G.R. No.
194239 June 16, 2015 October 28, 2010, the University of the Philippines-National Institute of Geological Sciences (UP-
WEST TOWER CONDOMINIUM CORPORATION, on behalf of the Residents of West Tower
Condominium and in representation of Barangay Bangkal, and others, including minors
and generations yet unborn,Petitioners,
vs.
FIRST PHILIPPINE INDUSTRIAL CORPORATION, FIRST GEN CORPORATION and their
RESPECTIVE BOARD OF DIRECTORS AND OFFICERS, JOHN DOES, and RICHARD
DOES, Respondents.
DECISION
VELASCO, JR., J.:
Nature of the Case
Before the Court is the Petition for the Issuance of a Writ of Kalikasan filed following the leak in
the oil pipeline owned by First Philippine Industrial Corporation (FPIC) in Makati City. The Facts
Respondent FPI C operates two pipelines since 1969, viz: ( 1) the White Oil Pipeline (WOPL)
System, which covers a 117-kilometer stretch from Batangas to the Pandacan Terminal in
Manila and transports diesel, gasoline, jet fuel and kerosene; and (b) the Black Oil Pipeline
(BOPL) System which extends 105 kilometers and transports bunker fuel from Batangas to a
depot in Sucat, Parañaque. These systems transport nearly 60% of the petroleum requirements
of Metro Manila and parts of the provinces of Bulacan, Laguna, and Rizal.
The two pipelines were supposedly designed to provide more than double the standard safety
allowance against leakage, considering that they are made out of heavy duty steel that can
withstand more than twice the current operating pressure and are buried at a minimum depth of
1.5 meters, which is deeper than the US Department of Transportation standard of 0.9 meters. In
May 2010, however, a leakage from one of the pipelines was suspected after the residents of
West Tower Condominium (West Tower) started to smell gas within the condominium. A search
made on July 10, 2010 within the condominium premises led to the discovery of a fuel leak from
the wall of its Basement 2. Owing to its inability to control the flow, West Tower's management
reported the matter to the Police Department of Makati City, which in turn called the city's Bureau
of Fire Protection.
What started as a two-drum leak at the initial stages became a 15-20 drum a day affair.
Eventually, the sump pit of the condominium was ordered shut down by the City of Makati to
prevent the discharge of contaminated water into the drainage system of Barangay Bangkal.
Eventually, the fumes compelled the residents of West Tower to abandon their respective units
on July 23, 2010 and the condo's power was shut down.
Petitioner FPIC initially disowned any leak from its oil pipeline. Thus, the residents of West
Tower shouldered the expenses of hauling the waste water from its basement, which eventually
required the setting up of a treatment plant in the area to separate fuel from the waste water. On
NIGS), which the City of Makati invited to determine the source of the fuel, found a leak in FPIC's
WOPL about 86 meters from West Tower.
A day after, or on October 29, 2010, FPIC admitted that indeed the source of the fuel leak is the
WOPL, which was already closed since October 24, 2010, but denied liability by placing blame
on the construction activities on the roads surrounding West Tower.
On November 15, 2010, West Tower Condominium Corporation (West Tower Corp.) interposed
the present Petition for the Issuance of a Writ of Kalikasan on behalf of the residents of West
Tower and in representation of the surrounding communities in Barangay Bangkal, Makati City.
West Tower Corp. also alleged that it is joined by the civil society and several people's
organizations, non-governmental organizations and public interest groups who have expressed
their intent to join the suit because of the magnitude of the environmental issues involved. 1
In their petition, petitioners prayed that respondents FPIC and its board of directors and officers,
and First Gen Corporation (FGC) and its board of directors and officers be directed to: (1)
permanently cease and desist from committing acts of negligence in the performance of their
functions as a common carrier; (2) continue to check the structural integrity of the whole 117-
kilometer pipeline and to replace the same; (3) make periodic reports on their findings with
regard to the 117-kilometer pipeline and their replacement of the same; (4) rehabilitate and
restore the environment, especially Barangay Bangkal and West Tower, at least to what it was
before the signs of the leak became manifest; and (5) to open a special trust fund to answer for
similar and future contingencies in the future. Furthermore, petitioners pray that respondents be
prohibited from opening the pipeline and allowing the use thereof until the same has been
thoroughly checked and replaced, and be temporarily restrained from operating the pipeline until
the final resolution of the case.
To bolster their petition, petitioners argued that FPIC's omission or failure to timely replace. its
pipelines and to observe extraordinary diligence caused the petroleum spill in the City of Makati.
Thus, for petitioners, the continued use of the now 4 7-year old pipeline would not only be a
hazard or a threat to the lives, health, and property of those who live or sojourn in all the
municipalities in which the pipeline is laid, but would also affect the rights of the generations yet
unborn to live in a balanced and "healthful ecology," guaranteed under Section 16, Article II of
the 1987 Constitution.
On November 19, 2010, the Court issued the Writ of Kalikasan2 with a Temporary Environmental
Protection Order (TEPO) requiring respondents FPIC, FGC, and the members of their Boards of
Directors to file their respective verified returns. The TEPO enjoined FPIC and FGC to: (a) cease
and desist from operating the WOPL until further orders; (b) check the structural integrity of the
whole span of the 11 7-kilometer WOPL while implementing sufficient measures to prevent and
avert any untoward incident that may result from any leak of the pipeline; and ( c) make a report
thereon within 60 days from receipt thereof.
In compliance with the writ, FPIC directors Edgar Chua, Dennis Javier, Dennis Gamab and Willie
Sarmiento submitted a Joint Return3 praying for the dismissal of the petition and the denial of the
privilege of the Writ of Kalikasan. They alleged that: petitioners had no legal capacity to institute
the petition; there is no allegation that the environmental damage affected the inhabitants of two
(2) or more cities or provinces; and the continued operation of the pipeline should be allowed in
the interest of maintaining adequate petroleum supply to the public.
Respondents FPIC and its directors and officers, other than the aforementioned four ( 4)
directors, also filed a Verified Return4 claiming that not all requirements for the issuance of the
Writ of Kalikasan are present and there is no showing that West Tower Corp. was authorized by
all those it claimed to represent. They further averred that the petition contains no allegation that
respondents FPIC directors and officers acted in such a manner as to allow the piercing of the
corporate veil.
Meanwhile, on January 18, 201-1, FGC and the members of its Board of Directors and Officers
filed a Joint Compliance5 submitting the report required by the Writ of Kalikasan/TEPO. They
contended that they neither own nor operate the pipelines, adding that it is impossible for them
to report on the structural integrity of the pipelines, much less to cease and desist from operating
them as they have no capability, power, control or responsibility over the pipelines. They, thus,
prayed that the directives of the Writ of Kalikasan/TEPO be considered as sufficiently performed,
as to them.
On January 21, 2011, FPIC, in compliance with the writ, submitted its 4-page "Report on Pipeline
Integrity Check and Preventive Maintenance Program." 6 In gist, FPIC reported the following: (I)
For the structural integrity of the 117-kilometer pipeline, (a) the DOE engaged the services of
UP-NIGS to do borehole testing on 81 pre-identified critical areas of the WQPL in eight cities and
municipalities-all the boreholes showed negative presence of petroleum vapors; (b) pressure
tests were conducted after the repair of the leak and results showed negative leaks and the
DOE's pipeline expert, Societe General de Surveillance, New Zealand, has developed a
pressure test protocol requiring a 24-hour operation of running a scraper pig through the pipeline
to eliminate air gap; (c) In-Line Inspection Test, was conducted by NDT through MFL and
ultrasonic. The NDT later cleared the WOPL from any damage or corrosion.
(II) For preventive maintenance measures, (a) Cathodic Protection Systems are installed
involving the use of anode materials and the introduction of electric current in the pipeline to
enhance prevention of corrosion; (b) Regular Scraper Runs through the pipeline to maintain
cleanliness and integrity of the pipelines' internal surface; (c) Daily Patrols every two hours of the
pipeline route to deter unauthorized diggings in the vicinity of the pipeline segments; ( d) Regular
coordination meetings with DPWH, MMDA and utility companies to monitor projects that might
involve digging or excavation in the vicinity of the pipeline segments; (e) Installation of Security
Warning Signs along the pipeline route with toll free number which can be called in the event of
an accident or emergency; (f) Emergency Response Procedure of the ERT is activated by a call-
out procedure; (g) Maintenance of Emergency Equipment and Repair Kit which are always on
standby; and, (h) Remotely controlled Isolation Valves are in place to shut the pipeline when
necessary.
On February 9, 2011, petitioners filed, and the Court eventually granted, their Motion to Set the
Case for Preliminary Conference and Hearing7 pursuant to Sec. 11, Rule 7 of the Rules of
Procedure for Environmental Cases.
On April 15, 2011, the Court conducted an ocular inspection of the WOPL in the vicinity of West
Tower to determine the veracity of the claim that there were two (2) additional leaks on FPIC's
pipeline. Results of the ocular inspection belied the claim.
In the meantime, petitioners also filed civil and criminal complaints against respondents arising
from the same incident or leakage from the WOPL.8
Since after the Court's issuance of the Writ of Kalikasan and the TEPO on November 19, 2010,
FPIC has ceased operations on both the WOPL and the BOPL. On May 31, 2011, however, the
Court, answering a query of the DOE, clarified and confirmed that what is covered by the Writ of
Kalikasan and TEPO is only the WOPL System of FPIC; thus, FPIC can resume operation of its
BOPL System.9
On July 7, 2011, petitioners filed an Omnibus Motion 10 assailing the Court's May 31, 2011
Resolution, praying for the conduct of oral argument on the issue of reopening the BOPL
System. This was followed, on September 9, 2011, by a Manifestation (Re: Current
Developments) with Omnibus Motion11 wherein petitioners invoked the precautionary
principle12 and asserted that the possibility of a leak in the BOPL System leading to catastrophic
environmental damage is enough reason to order the closure of its operation. They likewise
alleged that the entities contracted by FPIC to clean and remediate the environment are illegally
discharging waste water, which had not undergone proper treatment, into the Parañaque River.
Petitioners, thus, prayed that respondents be directed to comply with environmental laws in
rehabilitating the surroundings affected by the oil leak and to submit a copy of their work plan
and monthly reports on the progress thereof. To these omnibus motions, respondents were
directed to file their respective comments.
On September 28, 2011, respondent FPIC filed an Urgent Motion for Leave (To Undertake
"Bangkal Realignment" Project)13 in order to reduce stress on the WOPL System. FPIC sought to
construct a new realigned segment to replace the old pipe segment under the Magallanes
Interchange, which covers the portion that leaked. Petitioners were directed to file their comment
on FPIC's motion.
Report and Recommendation of the Court of Appeals
To expedite the resolution of the controversy, the Court remanded the case to the Court of
Appeals (CA). By this Court's Resolution dated November 22, 2011,14 the appellate court was
required to conduct hearings and, thereafter, submit a report and recommendation within 30
days after the receipt of the parties' memoranda.
On March 21, 2012, the preliminary conference was continued before the CA wherein the parties
made admissions and stipulations of facts and defined the issues for resolution. In view of the
technical nature of the case, the CA also appointed15 several amici curiae,16 but only four (4)
filed their reports.17
On December 26, 2012, the CA Former 11th Division submitted to the Court its well-crafted and
exhaustive 156-page Report and Recommendation18 dated December 21, 2012 (CA Report).
Some highlights of the Report:
1. Anent petitioners' June 28, 2011 Omnibus Motion assailing the reopening of the
BOPL System, the CA directed respondent FPIC to submit the appropriate certification
from the DOE as to the safe commercial operation of the BOPL; otherwise, the operation
of the BOPL must also be enjoined.
2. On petitioners' September 9, 2011 Manifestation (Re: Current Developments) with
Omnibus Motion, the CA directed the Inter-Agency Committee on Health to submit its
evaluation of the remediation plan prepared by CH2M Hill Philippines, Inc. for FPIC.
Further, the appellate court directed FPIC to strictly comply with the stipulations
contained in the permits issued by the Department of Environment and Natural
Resources (DENR) for its remediation activities in Barangay Bangkal, Makati City. The
DENR was in turn directed by the CA to:
(a) monitor compliance by respondent FPIC with applicable environmental laws
and regulations and conditions set forth in the permits issued;
(b) conduct independent analysis of end-products of the Multi-Phase Extraction
System;
(c) conduct regular consultative meetings with the City of Makati, residents of
Barangay Bangkal and other stakeholders concerning the remediation activities;
and,
(d) evaluate the viability of the recommendation of amicus Dr. Benjamin R. De
Jesus, Jr. to include the use of surfactants and oxygen-releasing compounds
(ORCs) in the middle and terminal portions of the remediation plan.
3. Respondent's September 27, 2011 Urgent Motion for Leave (To Undertake "Bangkal
Realignment" Project) was denied.
4. With regard to the March 29, 2012 Supplemental Manifestation (Re: List of Amici
Curiae and Recent Possible Leak in the Pipeline) filed by petitioners, the CA found that
the existence of another possible leak alleged by petitioners was not established.
Nonetheless, to prevent such event, the CA ordered FPIC to: (i) review, adopt and
strictly observe appropriate safety and precautionary measures; (ii) closely monitor the
conduct of its maintenance and repair works; and (iii) submit to the DOE regular monthly
reports on the structural integrity and safe commercial operation of the pipeline.
5. As to the merits of the case, the CA submitted the following recommendations:
(a) That the people's organizations, non-governmental organizations, and public
interest groups that indicated their intention to join the petition and submitted
proof of juridical personality (namely: the Catholic Bishop's Conference of the
Philippines; Kilusang Makabansang Ekonomiya, Inc.; Women's Business
Council of the Philippines, Inc.; Junior Chambers International Philippines, Inc. -
San Juan Chapter; Zonta Club of Makati Ayala Foundations; and the
Consolidated Mansions Condominium Corporation) be allowed to be formally
impleaded as petitioners.
(b) That respondent FPIC be ordered to submit a certification from the DOE
Secretary that the WOPL is already safe for commercial operation. The
certification should take into consideration the adoption by FPIC of the
appropriate leak detection system to be used in monitoring the entire pipeline's
mass input versus mass output. The certification must also consider the
necessity of replacing the pipes with existing patches and sleeves. In case of
failure of respondent FPIC to submit the required certification from the DOE
Secretary within sixty (60) days from notice of the Honorable Supreme Court's
approval of this recommendation, the TEPO must be made permanent.
(c) That petitioners' prayer for the creation of a special trust fund to answer for
similar contingencies in the future be denied for lack of sufficient basis.
d) That respondent FGC be not held solidarily liable under the TEPO.
(e) That without prejudice to the outcome of the civil and criminal cases filed
against respondents, the individual directors and officers of FPIC and FGC be
not held liable in their individual capacities.
On January 11, 2013, petitioners filed their Motion for Partial Reconsideration 19 of the CA's
Report praying that (a) instead of the DOE, the required certification should be issued by the
DOST-Metal Industry Research and Development Center; (b) a trust fund be created to answer
for future contingencies; and ( c) the directors and officers of FPIC and FGC be held
accountable.
On January 25, 2013, FPIC filed its Compliance (Re: Department of Energy Certification on the
Black Oil Pipeline)20 and submitted the required DOE Certification21 issued on January 22, 2013
by DOE Secretary Carlos Jericho L. Petilla (Secretary Petilla). On March 14, 2013, petitioners
countered with a Manifestation with Motion22asserting that FPIC's certification is not compliant
with the CA's requirement. Hence, petitioners moved that the certification should be disregarded,
the 30-day period be deemed to have lapsed, and FPIC be permanently enjoined from operating
the BOPL.
On July 30, 2013, the Court issued a Resolution adopting the recommendation of the CA in its
Report and Recommendation that FPIC be ordered to secure a certification from the DOE
Secretary before the WOPL may resume its operations. The pertinent portion of said Resolution
reads:
[FPIC] is hereby ORDERED to submit a certification from the DOE Secretary that the pipeline is
already safe for commercial operation. The certification should take into consideration the
adoption by FPIC of the appropriate leak detection system to be used in monitoring the entire
pipeline's mass input versus mass output. The certification must also consider the necessity of
replacing the pipes with existing patches and sleeves x x x.23
The DOE Secretary is DIRECTED to consult the [DOST] regarding the adoption of the
appropriate leak detection system and the necessity of replacing the pipes with existing patches
and sleeves.
On October 2, 2013, petitioners, in a Motion for Reconsideration with Motion for Clarification,
emphasized that the CA found FPIC's tests and maintenance program to be insufficient and
inconclusive to establish the WOPL' s structural integrity for continued commercial
operation.24 Furthermore, petitioners point out that the DOE is biased and incapable of
determining the WOPL's structural integrity.
Respondents, for their part, maintain that the DOE has the technical competence and expertise
to assess the structural integrity of the WOPL and to certify the system's safety for commercial
operation.25 Respondents further allege that the DOE is the agency empowered to regulate the
transportation and distribution of petroleum products, and to regulate and monitor downstream
oil industry activities, including "product distribution" through pipelines. 26
In compliance with the Court's July 30, 2013 Resolution, the DOE Secretary issued on October
25, 2013 a Certification,27 attesting that the WOPL is safe to resume commercial operations,
subject to monitoring or inspection requirements, and imposing several conditions that FPIC
must comply with. The Certification, in its entirety, reads:
This is to certify that based on the Pipeline Integrity Management Systems (PIMS) being
implemented by [FPIC] for its [WOPL] facility, the same is safe to resume commercial
operations. This certification is being issued after consultation with the [DOST] and on the basis
of the following considerations, to wit:
1. DOE noted the adoption by FPIC of the appropriate leak detection system to be used
in monitoring the pipeline's mass input versus mass output, as well as the other
measures of leak detection and prevention adopted by the latter;
2. DOE further noted that FPIC has already undertaken realignment and reinforcement
works on the current pipeline to remove majority of the patches. FPIC has likewise
presented substantial and adequate documentation showing that the remaining patches
and sleeves are safe, and that the use of such is recognized by the industry and
complies with existing standards;
3. DOE finally noted the results of various tests and inspections done on the pipeline as
indicated in the Manifestation submitted by ,the DOE on March 31, 2012, in the civil case
docketed as CA GR SP No. 00008 and entitled West Tower Condominium, et al. [v.]
First Philippine Industrial Corporation, et al.
This certification is being issued subject to the condition that FPIC will submit itself to regular
monitoring and validation by the Oil Industry Management Bureau (OIMB) of the implementation
of its PIMS, particularly on the following: (a) mass or volume input versus mass or volume output
loss/gain accounting; (b) results of borehole monitoring, (c) inspection of the pipeline cathodic
protection and (d) pressure test.
Further, FPIC shall submit itself to any test or inspection that the DOE and DOST may deem
appropriate for purposes of monitoring the operations of the WOPL facility.
The Court is fully cognizant of the WOPL' s value in commerce and the adverse effects of a
prolonged closure thereof. Nevertheless, there is a need to balance the necessity of the
immediate reopening of the WOPL with the more important need to ensure that it is sound for
continued operation, since the substances it carries pose a significant hazard to the surrounding
population and to the environment. 28 A cursory review of the most recent oil pipeline tragedies
around the world will readily show that extreme caution should be exercised in the monitoring
and operation of these common carriers:
(1) On August 1, 2014, a series of powerful explosions from underground pipeline
systems ripped up the streets of Kaohsiung, Taiwan, killing at least 28 people and
injuring 299 more. Further, 23 ,600, 2,268 and 6,000 households were left without gas,
power and water, respectively, in the 2-3 square kilometer blast area.29
(2) On November 22, 2013, an oil pipeline leaked, caught fire, and exploded in Qingdao,
Shangdao Province in China, killing 55 people and injuring more than a hundred more. 30
(3) On September 14, 2011, a fuel pipeline exploded in Kenya's capital city, Nairobi,
reducing bodies to dust and flattening homes. At least 7 5 people died in the explosion,
while more than a hundred people were injured. 31
(4) In September 2010, a natural gas pipeline ruptured and set off a fireball, killing eight
(8) people and leveling 3 8 homes in San Bruno, California in the United States. 32
(5) On July 30, 2004, a rupture of an underground natural gas pipeline buried six (6)
meters in Ghislenghien, Belgium resulted in 24 deaths and over 120 injuries. 33
On April 29 and 30, 2014, the DOE organized a dialogue between said government agencies
and the FPIC. There it was stated that during the dialogue, "the division heads and a high profile
team from FPIC, both from operation and management made presentations and answered
questions on pipeline pumping operation and product delivery, and a detailed explanation of the
FPIC PIMS' control measures, condition monitoring measures, and emergency measures, as
well as its various activities and projects implemented since 2010 such as pipeline replacement
and realignment in Pandacan and Bangkal, inspection and reinforcement of all patches in the i. Old readings
WOPL, inspection and reinforcement of a number of reported dents in the WOPL, conduct of
successful leak tests, and installation of boreholes that are gas-tested on a weekly basis, and ii. Current Readings
the safety systems that go with the daily pipeline operation and maintenance and project
execution."34 iii. Segment covered

On August 5, 2014, Secretary Carlos Jericho L. Petilla of the DOE submitted a iv. Criteria for prioritization for corrective action
letter35 recommending activities and timetable for the resumption of the WOPL operations, to wit:
d. Observe and witness the running/operation of the cleaning pig.
A. Preparatory to the Test Run
e. Check and validate all calibration certificate of instruments
I. FPIC Tasks:
i. Instrument verification and calibration.
a. Continue submission of monitoring charts, data/reading, accomplishment reports, and
project status for all related activities/works. Respond to comments and prepare for site
inspection. B. Actual Test Run (to be undertaken both by FPIC and inter-agency)

b. Continue gas testing along the right-of-way using the monitoring wells or boreholes. a. Perform Cleaning Pig Run
Prepare for inspection of right-of-way and observation of gas testing activities on
monitoring wells and boreholes. i. Witness launching and receiving of the cleaning pig.

c. Expound on the selection of borehole location. For example, identify those located in ii. Handling of the residuals after cleaning.
pipeline bends, bodies of water, residential areas, repaired portions of the pipelines,
dents and welded joints. b. Demonstrate Various Pressure Tests (already being conducted by FPIC)

