mateo, Enrique Rodriguez, Jr.,
Barangay Captain Dominador Vergara, and petitioner Rolando E. Villacorte,
Chairman of the Pintong Bocaue Multipurpose Cooperative (PBMC)
wrote[10] then President Fidel V. Ramos expressing their objections to the
continued operation of the MMA dumpsite for causing unabated pollution
and degradation of the Marikina Watershed Reservation.
On 14 July 1993, another Investigation Report[11] submitted by the Regional
Technical Director to the DENR Undersecretary for Environment and
Research contained the following findings and recommendations:
Remarks and Findings:
....
5.
Interview with Mr. Dayrit, whose lot is now being endangered because
soil erosion have (sic) caused severe siltation and sedimentation of the Dayrit
Creek which water is greatly polluted by the dumping of soil bulldozed to the
creek;
6.
Also interview with Mrs. Vilma Montajes, the multi-grade teacher of
Pintong Bocaue Primary School which is located only about 100 meters from
the landfill site. She disclosed that bad odor have (sic) greatly affected the
pupils who are sometimes sick with respiratory illnesses. These odors show
that MMA have (sic) not instituted/sprayed any disinfectant chemicals to
prevent air pollution in the area. Besides large flies (Bangaw) are swarming
all over the playground of the school. The teacher also informed the
undersigned that plastic debris are being blown whenever the wind blows in
their direction.
7.
As per investigation report there are now 15 hectares being used as
landfill disposal sites by the MMA. The MMA is intending to expand its
operation within the 50 hectares.
8.
Lots occupied within 50 hectares are fully planted with fruit bearing
trees like Mangoes, Santol, Jackfruit, Kasoy, Guyabano, Kalamansi and Citrus
which are now bearing fruits and being harvested and marketed to nearby San
Mateo Market and Masinag Market in Antipolo.
....
Recommendations:
1.
As previously recommended, the undersigned also strongly
recommend(s) that the MMA be made to relocate the landfill site because the
area is within the Marikina Watershed Reservation and Lungsod Silangan.
The leachate treatment plant ha(s) been eroded twice already and
contaminated the nearby creeks which is the source of potable water of the
residents. The contaminated water also flows to Wawa Dam and Boso-boso
River which also flows to Laguna de Bay.
2.
The proposed Integrated Social Forestry Project be pushed through or
be approved. ISF project will not only uplift the socio-economic conditions of
WHEREAS, to cope with the requirements for the development of the waste
disposal facilities that may be used, portions of the peripheral areas of the
Marikina Watershed Reservation, after due consideration and study, have now
been identified as suitable sites that may be used for the purpose;
WHEREAS, the Secretary of the Department of Environment and Natural
Resources has recommended the exclusion of these areas that have been so
identified from the Marikina Watershed Reservation so that they may then be
developed for the purpose;
NOW, THEREFORE, for and in consideration of the aforecited premises, I,
Fidel V. Ramos, President of the Philippines, by virtue of the powers vested in
me by law, do hereby ordain:
4.21
The present site at San Mateo was selected because, at the time
consideration was being made, and up to the present, it is found to have the
attributes that positively respond to the criteria established:
4.21.1 The site was a government property and would not require any outlay
for it to be acquired.
4.21.2 It is far from any sizeable community/settlements that could be
affected by the development that would be introduced and yet, was within
economic hauling distance from the areas they are designed to serve.
4.21.21 At the time it was originally decided to locate the landfills at the
present site, there were not more that fifteen (15) settlers in the area and they
had hardly established themselves. The community settlements were located
far from the site.
4.21.22 The area was hardly accessible, especially to any public transport.
The area was being served by a public utility jeep that usually made only two
(2) trips daily. During the rainy season, it could only be reached by equipping
the vehicle with tire chains to traverse the slippery muddy trail roads.
4.21.3 There was, at least, seventy-three (73) hectares available at the site.
4.3 While the site was within the Marikina Watershed Reservation under the
administration of the DENR, the site was located at the lower periphery of the
buffer zone; was evaluated to be least likely to affect the underground water
supply; and could, in fact, be excluded from the reservation.
4.31 It was determined to be far from the main water containment area for it to
pose any immediate danger of contaminating the underground water, in case
of a failure in any of the mitigating measures that would be installed.
4.32 It was likewise too far from the nearest body of water, the Laguna Lake,
and the distance, plus the increasing accumulation of water from other
tributaries toward the lake, would serve to dilute and mitigate any
contamination it may emit, in case one happened.
4.33
To resolve the recurring issue regarding its being located within
the Marikina Watershed Reservation, the site had been recommended by the
DENR, and approved by the President, to already be excluded from the
Marikina Watershed reservation and placed under the administration of
MMDA, since the site was deemed to form part of the land resource reserve
then commonly referred to as buffer zone.
5.
Contrary to the impression that you had been given, relocating the site
at this point and time would not be easy, if not impracticable, because aside
from the investments that had been made in locating the present site, further
investments have been incurred in:
5.1 The conduct of the technical studies for the development being
implemented. Through a grant-in-aid from the World Bank, US$600,000 was
initially spent for the conduct of the necessary studies on the area and the
design of the landfill. This was augmented by, at least, another P1.5 million
from the government for the studies to be completed, or a total cost at the time
(1990) of approximately P20 million.
5.2. Additionally, the government has spent approximately P33 million in
improving on the roadway to make the site accessible from the main
road/highway.
5.3 To achieve the necessary economies in the development of the site, the
utilities had been planned so that their use could be maximized. These include
the access roads, the drainage system, the leacheate collection system, the gas
collection system, and the waste water treatment system. Their construction
are designed so that instead of having to construct independent units for each
area, the use of existing facilities can be maximized through a system of
interconnection. On the average, the government is spending P14.8 million to
develop a hectare of sanitary landfill area.
6.
Despite the preparations and the investments that are now being made
on the project, it is estimated that the total available area, at an accelerated rate
of disposal, assuming that all open dump sites were to be closed, will only last
for 39 months.
6.1 We are still hard pressed to achieve advanced development on the sites to
assure against any possible crisis in garbage from again being experienced in
Metro Manila, aside from having to look for the additional sites that may be
used after the capacities shall have been exhausted.
6.2 Faced with the prospects of having the 15,700 cubic meters of garbage
generated daily strewn all over Metro Manila, we are certain you will agree
that it would be futile to even as much as consider a suspension of the waste
disposal operations at the sanitary landfills.
On 22 July 1996, the petitioners filed before the Court of Appeals a civil
action for certiorari, prohibition and mandamus with application for a
temporary restraining order/writ of preliminary injunction. The hearing on the
prayer for preliminary injunction was held on 14 August 1996.
On 13 June 1997, the court a quo rendered a Decision,[15] the dispositive part
of which reads:
WHEREFORE, the petition for certiorari, prohibition and mandamus with
application for a temporary restraining order/writ of preliminary injunction for
lack of cause of action, is hereby DENIED.[16]
Hence, this petition for review on certiorari of the above decision on the
following grounds:
I
THE COURT OF APPEALS ERRED AND ABUSED ITS DISCRETION IN
DELIBERATELY IGNORING THE SIGNIFICANT FACT THAT
PRESIDENTIAL PROCLAMATION NO. 635 WAS BASED ON A BRAZEN
FORGERY IT WAS SUPPOSEDLY ISSUED, AS STATED IN THE
PROCLAMATION ITSELF AND REPEATEDLY ASSERTED BY
RESPONDENTS IN THEIR COMMENT, ON THE BASIS OF THE
ALLEGED RECOMMENDATION OF THE DENR SECRETARY DATED
JUNE 26, 1995 BUT WHICH ASSERTION WAS DENOUNCED BY THE
THEN SECRETARY ANGEL C. ALCALA HIMSELF IN A SWORN
STATEMENT DATED SEPTEMBER 18, 1996 AND AGAIN DURING THE
SPECIAL HEARING OF THE CASE IN THE COURT OF APPEALS ON
NOVEMBER 13, 1996 AS A FORGERY SINCE HIS SIGNATURE ON
THE ALLEGED RECOMMENDATION HAD BEEN FALSIFIED, AS NOW
ADMITTED BY RESPONDENTS THEMSELVES IN THEIR COMMENT
FILED WITH THE COURT OF APPEALS, THROUGH THE OFFICE OF
THE SOLICITOR GENERAL.
II
THE COURT OF APPEALS ERRED AND ABUSED ITS DISCRETION IN
COMPLETELY IGNORING THE SIGNIFICANT FACT THAT THE
RESPONDENTS ARE OPERATING THE LANDFILL BASED ON A
SPURIOUS ENVIRONMENTAL COMPLIANCE CERTIFICATE.
III
THE COURT OF APPEALS ERRED IN RULING THAT THE
RESPONDENTS DID NOT VIOLATE R.A. 7586 WHEN THEY ISSUED
AND IMPLEMENTED PROCLAMATION NO. 635 CONSIDERING THAT
THE WITHDRAWAL OR DISESTABLISHMENT OF A PROTECTED
AREA OR THE MODIFICATION OF THE MARIKINA WATERSHED CAN
ONLY BE DONE BY AN ACT OF CONGRESS.
IV
THE COURT OF APPEALS ERRED AND ABUSED ITS DISCRETION
WHEN IT DELIBERATELY AND WILLFULLY BRUSHED ASIDE THE
UNANIMOUS FINDINGS AND ADVERSE RECOMMENDATIONS OF
RESPONSIBLE GOVERNMENT AGENCIES AND NON-PARTISAN
OFFICIALS CONCERNED WITH ENVIRONMENTAL PROTECTION IN
FAVOR OF THE SELF-SERVING, GRATUITOUS ASSERTIONS FOUND
IN THE UNSOLICITED, PARTISAN LETTER OF FORMER MALABON
MAYOR, NOW CHAIRMAN PROSPERO ORETA OF THE MMDA WHO
IS AN INTERESTED PARTY IN THIS CASE.