d. Continue submitting status report relating to "Project Mojica" (an ongoing pipeline i. Blocked-in pressure test (Leak Test, not in operation)
segment realignment activity undertaken by FPIC to give way to a flood control project of
MMDA in the vicinity of Mojica St. and Pres. Osmeña Highway in Makati City). Prepare ii. In-operation (hourly reading)
for site inspection.
c. Continue Current Gas Monitoring (boreholes)
II. Inter-agency undertaking:
i. Ocular inspection of selected areas
a. Conduct onsite inspection of right-of-way
d. Demonstrate mass or volume balance computation during WOPL test run (already
b. Review/check remaining 22 patches that were already inspected and reinforced with being implemented in the BOPL)
Clockspring sleeves.
i. 30 days baseline data generation
i. Determine location of sleeves.
ii. 30 days computational analysis and monitoring
ii. Review of procedures on repair of sleeves.
C. Commissioning or Return to Commercial Operation
iii. Random visual inspection of areas easily accessible.
I. FPIC Tasks:
c. Cathodic protection's onsite inspection on rectifier to check readings
 a. Continue implementation of the PIMS. Review recommendations from DOE.
b. Continue monthly reporting of operations and maintenance activities with DOE.
c. Continue reporting and coordination with DOE and other government agencies for
implementation of projects.36
Secretary Petilla also recounted to the Court in his August 5, 2014 letter that the DOE, together
with the DPWH and the Metropolitan Manila Development Authority (MMDA), observed the
different milestones of the realignment project being undertaken by FPIC in support of the
MMDA Flood Control Project and stated that the new line segment as laid was coated with
corrosion protection prior to the backfilling of the excavated portion.
On February 3, 2015, the Court required the parties to submit their comment on Sec. Petilla's
letter within ten (10) days from receipt of the Resolution. On various dates, respondents First
Gen Corporation, FPIC, and petitioner West Tower filed their respective comments 37 in
compliance with the Court's resolution. The intervenors were unable to comply with the Court's
directive; hence, they are deemed to have waived their right to file their respective comments.
The Issues
Having received the October 25, 2013 Certification and the August 5, 2014 Letter from the DOE
on the state of the WOPL, as well as the parties' comments thereon, the following issues defined
by the parties during the March 21, 2012 preliminary conference are now ripe for adjudication:
1. Whether petitioner West Tower Corp. has the legal capacity to represent the other
petitioners and whether the other petitioners, apart from the residents of West Tower
and Barangay Bangkal, are real parties-in-interest;
2. Whether a Permanent Environmental Protection Order should be issued to direct the
respondents to perform or to desist from performing acts in order to protect, preserve,
and rehabilitate the affected environment;
3. Whether a special trust fund should be opened by respondents to answer for future
similar contingencies; and
4. Whether FGC and the directors and officers of respondents FPIC and FGC may be
held liable under the environmental protection order. 38
The Court's Ruling
We adopt, with modifications, the recommendations of the CA and discuss the foregoing issues
in seriatim.
I.
Petitioners as Real Parties-in-Interest
On the procedural aspect, We agree with the CA that petitioners who are affected residents of
West Tower and Barangay Bangkal have the requisite concern to be real parties-in-interest to
pursue the instant petition.
Residents of West Tower and Barangay Bangkal
As defined, a real party-in-interest is the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the suit.39 Generally, every action must
be prosecuted or defended in the name of the real parties-in-interest.40 In other words, the action
must be brought by the person who, by substantive law, possesses the right sought to be
enforced.41 Alternatively, one who has no right or interest to protect cannot invoke the jurisdiction
of the court as party-plaintiff-in-action for it is jurisprudentially ordained that every action must be
prosecuted or defended in the name of the real party-in-interest.42
In the case at bar, there can be no quibble that the oil leak from the WOPL affected all the
condominium unit owners and residents of West Tower as, in fact, all had to evacuate their units
at the wee hours in the morning of July 23, 2010, when the condominium's electrical power was
shut down. Until now, the unit owners and residents of West Tower could still not return to their
condominium units. Thus, there is no gainsaying that the residents of West Tower are real
parties-in-interest.
There can also be no denying that West Tower Corp. represents the common interest of its unit
owners and residents, and has the legal standing to file and pursue the instant petition. While a
condominium corporation has limited powers under RA 4 726, otherwise known as The
Condominium Act,43 it is empowered to pursue actions in behalf of its members. In the instant
case, the condominium corporation .is the management body of West Tower and deals with
everything that may affect some or all of the condominium unit owners or users.
It is of no moment that only five residents of West Tower signed their acquiescence to the filing
of the petition for the issuance of the Writ of Kalikasan, as the merits of such petition is, as aptly
put by the CA, not measured by the number of persons who signified their assent thereto, but on
the existence of a prima facie case of a massive environmental disaster.
Moreover, the fact that no board resolution was submitted by West Tower Corp. authorizing
Manuel Dy Chuaunsu, Jr. to sign the Verification and Certification of Non-forum Shopping is
irrelevant. The records show that petitioners submitted a notarized Secretary's
Certificate44 attesting that the authority of Chuaunsu to represent the condominium corporation in
filing the petition is from the resolution of the total membership of West Tower Corp. issued
during their November 9, 2010 meeting with the requisite quorum. It is, thus, clear that it was not
the Board of West Tower Corp. which granted Chuaunsu the authority but the full membership of
the condominium corporation itself.
As to the residents of Barangay Bangkal, they are similarly situated with the unit owners and
residents of West Tower and are real parties-in-interest to the instant case, i.e., if they so wish to
join the petitioners.
Organizations that indicated their intention to join the petition
and submitted proof of juridical personality
Anent the propriety of including the Catholic Bishops' Conference of the Philippines, Kilusang
Makabansang Ekonomiya, Inc., Women's Business Council of the Philippines, Inc., Junior
Chambers International Philippines, Inc. - San Juan Chapter, Zonta Club of Makati Ayala
Foundations, and the Consolidated Mansions Condominium Corporation, as petitioners in the
case, the Court already granted their intervention in the present controversy in the adverted July
30, 2013 Resolution.
This is so considering that the filing of a petition for the issuance of a writ of kalikasan under Sec.
1, Rule 745 of the Rules of Procedure for Environmental Cases does not require that a petitioner
be directly affected by an environmental disaster. The rule clearly allows juridical persons to file
the petition on behalf of persons whose constitutional right to a balanced and healthful ecology is
violated, or threatened with violation.
Thus, as parties to the case, they are entitled to be furnished copies of all the submissions to the
Court, including the periodic reports of FPIC and the results of the evaluations and tests
conducted on the WOPL.
Having disposed of the procedural issue, We proceed to the bone of contention in the pending
motions. Suffice it to state in the outset that as regards the substantive issues presented, the
Court, likewise, concurs with the other recommendations of the CA, with a few modifications.
II.
Propriety of Converting the TEPO to PEPO or its Lifting in light of the
DOE Certification of the WOPL's Commercial Viability
To recall, petitioners' persistent plea is for the conversion of the November 19, 2010 TEPO into a
Permanent Environmental Protection Order (PEPO) pursuant to Sec. 3, 46 Rule 5 of the Rules of
Procedure for Environmental Cases. For its part, respondent FPIC asserts that regular testing,
as well as the measures that are already in place, will sufficiently address any concern of oil
leaks from the WOPL.
With respect to leak detection, FPIC claims that it has in place the following systems: (a) regular
cleaning scraper runs, which are done quarterly; (b) pipeline integrity gauge (PIG)
tests/Intelligent PIG, now known as in-line inspections (ILI), which is done every five years; (c)
pressure monitoring valves; and ( d) 24-hour patrols. Additionally, FPIC asserted that it also
undertook the following: (a) monitoring of wells and borehole testing/vapor tests; (b) leak
tightness test, also known as segment pressure test; (c) pressure-controlled test; (d) inspection
and reinforcement of patches; (e) inspection and reinforcement of dents; and (f) Pandacan
segment replacement.47Furthermore, in August 2010, with the oil leak hogging the headlines,
FPIC hired NDT Middle East FZE (NDT) to conduct ILI inspections through magnetic flux
leakage (MFL) and ultrasonic tests to, respectively, detect wall thinning of the pipeline and check
it for cracks.
The CA, however, observed that all of these tests and measures are inconclusive and
insufficient for purposes of leak detection and pipeline integrity maintenance. Hence, considering
the necessary caution and level of assurance required to ensure that the WOPL system is free
from leaks and is safe for commercial operation, the CA recommended that FPIC obtain from the
DOE a certification that the WOPL is already safe for commercial operation. This certification,
according to the CA, was to be issued with due consideration of the adoption by FPIC of the
appropriate leak detection systems to monitor sufficiently the entire WOPL and the need to
replace portions of the pipes with existing patches and sleeves. Sans the required certification,
use of the WOPL shall remain abated.
The Court found this recommendation of the appellate court proper. Hence, We required FPIC to
obtain the adverted DOE Certification in Our July 30, 2013 Resolution. We deemed it proper to
require said certification from the DOE considering that the core issue of this case requires the
specialized knowledge and special expertise of the DOE and various other administrative
agencies. On October 25, 2013, the DOE submitted the certification pursuant to the July 30,
2013 Resolution of the Court. Later, however, on August 5, 2014, DOE Secretary Carlos Jericho
I. Petilla submitted a letter recommending certain activities and the timetable for the resumption
of the WOPL operations after conducting a dialogue between the concerned government
agencies and FPIC.
After a perusal of the recommendations of the DOE and the submissions of the parties, the
Court adopts the activities and measures prescribed in the DOE letter dated August 5, 2014 to
be complied with by FPIC as conditions for the resumption of the commercial operations of the
WOPL. The DOE should, therefore, proceed with the implementation of the tests proposed in the
said August 5, 2014 letter. Thereafter, if it is satisfied that the results warrant the immediate
reopening of the WOPL, the DOE shall issue an order allowing FPIC to resume the operation of
the WOPL. On the other hand, should the probe result in a finding that the pipeline is no longer
safe for continued use and that its condition is irremediable, or that it already exceeded its
serviceable life, among others, the closure of the WOPL may be ordered.
The DOE is specially equipped to consider FPIC's proper implementation and compliance with
its PIMS and to evaluate the result of the various tests conducted on the pipeline. The DOE is
empowered by Sec. 12(b)(l), RA 7638 to formulate and implement policies for the efficient and
economical "distribution, transportation, and storage of petroleum, coal, natural gas." 48 Thus, it
cannot be gainsaid that the DOE possesses technical knowledge and special expertise with
respect to practices in the transportation of oil through pipelines.
Moreover, it is notable that the DOE did not only limit itself to the knowledge and proficiency
available within its offices, it has also rallied around the assistance of pertinent bureaus of the
other administrative agencies: the ITDI49 of the DOST, which is mandated to undertake technical
services including standards, analytical and calibration services; the MIRDC, 50 also of the DOST,
which is the sole government entity directly supporting the metals and engineering industry; 51 the
EMB52 of the DENR, the agency mandated to implement, among others, RA 6969 (Toxic
Substances and Hazardous and Nuclear Waste Control Act of 1990) and RA 9275 (Philippine
Clean Water Act of 2004); and the BOD of the DPWH, which is mandated to conduct, supervise,
and review the technical design aspects of projects of government agencies. 53
The specialized knowledge and expertise of the foregoing agencies must, therefore, be availed
of to arrive at a judicious decision on the propriety of allowing the immediate resumption of the
WOPL's operation. In a host of cases, this Court held that when the adjudication of a controversy
requires the resolution of issues within the expertise of an administrative body, such issues must
be investigated and resolved by the administrative body equipped with the specialized
knowledge and the technical expertise.54 Hence, the courts, although they may have jurisdiction
and power to decide cases, can utilize the findings and recommendations of the administrative
agency on questions that demand "the exercise of sound administrative discretion requiring the
special knowledge, experience, and services of the administrative tribunal to determine technical
and intricate matters of fact."55
Justice Leonen, in his dissent, is of the view that the petition should be denied and the TEPO
immediately lifted in light of the DOE's issuance of a certification attesting to the safety of the
WOPL for continued commercial operations, thereby rendering the instant petition moot and
academic, seeking, as it does, the checking of the pipeline's structural integrity. According to his
dissent, the writ of kalikasan issued by the Court has already served its functions and, therefore,
is functus officio. Moreover, he argues that directing the DOE and FPIC to repeat their previous
procedures is tantamount to doubting the agency's performance of its statutorily-mandated
tasks, over which they have the necessary expertise, and implies that said DOE certification is
improper, a breach, allegedly, of the principle of separation of powers.
He also contends that the majority ordered the repetition of the procedures and tests already
conducted on the WOPL because of the fear and uncertainty on its safeness despite the finding
of the DOE in favor of its reopening, taking into consideration the occurrence of numerous
pipeline incidents worldwide. The dissent argues that the precautionary principle should not be
so strictly applied as to unjustifiably deprive the public of the benefits of the activity to be
inhibited, and to unduly create other risks.
The dissent's contentions that the case is already moot and academic, that the writ of kalikasan
has already served its function, and that the delay in the lifting of the TEPO may do more harm
than good are anchored on the mistaken premise that the precautionary principle was applied in
order to justify the order to the DOE and the FPIC for the conduct of the various tests anew. The
following reasons easily debunk these arguments:
1. The precautionary principle is not applicable to the instant case;
2. The DOE certification is not an absolute attestation as to the WOPL's structural
integrity and in fact imposes several conditions for FPIC's compliance;
3. The DOE itself, in consultation with FPIC and the other concerned agencies,
proposed the activities to be conducted preparatory to the reopening of the pipeline; and
4 . There are no conclusive findings yet on the WOPL's structural integrity.
Section 1, Rule 20 of A.M. No. 09-6-8-SC or the Rules of Procedure for Environmental Cases,
on the Precautionary Principle, provides that "[ w ]hen there is lack of full scientific certainty in
establishing a causal link between human activity and environmental effect, the court shall apply
the precautionary principle in resolving the case before it."
According to the dissent, the directive for the repetition of the tests is based on speculations,
justified by the application of said principle. This, however, is not the case. Nowhere did We
apply the precautionary principle in deciding the issue on the WOPL's structural integrity.
The precautionary principle only applies when the link between the cause, that is the human
activity sought to be inhibited, and the effect, that is the damage to the environment, cannot be
established with full scientific certainty. Here, however, such absence of a link is not an issue.
Detecting the existence of a leak or the presence of defects in the WOPL, which is the issue in
the case at bar, is different from determining whether the spillage of hazardous materials into the
surroundings will cause environmental damage or will harm human health or that of other
organisms. As a matter of fact, the petroleum leak and the harm that it caused to the
environment and to the residents of the affected areas is not even questioned by FPIC.
It must be stressed that what is in issue in the instant petition is the WOPL's compliance with
pipeline structure standards so as to make it fit for its purpose, a question of fact that is to be
determined on the basis of the evidence presented by the parties on the WOPL's actual state.
Hence, Our consideration of the numerous findings and recommendations of the CA, the DOE,
and the amici curiae on the WOPL' s present structure, and not the cited pipeline incidents as
the dissent propounds.
Consider also the fact that it is the DOE itself that imposed several conditions upon FPIC for the
resumption of the operations of the WOPL. This, coupled with the submission by the DOE of its
proposed activities and timetable, is a clear and unequivocal message coming from the DOE
that the WOPL's soundness for resumption of and continued commercial operations is not yet
fully determined. And it is only after an extensive determination by the DOE of the pipeline's
actual physical state through its proposed activities, and not merely through a short-form integrity
audit,56 that the factual issue on the WOPL's viability can be settled. The issue, therefore, on the
pipeline's structural integrity has not yet been rendered moot and remains to be subject to this
Court's resolution. Consequently, We cannot say that the DOE's issuance of the certification
adverted to equates to the writ of kalikasan being functus officio at this point.
The dissent is correct in emphasizing that We defer to the findings of fact of administrative
agencies considering their specialized knowledge in their field. And We, as a matter of fact,
acceded to the DOE' s conclusions on the necessity of the conduct of the various activities and
tests enumerated in Sec. Petilla's letter to this Court dated August 5, 2014. Hence, Our directive
for the DOE to immediately commence the activities enumerated in said Letter, to determine the
pipeline's reliability, and to order its reopening should the DOE find that such is proper.
The dissent also loses sight of the fact that the petition not only seeks the checking of the
WOPL's structural integrity, but also prays for the rehabilitation of the areas affected by the leak,
the creation of a special trust fund, the imposition of liability upon the directors of FPIC, among
others. These issues, undoubtedly, are matters that are not addressed by the DOE certification
alone. Furthermore, these are issues that no longer relate to the WOPL' s structure but to its
maintenance and operations, as well as to the residues of the incident. It will, thus, be improper
for Us to simply dismiss the petition on the basis solely of the alleged resolution of only one of
several issues, which purportedly renders the issue on the WOPL' s soundness moot, without
disposing of the other issues presented.
Lastly, any delay in the reopening of the WOPL, if said delay is for the purpose of making sure
that the pipeline is commercially viable, is better than hastily allowing its reopening without an
extensive check on its structural integrity when experience shows that there were and may still
be flaws in the pipeline. Even the DOE, the agency tasked to oversee the supply and distribution
of petroleum in the country, is well aware of this and even recommended the checking of the
patched portions of the pipeline, among others. In this regard, the Court deems it best to take the
necessary safeguards, which are not similar to applying the precautionary principle as previously
explained, in order to prevent a similar incident from happening in the future.
III.
Propriety of the Creation of a Special Trust Fund
Anent petitioners' prayer for the creation of a special trust fund, We note that under Sec. 1, Rule
5 of the Rules of Procedure for Environmental Cases, a trust fund is limited solely for the
purpose of rehabilitating or restoring the environment. Said proviso pertinently provides:
SEC. 1. Reliefs in a citizen suit. - If warranted, the court may grant to the plaintiff proper reliefs
which shall include the protection, preservation or rehabilitation of the environment and the
payment of attorney's fees, costs of suit and other litigation expenses. It may also require the
violator to submit a program of rehabilitation or restoration of the environment, the costs of which
shall be borne by the violator, or to contribute to a special trust fund for that purpose subject to
the control of the court. (emphasis supplied)
Furthermore, Sec. 15( e ), Rule 7 of the Rules of Procedure for Environmental Cases expressly
prohibits the grant of damages to petitioners in a petition for the issuance of a writ of kalikasan,
viz:
Section 15. Judgment. - Within sixty (60) days from the time the petition is submitted for
decision, the court shall render judgment granting or denying the privilege of the writ of
kalikasan.
The reliefs that may be granted under the writ are the following:
xxxx
(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology
or to the protection, preservation, rehabilitation or restoration of the environment, except the
award of damages to individual petitioners.
A reading of the petition and the motion for partial reconsideration readily reveals that the prayer
is for the creation of a trust fund for similar future contingencies. This is clearly outside the
limited purpose of a special trust fund under the Rules of Procedure for Environmental Cases,
which is to rehabilitate or restore the environment that has presumably already suffered. Hence,
the Court affirms with concurrence the observation of the appellate court that the prayer is but a
claim for damages, which is prohibited by the Rules of Procedure for Environmental Cases. As
such, the Court is of the considered view that the creation of a special trust fund is misplaced.
The present ruling on petitioners' prayer for the creation of a special trust fund in the instant
recourse, however, is without prejudice to the judgment/s that may be rendered in the civil and/or
criminal cases filed by petitioners arising from the same incident if the payment of damages is
found warranted.
IV.
Liability of FPIC, FGC and their respective Directors and Officers
On the last issue of the liability of FPIC, FGC and their respective directors and officers, the CA
found FGC not liable under the TEPO and, without prejudice to the outcome of the civil case
(Civil Case No. 11-256, RTC, Branch 58 in Makati City) and criminal complaint (Complaint-
Affidavit for Reckless Imprudence, Office of the Provincial Prosecutor of Makati City) filed
against them, the individual directors and officers of FPIC and FGC are not liable in their
individual capacities.
The Court will refrain from ruling on the finding of the CA that the individual directors and officers
of FPIC and FGC are not liable due to the explicit rule in the Rules of Procedure for
Environmental cases that in a petition for a writ of kalikasan, the Court cannot grant the award of
damages to individual petitioners under Rule 7, Sec. 15(e) of the Rules of Procedure for
Environmental Cases. As duly noted by the CA, the civil case and criminal complaint filed by
petitioners against respondents are the proper proceedings to ventilate and determine the
individual liability of respondents, if any, on their exercise of corporate powers and the
management of FPIC relative to the dire environmental impact of the dumping of petroleum
products stemming from the leak in the WOPL in Barangay Bangkal, Makati City.
Hence, the Court will not rule on the alleged liability on the part of the FPIC and FGC officials
which can, however, be properly resolved in the civil and criminal cases now pending against
them.
Other Matters
The CA's resolution on petitioners' September 9, 2011 Manifestation (Re: Current
Developments) with Omnibus Motion on the remediation plan in Barangay Bangkal by directing
the Inter-Agency Committee on Environmental Health to submit its evaluation of the said plan
prepared by CH2M Philippines, Inc., for FPIC to strictly comply with the stipulations embodied in
the permits issued by the DENR, and to get a certification from the DENR of its compliance
thereto is well taken. DENR is the government agency tasked to implement the state policy of
"maintaining a sound ecological balance and protecting and enhancing the quality of the
environment"57 and to "promulgate rules and regulations for the control of water, air, and land
pollution."58 It is indubitable that the DENR has jurisdiction in overseeing and supervising the
environmental remediation of Barangay Bangkal, which is adversely affected by the leak in the
WOPL in 2010.
With regard to petitioners' March 29, 2012 Supplemental Manifestation about a recent possible
leak in the pipeline, the CA appropriately found no additional leak. However, due to the
devastating effect on the environs in Barangay Bangkal due to the 2010 leak, the Court finds it
fitting that the pipeline be closely and regularly monitored to obviate another catastrophic event
which will prejudice the health of the affected people, and to preserve and protect the
environment not only for the present but also for the future generations to come.
2) The DOE shall perform the following undertakings:
Petitioner's January 10, 2013 Motion for Partial Recommendation of the CA' s Report need not
be discussed and given consideration. As the CA' s Report contains but the appellate court's
recommendation on how the issues should be resolved, and not the adjudication by this Court,
there is nothing for the appellate court to reconsider.
As to petitioner's October 2, 2013 Motion for Reconsideration with Motion for Clarification, the
matters contained therein have been considered in the foregoing discussion of the primary
issues of this case. With all these, We need not belabor the other arguments raised by the
parties.
IN VIEW OF THE FOREGOING, the Motion for Partial Reconsideration is hereby DENIED. The
Motion for Reconsideration with Motion for Clarification is PARTLY GRANTED. The Court of
Appeals' recommendations, embodied in its December 21, 2012 Report and Recommendation,
are hereby ADOPTED with the following MODIFICATIONS:
I. The Department of Energy (DOE) is hereby ORDERED to oversee the strict implementation of
the following activities:
A. Preparatory to the Test Run of the entire stretch of the WOPL:
1) FPIC shall perform the following:
a. Continue submission of monitoring charts, data/reading,
accomplishment reports, and project status for all related
activities/works. Respond to comments and prepare for site inspection.
b. Continue gas testing along the right-of-way using the monitoring wells
or boreholes. Prepare for inspection of right-of-way and observation of
gas testing activities on monitoring wells and boreholes.
c. Explain the process of the selection of borehole location and identify
those located in pipeline bends, bodies of water, highways, residential
areas, repaired portions of the pipelines, dents and welded joints, as
well other notable factors, circumstances, or exposure to stresses. d.
Set up additional boreholes and monitoring wells sufficient to cover the
entire stretch of the WOPL, the number and location of which shall be
determined by the DOE.
e. Continue submitting status report to the concerned government
agency/ies relating to "Project Mojica," or the on-going pipeline segment
realignment activity being undertaken by FPIC to give way to a flood
control project of the MMDA in the vicinity of Mojica St. and Pres.
Osmeña Highway, and prepare for site inspection.
a. Conduct onsite inspection of the pipeline right-of-way, the area
around the WOPL and the equipment installed underground or
aboveground.
b. Review and check the condition of the 22 patches reinforced with
Clockspring sleeves by performing the following:
i. Determine the location of the sleeves
ii. Review the procedure for the repair of the sleeves
iii. Inspect the areas where the affected portions of the WOPL
are located and which are easily accessible.
c. Inspect onsite the cathodic protection rectifier to check the following:
i. old and current readings
ii. the segment/s covered by the cathodic protection system
iii. review the criteria for prioritization of corrective action.
d. Observe and witness the running/operation of the intelligent and
cleaning pigs.
e. Check and calibrate the instruments that will be used for the actual
tests on the pipeline, and validate the calibration certificates of these
instruments.
 B. During the Actual Test Run:
1) FPIC shall perform the following:
a. Perform Cleaning Pig run and witness the launching and receiving of
the intelligent and cleaning pigs.
b. Demonstrate and observe the various pressure and leakage tests,
including the following:
i. "Blocked-in pressure test" or the pressure test conducted
while all the WOPL's openings are blocked or closed off; and
ii. "In-operation test" or the hourly monitoring of pressure rating
after the pipeline is filled with dyed water and pressurized at a
specified rate.
c. Continue, inspect, and oversee the current gas monitoring system, or
the monitoring of gas flow from the boreholes and monitoring wells of
the WOPL.
d. Check the mass or volume balance computation during WOPL test
run by conducting:
i. 30 days baseline data generation
ii. Computational analysis and monitoring of the data generated.
II. After FPIC has undertaken the activities prescribed in the preceding paragraph 1, the DOE
shall determine if the activities and the results of the test run warrant the re-opening of the
WOPL. In the event that the DOE is satisfied that the WOPL is safe for continued commercial
operations, it shall issue an order allowing FPIC to resume the operations of the pipeline.
III. Once the WOPL is re-opened, the DOE shall see to it that FPIC strictly complies with the
following directives:
a. Continue implementation of its Pipeline Integrity Management System (PIMS), as
reviewed by the DOE, which shall include, but shall not be limited to:
1. the conduct of daily patrols on the entire stretch of the WOPL, every two
hours;
2. continued close monitoring of all the boreholes and monitoring wells of the
WOPL pipeline;
3. regular periodic testing and maintenance based on its PIMS; and
4. the auditing of the pipeline's mass input versus mass output;
b. submit to the DOE, within ten (10) days of each succeeding month, monthly reports
on its compliance with the above directives and any other conditions that the DOE may
impose, the results of the monitoring, tests, and audit, as well as any and all activities
undertaken on the WOPL or in connection with its operation. The concerned government
agencies, namely: the Industrial Technology Development Institute (ITDI) and the Metals
Industry Research and Development Center (MIRDC), both under the Department of
Science and Technology (DOST), the Environmental Management Bureau (EMB) of the
Department of Environment and Natural Resources (DENR), the Bureau of Design
(BOD) of the Department of Public Works and Highways (DPWH), the University of the
Philippines - National Institute of Geological Science (UP-NI GS) and University of the
Philippines - Institute of Civil Engineering (UP-ICE), the petitioners, intervenors and this
Court shall likewise be furnished by FPIC with the monthly reports. This shall include,
but shall not be limited to: realignment, repairs, and maintenance works; and
c. continue coordination with the concerned government agencies for the implementation
of its projects.1âwphi1
IV. Respondent FPIC is also DIRECTED to undertake and continue the remediation,
rehabilitation and restoration of the affected Barangay Bangkal environment until full restoration
of the affected area to its condition prior to the leakage is achieved. For this purpose, respondent
FPIC must strictly comply with the measures, directives and permits issued by the DENR for its
remediation activities in Barangay Bangkal, including but not limited to, the Wastewater
Discharge Permit and Permit to Operate. The DENR has the authority to oversee and supervise
the aforesaid activities on said affected barangay.
V. The Inter-Agency Committee on Environmental Health under the City Government of Makati
shall SUBMIT to the DENR its evaluation of the Remediation Plan prepared by CH2M Hill
Philippines, Inc. within thirty (30) days from receipt hereof.
VI. Petitioners' prayer for the creation of a special trust fund to answer for similar contingencies
in the future is DENIED.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
G.R. No. 206510 September 16, 2014
MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV.
DEOGRACIAS S. INIGUEZ, JR., Bishop-Emeritus of Caloocan, FRANCES Q. QUIMPO,
CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO
M. REYES, JR., Bagong Alyansang Makabayan, HON. NERI JAVIER COLMENARES, Bayan
Muna Partylist, ROLAND G. SIMBULAN, PH.D., Junk VF A Movement, TERESITA R.
PEREZ, PH.D., HON. RAYMOND V. PALATINO, Kabataan Party-list, PETER SJ.
GONZALES, Pamalakaya, GIOVANNI A. TAPANG, PH. D., Agham, ELMER C. LABOG,
Kilusang Mayo Uno, JOAN MAY E. SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA,
THERESA A. CONCEPCION, MARY JOAN A. GUAN, NESTOR T. BAGUINON, PH.D., A.
EDSEL F. TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK A. RICE in his
capacity as Commanding Officer of the USS Guardian, PRESIDENT BENIGNO S. AQUINO
III in his capacity as Commander-in-Chief of the Armed Forces of the Philippines, HON.
ALBERT F. DEL ROSARIO, Secretary, pepartment of Foreign Affair.s, HON. PAQUITO
OCHOA, JR., Executiv~.:Secretary, Office of the President, . HON. VOLTAIRE T. GAZMIN,
Secretary, Department of National Defense, HON. RAMON JESUS P. P AJE, Secretary,
Department of Environment and Natural Resoz!rces, VICE ADMIRAL JOSE LUIS M.
ALANO, Philippine Navy Flag Officer in Command, Armed Forces of the Philippines,
ADMIRAL RODOLFO D. ISO RENA, Commandant, Philippine Coast Guard, COMMODORE
ENRICO EFREN EVANGELISTA, Philippine Coast Guard Palawan, MAJOR GEN. VIRGILIO
0. DOMINGO, Commandant of Armed Forces of the Philippines Command and LT. GEN.
TERRY G. ROBLING, US Marine Corps Forces. Pacific and Balikatan 2013 Exercise Co-
Director, Respondents.
DECISION
VILLARAMA, JR, J.:
Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the issuance of a
Temporary Environmental Protection Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC,
otherwise known as the Rules of Procedure for Environmental Cases (Rules), involving
violations of environmental laws and regulations in relation to the grounding of the US military
ship USS Guardian over the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring people of southern Philippines)
language which means "long reef exposed at low tide." Tubbataha is composed of two huge
coral atolls - the north atoll and the south atoll - and the Jessie Beazley Reef, a smaller coral
structure about 20 kilometers north of the atolls. The reefs of Tubbataha and Jessie Beazley are
considered part of Cagayancillo, a remote island municipality of Palawan. 1
In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation No. 306
issued by President Corazon C. Aquino on August 11, 1988. Located in the middle of Central
Sulu Sea, 150 kilometers southeast of Puerto Princesa City, Tubbataha lies at the heart of the
Coral Triangle, the global center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and Cultural
Organization (UNESCO) as a World Heritage Site. It was recognized as one of the Philippines'
oldest ecosystems, containing excellent examples of pristine reefs and a high diversity of marine
life. The 97,030-hectare protected marine park is also an important habitat for internationally
threatened and endangered marine species. UNESCO cited Tubbataha's outstanding universal
value as an important and significant natural habitat for in situ conservation of biological
diversity; an example representing significant on-going ecological and biological processes; and
an area of exceptional natural beauty and aesthetic importance. 2
On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067,3 otherwise known as the
"Tubbataha Reefs Natural Park (TRNP) Act of 2009" "to ensure the protection and conservation
of the globally significant economic, biological, sociocultural, educational and scientific values of
the Tubbataha Reefs into perpetuity for the enjoyment of present and future generations." Under
the "no-take" policy, entry into the waters of TRNP is strictly regulated and many human
activities are prohibited and penalized or fined, including fishing, gathering, destroying and
disturbing the resources within the TRNP. The law likewise created the Tubbataha Protected
Area Management Board (TPAMB) which shall be the sole policy-making and permit-granting
body of the TRNP.
The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In
December 2012, the US Embassy in the Philippines requested diplomatic clearance for the said
vessel "to enter and exit the territorial waters of the Philippines and to arrive at the port of Subic
Bay for the purpose of routine ship replenishment, maintenance, and crew liberty." 4 On January
6, 2013, the ship left Sasebo, Japan for Subic Bay, arriving on January 13, 2013 after a brief
stop for fuel in Okinawa, Japan.1âwphi1
On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in Makassar,
Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground
on the northwest side of South Shoal of the Tubbataha Reefs, about 80 miles east-southeast of
Palawan. No cine was injured in the incident, and there have been no reports of leaking fuel or
oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed regret for
the incident in a press statement.5 Likewise, US Ambassador to the Philippines Harry K.
Thomas, Jr., in a meeting at the Department of Foreign Affairs (DFA) on February 4, "reiterated
his regrets over the grounding incident and assured Foreign Affairs Secretazy Albert F. del
Rosario that the United States will provide appropriate compensation for damage to the reef
caused by the ship."6 By March 30, 2013, the US Navy-led salvage team had finished removing
the last piece of the grounded ship from the coral reef.
On April 1 7, 2013, the above-named petitioners on their behalf and in representation of their
respective sector/organization and others, including minors or generations yet unborn, filed the
present petition agairtst Scott H. Swift in his capacity as Commander of the US 7th Fleet, Mark
A. Rice in his capacity as Commanding Officer of the USS Guardian and Lt. Gen. Terry G.
Robling, US Marine Corps Forces, Pacific and Balikatan 2013 Exercises Co-Director ("US
respondents"); President Benigno S. Aquino III in his capacity as Commander-in-Chief of the
Armed Forces of the Philippines (AFP), DF A Secretary Albert F. Del Rosario, Executive
Secretary Paquito Ochoa, Jr., Secretary Voltaire T. Gazmin (Department of National Defense),
Secretary Jesus P. Paje (Department of Environment and Natural Resources), Vice-Admiral
Jose Luis M. Alano (Philippine Navy Flag Officer in Command, AFP), Admiral Rodolfo D. Isorena
(Philippine Coast Guard Commandant), Commodore Enrico Efren Evangelista (Philippine Coast
Guard-Palawan), and Major General Virgilio 0. Domingo (AFP Commandant), collectively the
"Philippine respondents."
The Petition
Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS
Guardian cause and continue to cause environmental damage of such magnitude as to affect
the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental,
Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which events violate their constitutional
rights to a balanced and healthful ecology. They also seek a directive from this Court for the
institution of civil, administrative and criminal suits for acts committed in violation of
environmental laws and regulations in connection with the grounding incident.
Specifically, petitioners cite the following violations committed by US respondents under R.A.
No. 10067: unauthorized entry (Section 19); non-payment of conservation fees (Section 21 );
obstruction of law enforcement officer (Section 30); damages to the reef (Section 20); and
destroying and disturbing resources (Section 26[g]). Furthermore, petitioners assail certain
provisions of the Visiting Forces Agreement (VFA) which they want this Court to nullify for being
unconstitutional.
The numerous reliefs sought in this case are set forth in the final prayer of the petition, to wit:
WHEREFORE, in view of the foregoing, Petitioners respectfully pray that the Honorable Court: 1.
Immediately issue upon the filing of this petition a Temporary Environmental Protection Order
(TEPO) and/or a Writ of Kalikasan, which shall, in particular,
a. Order Respondents and any person acting on their behalf, to cease and desist all
operations over the Guardian grounding incident;
b. Initially demarcating the metes and bounds of the damaged area as well as an
additional buffer zone;
c. Order Respondents to stop all port calls and war games under 'Balikatan' because of
the absence of clear guidelines, duties, and liability schemes for breaches of those
duties, and require Respondents to assume responsibility for prior and future
environmental damage in general, and environmental damage under the Visiting Forces
Agreement in particular.
d. Temporarily define and describe allowable activities of ecotourism, diving, recreation,
and limited commercial activities by fisherfolk and indigenous communities near or
around the TRNP but away from the damaged site and an additional buffer zone;
2. After summary hearing, issue a Resolution extending the TEPO until further orders of
the Court;
3. After due proceedings, render a Decision which shall include, without limitation:
a. Order Respondents Secretary of Foreign Affairs, following the dispositive portion of
Nicolas v. Romulo, "to forthwith negotiate with the United States representatives for the
appropriate agreement on [environmental guidelines and environmental accountability]
under Philippine authorities as provided in Art. V[] of the VFA ... "
b. Direct Respondents and appropriate agencies to commence administrative, civil, and
criminal proceedings against erring officers and individuals to the full extent of the law,
and to make such proceedings public;
c. Declare that Philippine authorities may exercise primary and exclusive criminal
jurisdiction over erring U.S. personnel under the circumstances of this case;
d. Require Respondents to pay just and reasonable compensation in the settlement of
all meritorious claims for damages caused to the Tubbataha Reef on terms and
conditions no less severe than those applicable to other States, and damages for
personal injury or death, if such had been the case;
e. Direct Respondents to cooperate in providing for the attendance of witnesses and in
the collection and production of evidence, including seizure and delivery of objects
connected with the offenses related to the grounding of the Guardian;
f. Require the authorities of the Philippines and the United States to notify each other of
the disposition of all cases, wherever heard, related to the grounding of the Guardian;
g. Restrain Respondents from proceeding with any purported restoration, repair, salvage
or post salvage plan or plans, including cleanup plans covering the damaged area of the
Tubbataha Reef absent a just settlement approved by the Honorable Court;
h. Require Respondents to engage in stakeholder and LOU consultations in accordance
with the Local Government Code and R.A. 10067;
i. Require Respondent US officials and their representatives to place a deposit to the
TRNP Trust Fund defined under Section 17 of RA 10067 as a bona .fide gesture
towards full reparations;
j. Direct Respondents to undertake measures to rehabilitate the areas affected by the
grounding of the Guardian in light of Respondents' experience in the Port Royale
grounding in 2009, among other similar grounding incidents;
 k. Require Respondents to regularly publish on a quarterly basis and in the name of
transparency and accountability such environmental damage assessment, valuation,
and valuation methods, in all stages of negotiation;
l. Convene a multisectoral technical working group to provide scientific and technical
support to the TPAMB;
m. Order the Department of Foreign Affairs, Department of National Defense, and the
Department of Environment and Natural Resources to review the Visiting Forces
Agreement and the Mutual Defense Treaty to consider whether their provisions allow for
the exercise of erga omnes rights to a balanced and healthful ecology and for damages
which follow from any violation of those rights;
n. Narrowly tailor the provisions of the Visiting Forces Agreement for purposes of
protecting the damaged areas of TRNP;
o. Declare the grant of immunity found in Article V ("Criminal Jurisdiction") and Article VI
of the Visiting Forces Agreement unconstitutional for violating equal protection and/or for
violating the preemptory norm of nondiscrimination incorporated as part of the law of the
land under Section 2, Article II, of the Philippine Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all other respects;
and
4. Provide just and equitable environmental rehabilitation measures and such other
reliefs as are just and equitable under the premises. 7 (Underscoring supplied.)
Since only the Philippine respondents filed their comment 8 to the petition, petitioners also filed a
motion for early resolution and motion to proceed ex parte against the US respondents. 9
Respondents' Consolidated Comment
In their consolidated comment with opposition to the application for a TEPO and ocular
inspection and production orders, respondents assert that: ( 1) the grounds relied upon for the
issuance of a TEPO or writ of Kalikasan have become fait accompli as the salvage operations on
the USS Guardian were already completed; (2) the petition is defective in form and substance;
(3) the petition improperly raises issues involving the VFA between the Republic of the
Philippines and the United States of America; and ( 4) the determination of the extent of
responsibility of the US Government as regards the damage to the Tubbataha Reefs rests
exdusively with the executive branch.
The Court's Ruling
As a preliminary matter, there is no dispute on the legal standing of petitioners to file the present
petition.
Locus standi is "a right of appearance in a court of justice on a given question." 10 Specifically, it
is "a party's personal and substantial interest in a case where he has sustained or will sustain
direct injury as a result" of the act being challenged, and "calls for more than just a generalized
grievance."11 However, the rule on standing is a procedural matter which this Court has relaxed
for non-traditional plaintiffs like ordinary citizens, taxpayers and legislators when the public
interest so requires, such as when the subject matter of the controversy is of transcendental
importance, of overreaching significance to society, or of paramount public interest. 12
In the landmark case of Oposa v. Factoran, Jr., 13 we recognized the "public right" of citizens to "a
balanced and healthful ecology which, for the first time in our constitutional history, is solemnly
incorporated in the fundamental law." We declared that the right to a balanced and healthful
ecology need not be written in the Constitution for it is assumed, like other civil and polittcal
rights guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational implications.1âwphi1 Such right carries with it
the correlative duty to refrain from impairing the environment. 14
On the novel element in the class suit filed by the petitioners minors in Oposa, this Court ruled
that not only do ordinary citizens have legal standing to sue for the enforcement of
environmental rights, they can do so in representation of their own and future generations. Thus:
Petitioners minors assert that they represent their generation as well as generations yet unborn.
We find no difficulty in ruling that they can, for themselves, for others of their generation and for
the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding
generations can only be based on the concept of intergenerational responsibility insofar as the
right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded,
considers the "rhythm and harmony of nature." Nature means the created world in its entirety.
Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural resources to the end that their exploration,
development and utilization be equitably accessible to the present a:: well as future generations.
Needless to say, every generation has a responsibility to the next to preserve that rhythm and
harmony for the full 1:njoyment of a balanced and healthful ecology. Put a little differently, the
minors' assertion of their right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right for the generations to
come.15 (Emphasis supplied.)
The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and
generations yet unborn, is now enshrined in the Rules which allows the filing of a citizen suit in
environmental cases. The provision on citizen suits in the Rules "collapses the traditional rule on
personal and direct interest, on the principle that humans are stewards of nature." 16
Having settled the issue of locus standi, we shall address the more fundamental question of
whether this Court has jurisdiction over the US respondents who did not submit any pleading or
manifestation in this case.
The immunity of the State from suit, known also as the doctrine of sovereign immunity or non-
suability of the State,17 is expressly provided in Article XVI of the 1987 Constitution which states:
Section 3. The State may not be sued without its consent.
In United States of America v. Judge Guinto,18 we discussed the principle of state immunity from
suit, as follows:
The rule that a state may not be sued without its consent, now · expressed in Article XVI,
Section 3, of the 1987 Constitution, is one of the generally accepted principles of international
law that we have adopted as part of the law of our land under Article II, Section 2. x x x.
Even without such affirmation, we would still be bound by the generally accepted principles of
international law under the doctrine of incorporation. Under this doctrine, as accepted by the
majority of states, such principles are deemed incorporated in the law of every civilized state as
a condition and consequence of its membership in the society of nations. Upon its admission to
such society, the state is automatically obligated to comply with these principles in its relations
with other states.
As applied to the local state, the doctrine of state immunity is based on the justification given by
Justice Holmes that ''there can be no legal right against the authority which makes the law on
which the right depends." [Kawanakoa v. Polybank, 205 U.S. 349] There are other practical
reasons for the enforcement of the doctrine. In the case of the foreign state sought to be
impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par in parem,
non habet imperium. All states are sovereign equals and cannot assert jurisdiction over one
another. A contrary disposition would, in the language of a celebrated case, "unduly vex the
peace of nations." [De Haber v. Queen of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the state without its consent, it is also
applicable to complaints filed against officials of the state for acts allegedly performed by them in
the discharge of their duties. The rule is that if the judgment against such officials will require the
state itself to perform an affirmative act to satisfy the same,. such as the appropriation of the
amount needed to pay the damages awarded against them, the suit must be regarded as
against the state itself although it has not been formally impleaded. [Garcia v. Chief of Staff, 16
SCRA 120] In such a situation, the state may move to dismiss the comp.taint on the ground that
it has been filed without its consent.19 (Emphasis supplied.)
Under the American Constitution, the doctrine is expressed in the Eleventh Amendment which
reads:
The Judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.
In the case of Minucher v. Court of Appeals,20 we further expounded on the immunity of foreign
states from the jurisdiction of local courts, as follows:
The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of
customary international law then closely identified with the personal immunity of a foreign
sovereign from suit and, with the emergence of democratic states, made to attach not just to the
person of the head of state, or his representative, but also distinctly to the state itself in its
sovereign capacity. If the acts giving rise to a suit arc those of a foreign government done by its
foreign agent, although not necessarily a diplomatic personage, but acting in his official capacity,
the complaint could be barred by the immunity of the foreign sovereign from suit without its
consent. Suing a representative of a state is believed to be, in effect, suing the state itself. The
proscription is not accorded for the benefit of an individual but for the State, in whose service he
is, under the maxim -par in parem, non habet imperium -that all states are soverr~ign equals and
cannot assert jurisdiction over one another. The implication, in broad terms, is that if the
judgment against an official would rec 1uire the state itself to perform an affirmative act to satisfy
the award, such as the appropriation of the amount needed to pay the damages decreed against
him, the suit must be regarded as being against the state itself, although it has not been formally
impleaded.21(Emphasis supplied.)
In the same case we also mentioned that in the case of diplomatic immunity, the privilege is not
an immunity from the observance of the law of the territorial sovereign or from ensuing legal
liability; it is, rather, an immunity from the exercise of territorial jurisdiction.22
In United States of America v. Judge Guinto,23 one of the consolidated cases therein involved a
Filipino employed at Clark Air Base who was arrested following a buy-bust operation conducted
by two officers of the US Air Force, and was eventually dismissed from his employment when he
was charged in court for violation of R.A. No. 6425. In a complaint for damages filed by the said
employee against the military officers, the latter moved to dismiss the case on the ground that
the suit was against the US Government which had not given its consent. The RTC denied the
motion but on a petition for certiorari and prohibition filed before this Court, we reversed the RTC
and dismissed the complaint. We held that petitioners US military officers were acting in the
exercise of their official functions when they conducted the buy-bust operation against the
complainant and thereafter testified against him at his trial. It follows that for discharging their
duties as agents of the United States, they cannot be directly impleaded for acts imputable to
their principal, which has not given its consent to be sued.
This traditional rule of State immunity which exempts a State from being sued in the courts of
another State without the former's consent or waiver has evolved into a restrictive doctrine which
distinguishes sovereign and governmental acts (Jure imperil") from private, commercial and
proprietary acts (Jure gestionis). Under the restrictive rule of State immunity, State immunity
extends only to acts Jure imperii. The restrictive application of State immunity is proper only
when the proceedings arise out of commercial transactions of the foreign sovereign, its
commercial activities or economic affairs.24
In Shauf v. Court of Appeals,25 we discussed the limitations of the State immunity principle, thus:
It is a different matter where the public official is made to account in his capacity as such for acts
contrary to law and injurious to the rights of plaintiff. As was clearly set forth by JustiGe Zaldivar
in Director of the Bureau of Telecommunications, et al. vs. Aligaen, etc., et al. : "Inasmuch as the
State authorizes only legal acts by its officers, unauthorized acts of government officials or
officers are not acts of the State, and an action against the officials or officers by one whose
rights have been invaded or violated by such acts, for the protection of his rights, is not a suit
against the State within the rule of immunity of the State from suit. In the same tenor, it has been
said that an action at law or suit in equity against a State officer or the director of a State
department on the ground that, while claiming to act for the State, he violates or invades the
personal and property rights of the plaintiff, under an unconstitutional act or under an assumption
of authority which he does not have, is not a suit against the State within the constitutional
provision that the State may not be sued without its consent." The rationale for this ruling is that
the doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.
xxxx
The aforecited authorities are clear on the matter. They state that the doctrine of immunity from
suit will not apply and may not be invoked where the public official is being sued in his private
and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and
agents of the government is removed the moment they are sued in their individual capacity. This
situation usually arises where the public official acts without authority or in excess of the powers
vested in him. It is a well-settled principle of law that a public official may be liable in his personal
private capacity for whatever damage he may have caused by his act done with malice and in
bad faith, or beyond the scope of his authority or jurisdiction. 26 (Emphasis supplied.) In this case,
the US respondents were sued in their official capacity as commanding officers of the US Navy
who had control and supervision over the USS Guardian and its crew. The alleged act or
omission resulting in the unfortunate grounding of the USS Guardian on the TRNP was
committed while they we:re performing official military duties. Considering that the satisfaction of
a judgment against said officials will require remedial actions and appropriation of funds by the
US government, the suit is deemed to be one against the US itself. The principle of State
immunity therefore bars the exercise of jurisdiction by this Court over the persons of respondents
Swift, Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the
conduct of the US in this case, when its warship entered a restricted area in violation of R.A. No.
10067 and caused damage to the TRNP reef system, brings the matter within the ambit of Article
31 of the United Nations Convention on the Law of the Sea (UNCLOS). He explained that while
historically, warships enjoy sovereign immunity from suit as extensions of their flag State, Art. 31
of the UNCLOS creates an exception to this rule in cases where they fail to comply with the rules
and regulations of the coastal State regarding passage through the latter's internal waters and
the territorial sea.
According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a matter
of long-standing policy the US considers itself bound by customary international rules on the
"traditional uses of the oceans" as codified in UNCLOS, as can be gleaned from previous
declarations by former Presidents Reagan and Clinton, and the US judiciary in the case of
United States v. Royal Caribbean Cruise Lines, Ltd.27
The international law of the sea is generally defined as "a body of treaty rules arid customary
norms governing the uses of the sea, the exploitation of its resources, and the exercise of
jurisdiction over maritime regimes. It is a branch of public international law, regulating the
relations of states with respect to the uses of the oceans." 28 The UNCLOS is a multilateral treaty
which was opened for signature on December 10, 1982 at Montego Bay, Jamaica. It was ratified
by the Philippines in 1984 but came into force on November 16, 1994 upon the submission of
the 60th ratification.
The UNCLOS is a product of international negotiation that seeks to balance State sovereignty
(mare clausum) and the principle of freedom of the high seas (mare liberum). 29 The freedom to
use the world's marine waters is one of the oldest customary principles of international
law.30 The UNCLOS gives to the coastal State sovereign rights in varying degrees over the
different zones of the sea which are: 1) internal waters, 2) territorial sea, 3) contiguous zone, 4)
exclusive economic zone, and 5) the high seas. It also gives coastal States more or less
jurisdiction over foreign vessels depending on where the vessel is located. 31
Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises
sovereignty, subject to the UNCLOS and other rules of international law. Such sovereignty
extends to the air space over the territorial sea as well as to its bed and subsoil. 32
In the case of warships,33 as pointed out by Justice Carpio, they continue to enjoy sovereign
immunity subject to the following exceptions:
Article 30
Non-compliance by warships with the laws and regulations of the coastal State
If any warship does not comply with the laws and regulations of the coastal State concerning
passage through the territorial sea and disregards any request for compliance therewith which is
made to it, the coastal State may require it to leave the territorial sea immediately.
Article 31
Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or damage to the coastal State
resulting from the non-compliance by a warship or other government ship operated for non-
commercial purposes with the laws and regulations of the coastal State concerning passage
through the territorial sea or with the provisions of this Convention or other rules of international
law.
 Article 32
Immunities of warships and other government ships operated for non-commercial purposes
With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this
Convention affects the immunities of warships and other government ships operated for non-
commercial purposes. (Emphasis supplied.) A foreign warship's unauthorized entry into our
internal waters with resulting damage to marine resources is one situation in which the above
provisions may apply. But what if the offending warship is a non-party to the UNCLOS, as in this
case, the US?
An overwhelming majority - over 80% -- of nation states are now members of UNCLOS, but
despite this the US, the world's leading maritime power, has not ratified it.
While the Reagan administration was instrumental in UNCLOS' negotiation and drafting, the U.S.
delegation ultimately voted against and refrained from signing it due to concerns over deep
seabed mining technology transfer provisions contained in Part XI. In a remarkable, multilateral
effort to induce U.S. membership, the bulk of UNCLOS member states cooperated over the
succeeding decade to revise the objection.able provisions. The revisions satisfied the Clinton
administration, which signed the revised Part XI implementing agreement in 1994. In the fall of
1994, President Clinton transmitted UNCLOS and the Part XI implementing agreement to the
Senate requesting its advice and consent. Despite consistent support from President Clinton,
each of his successors, and an ideologically diverse array of stakeholders, the Senate has since
withheld the consent required for the President to internationally bind the United States to
UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the 108th and
110th Congresses, its progress continues to be hamstrung by significant pockets of political
ambivalence over U.S. participation in international institutions. Most recently, 111 th Congress
SFRC Chairman Senator John Kerry included "voting out" UNCLOS for full Senate consideration
among his highest priorities. This did not occur, and no Senate action has been taken on
UNCLOS by the 112th Congress.34
Justice Carpio invited our attention to the policy statement given by President Reagan on March
10, 1983 that the US will "recognize the rights of the other , states in the waters off their coasts,
as reflected in the convention [UNCLOS], so long as the rights and freedom of the United States
and others under international law are recognized by such coastal states", and President
Clinton's reiteration of the US policy "to act in a manner consistent with its [UNCLOS] provisions
relating to traditional uses of the oceans and to encourage other countries to do likewise." Since
Article 31 relates to the "traditional uses of the oceans," and "if under its policy, the US
'recognize[s] the rights of the other states in the waters off their coasts,"' Justice Carpio
postulates that "there is more reason to expect it to recognize the rights of other states in their
internal waters, such as the Sulu Sea in this case."
As to the non-ratification by the US, Justice Carpio emphasizes that "the US' refusal to join the
UN CLOS was centered on its disagreement with UN CLOS' regime of deep seabed mining (Part
XI) which considers the oceans and deep seabed commonly owned by mankind," pointing out
that such "has nothing to do with its [the US'] acceptance of customary international rules on
navigation."
It may be mentioned that even the US Navy Judge Advocate General's Corps publicly endorses
the ratification of the UNCLOS, as shown by the following statement posted on its official
website:
The Convention is in the national interest of the United States because it establishes stable
maritime zones, including a maximum outer limit for territorial seas; codifies innocent passage,
transit passage, and archipelagic sea lanes passage rights; works against "jurisdictiomtl creep"
by preventing coastal nations from expanding their own maritime zones; and reaffirms sovereign
immunity of warships, auxiliaries anJ government aircraft.
xxxx
Economically, accession to the Convention would support our national interests by enhancing
the ability of the US to assert its sovereign rights over the resources of one of the largest
continental shelves in the world. Further, it is the Law of the Sea Convention that first
established the concept of a maritime Exclusive Economic Zone out to 200 nautical miles, and
recognized the rights of coastal states to conserve and manage the natural resources in this
Zone.35
We fully concur with Justice Carpio's view that non-membership in the UNCLOS does not mean
that the US will disregard the rights of the Philippines as a Coastal State over its internal waters
and territorial sea. We thus expect the US to bear "international responsibility" under Art. 31 in
connection with the USS Guardian grounding which adversely affected the Tubbataha reefs.
Indeed, it is difficult to imagine that our long-time ally and trading partner, which has been
actively supporting the country's efforts to preserve our vital marine resources, would shirk from
its obligation to compensate the damage caused by its warship while transiting our internal
waters. Much less can we comprehend a Government exercising leadership in international
affairs, unwilling to comply with the UNCLOS directive for all nations to cooperate in the global
task to protect and preserve the marine environment as provided in Article 197, viz:
Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or
through competent international organizations, in formulating and elaborating international rules,
standards and recommended practices and procedures consistent with this Convention, for the
protection and preservation of the marine environment, taking into account characteristic
regional features.
In fine, the relevance of UNCLOS provisions to the present controversy is beyond dispute.
Although the said treaty upholds the immunity of warships from the jurisdiction of Coastal States
while navigating the.latter's territorial sea, the flag States shall be required to leave the territorial
'::;ea immediately if they flout the laws and regulations of the Coastal State, and they will be
liable for damages caused by their warships or any other government vessel operated for non-
commercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise, they
invoke federal statutes in the US under which agencies of the US have statutorily waived their
immunity to any action. Even under the common law tort claims, petitioners asseverate that the
US respondents are liable for negligence, trespass and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of United States troops and personnel
visiting the Philippines to promote "common security interests" between the US and the
Philippines in the region. It provides for the guidelines to govern such visits of military personnel,
and further defines the rights of the United States and the Philippine government in the matter of
criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment,
materials and supplies.36 The invocation of US federal tort laws and even common law is thus
improper considering that it is the VF A which governs disputes involving US military ships and
crew navigating Philippine waters in pursuance of the objectives of the agreement.
As it is, the waiver of State immunity under the VF A pertains only to criminal jurisdiction and not
to special civil actions such as the present petition for issuance of a writ of Kalikasan. In fact, it
can be inferred from Section 17, Rule 7 of the Rules that a criminal case against a person
charged with a violation of an environmental law is to be filed separately:
SEC. 17. Institution of separate actions.-The filing of a petition for the issuance of the writ of
kalikasan shall not preclude the filing of separate civil, criminal or administrative actions.
In any case, it is our considered view that a ruling on the application or non-application of
criminal jurisdiction provisions of the VF A to US personnel who may be found responsible for
the grounding of the USS Guardian, would be premature and beyond the province of a petition
for a writ of Kalikasan. We also find it unnecessary at this point to determine whether such
waiver of State immunity is indeed absolute. In the same vein, we cannot grant damages which
have resulted from the violation of environmental laws. The Rules allows the recovery of
damages, including the collection of administrative fines under R.A. No. 10067, in a separate
civil suit or that deemed instituted with the criminal action charging the same violation of an
environmental law.37
Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for issuance of a
writ of Kalikasan, to wit:
SEC. 15. Judgment.-Within sixty (60) days from the time the petition is submitted for decision,
the court shall render judgment granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from committing acts or
neglecting the performance of a duty in violation of environmental laws resulting in
environmental destruction or damage;
(b) Directing the respondent public official, govemment agency, private person or entity
to protect, preserve, rehabilitate or restore the environment;
(c) Directing the respondent public official, government agency, private person or entity
to monitor strict compliance with the decision and orders of the court;
(d) Directing the respondent public official, government agency, or private person or
entity to make periodic reports on the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the people to a balanced and healthful
ecology or to the protection, preservation, rehabilitation or restoration of the
environment, except the award of damages to individual petitioners. (Emphasis
supplied.)
We agree with respondents (Philippine officials) in asserting that this petition has become moot
in the sense that the salvage operation sought to be enjoined or restrained had already been
accomplished when petitioners sought recourse from this Court. But insofar as the directives to
Philippine respondents to protect and rehabilitate the coral reef stn icture and marine habitat
adversely affected by the grounding incident are concerned, petitioners are entitled to these
reliefs notwithstanding the completion of the removal of the USS Guardian from the coral reef.
However, we are mindful of the fact that the US and Philippine governments both expressed
readiness to negotiate and discuss the matter of compensation for the damage caused by the
USS Guardian. The US Embassy has also declared it is closely coordinating with local scientists
and experts in assessing the extent of the damage and appropriate methods of rehabilitation.
Exploring avenues for settlement of environmental cases is not proscribed by the Rules. As can
be gleaned from the following provisions, mediation and settlement are available for the
consideration of the parties, and which dispute resolution methods are encouraged by the court,
to wit:
RULE3
xxxx
SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the court shall inquire from
the parties if they have settled the dispute; otherwise, the court shall immediately refer the
parties or their counsel, if authorized by their clients, to the Philippine Mediation Center (PMC)
unit for purposes of mediation. If not available, the court shall refer the case to the clerk of court
or legal researcher for mediation.
Mediation must be conducted within a non-extendible period of thirty (30) days from receipt of
notice of referral to mediation.
The mediation report must be submitted within ten (10) days from the expiration of the 30-day
period.
SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the continuance of the
pre-trial. Before the scheduled date of continuance, the court may refer the case to the branch
clerk of court for a preliminary conference for the following purposes:
(a) To assist the parties in reaching a settlement;
xxxx
SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties and their counsels
under oath, and they shall remain under oath in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute.
The judge may issue a consent decree approving the agreement between the parties in
accordance with law, morals, public order and public policy to protect the right of the people to a
balanced and healthful ecology.
xxxx
SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to agree to compromise
or settle in accordance with law at any stage of the proceedings before rendition of judgment.
(Underscoring supplied.)
The Court takes judicial notice of a similar incident in 2009 when a guided-missile cruiser, the
USS Port Royal, ran aground about half a mile off the Honolulu Airport Reef Runway and
remained stuck for four days. After spending $6.5 million restoring the coral reef, the US
government was reported to have paid the State of Hawaii $8.5 million in settlement over coral
reef damage caused by the grounding.38
To underscore that the US government is prepared to pay appropriate compensation for the
damage caused by the USS Guardian grounding, the US Embassy in the Philippines has
announced the formation of a US interdisciplinary scientific team which will "initiate discussions
with the Government of the Philippines to review coral reef rehabilitation options in Tubbataha,
based on assessments by Philippine-based marine scientists." The US team intends to "help
assess damage and remediation options, in coordination with the Tubbataha Management
Office, appropriate Philippine government entities, non-governmental organizations, and
scientific experts from Philippine universities."39
A rehabilitation or restoration program to be implemented at the cost of the violator is also a
major relief that may be obtained under a judgment rendered in a citizens' suit under the Rules,
viz:
RULES
SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the plaintiff proper
reliefs which shall include the protection, preservation or rehabilitation of the environment and
the payment of attorney's fees, costs of suit and other litigation expenses. It may also require the
violator to submit a program of rehabilitation or restoration of the environment, the costs of which
shall be borne by the violator, or to contribute to a special trust fund for that purpose subject to
the control of the court.1âwphi1
In the light of the foregoing, the Court defers to the Executive Branch on the matter of
compensation and rehabilitation measures through diplomatic channels. Resolution of these
issues impinges on our relations with another State in the context of common security interests
under the VFA. It is settled that "[t]he conduct of the foreign relations of our government is
committed by the Constitution to the executive and legislative-"the political" --departments of the
government, and the propriety of what may be done in the exercise of this political power is not
subject to judicial inquiry or decision."40
On the other hand, we cannot grant the additional reliefs prayed for in the petition to order a
review of the VFA and to nullify certain immunity provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, 41 the VFA was duly
concurred in by the Philippine Senate and has been recognized as a treaty by the United States
as attested and certified by the duly authorized representative of the United States government.
The VF A being a valid and binding agreement, the parties are required as a matter of
international law to abide by its terms and provisions. 42 The present petition under the Rules is
not the proper remedy to assail the constitutionality of its provisions. WHEREFORE, the petition
for the issuance of the privilege of the Writ of Kalikasan is hereby DENIED.
No pronouncement as to costs.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice
G.R. Nos. 171947-48 February 15, 2011
METROPOLITAN MANILA DEVELOPMENT AUTHORITY, DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES, DEPARTMENT OF EDUCATION, CULTURE
AND SPORTS,1 DEPARTMENT OF HEALTH, DEPARTMENT OF AGRICULTURE,
DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, DEPARTMENT OF BUDGET AND
MANAGEMENT, PHILIPPINE COAST GUARD, PHILIPPINE NATIONAL POLICE MARITIME
GROUP, and DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, Petitioners,
vs.
CONCERNED RESIDENTS OF MANILA BAY, represented and joined by DIVINA V. ILAS,
SABINIANO ALBARRACIN, MANUEL SANTOS, JR., DINAH DELA PEÑA, PAUL DENNIS
QUINTERO, MA. VICTORIA LLENOS, DONNA CALOZA, FATIMA QUITAIN, VENICE
SEGARRA, FRITZIE TANGKIA, SARAH JOELLE LINTAG, HANNIBAL AUGUSTUS BOBIS,
FELIMON SANTIAGUEL, and JAIME AGUSTIN R. OPOSA, Respondents.
RESOLUTION
VELASCO, JR., J.:
On December 18, 2008, this Court rendered a Decision in G.R. Nos. 171947-48 ordering
petitioners to clean up, rehabilitate and preserve Manila Bay in their different capacities. The
fallo reads:
WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA in CA-G.R.
CV No. 76528 and SP No. 74944 and the September 13, 2002 Decision of the RTC in Civil Case
No. 1851-99 are AFFIRMED but with MODIFICATIONS in view of subsequent developments or
supervening events in the case. The fallo of the RTC Decision shall now read:
WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-government
agencies to clean up, rehabilitate, and preserve Manila Bay, and restore and maintain its waters
to SB level (Class B sea waters per Water Classification Tables under DENR Administrative
Order No. 34 [1990]) to make them fit for swimming, skin-diving, and other forms of contact
recreation.
In particular:
(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency
responsible for the conservation, management, development, and proper use of the
country’s environment and natural resources, and Sec. 19 of RA 9275, designating the
DENR as the primary government agency responsible for its enforcement and
implementation, the DENR is directed to fully implement its Operational Plan for the
Manila Bay Coastal Strategy for the rehabilitation, restoration, and conservation of the
Manila Bay at the earliest possible time. It is ordered to call regular coordination
meetings with concerned government departments and agencies to ensure the
successful implementation of the aforesaid plan of action in accordance with its indicated
completion schedules.
(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec.
25 of the Local Government Code of 1991, the DILG, in exercising the President’s power
of general supervision and its duty to promulgate guidelines in establishing waste
management programs under Sec. 43 of the Philippine Environment Code (PD 1152),
shall direct all LGUs in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga, and
Bataan to inspect all factories, commercial establishments, and private homes along the
banks of the major river systems in their respective areas of jurisdiction, such as but not
limited to the Pasig-Marikina-San Juan Rivers, the NCR (Parañaque-Zapote, Las Piñas)
Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-
Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the
Laguna De Bay, and other minor rivers and waterways that eventually discharge water
into the Manila Bay; and the lands abutting the bay, to determine whether they have
wastewater treatment facilities or hygienic septic tanks as prescribed by existing laws,
ordinances, and rules and regulations. If none be found, these LGUs shall be ordered to
require non-complying establishments and homes to set up said facilities or septic tanks
within a reasonable time to prevent industrial wastes, sewage water, and human wastes
from flowing into these rivers, waterways, esteros, and the Manila Bay, under pain of
closure or imposition of fines and other sanctions.
(3) As mandated by Sec. 8 of RA 9275, the MWSS is directed to provide, install,
operate, and maintain the necessary adequate waste water treatment facilities in Metro
Manila, Rizal, and Cavite where needed at the earliest possible time.
(4) Pursuant to RA 9275, the LWUA, through the local water districts and in coordination
with the DENR, is ordered to provide, install, operate, and maintain sewerage and
sanitation facilities and the efficient and safe collection, treatment, and disposal of
sewage in the provinces of Laguna, Cavite, Bulacan, Pampanga, and Bataan where
needed at the earliest possible time.
(5) Pursuant to Sec. 65 of RA 8550, the DA, through the BFAR, is ordered to improve
and restore the marine life of the Manila Bay. It is also directed to assist the LGUs in
Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga, and Bataan in developing,
using recognized methods, the fisheries and aquatic resources in the Manila Bay.
(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group, in
accordance with Sec. 124 of RA 8550, in coordination with each other, shall apprehend
violators of PD 979, RA 8550, and other existing laws and regulations designed to
prevent marine pollution in the Manila Bay.
(7) Pursuant to Secs. 2 and 6-c of EO 513 and the International Convention for the
Prevention of Pollution from Ships, the PPA is ordered to immediately adopt such
measures to prevent the discharge and dumping of solid and liquid wastes and other
ship-generated wastes into the Manila Bay waters from vessels docked at ports and
apprehend the violators.
(8) The MMDA, as the lead agency and implementor of programs and projects for flood
control projects and drainage services in Metro Manila, in coordination with the DPWH,
DILG, affected LGUs, PNP Maritime Group, Housing and Urban Development
Coordinating Council (HUDCC), and other agencies, shall dismantle and remove all
structures, constructions, and other encroachments established or built in violation of RA
7279, and other applicable laws along the Pasig-Marikina-San Juan Rivers, the NCR
 (Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros
Rivers, and connecting waterways and esteros in Metro Manila. The DPWH, as the
principal implementor of programs and projects for flood control services in the rest of
the country more particularly in Bulacan, Bataan, Pampanga, Cavite, and Laguna, in
coordination with the DILG, affected LGUs, PNP Maritime Group, HUDCC, and other
concerned government agencies, shall remove and demolish all structures,
constructions, and other encroachments built in breach of RA 7279 and other applicable
laws along the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan)
River, the Imus (Cavite) River, the Laguna De Bay, and other rivers, connecting
waterways, and esteros that discharge wastewater into the Manila Bay.
In addition, the MMDA is ordered to establish, operate, and maintain a sanitary landfill,
as prescribed by RA 9003, within a period of one (1) year from finality of this Decision.
On matters within its territorial jurisdiction and in connection with the discharge of its
duties on the maintenance of sanitary landfills and like undertakings, it is also ordered to
cause the apprehension and filing of the appropriate criminal cases against violators of
the respective penal provisions of RA 9003, Sec. 27 of RA 9275 (the Clean Water Act),
and other existing laws on pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275, within one
(1) year from finality of this Decision, determine if all licensed septic and sludge
companies have the proper facilities for the treatment and disposal of fecal sludge and
sewage coming from septic tanks. The DOH shall give the companies, if found to be
non-complying, a reasonable time within which to set up the necessary facilities under
pain of cancellation of its environmental sanitation clearance.
(10) Pursuant to Sec. 53 of PD 1152, Sec. 118 of RA 8550, and Sec. 56 of RA 9003, the
DepEd shall integrate lessons on pollution prevention, waste management,
environmental protection, and like subjects in the school curricula of all levels to
inculcate in the minds and hearts of students and, through them, their parents and
friends, the importance of their duty toward achieving and maintaining a balanced and
healthful ecosystem in the Manila Bay and the entire Philippine archipelago.
(11) The DBM shall consider incorporating an adequate budget in the General
Appropriations Act of 2010 and succeeding years to cover the expenses relating to the
cleanup, restoration, and preservation of the water quality of the Manila Bay, in line with
the country’s development objective to attain economic growth in a manner consistent
with the protection, preservation, and revival of our marine waters.
(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM,
PCG, PNP Maritime Group, DILG, and also of MWSS, LWUA, and PPA, in line with the
principle of "continuing mandamus," shall, from finality of this Decision, each submit to
the Court a quarterly progressive report of the activities undertaken in accordance with
this Decision.
SO ORDERED.
The government agencies did not file any motion for reconsideration and the Decision became
final in January 2009.
The case is now in the execution phase of the final and executory December 18, 2008 Decision.
The Manila Bay Advisory Committee was created to receive and evaluate the quarterly
progressive reports on the activities undertaken by the agencies in accordance with said
decision and to monitor the execution phase.
In the absence of specific completion periods, the Committee recommended that time frames be
set for the agencies to perform their assigned tasks. This may be viewed as an encroachment
over the powers and functions of the Executive Branch headed by the President of the
Philippines.
This view is misplaced.
The issuance of subsequent resolutions by the Court is simply an exercise of judicial power
under Art. VIII of the Constitution, because the execution of the Decision is but an integral part of
the adjudicative function of the Court. None of the agencies ever questioned the power of the
Court to implement the December 18, 2008 Decision nor has any of them raised the alleged
encroachment by the Court over executive functions.
While additional activities are required of the agencies like submission of plans of action, data or
status reports, these directives are but part and parcel of the execution stage of a final decision
under Rule 39 of the Rules of Court. Section 47 of Rule 39 reads:
Section 47. Effect of judgments or final orders.––The effect of a judgment or final order rendered
by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be
as follows:
xxxx
(c) In any other litigation between the same parties of their successors in interest, that only is
deemed to have been adjudged in a former judgment or final order which appears upon its face
to have been so adjudged, or which was actually and necessarily included therein or necessary
thereto. (Emphasis supplied.)
It is clear that the final judgment includes not only what appears upon its face to have been so
adjudged but also those matters "actually and necessarily included therein or necessary thereto."
Certainly, any activity that is needed to fully implement a final judgment is necessarily
encompassed by said judgment.
Moreover, the submission of periodic reports is sanctioned by Secs. 7 and 8, Rule 8 of the Rules
of Procedure for Environmental cases:
Sec. 7. Judgment.––If warranted, the court shall grant the privilege of the writ of continuing
mandamus requiring respondent to perform an act or series of acts until the judgment is fully
satisfied and to grant such other reliefs as may be warranted resulting from the wrongful or
illegal acts of the respondent. The court shall require the respondent to submit periodic reports
detailing the progress and execution of the judgment, and the court may, by itself or through a
commissioner or the appropriate government agency, evaluate and monitor compliance. The
petitioner may submit its comments or observations on the execution of the judgment.
Sec. 8. Return of the writ.––The periodic reports submitted by the respondent detailing
compliance with the judgment shall be contained in partial returns of the writ. Upon full
satisfaction of the judgment, a final return of the writ shall be made to the court by the
respondent. If the court finds that the judgment has been fully implemented, the satisfaction of
judgment shall be entered in the court docket. (Emphasis supplied.)
With the final and executory judgment in MMDA, the writ of continuing mandamus issued in
MMDA means that until petitioner-agencies have shown full compliance with the Court’s orders,
the Court exercises continuing jurisdiction over them until full execution of the judgment.
There being no encroachment over executive functions to speak of, We shall now proceed to the
recommendation of the Manila Bay Advisory Committee.
Several problems were encountered by the Manila Bay Advisory Committee. 2 An evaluation of
the quarterly progressive reports has shown that (1) there are voluminous quarterly progressive
reports that are being submitted; (2) petitioner-agencies do not have a uniform manner of
reporting their cleanup, rehabilitation and preservation activities; (3) as yet no definite deadlines
have been set by petitioner DENR as to petitioner-agencies’ timeframe for their respective
duties; (4) as of June 2010 there has been a change in leadership in both the national and local
levels; and (5) some agencies have encountered difficulties in complying with the Court’s
directives.
In order to implement the afore-quoted Decision, certain directives have to be issued by the
Court to address the said concerns.
Acting on the recommendation of the Manila Bay Advisory Committee, the Court hereby resolves
to ORDER the following:
(1) The Department of Environment and Natural Resources (DENR), as lead agency in the
Philippine Clean Water Act of 2004, shall submit to the Court on or before June 30, 2011 the
updated Operational Plan for the Manila Bay Coastal Strategy.
The DENR is ordered to submit summarized data on the overall quality of Manila Bay waters for
all four quarters of 2010 on or before June 30, 2011.
The DENR is further ordered to submit the names and addresses of persons and companies in
Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga and Bataan that generate toxic and
hazardous waste on or before September 30, 2011.
(2) On or before June 30, 2011, the Department of the Interior and Local Government (DILG)
shall order the Mayors of all cities in Metro Manila; the Governors of Rizal, Laguna, Cavite,
Bulacan, Pampanga and Bataan; and the Mayors of all the cities and towns in said provinces to
inspect all factories, commercial establishments and private homes along the banks of the major
river systems––such as but not limited to the Pasig-Marikina-San Juan Rivers, the National
Capital Region (Paranaque-Zapote, Las Pinas) Rivers, the Navotas-Malabon-Tullahan-
Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan)
River, the Imus (Cavite) River, and the Laguna De Bay––and other minor rivers and waterways
within their jurisdiction that eventually discharge water into the Manila Bay and the lands abutting
it, to determine if they have wastewater treatment facilities and/or hygienic septic tanks, as
prescribed by existing laws, ordinances, rules and regulations. Said local government unit (LGU)
officials are given up to September 30, 2011 to finish the inspection of said establishments and
houses.
In case of non-compliance, the LGU officials shall take appropriate action to ensure compliance
by non-complying factories, commercial establishments and private homes with said law, rules
and regulations requiring the construction or installment of wastewater treatment facilities or
hygienic septic tanks.
The aforementioned governors and mayors shall submit to the DILG on or before December 31,
2011 their respective compliance reports which will contain the names and addresses or offices
of the owners of all the non-complying factories, commercial establishments and private homes,
copy furnished the concerned environmental agency, be it the local DENR office or the Laguna
Lake Development Authority.
The DILG is required to submit a five-year plan of action that will contain measures intended to
ensure compliance of all non-complying factories, commercial establishments, and private
homes.
On or before June 30, 2011, the DILG and the mayors of all cities in Metro Manila shall consider
providing land for the wastewater facilities of the Metropolitan Waterworks and Sewerage
System (MWSS) or its concessionaires (Maynilad and Manila Water, Inc.) within their respective
jurisdictions.
(3) The MWSS shall submit to the Court on or before June 30, 2011 the list of areas in Metro
Manila, Rizal and Cavite that do not have the necessary wastewater treatment facilities. Within
the same period, the concessionaires of the MWSS shall submit their plans and projects for the
construction of wastewater treatment facilities in all the aforesaid areas and the completion
period for said facilities, which shall not go beyond 2037.
On or before June 30, 2011, the MWSS is further required to have its two concessionaires
submit a report on the amount collected as sewerage fees in their respective areas of operation
as of December 31, 2010.
(4) The Local Water Utilities Administration is ordered to submit on or before September 30,
2011 its plan to provide, install, operate and maintain sewerage and sanitation facilities in said
cities and towns and the completion period for said works, which shall be fully implemented by
December 31, 2020.
(5) The Department of Agriculture (DA), through the Bureau of Fisheries and Aquatic Resources,
shall submit to the Court on or before June 30, 2011 a report on areas in Manila Bay where
marine life has to be restored or improved and the assistance it has extended to the LGUs in
Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga and Bataan in developing the fisheries
and aquatic resources in Manila Bay. The report shall contain monitoring data on the marine life
in said areas. Within the same period, it shall submit its five-year plan to restore and improve the
marine life in Manila Bay, its future activities to assist the aforementioned LGUs for that purpose,
and the completion period for said undertakings.
The DA shall submit to the Court on or before September 30, 2011 the baseline data as of
September 30, 2010 on the pollution loading into the Manila Bay system from agricultural and
livestock sources.
(6) The Philippine Ports Authority (PPA) shall incorporate in its quarterly reports the list of
violators it has apprehended and the status of their cases. The PPA is further ordered to include
in its report the names, make and capacity of the ships that dock in PPA ports. The PPA shall
submit to the Court on or before June 30, 2011 the measures it intends to undertake to
implement its compliance with paragraph 7 of the dispositive portion of the MMDA Decision and
the completion dates of such measures.
The PPA should include in its report the activities of its concessionaire that collects and disposes
of the solid and liquid wastes and other ship-generated wastes, which shall state the names,
make and capacity of the ships serviced by it since August 2003 up to the present date, the
dates the ships docked at PPA ports, the number of days the ship was at sea with the
corresponding number of passengers and crew per trip, the volume of solid, liquid and other
wastes collected from said ships, the treatment undertaken and the disposal site for said wastes.
(7) The Philippine National Police (PNP) Maritime Group shall submit on or before June 30, 2011
its five-year plan of action on the measures and activities it intends to undertake to apprehend
the violators of Republic Act No. (RA) 8550 or the Philippine Fisheries Code of 1998 and other
pertinent laws, ordinances and regulations to prevent marine pollution in Manila Bay and to
ensure the successful prosecution of violators.
The Philippine Coast Guard shall likewise submit on or before June 30, 2011 its five-year plan of
action on the measures and activities they intend to undertake to apprehend the violators of
Presidential Decree No. 979 or the Marine Pollution Decree of 1976 and RA 9993 or the
Philippine Coast Guard Law of 2009 and other pertinent laws and regulations to prevent marine
pollution in Manila Bay and to ensure the successful prosecution of violators.
(8) The Metropolitan Manila Development Authority (MMDA) shall submit to the Court on or
before June 30, 2011 the names and addresses of the informal settlers in Metro Manila who, as
of December 31, 2010, own and occupy houses, structures, constructions and other
encroachments established or built along the Pasig-Marikina-San Juan Rivers, the NCR
(Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and
connecting waterways and esteros, in violation of RA 7279 and other applicable laws. On or
before June 30, 2011, the MMDA shall submit its plan for the removal of said informal settlers
and the demolition of the aforesaid houses, structures, constructions and encroachments, as
well as the completion dates for said activities, which shall be fully implemented not later than
December 31, 2015.
The MMDA is ordered to submit a status report, within thirty (30) days from receipt of this
Resolution, on the establishment of a sanitary landfill facility for Metro Manila in compliance with
the standards under RA 9003 or the Ecological Solid Waste Management Act.
On or before June 30, 2011, the MMDA shall submit a report of the location of open and
controlled dumps in Metro Manila whose operations are illegal after February 21,
2006,3 pursuant to Secs. 36 and 37 of RA 9003, and its plan for the closure of these open and
controlled dumps to be accomplished not later than December 31, 2012. Also, on or before June
30, 2011, the DENR Secretary, as Chairperson of the National Solid Waste Management
Commission (NSWMC), shall submit a report on the location of all open and controlled dumps in
Rizal, Cavite, Laguna, Bulacan, Pampanga and Bataan.
On or before June 30, 2011, the DENR Secretary, in his capacity as NSWMC Chairperson, shall
submit a report on whether or not the following landfills strictly comply with Secs. 41 and 42 of
RA 9003 on the establishment and operation of sanitary landfills, to wit:
National Capital Region
1. Navotas SLF (PhilEco), Brgy. Tanza (New Site), Navotas City
2. Payatas Controlled Dumpsite, Barangay Payatas, Quezon City
Region III
3. Sitio Coral, Brgy. Matictic, Norzagaray, Bulacan
4. Sitio Tiakad, Brgy. San Mateo, Norzagaray, Bulacan
5. Brgy. Minuyan, San Jose del Monte City, Bulacan
6. Brgy. Mapalad, Santa Rosa, Nueva Ecija
7. Sub-zone Kalangitan, Clark Capas, Tarlac Special Economic Zone
Region IV-A
8. Kalayaan (Longos), Laguna
 9. Brgy. Sto. Nino, San Pablo City, Laguna (10) The Department of Education (DepEd) shall submit to the Court on or before May 31, 2011
a report on the specific subjects on pollution prevention, waste management, environmental
10. Brgy. San Antonio (Pilotage SLF), San Pedro, Laguna protection, environmental laws and the like that it has integrated into the school curricula in all
levels for the school year 2011-2012.
11. Morong, Rizal
On or before June 30, 2011, the DepEd shall also submit its plan of action to ensure compliance
of all the schools under its supervision with respect to the integration of the aforementioned
12. Sitio Lukutan, Brgy. San Isidro, Rodriguez (Montalban), Rizal (ISWIMS)
subjects in the school curricula which shall be fully implemented by June 30, 2012.
13. Brgy. Pintong Bukawe, San Mateo, Rizal (SMSLFDC)
(11) All the agencies are required to submit their quarterly reports electronically using the forms
below. The agencies may add other key performance indicators that they have identified.
On or before June 30, 2011, the MMDA and the seventeen (17) LGUs in Metro Manila are
ordered to jointly submit a report on the average amount of garbage collected monthly per
SO ORDERED.
district in all the cities in Metro Manila from January 2009 up to December 31, 2010 vis-à-vis the
average amount of garbage disposed monthly in landfills and dumpsites. In its quarterly report
for the last quarter of 2010 and thereafter, MMDA shall report on the apprehensions for PRESBITERO J. VELASCO, JR.
violations of the penal provisions of RA 9003, RA 9275 and other laws on pollution for the said Associate Justice
period.
WE CONCUR:
On or before June 30, 2011, the DPWH and the LGUs in Rizal, Laguna, Cavite, Bulacan,
Pampanga, and Bataan shall submit the names and addresses of the informal settlers in their RENATO C. CORONA
respective areas who, as of September 30, 2010, own or occupy houses, structures, Chief Justice
constructions, and other encroachments built along the Meycauayan-Marilao-Obando (Bulacan)
Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna de Bay, and other rivers,
connecting waterways and esteros that discharge wastewater into the Manila Bay, in breach of See dissenting opinion I join the dissent of J. Carpio
RA 7279 and other applicable laws. On or before June 30, 2011, the DPWH and the aforesaid ANTONIO T. CARPIO CONCHITA CARPIO MORALES
LGUs shall jointly submit their plan for the removal of said informal settlers and the demolition of Associate Justice Associate Justice
the aforesaid structures, constructions and encroachments, as well as the completion dates for
such activities which shall be implemented not later than December 31, 2012. TERESITA J. LEONARDO-DE
ANTONIO EDUARDO B. NACHURA
CASTRO
(9) The Department of Health (DOH) shall submit to the Court on or before June 30, 2011 the Associate Justice
Associate Justice
names and addresses of the owners of septic and sludge companies including those that do not
have the proper facilities for the treatment and disposal of fecal sludge and sewage coming from
septic tanks. I join the dissent of J. Carpio
DIOSDADO M. PERALTA
ARTURO D. BRION
Associate Justice
Associate Justice
The DOH shall implement rules and regulations on Environmental Sanitation Clearances and
shall require companies to procure a license to operate from the DOH.
LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO
The DOH and DENR-Environmental Management Bureau shall develop a toxic and hazardous Associate Justice Associate Justice
waste management system by June 30, 2011 which will implement segregation of
hospital/toxic/hazardous wastes and prevent mixing with municipal solid waste. ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.
Associate Justice Associate Justice
On or before June 30, 2011, the DOH shall submit a plan of action to ensure that the said
companies have proper disposal facilities and the completion dates of compliance.1avvphi1 JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA
Associate Justice Associate Justice
 See dissenting opinion "RA 9003 took effect on February 15, 2001 and the adverted grace period of five (5)
MARIA LOURDES P. A. SERENO years [in Sec. 37 of RA 9003] which ended on February 21, 2006 has come and gone,
Associate Justice but no single sanitary landfill which strictly complies with the prescribed standards under
RA 9003 has yet been set up." (Emphasis supplied.)
CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions The Lawphil Project - Arellano Law Foundation
in the above Resolution had been reached in consultation before the case was assigned to the
writer of the opinion of the Court.

RENATO C. CORONA DISSENTING OPINION

Chief Justice
CARPIO, J.:

The Resolution contains the proposed directives of the Manila Bay Advisory Committee to the
concerned agencies1 and local government units (LGUs) for the implementation of the 18
Footnotes December 2008 Decision of the Court in this case.

1
Now the Department of Education (DepEd). Among the directives stated in the Resolution is for the affected agencies to submit to the Court
their plans of action and status reports, thus:
2
On February 10, 2009, the Court En Banc approved a resolution creating an Advisory
Committee "that will verify the reports of the government agencies tasked to clean up the The Department of Environment and Natural Resources (DENR), as lead agency in
Manila Bay." It is composed of two members of the Court and three technical experts: the Philippine Clean Water Act of 2004, shall submit to the Court on or before June 30, 2011 the
updated Operational Plan for the Manila Bay Coastal Strategy (OPMBCS);2
Hon. Presbitero J. Velasco, Jr.
Chairperson and ponente of MMDA vs. Concerned Residents of Manila The DILG is required to submit a five-year plan of action that will contain measures
intended to ensure compliance of all non-complying factories, commercial
establishments, and private homes;3
Hon. Jose Midas P. Marquez
Court Administrator
Vice-Chairperson The MWSS shall submit to the Court on or before June 30, 2011 the list of areas in Metro
Manila, Rizal and Cavite that do not have the necessary wastewater treatment facilities. Within
the same period, the concessionaires of the MWSS shall submit their plans and projects
Members/Technical Experts:
for the construction of wastewater treatment facilities in all the aforesaid areas and the
completion period for said facilities, which shall not go beyond 2020;4
Dr. Gil S. Jacinto
Former Director, UP Marine Science Institute
The Local Water Utilities Administration (LWUA) shall submit to the Court on or before June 30,
2011 the list of cities and towns in Laguna, Cavite, Bulacan, Pampanga, and Bataan that do not
Dr. Elisea G. Gozun have sewerage and sanitation facilities. LWUA is further ordered to submit on or before
Chair of Earth Day Network and Former DENR Secretary September 30, 2011 its plan to provide, install, operate and maintain sewerage and
sanitation facilities in said cities and towns and the completion period for said works
Dr. Antonio G.M. La Viña which shall be fully implemented by December 31, 2020;5
Former DENR Undersecretary
Dean of the Ateneo School of Government The Department of Agriculture (DA), through the Bureau of Fisheries and Aquatic Resources
(BFAR), shall submit to the Court on or before June 30, 2011 a report on areas in Manila Bay
3
Our Decision in Metropolitan Manila Development Authority v. Concerned Residents of where marine life has to be restored or improved and the assistance it has extended to the LGUs
Manila Bay, G.R. Nos. 171947-48, December 18, 2008, 574 SCRA 661, 690, states:
in Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga and Bataan in developing the
fisheries and aquatic resources in Manila Bay. The report shall contain monitoring data on the
marine life in said areas. Within the same period, it shall submit its five-year plan to restore
and improve the marine life in Manila Bay, its future activities to assist the
aforementioned LGUs for that purpose, and the completion period for said undertakings;6
The Philippine Ports Authority (PPA) shall incorporate in its quarterly reports the list of violators it
has apprehended and the status of their cases. The PPA is further ordered to include in its report
the names, make and capacity of the ships that dock in PPA ports. The PPA shall submit to
the Court on or before June 30, 2011 the measures it intends to undertake to implement
its compliance with paragraph 7 of the dispositive portion of the MMDA Decision and the
completion dates of such measures;7
The Philippine National Police (PNP) – Maritime Group shall submit on or before June 30,
2011 its five-year plan of action on the measures and activities they intend to undertake to
apprehend the violators of RA 8550 or the Philippine Fisheries Code of 1998 and other
pertinent laws, ordinances and regulations to prevent marine pollution in Manila Bay and to
ensure the successful prosecution of violators;8
The Philippine Coast Guard (PCG) shall likewise submit on or before June 30, 2011 its five-
year plan of action on the measures and activities they intend to undertake to apprehend
the violators of Presidential Decree (PD) 979 or the Marine Pollution Decree of 1976 and RA
9993 or the Philippine Coast Guard Law of 2009 and other pertinent laws and regulations to
prevent marine pollution in Manila Bay and to ensure the successful prosecution of violators; 9
The Metropolitan Manila Development Authority (MMDA) shall submit to the Court on or
before June 30, 2011 the names and addresses of the informal settlers in Metro Manila
who own and occupy houses, structures, constructions and other encroachments
established or built in violation of RA 7279 and other applicable laws along the Pasig-
Marikina-San Juan Rivers, the NCR (Parañaque-Zapote, Las Piñas) Rivers, the Navotas-
Malabon-Tullahan-Tenejeros Rivers, and connecting waterways and esteros as of December 31,
2010. On or before the same date, the MMDA shall submit its plan for the removal of said
informal settlers and the demolition of the aforesaid houses, structures, constructions
and encroachments, as well as the completion dates for said activities which shall be fully
implemented not later than December 31, 2015;10
[T]he DPWH and the aforesaid LGUs shall jointly submit its plan for the removal of said
informal settlers and the demolition of the aforesaid structures, constructions and
encroachments, as well as the completion dates for such activities which shall be
implemented not later than December 31, 2012;11
[T]he DOH shall submit a plan of action to ensure that the said companies have proper
disposal facilities and the completion dates of compliance;12
On or before June 30, 2011, the DepEd shall also submit its plan of action to ensure
compliance of all the schools under its supervision with respect to the integration of the
aforementioned subjects in the school curricula which shall be fully implemented by June
30, 2012;13 (Emphasis supplied)
What is the purpose of requiring these agencies to submit to the Court their plans of action and
status reports? Are these plans to be approved or disapproved by the Court? The Court does not
have the competence or even the jurisdiction to evaluate these plans which involves technical
matters14 best left to the expertise of the concerned agencies.
The Resolution also requires that the concerned agencies shall "submit [to the Court] their
quarterly reports electronically x x x."15 Thus, the directive for the concerned agencies to
submit to the Court their quarterly reports is a continuing obligation which extends even beyond
the year 2011.16
The Court is now arrogating unto itself two constitutional powers exclusively vested in the
President. First, the Constitution provides that "executive power shall be vested in the
President."17 This means that neither the Judiciary nor the Legislature can exercise executive
power for executive power is the exclusive domain of the President. Second, the Constitution
provides that the President shall "have control of all the executive departments, bureaus,
and offices."18 Neither the Judiciary nor the Legislature can exercise control or even supervision
over executive departments, bureaus, and offices.
Clearly, the Resolution constitutes an intrusion of the Judiciary into the exclusive domain of the
Executive. In the guise of implementing the 18 December 2008 Decision through the Resolution,
the Court is in effect supervising and directing the different government agencies and LGUs
concerned.
In Noblejas v. Teehankee,19 it was held that the Court cannot be required to exercise
administrative functions such as supervision over executive officials. The issue in that case was
whether the Commissioner of Land Registration may only be investigated by the Supreme Court,
in view of the conferment upon him by law (Republic Act No. 1151) of the rank and privileges of
a Judge of the Court of First Instance. The Court, answering in the negative, stated:
To adopt petitioner's theory, therefore, would mean placing upon the Supreme Court the duty of
investigating and disciplining all these officials whose functions are plainly executive and the
consequent curtailment by mere implication from the Legislative grant, of the President's power
to discipline and remove administrative officials who are presidential appointees, and which the
Constitution expressly place under the President's supervision and control.
xxx
But the more fundamental objection to the stand of petitioner Noblejas is that, if the Legislature
had really intended to include in the general grant of "privileges" or "rank and privileges of
Judges of the Court of First Instance" the right to be investigated by the Supreme Court, and to
be suspended or removed only upon recommendation of that Court, then such grant of
privilege would be unconstitutional, since it would violate the fundamental doctrine of
separation of powers, by charging this court with the administrative function of
supervisory control over executive officials, and simultaneously reducing pro tanto the
control of the Chief Executive over such officials. 20 (Boldfacing supplied)
Likewise, in this case, the directives in the Resolution are administrative in nature and
circumvent the constitutional provision which prohibits Supreme Court members from performing
quasi-judicial or administrative functions. Section 12, Article VIII of the 1987 Constitution
provides:
SEC. 12. The members of the Supreme Court and of other courts established by law shall not be
designated to any agency performing quasi-judicial or administrative functions.
Thus, in the case of In Re: Designation of Judge Manzano as Member of the Ilocos Norte
Provincial Committee on Justice,21 the Court invalidated the designation of a judge as member of
the Ilocos Norte Provincial Committee on Justice, which was tasked to receive complaints and to
make recommendations for the speedy disposition of cases of detainees. The Court held that the
committee performs administrative functions22 which are prohibited under Section 12, Article VIII
of the Constitution.
As early as the 1932 case of Manila Electric Co. v. Pasay Transportation Co.,23 this Court has
already emphasized that the Supreme Court should only exercise judicial power and should not
assume any duty which does not pertain to the administering of judicial functions. In that case, a
petition was filed requesting the members of the Supreme Court, sitting as a board of arbitrators,
to fix the terms and the compensation to be paid to Manila Electric Company for the use of right
of way. The Court held that it would be improper and illegal for the members of the Supreme
Court, sitting as a board of arbitrators, whose decision of a majority shall be final, to act on the
petition of Manila Electric Company. The Court explained:
We run counter to this dilemma. Either the members of the Supreme Court, sitting as a board of
arbitrators, exercise judicial functions, or as members of the Supreme Court, sitting as a board of
arbitrators, exercise administrative or quasi judicial functions. The first case would appear not to
fall within the jurisdiction granted the Supreme Court. Even conceding that it does, it would
presuppose the right to bring the matter in dispute before the courts, for any other construction
would tend to oust the courts of jurisdiction and render the award a nullity. But if this be the
proper construction, we would then have the anomaly of a decision by the members of the
Supreme Court, sitting as a board of arbitrators, taken therefrom to the courts and eventually
coming before the Supreme Court, where the Supreme Court would review the decision of its
members acting as arbitrators. Or in the second case, if the functions performed by the members
of the Supreme Court, sitting as a board of arbitrators, be considered as administrative
or quasi judicial in nature, that would result in the performance of duties which the members of
the Supreme Court could not lawfully take it upon themselves to perform. The present petition
also furnishes an apt illustration of another anomaly, for we find the Supreme Court as a court
asked to determine if the members of the court may be constituted a board of arbitrators, which
is not a court at all.
The Supreme Court of the Philippine Islands represents one of the three divisions of power in
our government. It is judicial power and judicial power only which is exercised by the Supreme
Court. Just as the Supreme Court, as the guardian of constitutional rights, should not sanction
usurpations by any other department of the government, so should it as strictly confine its own
sphere of influence to the powers expressly or by implication conferred on it by the Organic Act.
The Supreme Court and its members should not and cannot be required to exercise any power
or to perform any trust or to assume any duty not pertaining to or connected with the
administering of judicial functions.24
Furthermore, the Resolution orders some LGU officials to inspect the establishments and
houses along major river banks and to "take appropriate action to ensure compliance by
non-complying factories, commercial establishments and private homes with said law,
rules and regulations requiring the construction or installment of wastewater treatment
facilities or hygienic septic tanks." 25 The LGU officials are also directed to "submit to the DILG
on or before December 31, 2011 their respective compliance reports which shall contain the
names and addresses or offices of the owners of all the non-complying factories, commercial
establishments and private homes." 26 Furthermore, the Resolution mandates that on or before
30 June 2011, the DILG and the mayors of all cities in Metro Manila should "consider providing
land for the wastewater facilities of the Metropolitan Waterworks and Sewerage System (MWSS)
or its concessionaires (Maynilad and Manila Water Inc.) within their respective
jurisdictions."27 The Court is in effect ordering these LGU officials how to do their job and
even gives a deadline for their compliance. Again, this is a usurpation of the power of the
President to supervise LGUs under the Constitution and existing laws.
Section 4, Article X of the 1987 Constitution provides that: "The President of the Philippines
shall exercise general supervision over local governments x x x."28 Under the Local
Government Code of 1991,29 the President exercises general supervision over LGUs, thus:
SECTION 25. National Supervision over Local Government Units. ‒ (a) Consistent with the basic
policy on local autonomy, the President shall exercise general supervision over local
government units to ensure that their acts are within the scope of their prescribed powers
and functions.
The President shall exercise supervisory authority directly over provinces, highly urbanized cities
and independent component cities; through the province with respect to component cities and
municipalities; and through the city and municipality with respect to barangays. (Emphasis
supplied)
The Resolution constitutes judicial overreach by usurping and performing executive
functions. The Court must refrain from overstepping its boundaries by taking over the functions
of an equal branch of the government – the Executive. The Court should abstain from exercising
any function which is not strictly judicial in character and is not clearly conferred on it by the
Constitution.30 Indeed, as stated by Justice J.B.L. Reyes in Noblejas v. Teehankee,31 "the
Supreme Court of the Philippines and its members should not and can not be required to
exercise any power or to perform any trust or to assume any duty not pertaining to or connected
with the administration of judicial functions." 32
The directives in the Resolution constitute a judicial encroachment of an executive function
which clearly violates the system of separation of powers that inheres in our democratic
republican government. The principle of separation of powers between the Executive,
Legislative, and Judicial branches of government is part of the basic structure of the Philippine
Constitution. Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested
in the Congress of the Philippines;33 (b) the executive power shall be vested in the President of
the Philippines;34 and (c) the judicial power shall be vested in one Supreme Court and in such
lower courts as may be established.35
Since the Supreme Court is only granted judicial power, it should not attempt to assume or be
compelled to perform non-judicial functions.36 Judicial power is defined under Section 1, Article
VIII of the 1987 Constitution as that which "includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government." The
Resolution contains directives which are outside the ambit of the Court's judicial functions.
The principle of separation of powers is explained by the Court in the leading case of Angara v.
Electoral Commission:37
The separation of powers is a fundamental principle in our system of government. It obtains not
through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme within its
own sphere. But it does not follow from the fact that the three powers are to be kept separate
and distinct that the Constitution intended them to be absolutely unrestrained and independent of
each other. The Constitution has provided for an elaborate system of checks and balances to
secure coordination in the workings of the various departments of the government. x x x And the
judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other
department in its exercise of its power to determine the law, and hence to declare executive and
legislative acts void if violative of the Constitution. 38
Even the ponente is passionate about according respect to the system of separation of powers
between the three equal branches of the government. In his dissenting opinion in the 2008 case
of Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on
Ancestral Domain (GRP),39 Justice Velasco emphatically stated:
Separation of Powers to be Guarded
Over and above the foregoing considerations, however, is the matter of separation of powers
which would likely be disturbed should the Court meander into alien territory of the executive and
dictate how the final shape of the peace agreement with the MILF should look like. The system
of separation of powers contemplates the division of the functions of government into its
three (3) branches: the legislative which is empowered to make laws; the executive which
is required to carry out the law; and the judiciary which is charged with interpreting the
law. Consequent to actual delineation of power, each branch of government is entitled to
be left alone to discharge its duties as it sees fit. Being one such branch, the judiciary, as
Justice Laurel asserted in Planas v. Gil, "will neither direct nor restrain executive [or
legislative action]." Expressed in another perspective, the system of separated powers is
designed to restrain one branch from inappropriate interference in the business, or
intruding upon the central prerogatives, of another branch; it is a blend of courtesy and
caution, "a self-executing safeguard against the encroachment or aggrandizement of one
branch at the expense of the other." x x x
Under our constitutional set up, there cannot be any serious dispute that the maintenance of the
peace, insuring domestic tranquility and the suppression of violence are the domain and
responsibility of the executive. Now then, if it be important to restrict the great departments
of government to the exercise of their appointed powers, it follows, as a logical corollary,
equally important, that one branch should be left completely independent of the others,
independent not in the sense that the three shall not cooperate in the common end of
carrying into effect the purposes of the constitution, but in the sense that the acts of each
shall never be controlled by or subjected to the influence of either of the
branches.40 (Emphasis supplied)
Indeed, adherence to the principle of separation of powers which is enshrined in our Constitution
is essential to prevent tyranny by prohibiting the concentration of the sovereign powers of state
in one body.41 Considering that executive power is exclusively vested in the President of the
Philippines, the Judiciary should neither undermine such exercise of executive power by the
President nor arrogate executive power unto itself. The Judiciary must confine itself to the
exercise of judicial functions and not encroach upon the functions of the other branches of the
government.
ACCORDINGLY, I vote against the approval of the Resolution.
ANTONIO T. CARPIO
Associate Justice
Footnotes
1
Department of Environment and Natural Resources (DENR), Department of Interior
and Local Government (DILG), ), Metropolitan Waterworks and Sewerage System
(MWSS), Local Water Utilities Administration (LWUA), Department of Agriculture (DA),
Philippine Ports Authority (PPA), Philippine National Police (PNP), Metropolitan Manila
Development Authority (MMDA), Department of Health (DOH), Department of Education
(DepEd), and Department of Budget and Management (DBM).
2
Resolution, p. 4.
3
Resolution, p. 6.
4 21
Resolution, p. 6. 248 Phil. 487 (1988).