V
THE COURT OF APPEALS ERRED WHEN IT READILY SWALLOWED
RESPONDENTS ASSERTION THAT THE SAN MATEO DUMPSITE IS
On 05 January 1998, while the appeal was pending, the petitioners filed a
Motion for Temporary Restraining Order,[17] pointing out that the effects of
the El Nio phenomenon would be aggravated by the relentless destruction of
the Marikina Watershed Reservation. They noted that respondent MMDA
had, in the meantime, continued to expand the area of the dumpsite inside the
Marikina Watershed Reservation, cutting down thousands of mature fruit trees
and forest trees, and leveling hills and mountains to clear the dumping area.
Garbage disposal operations were also being conducted on a 24-hour basis,
with hundreds of metric tons of wastes being dumped daily, including toxic
and infectious hospital wastes, intensifying the air, ground and water
pollution.[18]
The petitioners reiterated their prayer that respondent MMDA be temporarily
enjoined from further dumping waste into the site and from encroaching into
the area beyond its existing perimeter fence so as not to render the case moot
and academic.
On 28 January 1999, the petitioners filed a Motion for Early Resolution,[19]
calling attention to the continued expansion of the dumpsite by the MMDA
that caused the people of Antipolo to stage a rally and barricade the Marcos
Highway to stop the dump trucks from reaching the site for five successive
days from 16 January 1999. On the second day of the barricade, all the
municipal mayors of the province of Rizal openly declared their full support
for the rally, and notified the MMDA that they would oppose any further
attempt to dump garbage in their province.[20]
As a result, MMDA officials, headed by then Chairman Jejomar Binay, agreed
to abandon the dumpsite after six months. Thus, the municipal mayors of
Rizal, particularly the mayors of Antipolo and San Mateo, agreed to the use of
the dumpsite until that period, which would end on 20 July 1999.[21]
On 13 July 1999, the petitioners filed an Urgent Second Motion for Early
Resolution[22] in anticipation of violence between the conflicting parties as
the date of the scheduled closure of the dumpsite neared.
On 19 July 1999, then President Joseph E. Estrada, taking cognizance of the
gravity of the problems in the affected areas and the likelihood that violence
would erupt among the parties involved, issued a Memorandum ordering the
closure of the dumpsite on 31 December 2000.[23] Accordingly, on 20 July
1999, the Presidential Committee on Flagship Programs and Projects and the
MMDA entered into a MOA with the Provincial Government of Rizal, the
Municipality of San Mateo, and the City of Antipolo, wherein the latter agreed
to further extend the use of the dumpsite until its permanent closure on 31
December 2000.[24]
On 11 January 2001, President Estrada directed Department of Interior and
Local Government Secretary Alfredo Lim and MMDA Chairman Binay to
reopen the San Mateo dumpsite in view of the emergency situation of
uncollected garbage in Metro Manila, resulting in a critical and imminent
health and sanitation epidemic.[25]
Claiming the above events constituted a clear and present danger of violence
erupting in the affected areas, the petitioners filed an Urgent Petition for
Restraining Order[26] on 19 January 2001.
On 24 January 2001, this Court issued the Temporary Restraining Order
prayed for, effective immediately and until further orders.[27]
Meanwhile, on 26 January 2001, Republic Act No. 9003, otherwise known as
The Ecological Solid Waste Management Act of 2000, was signed into law
by President Estrada.
The DENR suspended the sites ECC after investigations revealed ground
slumping and erosion had resulted from improper development of the site.[34]
Another Investigation Report[35] submitted by the Regional Technical
Director to the DENR reported respiratory illnesses among pupils of a primary
school located approximately 100 meters from the site, as well as the constant
presence of large flies and windblown debris all over the schools playground.
It further reiterated reports that the leachate treatment plant had been eroded
twice already, contaminating the nearby creeks that were sources of potable
water for the residents. The contaminated water was also found to flow to the
Wawa Dam and Boso-boso River, which in turn empties into Laguna de Bay.
This brings us to the second self-evident point. Water is life, and must be
saved at all costs. In Collado v. Court of Appeals,[36] we had occasion to
reaffirm our previous discussion in Sta. Rosa Realty Development
Corporation v. Court of Appeals,[37] on the primordial importance of
watershed areas, thus: The most important product of a watershed is water,
which is one of the most important human necessities. The protection of
watersheds ensures an adequate supply of water for future generations and the
control of flashfloods that not only damage property but also cause loss of
lives. Protection of watersheds is an intergenerational responsibility that
needs to be answered now.[38]
Three short months before Proclamation No. 635 was passed to avert the
garbage crisis, Congress had enacted the National Water Crisis Act[39] to
adopt urgent and effective measures to address the nationwide water crisis
which adversely affects the health and well-being of the population, food
production, and industrialization process. One of the issues the law sought to
address was the protection and conservation of watersheds.[40]
In other words, while respondents were blandly declaring that the
reason for the creation of the Marikina Watershed Reservation, i.e., to protect
Marikina River as the source of water supply of the City of Manila, no longer
exists, the rest of the country was gripped by a shortage of potable water so
serious, it necessitated its own legislation.
Respondents actions in the face of such grave environmental consequences
defy all logic. The petitioners rightly noted that instead of providing
solutions, they have, with unmitigated callousness, worsened the problem. It
is this readiness to wreak irrevocable damage on our natural heritage in
pursuit of what is expedient that has compelled us to rule at length on this
issue. We ignore the unrelenting depletion of our natural heritage at our peril.
I.
THE REORGANIZATION ACT OF THE DENR DEFINES AND
LIMITS ITS POWERS OVER THE COUNTRYS NATURAL RESOURCES
The respondents next point out that the Marikina Watershed Reservation, and
thus the San Mateo Site, is located in the public domain. They allege that as
such, neither the Province of Rizal nor the municipality of San Mateo has the
power to control or regulate its use since properties of this nature belong to the
national, and not to the local governments.
It is ironic that the respondents should pursue this line of reasoning.
In Cruz v. Secretary of Environment and Natural Resources,[41] we had
occasion to observe that (o)ne of the fixed and dominating objectives of the
1935 Constitutional Convention was the nationalization and conservation of
the natural resources of the country. There was an overwhelming sentiment in
the convention in favor of the principle of state ownership of natural resources
and the adoption of the Regalian doctrine. State ownership of natural
resources was seen as a necessary starting point to secure recognition of the
states power to control their disposition, exploitation, development, or
utilization.[42]
The Regalian doctrine was embodied in the 1935 Constitution, in Section 1 of
Article XIII on Conservation and Utilization of Natural Resources. This
was reiterated in the 1973 Constitution under Article XIV on the National
Economy and the Patrimony of the Nation, and reaffirmed in the 1987
Constitution in Section 2 of Article XII on National Economy and
Patrimony, to wit:
Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna, and other natural resources are owned by the State.
With the exception of agricultural lands, all other natural resources shall not
be alienated. The exploration, development and utilization of natural
resources shall be under the full control and supervision of the State. The
State may directly undertake such activities or it may enter into co-production,
joint venture, or production-sharing agreements with Filipino citizens, or
corporations or associations at least sixty per centum of whose capital is
owned by such citizens. Such agreements may be for a period not exceeding
twenty-five years, renewable for not more than twenty-five years, and under
such terms and conditions as may be provided by law. In cases of water rights
for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of
the grant.[43]
Clearly, the state is, and always has been, zealous in preserving as much of
our natural and national heritage as it can, enshrining as it did the obligation to
preserve and protect the same within the text of our fundamental law.
It was with this objective in mind that the respondent DENR was mandated by
then President Corazon C. Aquino, under Section 4 of Executive Order No.
192, [44] otherwise known as The Reorganization Act of the Department of
Environment and Natural Resources, to be the primary government agency
responsible for the conservation, management, development and proper use of
the countrys environment and natural resources, specifically forest and
grazing lands, mineral resources, including those in reservation and watershed
areas, and lands of the public domain. It is also responsible for the licensing
and regulation of all natural resources as may be provided for by law in order
to ensure equitable sharing of the benefits derived therefrom for the welfare of
the present and future generations of Filipinos.
We expounded on this matter in the landmark case of Oposa v. Factoran,[45]
where we held that the right to a balanced and healthful ecology is a
fundamental legal right that carries with it the correlative duty to refrain from
impairing the environment. This right implies, among other things, the
judicious management and conservation of the countrys resources, which
duty is reposed in the DENR under the aforequoted Section 4 of Executive
Order No. 192. Moreover:
Section 3 (of E. O. No. 192) 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 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. (Emphasis ours)
This policy declaration is substantially re-stated in Title XIV, Book IV of the
Administrative Code of 1987, 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.[46]
(Emphasis ours.)
In sum, the Administrative Code of 1987 and Executive Order No. 192 entrust
the DENR with the guardianship and safekeeping of the Marikina Watershed
Reservation and our other natural treasures. However, although the DENR, an
agency of the government, owns the Marikina Reserve and has jurisdiction
over the same, this power is not absolute, but is defined by the declared
policies of the state, and is subject to the law and higher authority. Section 2,
With great power comes great responsibility. It is the height of irony that the
public respondents have vigorously arrogated to themselves the power to
control the San Mateo site, but have deftly ignored their corresponding
responsibility as guardians and protectors of this tormented piece of land.
II.
THE LOCAL GOVERNMENT CODE GIVES TO LOCAL GOVERNMENT
UNITS ALL THE NECESSARY POWERS TO PROMOTE THE GENERAL
WELFARE OF THEIR INHABITANTS
The circumstances under which Proclamation No. 635 was passed also
violates Rep. Act No. 7160, or the Local Government Code.
Contrary to the averment of the respondents, Proclamation No. 635, which
was passed on 28 August 1995, is subject to the provisions of the Local
Government Code, which was approved four years earlier, on 10 October
1991.
Section 2(c) of the said law declares that it is the policy of the state to require
all national agencies and offices to conduct periodic consultations with
appropriate local government units, non-governmental and people's
organizations, and other concerned sectors of the community before any
project or program is implemented in their respective jurisdictions.
Likewise, Section 27 requires prior consultations before a program shall be
implemented by government authorities and the prior approval of the
sanggunian is obtained.