5 22
Resolution, p. 6-7. Administrative functions are "those which involve the regulation and control over the
conduct and affairs of individuals for their own welfare and the promulgation of rules and
6
Resolution, p. 7. regulations to better carry out the policy of the legislature or such as are devolved upon
the administrative agency by the organic law of its existence." Id. at 491.
7
Resolution, p. 7.
23
57 Phil 600 (1932).
8
Resolution, p. 8.
24
Id. at 604-605.
9
Resolution, p. 8.
25
Resolution, p. 5.
10
Resolution, pp. 8.
26
Resolution, p. 6.
11
Resolution, p. 10.
27
Resolution, p. 6.
12
Resolution, p. 11.
28
Emphasis supplied.
13
Resolution, p. 11.
29
Republic Act No. 7160.
14
For instance, the Resolution orders the PPA to "include in its report the activities of the
30
concessionaire that collects and disposes of the solid and liquid wastes and other ship- Manila Electric Co. v. Pasay Transportation Co., supra note 23.
generated wastes, which shall state the names, make and capacity of the ships serviced
31
by it since August 2003 up to the present date, the dates the ships docked at PPA ports, Supra note 19.
the number of days the ship was at sea with the corresponding number of passengers
and crew per trip, the volume of solid, liquid and ship-generated wastes collected from 32
Id. at 936, citing Manila Electric Co. v. Pasay Transportation Co., 57 Phil. 600, 605
said ships, the treatment undertaken and the disposal site for said wastes;" Resolution, (1932).
pp. 7-8.
33
Constitution, Art. VI, Sec. 1.
15
Resolution, p.11.
34
Constitution, Art. VII, Sec. 1.
16
For example, the Resolution directs that "[i]n its quarterly report for the last quarter
of 2010 and thereafter, MMDA shall report on the apprehensions for violations of the 35
Constitution, Art. VIII, Sec. 1.
penal provisions of RA 9003, RA 9275 and other laws on pollution for the said period;
Resolution, p. 10. (Emphasis supplied.) 36
J. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary
17 828 (1996).
Constitution, Art. VII, Sec. 1.
37
18 63 Phil. 139 (1936).
Constitution, Art. VII, Sec. 17.
38
19 Id. at 156-157.
131 Phil. 931 (1968).
39
20 G.R. Nos. 183591, 183752, 183893, 183951 & 183962, 14 October 2008, 568 SCRA
Id. at. 934-935. 402.
 40
Dissenting Opinion, id. at 669-670. (Citations omitted)
41
S. Carlota, The Three Most Important Features of the Philippine Legal System that
Others Should Understand, in IALS Conference Learning from Each Other: Enriching the
Law School Curriculum in an Interrelated World 177
<www.ialsnet.org/meeting/enriching/carlota.pdf> (visited 5 November 2010).
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
SERENO, J.:
"The judicial whistle needs to be blown for a purpose and with caution. It needs to be
remembered that the Court cannot run the government. The Court has the duty of implementing
constitutional safeguards that protect individual rights but they cannot push back the limits of the
Constitution to accommodate the challenged violation." 1
These are the words of Justice Anand of the Supreme Court of India, from which court the idea
of a continuing mandatory injunction for environmental cases was drawn by the Philippine
Supreme Court. These words express alarm that the Indian judiciary has already taken on the
role of running the government in environmental cases. A similar situation would result in the
Philippines were the majority Resolution to be adopted. Despite having the best of intentions to
ensure compliance by petitioners with their corresponding statutory mandates in an urgent
manner, this Court has unfortunately encroached upon prerogatives solely to be exercised by
the President and by Congress.
On 18 December 2008, the Court promulgated its decision in MMDA v. Concerned Residents of
Manila Bay, G.R. Nos. 171947-48, denying the petition of the government agencies, defendants
in Civil Case No. 1851-99. It held that the Court of Appeals, subject to some modifications, was
correct in affirming the 13 September 2002 Decision of the Regional Trial Court in Civil Case No.
1851-99. It ordered "the abovenamed defendant-government agencies to clean up, rehabilitate,
and preserve Manila Bay, and restore and maintain its waters to SB level (Class B sea waters
per Water Classification Tables under DENR Administrative Order No. 34 [1990]) to make them
fit for swimming, skin-diving, and other forms of contact recreation."
The Court further issued each of the aforementioned agencies specific orders to comply with
their statutory mandate.2 Pursuant to the judgment above, the Court established its own Manila
Bay Advisory Committee. Upon the recommendations of the said Committee, the present
Resolution was issued. It encompasses several of the specific instructions laid out by the court in
the original case, but also goes further by requiring reports and updates from the said
government agencies, and setting deadlines for the submission thereof.
I find these directives in the Majority Resolution patently irreconcilable with basic constitutional
doctrines and with the legislative mechanisms already in place, such as the Administrative Code
and the Local Government Code, which explicitly grant control and supervision over these
agencies to the President alone, and to no one else. For these reasons, I respectfully dissent
from the Majority Resolution.
In issuing these directives, the Court has encroached upon the exclusive authority of the
Executive Department and violated the doctrine of Separation of Powers
The Resolution assigned the Department of Natural Resources as the primary agency for
environment protection and required the implementation of its Operational Plan for the Manila
Bay Coastal Strategy. It ordered the DENR to submit the updated operational plan directly to the
Court; to summarize data on the quality of Manila Bay waters; and to "submit the names and
addresses of persons and companies…that generate toxic or hazardous waste on or before
September 30, 2011."
The Department of the Interior and Local Government is directed to "order the Mayors of all
cities in Metro Manila; the Governors of Rizal, Laguna, Cavite, Bulacan, Pampanga and Bataan;
and the Mayors of all the cities and towns in said provinces to inspect all factories, commercial
establishments and private homes along the banks of the major river systems…" to determine if
they have wastewater treatment facilities, on or before 30 June 2011. The LGUs are given a
deadline of 30 September 2011 to finish the inspection. In cooperation with the Department of
Public Works and Highways (DPWH), these local governments are required to submit their plan
for the removal of informal settlers and encroachments which are in violation of Republic Act No.
7279. The said demolition must take place not later than 31 December 2012.
The Metropolitan Waterworks and Sewerage System (MWSS) is required to submit its plans for
the construction of wastewater treatment facilities in areas where needed, the completion period
for which shall not go beyond the year 2020. On or before 30 June 2011, the MWSS is further
required to have its two concessionaires submit a report on the amount collected as sewerage
fees. The Local Water Utilities Administration (LWUA) is ordered to submit on or before 30
September 2011 its plan to install and operate sewerage and sanitation facilities in the towns
and cities where needed, which must be fully implemented by 31 December 2020.
The Department of Agriculture and the Bureau of Aquatic Fisheries and Resources are ordered
to submit on or before 30 June 2011 a list of areas where marine life in Manila Bay has
improved, and the assistance extended to different Local Government Units in this regard. The
Philippine Ports Authority (PPA) is ordered to report the names, make, and capacity of each ship
that would dock in PPA ports; the days they docked and the days they were at sea; the activities
of the concessionaire that would collect solid and liquid ship-generated waste, the volume,
treatment and disposal sites for such wastes; and the violators that PPA has apprehended.
The Department of Health (DOH) is required to submit the names and addresses of septic and
sludge companies that have no treatment facilities. The said agency must also require
companies to procure a "license to operate" issued by the DOH. The Metropolitan Manila
Development Authority (MMDA) and the seventeen (17) LGUs in Metro Manila must submit a
report on the "amount of garbage collected per district…vis-à-vis the average amount of garbage
disposed monthly in landfills and dumpsites." MMDA must also submit a plan for the removal of
informal settlers and encroachments along NCR Rivers which violate R.A. No. 7279.
Clearly, the Court has no authority to issue these directives. They fall squarely under the domain
of the executive branch of the state. The issuance of specific instructions to subordinate
agencies in the implementation of policy mandates in all laws, not just those that protect the
environment, is an exercise of the power of supervision and control – the sole province of the
Office of the President.
Both the 1987 Constitution and Executive Order No. 292, or the Administrative Code of the
Philippines, state:
Exercise of Executive Power. - The Executive power shall be vested in the President. 3
Power of Control.- The President shall have control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be faithfully executed. 4
In Anak Mindanao Party-list Group v. Executive Secretary,5 this Court has already asserted that
the enforcement of all laws is the sole domain of the Executive. The Court pronounced that the
express constitutional grant of authority to the Executive is broad and encompassing, such that it
justifies reorganization measures6 initiated by the President. The Court said:
While Congress is vested with the power to enact laws, the President executes the laws. The
executive power is vested in the President. It is generally defined as the power to enforce and
administer the laws. It is the power of carrying the laws into practical operation and enforcing
their due observance.
As head of the Executive Department, the President is the Chief Executive. He represents the
government as a whole and sees to it that all laws are enforced by the officials and employees of
his department. He has control over the executive department, bureaus and offices. This means
that he has the authority to assume directly the functions of the executive department, bureau
and office, or interfere with the discretion of its officials. Corollary to the power of control, the
President also has the duty of supervising and enforcement of laws for the maintenance of
general peace and public order. Thus, he is granted administrative power over bureaus and
offices under his control to enable him to discharge his duties effectively.
To herein petitioner agencies impleaded below, this Court has given very specific instructions to
report the progress and status of their operations directly to the latter. The Court also required
the agencies to apprise it of any noncompliance with the standards set forth by different laws as
to environment protection. This move is tantamount to making these agencies accountable to the
Court instead of the President. The very occupation streamlined especially for the technical and
practical expertise of the Executive Branch is being usurped without regard for the delineations
of power in the Constitution. In fact, the issuance of the Resolution itself is in direct contravention
of the President’s exclusive power to issue administrative orders, as shown thus:
Administrative Orders. - Acts of the President which relate to particular aspect of governmental
operations in pursuance of his duties as administrative head shall be promulgated in
administrative orders.7
The Court’s discussion in Ople v. Torres8 pertaining to the extent and breadth of administrative
power bestowed upon the President is apt:
Administrative power is concerned with the work of applying policies and enforcing orders as
determined by proper governmental organs. It enables the President to fix a uniform standard of
administrative efficiency and check the official conduct of his agents. To this end, he can issue
administrative orders, rules and regulations.
………
An administrative order is an ordinance issued by the President which relates to specific aspects
in the administrative operation of government. It must be in harmony with the law and should be
for the sole purpose of implementing the law and carrying out the legislative policy.
The implementation of the policy laid out by the legislature – in the Philippine Clean Water Act of
2004, the Toxic and Hazardous Waste Act or Republic Act 6969, the Environment Code, and
other laws geared towards environment protection – is under the competence of the President.
Achieved thereby is a uniform standard of administrative efficiency. And since it is through
administrative orders promulgated by the President that specific operational aspects for these
policies are laid out, the Resolution of this Court overlaps with the President’s administrative
power. No matter how urgent and laudatory the cause of environment protection has become, it
cannot but yield to the higher mandate of separation of powers and the mechanisms laid out by
the people through the Constitution.
One of the directives is that which requires local governments to conduct inspection of homes
and establishments along the riverbanks, and to submit a plan for the removal of certain informal
settlers. Not content with arrogating unto itself the powers of "control" and "supervision" granted
by the Administrative Code to the President over said petitioner administrative agencies, the
Court is also violating the latter’s general supervisory authority over local governments:
Sec. 18. General Supervision Over Local Governments. - The President shall exercise general
supervision over local governments. 9
Sec. 25. National Supervision over Local Government Units.––(a) Consistent with the basic
policy on local autonomy, the President shall exercise general supervision over local government
units to ensure that their acts are within the scope of their prescribed powers and functions. 10
The powers expressly vested in any branch of the Government shall not be exercised by, nor
delegated to, any other branch of the Government, except to the extent authorized by the
Constitution.11
As has often been repeated by this Court, the doctrine of separation of powers is the very
wellspring from which the Court draws its legitimacy. Former Chief Justice Reynato S. Puno has
traced its origin and rationale as inhering in the republican system of government:
The principle of separation of powers prevents the concentration of legislative, executive, and
judicial powers to a single branch of government by deftly allocating their exercise to the three
branches of government...
In his famed treatise, The Spirit of the Laws, Montesquieu authoritatively analyzed the nature
of executive, legislative and judicial powers and with a formidable foresight counselled that any
combination of these powers would create a system with an inherent tendency towards
tyrannical actions…
Again, there is no liberty, if the judiciary power be not separated from the legislative and the
executive. Were it joined with the legislative, the life and liberty of the subject would be exposed
to arbitrary control; for the judge would be then the legislator. Were it joined to the executive
power, the judge might behave with violence and oppression.
There would be an end of everything, were the same man or the same body, whether of the
nobles or of the people, to exercise those three powers, that of enacting laws, that of executing
the public resolutions, and that of trying the causes of individuals. 12
Nor is there merit in the contention that these directives will speed up the rehabilitation of Manila
Bay better than if said rehabilitation were left to the appropriate agencies. Expediency is never a
reason to abandon legitimacy. "The Separation of Powers often impairs efficiency, in terms of
dispatch and the immediate functioning of government. It is the long-term staying power of
government that is enhanced by the mutual accommodation required by the separation of
powers."13
Mandamus does not lie to compel a discretionary act.
In G.R. Nos. 171947-48, the Court explicitly admitted that "[w]hile the implementation of the
MMDA’s mandated tasks may entail a decision-making process, the enforcement of the law or
the very act of doing what the law exacts to be done is ministerial in nature and may be
compelled by mandamus."14 In denying the appeal of petitioners and affirming the Decision of
the RTC, the Court of Appeals stressed that the trial court’s Decision did not require petitioners
to do tasks outside of their usual basic functions under existing laws.15
In its revised Resolution, the Court is now setting deadlines for the implementation of policy
formulations which require decision-making by the agencies. It has confused an order enjoining
a duty, with an order outlining specific technical rules on how to perform such a duty. Assuming
without conceding that mandamus were availing under Rule 65, the Court can only require a
particular action, but it cannot provide for the means to accomplish such action. It is at this point
where the demarcation of the general act of "cleaning up the Manila Bay" has become blurred,
so much so that the Court now engages in the slippery slope of overseeing technical details.
In Sps. Abaga v. Sps. Panes16 the Court said:
From the foregoing Rule, there are two situations when a writ of mandamus may issue: (1) when
any tribunal, corporation, board, officer or person unlawfully neglects the performance of an
act which the law specifically enjoins as a duty resulting from an office, trust, or station; or (2)
when any tribunal, corporation, board, officer or person unlawfully excludes another from the use
and enjoyment of a right or office to which the other is entitled. The "duty" mentioned in the first
situation is a ministerial duty, not a discretionary duty, requiring the exercise of judgment…In
short, for mandamus to lie, the duty sought to be compelled to be performed must be
a ministerial duty, not a discretionary duty, and the petitioner must show that he has a well-
defined, clear and certain right.
Discretion, on the other hand, is a faculty conferred upon a court or official by which he may
decide the question either way and still be right. 17
The duty being enjoined in mandamus must be one according to the terms defined in the law
itself. Thus, the recognized rule is that, in the performance of an official duty or act involving
discretion, the corresponding official can only be directed by mandamus to act, but not to act one
way or the other. This is the end of any participation by the Court, if it is authorized to participate
at all.
In setting a deadline for the accomplishment of these directives, not only has the Court provided
the means of accomplishing the task required, it has actually gone beyond the standards set by
the law. There is nothing in the Environment Code, the Administrative Code, or the Constitution
which grants this authority to the judiciary. It is already settled that, "If the law imposes a duty
upon a public officer and gives him the right to decide when and how the duty shall be
performed, such duty is not ministerial." 18
In Alvarez v. PICOP Resources,19 the Court ruled that,
As an extraordinary writ, the remedy of mandamus lies only to compel an officer to perform
a ministerial duty, not a discretionary one; mandamus will not issue to control the exercise of
discretion of a public officer where the law imposes upon him the duty to exercise his judgment
in reference to any manner in which he is required to act, because it is his judgment that is to be
exercised and not that of the court.
The Constitution does not authorize the courts to "monitor" the execution of their decisions.
It is an oft-repeated rule that the Court has no power to issue advisory opinions, much less
"directives" requiring progress reports from the parties respecting the execution of its decisions.
The requirements of "actual case or controversy" and "justiciability" have long been established
in order to limit the exercise of judicial review. While its dedication to the implementation of the
fallo in G.R. 171947-48 is admirable, the Court’s power cannot spill over to actual encroachment
upon both the "control" and police powers of the State under the guise of a "continuing
mandamus."
In G.R. 171947-48, the Court said: "Under what other judicial discipline describes as ‘continuing
mandamus,’ the Court may, under extraordinary circumstances, issue directives with the end in
view of ensuring that its decision would not be set to naught by administrative inaction or
indifference."
Needless to say, the "continuing mandamus" in this case runs counter to principles of "actual
case or controversy" and other requisites for judicial review. In fact, the Supreme Court is in
danger of acting as a "super-administrator"20 – the scenario presently unfolding in India where
the supposed remedy originated. There the remedy was first used in Vineet Narain and Others v.
Union of India,21 a public interest case for corruption filed against high-level officials. Since then,
the remedy has been applied to environmental cases as an oversight and control power by
which the Supreme Court of India has created committees (i.e. the Environment Pollution
Authority and the Central Empowered Committee in forest cases) and allowed these committees
to act as the policing agencies.22 But the most significant judicial intervention in this regard was
the series of orders promulgated by the Court in T.N. Godavarman v. Union of India. 23
Although the Writ Petition filed by Godavarman was an attempt to seek directions from the Court
regarding curbing the illegal felling of trees, the Supreme Court went further to make policy
determinations in an attempt to improve the country’s forests. The Court Order suspending
felling of trees that did not adhere to state government working plans resulted in effectively
freezing the country’s timber industry. The Supreme Court completely banned tree felling in
certain north-eastern states to any part of the country. The court’s role was even more
pronounced in its later directions. While maintaining the ban on felling of trees in the seven
northeast states, the court directed the state governments to gather, process, sell, and otherwise
manage the already felled timber in the manner its specified the Supreme Court became the
supervisor of all forest issues, ranging from controlling, pricing and transport of timber to
management of forest revenue, as well as implementation of its orders. 24
Thus, while it was originally intended to assert public rights in the face of government inaction
and neglect, the remedy is now facing serious criticism as it has spiraled out of control.25 In fact,
even Justice J. S. Verma, who penned the majority opinion in Vineet Narain in which ‘continuing
mandamus’ first made its appearance, subsequently pronounced that "judicial activism should be
neither judicial ad hocism nor judicial tyranny." 26Justice B.N. Srikrishna observed that judges
now seem to want to engage themselves with boundless enthusiasm in complex socio-economic
issues raising myriads of facts and ideological issues that cannot be managed by "judicially
manageable standards."27 Even Former Chief Justice A. S. Anand, a known defender of judicial
activism, has warned against the tendency towards "judicial adventurism," reiterating the
principle that "the role of the judge is that of a referee. I can blow my judicial whistle when the
ball goes out of play; but when the game restarts I must neither take part in it nor tell the players
how to play."28
Unless our own Supreme Court learns to curb its excesses and apply to this case the standards
for judicial review it has developed over the years and applied to co-equal branches, the
scenario in India could very well play out in the Philippines. The Court must try to maintain a
healthy balance between the departments, precisely as the Constitution mandates, by
delineating its "deft strokes and bold lines," 29 ever so conscious of the requirements of actual
case and controversy. While, admittedly, there are certain flaws in the operation and
implementation of the laws, the judiciary cannot take the initiative to compensate for such
perceived inaction.
The Court stated in Tolentino v. Secretary of Finance:30
Disregard of the essential limits imposed by the case and controversy requirement can in the
long run only result in undermining our authority as a court of law. For, as judges, what we are
called upon to render is judgment according to law, not according to what may appear to be the
opinion of the day…
Hence, "over nothing but cases and controversies can courts exercise jurisdiction, and it is to
make the exercise of that jurisdiction effective that they are allowed to pass upon constitutional
questions."31 Admirable though the sentiments of the Court may be, it must act within
jurisdictional limits. These limits are founded upon the traditional requirement of a cause of
action: "the act or omission by which a party violates a right of another." 32 In constitutional cases,
for every writ or remedy, there must be a clear pronouncement of the corresponding right which
has been infringed. Only then can there surface that "clear concreteness provided when a
question emerges precisely framed and necessary for decision from a clash of adversary
argument exploring every aspect of a multifaceted situation embracing conflicting and
demanding interests."33
Unfortunately, the Court fails to distinguish between a pronouncement on violation of rights on
one hand, and non-performance of duties vis-à-vis operational instructions, on the other.
Moreover, it also dabbles in an interpretation of constitutional rights in a manner that is
dangerously pre-emptive of legally available remedies.
The "continuing mandamus" palpably overlaps with the power of congressional oversight.
Article 6, Section 22 of the 1987 Constitution states:
The heads of department may upon their own initiative, with the consent of the President, or
upon the request of either House, or as the rules of each House shall provide, appear before and
be heard by such House on any matter pertaining to their departments. Written questions shall
be submitted to the President of the Senate or the Speaker of the House of Representatives at
least three days before their scheduled appearance. Interpellations shall not be limited to written
questions, but may cover matters related thereto. When the security of the state or the public
interest so requires and the President so states in writing, the appearance shall be conducted in
executive session.
This provision pertains to the power to conduct a question hour, the objective of which is to
obtain information in pursuit of Congress’ oversight function. Macalintal v. Comelec 34 discussed
the scope of congressional oversight in full. Oversight refers to the power of the legislative
department to check, monitor and ensure that the laws it has enacted are enforced:
The power of Congress does not end with the finished task of legislation. Concomitant
with its principal power to legislate is the auxiliary power to ensure that the laws it enacts
are faithfully executed. As well stressed by one scholar, the legislature "fixes the main lines of
substantive policy and is entitled to see that administrative policy is in harmony with it; it
establishes the volume and purpose of public expenditures and ensures their legality and
propriety; it must be satisfied that internal administrative controls are operating to secure
economy and efficiency; and it informs itself of the conditions of administration of remedial
measure.
………
Clearly, oversight concerns post-enactment measures undertaken by Congress: (a) to monitor
bureaucratic compliance with program objectives, (b) to determine whether agencies are
properly administered, (c) to eliminate executive waste and dishonesty, (d) to prevent executive
usurpation of legislative authority, and (d) to assess executive conformity with the congressional
perception of public interest.
………
Congress, thus, uses its oversight power to make sure that the administrative agencies
perform their functions within the authority delegated to them.
Macalintal v. Comelec further discusses that legislative supervision under the oversight power
connotes a continuing and informed awareness on the part of Congress regarding executive
operations in a given administrative area. Because the power to legislate includes the power to
ensure that the laws are enforced, this monitoring power has been granted by the Constitution to
the legislature. In cases of executive non-implementation of statutes, the courts cannot justify the
use of "continuing mandamus," as it would by its very definition overlap with the monitoring
power under congressional oversight. The Resolution does not only encroach upon the general
supervisory function of the Executive, it also diminished and arrogated unto itself the power of
congressional oversight.
Conclusion
This Court cannot nobly defend the environmental rights of generations of Filipinos enshrined in
the Constitution while in the same breath eroding the foundations of that very instrument from
which it draws its power. While the remedy of "continuing mandamus" has evolved out of a Third
World jurisdiction similar to ours, we cannot overstep the boundaries laid down by the rule of
law. Otherwise, this Court would rush recklessly beyond the delimitations precisely put in place
to safeguard excesses of power. The tribunal, considered by many citizens as the last guardian
of fundamental rights, would then resemble nothing more than an idol with feet of clay: strong in
appearance, but weak in foundation.
…The Court becomes a conscience by acting to remind us of limitation on power, even judicial
power, and the interrelation of good purposes with good means. Morality is not an end
dissociated from means. There is a morality of morality, which respects the limitation of office
and the fallibility of the human mind…self-limitation is the first mark of the master. That, too is
part of the role of the conscience.35
The majority Resolution would, at the same time, cast the light of scrutiny more harshly on
judicial action in which the Court’s timely exercise of its powers is called for – as in the cases of
prisoners languishing in jail whose cases await speedy resolution by this Court. There would
then be nothing to stop the executive and the legislative departments from considering as fair
game the judiciary’s own accountability in its clearly delineated department.
MARIA LOURDES P. A. SERENO
Associate Justice
G.R. No. 196870 June 26, 2012
BORACAY FOUNDATION, INC., Petitioner,
vs.
THE PROVINCE OF AKLAN, REPRESENTED BY GOVERNOR CARLITO S. MARQUEZ, THE
PHILIPPINE RECLAMATION AUTHORITY, AND THE DENR-EMB (REGION VI), Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
In resolving this controversy, the Court took into consideration that all the parties involved share
common goals in pursuit of certain primordial State policies and principles that are enshrined in
the Constitution and pertinent laws, such as the protection of the environment, the empowerment
of the local government units, the promotion of tourism, and the encouragement of the
participation of the private sector. The Court seeks to reconcile the respective roles, duties and
responsibilities of the petitioner and respondents in achieving these shared goals within the
context of our Constitution, laws and regulations.
Nature of the Case
This is an original petition for the issuance of an Environmental Protection Order in the nature of
a continuing mandamus under A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure
for Environmental Cases, promulgated on April 29, 2010.
The Parties
Petitioner Boracay Foundation, Inc. (petitioner) is a duly registered, non-stock domestic
corporation. Its primary purpose is "to foster a united, concerted and environment-conscious
development of Boracay Island, thereby preserving and maintaining its culture, natural beauty
and ecological balance, marking the island as the crown jewel of Philippine tourism, a prime
tourist destination in Asia and the whole world." 1 It counts among its members at least sixty (60)
owners and representatives of resorts, hotels, restaurants, and similar institutions; at least five
community organizations; and several environmentally-conscious residents and advocates.2
Respondent Province of Aklan (respondent Province) is a political subdivision of the government
created pursuant to Republic Act No. 1414, represented by Honorable Carlito S. Marquez, the
Provincial Governor (Governor Marquez).
Respondent Philippine Reclamation Authority (respondent PRA), formerly called the Public
Estates Authority (PEA), is a government entity created by Presidential Decree No. 1084, 3 which
states that one of the purposes for which respondent PRA was created was to reclaim land,
including foreshore and submerged areas. PEA eventually became the lead agency primarily
responsible for all reclamation projects in the country under Executive Order No. 525, series of
1979. In June 2006, the President of the Philippines issued Executive Order No. 543, delegating
the power "to approve reclamation projects to PRA through its governing Board, subject to
compliance with existing laws and rules and further subject to the condition that reclamation
contracts to be executed with any person or entity (must) go through public bidding." 4
Respondent Department of Environment and Natural Resources – Environmental Management
Bureau (DENR-EMB), Regional Office VI (respondent DENR-EMB RVI), is the government
agency in the Western Visayas Region authorized to issue environmental compliance certificates
regarding projects that require the environment’s protection and management in the region. 5
Summary of Antecedent Facts
Boracay Island (Boracay), a tropical paradise located in the Western Visayas region of the
Philippines and one of the country’s most popular tourist destinations, was declared a tourist
zone and marine reserve in 1973 under Presidential Proclamation No. 1801. 6 The island
comprises the barangays of Manoc-manoc, Balabag, and Yapak, all within the municipality of
Malay, in the province of Aklan.7
Petitioner describes Boracay as follows:
Boracay is well-known for its distinctive powdery white-sand beaches which are the product of
the unique ecosystem dynamics of the area. The island itself is known to come from the uplifted
remnants of an ancient reef platform. Its beaches, the sandy land strip between the water and
the area currently occupied by numerous establishments, is the primary draw for domestic and
international tourists for its color, texture and other unique characteristics. Needless to state, it is
the premier domestic and international tourist destination in the Philippines. 8
More than a decade ago, respondent Province built the Caticlan Jetty Port and Passenger
Terminal at Barangay Caticlan to be the main gateway to Boracay. It also built the corresponding
Cagban Jetty Port and Passenger Terminal to be the receiving end for tourists in Boracay.
Respondent Province operates both ports "to provide structural facilities suited for locals, tourists
and guests and to provide safety and security measures." 9
In 2005, Boracay 2010 Summit was held and participated in by representatives from national
government agencies, local government units (LGUs), and the private sector. Petitioner was one
of the organizers and participants thereto. The Summit aimed "to re-establish a common vision
of all stakeholders to ensure the conservation, restoration, and preservation of Boracay Island"
and "to develop an action plan that [would allow] all sectors to work in concert among and with
each other for the long term benefit and sustainability of the island and the community." 10 The
Summit yielded a Terminal Report11 stating that the participants had shared their dream of
having world-class land, water and air infrastructure, as well as given their observations that
government support was lacking, infrastructure was poor, and, more importantly, the influx of
tourists to Boracay was increasing. The Report showed that there was a need to expand the port
facilities at Caticlan due to congestion in the holding area of the existing port, caused by
inadequate facilities, thus tourists suffered long queues while waiting for the boat ride going to
the island.12
Respondent Province claimed that tourist arrivals to Boracay reached approximately 649,559 in
2009 and 779,666 in 2010, and this was expected to reach a record of 1 million tourist arrivals in
the years to come. Thus, respondent Province conceptualized the expansion of the port facilities
at Barangay Caticlan.13
The Sangguniang Barangay of Caticlan, Malay Municipality, issued Resolution No. 13, s.
200814 on April 25, 2008 stating that it had learned that respondent Province had filed an
application with the DENR for a foreshore lease of areas along the shorelines of Barangay
Caticlan, and manifesting its strong opposition to said application, as the proposed foreshore
lease practically covered almost all the coastlines of said barangay, thereby technically
diminishing its territorial jurisdiction, once granted, and depriving its constituents of their statutory
right of preference in the development and utilization of the natural resources within its
jurisdiction. The resolution further stated that respondent Province did not conduct any
consultations with the Sangguniang Barangay of Caticlan regarding the proposed foreshore
lease, which failure the Sanggunian considered as an act of bad faith on the part of respondent
Province.15
On November 20, 2008, the Sangguniang Panlalawigan of respondent Province approved
Resolution No. 2008-369,16 formally authorizing Governor Marquez to enter into negotiations
towards the possibility of effecting self-liquidating and income-producing development and
livelihood projects to be financed through bonds, debentures, securities, collaterals, notes or
other obligations as provided under Section 299 of the Local Government Code, with the
following priority projects: (a) renovation/rehabilitation of the Caticlan/Cagban Passenger
Terminal Buildings and Jetty Ports; and (b) reclamation of a portion of Caticlan foreshore for
commercial purposes.17 This step was taken as respondent Province’s existing jetty port and
passenger terminal was funded through bond flotation, which was successfully redeemed and
paid ahead of the target date. This was allegedly cited as one of the LGU’s Best Practices
wherein respondent Province was given the appropriate commendation. 18
Respondent Province included the proposed expansion of the port facilities at Barangay Caticlan
in its 2009 Annual Investment Plan,19 envisioned as its project site the area adjacent to the
existing jetty port, and identified additional areas along the coastline of Barangay Caticlan as the
site for future project expansion.20
Governor Marquez sent a letter to respondent PRA on March 12, 2009 21 expressing the interest
of respondent Province to reclaim about 2.64 hectares of land along the foreshores of Barangay
Caticlan, Municipality of Malay, Province of Aklan.
Sometime in April 2009, respondent Province entered into an agreement with the Financial
Advisor/Consultant that won in the bidding process held a month before, to conduct the
necessary feasibility study of the proposed project for the Renovation/Rehabilitation of the
Caticlan Passenger Terminal Building and Jetty Port, Enhancement and Recovery of Old
Caticlan Coastline, and Reclamation of a Portion of Foreshore for Commercial Purposes (the
Marina Project), in Malay, Aklan.22
Subsequently, on May 7, 2009, the Sangguniang Panlalawigan of respondent Province issued
Resolution No. 2009–110,23 which authorized Governor Marquez to file an application to reclaim
the 2.64 hectares of foreshore area in Caticlan, Malay, Aklan with respondent PRA.
Sometime in July 2009, the Financial Advisor/Consultant came up with a feasibility study which
focused on the land reclamation of 2.64 hectares by way of beach enhancement and recovery of
the old Caticlan coastline for the rehabilitation and expansion of the existing jetty port, and for its
future plans – the construction of commercial building and wellness center. The financial
component of the said study was Two Hundred Sixty Million Pesos (₱260,000,000.00). Its
suggested financing scheme was bond flotation. 24
Meanwhile, the Sangguniang Bayan of the Municipality of Malay expressed its strong opposition
to the intended foreshore lease application, through Resolution No. 044, 25 approved on July 22,
2009, manifesting therein that respondent Province’s foreshore lease application was for
business enterprise purposes for its benefit, at the expense of the local government of Malay,
which by statutory provisions was the rightful entity "to develop, utilize and reap benefits from the
natural resources found within its jurisdiction."26
In August 2009, a Preliminary Geohazard Assessment 27 for the enhancement/expansion of the
existing Caticlan Jetty Port and Passenger Terminal through beach zone restoration and
Protective Marina Developments in Caticlan, Malay, Aklan was completed.
Thereafter, Governor Marquez submitted an Environmental Performance Report and Monitoring
Program (EPRMP)28 to DENR-EMB RVI, which he had attached to his letter29 dated September
19, 2009, as an initial step for securing an Environmental Compliance Certificate (ECC). The
letter reads in part:
With the project expected to start its construction implementation next month, the province
hereby assures your good office that it will give preferential attention to and shall comply with
whatever comments that you may have on this EPRMP.30 (Emphasis added.)
Respondent Province was then authorized to issue "Caticlan Super Marina Bonds" for the
purpose of funding the renovation of the Caticlan Jetty Port and Passenger Terminal Building,
and the reclamation of a portion of the foreshore lease area for commercial purposes in Malay,
Aklan through Provincial Ordinance No. 2009-013, approved on September 10, 2009. The said
ordinance authorized Governor Marquez to negotiate, sign and execute agreements in relation
to the issuance of the Caticlan Super Marina Bonds in the amount not exceeding
₱260,000,000.00.31
Subsequently, the Sangguniang Panlalawigan of the Province of Aklan issued Provincial
Ordinance No. 2009-01532 on October 1, 2009, amending Provincial Ordinance No. 2009-013,
authorizing the bond flotation of the Province of Aklan through Governor Marquez to fund the
Marina Project and appropriate the entire proceeds of said bonds for the project, and further
authorizing Governor Marquez to negotiate, sign and execute contracts or agreements pertinent
to the transaction.33
Within the same month of October 2009, respondent Province deliberated on the possible
expansion from its original proposed reclamation area of 2.64 hectares to forty (40) hectares in
order to maximize the utilization of its resources and as a response to the findings of the
Preliminary Geohazard Assessment study which showed that the recession and retreat of the
shoreline caused by coastal erosion and scouring should be the first major concern in the project
site and nearby coastal area. The study likewise indicated the vulnerability of the coastal zone
within the proposed project site and the nearby coastal area due to the effects of sea level rise
and climate change which will greatly affect the social, economic, and environmental situation of
Caticlan and nearby Malay coastal communities.34
In his letter dated October 22, 2009 addressed to respondent PRA, Governor Marquez wrote:
With our substantial compliance with the requirements under Administrative Order No. 2007-2
relative to our request to PRA for approval of the reclamation of the [proposed Beach Zone
Restoration and Protection Marine Development in Barangays Caticlan and Manoc-Manoc] and
as a result of our discussion during the [meeting with the respondent PRA on October 12, 2009],
may we respectfully submit a revised Reclamation Project Description embodying certain
revisions/changes in the size and location of the areas to be reclaimed. x x x.
On another note, we are pleased to inform your Office that the bond flotation we have secured
with the Local Government Unit Guarantee Corporation (LGUGC) has been finally approved last
October 14, 2009. This will pave the way for the implementation of said project. Briefly, the
Province has been recognized by the Bureau of Local Government Finance (BLGF) for its
capability to meet its loan obligations. x x x.
With the continued increase of tourists coming to Boracay through Caticlan, the Province is
venturing into such development project with the end in view of protection and/or restoring
certain segments of the shoreline in Barangays Caticlan (Caticlan side) and Manoc-manoc
(Boracay side) which, as reported by experts, has been experiencing tremendous coastal
erosion.
For the project to be self-liquidating, however, we will be developing the reclaimed land for
commercial and tourism-related facilities and for other complementary uses. 35 (Emphasis ours.)
Then, on November 19, 2009, the Sangguniang Panlalawigan enacted Resolution No. 2009-
29936 authorizing Governor Marquez to enter into a Memorandum of Agreement (MOA) with
respondent PRA in the implementation of the Beach Zone Restoration and Protection Marina
Development Project, which shall reclaim a total of 40 hectares in the areas adjacent to the jetty
ports at Barangay Caticlan and Barangay Manoc-manoc. The Sangguniang Panlalawigan
approved the terms and conditions of the necessary agreements for the implementation of the
bond flotation of respondent Province to fund the renovation/rehabilitation of the existing jetty
port by way of enhancement and recovery of the Old Caticlan shoreline through reclamation of
an area of 2.64 hectares in the amount of ₱260,000,000.00 on December 1, 2009. 37
Respondent Province gave an initial presentation of the project with consultation to the
Sangguniang Bayan of Malay38 on December 9, 2009.
Respondent PRA approved the reclamation project on April 20, 2010 in its Resolution No. 4094
and authorized its General Manager/Chief Executive Officer (CEO) to enter into a MOA with
respondent Province for the implementation of the reclamation project.39
On April 27, 2010, DENR-EMB RVI issued to respondent Province ECC-R6-1003-096-7100 (the
questioned ECC) for Phase 1 of the Reclamation Project to the extent of 2.64 hectares to be
done along the Caticlan side beside the existing jetty port. 40
On May 17, 2010, respondent Province entered into a MOA41 with respondent PRA. Under
Article III, the Project was described therein as follows:
The proposed Aklan Beach Zone Restoration and Protection Marina Development Project
involves the reclamation and development of approximately forty (40) hectares of foreshore and
offshore areas of the Municipality of Malay x x x.
The land use development of the reclamation project shall be for commercial, recreational and
institutional and other applicable uses.42 (Emphases supplied.)
It was at this point that respondent Province deemed it necessary to conduct a series of what it
calls "information-education campaigns," which provided the venue for interaction and dialogue
with the public, particularly the Barangay and Municipal officials of the Municipality of Malay, the
residents of Barangay Caticlan and Boracay, the stakeholders, and the non-governmental
organizations (NGOs). The details of the campaign are summarized as follows 43 :
a. June 17, 2010 at Casa Pilar Beach Resort, Boracay Island, Malay, Aklan;44
b. July 28, 2010 at Caticlan Jetty Port and Passenger Terminal; 45
c. July 31, 2010 at Barangay Caticlan Plaza;46
d. September 15, 2010 at the Office of the Provincial Governor with Municipal Mayor of
Malay – Mayor John P. Yap;47
e. October 12, 2010 at the Office of the Provincial Governor with the Provincial
Development Council Executive Committee;48 and
f. October 29, 2010 at the Office of the Provincial Governor with Officials of LGU-Malay
and Petitioner.49
Petitioner claims that during the "public consultation meeting" belatedly called by respondent
Province on June 17, 2010, respondent Province presented the Reclamation Project and only
then detailed the actions that it had already undertaken, particularly: the issuance of the Caticlan
Super Marina Bonds; the execution of the MOA with respondent PRA; the alleged conduct of an
Environmental Impact Assessment (EIA) study for the reclamation project; and the expansion of
the project to forty (40) hectares from 2.64 hectares. 50
In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the Malay Municipality
reiterated its strong opposition to respondent Province’s project and denied its request for a
favorable endorsement of the Marina Project. 51
The Malay Municipality subsequently issued Resolution No. 016, Series of 2010, adopted on
August 3, 2010, to request respondent PRA "not to grant reclamation permit and notice to
proceed to the Marina Project of the [respondent] Provincial Government of Aklan located at
Caticlan, Malay, Aklan."52
In a letter53 dated October 12, 2010, petitioner informed respondent PRA of its opposition to the
reclamation project, primarily for the reason that, based on the opinion of Dr. Porfirio M. Aliño, an
expert from the University of the Philippines Marine Science Institute (UPMSI), which he
rendered based on the documents submitted by respondent Province to obtain the ECC, a full
EIA study is required to assess the reclamation project’s likelihood of rendering critical and
lasting effect on Boracay considering the proximity in distance, geographical location, current
and wind direction, and many other environmental considerations in the area. Petitioner noted
that said documents had failed to deal with coastal erosion concerns in Boracay. It also noted
that respondent Province failed to comply with certain mandatory provisions of the Local
Government Code, particularly, those requiring the project proponent to conduct consultations
with stakeholders.
Petitioner likewise transmitted its Resolution No. 001, Series of 2010, registering its opposition to
the reclamation project to respondent Province, respondent PRA, respondent DENR-EMB, the
National Economic Development Authority Region VI, the Malay Municipality, and other
concerned entities.54
Petitioner alleges that despite the Malay Municipality’s denial of respondent Province’s request
for a favorable endorsement, as well as the strong opposition manifested both by Barangay
Caticlan and petitioner as an NGO, respondent Province still continued with the implementation
of the Reclamation Project.55
On July 26, 2010, the Sangguniang Panlalawigan of respondent Province set aside Resolution
No. 046, s. 2010, of the Municipality of Malay and manifested its support for the implementation
of the aforesaid project through its Resolution No. 2010-022.56
On July 27, 2010, the MOA was confirmed by respondent PRA Board of Directors under its
Resolution No. 4130. Respondent PRA wrote to respondent Province on October 19, 2010,
informing the latter to proceed with the reclamation and development of phase 1 of site 1 of its
proposed project. Respondent PRA attached to said letter its Evaluation Report dated October
18, 2010.57
Petitioner likewise received a copy of respondent PRA’s letter dated October 19, 2010, which
authorized respondent Province to proceed with phase 1 of the reclamation project, subject to
compliance with the requirements of its Evaluation Report. The reclamation project was
described as:
"[A] seafront development involving reclamation of an aggregate area of more or less, forty (40)
hectares in two (2) separate sites both in Malay Municipality, Aklan Province. Site 1 is in Brgy.
Caticlan with a total area of 36.82 hectares and Site 2 in Brgy. Manoc-Manoc, Boracay Island
with a total area of 3.18 hectares. Sites 1 and 2 are on the opposite sides of Tabon Strait, about
1,200 meters apart. x x x." 58 (Emphases added.)
The Sangguniang Panlalawigan of Aklan, through Resolution No. 2010-034,59 addressed the
apprehensions of petitioner embodied in its Resolution No. 001, s. 2010, and supported the
implementation of the project. Said resolution stated that the apprehensions of petitioner with
regard to the economic, social and political negative impacts of the projects were mere
perceptions and generalities and were not anchored on definite scientific, social and political
studies.
In the meantime, a study was commissioned by the Philippine Chamber of Commerce and
Industry-Boracay (PCCI-Boracay), funded by the Department of Tourism (DOT) with the
assistance of, among others, petitioner. The study was conducted in November 2010 by several
marine biologists/experts from the Marine Environmental Resources Foundation (MERF) of the
UPMSI. The study was intended to determine the potential impact of a reclamation project in the
hydrodynamics of the strait and on the coastal erosion patterns in the southern coast of Boracay
Island and along the coast of Caticlan.60
After noting the objections of the respective LGUs of Caticlan and Malay, as well as the
apprehensions of petitioner, respondent Province issued a notice to the contractor on December
1, 2010 to commence with the construction of the project. 61
On April 4, 2011, the Sangguniang Panlalawigan of Aklan, through its Committee on
Cooperatives, Food, Agriculture, and Environmental Protection and the Committee on Tourism,
Trade, Industry and Commerce, conducted a joint committee hearing wherein the study
undertaken by the MERF-UPMSI was discussed.62 In attendance were Mr. Ariel Abriam,
President of PCCI-Boracay, representatives from the Provincial Government, and Dr. Cesar
Villanoy, a professor from the UPMSI. Dr. Villanoy said that the subject project, consisting of
2.64 hectares, would only have insignificant effect on the hydrodynamics of the strait traversing
the coastline of Barangay Caticlan and Boracay, hence, there was a distant possibility that it
would affect the Boracay coastline, which includes the famous white-sand beach of the island.63
Thus, on April 6, 2011, the Sangguniang Panlalawigan of Aklan enacted Resolution No. 2011-
06564 noting the report on the survey of the channel between Caticlan and Boracay conducted by
the UPMSI in relation to the effects of the ongoing reclamation to Boracay beaches, and stating
that Dr. Villanoy had admitted that nowhere in their study was it pointed out that there would be
an adverse effect on the white-sand beach of Boracay.
During the First Quarter Regular Meeting of the Regional Development Council, Region VI
(RDC-VI) on April 16, 2011, it approved and supported the subject project (covering 2.64
hectares) through RDC-VI Resolution No. VI-26, series of 2011.65
Subsequently, Mr. Abriam sent a letter to Governor Marquez dated April 25, 2011 stating that the
study conducted by the UPMSI confirms that the water flow across the Caticlan-Boracay channel
is primarily tide-driven, therefore, the marine scientists believe that the 2.64-hectare project of
respondent Province would not significantly affect the flow in the channel and would unlikely
impact the Boracay beaches. Based on this, PCCI-Boracay stated that it was not opposing the
2.64-hectare Caticlan reclamation project on environmental grounds. 66
On June 1, 2011, petitioner filed the instant Petition for Environmental Protection Order/Issuance
of the Writ of Continuing Mandamus. On June 7, 2011, this Court issued a Temporary
Environmental Protection Order (TEPO) and ordered the respondents to file their respective
comments to the petition.67
After receiving a copy of the TEPO on June 9, 2011, respondent Province immediately issued an
order to the Provincial Engineering Office and the concerned contractor to cease and desist from
conducting any construction activities until further orders from this Court.
The petition is premised on the following grounds:
I.
The respondent Province, proponent of the reclamation project, failed to comply with relevant
rules and regulations in the acquisition of an ECC.
A. The reclamation project is co-located within environmentally critical areas requiring
the performance of a full, or programmatic, environmental impact assessment.
B. Respondent Province failed to obtain the favorable endorsement of the LGU
concerned.
C. Respondent Province failed to conduct the required consultation procedures as
required by the Local Government Code.
 D. Respondent Province failed to perform a full environmental impact assessment as
required by law and relevant regulations.
II.
The reclamation of land bordering the strait between Caticlan and Boracay shall adversely affect
the frail ecological balance of the area.68
Petitioner objects to respondent Province’s classification of the reclamation project as single
instead of co-located, as "non-environmentally critical," and as a mere "rehabilitation" of the
existing jetty port. Petitioner points out that the reclamation project is on two sites (which are
situated on the opposite sides of Tabon Strait, about 1,200 meters apart):
 36.82 hectares – Site 1, in Bgy. Caticlan
 3.18 hectares – Site 2, in Manoc-manoc, Boracay Island69
Phase 1, which was started in December 2010 without the necessary permits, 70 is located on the
Caticlan side of a narrow strait separating mainland Aklan from Boracay. In the implementation
of the project, respondent Province obtained only an ECC to conduct Phase 1, instead of an
ECC on the entire 40 hectares. Thus, petitioner argues that respondent Province abused and
exploited the Revised Procedural Manual for DENR Administrative Order No. 30, Series of 2003
(DENR DAO 2003-30)71 relating to the acquisition of an ECC by:
1. Declaring the reclamation project under "Group II Projects-Non-ECP (environmentally
critical project) in ECA (environmentally critical area) based on the type and size of the
area," and
2. Failing to declare the reclamation project as a co-located project application which
would have required the Province to submit a Programmatic Environmental Impact
Statement (PEIS)72 or Programmatic Environmental [Performance] Report Management
Plan (PE[P]RMP).73 (Emphases ours.)
Petitioner further alleges that the Revised Procedural Manual (on which the classification above
is based, which merely requires an Environmental Impact Statement [EIS] for Group II projects)
is patently ultra vires, and respondent DENR-EMB RVI committed grave abuse of discretion
because the laws on EIS, namely, Presidential Decree Nos. 1151 and 1586, as well as
Presidential Proclamation No. 2146, clearly indicate that projects in environmentally critical areas
are to be immediately considered environmentally critical. Petitioner complains that respondent
Province applied for an ECC only for Phase 1; hence, unlawfully
evading the requirement that co-located projects74 within Environmentally Critical Areas (ECAs)
must submit a PEIS and/or a PEPRMP.
Petitioner argues that respondent Province fraudulently classified and misrepresented the
project as a Non-ECP in an ECA, and as a single project instead of a co-located one. The impact
assessment allegedly performed gives a patently erroneous and wrongly-premised appraisal of
the possible environmental impact of the reclamation project. Petitioner contends that
respondent Province’s choice of classification was designed to avoid a comprehensive impact
assessment of the reclamation project.
Petitioner further contends that respondent DENR-EMB RVI willfully and deliberately
disregarded its duty to ensure that the environment is protected from harmful developmental
projects because it allegedly performed only a cursory and superficial review of the documents
submitted by the respondent Province for an ECC, failing to note that all the information and data
used by respondent Province in its application for the ECC were all dated and not current, as
data was gathered in the late 1990s for the ECC issued in 1999 for the first jetty port. Thus,
petitioner alleges that respondent DENR-EMB RVI ignored the environmental impact to Boracay,
which involves changes in the structure of the coastline that could contribute to the changes in
the characteristics of the sand in the beaches of both Caticlan and Boracay.
Petitioner insists that reclamation of land at the Caticlan side will unavoidably adversely affect
the Boracay side and notes that the declared objective of the reclamation project is for the
exploitation of Boracay’s tourist trade, since the project is intended to enhance support services
thereto. But, petitioner argues, the primary reason for Boracay’s popularity is its white-sand
beaches which will be negatively affected by the project.
Petitioner alleges that respondent PRA had required respondent Province to obtain the favorable
endorsement of the LGUs of Barangay Caticlan and Malay Municipality pursuant to the
consultation procedures as required by the Local Government Code. 75 Petitioner asserts that the
reclamation project is in violation not only of laws on EIS but also of the Local Government Code
as respondent Province failed to enter into proper consultations with the concerned LGUs. In
fact, the Liga ng mga Barangay-Malay Chapter also expressed strong opposition against the
project.76
Petitioner cites Sections 26 and 27 of the Local Government Code, which require consultations if
the project or program may cause pollution, climactic change, depletion of non-renewable
resources, etc. According to petitioner, respondent Province ignored the LGUs’ opposition
expressed as early as 2008. Not only that, respondent Province belatedly called for public
"consultation meetings" on June 17 and July 28, 2010, after an ECC had already been issued
and the MOA between respondents PRA and Province had already been executed. As the
petitioner saw it, these were not consultations but mere "project presentations."
Petitioner claims that respondent Province, aided and abetted by respondents PRA and DENR-
EMB, ignored the spirit and letter of the Revised Procedural Manual, intended to implement the
various regulations governing the Environmental Impact Assessments (EIAs) to ensure that
developmental projects are in line with sustainable development of natural resources. The
project was conceptualized without considering alternatives.
Further, as to its allegation that respondent Province failed to perform a full EIA, petitioner
argues that while it is true that as of now, only the Caticlan side has been issued an ECC, the
entire project involves the Boracay side, which should have been considered a co-located
project. Petitioner claims that any project involving Boracay requires a full EIA since it is an ECA.
Phase 1 of the project will affect Boracay and Caticlan as they are separated only by a narrow
strait; thus, it should be considered an ECP. Therefore, the ECC and permit issued must be
invalidated and cancelled.
Petitioner contends that a study shows that the flow of the water through a narrower channel due
to the reclamation project will likely divert sand transport off the southwest part of Boracay,
whereas the characteristic coast of the Caticlan side of the strait indicate stronger sediment
transport.77 The white-sand beaches of Boracay and its surrounding marine environment depend
upon the natural flow of the adjacent waters.
Regarding its claim that the reclamation of land bordering the strait between Caticlan and
Boracay shall adversely affect the frail ecological balance of the area, petitioner submits that
while the study conducted by the MERF-UPMSI only considers the impact of the reclamation
project on the land, it is undeniable that it will also adversely affect the already frail ecological
balance of the area. The effect of the project would have been properly assessed if the proper
EIA had been performed prior to any implementation of the project.
According to petitioner, respondent Province’s intended purposes do not prevail over its duty and
obligation to protect the environment. Petitioner believes that rehabilitation of the Jetty Port may
be done through other means.
In its Comment78 dated June 21, 2011, respondent Province claimed that application for
reclamation of 40 hectares is advantageous to the Provincial Government considering that its
filing fee would only cost Php20,000.00 plus Value Added Tax (VAT) which is also the minimum
fee as prescribed under Section 4.2 of Administrative Order No. 2007-2.79
Respondent Province considers the instant petition to be premature; thus, it must necessarily fail
for lack of cause of action due to the failure of petitioner to fully exhaust the available
administrative remedies even before seeking judicial relief. According to respondent Province,
the petition primarily assailed the decision of respondent DENR-EMB RVI in granting the ECC
for the subject project consisting of 2.64 hectares and sought the cancellation of the ECC for
alleged failure of respondent Province to submit proper documentation as required for its
issuance. Hence, the grounds relied upon by petitioner can be addressed within the confines of
administrative processes provided by law.
Respondent Province believes that under Section 5.4.3 of DENR Administrative Order No. 2003-
30 (DAO 2003-30),80 the issuance of an ECC81 is an official decision of DENR-EMB RVI on the
application of a project proponent.82 It cites Section 6 of DENR DAO 2003-30, which provides for
a remedy available to the party aggrieved by the final decision on the proponent’s ECC
applications.
Respondent Province argues that the instant petition is anchored on a wrong premise that
results to petitioner’s unfounded fears and baseless apprehensions. It is respondent Province’s
contention that its 2.64-hectare reclamation project is considered as a "stand alone project,"
separate and independent from the approved area of 40 hectares. Thus, petitioner should have
observed the difference between the "future development plan" of respondent Province from its
"actual project" being undertaken.83
Respondent Province clearly does not dispute the fact that it revised its original application to
respondent PRA from 2.64 hectares to 40 hectares. However, it claims that such revision is part
of its future plan, and implementation thereof is "still subject to availability of funds, independent
scientific environmental study, separate application of ECC and notice to proceed to be issued
by respondent PRA."84
Respondent Province goes on to claim that "[p]etitioner’s version of the Caticlan jetty port
expansion project is a bigger project which is still at the conceptualization stage. Although this
project was described in the Notice to Proceed issued by respondent PRA to have two phases,
36.82 hectares in Caticlan and 3.18 hectares in Boracay [Island,] it is totally different from the
[ongoing] Caticlan jetty port expansion project." 85
Respondent Province says that the Accomplishment Report 86 of its Engineering Office would
attest that the actual project consists of 2.64 hectares only, as originally planned and
conceptualized, which was even reduced to 2.2 hectares due to some construction and design
modifications.
Thus, respondent Province alleges that from its standpoint, its capability to reclaim is limited to
2.64 hectares only, based on respondent PRA’s Evaluation Report 87 dated October 18, 2010,
which was in turn the basis of the issuance of the Notice to Proceed dated October 19, 2010,
because the project’s financial component is ₱260,000,000.00 only. Said Evaluation Report
indicates that the implementation of the other phases of the project including site 2, which
consists of the other portions of the 40-hectare area that includes a portion in Boracay, is still
within the 10-year period and will depend largely on the availability of funds of respondent
Province.88
So, even if respondent PRA approved an area that would total up to 40 hectares, it was divided
into phases in order to determine the period of its implementation. Each phase was separate and
independent because the source of funds was also separate. The required documents and
requirements were also specific for each phase. The entire approved area of 40 hectares could
be implemented within a period of 10 years but this would depend solely on the availability of
funds.89
As far as respondent Province understands it, additional reclamations not covered by the ECC,
which only approved 2.64 hectares, should undergo another EIA. If respondent Province intends
to commence the construction on the other component of the 40 hectares, then it agrees that it is
mandated to secure a new ECC.90
Respondent Province admits that it dreamt of a 40-hectare project, even if it had originally
planned and was at present only financially equipped and legally compliant to undertake 2.64
hectares of the project, and only as an expansion of its old jetty port.91
Respondent Province claims that it has complied with all the necessary requirements for
securing an ECC. On the issue that the reclamation project is within an ECA requiring the
performance of a full or programmatic EIA, respondent Province reiterates that the idea of
expanding the area to 40 hectares is only a future plan. It only secured an ECC for 2.64
hectares, based on the limits of its funding and authority. From the beginning, its intention was to
rehabilitate and expand the existing jetty port terminal to accommodate an increasing projected
traffic. The subject project is specifically classified under DENR DAO 2003-30 on its Project
Grouping Matrix for Determination of EIA Report Type considered as Minor Reclamation
Projects falling under Group II – Non ECP in an ECA. Whether 2.64 or 40 hectares in area, the
subject project falls within this classification.
Consequently, respondent Province claims that petitioner erred in considering the ongoing
reclamation project at Caticlan, Malay, Aklan, as co-located within an ECA.
Respondent Province, likewise argues that the 2.64-hectare project is not a component of the
approved 40-hectare area as it is originally planned for the expansion site of the existing Caticlan
jetty port. At present, it has no definite conceptual construction plan of the said portion in
Boracay and it has no financial allocation to initiate any project on the said Boracay portion.
Furthermore, respondent Province contends that the present project is located in Caticlan while
the alleged component that falls within an ECA is in Boracay. Considering its geographical
location, the two sites cannot be considered as a contiguous area for the reason that it is
separated by a body of water – a strait that traverses between the mainland Panay wherein
Caticlan is located and Boracay. Hence, it is erroneous to consider the two sites as a co-located
project within an ECA. Being a "stand alone project" and an expansion of the existing jetty port,
respondent DENR-EMB RVI had required respondent Province to perform an EPRMP to secure
an ECC as sanctioned by Item No. 8(b), page 7 of DENR DAO 2003-30.
Respondent Province contends that even if, granting for the sake of argument, it had
erroneously categorized its project as Non-ECP in an ECA, this was not a final determination.
Respondent DENR-EMB RVI, which was the administrator of the EIS system, had the final
decision on this matter. Under DENR DAO 2003-30, an application for ECC, even for a Category
B2 project where an EPRMP is conducted, shall be subjected to a review process. Respondent
DENR-EMB RVI had the authority to deny said application. Its Regional Director could either
issue an ECC for the project or deny the application. He may also require a more comprehensive
EIA study. The Regional Director issued the ECC based on the EPRMP submitted by
respondent Province and after the same went through the EIA review process.
Thus, respondent Province concludes that petitioner’s allegation of this being a "co-located
project" is premature if not baseless as the bigger reclamation project is still on the
conceptualization stage. Both respondents PRA and Province are yet to complete studies and
feasibility studies to embark on another project.
Respondent Province claims that an ocular survey of the reclamation project revealed that it had
worked within the limits of the ECC.92
With regard to petitioner’s allegation that respondent Province failed to get the favorable
endorsement of the concerned LGUs in violation of the Local Government Code, respondent
Province contends that consultation vis-à-vis the favorable endorsement from the concerned
LGUs as contemplated under the Local Government Code are merely tools to seek advice and
not a power clothed upon the LGUs to unilaterally approve or disapprove any government
projects. Furthermore, such endorsement is not necessary for projects falling under Category B2
unless required by the DENR-EMB RVI, under Section 5.3 of DENR DAO 2003-30.
Moreover, DENR Memorandum Circular No. 08-2007 no longer requires the issuance of permits
and certifications as a pre-requisite for the issuance of an ECC. Respondent Province claims to
have conducted consultative activities with LGUs in connection with Sections 26 and 27 of the
Local Government Code. The vehement and staunch objections of both the Sangguniang
Barangay of Caticlan and the Sangguniang Bayan of Malay, according to respondent Province,
were not rooted on its perceived impact upon the people and the community in terms of
environmental or ecological balance, but due to an alleged conflict with their "principal position to
develop, utilize and reap benefits from the natural resources found within its
jurisdiction."93 Respondent Province argues that these concerns are not within the purview of the
Local Government Code. Furthermore, the Preliminary Geohazard Assessment Report and
EPRMP as well as Sangguniang Panlalawigan Resolution Nos. 2010-022 and 2010-034 should
address any environmental issue they may raise.
Respondent Province posits that the spirit and intent of Sections 26 and 27 of the Local
Government Code is to create an avenue for parties, the proponent and the LGU concerned, to
come up with a tool in harmonizing its views and concerns about the project. The duty to consult
does not automatically require adherence to the opinions during the consultation process. It is
allegedly not within the provisions to give the full authority to the LGU concerned to unilaterally
approve or disapprove the project in the guise of requiring the proponent of securing its
favorable endorsement. In this case, petitioner is calling a halt to the project without providing an
alternative resolution to harmonize its position and that of respondent Province.
Respondent Province claims that the EPRMP94 would reveal that:
[T]he area fronting the project site is practically composed of sand. Dead coral communities may
be found along the vicinity. Thus, fish life at the project site is quite scarce due to the absence of
marine support systems like the sea grass beds and coral reefs.
x x x [T]here is no coral cover at the existing Caticlan jetty port. [From] the deepest point of jetty
to the shallowest point, there was no more coral patch and the substrate is sandy. It is of public
knowledge that the said foreshore area is being utilized by the residents ever since as berthing
or anchorage site of their motorized banca. There will be no possibility of any coral development
therein because of its continuous utilization. Likewise, the activity of the strait that traverses
between the main land Caticlan and Boracay Island would also be a factor of the coral
development. Corals [may] only be formed within the area if there is scientific human
intervention, which is absent up to the present.
In light of the foregoing premise, it casts serious doubt on petitioner’s allegations pertaining to
the environmental effects of Respondent-LGU’s 2.64 hectares reclamation project. The alleged
environmental impact of the subject project to the beaches of Boracay Island remains
unconfirmed. Petitioner had unsuccessfully proven that the project would cause imminent, grave
and irreparable injury to the community. 95
Respondent Province prayed for the dissolution of the TEPO, claiming that the rules provide that
the TEPO may be dissolved if it appears after hearing that its issuance or continuance would
cause irreparable damage to the party or person enjoined, while the applicant may be fully
compensated for such damages as he may suffer and subject to the posting of a sufficient bond
by the party or person enjoined. Respondent Province contends that the TEPO would cause
irreparable damage in two aspects:
a. Financial dislocation and probable bankruptcy; and
b. Grave and imminent danger to safety and health of inhabitants of immediate area,
including tourists and passengers serviced by the jetty port, brought about by the abrupt
cessation of development works.
As regards financial dislocation, the arguments of respondent Province are summarized below:
1. This project is financed by bonds which the respondent Province had issued to its
creditors as the financing scheme in funding the present project is by way of credit
financing through bond flotation.
2. The funds are financed by a Guarantee Bank – getting payment from bonds, being
sold to investors, which in turn would be paid by the income that the project would
realize or incur upon its completion.
3. While the project is under construction, respondent Province is appropriating a portion
of its Internal Revenue Allotment (IRA) budget from the 20% development fund to defray
the interest and principal amortization due to the Guarantee Bank.
4. The respondent Province’s IRA, regular income, and/or such other revenues or funds,
as may be permitted by law, are being used as security for the payment of the said loan
used for the project’s construction.
5. The inability of the subject project to earn revenues as projected upon completion will
compel the Province to shoulder the full amount of the obligation, starting from year
2012.
6. Respondent province is mandated to assign its IRA, regular income and/or such other
revenues or funds as permitted by law; if project is stopped, detriment of the public
welfare and its constituents.96
As to the second ground for the dissolution of the TEPO, respondent Province argues:
1. Non-compliance with the guidelines of the ECC may result to environmental hazards
most especially that reclaimed land if not properly secured may be eroded into the sea.
2. The construction has accomplished 65.26 percent of the project. The embankment
that was deposited on the project has no proper concrete wave protection that might be
washed out in the event that a strong typhoon or big waves may occur affecting the strait
and the properties along the project site. It is already the rainy season and there is a big
possibility of typhoon occurrence.
3. If said incident occurs, the aggregates of the embankment that had been washed out
might be transferred to the adjoining properties which could affect its natural
environmental state.
4. It might result to the total alteration of the physical landscape of the area attributing to
environmental disturbance.
5. The lack of proper concrete wave protection or revetment would cause the total
erosion of the embankment that has been dumped on the accomplished area. 97
Respondent Province claims that petitioner will not stand to suffer immediate, grave and
irreparable injury or damage from the ongoing project. The petitioner’s perceived fear of
environmental destruction brought about by its erroneous appreciation of available data is
unfounded and does not translate into a matter of extreme urgency. Thus, under the Rules of
Procedure on Environmental Cases, the TEPO may be dissolved.
Respondent PRA filed its Comment98 on June 22, 2011. It alleges that on June 24, 2006,
Executive Order No. 543 delegated the power "to approve reclamation projects to respondent
PRA through its governing Board, subject to compliance with existing laws and rules and further
subject to the condition that reclamation contracts to be executed with any person or entity
(must) go through public bidding."
Section 4 of respondent PRA’s Administrative Order No. 2007-2 provides for the approval
process and procedures for various reclamation projects to be undertaken. Respondent PRA
prepared an Evaluation Report on November 5, 2009 99 regarding Aklan’s proposal to increase its
project to 40 hectares.
Respondent PRA contends that it was only after respondent Province had complied with the
requirements under the law that respondent PRA, through its Board of Directors, approved the
proposed project under its Board Resolution No. 4094. 100 In the same Resolution, respondent
PRA Board authorized the General Manager/CEO to execute a MOA with the Aklan provincial
government to implement the reclamation project under certain conditions.
The issue for respondent PRA was whether or not it approved the respondent Province’s 2.64-
hectare reclamation project proposal in willful disregard of alleged "numerous irregularities" as
claimed by petitioner.101
Respondent PRA claims that its approval of the Aklan Reclamation Project was in accordance
with law and its rules. Indeed, it issued the notice to proceed only after Aklan had complied with
all the requirements imposed by existing laws and regulations. It further contends that the 40
hectares involved in this project remains a plan insofar as respondent PRA is concerned. What
has been approved for reclamation by respondent PRA thus far is only the 2.64-hectare
reclamation project. Respondent PRA reiterates that it approved this reclamation project after
extensively reviewing the legal, technical, financial, environmental, and operational aspects of
the proposed reclamation.102
One of the conditions that respondent PRA Board imposed before approving the Aklan project
was that no reclamation work could be started until respondent PRA has approved the detailed
engineering plans/methodology, design and specifications of the reclamation. Part of the
required submissions to respondent PRA includes the drainage design as approved by the
Public Works Department and the ECC as issued by the DENR, all of which the Aklan
government must submit to respondent PRA before starting any reclamation works. 103 Under
Article IV(B)(3) of the MOA between respondent PRA and Aklan, the latter is required to submit,
apart from the ECC, the following requirements for respondent PRA’s review and approval, as
basis for the issuance of a Notice to Proceed (NTP) for Reclamation Works:
(a) Land-form plan with technical description of the metes and bounds of the same land-
form;
(b) Final master development and land use plan for the project;
(c) Detailed engineering studies, detailed engineering design, plans and specification for
reclamation works, reclamation plans and methodology, plans for the sources of fill
materials;
(d) Drainage plan vis-a-vis the land-form approved by DPWH Regional Office to include
a cost effective and efficient drainage system as may be required based on the results of
the studies;
(e) Detailed project cost estimates and quantity take-off per items of work of the rawland
reclamation components, e.g. reclamation containment structures and soil consolidation;
(f) Organizational chart of the construction arm, manning table, equipment schedule for
the project; and,
(g) Project timetable (PERT/CPM) for the entire project construction period. 104
In fact, respondent PRA further required respondent Province under Article IV (B)(24) of the
MOA to strictly comply with all conditions of the DENR-EMB-issued ECC "and/or comply with
pertinent local and international commitments of the Republic of the Philippines to ensure
environmental protection."105
In its August 11, 2010 letter,106 respondent PRA referred for respondent Province’s appropriate
action petitioner’s Resolution 001, series of 2010 and Resolution 46, series of 2010, of the
Sangguniang Bayan of Malay. Governor Marquez wrote respondent PRA 107 on September 16,
2010 informing it that respondent Province had already met with the different officials of Malay,
furnishing respondent PRA with the copies of the minutes of such meetings/presentations.
Governor Marquez also assured respondent PRA that it had complied with the consultation
requirements as far as Malay was concerned.
Respondent PRA claims that in evaluating respondent Province’s project and in issuing the
necessary NTP for Phase 1 of Site 1 (2.64 hectares) of the Caticlan Jetty Port expansion and
modernization, respondent PRA gave considerable weight to all pertinent issuances, especially
the ECC issued by DENR-EMB RVI.108 Respondent PRA stresses that its earlier approval of the
40-hectare reclamation project under its Resolution No. 4094, series of 2010, still requires a
second level of compliance requirements from the proponent. Respondent Province could not
possibly begin its reclamation works since respondent PRA had yet to issue an NTP in its favor.
Respondent PRA alleges that prior to the issuance of the NTP to respondent Province for Phase
1 of Site 1, it required the submission of the following pre-construction documents:
(a) Land-Form Plan (with technical description);
(b) Site Development Plan/Land Use Plan including,
(i) sewer and drainage systems and
(ii) waste water treatment;
(c) Engineering Studies and Engineering Design;
(d) Reclamation Methodology;
(e) Sources of Fill Materials, and,
(f) The ECC.109
Respondent PRA claims that it was only after the evaluation of the above submissions that it
issued to respondent Province the NTP, limited to the 2.64-hectare reclamation project.
Respondent PRA even emphasized in its evaluation report that should respondent Province
pursue the other phases of its project, it would still require the submission of an ECC for each
succeeding phases before the start of any reclamation works. 110
Respondent PRA, being the national government’s arm in regulating and coordinating all
reclamation projects in the Philippines – a mandate conferred by law – manifests that it is
incumbent upon it, in the exercise of its regulatory functions, to diligently evaluate, based on its
technical competencies, all reclamation projects submitted to it for approval. Once the
reclamation project’s requirements set forth by law and related rules have been complied with,
respondent PRA is mandated to approve the same. Respondent PRA claims, "[w]ith all the
foregoing rigorous and detailed requirements submitted and complied with by Aklan, and the
attendant careful and meticulous technical and legal evaluation by respondent PRA, it cannot be
argued that the reclamation permit it issued to Aklan is ‘founded upon numerous irregularities;’
as recklessly and baselessly imputed by BFI."111
In its Comment112 dated July 1, 2011, respondent DENR-EMB RVI asserts that its act of issuing
the ECC certifies that the project had undergone the proper EIA process by assessing, among
others, the direct and indirect impact of the project on the biophysical and human environment
and ensuring that these impacts are addressed by appropriate environmental protection and
enhancement measures, pursuant to Presidential Decree No. 1586, the Revised Procedural
Manual for DENR DAO 2003-30, and the existing rules and regulations. 113
Respondent DENR-EMB RVI stresses that the declaration in 1978 of several islands, which
includes Boracay as tourist zone and marine reserve under Proclamation No. 1801, has no
relevance to the expansion project of Caticlan Jetty Port and Passenger Terminal for the very
reason that the project is not located in the Island of Boracay, being located in Barangay
Caticlan, Malay, which is not a part of mainland Panay. It admits that the site of the subject jetty
port falls within the ECA under Proclamation No. 2146 (1981), being within the category of a
water body. This was why respondent Province had faithfully secured an ECC pursuant to the
Revised Procedural Manual for DENR DAO 2003-30 by submitting the necessary documents as
contained in the EPRMP on March 19, 2010, which were the bases in granting ECC No. R6-
1003-096-7100 (amended) on April 27, 2010 for the expansion of Caticlan Jetty Port and
Passenger Terminal, covering 2.64 hectares.114
Respondent DENR-EMB RVI claims that the issues raised by the LGUs of Caticlan and Malay
had been considered by the DENR-Provincial Environment and Natural Resources Office
(PENRO), Aklan in the issuance of the Order 115 dated January 26, 2010, disregarding the claim
of the Municipality of Malay, Aklan of a portion of the foreshore land in Caticlan covered by the
application of the Province of Aklan; and another Order of Rejection dated February 5, 2010 of
the two foreshore applications, namely FLA No. 060412-43A and FLA No. 060412-43B, of the
Province of Aklan.116
Respondent DENR-EMB RVI contends that the supporting documents attached to the EPRMP
for the issuance of an ECC were merely for the expansion and modernization of the old jetty port
in Barangay Caticlan covering 2.64 hectares, and not the 40-hectare reclamation project in
Barangay Caticlan and Boracay. The previous letter of respondent Province dated October 14,
2009 addressed to DENR-EMB RVI Regional Executive Director, would show that the
reclamation project will cover approximately 2.6 hectares.117 This application for ECC was not
officially accepted due to lack of requirements or documents.
Although petitioner insists that the project involves 40 hectares in two sites, respondent DENR-
EMB RVI looked at the documents submitted by respondent Province and saw that the subject
area covered by the ECC application and subsequently granted with ECC-R6-1003-096-7100
consists only of 2.64 hectares; hence, respondent DENR-EMB RVI could not comment on the
excess area.118
Respondent DENR-EMB RVI admits that as regards the classification of the 2.64-hectare
reclamation project under "Non ECP in ECA," this does not fall within the definition of a co-
located project because the subject project is merely an expansion of the old Caticlan Jetty Port,
which had a previously issued ECC (ECC No. 0699-1012-171 on October 12, 1999). Thus, only
an EPRMP, not a PEIS or PEPRMP, is required.119
Respondent Province submitted to respondent DENR-EMB RVI the following documents
contained in the EPRMP:
a. The Observations on the Floor Bottom and its Marine Resources at the Proposed
Jetty Ports at Caticlan and Manok-manok, Boracay, Aklan, conducted in 1999 by the
Bureau of Fisheries Aquatic Resources (BFAR) Central Office, particularly in Caticlan
site, and
b. The Study conducted by Dr. Ricarte S. Javelosa, Ph. D, Mines and Geosciences
Bureau (MGB), Central Office and Engr. Roger Esto, Provincial Planning and
Development Office (PPDO), Aklan in 2009 entitled "Preliminary Geo-hazard
Assessment for the Enhancement of the Existing Caticlan Jetty Port Terminal through
Beach Zone Restoration and Protective Marina Development in Malay, Aklan."
Respondent DENR-EMB RVI claims that the above two scientific studies were enough for it to
arrive at a best professional judgment to issue an amended ECC for the Aklan Marina Project
covering 2.64 hectares.120Furthermore, to confirm that the 2.64-hectare reclamation has no
significant negative impact with the surrounding environment particularly in Boracay, a more
recent study was conducted, and respondent DENR-EMB RVI alleges that "[i]t is very important
to highlight that the input data in the [MERF- UPMSI] study utilized the [40-hectare] reclamation
and [200-meter] width seaward using the tidal and wave modelling." 121 The study showed that
the reclamation of 2.64 hectares had no effect to the hydrodynamics of the strait between
Barangay Caticlan and Boracay.
Respondent DENR-EMB RVI affirms that no permits and/or clearances from National
Government Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum
Circular No. 2007-08, entitled "Simplifying the Requirements of ECC or CNC Applications;" that
the EPRMP was evaluated and processed based on the Revised Procedural Manual for DENR
DAO 2003-30 which resulted to the issuance of ECC-R6-1003-096-7100; and that the ECC is
not a permit per se but a planning tool for LGUs to consider in its decision whether or not to
issue a local permit.122
Respondent DENR-EMB RVI concludes that in filing this case, petitioner had bypassed and
deprived the DENR Secretary of the opportunity to review and/or reverse the decision of his
subordinate office, EMB RVI pursuant to the Revised Procedural Manual for DENR DAO 2003-
30. There is no "extreme urgency that necessitates the granting of Mandamus or issuance of
TEPO that put to balance between the life and death of the petitioner or present grave or
irreparable damage to environment." 123
After receiving the above Comments from all the respondents, the Court set the case for oral
arguments on September 13, 2011.
Meanwhile, on September 8, 2011, respondent Province filed a Manifestation and
Motion124 praying for the dismissal of the petition, as the province was no longer pursuing the
implementation of the succeeding phases of the project due to its inability to comply with Article
IV B.2(3) of the MOA; hence, the issues and fears expressed by petitioner had become moot.
Respondent Province alleges that the petition is "premised on a serious misappreciation of the
real extent of the contested reclamation project" as certainly the ECC covered only a total of
2,691 square meters located in Barangay Caticlan, Malay, Aklan; and although the MOA spoke
of 40 hectares, respondent Province’s submission of documents to respondent PRA pertaining
to said area was but the first of a two-step process of approval. Respondent Province claims that
its failure to comply with the documentary requirements of respondent PRA within the period
provided, or 120 working days from the effectivity of the MOA, indicated its waiver to pursue the
remainder of the project.125 Respondent Province further manifested:
Confirming this in a letter dated 12 August 2011, 126 Governor Marquez informed respondent PRA
that the Province of Aklan is no longer "pursuing the implementation of the succeeding phases of
the project with a total area of 37.4 hectares for our inability to comply with Article IV B.2 (3) of
the MOA; hence, the existing MOA will cover only the project area of 2.64 hectares."
In his reply-letter dated August 22, 2011,127 [respondent] PRA General Manager informed
Governor Marquez that the [respondent] PRA Board of Directors has given [respondent] PRA
the authority to confirm the position of the Province of Aklan that the "Aklan Beach Zone
Restoration and Protection Marine Development Project will now be confined to the reclamation
and development of the 2.64 hectares, more or less.
It is undisputed from the start that the coverage of the Project is in fact limited to 2.64 hectares,
as evidenced by the NTP issued by respondent PRA. The recent exchange of correspondence
between respondents Province of Aklan and [respondent] PRA further confirms the intent of the
parties all along. Hence, the Project subject of the petition, without doubt, covers only 2.64 and
not 40 hectares as feared. This completely changes the extent of the Project and, consequently,
moots the issues and fears expressed by the petitioner. 128 (Emphasis supplied.)
Based on the above contentions, respondent Province prays that the petition be dismissed as no
further justiciable controversy exists since the feared adverse effect to Boracay Island’s ecology
had become academic all together.129
The Court heard the parties’ oral arguments on September 13, 2011 and gave the latter twenty
(20) days thereafter to file their respective memoranda.
Respondent Province filed another Manifestation and Motion, 130 which the Court received on
April 2, 2012 stating that:
1. it had submitted the required documents and studies to respondent DENR-EMB RVI
before an ECC was issued in its favor;
2. it had substantially complied with the requirements provided under PRA
Administrative Order 2007-2, which compliance caused respondent PRA’s Board to
approve the reclamation project; and
3. it had conducted a series of "consultative [presentations]" relative to the reclamation
project before the LGU of Malay Municipality, the Barangay Officials of Caticlan, and
stakeholders of Boracay Island.
Respondent Province further manifested that the Barangay Council of Caticlan, Malay, Aklan
enacted on February 13, 2012 Resolution No. 003, series of 2012, entitled "Resolution Favorably
Endorsing the 2.6 Hectares Reclamation/MARINA Project of the Aklan Provincial Government at
Caticlan Coastline"131 and that the Sangguniang Bayan of the Municipality of Malay, Aklan
enacted Resolution No. 020, series of 2012, entitled "Resolution Endorsing the 2.6 Hectares
Reclamation Project of the Provincial Government of Aklan Located at Barangay Caticlan,
Malay, Aklan."132
Respondent Province claims that its compliance with the requirements of respondents DENR-
EMB RVI and PRA that led to the approval of the reclamation project by the said government
agencies, as well as the recent enactments of the Barangay Council of Caticlan and the
Sangguniang Bayan of the Municipality of Malay favorably endorsing the said project, had
"categorically addressed all the issues raised by the Petitioner in its Petition dated June 1, 2011."
Respondent Province prays as follows:
WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that
after due proceedings, the following be rendered:
1. The Temporary Environmental Protection Order (TEPO) it issued on June 7, 2011 be
lifted/dissolved.
2. The instant petition be dismissed for being moot and academic.
3. Respondent Province of Aklan prays for such other reliefs that are just and equitable
under the premises. (Emphases in the original.)
ISSUES
The Court will now resolve the following issues:
 I. Whether or not the petition should be dismissed for having been rendered moot and
academic
II. Whether or not the petition is premature because petitioner failed to exhaust
administrative remedies before filing this case
III. Whether or not respondent Province failed to perform a full EIA as required by laws
and regulations based on the scope and classification of the project
IV. Whether or not respondent Province complied with all the requirements under the
pertinent laws and regulations
V. Whether or not there was proper, timely, and sufficient public consultation for the
project
DISCUSSION
On the issue of whether or not the Petition should be dismissed for having been rendered moot
and academic
Respondent Province claims in its Manifestation and Motion filed on April 2, 2012 that with the
alleged favorable endorsement of the reclamation project by the Sangguniang Barangay of
Caticlan and the Sangguniang Bayan of the Municipality of Malay, all the issues raised by
petitioner had already been addressed, and this petition should be dismissed for being moot and
academic.
On the contrary, a close reading of the two LGUs’ respective resolutions would reveal that they
are not sufficient to render the petition moot and academic, as there are explicit conditions
imposed that must be complied with by respondent Province. In Resolution No. 003, series of
2012, of the Sangguniang Barangay of Caticlan it is stated that "any vertical structures to be
constructed shall be subject for barangay endorsement." 133 Clearly, what the barangay endorsed
was the reclamation only, and not the entire project that includes the construction of a
commercial building and wellness center, and other tourism-related facilities. Petitioner’s
objections, as may be recalled, pertain not only to the reclamation per se, but also to the building
to be constructed and the entire project’s perceived ill effects to the surrounding environment.
Resolution No. 020, series of 2012, of the Sangguniang Bayan of Malay134 is even more specific.
It reads in part:
WHEREAS, noble it seems the reclamation project to the effect that it will generate scores of
benefits for the Local Government of Malay in terms of income and employment for its
constituents, but the fact cannot be denied that the project will take its toll on the environment
especially on the nearby fragile island of Boracay and the fact also remains that the project will
eventually displace the local transportation operators/cooperatives;
WHEREAS, considering the sensitivity of the project, this Honorable Body through the
Committee where this matter was referred conducted several consultations/committee hearings
with concerned departments and the private sector specifically Boracay Foundation, Inc. and
they are one in its belief that this Local Government Unit has never been against development
so long as compliance with the law and proper procedures have been observed and that
paramount consideration have been given to the environment lest we disturb the balance of
nature to the end that progress will be brought to naught;
WHEREAS, time and again, to ensure a healthy intergovernmental relations, this August Body
requires no less than transparency and faithful commitment from the Provincial Government of
Aklan in the process of going through these improvements in the Municipality because it once
fell prey to infidelities in matters of governance;
WHEREAS, as a condition for the grant of this endorsement and to address all issues and
concerns, this Honorable Council necessitates a sincere commitment from the Provincial
Government of Aklan to the end that:
1. To allocate an office space to LGU-Malay within the building in the reclaimed area;
2. To convene the Cagban and Caticlan Jetty Port Management Board before the
resumption of the reclamation project;
3. That the reclamation project shall be limited only to 2.6 hectares in Barangay Caticlan
and not beyond;
4. That the local transportation operators/cooperatives will not be displaced; and
5. The Provincial Government of Aklan conduct a simultaneous comprehensive study on
the environmental impact of the reclamation project especially during Habagat and
Amihan seasons and put in place as early as possible mitigating measures on the effect
of the project to the environment.
WHEREAS, having presented these stipulations, failure to comply herewith will leave this August
Body no choice but to revoke this endorsement, hence faithful compliance of the commitment of
the Provincial Government is highly appealed for[.] 135 (Emphases added.)
The Sangguniang Bayan of Malay obviously imposed explicit conditions for respondent Province
to comply with on pain of revocation of its endorsement of the project, including the need to
conduct a comprehensive study on the environmental impact of the reclamation project, which is
the heart of the petition before us. Therefore, the contents of the two resolutions submitted by
respondent Province do not support its conclusion that the subsequent favorable endorsement of
the LGUs had already addressed all the issues raised and rendered the instant petition moot and
academic.
On the issue of failure to exhaust administrative remedies
Respondents, in essence, argue that the present petition should be dismissed for petitioner’s
failure to exhaust administrative remedies and even to observe the hierarchy of courts.
Furthermore, as the petition questions the issuance of the ECC and the NTP, this involves
factual and technical verification, which are more properly within the expertise of the concerned
government agencies.