During the oral arguments at the hearing for the temporary restraining order,
Director Uranza of the MMDA Solid Waste Management Task Force declared
before the Court of Appeals that they had conducted the required
consultations. However, he added that (t)his is the problem, sir, the officials
we may have been talking with at the time this was established may no longer
be incumbent and this is our difficulty now. That is what we are trying to do
now, a continuing dialogue.[47]
The ambivalent reply of Director Uranza was brought to the fore when, at the
height of the protest rally and barricade along Marcos Highway to stop dump
trucks from reaching the site, all the municipal mayors of the province of
Rizal openly declared their full support for the rally and notified the MMDA
that they would oppose any further attempt to dump garbage in their province.
[48]
The municipal mayors acted within the scope of their powers, and were in fact
fulfilling their mandate, when they did this. Section 16 allows every local
government unit to exercise the powers expressly granted, those necessarily
implied therefrom, as well as powers necessary, appropriate, or incidental for
its efficient and effective governance, and those which are essential to the
promotion of the general welfare, which involve, among other things,
promot(ing) health and safety, enhance(ing) the right of the people to a
balanced ecology, and preserv(ing) the comfort and convenience of their
inhabitants.
In Lina , Jr. v. Pao,[49] we held that Section 2 (c), requiring consultations
with the appropriate local government units, should apply to national
government projects affecting the environmental or ecological balance of the
particular community implementing the project. Rejecting the petitioners
contention that Sections 2(c) and 27 of the Local Government Code applied
mandatorily in the setting up of lotto outlets around the country, we held that:
From a careful reading of said provisions, we find that these apply only to
national programs and/or projects which are to be implemented in a particular
local community. Lotto is neither a program nor a project of the national
Under the Local Government Code, therefore, two requisites must be met
before a national project that affects the environmental and ecological balance
of local communities can be implemented: prior consultation with the affected
local communities, and prior approval of the project by the appropriate
sanggunian. Absent either of these mandatory requirements, the projects
implementation is illegal.
III.
WASTE DISPOSAL IS REGULATED BY THE ECOLOGICAL
SOLID WASTE MANAGEMENT ACT OF 2000
The respondents would have us overlook all the abovecited laws because the
San Mateo site is a very expensive - and necessary - fait accompli. The
respondents cite the millions of pesos and hundreds of thousands of dollars
the government has already expended in its development and construction,
and the lack of any viable alternative sites.
The Court of Appeals agreed, thus:
During the hearing on the injunction, questions were also asked. What will
happen if the San Mateo Sanitary Landfill is closed? Where will the daily
collections of garbage be disposed of and dumped? Atty. Mendoza, one of
the lawyers of the petitioners, answered that each city/municipality must take
care of its own. Reflecting on that answer, we are troubled: will not the
proliferation of separate open dumpsites be a more serious health hazard
(which ha(s) to be addressed) to the residents of the community? What with
the galloping population growth and the constricting available land area in
Metro Manila? There could be a mini-Smokey Mountain in each of the ten
citiescomprising Metro Manila, placing in danger the health and safety of
more people. Damage to the environment could be aggravated by the increase
in number of open dumpsites. An integrated system of solid waste
management, like the San Mateo Sanitary Landfill, appears advisable to a
populous metropolis like the Greater Metro Manila Area absent access to
better technology.[51]
We acknowledge that these are valid concerns. Nevertheless, the lower court
should have been mindful of the legal truism that it is the legislature, by its
very nature, which is the primary judge of the necessity, adequacy, wisdom,
reasonableness and expediency of any law.[52]
Moreover, these concerns are addressed by Rep. Act No. 9003. Approved on
26 January 2001, The Ecological Solid Waste Management Act of 2000 was
enacted pursuant to the declared policy of the state to adopt a systematic,
comprehensive and ecological solid waste management system which shall
ensure the protection of public health and environment, and utilize
environmentally sound methods that maximize the utilization of valuable
resources and encourage resource conservation and recovery.[53] It requires
the adherence to a Local Government Solid Waste Management Plan with
regard to the collection and transfer, processing, source reduction, recycling,
composting and final disposal of solid wastes, the handling and disposal of
special wastes, education and public information, and the funding of solid
waste management projects.
The said law mandates the formulation of a National Solid Waste
Management Framework, which should include, among other things, the
method and procedure for the phaseout and the eventual closure within
eighteen months from effectivity of the Act in case of existing open dumps
and/or sanitary landfills located within an aquifer, groundwater reservoir or
watershed area.[54] Any landfills subsequently developed must comply with
the minimum requirements laid down in Section 40, specifically that the site
selected must be consistent with the overall land use plan of the local
government unit, and that the site must be located in an area where the
landfills operation will not detrimentally affect environmentally sensitive
resources such as aquifers, groundwater reservoirs or watershed areas.[55]
This writes finis to any remaining aspirations respondents may have of
reopening the San Mateo Site. Having declared Proclamation No. 635 illegal,
we see no compelling need to tackle the remaining issues raised in the petition
and the parties respective memoranda.
A final word. Laws pertaining to the protection of the environment
were not drafted in a vacuum. Congress passed these laws fully aware of the
perilous state of both our economic and natural wealth. It was precisely to
minimize the adverse impact humanitys actions on all aspects of the natural
world, at the same time maintaining and ensuring an environment under which
man and nature can thrive in productive and enjoyable harmony with each
other, that these legal safeguards were put in place. They should thus not be
so lightly cast aside in the face of what is easy and expedient.
WHEREFORE, the petition is GRANTED. The Decision of the Court
of Appeals in CA-G.R. SP No. 41330, dated 13 June 1997, is REVERSED
and SET ASIDE. The temporary restraining order issued by the Court on 24
January 2001 is hereby made permanent.
SO ORDERED.
Petitioners opposed the motion on the ground that there was no need to
exhaust administrative remedies. They argued that the issuance of the ECC
was in patent violation of Presidential Decree No. 1605,[8] Sections 26 and 27
of Republic Act No. 7160,[9] and the provisions of DENR Department
Administrative Order No. 96-37 (DAO 96-37) on the documentation of
ECC applications. Petitioners also claimed that the implementation of the
ECC was in patent violation of its terms.
In its order of 7 November 1997, the trial court granted the motion and
dismissed petitioners complaint.
Hence, this petition.
The Ruling of the Trial Court
The trial courts order dismissing the complaint reads in part:
After careful evaluation and analysis, this Court finds the Motion to Dismiss
tenable and meritorious.
Petitioners have clearly failed to exhaust all administrative remedies before
taking this legal action in Court x x x.
It is x x x worth mentioning that the decision of the Regional Director may
still be x x x elevated to the Office of the Secretary of the DENR to fully
comply with the process of exhaustion of administrative remedies. And well
settled is the rule in our jurisdiction that before bringing an action in or
resorting to the Courts of Justice, all remedies of administrative character
affecting or determinative of the controversy at that level should first be
exhausted by the aggrieved party (Pestanas vs. Dyogi, L-25786, February 27,
1978). And petitioners failure to exhaust administrative remedies renders his
[sic] petition dismissible (Chia vs. Acting Collector of Customs, 177 SCRA
755). And a dismissal on the ground of failure to exhaust administrative
remedies is tantamount to a dismissal based on lack of cause of action
(Baguiro vs. Basa, Jr., 214 SCRA 437; Pineda vs. CFI of Davao, 111 Phil.
643; Sarabia vs. Secretary of Agriculture & Natural Resources, L-16002, May
23, 1961; Gone, et al. vs. District Engineer, et. al., L-22782, August 29, 1975;
Abe-Abe, et al. vs. Manta, et. al., L-4827, May 31, 1979) although it does not
affect the jurisdiction of the court over the subject matter (Mun. of La
Trinidad, et al. vs. CFI of Baguio-Benguet, et al., L-33889, June 28, 1983).
Moreover, this Court finds the Opposition of the Petitioners highly untenable
and bereft of merits that the controverted act in question is patently illegal and
there was an immediate need for judicial intervention.
The ECC in question was issued by the Regional Office of the DENR which
has jurisdiction and authority over the same x x x. And corollary to this, the
issue as to whether or not the Minolo Cove is within the enclosed coves and
waters embraced by Puerto Galera bay and protected by Medio island is a
clear question of fact which the DENR may appropriately resolve before
resorting to [the] Court[s].
This Court is likewise aware and cognizant of its territorial jurisdiction in the
enforcement of Writ of Injunction. That truly, [a] writ of injunction can only
be enforced within [the] territorial jurisdiction of this Court but not for acts
which are being or about to be committed outside its territorial jurisdiction.
Thus, in Philippine National Bank vs. Pineda, 197 SCRA 1, the Honorable
Supreme Court ruled: Regional Trial Courts can only enforce their writs of
injunction within their respective designated territories. Furthermore, we find
the issuance of the preliminary injunction directed against the Provincial
Sheriff of Negros Occidental a jurisdictional paux [sic] pas (from Black
Dictionary means jurisdictional falsity) as the Courts of First Instance now
Regional Trial Court[s], can only enforce their writs of injunction within their
respective designated territories.
And finally, this Court is not unmindful of the relevant and square application
in the case at bar of Presidential Decree No. 1818, Executive Order No. 380
dated November 27, 1989, and Circular No. 2-91 of the Supreme Court that
the National Power Corporation (NPC) is a public utility, created under
special legislation, engaged in the generation and distribution of electric
power and energy. The mooring site of NPC in Puerto Galera, Oriental
Mindoro is one of its infrastructure projects falling within the mantle of
Executive Order No. 380, November 27, 1989 x x x.
And as held by the Supreme Court in the case of National Power Corporation
vs. Honorable Abraham P. Vera, et al., 170 SCRA 721, courts are without
Clearly, the Manila RTC has jurisdiction to determine the validity of the
issuance of the ECC, although it could not issue an injunctive writ against the
DENR or NAPOCOR. However, since the construction of the mooring facility
could not proceed without a valid ECC, the validity of the ECC remains the
determinative issue in resolving petitioners complaint.
Exhaustion of Administrative Remedies
The settled rule is before a party may seek the intervention of the courts, he
should first avail of all the means afforded by administrative processes.