Respondents anchor their argument on Section 6, Article II of DENR DAO 2003-30, which
provides:
Section 6. Appeal
Any party aggrieved by the final decision on the ECC / CNC applications may, within 15 days
from receipt of such decision, file an appeal on the following grounds:
a. Grave abuse of discretion on the part of the deciding authority, or
b. Serious errors in the review findings.
The DENR may adopt alternative conflict/dispute resolution procedures as a means to settle
grievances between proponents and aggrieved parties to avert unnecessary legal action.
Frivolous appeals shall not be countenanced.
The proponent or any stakeholder may file an appeal to the following:
Deciding Authority Where to file the appeal
EMB Regional Office Director Office of the EMB Director
EMB Central Office Director Office of the DENR Secretary
DENR Secretary Office of the President
(Emphases supplied.)
Respondents argue that since there is an administrative appeal provided for, then petitioner is
duty bound to observe the same and may not be granted recourse to the regular courts for its
failure to do so.
We do not agree with respondents’ appreciation of the applicability of the rule on exhaustion of
administrative remedies in this case. We are reminded of our ruling in Pagara v. Court of
Appeals,136 which summarized our earlier decisions on the procedural requirement of exhaustion
of administrative remedies, to wit:
The rule regarding exhaustion of administrative remedies is not a hard and fast rule. It is not
applicable (1) where the question in dispute is purely a legal one, or (2) where the controverted
act is patently illegal or was performed without jurisdiction or in excess of jurisdiction; or (3)
where the respondent is a department secretary, whose acts as an alter ego of the President
bear the implied or assumed approval of the latter, unless actually disapproved by him, or (4)
where there are circumstances indicating the urgency of judicial intervention, - Gonzales vs.
Hechanova, L-21897, October 22, 1963, 9 SCRA 230; Abaya vs. Villegas, L-25641, December
17, 1966, 18 SCRA; Mitra vs. Subido, L-21691, September 15, 1967, 21 SCRA 127.
Said principle may also be disregarded when it does not provide a plain, speedy and adequate
remedy, (Cipriano vs. Marcelino, 43 SCRA 291), when there is no due process observed
(Villanos vs. Subido, 45 SCRA 299), or where the protestant has no other recourse (Sta. Maria
vs. Lopez, 31 SCRA 637).137 (Emphases supplied.)
As petitioner correctly pointed out, the appeal provided for under Section 6 of DENR DAO 2003-
30 is only applicable, based on the first sentence thereof, if the person or entity charged with the
duty to exhaust the administrative remedy of appeal to the appropriate government agency has
been a party or has been made a party in the proceedings wherein the decision to be appealed
was rendered. It has been established by the facts that petitioner was never made a party to the
proceedings before respondent DENR-EMB RVI. Petitioner was only informed that the project
had already been approved after the ECC was already granted. 138 Not being a party to the said
proceedings, it does not appear that petitioner was officially furnished a copy of the decision,
from which the 15-day period to appeal should be reckoned, and which would warrant the
application of Section 6, Article II of DENR DAO 2003-30.
Although petitioner was not a party to the proceedings where the decision to issue an ECC was
rendered, it stands to be aggrieved by the decision, 139 because it claims that the reclamation of
land on the Caticlan side would unavoidably adversely affect the Boracay side, where
petitioner’s members own establishments engaged in the tourism trade. As noted earlier,
petitioner contends that the declared objective of the reclamation project is to exploit Boracay’s
tourism trade because the project is intended to enhance support services thereto; however, this
objective would not be achieved since the white-sand beaches for which Boracay is famous
might be negatively affected by the project. Petitioner’s conclusion is that respondent Province,
aided and abetted by respondents PRA and DENR-EMB RVI, ignored the spirit and letter of our
environmental laws, and should thus be compelled to perform their duties under said laws.
The new Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, provides a relief for
petitioner under the writ of continuing mandamus, which is a special civil action that may be
availed of "to compel the performance of an act specifically enjoined by law" 140 and which
provides for the issuance of a TEPO "as an auxiliary remedy prior to the issuance of the writ
itself."141 The Rationale of the said Rules explains the writ in this wise:
Environmental law highlights the shift in the focal-point from the initiation of regulation by
Congress to the implementation of regulatory programs by the appropriate government
agencies.
Thus, a government agency’s inaction, if any, has serious implications on the future of
environmental law enforcement. Private individuals, to the extent that they seek to change the
scope of the regulatory process, will have to rely on such agencies to take the initial incentives,
which may require a judicial component. Accordingly, questions regarding the propriety of an
agency’s action or inaction will need to be analyzed.
This point is emphasized in the availability of the remedy of the writ of mandamus, which allows
for the enforcement of the conduct of the tasks to which the writ pertains: the performance of a
legal duty.142 (Emphases added.)
The writ of continuing mandamus "permits the court to retain jurisdiction after judgment in order
to ensure the successful implementation of the reliefs mandated under the court’s decision" and,
in order to do this, "the court may compel the submission of compliance reports from the
respondent government agencies as well as avail of other means to monitor compliance with its
decision."143
According to petitioner, respondent Province acted pursuant to a MOA with respondent PRA that
was conditioned upon, among others, a properly-secured ECC from respondent DENR-EMB
RVI. For this reason, petitioner seeks to compel respondent Province to comply with certain
environmental laws, rules, and procedures that it claims were either circumvented or ignored.
Hence, we find that the petition was appropriately filed with this Court under Rule 8, Section 1,
A.M. No. 09-6-8-SC, which reads:
SECTION 1. Petition for continuing mandamus.—When any agency or instrumentality of the
government or officer thereof unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust or station in connection with the
enforcement or violation of an environmental law rule or regulation or a right therein, or
unlawfully excludes another from the use or enjoyment of such right and there is no other plain,
speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may
file a verified petition in the proper court, alleging the facts with certainty, attaching thereto
supporting evidence, specifying that the petition concerns an environmental law, rule or
regulation, and praying that judgment be rendered commanding the respondent to do an act or
series of acts until the judgment is fully satisfied, and to pay damages sustained by the petitioner
by reason of the malicious neglect to perform the duties of the respondent, under the law, rules
or regulations. The petition shall also contain a sworn certification of non-forum shopping.
SECTION 2. Where to file the petition.—The petition shall be filed with the Regional Trial Court
exercising jurisdiction over the territory where the actionable neglect or omission occurred or
with the Court of Appeals or the Supreme Court.
Petitioner had three options where to file this case under the rule: the Regional Trial Court
exercising jurisdiction over the territory where the actionable neglect or omission occurred, the
Court of Appeals, or this Court.
Petitioner had no other plain, speedy, or adequate remedy in the ordinary course of law to
determine the questions of unique national and local importance raised here that pertain to laws
and rules for environmental protection, thus it was justified in coming to this Court.
Having resolved the procedural issue, we now move to the substantive issues.
On the issues of whether, based on the scope and classification of the project, a full EIA is
required by laws and regulations, and whether respondent Province complied with all the
requirements under the pertinent laws and regulations
Petitioner’s arguments on this issue hinges upon its claim that the reclamation project is
misclassified as a single project when in fact it is co-located. Petitioner also questions the
classification made by respondent Province that the reclamation project is merely an expansion
of the existing jetty port, when the project descriptions embodied in the different documents filed
by respondent Province describe commercial establishments to be built, among others, to raise
revenues for the LGU; thus, it should have been classified as a new project. Petitioner likewise
cries foul to the manner by which respondent Province allegedly circumvented the documentary
requirements of the DENR-EMB RVI by the act of connecting the reclamation project with its
previous project in 1999 and claiming that the new project is a mere expansion of the previous
one.
As previously discussed, respondent Province filed a Manifestation and Motion stating that the
ECC issued by respondent DENR-EMB RVI covered an area of 2,691 square meters in Caticlan,
and its application for reclamation of 40 hectares with respondent PRA was conditioned on its
submission of specific documents within 120 days. Respondent Province claims that its failure to
comply with said condition indicated its waiver to pursue the succeeding phases of the
reclamation project and that the subject matter of this case had thus been limited to 2.64
hectares. Respondent PRA, for its part, declared through its General Manager that the "Aklan
Beach Zone Restoration and Protection Marine Development Project will now be confined to the
reclamation and development of the 2.64 hectares, more or less." 144
The Court notes such manifestation of respondent Province. Assuming, however, that the area
involved in the subject reclamation project has been limited to 2.64 hectares, this case has not
become moot and academic, as alleged by respondents, because the Court still has to check
whether respondents had complied with all applicable environmental laws, rules, and regulations
pertaining to the actual reclamation project.
We recognize at this point that the DENR is the government agency vested with delegated
powers to review and evaluate all EIA reports, and to grant or deny ECCs to project
proponents.145 It is the DENR that has the duty to implement the EIS system. It appears,
however, that respondent DENR-EMB RVI’s evaluation of this reclamation project was
problematic, based on the valid questions raised by petitioner.
Being the administrator of the EIS System, respondent DENR-EMB RVI’s submissions bear
great weight in this case. However, the following are the issues that put in question the wisdom
of respondent DENR-EMB RVI in issuing the ECC:
1. Its approval of respondent Province’s classification of the project as a mere expansion
of the existing jetty port in Caticlan, instead of classifying it as a new project;
 2. Its classification of the reclamation project as a single instead of a co-located project;
3. The lack of prior public consultations and approval of local government agencies; and
4. The lack of comprehensive studies regarding the impact of the reclamation project to
the environment.
The above issues as raised put in question the sufficiency of the evaluation of the project by
respondent DENR-EMB RVI.
Nature of the project
The first question must be answered by respondent DENR-EMB RVI as the agency with the
expertise and authority to state whether this is a new project, subject to the more rigorous
environmental impact study requested by petitioner, or it is a mere expansion of the existing jetty
port facility.
The second issue refers to the classification of the project by respondent Province, approved by
respondent DENR-EMB RVI, as single instead of co-located. Under the Revised Procedural
Manual, the "Summary List of Additional Non-Environmentally-Critical Project (NECP) Types in
ECAs Classified under Group II" (Table I-2) lists "buildings, storage facilities and other
structures" as a separate item from "transport terminal facilities." This creates the question of
whether this project should be considered as consisting of more than one type of activity, and
should more properly be classified as "co-located," under the following definition from the same
Manual, which reads:
f) Group IV (Co-located Projects in either ECA or NECA): A co-located project is a group of
single projects, under one or more proponents/locators, which are located in a contiguous area
and managed by one administrator, who is also the ECC applicant. The co-located project may
be an economic zone or industrial park, or a mix of projects within a catchment, watershed or
river basin, or any other geographical, political or economic unit of area. Since the location or
threshold of specific projects within the contiguous area will yet be derived from the EIA process
based on the carrying capacity of the project environment, the nature of the project is called
"programmatic." (Emphasis added.)
Respondent DENR-EMB RVI should conduct a thorough and detailed evaluation of the project to
address the question of whether this could be deemed as a group of single projects (transport
terminal facility, building, etc.) in a contiguous area managed by respondent Province, or as a
single project.
The third item in the above enumeration will be discussed as a separate issue.
The answer to the fourth question depends on the final classification of the project under items 1
and 3 above because the type of EIA study required under the Revised Procedural Manual
depends on such classification.
The very definition of an EIA points to what was most likely neglected by respondent Province as
project proponent, and what was in turn overlooked by respondent DENR-EMB RVI, for it is
defined as follows:
An [EIA] is a ‘process that involves predicting and evaluating the likely impacts of a project
(including cumulative impacts) on the environment during construction, commissioning,
operation and abandonment. It also includes designing appropriate preventive, mitigating and
enhancement measures addressing these consequences to protect the environment and the
community’s welfare.146 (Emphases supplied.)
Thus, the EIA process must have been able to predict the likely impact of the reclamation project
to the environment and to prevent any harm that may otherwise be caused.
The project now before us involves reclamation of land that is more than five times the size of
the original reclaimed land. Furthermore, the area prior to construction merely contained a jetty
port, whereas the proposed expansion, as described in the EPRMP submitted by respondent
Province to respondent DENR-EMB RVI involves so much more, and we quote:
The expansion project will be constructed at the north side of the existing jetty port and terminal
that will have a total area of 2.64 hectares, more or less, after reclamation. The Phase 1 of the
project construction costing around ₱260 million includes the following:
1. Reclamation - 3,000 sq m (expansion of jetty port)
2. Reclamation - 13,500 sq m (buildable area)
3. Terminal annex building - 250 sq m
4. 2-storey commercial building – 2,500 sq m (1,750 sq m of leasable space)
5. Health and wellness center
6. Access road - 12 m (wide)
7. Parking, perimeter fences, lighting and water treatment sewerage system
8. Rehabilitation of existing jetty port and terminal
xxxx
The succeeding phases of the project will consist of [further] reclamation, completion of the
commercial center building, bay walk commercial strip, staff building, ferry terminal, a cable car
system and wharf marina. This will entail an additional estimated cost of ₱785 million bringing
the total investment requirement to about ₱1.0 billion. 147 (Emphases added.)
As may be gleaned from the breakdown of the 2.64 hectares as described by respondent
Province above, a significant portion of the reclaimed area would be devoted to the construction
of a commercial building, and the area to be utilized for the expansion of the jetty port consists of
a mere 3,000 square meters (sq. m). To be true to its definition, the EIA report submitted by
respondent Province should at the very least predict the impact that the construction of the new
buildings on the reclaimed land would have on the surrounding environment. These new
constructions and their environmental effects were not covered by the old studies that
respondent Province previously submitted for the construction of the original jetty port in 1999,
and which it re-submitted in its application for ECC in this alleged expansion, instead of
conducting updated and more comprehensive studies.
Any impact on the Boracay side cannot be totally ignored, as Caticlan and Boracay are
separated only by a narrow strait. This becomes more imperative because of the significant
contributions of Boracay’s white-sand beach to the country’s tourism trade, which requires
respondent Province to proceed with utmost caution in implementing projects within its vicinity.
We had occasion to emphasize the duty of local government units to ensure the quality of the
environment under Presidential Decree No. 1586 in Republic of the Philippines v. The City of
Davao,148 wherein we held:
Section 15 of Republic Act 7160, otherwise known as the Local Government Code, defines a
local government unit as a body politic and corporate endowed with powers to be exercised by it
in conformity with law. As such, it performs dual functions, governmental and proprietary.
Governmental functions are those that concern the health, safety and the advancement of the
public good or welfare as affecting the public generally. Proprietary functions are those that seek
to obtain special corporate benefits or earn pecuniary profit and intended for private advantage
and benefit. When exercising governmental powers and performing governmental duties, an
LGU is an agency of the national government. When engaged in corporate activities, it acts as
an agent of the community in the administration of local affairs.
Found in Section 16 of the Local Government Code is the duty of the LGUs to promote the
people’s right to a balanced ecology. Pursuant to this, an LGU, like the City of Davao, can not
claim exemption from the coverage of PD 1586. As a body politic endowed with governmental
functions, an LGU has the duty to ensure the quality of the environment, which is the very same
objective of PD 1586.
xxxx
Section 4 of PD 1586 clearly states that "no person, partnership or corporation shall undertake or
operate any such declared environmentally critical project or area without first securing an
Environmental Compliance Certificate issued by the President or his duly authorized
representative." The Civil Code defines a person as either natural or juridical. The state and its
political subdivisions, i.e., the local government units are juridical persons. Undoubtedly
therefore, local government units are not excluded from the coverage of PD 1586.
Lastly, very clear in Section 1 of PD 1586 that said law intends to implement the policy of the
state to achieve a balance between socio-economic development and environmental protection,
which are the twin goals of sustainable development. The above-quoted first paragraph of the
Whereas clause stresses that this can only be possible if we adopt a comprehensive and
integrated environmental protection program where all the sectors of the community are
involved, i.e., the government and the private sectors. The local government units, as part of the
machinery of the government, cannot therefore be deemed as outside the scope of the EIS
system.149(Emphases supplied.)
The Court chooses to remand these matters to respondent DENR-EMB RVI for it to make a
proper study, and if it should find necessary, to require respondent Province to address these
environmental issues raised by petitioner and submit the correct EIA report as required by the
project’s specifications. The Court requires respondent DENR-EMB RVI to complete its study
and submit a report within a non-extendible period of three months. Respondent DENR-EMB
RVI should establish to the Court in said report why the ECC it issued for the subject project
should not be canceled.
Lack of prior public consultation
The Local Government Code establishes the duties of national government agencies in the
maintenance of ecological balance, and requires them to secure prior public consultation and
approval of local government units for the projects described therein.
In the case before us, the national agency involved is respondent PRA. Even if the project
proponent is the local government of Aklan, it is respondent PRA which authorized the
reclamation, being the exclusive agency of the government to undertake reclamation nationwide.
Hence, it was necessary for respondent Province to go through respondent PRA and to execute
a MOA, wherein respondent PRA’s authority to reclaim was delegated to respondent Province.
Respondent DENR-EMB RVI, regional office of the DENR, is also a national government
institution which is tasked with the issuance of the ECC that is a prerequisite to projects covered
by environmental laws such as the one at bar.
This project can be classified as a national project that affects the environmental and ecological
balance of local communities, and is covered by the requirements found in the Local
Government Code provisions that are quoted below:
Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. -
It shall be the duty of every national agency or government-owned or controlled corporation
authorizing or involved in the planning and implementation of any project or program that may
cause pollution, climatic change, depletion of non-renewable resources, loss of crop land,
rangeland, or forest cover, and extinction of animal or plant species, to consult with the local
government units, nongovernmental organizations, and other sectors concerned and explain the
goals and objectives of the project or program, its impact upon the people and the community in
terms of environmental or ecological balance, and the measures that will be undertaken to
prevent or minimize the adverse effects thereof.
Section 27. Prior Consultations Required. - No project or program shall be implemented by
government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are
complied with, and prior approval of the sanggunian concerned is obtained: Provided, That
occupants in areas where such projects are to be implemented shall not be evicted unless
appropriate relocation sites have been provided, in accordance with the provisions of the
Constitution.
In Lina, Jr. v. Paño,150 we held that Section 27 of the Local Government Code applies only to
"national programs and/or projects which are to be implemented in a particular local
community"151 and that it should be read in conjunction with Section 26. We held further in this
manner:
Thus, the projects and programs mentioned in Section 27 should be interpreted to mean projects
and programs whose effects are among those enumerated in Section 26 and 27, to wit, those
that: (1) may cause pollution; (2) may bring about climatic change; (3) may cause the depletion
of non-renewable resources; (4) may result in loss of crop land, range-land, or forest cover; (5)
may eradicate certain animal or plant species from the face of the planet; and (6) other projects
or programs that may call for the eviction of a particular group of people residing in the locality
where these will be implemented. Obviously, none of these effects will be produced by the
introduction of lotto in the province of Laguna.152 (Emphasis added.)
During the oral arguments held on September 13, 2011, it was established that this project as
described above falls under Section 26 because the commercial establishments to be built on
phase 1, as described in the EPRMP quoted above, could cause pollution as it could generate
garbage, sewage, and possible toxic fuel discharge. 153
Our ruling in Province of Rizal v. Executive Secretary154 is instructive:
We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v. Lanzanas, where we
held that there was no statutory requirement for the sangguniang bayan of Puerto Galera to
approve the construction of a mooring facility, as Sections 26 and 27 are inapplicable to projects
which are not environmentally critical.
Moreover, Section 447, which enumerates the powers, duties and functions of the municipality,
grants the sangguniang bayan the power to, among other things, "enact ordinances, approve
resolutions and appropriate funds for the general welfare of the municipality and its inhabitants
pursuant to Section 16 of th(e) Code." These include:
(1) Approving ordinances and passing resolutions to protect the environment and
impose appropriate penalties for acts which endanger the environment, such as
dynamite fishing and other forms of destructive fishing, illegal logging and smuggling of
logs, smuggling of natural resources products and of endangered species of flora and
fauna, slash and burn farming, and such other activities which result in pollution,
acceleration of eutrophication of rivers and lakes, or of ecological imbalance; [Section
447 (1)(vi)]
(2) Prescribing reasonable limits and restraints on the use of property within the
jurisdiction of the municipality, adopting a comprehensive land use plan for the
municipality, reclassifying land within the jurisdiction of the city, subject to the pertinent
provisions of this Code, enacting integrated zoning ordinances in consonance with the
approved comprehensive land use plan, subject to existing laws, rules and regulations;
establishing fire limits or zones, particularly in populous centers; and regulating the
construction, repair or modification of buildings within said fire limits or zones in
accordance with the provisions of this Code; [Section 447 (2)(vi-ix)]
(3) Approving ordinances which shall ensure the efficient and effective delivery of the
basic services and facilities as provided for under Section 17 of this Code, and in
addition to said services and facilities, …providing for the establishment, maintenance,
protection, and conservation of communal forests and watersheds, tree parks,
greenbelts, mangroves, and other similar forest development projects …and, subject to
existing laws, establishing and providing for the maintenance, repair and operation of an
efficient waterworks system to supply water for the inhabitants and purifying the source
of the water supply; regulating the construction, maintenance, repair and use of
hydrants, pumps, cisterns and reservoirs; protecting the purity and quantity of the water
supply of the municipality and, for this purpose, extending the coverage of appropriate
ordinances over all territory within the drainage area of said water supply and within one
hundred (100) meters of the reservoir, conduit, canal, aqueduct, pumping station, or
watershed used in connection with the water service; and regulating the consumption,
use or wastage of water." [Section 447 (5)(i) & (vii)]
Under the Local Government Code, therefore, two requisites must be met before a national
project that affects the environmental and ecological balance of local communities can be
implemented: prior consultation with the affected local communities, and prior approval of the
project by the appropriate sanggunian. Absent either of these mandatory requirements, the
project’s implementation is illegal.155 (Emphasis added.)
Based on the above, therefore, prior consultations and prior approval are required by law to have
been conducted and secured by the respondent Province. Accordingly, the information
dissemination conducted months after the ECC had already been issued was insufficient to
comply with this requirement under the Local Government Code. Had they been conducted
properly, the prior public consultation should have considered the ecological or environmental
concerns of the stakeholders and studied measures alternative to the project, to avoid or
minimize adverse environmental impact or damage. In fact, respondent Province once tried to
obtain the favorable endorsement of the Sangguniang Bayan of Malay, but this was denied by
the latter.
Moreover, DENR DAO 2003-30 provides:
5.3 Public Hearing / Consultation Requirements
For projects under Category A-1, the conduct of public hearing as part of the EIS review is
mandatory unless otherwise determined by EMB. For all other undertakings, a public hearing is
not mandatory unless specifically required by EMB.
Proponents should initiate public consultations early in order to ensure that environmentally
relevant concerns of stakeholders are taken into consideration in the EIA study and the
formulation of the management plan. All public consultations and public hearings conducted
during the EIA process are to be documented. The public hearing/consultation Process report
shall be validated by the EMB/EMB RD and shall constitute part of the records of the EIA
process. (Emphasis supplied.)
In essence, the above-quoted rule shows that in cases requiring public consultations, the same
should be initiated early so that concerns of stakeholders could be taken into consideration in the
EIA study. In this case, respondent Province had already filed its ECC application before it met
with the local government units of Malay and Caticlan.
The claim of respondent DENR-EMB RVI is that no permits and/or clearances from National
Government Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum
Circular No. 2007-08. However, we still find that the LGC requirements of consultation and
approval apply in this case. This is because a Memorandum Circular cannot prevail over the
Local Government Code, which is a statute and which enjoys greater weight under our hierarchy
of laws.
Subsequent to the information campaign of respondent Province, the Municipality of Malay and
the Liga ng mga Barangay-Malay Chapter still opposed the project. Thus, when respondent
Province commenced the implementation project, it violated Section 27 of the LGC, which clearly
enunciates that "[no] project or program shall be implemented by government authorities unless
the consultations mentioned in Sections 2(c) and 26 hereof are complied with, and prior approval
of the sanggunian concerned is obtained."
The lack of prior public consultation and approval is not corrected by the subsequent
endorsement of the reclamation project by the Sangguniang Barangay of Caticlan on February
13, 2012, and the Sangguniang Bayan of the Municipality of Malay on February 28, 2012, which
were both undoubtedly achieved at the urging and insistence of respondent Province. As we
have established above, the respective resolutions issued by the LGUs concerned did not render
this petition moot and academic.
It is clear that both petitioner and respondent Province are interested in the promotion of tourism
in Boracay and the protection of the environment, lest they kill the proverbial hen that lays the
golden egg. At the beginning of this decision, we mentioned that there are common goals of
national significance that are very apparent from both the petitioner’s and the respondents’
respective pleadings and memoranda.
The parties are evidently in accord in seeking to uphold the mandate found in Article II,
Declaration of Principles and State Policies, of the 1987 Constitution, which we quote below:
SECTION 16. The State shall protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature.
xxxx
SECTION 20. The State recognizes the indispensable role of the private sector, encourages
private enterprise, and provides incentives to needed investments.
The protection of the environment in accordance with the aforesaid constitutional mandate is the
aim, among others, of Presidential Decree No. 1586, "Establishing an Environmental Impact
Statement System, Including Other Environmental Management Related Measures and For
Other Purposes," which declared in its first Section that it is "the policy of the State to attain and
maintain a rational and orderly balance between socio-economic growth and environmental
protection."
The parties undoubtedly too agree as to the importance of promoting tourism, pursuant to
Section 2 of Republic Act No. 9593, or "The Tourism Act of 2009," which reads:
SECTION 2. Declaration of Policy. – The State declares tourism as an indispensable element of
the national economy and an industry of national interest and importance, which must be
harnessed as an engine of socioeconomic growth and cultural affirmation to generate
investment, foreign exchange and employment, and to continue to mold an enhanced sense of
national pride for all Filipinos. (Emphasis ours.)
The primordial role of local government units under the Constitution and the Local Government
Code of 1991 in the subject matter of this case is also unquestionable. The Local Government
Code of 1991 (Republic Act No. 7160) pertinently provides:
Section 2. Declaration of Policy. - (a) It is hereby declared the policy of the State that the
territorial and political subdivisions of the State shall enjoy genuine and meaningful local
autonomy to enable them to attain their fullest development as self-reliant communities and
make them more effective partners in the attainment of national goals. Toward this end, the
State shall provide for a more responsive and accountable local government structure instituted
through a system of decentralization whereby local government units shall be given more
powers, authority, responsibilities, and resources. The process of decentralization shall proceed
from the national government to the local government units. 156 (Emphases ours.)
As shown by the above provisions of our laws and rules, the speedy and smooth resolution of
these issues would benefit all the parties. Thus, respondent Province’s cooperation with
respondent DENR-EMB RVI in the Court-mandated review of the proper classification and
environmental impact of the reclamation project is of utmost importance.
WHEREFORE, premises considered, the petition is hereby PARTIALLY
GRANTED.1âwphi1 The TEPO issued by this Court is hereby converted into a writ of continuing
mandamus specifically as follows:
 1. Respondent Department of Environment and Natural Resources-Environmental
Management Bureau Regional Office VI shall revisit and review the following matters:
a. its classification of the reclamation project as a single instead of a co-located
project;
b. its approval of respondent Province’s classification of the project as a mere
expansion of the existing jetty port in Caticlan, instead of classifying it as a new
project; and
c. the impact of the reclamation project to the environment based on new,
updated, and comprehensive studies, which should forthwith be ordered by
respondent DENR-EMB RVI.
2. Respondent Province of Aklan shall perform the following:
a. fully cooperate with respondent DENR-EMB RVI in its review of the
reclamation project proposal and submit to the latter the appropriate report and
study; and
b. secure approvals from local government units and hold proper consultations
with non-governmental organizations and other stakeholders and sectors
concerned as required by Section 27 in relation to Section 26 of the Local
Government Code.
3. Respondent Philippine Reclamation Authority shall closely monitor the submission by
respondent Province of the requirements to be issued by respondent DENR-EMB RVI in
connection to the environmental concerns raised by petitioner, and shall coordinate with
respondent Province in modifying the MOA, if necessary, based on the findings of
respondent DENR-EMB RVI.
4. The petitioner Boracay Foundation, Inc. and the respondents The Province of Aklan,
represented by Governor Carlito S. Marquez, The Philippine Reclamation Authority, and
The DENR-EMB (Region VI) are mandated to submit their respective reports to this
Court regarding their compliance with the requirements set forth in this Decision no later
than three (3) months from the date of promulgation of this Decision.
5. In the meantime, the respondents, their concerned contractor/s, and/or their agents,
representatives or persons acting in their place or stead, shall immediately cease and
desist from continuing the implementation of the project covered by ECC-R6-1003-096-
7100 until further orders from this Court. For this purpose, the respondents shall report
within five (5) days to this Court the status of the project as of their receipt of this
Decision, copy furnished the petitioner.
This Decision is immediately executory.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
G.R. No. 207257 February 3, 2015
HON. RAMON JESUS P. PAJE, in his capacity as SECRETARY OF THE DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES (DENR), Petitioner,
vs.
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. RAFAEL V. MARIANO,
HON. EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA, JR., HON. ROLEN C.
PAULINO, HON. EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y.
CORTEZ, JR., HON. SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO,
BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS, GREGORIO LLORCA
MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSO, RODOLFO SAMBAJON,
REV. FR. GERARDO GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D. PABLO,
MARIO ESQUILLO, ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS
REYES, Respondents.
x-----------------------x
G.R. No. 207276
REDONDO PENINSULA ENERGY, INC., Petitioner,
vs.
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. RAFAEL V. MARIANO,
HON. EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA, JR., HON. ROLEN C.
PAULINO, HON. EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y.
CORTEZ, JR., HON. SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO,
BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS, GREGORIO LLORCA
MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSO, RODOLFO SAMBAJON,
REV. FR. GERARDO GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D. PABLO,
MARIO ESQUILLO, ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS
REYES, RAMON JESUS P. PAJE, in his capacity as SECRETARY OF THE DEPARTMENT
OF ENVIRONMENT AND NATURAL RESOURCES AND SUBIC BAY METROPOLITAN
AUTHORITY, Respondents.
x-----------------------x
G.R. No. 207282
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. EMERENCIANA A. DE
JESUS, CLEMENTE G. BAUTISTA, JR., HON. RAFAEL V. MARIANO, HON. ROLEN C.
PAULINO, HON. EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y.
CORTEZ, JR., HON. SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO,
BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS, GREGORIO LLORCA
MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSA, RODOLFO SAMBAJON,
ET AL., Petitioners,
vs.
RAMON JESUS P. PAJE in his capacity as SECRETARY OF THE DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES, SUBIC BAY METROPOLITAN AUTHORITY,
AND REDONDO PENINSULA ENERGY, INC., Respondents.
x-----------------------x
G.R. No. 207366
SUBIC BAY METROPOLITAN AUTHORITY, Petitioner,
vs.
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. RAFAEL V. MARIANO,
HON. EMERENCIANA A. DE JESUS, HON. ROLEN C. PAULINO, HON EDUARDO PIANO,
HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA
LIPUMANOGARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA, GREGORIO
LLORCA MAGDARAOG, RUBELHPERALTA, ALEX CORPUS HERMOSO, RODOLFO
SAMBAJON, REV. FR. GERARDO GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D.
PABLO, MARIO ESQUILLO, ELLE·LATINAZO, EV ANGELINE Q. RODRIGUEZ, JOHN
CARLO DELOS REYES, HON. RAMON JESUS P. PAJE, in his capacity as SECRETARY OF
THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES AND REDONDO
PENINSULA ENERGY, INC., Respondents.
DECISION
DEL CASTILLO, J.:
Before this Court are consolidated Petitions for Review on Certiorari 1 assailing the
Decision2 dated January 30, 2013 and the Resolution3 dated May 22, 2013 of the Court of
Appeals (CA) in CA-G.R. SP No. 00015, entitled "Hon. Teodoro A. Casiño, et al. v. Hon. Ramon
Jesus P. Paje, et al."
Factual Antecedents
In February 2006, Subic Bay Metropolitan Authority· (SBMA), a government agency organized
and established under Republic Act No. (RA) 7227,4 and Taiwan Cogeneration Corporation
(TCC) entered into a Memorandum of Understanding (MOU) expressing their intention to build a
power plant in Subic Bay which would supply reliable and affordable power to Subic Bay
Industrial Park (SBIP).5
On July 28, 2006, SBMA and TCC entered into another MOU, whereby TCC undertook to build
and operatea coal-fired power plant.6 In the said MOU, TCC identified 20 hectares of land at
SitioNaglatore, Mt. Redondo, Subic Bay Freeport Zone (SBFZ) as the suitable area for the
project and another site of approximately 10 hectares tobe used as an ash pond. 7 TCC intends
to lease the property from SBMA for a term of 50 years with rent fixed at$3.50 per square meter,
payable in 10 equal 5-year installments.8
On April 4, 2007, the SBMA Ecology Center issued SBFZ Environmental Compliance Certificate
(ECC) No. EC-SBFZ-ECC-69-21-500 in favor of Taiwan Cogeneration International Corporation
(TCIC), a subsidiary of TCC,9 for the construction, installation,and operation of 2x150-MW
Circulating Fluidized Bed (CFB) Coal-Fired Thermal Power Plant at Sitio Naglatore. 10
On June 6, 2008, TCC assigned all its rights and interests under the MOU dated July 28, 2006 to
Redondo Peninsula Energy, Inc. (RP Energy),11 a corporation duly organized and existing under
the laws of the Philippines with the primary purpose of building, owning, and operating
powerplants in the Philippines, among others.12Accordingly, an Addendum to the said MOU was
executed by SBMA and RP Energy.13
RP Energy then contracted GHD Pty, Ltd. (GHD) to prepare an Environmental Impact Statement
(EIS) for the proposed coal-fired power plant and to assist RP Energy in applying for the
issuance ofan ECC from the Department of Environment and Natural Resources (DENR). 14 On
August 27, 2008, the Sangguniang Panglungsodof Olongapo City issued Resolution No. 131,
Series of 2008, expressing the city government’s objection to the coal-fired power plant as an
energy source and urging the proponent to consider safer alternative sources ofenergy for Subic
Bay.15
On December 22, 2008, the DENR, through former Secretary Jose L. Atienza, Jr., issued an
ECC for the proposed 2x150-MW coal-fired power plant.16
Sometime thereafter, RP Energy decided to include additional components in its proposed coal-
fired power plant. Due to the changes in the project design, which involved the inclusion of a
barge wharf, seawater intake breakwater, subsea discharge pipeline, raw water collection
system, drainage channel improvement, and a 230kV double-circuit transmission line,17 RP
Energy requested the DENR Environmental Management Bureau(DENR-EMB) to amend its
ECC.18 In support of its request, RP Energy submitted to the DENR-EMBan Environmental
Performance Report and Management Plan (EPRMP), which was prepared by GHD. 19
On June 8, 2010, RP Energy and SBMA entered into a Lease and Development Agreement
(LDA) over a 380,004.456-square meter parcel of land to be used for building and operating the
coal-fired power plant.20
On July 8, 2010, the DENR-EMBissued an amended ECC (first amendment) allowing the
inclusion ofadditional components, among others. 21
Several months later, RP Energy again requested the DENR-EMB to amend the ECC.22 Instead
of constructing a 2x150-MW coal-fired power plant, as originally planned, it now sought
toconstruct a 1x300-MWcoal-fired power plant.23 In support of its request, RP Energy submitted
a Project Description Report (PDR) to the DENR-EMB.24
On May 26, 2011, the DENR-EMB granted the request and further amended the ECC (second
amendment).25
On August 1, 2011, the Sangguniang Panglalawiganof Zambales issued Resolution No. 2011-
149, opposing the establishment of a coal-fired thermal power plant at SitioNaglatore, Brgy.
Cawag, Subic, Zambales.26
On August 11, 2011, the Liga ng mga Barangayof Olongapo City issued Resolution No. 12,
Series of 2011, expressing its strong objection to the coal-fired power plant as an energy
source.27
On July 20, 2012, Hon. Teodoro A. Casiño, Hon. Raymond V. Palatino, Hon. Rafael V. Mariano,
Hon. Emerenciana A. De Jesus, Clemente G. Bautista, Jr., Hon. Rolen C. Paulino,Hon. Eduardo
Piano, Hon. James de los Reyes, Hon. Aquilino Y. Cortez, Jr., Hon. Sarah Lugerna Lipumano-
Garcia, Noraida Velarmino, Bianca Christine Gamboa Espinos, Charo Simons, Gregorio Llorca
Magdaraog, Rubelh Peralta, Alex Corpus Hermoso,Rodolfo Sambajon, Rev. Fr. Gerardo
Gregorio P. Jorge, Carlito A. Baloy, Ofelia D. Pablo, Mario Esquillo, Elle Latinazo, Evangeline Q.
Rodriguez, and John Carlo delos Reyes (Casiño Group) filed before this Court a Petition for Writ
of Kalikasan against RP Energy, SBMA, and Hon. Ramon Jesus P. Paje, in his capacity as
Secretary of the DENR.28
On July 31, 2012, this Court resolved, among others, to: (1) issue a Writ of Kalikasan; and (2)
refer the case to the CA for hearing and reception of evidence and rendition of judgment. 29 While
the case was pending, RP Energy applied for another amendment to its ECC (third amendment)
and submitted another EPRMP to the DENR-EMB, proposing the construction and operation of a
2x300-MW coal-fired power plant.30
On September 11, 2012, the Petition for Writ of Kalikasanwas docketed as CA-G.R. SP No.
00015 and raffled to the Fifteenth Division of the CA. 31 In the Petition, the Casiño Group alleged,
among others, that the power plant project would cause grave environmental damage; 32 that it
would adversely affect the health of the residents of the municipalities of Subic,Zambales,
Morong, Hermosa, and the City of Olongapo; 33 that the ECC was issued and the LDA entered
into without the prior approval of the concerned sanggunians as required under Sections 26 and
27 of the Local Government Code (LGC);34 that the LDA was entered into without securing a
prior certification from the National Commission on Indigenous Peoples (NCIP) as required
under Section 59 of RA8371 or the Indigenous Peoples’ Rights Act of 1997 (IPRA Law); 35 that
Section 8.3 of DENR Administrative Order No. 2003-30 (DAO 2003-30) which
allowsamendments of ECCs is ultra viresbecause the DENR has no authority to decide on
requests for amendments of previously issued ECCs in the absence of a new EIS;36 and that
due to the nullity of Section 8.3 of DAO 2003-30, all amendments to RP Energy’s ECC are null
and void.37
On October 29, 2012, the CA conducted a preliminary conference wherein the parties, with their
respective counsels, appeared except for Hon. Teodoro A. Casiño, Hon. Rafael V. Mariano,
Hon. Emerencia A. De Jesus, Clemente G. Bautista, Mario Esquillo, Elle Latinazo,Evangeline Q.
Rodriguez, and the SBMA.38 The matters taken up during the preliminary conference were
embodied in the CA’s Resolution dated November 5, 2012, to wit:
I. ISSUES
A. Petitioners (Casiño Group)
1. Whether x x x the DENR Environmental Compliance Certificate (‘ECC’ x x x) in favor
of RP Energy for a 2x150 MW Coal-Fired Thermal Power Plant Project (‘Power Plant,’ x
x x ) and its amendment to 1x300 MW Power Plant, and the Lease and Development
Agreement between SBMA and RP Energy complied with the Certification Precondition
as required under Section 59 of Republic Act No. 8371 or the Indigenous People’s
Rights Act of 1997 (‘IPRA Law,’ x x x);
2. Whether x x x RP Energy can proceed with the construction and operation of the
1x300 MW Power Plant without prior consultation with and approval of the concerned
local government units (‘LGUs,’ x x x ), pursuant to Sections 26 and 27 of Republic Act
No. 7160 or the Local Government Code;
3. Whether x x x Section 8.3 of DENRAdministrative Order No. 2003-30 (‘DAO No.
2003-30,’ x x x ) providing for the amendment of an ECC is null and void for being ultra
vires; and
4. Whether x x x the amendment of RPEnergy’s ECC under Section 8.3 of DAO No.
2003-30 is null and void.
B. Respondent RP Energy
1. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally attacked;
1.1 Whether x x x the same is valid until annulled;
2. Whether x x x petitioners exhausted their administrative remedies with respect to the
amended ECC for the 1x300 MW Power Plant;
2.1 Whether x x x the instant Petition is proper;
3. Whether x x x RP Energycomplied with all the procedures/requirements for the
issuance of the DENR ECC and its amendment;
3.1 Whether x x x a Certificate of Non-Overlap from the National Commission on
Indigenous Peoples is applicable in the instant case;
 4. Whether x x x the LGU’s approval under Sections 26 and 27 of the Local Government
Code is necessaryfor the issuance of the DENR ECC and its amendments, and what
constitutes LGU approval;
5. Whether x x x there is a threatened or actual violation of environmental laws to justify
the Petition;
5.1 Whether x x x the approved 1x300 MW Power Plant complied with the
accepted legal standards on thermal pollution of coastal waters, air pollution,
water pollution, and acid deposits on aquatic and terrestrial ecosystems; and
6. Whether x x x the instant Petition should be dismissed for failure to comply with the
requirements of properverification and certification of nonforum shopping with respect to
some petitioners.
C. Respondent DENR Secretary Paje
1. Whether x x x the issuance of the DENR ECC and its amendment in favor of RP
Energy requires compliance with Section 59 of the IPRA Law, as well as Sections 26
and 27 of the Local Government Code;
2. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally attacked in this
proceeding; and
3. Whether x x x Section 8.3 of DAO No. 2003-30 is valid.
II. ADMISSIONS/DENIALS
Petitioners, through Atty. Ridon, admittedall the allegations in RP Energy’s Verified Return,
except the following:
1. paragraphs 1.4 to 1.7;
2. paragraphs 1.29 to 1.32; and
3. paragraphs 1.33 to 1.37.
Petitioners made no specific denial withrespect to the allegations of DENR Secretary Paje’s
Verified Return. x x x
Respondent RP Energy proposed the following stipulations, which were all admitted by
petitioners, through Atty. Ridon, viz:
1. The 1x300 MW Power Plant is not yet operational;
2. At present, there is no environmental damage;
3. The 1x300 MW Power Plant project is situated within the Subic Special Economic
Zone; and
4. Apart from the instant case, petitioners have not challenged the validity of Section 8.3
of DAO No. 2003-30.
Public respondent DENR Secretary Paje did not propose any matter for stipulation. 39
Thereafter, trial ensued.
The Casiño Group presented three witnesses, namely: (1) Raymond V. Palatino, a two-term
representativeof the KabataanPartylist in the House of Representatives; 40 (2) Alex C. Hermoso,
the convenor of the Zambales-Olongapo City Civil Society Network,a director of the
PREDA41 Foundation, and a member of the Zambales Chapter of the Kaya NatinMovement and
the Zambales Chapter of the People Power Volunteers for Reform; 42and (3) Ramon Lacbain, the
ViceGovernor of the Province of Zambales.43
RP Energy presented five witnesses,namely: (1) JunisseP. Mercado (Ms. Mercado), an
employee of GHD and the Project Directorof ongoing projects for RP Energy regarding the
proposed power plant project;44 (2) Juha Sarkki (Engr. Sarkki), a Master of Science degree
holder inChemical Engineering;45 (3) Henry K. Wong, a degree holder of Bachelor of Science
Major in Mechanical Engineering from Worcester Polytechnic Institute; 46 (4) Dr. Ely Anthony R.
Ouano (Dr. Ouano), a licensed Chemical Engineer, Sanitary Engineer, and Environmental
Planner in the Philippines;47 and (5) David C. Evangelista (Mr. Evangelista), a Business
Development Analyst working for RP Energy.48
SBMA, for its part, presented its Legal Department Manager, Atty. Von F. Rodriguez (Atty.
Rodriguez).49
The DENR, however, presented no evidence.50
Meanwhile, on October 31, 2012, a Certificate of Non-Overlap (CNO) was issued in connection
with RP Energy’s application for the 2x300-MW coal-fired power plant.51
On November 15, 2012, the DENR-EMB granted RP Energy’s application for the third
amendment to its ECC, approving the construction and operation of a 2x300-MW coal-fired
power plant, among others.52
Ruling of the Court of Appeals
On January 30, 2013, the CA rendereda Decision denying the privilege of the writ of
kalikasanand the application for an environment protection order due to the failure of the Casiño
Group to prove that its constitutional right to a balanced and healthful ecology was violated or
threatened.53 The CA likewise found no reason to nullify Section 8.3 ofDAO No. 2003-30. It said
that the provision was not ultra vires,as the express power of the Secretary of the DENR, the
Director and Regional Directors of the EMB to issue an ECC impliedly includes the incidental
power to amend the same.54 In any case, the CA ruled that the validity of the said section could
not becollaterally attacked in a petition for a writ of kalikasan. 55
Nonetheless, the CA resolved to invalidate the ECC dated December 22, 2008 for non-
compliance with Section 59 of the IPRA Law56 and Sections 26 and 27 of the LGC57 and for
failure of Luis Miguel Aboitiz (Mr. Aboitiz), Director of RP Energy, to affix his signature in the
Sworn Statement of Full Responsibility, which is an integral part of the ECC. 58 Also declared
invalid were the ECC first amendment dated July 8, 2010 and the ECC second amendment
dated May 26, 2011 in view of the failure of RP Energy to comply with the restrictions set forth in
the ECC, which specifically require that "any expansion of the project beyond the project
description or any change in the activity x x x shall be subject to a new Environmental Impact
Assessment."59 However, as to the ECC third amendment dated November 15, 2012, the CA
decided not to rule on its validity since it was not raised as an issue during the preliminary
conference.60
The CA also invalidated the LDA entered into by SBMA and RP Energy as it was issued without
the prior consultation and approval of all the sanggunians concerned as required under Sections
26 and 27 of the LGC,61and in violation of Section 59, Chapter VIII ofthe IPRA Law, which
enjoins all departments and other governmental agencies from granting any lease without a prior
certification that the area affected does not overlap with any ancestral domain.62 The CA noted
that no CNO was secured from the NCIP prior to the execution of the LDA, 63and that the CNO
dated October 31, 2012 was secured during the pendency of the case and was issued in
connection with RP Energy’s application for a 2x300-MW coalfired power plant.64
Thus, the CA disposed of the case in this wise:
WHEREFORE, premises considered, judgment is hereby rendered DENYING the privilege of
the writ of kalikasan and the application for an environmental protection order. The prayer to
declare the nullity of Section 8.3 of the DENR Administrative Order No. 2003-30 for being ultra
vires is DENIED; and the following are all declared INVALID:
1. The Environmental Compliance Certificate (ECC Ref. Code: 0804-011-4021) dated 22
December 2008 issued in favor of respondent Redondo Peninsula Energy, Inc. by
former Secretary Jose L. Atienza, Jr. of the Department of Environment and Natural
Resources;
2. The ECC first amendment dated 08 July 2010 and ECC second amendment dated 26
May 2011, both issued in favor ofrespondent Redondo Peninsula Energy, Inc. by OIC
Director Atty. Juan Miguel T. Cunaof the Department of Environment and Natural
Resources, Environmental Management Bureau; and
3. The Lease and Development Agreement dated 08 June 2010 entered into by
respondents Subic Bay Metropolitan Authority and Redondo Peninsula Energy, Inc.
involving a parcel of land consisting of ₱380,004.456 square meters.
SO ORDERED.65
The DENR and SBMA separately moved for reconsideration. 66 RP Energy filed a Motion for
Partial Reconsideration,67 attaching thereto a signed Statement of Accountability. 68 The Casiño
Group, on the other hand, filed Omnibus Motions for Clarification and Reconsideration. 69
On May 22, 2013, the CAissued a Resolution 70 denying the aforesaid motions for lack of merit.
The CA opined that the reliefs it granted in its Decision are allowed under Section 15, Rule 7 of
the Rules of Procedure for Environmental Cases as the reliefs enumerated therein are broad,
comprehensive, and nonexclusive.71 In fact, paragraph (e) of the saidprovision allows the
granting of "such other reliefs" in consonance with the objective, purpose, and intent of the
Rules.72 SBMA’s contention that the stoppage of a project for non-compliance with Section 59 of
the IPRA Law may only be done by the indigenous cultural communities or indigenous peoples
was also brushed aside by the CA as the Casiño Group did not file a case under the IPRA Law
but a Petition for a Writ of Kalikasan, which is available to all natural or juridical persons whose
constitutional right to a balanced and healthful ecology is violated, or threatened to be
violated.73 As to RP Energy’s belated submission of a signed Statement of Accountability, the
CA gaveno weight and credenceto it as the belated submission of such document, long after the
presentation of evidence of the parties had been terminated, is not in accord with the rules of fair
play.74 Neither was the CA swayed by the argument that the omitted signature of Luis Miguel
Aboitiz is a mere formal defect, which does not affect the validity of the entire document.75 The
dispositive portion of the Resolution reads: WHEREFORE,premises considered, respondents
Subic Bay Metropolitan Authority’s Motion for Reconsideration dated 18 February 2013,
Department of Environment and Natural Resources Secretary Ramon Jesus P. Paje’s Motion for
Reconsideration dated 19 February 2013, and Redondo Peninsula Energy, Inc.’s Motion for
Partial Reconsideration dated 22 February 2013, as well as petitioners’ OmnibusMotions for
Clarification and Reconsideration dated 25 February 2013,are all DENIED for lack of merit.
SO ORDERED.76
Unsatisfied, the parties appealed to this Court.
The Casiño Group’s arguments
The Casiño Group, in essence, argues that it is entitled to a Writ of Kalikasan as it was able to
prove that the operation of the power plant would cause environmental damage and pollution,
and that thiswould adversely affect the residents of the provinces of Bataan and Zambales,
particularly the municipalities of Subic, Morong, Hermosa, and the City of Olongapo. It cites as
basis RP Energy’s EIS, which allegedly admits that acid rain may occur in the combustion of
coal;77 that the incidence of asthma attacks among residents in the vicinity of the project site may
increasedue to exposure to suspended particles from plant operations; 78 and that increased
sulfur oxides (SOx) and nitrogen oxides (NOx) emissions may occur during plant operations.79 It
also claims that when the SBMA conducted Social Acceptability Policy Consultations with
different stakeholders on the proposed power plant, the results indicated that the overall
persuasion of the participants was a clear aversion to the project due to environmental, health,
economic and socio-cultural concerns.80 Finally, it contends that the ECC third amendment
should also be nullified for failure to comply with the procedures and requirements for the
issuance of the ECC.81
The DENR’s arguments
The DENR imputes error on the CAin invalidating the ECC and its amendments, arguing that the
determination of the validity of the ECC as well as its amendments is beyond the scope of a
Petition for a Writ of Kalikasan.82 And even if it is within the scope, there is no reason to
invalidate the ECC and its amendments as these were issued in accordance with DAO No.
2003-30.83 The DENR also insists that contrary to the view of the CA, a new EIS was no longer
necessary since the first EIS was still within the validity period when the first amendment was
requested, and that this is precisely the reason RP Energy was only required to submit an
EPRMP in support of its application for the first amendment. 84 As to the second amendment, the
DENR-EMB only required RP Energy to submit documents to support the proposed revision
considering that the change in configuration of the power plant project, from 2x150MW to
1x300MW, was not substantial.85 Furthermore, the DENR argues that no permits, licenses,
and/or clearances from other government agencies are required in the processing and approval
of the ECC.86 Thus, non-compliance with Sections 26 and 27 of the LGC as well as Section 59
ofthe IPRA Law is not a ground to invalidate the ECC and its amendments. 87 The DENR further
posits that the ECC is not a concession, permit, or license but is a document certifying that the
proponent has complied with all the requirements of the EIS System and has committed to
implement the approved Environmental Management Plan. 88 The DENR invokes substantial
justice so that the belatedly submitted certified true copy of the ECC containing the signature of
Mr. Aboitiz on the Statement of Accountability may be accepted and accorded weight and
credence.89
SBMA’s arguments
For its part, SBMA asserts that since the CA did not issue a Writ of Kalikasan, it should not have
invalidated the LDA and that in doing so, the CA acted beyond its powers. 90 SBMA likewise puts
in issue the legal capacity of the Casiño Group to impugn the validity of the LDA 91 and its failure
to exhaust administrative remedies.92 In any case, SBMA contends that there is no legal basis to
invalidate the LDA as prior consultation under Sections 26 and 27 of the LGC is not required in
this case considering that the area is within the SBFZ. 93 Under RA 7227, it is the SBMA which
has exclusive jurisdiction over projects and leases within the SBFZ and that in case of conflict
between the LGC and RA 7227, it is the latter, a special law, which must prevail. 94 Moreover, the
lack of prior certification from the NCIP is alsonot a ground to invalidate a contract. 95 If at all, the
only effect of non-compliance with the said requirement under Section 59 of the IPRA Law is the
stoppage or suspension of the project.96Besides, the subsequent issuance of a CNO has cured
any legal defect found in the LDA.97
RP Energy’s arguments
RP Energy questions the proprietyof the reliefs granted by the CA considering that it did not
issue a writ of kalikasanin favor of the Casiño Group.98 RP Energy is of the view that unless a
writ of kalikasanis issued, the CA has no power to grant the reliefs prayed for in the
Petition.99 And even if it does, the reliefs are limited to those enumerated in Section 15, Rule 7 of
the Rules of Procedure for Environmental Cases and that the phrase "such other reliefs" in
paragraph (e) should be limited only to those of the same class or general nature as the four
other reliefs enumerated.100 As to the validity of the LDA, the ECC and its amendments, the
arguments of RP Energy are basically the same arguments interposed by SBMA and the DENR.
RP Energy maintains that the ECC and its amendments were obtained in compliance with the
DENR rules and regulations;101 that a CNO is not necessary in the execution of anLDA and in
the issuance of the ECC and its amendments; 102 and that prior approval of the local
governments, which may be affected by the project, are not required because under RA 7227,
the decision of the SBMA shall prevail in matters affecting the Subic Special Economic Zone
(SSEZ), except in matters involving defense and security. 103 RP Energy also raises the issue of
non-exhaustion of administrative remedies on the part of the Casiño Group.104 Preliminaries
This case affords us an opportunity to expound on the nature and scope of the writ of kalikasan.
It presents some interesting questions about law and justice in the context of environmental
cases, which we will tackle in the main body of this Decision.
But we shall first address some preliminary matters, in view of the manner by which the
appellate court disposed of this case.
The Rules on the Writ of Kalikasan,105 which is Part III of the Rules of Procedure for
Environmental Cases,106 was issued by the Court pursuant to its power to promulgate rules for
the protection and enforcement of constitutional rights, 107 in particular, the individual’s rightto a
balanced and healthful ecology.108 Section 1 of Rule 7 provides:
Section 1. Nature of the writ.- The writ is a remedy available to a natural or juridical person,
entity authorized by law, people’s organization, nongovernmental organization, or any public
interest group accredited by or registered with any government agency, on behalf of persons
whose constitutional right to a balanced and healthful ecology is violated, or threatened with
violation by an unlawful act or omission of a public official or employee, or private individual or
entity, involving environmental damage of such magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or provinces.
The writ is categorized as a special civil action and was, thus, conceptualized as an
extraordinary remedy,which aims to provide judicial relief from threatened or actual violation/s of
the constitutional right to a balanced and healthful ecology of a magnitude or degree of damage
that transcends political and territorial boundaries. 109 It is intended "to provide a strongerdefense
for environmental rights through judicial efforts where institutional arrangements of enforcement,
implementation and legislation have fallen short" 110 and seeks "to address the potentially
exponential nature of large-scale ecological threats."111
Under Section 1 of Rule 7, the following requisites must be present to avail of this extraordinary
remedy: (1) there is an actual or threatened violation of the constitutional right to a balanced and
healthful ecology; (2) the actual or threatened violation arises from an unlawful act or omission of
a public official or employee, or private individual or entity; and (3) the actual or threatened
violation involves or will lead to an environmental damage of such magnitude as to prejudice the
life, health or property ofinhabitants in two or more cities or provinces.
Expectedly, the Rules do not definethe exact nature or degree of environmental damage but only
that it must be sufficientlygrave, in terms of the territorial scope of such damage, so as tocall for
the grant ofthis extraordinary remedy. The gravity ofenvironmental damage sufficient to grant the
writ is, thus, to be decided on a case-to-case basis.
If the petitioner successfully proves the foregoing requisites, the court shall render judgment
granting the privilege of the writ of kalikasan. Otherwise, the petition shall be denied. If the
petition is granted, the court may grant the reliefs provided for under Section 15of Rule 7, to wit:
Section 15. Judgment.- Within sixty (60) daysfrom the time the petition is submitted for decision,
the court shall render judgment granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from committing acts or
neglecting the performance of a duty in violation of environmental laws resulting in
environmental destruction or damage;
(b) Directing the respondent public official, government agency, private person or entity
to protect, preserve, rehabilitate or restore the environment;
(c) Directing the respondent public official, government agency, private person or entity
to monitor strict compliance with the decision and orders of the court;
(d) Directing the respondent public official, government agency, or private person or
entity to make periodic reports on the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the people to a balanced and healthful
ecology or to the protection, preservation, rehabilitation or restoration of the
environment, except the award of damages to individual petitioners.
It must be noted, however,that the above enumerated reliefs are non-exhaustive. The reliefs that
may be granted under the writ are broad, comprehensive and non-exclusive.112
Prescinding from the above, the DENR, SBMA and RP Energy are one in arguing that the reliefs
granted by the appellate court, i.e.invalidating the ECC and its amendments, are improper
because it had deniedthe Petition for Writ of Kalikasanupon a finding that the Casiño Group
failed to prove the alleged environmental damage, actual or threatened, contemplated under the
Rules.
Ordinarily, no reliefs could and should be granted. But the question may be asked, could not the
appellate court have granted the Petition for Writ of Kalikasanon the ground of the invalidity of
the ECC for failure to comply with certain laws and rules?
This question is the starting point for setting up the framework of analysis which should govern
writ of kalikasan cases.
In their Petition for Writ of Kalikasan,113 the Casiño Group’s allegations, relative to the actual or
threatened violation of the constitutional right to a balanced and healthful ecology, may be
grouped into two.
The first set of allegations deals withthe actual environmental damage that will occur if the power
plant project isimplemented. The Casiño Group claims that the construction and operation of the
power plant will result in (1) thermal pollution of coastal waters, (2) air pollution due to dust and
combustion gases, (3) water pollution from toxic coal combustion waste, and (4) acid deposition
in aquatic and terrestrial ecosystems, which will adversely affect the residents of the Provinces
of Bataan and Zambales, particularly the Municipalities of Subic, Morong and Hermosa, and the
City of Olongapo.
The second set of allegations deals with the failureto comply with certain laws and rules
governing or relating to the issuance ofan ECC and amendments thereto. The Casiño Group
claims that the ECC was issued in violation of (1) the DENR rules on the issuance and
amendment of an ECC, particularly, DAO 2003-30 and the Revised Procedural Manual for DAO
2003-30 (Revised Manual), (2) Section 59 of the IPRA Law,and (3) Sections 26 and 27 of the
LGC. In addition, it claims that the LDA entered into between SBMA and RP Energy violated
Section 59 of the IPRA Law.
As to the first set of allegations, involving actual damage to the environment, it is not difficult to
discern that, if they are proven, then the Petition for Writ of Kalikasan could conceivably be
granted.
However, as to the second set of allegations, a nuanced approach is warranted. The power of
the courts to nullify an ECC existed even prior to the promulgation of the Rules on the Writ of
Kalikasanfor judicial review of the acts of administrative agencies or bodies has long been
recognized114 subject, of course, to the doctrine of exhaustion of administrative remedies. 115
But the issue presented before us is nota simple case of reviewing the acts of an administrative
agency, the DENR, which issued the ECC and its amendments. The challenge to the validity
ofthe ECC was raised in the context of a writ of kalikasancase. The question then is, can the
validity of an ECC be challenged viaa writ of kalikasan?
We answer in the affirmative subject to certain qualifications.
As earlier noted, the writ of kalikasanis principally predicated on an actual or threatened violation
of the constitutional right to a balanced and healthful ecology, which involves environmental
damage of a magnitude that transcends political and territorial boundaries. A party, therefore,
who invokes the writ based on alleged defects or irregularities in the issuance of an ECC must
not only allege and prove such defects or irregularities, but mustalso provide a causal link or, at
least, a reasonable connection between the defects or irregularities in the issuance of an ECC
and the actual or threatened violation of the constitutional right to a balanced and healthful
ecology of the magnitude contemplated under the Rules. Otherwise, the petition should be
dismissed outright and the action re-filed before the proper forum with due regard to the doctrine
of exhaustion of administrative remedies. This must be so ifwe are to preserve the noble and
laudable purposes of the writ against those who seek to abuse it.
An example of a defect or an irregularity in the issuance of an ECC, which could conceivably
warrant the granting of the extraordinary remedy of the writ of kalikasan, is a case where there
are serious and substantial misrepresentations or fraud in the application for the ECC, which, if
not immediately nullified, would cause actual negative environmental impacts of the magnitude
contemplated under the Rules, because the government agenciesand LGUs, with the final
authority to implement the project, may subsequently rely on such substantially defective or
fraudulent ECC in approving the implementation of the project.
To repeat, in cases of defects or irregularities in the issuance of an ECC, it is not sufficient to
merely allege such defects or irregularities, but to show a causal link or reasonable connection
with the environmental damage of the magnitude contemplated under the Rules. In the case at
bar, no such causal link or reasonable connection was shown or even attempted relative to the
aforesaid second set of allegations. It is a mere listing of the perceived defects or irregularities in
the issuance of the ECC. This would havebeen sufficient reason to disallow the resolution of
such issues in a writ of kalikasan case.
However, inasmuch as this is the first time that we lay down this principle, we have liberally
examined the alleged defects or irregularities in the issuance of the ECC and find that there is
only one group of allegations, relative to the ECC, that can be reasonably connected to
anenvironmental damageof the magnitude contemplated under the Rules. This is withrespect to
the allegation that there was no environmental impact assessment relative to the first and
second amendments to the subject ECC. If this were true, then the implementation of the project
can conceivably actually violate or threaten to violate the right to a healthful and balanced
ecology of the inhabitants near the vicinity of the power plant. Thus, the resolution of such an
issue could conceivably be resolved in a writ of kalikasan case provided that the case does not
violate, or is anexception to the doctrine of exhaustion of administrative remedies and primary
jurisdiction.116
As to the claims that the issuance of the ECC violated the IPRA Law and LGC and that the LDA,
likewise, violated the IPRA Law, we find the same not to be within the coverage of the writ of
kalikasanbecause, assuming there was non-compliance therewith, no reasonable connection
can be made to an actual or threatened violation of the right to a balanced and healthful ecology
of the magnitude contemplated under the Rules.
To elaborate, the alleged lackof approval of the concerned sanggunians over the subject project
would not lead toor is not reasonably connected with environmental damage but, rather, it is an
affront to the local autonomy of LGUs. Similarly, the alleged lack of a certificate precondition that
the project site does not overlap with an ancestral domain would not result inor is not reasonably
connected with environmental damage but, rather, it is an impairment of the right of Indigenous
Cultural Communities/Indigenous Peoples (ICCs/IPs) to their ancestral domains. These alleged
violationscould be the subject of appropriate remedies before the proper administrative bodies
(like the NCIP) or a separate action to compel compliance before the courts, as the case may
be. However, the writ of kalikasan would not be the appropriate remedy to address and resolve
such issues.
Be that as it may, we shall resolve both the issues proper in a writ of kalikasan case and those
which are not, commingled as it were here, because of the exceptional character of this case.
We take judicial notice of the looming power crisis that our nation faces. Thus, the resolution of
all the issues in this case is of utmost urgency and necessity in order to finally determine the fate
of the project center of this controversy. If we were to resolve only the issues proper in a writ of
kalikasancase and dismiss those not proper therefor, that will leave such unresolved issues
open to another round of protracted litigation. In any case, we find the records sufficient to
resolve all the issues presented herein. We also rule that, due to the extreme urgency of the
matter at hand, the present case is an exception to the doctrine of exhaustion of administrative
remedies.117 As we have often ruled, in exceptional cases, we can suspend the rules of
procedure in order to achieve substantial justice, and to address urgent and paramount State
interests vital to the life of our nation.
Issues
In view of the foregoing, we shall resolve the following issues:
1. Whether the Casiño Group was able to prove that the construction and operation of
the power plant will cause grave environmental damage.
1.1. The alleged thermal pollution of coastal waters, air pollution due to dust and
combustion gases, water pollution from toxic coal combustion waste, and acid
deposition to aquatic and terrestrial ecosystems that will becaused by the
project.
1.2. The alleged negative environmental assessment of the project by experts in
a report generated during the social acceptability consultations.
1.3. The alleged admissions of grave environmental damage in the EIS itself of
the project.
2. Whether the ECC is invalid for lackof signature of Mr. Luis Miguel Aboitiz, as
representative of RP Energy, in the Statement of Accountability of the ECC.
3. Whether the first and second amendments to the ECC are invalid for failure to
undergo a new environmental impact assessment (EIA) because of the utilization of
inappropriate EIA documents.
 4. Whether the Certificate of Non-Overlap, under Section 59 of the IPRA Law, is a
precondition to the issuanceof an ECC and the lack of its prior issuance rendered the
ECC invalid.
5. Whether the Certificate of Non-Overlap, under Section 59 of the IPRA Law, is a
precondition to the consummation of the Lease and Development Agreement (LDA)
between SBMA and RPEnergy and the lack of its prior issuance rendered the LDA
invalid.
6. Whether compliance with Section 27, in relation to Section 26, of the LGC (i.e.,
approval of the concerned sanggunianrequirement) is necessary prior to the
implementation of the power plant project.
7. Whether the validity of the third amendment to the ECC can be resolved in this case.
Ruling
The parties to this case appealed from the decision of the appellate court pursuant to Section 16,
Rule7 of the Rules of Procedure for Environmental Cases, viz:
Section 16. Appeal.- Within fifteen (15) days from the date of notice of the adverse judgment or
denialof motion for reconsideration, any party may appeal to the Supreme Court under Rule45 of
the Rules of Court. The appeal may raise questions of fact. (Emphasis supplied)
It is worth noting that the Rules on the Writ of Kalikasan allow the parties to raise, on appeal,
questions of fact— and, thus, constitutes an exception to Rule 45 of the Rules of Court—
because ofthe extraordinary nature of the circumstances surrounding the issuance of a writ of
kalikasan.118 Thus, we shall review both questions of law and fact in resolving the issues
presented in this case.
We now rule on the above-mentioned issues in detail.
I.
Whether the Casiño Group was able to prove that the construction and operation of the power
plant will cause grave environmental damage.
The alleged thermal pollution of coastal
waters, air pollution due to dust and
combustion gases, water pollution from
toxic coal combustion waste, and acid
deposition in aquatic and terrestrial
ecosystems that willbe caused by the
project.
As previously noted, the Casiño Group alleged that the construction and operation of the power
plant shall adversely affect the residents of the Provinces of Bataan and Zambales, particularly,
the Municipalities of Subic, Morong and Hermosa, and the City of Olongapo, as well as the
sensitive ecological balance of the area. Their claims of ecological damage may be summarized
as follows:
1. Thermal pollution of coastal waters. Due to the discharge of heated water from the
operation of the plant, they claim that the temperature of the affected bodies of water will
rise significantly. This will have adverse effects on aquatic organisms. It will also cause
the depletion of oxygen in the water. RP Energy claims that there will beno more than a
3°C increase in water temperature but the Casiño Group claims that a 1°C to 2°C rise
can already affect the metabolism and other biological functions of aquatic organisms
such asmortality rate and reproduction.
2. Air pollution due to dust and combustion gases. While the Casiño Group admits that
Circulating Fluidized Bed (CFB) Coal technology, which will be used in the power plant,
is a clean technology because it reduces the emission of toxic gases, it claims that
volatile organic compounds, specifically, polycyclic aromatic hydrocarbons (PAHs) will
also be emitted under the CFB. PAHs are categorized as pollutants with carcinogenic
and mutagenic characteristics. Carbon monoxide, a poisonous gas, and nitrous oxide, a
lethal global warming gas, will also be produced.
3. Water pollution from toxic coal combustion waste. The waste from coal combustion or
the residues from burning pose serious environmental risk because they are toxic and
may cause cancer and birth defects. Their release to nearby bodies of water will be a
threatto the marine ecosystem of Subic Bay. The project is located in a flood-prone area
and is near three prominent seismic faults as identified by Philippine Institute of
Volcanology and Seismology. The construction of an ash pond in an area susceptible to
flooding and earthquake also undermines SBMA’s duty to prioritize the preservation of
the water quality in Subic Bay.
4. Acid deposition in aquatic and terrestrial ecosystems. The power plant will release
1,888 tons of nitrous oxides and 886 tons of sulfur dioxide per year. These oxides are
responsible for acid deposition. Acid deposition directly impacts aquatic ecosystems. It is
toxic to fish and other aquatic animals. It will also damage the forests near Subic Bay as
well as the wildlife therein. This will threaten the stability of the biological diversity of the
Subic Bay Freeport which was declared as one of the ten priority sites among the
protected areas in the Philippines and the Subic Watershed and Forest Reserve. This
will also have an adverse effect on tourism.119
In its January 30, 2013 Decision, the appellate court ruled that the Casiño Group failed to prove
the above allegations.
We agree with the appellate court.
Indeed, the three witnesses presented by the Casiño Group are not experts on the CFB
technology or on environmental matters. These witnesses even admitted on cross-examination
that theyare not competent to testify on the environmental impact of the subject project. What is
wanting in their testimonies is their technical knowledgeof the project design/implementation or
some other aspects of the project, even those not requiring expertknowledge, vis-à-vis the
significant negative environmental impacts which the Casiño Group alleged will occur. Clearly,
the Casiño Group failed to carry the onusof proving the alleged significant negative
environmental impacts of the project. In comparison, RP Energy presented several experts to
refute the allegations of the Casiño Group.
As aptly and extensively discussed by the appellate court:
Petitioners120 presented three (3) witnesses, namely, Palatino, Hermoso, and Lacbain, all of
whom are not experts on the CFB technology or even on environmental matters. Petitioners did
not present any witness from Morong or Hermosa. Palatino, a former freelance writer and now a
Congressman representing the Kabataan Partylist, with a degree of BS Education major in
Social Studies, admitted that he is not a technical expert. Hermoso, a Director of the PREDA
foundation which is allegedly involved on environmental concerns, and a member of
Greenpeace, is not an expert on the matter subject of this case. He is a graduate of BS
Sociology and a practicing business director involved in social development and social welfare
services. Lacbain, incumbent ViceGovernor of the Province of Zambales, anaccounting graduate
with a Master in Public Administration, was a former BancoFilipino teller, entertainment
manager, disco manager, marketing manager and college instructor, and is also not an expert
on the CFB technology. Lacbain also admitted that he is neither a scientist nor an expert on
matters of the environment.
Petitioners cited various scientific studies or articles and websites culled from the internet.
However, the said scientific studiesand articles including the alleged Key Observations and
Recommendations on the EIS of the Proposed RPE Project by Rex Victor O. Cruz (Exhibit
"DDDDD") attached to the Petition, were not testified to by an expert witness, and are basically
hearsay in nature and cannot be given probative weight. The article purportedly written by Rex
Victor O. Cruz was not even signed by the said author, which fact was confirmed by Palatino.
Petitioners’ witness, Lacbain, admitted that he did not personally conduct any study on the
environmental or health effects of a coal-firedpower plant, but only attended seminars and
conferences pertaining to climate change; and that the scientific studies mentioned in the
penultimate whereas clause of Resolution No. 2011-149 (Exhibit "AAAAA") of the Sangguniang
Panlalawiganof Zambales is based on what he read on the internet, seminars he attended and
what he heard from unnamed experts in the field of environmental protection.
In his Judicial Affidavit (Exhibit "HHHHH"), Palatino stated that he was furnished by the
concerned residents the Key Observations and Recommendations on the EIS of Proposed RPE
Project by Rex Victor O. Cruz, and that he merely received and read the five (5) scientific studies
and articles which challenge the CFB technology. Palatino also testified that: he was only
furnished by the petitioners copies of the studies mentioned in his Judicial Affidavit and he did
not participate in the execution, formulation or preparation of any of the said documents; he does
not personally know Rex Cruz or any of the authors of the studies included in his Judicial
Affidavit; he did not read other materials about coal-fired power plants; he is not aware of the
acceptable standards as far as the operation of a coal-fired power plant is concerned; petitioner
Velarmino was the one who furnished him copies of the documents in reference to the MOU and
some papers related to the case; petitioner Peralta was the one who e-mailed to him the soft
copy ofall the documents [letters (a) to (o) of his Judicial Affidavit], except the LGU Resolutions;
and he has never been at the actual Power Plant projectsite. It must be noted that petitioners
Velarmino and Peralta were never presented as witnesses in this case. In addition, Palatino did
not identify the said studies but simplyconfirmed that the said studies were attached to the
Petition.
Indeed, under the rules of evidence, a witness can testify only to those facts which the witness
knows of his orher personal knowledge, that is, which are derived from the witness’ own
perception. Concomitantly, a witness may not testify on matters which he or she merely learned
from others either because said witness was told or read or heard those matters. Such testimony
is considered hearsay and may not be received as proof of the truth of what the witness has
learned. This is known as the hearsay rule. Hearsay is notlimited to oral testimony or statements;
the general rule that excludes hearsay as evidence applies to written, as well as oral statements.
There are several exceptions to the hearsay rule under the Rules of Court, among which are
learned treatises under Section 46 of Rule 130, viz:
"SEC. 46. Learned treatises. -A published treatise, periodical or pamphlet on a subjectof history,
law, science, or art is admissible as tending to prove the truth of a matter stated therein if the
court takes judicial notice, or a witness expert in the subject testifies, that the writer of the
statement in the treatise, periodical or pamphlet is recognized in his profession or calling as
expert in the subject."
The alleged scientific studies mentioned in the Petition cannot be classified as learned treatises.
We cannot take judicial notice of the same, and no witness expert in the subjectmatter of this
case testified, that the writers of the said scientific studies are recognized in their profession or
calling as experts in the subject.
In stark contrast, respondent RP Energy presented several witnesses on the CFB technology.
In his Judicial Affidavit, witness Wong stated that he obtained a Bachelor of Science, Major in
Mechanical Engineering from Worcester Polytechnic Institute; he is a Consulting Engineer of
Steam Generators of URS; he was formerly connected with Foster Wheeler where he held the
positions of site commissioning engineer, testing engineer, instrumentation and controls
engineer, mechanical equipment department manager, director of boiler performance and
mechanical design engineering and pulverized coal product director. He explained that: CFB
stands for Circulating Fluidized Bed; it is a process by which fuel is fed to the lower furnace
where it is burned in an upward flow of combustion air; limestone, which is used as sulfur
absorbent, is also fed to the lower furnace along with the fuel; the mixture offuel, ash, and the
boiler bed sorbent material is carried to the upper part of the furnace and into a cyclone
separator; the heavier particles which generally consist of the remaining uncombusted fuel and
absorbent material are separated in the cyclone separator and are recirculated to the lower
furnace to complete the combustion of any unburned particles and to enhance SO2 capture by
the sorbent; fly ash and flue gas exit the cyclone and the fly ash is collected in the electrostatic
precipitator; furnace temperature is maintained in the range of 800° to 900° C by suitable heat
absorbing surface; the fuel passes through a crusher that reduces the size to an appropriate size
prior to the introduction into the lower furnace along with the limestone; the limestone is used as
a SO2 sorbent which reacts with the sulfur oxides to form calcium sulfate, an inert and stable
material; air fans at the bottom of the furnace create sufficient velocity within the steam
generator to maintain a bed of fuel, ash, and limestone mixture; secondary air is also introduced
above the bed to facilitate circulation and complete combustion of the mixture; the combustion
process generates heat, which then heats the boiler feedwater flowing through boiler tube
bundles under pressure; the heat generated in the furnace circuit turns the water to saturated
steam which is further heated to superheated steam; this superheated steam leaves the CFB
boiler and expands through a steam turbine; the steam turbine is directly connected to a
generator that turns and creates electricity; after making its way through the steam turbine, the
low-pressure steam is exhausted downwards into a condenser; heat is removed from the steam,
which cools and condenses into water (condensate); the condensate is then pumped back
through a train of feedwater heaters to gradually increase its temperature beforethis water is
introduced to the boiler to start the process all over again; and CFB technology has
advantagesover pulverized coal firing without backend cleanup systems, i.e., greater fuel
flexibility, lower SO2 and NOx emissions. Moreover, Wong testified, inter alia, that: CFBs have a
wider range of flexibility so they can environmentally handle a wider range of fuel constituents,
mainly the constituent sulfur; and is capable of handling different types of coal within the range of
the different fuelconstituents; since CFB is the newer technology than the PC or stalker fire, it
has better environmental production; 50 percent ofthe electric generation in the United States is
still produced by coal combustion; and the CFB absorbs the sulfur dioxide before it is emitted;
and there will be a lower percentage of emissions than any other technology for the coal.
In his Judicial Affidavit, Sarrki, stated that: he is the Chief Engineer for Process Concept in
FosterWheeler; he was a Manager of Process Technology for Foster Wheeler from 1995 to
2007; and he holds a Master of Science degree in Chemical Engineering.He explained that: CFB
boilers will emit PAHs but only in minimal amounts, while BFB will produce higher PAH
emissions; PAH is a natural product of any combustion process; even ordinary burning, such as
cooking or driving automobiles, will have some emissions that are not considered harmful; it is
only when emissions are of a significant level that damage may be caused; a CFB technology
has minimal PAH emissions; the high combustion efficiency of CFB technology, due to long
residence time of particles inside the boiler, leads to minimal emissions of PAH; other factors
such as increase in the excess air ratio[,] decrease in Ca/S, as well as decrease in the sulfur and
chlorine contents of coal will likewise minimize PAH production; and CFB does not cause
emissions beyond scientificallyacceptable levels. He testified, inter alia, that: the CFB technology
is used worldwide; they have a 50% percent share of CFB market worldwide; and this will be the
first CFB by Foster Wheeler in the Philippines; Foster Wheeler manufactures and supplies
different type[s] of boilers including BFB, but CFB is always applied on burning coal, so they do
not apply any BFB for coal firing; CFB has features which have much better combustion
efficiency, much lower emissions and it is more effective as a boiler equipment; the longer the
coal stays inthe combustion chamber, the better it is burned; eight (8) seconds is already beyond
adequate but it keeps a margin; in CFB technology, combustion technology is uniform
throughout the combustion chamber; high velocity is used in CFB technology, that is vigorous
mixing or turbulence; turbulence is needed to get contact between fuel and combustion air; and
an important feature of CFB is air distribution.
In his Judicial Affidavit, Ouano stated that: he is a licensed Chemical Engineer, Sanitary
Engineer and Environmental Planner in the Philippines; he is also a chartered Professional
Engineer inAustralia and a member of the colleges of environmental engineers and chemical
engineers of the Institution of Engineers (Australia); he completed his Bachelor in Chemical
Engineering in 1970, Master of Environmental Engineering in 1972 and Doctor of Environmental
Engineering in 1974; he also graduated from the University of Sydney Law School with the
degree of Master of Environmental Law in 2002 and PhD in Law from Macquarie University in
2007. He explained in his Judicial Affidavit that: the impacts identified and analyzed in the EIA
process are all potential or likely impacts; there are a larger number of EIA techniques for
predicting the potential environmental impacts; it is important to note that all those methods and
techniques are only for predicting the potential environmental impacts, not the real impacts;
almost all environmental systems are non-linear and they are subject to chaotic behavior that
even the most sophisticated computer could not predict accurately; and the actual or real
environmental impact could only be established when the project is in actual operation. He
testified, inter alia, that: the higher the temperature the higher the nitrous oxide emitted; in CFB
technology, the lower the temperature, the lower is the nitrogen oxide; and it still has a nitrogen
oxide but not as high as conventional coal; the CFB is the boiler; from the boiler itself,different
pollution control facilities are going to be added; and for the overall plant with the pollution
control facilities, the particulate matters, nitrogen oxide and sulfur dioxide are under control.
(Citations omitted)121
We also note that RP Energy controverted in detail the afore-summarized allegations of the
Casiño Group on the four areas of environmental damage that will allegedly occur upon the
construction and operation of the power plant:
1. On thermal pollution of coastal waters.
As to the extent of the expected rise in water temperature once the power plant is operational,
Ms. Mercado stated in her JudicialAffidavit thus:
Q: What was the result of the Thermal Plume Modeling that was conducted for RP Energy?
A: The thermal dispersion modeling results show that largest warming change (0.95°C above
ambient) is observed in the shallowest (5 m) discharge scenario. The warmest surface
temperature change for the deepest (30 m) scenario is 0.18°C. All the simulated scenarios
comply with the DAO 90-35 limit for temperature rise of 3°C within the defined 70 x 70 m mixing
zone. The proposed power plant location is near the mouth of Subic Bay, thus the tidal currents
influence the behavior of thermal discharge plume. Since the area is well-flushed, mixing and
dilution of the thermal discharge is expected.
It also concluded that corals are less likely to be affected by the cooling water discharge as
corals may persist in shallow marine waterswith temperatures ranging from 18°C to 36°C. The
predicted highest temperature of 30.75°C, from the 0.95°C increase in ambient in the shallowest
(5 m) discharge scenario, is within this range. 122
In the same vein, Dr. Ouano stated in his Judicial Affidavit:
Q: In page 41, paragraph 99 of the Petition, it was alleged that: "x x x a temperature change of
1°C to 2°C canalready affect the metabolism and other biological functions of aquatic organisms
such as mortality rate and reproduction." What is your expert opinion, if any, on this matter
alleged by the Petitioners?
A: Living organisms have proven time and again that they are very adaptable to changes in the
environment. Living organisms have been isolated in volcanic vents under the ocean living on
the acidic nutrient soup of sulfur and other minerals emitted by the volcano to sub-freezing
temperature in Antarctica. Asa general rule, metabolism and reproductive activity [increase] with
temperature until a maximum is reached after which [they decline]. For this reason, during
winter, animals hibernate and plants become dormant after shedding their leaves. It is on the
onset of spring that animals breed and plants bloom when the air and water are warmer. At the
middle of autumn when the temperature drops to single digit, whales, fish, birds and other living
organisms, which are capable of migrating, move to the other end of the globe where spring is
just starting. In the processes of migration, those migratory species have to cross the tropics
where the temperature is not just one or two degrees warmer but 10 to 20 degrees warmer.
When discussing the impact of 1 to 2 degrees temperature change and its impact on the
ecosystem, the most important factors to consider are – (1) Organism Type – specifically its
tolerance to temperature change (mammals have higher tolerance); (2) Base Temperature – it is
the temperature over the optimum temperature such that an increasewill result in the decline in
number of the organisms; (3) Mobility or Space for Migration (i.e., an aquarium with limited
space or an open ocean that the organism can move to a space more suited to [a] specific need,
such as the migratory birds); and (4) Ecosystem Complexity and Succession. The more complex
the ecosystem the more stable it is as succession and adaptation [are] more robust.
Normally, the natural variation in water temperature between early morning to late afternoon
could be several degrees (four to five degrees centigrade and up to ten degrees centigrade on
seasonal basis). Therefore, the less than one degree centigrade change predicted by the GHD
modeling would have minimal impact.123
On cross-examination, Dr. Ouano further explained—
ATTY. AZURA:
x x x When you say Organism Type – you mentioned that mammals have a higher tolerance for
temperature change?
DR. OUANO:
Yes.
ATTY. AZURA:
What about other types of organisms, Dr. Ouano? Fish for example?
DR. OUANO:
Well, mammals have high tolerance because mammals are warm[- ]blooded. Now, when it
comes to cold[-]blooded animals the tolerance is much lower. But again when you are
considering x x x fish [e]specially in open ocean you have to remember that nature by itself is x x
x very brutal x x x where there is always the prey-predator relationship. Now, most of the fish
that we have in open sea [have] already a very strong adaptability mechanism.And in fact,
Kingman back in 1964 x x x studied the coal reefaround the gulf of Oman where the temperature
variation on day to day basis varied not by 1 degree to 2 degrees but by almost 12 degrees
centigrade. Now, in the Subic Bay area which when you’re looking at it between daytime
variation, early dawn when it is cold, the air is cold, the sea temperature, sea water is quite cold.
Then by 3:00 o’clock in the afternoon it starts to warm up. Sothe variation [in the] Subic Bay area
is around 2 to 4 degrees by natural variation from the sun as well as from the current that goes
around it. So when you are talking about what the report has said of around 1 degree change,
the total impact x x x on the fishes will be minimal. x x x
ATTY. AZURA:
x x x So, you said, Dr. Ouano, that fish, while they have a much lower tolerance for temperature
variation, are still very adaptable. What about other sea life, Dr. Ouano, for example, sea
reptiles?
DR. OUANO:
That’s what I said. The most sensitive part of the marine ecology is physically the corals because
corals are non-migratory, they are fix[ed]. Second[ly] x x x corals are also highly dependent on
sunlight penetration. If they are exposed out of the sea, they die; if theyare so deep, they die.
And that is why I cited Kingman in his studies of coral adaptability [in] the sea ofOman where
there was a very high temperature variation, [they] survived.
ATTY. AZURA:
Would you be aware, Dr. Ouano, if Kingman has done any studies in Subic Bay?
DR. OUANO:
Not in Subic Bay but I have reviewedthe temperature variation, natural temperature variation
from the solar side, the days side as well as the seasonal variation. There are two types of
variation since temperatures are very critical. One is the daily, which means from early morning
to around 3:00 o’clock, and the other one is seasonal variation because summer, December,
January, February are the cold months and then by April, May we are having warm temperature
where the temperature goes around 32-33 degrees; Christmas time, it drops to around 18 to 20
degrees so it[']sa variation of around seasonal variation of 14 degrees although some of the fish
might even migrate and that is why I was trying to put in corals because they are the ones that
are really fix[ed]. They are not in a position to migrate in this season.
ATTY. AZURA: To establish that the emissions from the operation of the power plant would be compliant with
the standards under the Clean Air Act,125 Ms. Mercado stated in her Judicial Affidavit thus:
To clarify. You said that the most potentially sensitive part of the ecosystem would be the corals.
DR. OUANO: 271. Q: What was the result of the Air Dispersion Modeling that was conducted for RP Energy?