Hence, if a remedy within the administrative machinery is still available, with
a procedure prescribed pursuant to law for an administrative officer to decide
the controversy, a party should first exhaust such remedy before resorting to
the courts. The premature invocation of a courts intervention renders the
complaint without cause of action and dismissible on such ground.[16]
RED Principe of the DENR Region IV Office issued the ECC based on (1)
Presidential Decree No. 1586 (PD No. 1586) and its implementing rules
establishing the Environmental Impact Statement System, (2) DAO 96-37[17]
and (3) the Procedural Manual of DAO 96-37. Section 4[18] of PD No. 1586
requires a proponent of an environmentally critical project, or a project
located within an environmentally critical area as declared by the President, to
secure an ECC prior to the projects operation.[19] NAPOCOR thus secured
the ECC because the mooring facility in Minolo Cove, while not an
environmentally critical project, is located within an environmentally critical
area under Presidential Proclamation No. 2146, issued on 14 December 1981.
[20]
Petitioners nevertheless contend that they are exempt from filing an appeal
with the DENR Secretary because the issuance of the ECC was in patent
violation of existing laws and regulations. These are (1) Section 1 of
Presidential Decree No. 1605, as amended, (2) Sections 26 and 27 of Republic
Act No. 7160 (Local Government Code of 1991), and (3) the provisions of
DAO 96-37 on the documentary requirements for the zoning permit and social
acceptability of the mooring facility.
Petitioners contention is without merit. While the patent illegality of an act
exempts a party from complying with the rule on exhaustion of administrative
remedies,[22] this does not apply in the present case.
Presidential Decree No. 1605
Presidential Decree No. 1605 (PD No. 1605),[23] as amended by
Presidential Decrees Nos. 1605-A and 1805, declares as ecologically
threatened zone the coves and waters embraced by Puerto Galera Bay as
protected by Medio Island. This decree provides in part:
Section 1. Any provision of law to the contrary notwithstanding, the
construction of marinas, hotels, restaurants, other commercial structures;
commercial or semi-commercial wharfs [sic]; commercial docking within the
enclosed coves of Puerto Galera; the destruction of its mangrove stands; the
devastation of its corals and coastline by large barges, motorboats, tugboat
propellers, and any form of destruction by other human activities are hereby
prohibited.
Section 2. x x x
No permit for the construction of any wharf, marina, hotel, restaurants and
other commercial structures in Puerto Galera shall be issued without prior
approval of the Office of the President upon the recommendation of the
Philippine Tourism Authority. (Emphasis supplied)
NAPOCOR claims that since Minolo Cove lies outside of Puerto Galera Bay
as protected by Medio Island,[24] PD No. 1605 does not apply to this case.
However, petitioners assert that Minolo Cove is one of the enclosed coves of
Puerto Galera[25] and thus protected under PD No. 1605. This is a question
of fact that the DENR Secretary should have first resolved. In any event,
there is no dispute that NAPOCOR will use the mooring facility for its power
barge that will supply 14.4 megawatts of electricity to the entire province of
Oriental Mindoro, including Puerto Galera. The mooring facility is obviously
a government-owned public infrastructure intended to serve a basic need of
the people of Oriental Mindoro. The mooring facility is not a commercial
structure; commercial or semi-commercial wharf or commercial docking as
contemplated in Section 1 of PD No. 1605. Therefore, the issuance of the
ECC does not violate PD No. 1605 which applies only to commercial
structures like wharves, marinas, hotels and restaurants.
Sections 26 and 27 of RA No. 7160
Congress introduced Sections 26 and 27 in the Local Government Code to
emphasize the legislative concern for the maintenance of a sound ecology
and clean environment.[26] These provisions require every national
government agency or government-owned and controlled corporation to hold
prior consultations with the local government unit concerned and to secure the
prior approval of its sanggunian before implementing any project or program
that may cause pollution, climatic change, depletion of non-renewable
resources, loss of cropland, rangeland, or forest cover and extinction of animal
or plant species. Sections 26 and 27 respectively provide:
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 authorized 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, non-governmental 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
Section x x x 26 hereof are complied with, and prior approval of the
sanggunian concerned is obtained: Provided, That occupants in areas where
The contention is similarly without merit. The fact that NAPOCORs ECC is
subject to cancellation for non-compliance with its conditions does not justify
petitioners conduct in ignoring the procedure prescribed in DAO 96-37 on
appeals from the decision of the DENR Executive Director. Petitioners
vigorously insist that NAPOCOR should comply with the requirements of
consultation and locational clearance prescribed in DAO 96-37. Ironically,
petitioners themselves refuse to abide with the procedure for filing complaints
and appealing decisions laid down in DAO 96-37.
DAO 96-37 provides for a separate administrative proceeding to address
complaints for the cancellation of an ECC. Under Article IX of DAO 96-37,
complaints to nullify an ECC must undergo an administrative investigation,
after which the hearing officer will submit his report to the EMB Director or
the Regional Executive Director, who will then render his decision. The
aggrieved party may file an appeal to the DENR Secretary, who has authority
to issue cease and desist orders. Article IX also classifies the types of
violations covered under DAO 96-37, including projects operating without an
ECC or violating the conditions of the ECC. This is the applicable procedure
to address petitioners complaint on NAPOCORs alleged violations and not
the filing of the instant case in court.
A Final Word
The Court commends petitioners for their courageous efforts to safeguard and
maintain the ecological balance of Minolo Cove. This Court recognizes the
utmost importance of protecting the environment.[33] Indeed, we have called
for the vigorous prosecution of violators of environmental laws.[34] Legal
actions to achieve this end, however, must be done in accordance with
established rules of procedure that were intended, in the first place, to achieve
orderly and efficient administration of justice.
WHEREFORE, we DENY the petition for lack of merit.
On May 23, 1997, petitioners filed this petition alleging that the following
errors were committed by the respondent trial court:
DECISION
QUISUMBING, J.:
For our resolution is a petition for review on certiorari seeking the reversal of
the decision[1] dated February 10, 1997 of the Regional Trial Court of San
Pedro, Laguna, Branch 93, enjoining petitioners from implementing or
enforcing Kapasiyahan Bilang 508, Taon 1995, of the Sangguniang
Panlalawigan of Laguna and its subsequent Order[2] dated April 21, 1997
denying petitioners motion for reconsideration.
On December 29, 1995, respondent Tony Calvento was appointed agent by the
Philippine Charity Sweepstakes Office (PCSO) to install Terminal OM 20 for
the operation of lotto. He asked Mayor Calixto Cataquiz, Mayor of San
Pedro, Laguna, for a mayors permit to open the lotto outlet. This was denied
by Mayor Cataquiz in a letter dated February 19, 1996. The ground for said
denial was an ordinance passed by the Sangguniang Panlalawigan of Laguna
entitled Kapasiyahan Blg. 508, T. 1995 which was issued on September 18,
1995. The ordinance reads:
ISANG KAPASIYAHAN TINUTUTULAN ANG MGA ILLEGAL
GAMBLING LALO NA ANG LOTTO SA LALAWIGAN NG LAGUNA
II
THE TRIAL COURT FAILED TO APPRECIATE THE ARGUMENT
POSITED BY THE PETITIONERS THAT BEFORE ANY GOVERNMENT
PROJECT OR PROGRAM MAY BE IMPLEMENTED BY THE NATIONAL
AGENCIES OR OFFICES, PRIOR CONSULTATION AND APPROVAL BY
THE LOCAL GOVERNMENT UNITS CONCERNED AND OTHER
CONCERNED SECTORS IS REQUIRED.
Petitioners contend that the assailed resolution is a valid policy declaration of
the Provincial Government of Laguna of its vehement objection to the
operation of lotto and all forms of gambling. It is likewise a valid exercise of
the provincial governments police power under the General Welfare Clause
of Republic Act 7160, otherwise known as the Local Government Code of
1991.[6] They also maintain that respondents lotto operation is illegal
because no prior consultations and approval by the local government were
sought before it was implemented contrary to the express provisions of
Sections 2 (c) and 27 of R.A. 7160.[7]
For his part, respondent Calvento argues that the questioned resolution is, in
effect, a curtailment of the power of the state since in this case the national
legislature itself had already declared lotto as legal and permitted its
operations around the country.[8] As for the allegation that no prior
consultations and approval were sought from the sangguniang panlalawigan of
Laguna, respondent Calvento contends this is not mandatory since such a
requirement is merely stated as a declaration of policy and not a self-executing
provision of the Local Government Code of 1991.[9] He also states that his
operation of the lotto system is legal because of the authority given to him by
the PCSO, which in turn had been granted a franchise to operate the lotto by
Congress.[10]
The Office of the Solicitor General (OSG), for the State, contends that the
Provincial Government of Laguna has no power to prohibit a form of
gambling which has been authorized by the national government.[11] He
argues that this is based on the principle that ordinances should not contravene
statutes as municipal governments are merely agents of the national
government. The local councils exercise only delegated legislative powers
which have been conferred on them by Congress. This being the case, these
councils, as delegates, cannot be superior to the principal or exercise powers
higher than those of the latter. The OSG also adds that the question of
whether gambling should be permitted is for Congress to determine, taking
into account national and local interests. Since Congress has allowed the
PCSO to operate lotteries which PCSO seeks to conduct in Laguna, pursuant
to its legislative grant of authority, the provinces Sangguniang Panlalawigan
cannot nullify the exercise of said authority by preventing something already
allowed by Congress.
The issues to be resolved now are the following: (1) whether Kapasiyahan
Blg. 508, T. 1995 of the Sangguniang Panlalawigan of Laguna and the denial
of a mayors permit based thereon are valid; and (2) whether prior
consultations and approval by the concerned Sanggunian are needed before a
lotto system can be operated in a given local government unit.
The entire controversy stemmed from the refusal of Mayor Cataquiz to issue a
mayors permit for the operation of a lotto outlet in favor of private
respondent. According to the mayor, he based his decision on an existing
ordinance prohibiting the operation of lotto in the province of Laguna. The
ordinance, however, merely states the objection of the council to the said
game. It is but a mere policy statement on the part of the local council, which
is not self-executing. Nor could it serve as a valid ground to prohibit the
operation of the lotto system in the province of Laguna. Even petitioners
admit as much when they stated in their petition that:
5.7. The terms of the Resolution and the validity thereof are express and
clear. The Resolution is a policy declaration of the Provincial Government of
Laguna of its vehement opposition and/or objection to the operation of and/or
all forms of gambling including the Lotto operation in the Province of
Laguna.[12]
and confined within the extent allowed by the central authority. Besides, the
principle of local autonomy under the 1987 Constitution simply means
decentralization. It does not make local governments sovereign within the
state or an imperium in imperio.[16]
To conclude our resolution of the first issue, respondent mayor of San Pedro,
cannot avail of Kapasiyahan Bilang 508, Taon 1995, of the Provincial Board
of Laguna as justification to prohibit lotto in his municipality. For said
resolution is nothing but an expression of the local legislative unit concerned.