Or threatened part because they are the ones [that] are not in a position to migrate. A: The Air Dispersion Modeling predicted that the Power Plant Project will produce the following
emissions,which [are] fully compliant with the standards set by DENR:
ATTY AZURA:
Predicted GLC126 for 1-hr National Ambient Air Quality
In this case, Dr. Ouano, with respectto this project and the projected temperature change, will averaging period Guideline Values
the corals in Subic Bay be affected?
SO2 45.79 µg/Nm3 340 µg/Nm3
DR. OUANO: NO2 100.8 µg/Nm3 260 µg/Nm3

As far as the outlet is concerned, they have established it outside the coral area. By the time it CO 10 µg/Nm3 35 µg/Nm3
reaches the coral area the temperature variation, as per the GHD study is very small, it[’]s
almost negligible. Predicted GLC for 8-hr averaging period National Ambient Air Quality
Guideline Values
ATTY AZURA:
CO 0.19 mg/ncm 10 µg/Nm3
Specifically, Dr. Ouano, what does negligible mean, what level of variation are we talking about?
Predicted GLC for 24-hr averaging National Ambient Air Quality
DR. OUANO: period Guideline Values
SO2 17.11 µg/Nm3 180 µg/Nm3
If you are talking about a thermometer, you might be talking about, normally about .1 degrees
centigrade. That’sthe one that you could more or less ascertain. x x x NO2 45.79 µg/Nm3 150 µg/Nm3