The Boards enactment, like spring water, could not rise above its source of
power, the national legislature.
As for the second issue, we hold that petitioners erred in declaring that
Sections 2 (c) and 27 of Republic Act 7160, otherwise known as the Local
Government Code of 1991, apply mandatorily in the setting up of lotto outlets
around the country. These provisions state:
Section 2. Declaration of Policy. x x x
(c) It is likewise the policy of the State to require all national agencies and
offices to conduct periodic consultations with appropriate local government
units, non-governmental and peoples organizations, and other concerned
sectors of the community before any project or program is implemented in
their respective jurisdictions.
Section 27. Prior Consultations Required. No project or program shall be
implemented by government authorities unless the consultations mentioned in
Section 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.
From a careful reading of said provisions, we find that these apply only to
national programs and/or projects which are to be implemented in a particular
local community. Lotto is neither a program nor a project of the national
government, but of a charitable institution, the PCSO. Though sanctioned by
the national government, it is far fetched to say that lotto falls within the
contemplation of Sections 2 (c) and 27 of the Local Government Code.
Section 27 of the Code should be read in conjunction with Section 26 thereof.
[17] Section 26 reads:
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, range-land, 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.
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 nonrenewable 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.
Moreover, the argument regarding lack of consultation raised by petitioners is
clearly an afterthought on their part. There is no indication in the letter of
Mayor Cataquiz that this was one of the reasons for his refusal to issue a
permit. That refusal was predicated solely but erroneously on the provisions
of Kapasiyahan Blg. 508, Taon 1995, of the Sangguniang Panlalawigan of
Laguna.
In sum, we find no reversible error in the RTC decision enjoining Mayor
Cataquiz from enforcing or implementing the Kapasiyahan Blg. 508, T. 1995,
of the Sangguniang Panlalawigan of Laguna. That resolution expresses
merely a policy statement of the Laguna provincial board. It possesses no
binding legal force nor requires any act of implementation. It provides no
sufficient legal basis for respondent mayors refusal to issue the permit sought
by private respondent in connection with a legitimate business activity
authorized by a law passed by Congress.
WHEREFORE, the petition is DENIED for lack of merit. The Order of the
Regional Trial Court of San Pedro, Laguna enjoining the petitioners from
implementing or enforcing Resolution or Kapasiyahan Blg. 508, T. 1995, of
the Provincial Board of Laguna is hereby AFFIRMED. No costs.
SO ORDERED.
The trial court also declared, based on the certifications of the DENRCommunity 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.
YNARES-SANTIAGO, J.:
Petitioner filed a motion for reconsideration, however, the same was denied.
Hence, the instant petition for review.
xxx
xxx
Undoubtedly therefore, local government units are not excluded from the
coverage of PD 1586.
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.[16]
(a)
undertaking
(b)
any adverse environmental effect which cannot be avoided should
the proposal be implemented
(c)
(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 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.
Pursuant thereto, Proclamation No. 2146 was issued on December 14, 1981,
proclaiming the following areas and types of projects as environmentally
critical and within the scope of the Environmental Impact Statement System
established under PD 1586:
A.
I.
Heavy Industries
a.
b.
c.
d.
II.
a.
b.
1.
2.
3.
4.
5.
6.
c.
1.
III.
a.
Major dams
b.
Major power plants (fossil-fueled, nuclear fueled, hydroelectric or
geothermal)
c.
Major reclamation projects
d.
Major roads and bridges
B.
1.
All areas declared by law as national parks, watershed reserves, wildlife
preserves and sanctuaries;
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;
8.
Areas classified as prime agricultural lands;
9.
Recharged areas of aquifers;
10. Water bodies characterized by one or any combination of the following
conditions;
a.
tapped for domestic purposes
b.
within the controlled and/or protected areas declared by appropriate
authorities
c.
which support wildlife and fishery activities
11.
Mangrove areas characterized by one or any combination of the
following conditions:
a.
with primary pristine and dense young growth;
b.
adjoining mouth of major river systems;
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;
e.
on which people are dependent for their livelihood.
12. Coral reefs, characterized by one or any combinations of the following
conditions:
a.
b.
c.
xxx
3.
On February 19, 1993, the Sangguniang Panlalawigan, Provincial
Government of Palawan enacted Resolution No. 33 entitled: A
RESOLUTION PROHIBITING THE CATCHING, GATHERING,
POSSESSING, BUYING, SELLING AND SHIPMENT OF LIVE MARINE
CORAL DWELLING AQUATIC ORGANISMS, TO WIT: FAMILY:
SCARIDAE (MAMENG), EPINE PHELUS FASCIATUS (SUNO).
CROMILEPTES ALTIVELIS (PANTHER OR SENORITA), LOBSTER
BELOW 200 GRAMS AND SPAWNING, TRADACNA GIGAS
(TAKLOBO), PINCTADA MARGARITEFERA (MOTHER PEARL,
OYSTERS, GIANT CLAMS AND OTHER SPECIES), PENAEUS
MONODON (TIGER PRAWN-BREEDER SIZE OR MOTHER),
EPINEPHELUS SUILLUS (LOBA OR GREEN GROUPER) AND FAMILY:
BALISTIDAE (TROPICAL AQUARIUM FISHES) FOR A PERIOD FIVE
(5) YEARS IN AND COMING FROM PALAWAN WATERS, the full text of
which reads as follows:
WHEREAS, scientific and factual researches [sic] and studies disclose that
only five (5) percent of the corals of our province remain to be in excellent
condition as [a] habitat of marine coral dwelling aquatic organisms;
WHEREAS, it cannot be gainsaid that the destruction and devastation of the
corals of our province were principally due to illegal fishing activities like
dynamite fishing, sodium cyanide fishing, use of other obnoxious substances
and other related activities;
WHEREAS, there is an imperative and urgent need to protect and preserve the
existence of the remaining excellent corals and allow the devastated ones to
reinvigorate and regenerate themselves into vitality within the span of five (5)
years;
WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of the [sic] R.A. 7160 otherwise
known as the Local Government Code of 1991 empowers the Sangguniang
Panlalawigan to protect the environment and impose appropriate penalties
[upon] acts which endanger the environment such as dynamite fishing and
other forms of destructive fishing, among others.
NOW, THEREFORE, on motion by Kagawad Nelson P. Peneyra and upon
unanimous decision of all the members present;
Be it resolved as it is hereby resolved, to approve Resolution No. 33, Series of
1993 of the Sangguniang Panlalawigan and to enact Ordinance No. 2 for the
purpose, to wit:
3. Sec. 5-C (R.A. 7160). The general welfare provisions in this Code shall be
liberally interpreted to give more powers to local government units in
accelerating economic development and upgrading the quality of life for the
people in the community.
4. Sec. 16 (R.A. 7160). General Welfare. - Every local government unit shall
exercise the powers expressly granted, those necessarily implied therefrom, as
well as powers necessary, appropriate, or incidental for its efficient and
effective governance; and those which are essential to the promotion of the
general welfare.
Section III. DECLARATION OF POLICY. - It is hereby declared to be the
policy of the Province of Palawan to protect and conserve the marine
resources of Palawan not only for the greatest good of the majority of the
present generation but with [the] proper perspective and consideration of [sic]
their prosperity, and to attain this end, the Sangguniang Panlalawigan
henceforth declares that is [sic] shall be unlawful for any person or any
business entity to engage in catching, gathering, possessing, buying, selling
and shipment of live marine coral dwelling aquatic organisms as enumerated
in Section 1 hereof in and coming out of Palawan Waters for a period of five
(5) years;
Section IV. PENALTY CLAUSE. - Any person and/or business entity
violating this Ordinance shall be penalized with a fine of not more than Five
Thousand Pesos (P5,000.00), Philippine Currency, and/or imprisonment of six
(6) months to twelve (12) months and confiscation and forfeiture of
paraphernalias [sic] and equipment in favor of the government at the
discretion of the Court;
Section V. SEPARABILITY CLAUSE. - If for any reason, a Section or
provision of this Ordinance shall be held as unconditional [sic] or invalid, it
shall not affect the other provisions hereof.
Section VI. REPEALING CLAUSE. - Any existing Ordinance or a provision
of any ordinance inconsistent herewith is deemed modified, amended or
repealed.
Section VII. EFFECTIVITY. - This Ordinance shall take effect ten (10) days
after its publication.
SO ORDAINED.
xxx
ORDINANCE NO. 2
Series of 1993
BE IT ORDAINED BY THE SANGGUNIANG PANLALAWIGAN IN
SESSION ASSEMBLED:
Section 1. TITLE - This Ordinance shall be known as an Ordinance
Prohibiting the catching, gathering, possessing, buying, selling and shipment
of live marine coral dwelling aquatic organisms, to wit: 1. Family: Scaridae
(Mameng), 2. Epinephelus Fasciatus (Suno), 3. Cromileptes altivelis (Panther
or Senorita), lobster below 200 grams and spawning), 4. Tridacna Gigas
(Taklobo), 5. Pinctada Margaretefera (Mother Pearl, Oysters, Giant Clams and
other species), 6. Penaeus Monodon (Tiger Prawn-breeder size or mother), 7.
Epinephelus Suillus (Loba or Green Grouper) and 8. Family: Balistidae
(Topical Aquarium Fishes) for a period of five (5) years in and coming from
Palawan Waters.
4.
The respondents implemented the said ordinances, Annexes A and
C hereof thereby depriving all the fishermen of the whole province of
Palawan and the City of Puerto Princesa of their only means of livelihood and
the petitioners Airline Shippers Association of Palawan and other marine
merchants from performing their lawful occupation and trade;
5.
Petitioners Alfredo Tano, Baldomero Tano, Teocenes Midello, Angel de
Mesa, Eulogio Tremocha, and Felipe Ongonion, Jr. were even charged
criminally under criminal case no. 93-05-C in the 1st Municipal Circuit Trial
Court of Cuyo-Agutaya-Magsaysay, an original carbon copy of the criminal
complaint dated April 12, 1993 is hereto attached as Annex D; while xerox
copies are attached as Annex D to the copies of the petition;
6.
Petitioners Robert Lim and Virginia Lim, on the other hand, were
charged by the respondent PNP with the respondent City Prosecutor of Puerto
Princesa City, a xerox copy of the complaint is hereto attached as Annex E;
There are actually two sets of petitioners in this case. The first is composed of
Alfredo Tano, Baldomero Tano, Danilo Tano, Romualdo Tano, Teocenes
Midello, Angel de Mesa, Eulogio Tremocha, Felipe Ongonion, Jr., Andres
Linijan, and Felimon de Mesa, who were criminally charged with violating
Sangguniang Panlalawigan Resolution No. 33 and Ordinance No. 2, Series of
1993, of the Province of Palawan, in Criminal Case No. 93-05-C of the 1st
Municipal Circuit Trial Court (MCTC) of Palawan;[3] and Robert Lim and
Virginia Lim who were charged with violating City Ordinance No. 15-92 of
Puerto Princesa City and Ordinance No. 2, Series of 1993, of the Province of
Palawan before the Office of the City Prosecutor of Puerto Princesa.[4] All of
them, with the exception of Teocenes Midello, Felipe Ongonion, Jr., Felimon
de Mesa, Robert Lim and Virginia Lim, are likewise the accused in Criminal
Case No. 11223 for the violation of Ordinance No. 2 of the Sangguniang
Panlalawigan of Palawan, pending before Branch 50 of the Regional Trial
Court of Palawan.[5]
The second set of petitioners is composed of the rest of the petitioners
numbering seventy-seven (77), all of whom, except the Airline Shippers
Association of Palawan -- an alleged private association of several marine
merchants -- are natural persons who claim to be fishermen.
The primary interest of the first set of petitioners is, of course, to prevent the
prosecution, trial and determination of the criminal cases until the
constitutionality or legality of the Ordinances they allegedly violated shall
have been resolved. The second set of petitioners merely claim that they being
fishermen or marine merchants, they would be adversely affected by the
ordinances.
As to the first set of petitioners, this special civil for certiorari must fail on the
ground of prematurity amounting to a lack of cause of action. There is no
showing that the said petitioners, as the accused in the criminal cases, have
filed motions to quash the informations therein and that the same were denied.
The ground available for such motions is that the facts charged therein do not
constitute an offense because the ordinances in question are unconstitutional.
[6] It cannot then be said that the lower courts acted without or in excess of
jurisdiction or with grave abuse of discretion to justify recourse to the
extraordinary remedy of certiorari or prohibition. It must further be stressed
that even if the petitioners did file motions to quash, the denial thereof would
not forthwith give rise to a cause of action under Rule 65 of the Rules of
Court. The general rule is that where a motion to quash is denied, the remedy
therefrom is not certiorari, but for the party aggrieved thereby to go to trial
without prejudice to reiterating special defenses involved in said motion, and
if, after trial on the merits of adverse decision is rendered, to appeal therefrom
in the manner authorized by law.[7] And , even where in an exceptional
circumstance such denial may be the subject of a special civil action for
certiorari, a motion for reconsideration must have to be filed to allow the court
concerned an opportunity to correct its errors, unless such motion may be
dispensed with because of existing exceptional circumstances.[8] Finally, even
if a motion for reconsideration has been filed and denied, the remedy under
Rule 65 is still unavailable absent any showing of the grounds provided for in
Section 1 thereof.[9] For obvious reasons, the petition at bar does not, and
could not have , alleged any of such grounds.
As to the second set of petitioners, the instant petition is obviously one for
DECLARATORY RELIEF, i.e., for a declaration that the Ordinances in
question are a nullity ... for being unconstitutional.[10] As such, their
petition must likewise fail, as this Court is not possessed of original
jurisdiction over petitions for declaratory relief even if only questions of law
are involved,[11] it being settled that the Court merely exercises appellate
jurisdiction over such petitions.[12]
II
Even granting arguendo that the first set of petitioners have a cause of action
ripe for the extraordinary writ of certiorari, there is here a clear disregard of
the hierarchy of courts, and no special and important reason or exceptional or
compelling circumstance has been adduced why direct recourse to us should
be allowed. While we have concurrent jurisdiction with Regional Trial courts
and with the Court of Appeals to issue writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus and injunction, such concurrence
gives petitioners no unrestricted freedom of choice of court forum, so we held
in People v. Cuaresma:[13]
This concurrence of jurisdiction is not to be taken as according to parties
seeking any of the writs an absolute unrestrained freedom of choice of the
court to which application therefor will be directed. There is after all hierarchy
of courts. That hierarchy is determinative of the venue of appeals, and should
also serve as a general determinant of the appropriate forum for petitions for
the extraordinary writs. A becoming regard for that judicial hierarchy most
certainly indicates that petitions for the issuance of extraordinary writs against
first level (inferior) courts should be filed with the Regional Trial Court, and
those against the latter, with the Court of Appeals. A direct invocation of the
Supreme Courts original jurisdiction to issue these writs should be allowed
only when there are special and important reasons therefor, clearly and
specifically set out in the petition. This is established policy. It is a policy
necessary to prevent inordinate demands upon the Courts time and attention
which are better devoted to those matters within its exclusive jurisdiction, and
to prevent further over-crowding of the Courts docket.
SEC. 7. The State shall protect the rights of subsistence fishermen, especially
of local communities, to the preferential use of the communal marine and
fishing resources, both inland and offshore. It shall provide support to such
fishermen through appropriate technology and research, adequate financial,
production, and marketing assistance, and other services. The State shall also
protect, develop, and conserve such resources. The protection shall extend to
offshore fishing grounds of subsistence fishermen against foreign intrusion.
Fishworkers shall receive a just share from their labor in the utilization of
marine and fishing resources.
The Court feels the need to reaffirm that policy at this time, and to enjoin
strict adherence thereto in the light of what it perceives to be a growing
tendency on the part of litigants and lawyers to have their applications for the
so-called extraordinary writs, and sometimes even their appeals, passed upon
and adjudicated directly and immediately by the highest tribunal of the
land.
Since the Constitution does not specifically provide a definition of the terms
subsistence or marginal fishermen,[18] they should be construed in their
general and ordinary sense. A marginal fisherman is an individual engaged in
fishing whose margin of return or reward in his harvest of fish as measured by
existing price levels is barely sufficient to yield a profit or cover the cost of
gathering the fish,[19] while a subsistence fisherman is one whose catch
yields but the irreducible minimum for his livelihood.[20] Section 131(p) of
the LGC (R.A. No. 7160) defines a marginal farmer or fisherman as an
individual engaged in subsistence farming or fishing which shall be limited to
the sale, barter or exchange of agricultural or marine products produced by
himself and his immediate family. It bears repeating that nothing in the
record supports a finding that any petitioner falls within these definitions.
III
Notwithstanding the foregoing procedural obstacles against the first set of
petitioners, we opt to resolve this case on its merits considering that the
lifetime of the challenged Ordinances is about to end. Ordinance No. 15-92 of
the City of Puerto Princesa is effective only up to 1 January 1998, while
Ordinance No. 2 of the Province of Palawan, enacted on 19 February 1993, is
effective for only five (5) years. Besides, these Ordinances were undoubtedly
enacted in the exercise of powers under the new LGC relative to the
protection and preservation of the environment and are thus novel and of
paramount importance. No further delay then may be allowed in the resolution
of the issues raised.
Besides, Section 2 of Article XII aims primarily not to bestow any right to
subsistence fishermen, but to lay stress on the duty of the State to protect the
nations marine wealth. What the provision merely recognizes is that the State
may allow, by law, cooperative fish farming, with priority to subsistence
fishermen and fishworkers in rivers, lakes, bays, and lagoons. Our survey of
the statute books reveals that the only provision of law which speaks of the
preferential right of marginal fishermen is Section 149 of the LGC of 1991
which pertinently provides:
SEC. 149. Fishery Rentals, Fees and Charges. -- x x x
(b) The sangguniang bayan may:
(1)
Grant fishery privileges to erect fish corrals, oyster, mussels or other
aquatic beds or bangus fry areas, within a definite zone of the municipal
waters, as determined by it: Provided, however, That duly registered
organizations and cooperatives of marginal fishermen shall have preferential
right to such fishery privileges ....
In a Joint Administrative Order No. 3, dated 25 April 1996, the Secretary of
the Department of Agriculture and the Secretary of the Department of Interior
and Local Government prescribed the guidelines on the preferential treatment
of small fisherfolk relative to the fishery right mentioned in Section 149. This
case, however, does not involve such fishery right.
Anent Section 7 of Article XIII, it speaks not only of the use of communal
marine and fishing resources, but of their protection, development, and
conservation. As hereafter shown, the ordinances in question are meant
precisely to protect and conserve our marine resources to the end that their
enjoyment by the people may be guaranteed not only for the present
generation, but also for the generations to come.
x x x
The State shall protect the nation's marine wealth in its archipelagic waters,
territorial sea, and exclusive economic zone, and reserve its use and
enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources
by Filipino citizens, as well as cooperative fish farming, with priority to
subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.
Sections 2 and 7 of Article XIII provide:
Sec. 2. The promotion of social justice shall include the commitment to create
economic opportunities based on freedom of initiative and self-reliance.
xxx
Let us discuss the implementation of this because I would not raise the hopes
of our people, and afterwards fail in the implementation. How will this be
implemented? Will there be a licensing or giving of permits so that
government officials will know that one is really a marginal fisherman? Or if
policeman say that a person is not a marginal fisherman, he can show his
permit, to prove that indeed he is one.
MR. BENGZON:
Certainly, there will be some mode of licensing insofar as this is concerned
and this particular question could be tackled when we discuss the Article on
Local Governments -- whether we will leave to the local governments or to
Congress on how these things will be implemented. But certainly, I think our
Congressmen and our local officials will not be bereft of ideas on how to
implement this mandate.
x x x
MR. RODRIGO:
So, once one is licensed as a marginal fisherman, he can go anywhere in the
Philippines and fish in any fishing grounds.
MR. BENGZON:
Subject to whatever rules and regulations and local laws that may be passed,
may be existing or will be passed.[21] (underscoring supplied for emphasis).
What must likewise be borne in mind is the state policy enshrined in the
Constitution regarding the duty of the State to protect and advance the right of
the people to a balanced and healthful ecology in accord with the rhythm and
harmony of nature.[22] On this score, in Oposa v. Factoran,[23] this Court
declared:
While the right to balanced and healthful ecology is to be found under the
Declaration of Principles the State Policies and not under the Bill of Rights, it
does not follow that it is less important than any of the civil and political
rights enumerated in the latter. Such a right belongs to a different category of
rights altogether for it concerns nothing less than self-preservation and selfperpetuation - 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 wellfounded fear of its framers that unless the rights to a balanced and healthful
ecology and to health are mandated as state policies by the Constitution itself,
thereby highlighting their continuing importance and imposing upon the state
a solemn obligation to preserve the first and protect and advance the second ,
the day would not be too far when all else would be lost not only for the
present generation, but also for those to come - generations which stand to
inherit nothing but parched earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it a correlative duty
to refrain from impairing the environment ...
The LGC provisions invoked by private respondents merely seek to give flesh
and blood to the right of the people to a balanced and healthful ecology. In
fact, the General Welfare Clause, expressly mentions this right:
SEC. 16. General Welfare.-- Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as
powers necessary, appropriate, or incidental for its efficient and effective
governance, and those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local government units
shall ensure and support, among other things, the preservation and enrichment
of culture, promote health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of appropriate and
self-reliant scientific and technological capabilities, improve public morals,
enhance economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve the comfort and
convenience of their inhabitants. (underscoring supplied).
Moreover, Section 5(c) of the LGC explicitly mandates that the general
welfare provisions of the LGC shall be liberally interpreted to give more
powers to the local government units in accelerating economic development
and upgrading the quality of life for the people of the community.
The LGC vests municipalities with the power to grant fishery privileges in
municipal waters and to impose rentals, fees or charges therefor; to penalize,
by appropriate ordinances, the use of explosives, noxious or poisonous
substances, electricity, muro-ami, and other deleterious methods of fishing;
and to prosecute any violation of the provisions of applicable fishery laws.[24]
Further, the sangguniang bayan, the sangguniang panlungsod and the
sangguniang panlalawigan are directed to enact ordinances for the general
welfare of the municipality and its inhabitants, which shall include, inter alia,
ordinances that [p]rotect the environment and impose appropriate penalties
for acts which endanger the environment such as dynamite fishing and other
forms of destructive fishing ... and such other activities which result in
pollution, acceleration of eutrophication of rivers and lakes or of ecological
imbalance.[25]
Finally, the centerpiece of LGC is the system of decentralization[26] as
expressly mandated by the Constitution.[27] Indispensable thereto is
devolution and the LGC expressly provides that [a]ny provision on a power
of a local government unit shall be liberally interpreted in its favor, and in
case of doubt, any question thereon shall be resolved in favor of devolution of
powers and of the lower local government unit. Any fair and reasonable doubt
as to the existence of the power shall be interpreted in favor of the local
government unit concerned,[28] Devolution refers to the act by which the
National Government confers power and authority upon the various local
government units to perform specific functions and responsibilities.[29]
One of the devolved powers enumerated in the section of the LGC on
devolution is the enforcement of fishery laws in municipal waters including
the conservation of mangroves.[30] This necessarily includes enactment of
ordinances to effectively carry out such fishery laws within the municipal
waters.
The term municipal waters, in turn, include not only streams, lakes, and
tidal waters within the municipality, not being the subject of private ownership
and not comprised within the national parks, public forest, timber lands, forest
reserves, or fishery reserves, but also marine waters included between two
lines drawn perpendicularly to the general coastline from points where the
boundary lines of the municipality or city touch the sea at low tide and a third
line parallel with the general coastline and fifteen kilometers from it.[31]
Under P.D. No. 704, the marine waters included in municipal waters is limited
to three nautical miles from the general coastline using the above
perpendicular lines and a third parallel line.
These fishery laws which local government units may enforce under Section
17(b), (2), (i) in municipal waters include: (1) P.D. No. 704; (2) P.D. No. 1015
which, inter alia, authorizes the establishment of a closed season in any
Philippine water if necessary for conservation or ecological purposes; (3) P.D.
No. 1219 which provides for the exploration, exploitation, utilization, and
conservation of coral resources; (4) R.A. No. 5474, as amended by B.P. Blg.
58, which makes it unlawful for any person, association, or corporation to
catch or cause to be caught, sell, offer to sell, purchase, or have in possession
any of the fish specie called gobiidae or ipon during closed season; and (5)
R.A. No. 6451 which prohibits and punishes electrofishing, as well as various
issuances of the BFAR.
To those specifically devolved insofar as the control and regulation of fishing
in municipal waters and the protection of its marine environment are
concerned, must be added the following:
1. Issuance of permits to construct fish cages within municipal waters;
2. Issuance of permits to gather aquarium fishes within municipal waters;
3. Issuance of permits to gather kapis shells within municipal waters;
4. Issuance of permits to gather/culture shelled mollusks within municipal
waters;
5. Issuance of licenses to establish seaweed farms within municipal waters;
6. Issuance of licenses to establish culture pearls within municipal waters;
7. Issuance of auxiliary invoice to transport fish and fishery products; and
8. Establishment of closed season in municipal waters.
These functions are covered in the Memorandum of Agreement of 5 April
1994 between the Department of Agriculture and the Department of Interior
and Local Government.
In light then of the principles of decentralization and devolution enshrined in
the LGC and the powers granted to local government units under Section 16
(the General Welfare Clause), and under Sections 149, 447 (a) (1) (vi), 458 (a)
(1) (vi) and 468 (a) (1) (vi), which unquestionably involve the exercise of
police power, the validity of the questioned Ordinances cannot be doubted.
Parenthetically, we wish to add that these Ordinances find full support under
R.A. No. 7611, otherwise known as the Strategic Environmental Plan (SEP)
for Palawan Act, approved on 19 July 1992. This statute adopts a
comprehensive framework for the sustainable development of Palawan
compatible with protecting and enhancing the natural resources and
endangered environment of the province, which shall serve to guide the
local government of Palawan and the government agencies concerned in the
formulation and implementation of plans, programs and projects affecting said
province.[32]
At this time then, it would be appropriate to determine the relation between
the assailed Ordinances and the aforesaid powers of the Sangguniang
Panlungsod of the City of Puerto Princesa and the Sangguniang Panlalawigan
of the Province of Palawan to protect the environment. To begin, we ascertain
the purpose of the Ordinances as set forth in the statement of purposes or
declaration of policies quoted earlier.
It is clear to the Court that both Ordinances have two principal objectives or
purposes: (1) to establish a closed season for the species of fish or aquatic
animals covered therein for a period of five years, and (2) to protect the corals
of the marine waters of the City of Puerto Princesa and the Province of
Palawan from further destruction due to illegal fishing activities.
The accomplishment of the first objective is well within the devolved power
to enforce fishery laws in municipal waters, such as P.D. No. 1015, which
allows the establishment of closed seasons. The devolution of such power
has been expressly confirmed in the Memorandum of Agreement of 5 April
1994 between the Department of Agriculture and the Department of Interior
and Local Government.
The realization of the second objective falls within both the general welfare
clause of the LGC and the express mandate thereunder to cities and provinces
to protect the environment and impose appropriate penalties for acts which
endanger the environment.[33]
The destruction of the coral reefs results in serious, if not irreparable,
ecological imbalance, for coral reefs are among the natures life-support
systems.[34] They collect, retain, and recycle nutrients for adjacent nearshore
areas such as mangroves, seagrass beds, and reef flats; provide food for
marine plants and animals; and serve as a protective shelter for aquatic
organisms.[35] It is said that [e]cologically, the reefs are to the oceans what
forests are to continents: they are shelter and breeding grounds for fish and
plant species that will disappear without them.[36]
The prohibition against catching live fish stems, in part, from the modern
phenomenon of live-fish trade which entails the catching of so-called exotic
tropical species of fish not only for aquarium use in the West, but also for the
market for live banquet fish [which] is virtually insatiable in ever more
affluent Asia.[37] These exotic species are coral-dwellers, and fishermen catch
them by diving in shallow water with corraline habitats and squirting sodium
cyanide poison at passing fish directly or onto coral crevices; once affected
the fish are immobilized [merely stunned] and then scooped by hand.[38]
The diver then surfaces and dumps his catch into a submerged net attached to
the skiff . Twenty minutes later, the fish can swim normally. Back on shore,
they are placed in holding pens, and within a few weeks, they expel the
cyanide from their system and are ready to be hauled. Then they are placed in
saltwater tanks or packaged in plastic bags filled with seawater for shipment
by air freight to major markets for live food fish.[39] While the fish are meant
to survive, the opposite holds true for their former home as [a]fter the
fisherman squirts the cyanide, the first thing to perish is the reef algae, on
which fish feed. Days later, the living coral starts to expire. Soon the reef
loses its function as habitat for the fish, which eat both the algae and
invertebrates that cling to the coral. The reef becomes an underwater
graveyard, its skeletal remains brittle, bleached of all color and vulnerable to
erosion from the pounding of the waves.[40] It has been found that cyanide
fishing kills most hard and soft corals within three months of repeated
application.[41]
The nexus then between the activities barred by Ordinance No. 15-92 of the
City of Puerto Princesa and the prohibited acts provided in Ordinance No. 2,
Series of 1993 of the Province of Palawan, on one hand, and the use of
sodium cyanide, on the other, is painfully obvious. In sum, the public purpose
and reasonableness of the Ordinances may not then be controverted.
As to Office Order No. 23, Series of 1993, issued by Acting City Mayor
Amado L. Lucero of the City of Puerto Princesa, we find nothing therein
violative of any constitutional or statutory provision. The Order refers to the
implementation of the challenged ordinance and is not the Mayors Permit.
The dissenting opinion of Mr. Justice Josue N. Bellosillo relies upon the lack
of authority on the part of the Sangguniang Panlungsod of Puerto Princesa to
enact Ordinance No. 15, Series of 1992, on the theory that the subject thereof
is within the jurisdiction and responsibility of the Bureau of Fisheries and
Aquatic Resources (BFAR) under P.D. No. 704, otherwise known as the
Fisheries Decree of 1975; and that, in any event, the Ordinance is
unenforceable for lack of approval by the Secretary of the Department of
Natural Resources (DNR), likewise in accordance with P.D. No. 704.
The majority is unable to accommodate this view. The jurisdiction and
responsibility of the BFAR under P. D. no. 704, over the management,
conservation, development, protection, utilization and disposition of all
fishery and aquatic resources of the country is not all-encompassing. First,
Section 4 thereof excludes from such jurisdiction and responsibility municipal
waters, which shall be under the municipal or city government concerned,
except insofar as fishpens and seaweed culture in municipal in municipal
centers are concerned. This section provides, however, that all municipal or
city ordinances and resolutions affecting fishing and fisheries and any
disposition thereunder shall be submitted to the Secretary of the Department
of Natural Resources for appropriate action and shall have full force and effect
only upon his approval.[42]
Second, it must at once be pointed out that the BFAR is no longer under the
Department of Natural Resources (now Department of Environment and
Natural Resources). Executive Order No. 967 of 30 June 1984 transferred the
BFAR from the control and supervision of the Minister (formerly Secretary)
of Natural Resources to the Ministry of Agriculture and Food (MAF) and
converted it into a mere staff agency thereof, integrating its functions with the
regional offices of the MAF.
In Executive Order No. 116 of 30 January 1987, which reorganized the MAF,
the BFAR was retained as an attached agency of the MAF. And under the
Administrative Code of 1987,[43] the BFAR is placed under the Title
concerning the Department of Agriculture.[44]
Therefore, it is incorrect to say that the challenged Ordinance of the City of
Puerto Princesa is invalid or unenforceable because it was not approved by the
Secretary of the DENR. If at all, the approval that should be sought would be
that of the Secretary of the Department of Agriculture (not DENR) of
municipal ordinances affecting fishing and fisheries in municipal waters has
been dispensed with in view of the following reasons:
(1)
Section 534 (Repealing Clause) of the LGC expressly repeals or
amends Section 16 and 29 of P.D. No. 704[45] insofar that they are
inconsistent with the provisions of the LGC.
(2)
As discussed earlier, under the general welfare clause of the LGC,
local government units have the power, inter alia, to enact ordinances to
enhance the right of the people to a balanced ecology. It likewise specifically
vests municipalities with the power to grant fishery privileges in municipal
waters, and impose rentals, fees or charges therefor; to penalize, by
appropriate ordinances, the use of explosives, noxious or poisonous
substances, electricity, muro-ami, and other deleterious methods of fishing;
and to prosecute other methods of fishing; and to prosecute any violation of
the provisions of applicable fishing laws.[46] Finally, it imposes upon the
sangguniang bayan, the sangguniang panlungsod, and the sangguniang
panlalawigan the duty to enact ordinances to [p]rotect the environment and
impose appropriate penalties for acts which endanger the environment such as
dynamite fishing and other forms of destructive fishing and such other
activities which result in pollution, acceleration of eutrophication of rivers and
lakes or of ecological imbalance.[47]
In closing, we commend the Sangguniang Panlungsod of the City of Puerto
Princesa and Sangguniang Panlalawigan of the Province of Palawan for
exercising the requisite political will to enact urgently needed legislation to
protect and enhance the marine environment, thereby sharing in the herculean
task of arresting the tide of ecological destruction. We hope that other local
government units shall now be roused from their lethargy and adopt a more
vigilant stand in the battle against the decimation of our legacy to future
generations. At this time, the repercussions of any further delay in their
response may prove disastrous, if not, irreversible.
WHEREFORE, the instant petition is DISMISSED for lack of merit and the
temporary restraining order issued on 11 November 1993 is LIFTED.
No pronouncement as to costs.
compliance with the terms and conditions in the ECC. Again, on August 23,
1995, she conducted another monitoring on the project for the same purpose.
In both instances, she noted that the project was still in the construction stage
hence, compliance with the stipulated conditions could not be fully assessed,
and therefore, a follow-up monitoring inspection was the last one conducted
by the DENR.
The Case
The case is a petition for review on certiorari seeking to reverse the decision
of the Court of Appeals[1] affirming the Ombudsmans dismissal of petitioner
from the government service for gross neglect of duty in connection with the
collapse of the housing project at the Cherry Hills Subdivision, Antipolo City,
on August 3, 1999.
The Facts
xxx
x x x the following respondents are hereby found GUILTY as charged and
meted the respective penalties provided under Section 22, Rule XIV of the
Omnibus Rules, Implementing Book V of Executive Order No. 292, otherwise
known as the Administrative Code of 1987, viz,:
1.
xxx
5.
Antonio G. Principe - Penalty of Dismissal from the Service for Gross
Neglect of Duty.
xxx
SO ORDERED.[3]
On January 4, 2000, petitioner filed with the Court of Appeals a petition for
review assailing the decision of the Ombudsman.[4]
On August 25, 2000, the Court of Appeals promulgated a decision denying the
petition and affirming the decision of the Ombudsman.[5]
The issue raised is whether the Ombudsman may dismiss petitioner from the
service on an administrative charge for gross neglect of duty, initiated,
investigated and decided by the Ombudsman himself without substantial
evidence to support his finding of gross neglect of duty because the duty to
monitor and inspect the project was not vested in petitioner.
Thereafter, or on January 12, 1994, Philjas applied for a Small Scale Mining
Permit (SSMP) under P. D. 1899 with the Rizal Provincial Government to
extract and remove 50,000 metric tons of filling materials per annum on CHS
2.8 hectares.
Thus, on January 17, 1994, respondent MAGNO, informed ELIEZER I.
RODRIGUEZ of Philjas that CHS is within the EIS System and as such must
secure ECC from the DENR. Philjas was accordingly informed of the matter
such that it applied for the issuance of ECC from the DENR-Region IV, on
February 3, 1994.
On March 12, 1994, an Inspection Report allegedly prepared by respondent
BALICAS, attested by respondent RUTAQUIO and approved by respondent
TOLENTINO re: field evaluation to the issuance of ECC, was submitted.
Consequently, on April 28, 1994, upon recommendation of respondent
TOLENTINO, Philjas application for ECC was approved by respondent
PRINCIPE, then Regional Executive Director, DENR under ECC-137-RI212-94.
A Mining Field Report for SSMP dated May 10, 1994 was submitted
pursuant to the inspection report prepared by respondents CAYETANO,
FELICIANO, HILADO and BURGOS, based on their inspection conducted
on April 25 to 29, 1994. The report recommended, among others, that the
proposed extraction of materials would pose no adverse effect to the
environment.
Records further disclosed that on August 10, 1994, respondent BALICAS
monitored the implementation of the CHS Project Development to check
The Issue
(4) Direct the officer concerned, in any appropriate case, and subject to such
limitations as it may provide in its rules of procedure, to furnish it with copies
of documents relating to contracts or transactions entered into by his office
involving the disbursement or use of public funds or properties, and report any
irregularity to the Commission on Audit for appropriate action;
2. Land Management
(5) Request any government agency for assistance and information necessary
in the discharge of its responsibilities, and to examine, if necessary, pertinent
records and documents;
4.1 Issues clearance certificate to vehicles which have passed the smokebelching test.
(8) Administer oaths, issue subpoena and subpoena duces tecum, and take
testimony in any investigation or inquiry, including the power to examine and
have access to bank accounts and records;
(9) Punish for contempt in accordance with the Rules of Court and under the
same procedure and with the same penalties provided therein;
1. Forest Management
2. Land Management
3. Mines and Geo-Sciences Development
4. Environmental Management
4.1 Issues authority to construct and permit to operate pollution control
equipment/devices including the collection of corresponding fees/charges.
4.2 Issues accreditation of pollution control office of industrial firms and
local government entities.
4.3 Hears/gathers evidences or facts on pollution cases as delegated by the
Pollution Adjudication Board.
4.4. Approves plans and issues permit for mine tailings disposal, including
environmental rehabilitation plans.[9]
Clearly, there is no mention of the responsibility of a regional executive
director to monitor projects. More apropos is the description of the functions
of a regional technical director, to wit:
x x x
b. Monitoring of compliance with the proponents ECC issued pursuant to an
IEE,[16] and applicable laws, rules and regulations, shall be undertaken by the
concerned PENRO and CENRO with support from the Regional Office and/or
EMB whenever necessary.
Hence, how could petitioner be guilty of neglecting a duty, which is not even
his to begin with? Administrative liability could not be based on the fact that
petitioner was the person who signed and approved the ECC, without proof of
actual act or omission constituting neglect of duty.
In the absence of substantial evidence of gross neglect of petitioner,
administrative liability could not be based on the principle of command
responsibility.[17] The negligence of petitioners subordinates is not
tantamount to his own negligence.
It was not within the mandated responsibilities of petitioner to conduct actual
monitoring of projects. The principles governing public officers under the
Revised Administrative Code of 1987 clearly provide that a head of a
department or a superior officer shall not be civilly liable for the wrongful
acts, omissions of duty, negligence, or misfeasance of his subordinates, unless
he has actually authorized by written order the specific act or misconduct
complained of.[18]
The investigation conducted by the Ombudsman refers to the tragic incident in
Cherry Hills Subdivision, Antipolo Rizal, where several families lost lives and
homes. Despite the fact that what was involved was a housing and land
development project, petitioner, as the Regional Executive Director for
Region IV, Department of Environment and Natural Resources, was found
negligent because he was the one who signed and approved the ECC.
As heretofore stated, the responsibility of monitoring housing and land
development projects is not lodged with the office of petitioner. The
Administrative Code of 1987 spelled out the mandate of the Department of
Environment and Natural Resources, the agency that has authority over
petitioner, which reads:
Section 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 countrys 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