ATTY. AZURA:
Predicted GLC for 1-yr averaging period National Ambient Air Quality
Guideline Values
Dr. Ouano, you mentioned in youranswer to the same question, Question 51, that there is a
normal variation in water temperature. In fact, you said there is a variation throughout the day, SO2 6.12 µg/Nm3 80 µg/Nm3
daily and also throughout the year, seasonal. Just to clarify, Dr. Ouano. When the power plant
NO2 No standard ---
causes the projected temperature change of 1 degree to 2 degrees Celsius this will be in
addition to existing variations? What I mean, Dr. Ouano, just so I can understand, how will that CO No standard ---
work? How will the temperature change caused by the power plant work with the existing
variation? DR. OUANO:
272. Q: What other findings resulted from the Air Dispersion Modeling, if any?
There is something like what we call the zonal mixing. This is an area of approximately one or
two hectares where the pipe goes out, the hot water goes out. So that x x x, we have to accept x A: It also established that the highest GLC to CleanAir Act Standards ratio among possible
x x that [throughout it] the zone will be a disturb[ed] zone. After that one or two hectares park the receptors was located 1.6 km North NorthEast ("NNE") of the Power Plant Project. Further, this
water temperature is well mixed [so] that the temperature above the normal existing variation ratio was valued only at 0.434 or less than half of the upper limit set out in the Clean Air Act. This
now practically drops down to almost the normal level. 124 means that the highest air ambient quality disruption will happen only 1.6 km NNE of the Power
Plant Project, and that such disruption would still be compliant with the standards imposed by
the Clean Air Act.127
2. On air pollution due todust and combustion gases.
The Casiño Group argued, however, that, as stated inthe EIS, during upset conditions,
significant negative environmental impact will result from the emissions. This claim was refuted
by RP Energy’s witness during cross-examination:
ATTY. AZURA:
If I may refer you to another page of the same annex, Ms. Mercado, that’s page 202 of the same
document, the August 2012. Fig. 2-78 appears to show, there’s a Table, Ms. Mercado, the first
table, the one on top appears to show a comparison in normal and upset conditions. I noticed,
Ms. Mercado, that the black bars are much higher than the bars in normal condition. Can you
state what this means?
MS. MERCADO:
It means there are more emissions that could potentially be released when it is under upset
condition.
ATTY. AZURA:
I also noticed, Ms. Mercado, at the bottom part of this chart there are Receptor IDs, R1, R2, R3
and so forth and on page 188 of this same document, Annex "9-Mercado," there is a list
identifying these receptors, for example, Receptor 6, Your Honor, appears to have been located
in Olongapo City, Poblacion. Just so I can understand, Ms. Mercado, does that mean that if
upset condition[s] were to occur, the Olongapo City Poblacion will be affected by the emissions?
MS. MERCADO:
All it means is that there will be higher emissions and a higher ground concentration. But you
might want to alsopay attention to the "y axis," it says there GLC/CAA [Ground Level
Concentration/Clean Air Act limit]. So it means that even under upset conditions… say for R6,
the ground level concentration for upset condition is still around .1 or 10% percent only of the
Clean Air Act limit. So it’s still much lower than the limit.
ATTY. AZURA:
But that would mean, would it not, Ms. Mercado, that in the event of upset conditions[,]
emissionswould increase in the Olongapo City Poblacion?
MS. MERCADO:
Not emissions will increase. The emissions will be the same but the ground level concentration,
the GLC, will be higher if you compare normal versus upset. But even if it[’]s under upset
conditions, it is still only around 10% percent of the Clean Air Act Limit.
xxxx
J. LEAGOGO:
So you are trying to impress upon this Court that even if the plant is in an upset condition, it will
emit less than what the national standards dictate?
MS. MERCADO:
Yes, Your Honor.128
With respect to the claims that the powerplant will release dangerous PAHs and CO, Engr.
Sarrki stated in his Judicial Affidavit thus:
Q: In page 42, paragraph 102 of the Petition, the Petitioners alleged that Volatile Organic
Compounds ("VOC") specifically Polycyclic Aromatic Hydrocarbon ("PAH") will be emitted even
by CFB boilers. What can you say about this?
A: Actually, the study cited by the Petitioners does not apply to the present case because it does
not refer to CFB technology. The study refers to a laboratory-scale tubular Bubbling Fluidized
Bed ("BFB") test rig and not a CFB. CFB boilers will emit PAHs but only in minimal amounts.
Indeed, a BFB will produce higher PAH emissions.
xxxx
Q: Why can the study cited by Petitioners not apply in the present case?
A: The laboratory-scale BFB used in the study only has one (1) air injection point and does not
replicate the staged-air combustion process of the CFB that RP Energy will use. Thisstaged-air
process includes the secondary air. Injecting secondary air into the system will lead to more
complete combustion and inhibits PAH production. There is a study entitled "Polycyclic Aromatic
Hydrocarbon (PAH) Emissions from a Coal-Fired Pilot FBC System" byKunlei Liu, Wenjun Han,
Wei-Ping Pan, John T. Riley found in the Journal of Hazardous Materials B84 (2001) where the
findings are discussed.
Also, the small-scale test rig utilized in the study does not simulate the process conditions
(hydrodynamics, heat transfer characteristics, solid and gas mixing behavior, etc.) seen in a
large scale utility boiler, like those which would be utilized by the Power Plant Project.
xxxx
Q: Aside from residence time of particles and secondary air, what other factors, if any, reduce
PAH production?
A: Increase in the excess air ratio will also minimizePAH production. Furthermore, decrease in
Calcium to Sulfur moral ratio ("Ca/S"), as well as decrease in the sulfur and chlorine contents of
coal will likewise minimize PAH production. This is also based on the study entitled "Polycyclic
Aromatic Hydrocarbon (PAH) Emissions from a Coal-Fired Pilot FBC System" by Kunlei Liu,
Wenjun Han, Wei-Ping Pan, John T. Riley.
In RP Energy’s Power Plant Project, the projected coal to be utilized has low sulfur and chlorine
contents minimizing PAH production. Also, due to optimum conditions for the in-furnace
SO2capture, the Ca/S will be relatively low, decreasing PAH production.
Q: In paragraph 104 of the Petition, it was alleged that "Carbon monoxide (CO), a poisonous,
colorless and odorless gas is also produced when there is partial oxidation or when there is not
enough oxygen (O2) to form carbon dioxide (CO2)." What can you say about this?
A: CFB technology reduces the CO emissions of the Power Plant Project to safe amounts. In
fact, I understand that the projected emissions level of the Power Plant Project compl[ies]with
the International Finance Corporation ("IFC") standards. Furthermore, characteristics of CFB
technology such as long residence time, uniform temperature and high turbulence provide an
effective combustion environment which results [in] lower and safer CO emissions.
Q: I have no further questions for youat the moment. Is there anything you wish to add to the
foregoing?
A: Yes. PAH is a natural product of ANY combustion process. Even ordinary burning, such as
cooking or driving automobiles, will have some emissions that are not considered harmful. It is
only when emissions are of a significant level that damage may be caused.
Given that the Power Plant Project will utilize CFB technology, it will have minimal PAH
emissions. The high combustion efficiency of CFB technology, due to the long residence time of
particles inside the boiler, leads to the minimal emissions of PAH. Furthermore,other factors
such as increase in the excess air ratio, decrease in Ca/S, as well as decrease in the sulfur and
chlorine contents of coal will likewise minimize PAH production. CFB does not cause emissions
beyond scientifically acceptable levels, and we are confident it will not result in the damage
speculated by the Petitioners.129
3. On water pollution from toxic coal combustion waste.
With regard to the claim that coal combustion waste produced by the plant will endanger the
health of the inhabitants nearby, Dr. Ouano stated in his Judicial Affidavit thus:
Q: In page 43, paragraph 110 of the Petition, it was alleged that: "[s]olid coal combustion waste
is highly toxic and is said to cause birth defects and cancer risks among others x x x." What is
your expert opinion, if any, on this matter alleged by the Petitioners?
A: Coal is geologically compressed remains of living organisms that roamed the earth several
million years ago. In the process of compression, some of the minerals in the soil, rocks or mud,
the geologic media for compression, are also imparted into the compressed remains. If the
compressing media of mud, sediments and rocks contain high concentration of mercury,
uranium, and other toxic substances, the coal formed will likewise contain high concentration of
those substances. If the compressing materials have low concentration of those substances,
then the coal formed will likewise have low concentration of those substances. If the coal does
not contain excessive quantities of toxic substances, the solid residues are even used in
agriculture to supply micronutrients and improve the potency of fertilizers. It is used freely as a fill
material in roads and other construction activities requiring large volume of fill and as additive in
cement manufacture. After all, diamonds that people love to hang around their necks and keep
close to the chest are nothing more than the result of special geologic action, as those in
volcanic pipes on coal.130
RP Energy further argued, a matter which the Casiño Group did not rebut or refute, that the
waste generated by the plant will be properly handled, to wit:
4.1.49 When coal is burned in the boiler furnace, two by-products are generated -
bottom and fly ash. Bottom ash consists oflarge and fused particles that fall to the
bottom of the furnace and mix with the bed media.Fly ash includes finegrained and
powdery particles that are carried away by flue gas into the electrostatic precipitator,
which is then sifted and collected. These by-products are non-hazardous materials. In
fact, a coal power plant’s Fly Ash, Bottom Ash and Boiler Slag have consequent
beneficial uses which "generate significant environmental, economic, and performance
benefits." Thus, fly ash generated during the process will be sold and transported to
cement manufacturing facilities or other local and international industries.
4.1.50 RP Energy shall also install safety measures to insure that waste from burning of
coal shall be properly handled and stored.
4.1.51 Bottom ash will be continuously collected from the furnace and transferred
through a series of screw and chain conveyors and bucket elevator to the bottom ash
silo. The collection and handling system is enclosed to prevent dust generation.
Discharge chutes will be installed at the base of the bottom ash silo for unloading. Open
trucks will be used to collect ash through the discharge chutes. Bottom ash will be sold,
and unsold ash will be stored in ash cells. A portion of the bottom ash will be reused as
bed materialthrough the installation of a bed media regeneration system (or ash recycle).
Recycled bottom ash will be sieved using a vibrating screen and transported to a bed
material surge bin for re-injection into the boiler.
4.1.52 Fly ash from the electrostatic precipitator is pneumatically removed from the
collection hopper using compressed air and transported in dry state to the fly ash silo.
Two discharge chutes will be installed at the base of the fly ash silo. Fly ash can either
be dry-transferred through a loading spout into an enclosed lorry or truck for selling, re-
cycling, or wet-transferred through a wet unloader into open dump trucks and
transported to ash cells. Fly ash discharge will operate in timed cycles, with an override
function to achievecontinuous discharge if required. Fly ash isolation valves in each
branch line will prevent leakage and backflow into non-operating lines.
 4.1.53 Approximately 120,000m² will be required for the construction of the ash cell. Ash DR. OUANO: It[’]s not there in their report because it will depend on the supplier, the equipment
will be stacked along the sloping hill, within a grid of excavations (i.e. cells) with a 5m supplier.
embankment. Excavated soils will be used for embankment construction and backfill. To
prevent infiltration [of] ash deposits into the groundwater, a clay layer with minimum J. LEAGOGO:
depth of400mm will be laid at the base of each cell. For every 1-m depth of ash deposit,
a 10-cm soil backfill will be applied to immobilize ash and prevent migration via wind.
So it[’]s not yet there?
Ash cell walls will be lined with high-density polyethylene to prevent seepage. This
procedure and treatment method is in fact suitable for disposal of toxic and hazardous
wastes although fly ash is not classified as toxic and hazardous materials.131 DR. OUANO:

Anent the claims that the plant is susceptible to earthquake and landslides, Dr. Ouano testified It[’]s not yet there in the site but it is also covered inour Building Code what are the intensities of
thus: earthquakes expected of the different areas in the Philippines.

J. LEAGOGO: J. LEAGOGO:

In terms of fault lines, did you study whether this project site is in any fault line? Have you checked our geo-hazard maps in the Philippines to check on this project site?

DR. OUANO: DR. OUANO:

There are some fault linesand in fact, in the Philippines it is very difficult to find an area except Yes. It is included there in the EIA Report.
Palawan where there is no fault line within 20 to 30 [kilometers]. But then fault lines as well as
earthquakes really [depend] upon your engineering design. I mean, Sto. Tomas University has J. LEAGOGO:
withstood all the potential earthquakes we had in Manila[,] even sometimes it[’]s intensity 8 or so
because the design for it back in 1600 they are already using what we call floating foundation. It[’]s there?
So if the engineering side for it[,] technology is there to withstand the expected fault line
[movement]. J. LEAGOGO: DR. OUANO:

What is the engineering side of the project? You said UST is floating. It[’]s there.132

DR. OUANO: 4. On acid deposition in aquatic and terrestrial ecosystems.

The foundation, that means to say you don’t break… Relative to the threat of acid rain, Dr. Ouano stated in his Judicial Affidavit, thus:

J. LEAGOGO: Q: In page 44, paragraph 114 of the Petition, it was alleged that "the coalfired power plant will
release 1,888 tons of nitrous oxides (NOx) per year and 886 tons of sulfur dioxide (SO2) per
Floating foundation. What about this, what kind of foundation? year. These oxides are the precursors to the formation of sulfuric acid and nitric acid which are
responsible for acid deposition." Whatis your expert opinion on this matter alleged by the
DR. OUANO: Petitioners?

It will now depend on their engineering design, the type of equipment… A: NO2 is found in the air, water and soil from natural processes such as lightning, bacterial
activities and geologic activities as well as from human activities such as power plants and
J. LEAGOGO: fertilizer usage in agriculture. SO2 is also found in air, water and soil from bacterial, geologic and
human activities. NO2 and SO2 in the air are part of the natural nitrogen and sulfur cycle to
widely redistribute and recycle those essential chemicals for use by plants. Without the NO2 and
No, but did you read it in their report? SO2 in the air, plant and animal life would be limited to small areas of this planet where nitrogen
and sulfur are found in abundance. With intensive agricultural practices, nitrogen and sulfur are J. LEAGOGO:
added in the soil as fertilizers.
What do you mean it[’]s so diluted? How will it be diluted?
Acid rain takes place when the NO2 and SO2 concentration are excessive or beyond those
values set in the air quality standards. NO2 and SO2 in the air in concentrations lower than DR. OUANO:
those set in the standards have beneficial effect to the environment and agriculture and are
commonly known as micronutrients.133 Because it[’]s going to be mixed withthe air in the atmosphere; diluted in the air in the
atmosphere. And besides this 886 tons, this is not released in one go, it is released almost
On clarificatory questions from the appellate court, the matter was further dissected thus: throughout the year.

J. LEAGOGO: J. LEAGOGO:

x x x The project will release 1,888 tons of nitrous oxide per year. And he said, yes; that witness You also answered in Question No. 61, "acid raintakes place when the NO2 AND SO2
answered, yes, itwill produce 886 tons of sulfur dioxide per year. And he also answered yes, that concentration are excessive." So whendo you consider it as excessive?
these oxides are the precursors to the formation of sulfuric acid and nitric acid. Now my
clarificatory question is, with this kind of releases there will be acid rain? DR. OUANO:

DR. OUANO: That is something when you are talking about acid…

No.
J. LEAGOGO:

J. LEAGOGO: In terms of tons of nitrous oxide and tons of sulfur oxide, when do you consider it as excessive?

Why? DR. OUANO:

DR. OUANO:
It is in concentration not on tons weight, Your Honor.

Because it[’]s so dilute[d]. J. LEAGOGO:

J. LEAGOGO: In concentration?

It will? DR. OUANO:

DR. OUANO: In milligrams per cubic meter, milligrams per standard cubic meter.

Because the acid concentration is so dilute[d] so that it is not going to cause acid rain. J. LEAGOGO:

J. LEAGOGO: So being an expert, whatwill be the concentration of this kind of 1,888 tons of nitrous oxide?
What will be the concentration in terms of your…?
The acid concentration is so diluted that it will not cause acid rain?
DR. OUANO:
DR. OUANO:

Yes .
If the concentration is in excess ofsomething like 8,000 micrograms per standard cubic meters,
then there isalready potential for acid rain.
J. LEAGOGO:
I am asking you, Dr. Ouano, you said it will release 1,888 tons of nitrous oxide?
DR. OUANO:
Yes .
J. LEAGOGO:
In terms of concentration, what will that be?
DR. OUANO:
In terms of the GHD study that will result [in] 19 milligrams per standard cubic meters and the
time when acid rain will start [is when the concentration gets] around 8,000 milligrams per
standard cubic meters. So we have 19 compared to 8,000. So weare very, very safe.
J. LEAGOGO:
What about SO2?
DR. OUANO:
SO2, we are talking about ... youwon’t mind if I go to my codigo. For sulfur dioxide this acid rain
most likely will start at around 7,000 milligrams per standard cubic meter but then … sorry, it[’]s
around 3,400 micrograms per cubic meter. That is the concentration for sulfur dioxide, and in our
plant it will be around 45 micrograms per standard cubic meter. So the acid rain will start at
3,400 and the emission is estimated here to result to concentration of 45.7 micrograms.
J. LEAGOGO:
That is what GHD said in their report.
DR. OUANO:
Yes. So that is the factor of x x x safety that we have. 134
Apart from the foregoing evidence, wealso note that the above and other environmental
concerns are extensively addressed in RP Energy’s Environmental Management Plan or
Program(EMP). The EMP is "a section in the EIS that details the prevention, mitigation,
compensation, contingency and monitoring measures to enhance positive impacts and minimize
negative impacts and risks of a proposed project or undertaking." 135 One of the conditions of the
ECC is that RP Energy shall strictly comply with and implement its approved EMP. The Casiño
Group failed to contest, with proof, the adequacy of the mitigating measures stated in the
aforesaid EMP.
In upholding the evidence and arguments of RP Energy, relative to the lack of proof as to the
alleged significant environmental damage that will be caused by the project, the appellate court
relied mainly on the testimonies of experts, which we find to be in accord withjudicial precedents.
Thus, we ruled in one case:
Although courts are not ordinarily bound by testimonies of experts, they may place whatever
weight they choose upon such testimonies in accordance with the facts of the case. The relative
weight and sufficiency of expert testimony is peculiarly within the province of the trial court to
decide, considering the ability and character of the witness, his actions upon the witness stand,
the weight and process of the reasoning by which he has supported his opinion, his possible
bias in favor of the side for whom he testifies,the fact that he is a paid witness, the relative
opportunities for study and observation of the matters about which he testifies, and any other
matters which serve to illuminate his statements. The opinion of the expert may not be arbitrarily
rejected; it isto be considered by the court in view of all the facts and circumstances in the case
and when common knowledge utterly fails, the expert opinion may be given controlling effects
(20 Am. Jur., 1056-1058). The problem of the credibility of the expert witness and the evaluation
of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable
inthe absence of an abuse of that discretion. 136
Hence, we sustain the appellate court’s findings that the Casiño Group failed to establish the
alleged grave environmental damage which will be caused by the construction and operation of
the power plant.
In another vein, we, likewise, agree with the observationsof the appellate court that the type of
coal which shall be used in the power plant has important implications as to the possible
significant negative environmental impacts of the subject project. 137 However, there is no coal
supply agreement, as of yet, entered into by RP Energy with a third-party supplier. In
accordance with the terms and conditions of the ECC and in compliance with existing
environmental laws and standards, RP Energy is obligated to make use of the proper coal type
that will not cause significant negative environmental impacts.
The alleged negative environmental
assessment of the project by experts in a
report generated during the social
acceptability consultations
The Casiño Group also relies heavily on a report on the social acceptability process of the power
plant project to bolster itsclaim that the project will cause grave environmental damage. We
purposely discuss this matter in this separate subsection for reasons which will be made clear
shortly.
But first we shall present the pertinent contents of this report.
According to the Casiño Group, from December 7 to 9, 2011, the SBMA conducted social
acceptabilitypolicy consultations with different stakeholders on RP Energy’s proposed 600 MW
coal plant project at the Subic Bay Exhibition and Convention Center. The results thereof are
contained in a document prepared by SBMA entitled "Final Report: Social Acceptability Process
for RP Energy, Inc.’s 600-MW Coal Plant Project" (Final Report). We notethat SBMA adopted
the Final Report as a common exhibit with the Casiño Group in the course of the proceedings
before the appellate court.
The Final Report stated that there was a clear aversion to the concept of a coal-fired power plant
from the participants. Their concerns included environmental, health, economic and socio-
cultural factors. Pertinent to this case is the alleged assessment, contained in the Final Report,
of the potential effects of the project by three experts: (1) Dr. Rex Cruz (Dr. Cruz), Chancellor of
the University of the Philippines, Los Baños and a forest ecology expert, (2) Dr. Visitacion
Antonio, a toxicologist, who related information as to public health; and (3) Andre Jon Uychiaco,
a marine biologist.
The Final Report stated these experts’alleged views on the project, thus:
IV. EXPERTS’ OPINION
xxxx
The specialists shared the judgment that the conditions were not present to merit the operation
of a coal-fired power plant,and to pursue and carry out the project with confidence and
assurance that the natural assets and ecosystems within the Freeport area would not be unduly
compromised, or that irreversible damage would not occur and that the threats to the flora and
fauna within the immediate community and its surroundings would be adequately addressed.
The three experts were also of the same opinion that the proposed coal plant project would pose
a wide range of negative impacts on the environment, the ecosystems and human population
within the impact zone.
The specialists likewise deemed the Environment Impact Assessment (EIA) conducted by RPEI
to be incomplete and limited in scope based on the following observations:
i. The assessment failed to include areas 10km. to 50km. from the operation site,
although according tothe panel, sulfur emissions could extend as far as 40-50 km.
ii. The EIA neglected to include other forests in the Freeport in its scope and that there
were no specific details on the protection of the endangered flora and endemic fauna in
the area. Soil, grassland, brush land, beach forests and home gardens were also
apparently not included in the study.
iii. The sampling methods used inthe study were limited and insufficient for effective
long-term monitoring of surface water, erosion control and terrestrial flora and fauna.
The specialists also discussed the potential effects of an operational coalfired power plant [on]
its environs and the community therein. Primary among these were the following:
i. Formation of acid rain, which would adversely affect the trees and vegetation in the
area which, in turn, would diminish forest cover. The acid rain would apparently worsen
the acidity of the soil in the Freeport.
ii. Warming and acidification of the seawater in the bay, resulting in the bio-
accumulationof contaminants and toxic materials which would eventually lead to the
overall reduction of marine productivity.
iii. Discharge of pollutants such as Nitrous Oxide, Sodium Oxide, Ozone and other heavy
metals suchas mercury and lead to the surrounding region, which would adversely affect
the health of the populace in the vicinity.
V. FINDINGS
Based on their analyses of the subject matter, the specialists recommended that the SBMA re-
scrutinize the coal-fired power plant project with the following goals in mind:
i. To ensure its coherence and compatibility to [the] SBMA mandate, vision, mission and
development plans, including its Protected Area Management Plan;
ii. To properly determine actual and potential costs and benefits;
iii. To effectively determine the impacts on environment and health; and
iv. To ensure a complete and comprehensive impacts zone study.
The specialists also urged the SBMA to conduct a Comprehensive Cost And Benefit Analysis Of
The Proposed Coal Plant Project Relative To Each Stakeholder Which Should Include The
Environment As Provider Of Numerous Environmental Goods And Services.
They also recommended an Integrated/Programmatic Environmental Impact Assessmentto
accurately determine the environmental status of the Freeport ecosystem as basis and reference
in evaluating future similar projects. The need for a more Comprehensive Monitoring System for
the Environment and Natural Resourceswas also reiterated by the panel. 138
Of particular interest are the alleged key observations of Dr. Cruz on the EIS prepared by RP
Energy relative to the project:
Key Observations and Recommendations on the EIS of Proposed RPE Project
Rex Victor O. Cruz
Based on SBMA SAP on December 7-9, 2011
1. The baseline vegetation analysis was limited only within the project site and its
immediate vicinity. No vegetation analysis was done in the brushland areas in the
peninsula which is likely to be affected in the event acid rain forms due to emissions
from the power plant.
2. The forest in the remaining forests inthe Freeport was not considered as impact zone
as indicated by the lack ofdescription of these forests and the potential impacts the
project might have on these forests. This appears to be a key omission in the EIS
considering that these forests are well within 40 to 50 km away from the site and that
there are studies showing that the impacts of sulphur emissions can extend as far as 40
to 50 km away from the source.
3. There are 39 endemic fauna and 1 endangered plant species (Molave) in the
proposed project site. There will be a need to make sure that these species are
protected from being damaged permanently in wholesale. Appropriate measures such
as ex situconservation and translocation if feasible must be implemented.
4. The Project site is largely in grassland interspersed with some trees. These plants if
affected by acid rain or by sulphur emissions may disappear and have consequences on
the soil properties and hydrological processes in the area. Accelerated soil erosion and
increased surface runoff and reduced infiltration of rainwater into the soil.
5. The rest of the peninsula is covered with brushland but were never included as part of
the impact zone.
6. There are home gardens along the coastal areas of the site planted to ornamental and
agricultural crops which are likely to be affected by acid rain.
7. There is also a beach forest dominated by aroma, talisai and agoho which will likely
be affectedalso by acid rain.
8. There are no Environmentally Critical Areas within the 1 km radius from the project
site. However, the OlongapoWatershed Forest Reserve, a protected area is
approximately 10 kmsouthwest of the projectsite. Considering the prevailing wind
movement in the area, this forest reserve is likely to be affected by acid rain if it occurs
from the emission of the power plant. This forest reserve is however not included as
partof the potential impact area.
9. Soil in the project site and the peninsula is thin and highly acidic and deficient in NPK
with moderate to severe erosion potential. The sparse vegetation cover in the vicinity of
the projectsite is likely a result of the highly acidic soil and the nutrient deficiency.
Additional acidity may result from acid rain that may form in the area which could further
make it harder for the plants to grow in the area that in turn could exacerbate the already
severe erosion in the area. 10. There is a need to review the proposalto ensure that the
proposed project is consistent with the vision for the Freeport as enunciated in the
SBMA Master Plan and the Protected Area Management Plan. This will reinforce the
validity and legitimacy of these plans as a legitimate framework for screening potential
locators in the Freeport. Itwill also reinforce the trust and confidence of the stakeholders
on the competence and authority of the SBMA that would translate in stronger popular
support to the programs implemented in the Freeport.
11. The EGF and Trust Fund (Table 5.13) should be made clear that the amounts are
the minimum amount and that adequate funds will be provided by the proponent as
necessary beyond the minimum amounts. Furthermore the basis for the amounts
allocated for the items (public liability and rehabilitation) in Trust Fund and in EGF (tree
planting and landscaping, artificial reef establishment) must be clarified. The specific
damages and impacts that will be covered by the TF and EGF must also be presented
clearly at the outset to avoid protracted negotiations in the event of actual impacts
occurring in the future.
12. The monitoring plan for terrestrial flora and fauna is not clear on the frequency of
measurement. More importantly, the proposed method of measurement (sampling
transect) while adequate for estimating the diversity of indices for benchmarking is not
sufficient for long[-]term monitoring. Instead, long[-]term monitoringplots (at least 1
hectare in size) should be established to monitor the long[-]term impacts of the project
on terrestrial flora and fauna.
13. Since the proposed monitoring of terrestrial flora and fauna is limited to the vicinity of
the project site, it will be useful not only for mitigating and avoiding unnecessary adverse
impacts ofthe project but also for improving management decisions if long[-]term
monitoring plots for the remaining natural forests in the Freeport are established. These
plots will also be useful for the study of the dynamic interactions of terrestrial flora and
fauna with climate change, farming and other human activities and the resulting
influences on soil, water, biodiversity, and other vital ecosystem services in the
Freeport.139
We agree with the appellate court that the alleged statements by these experts cannot be given
weight because they are hearsay evidence. None of these alleged experts testified before the
appellate court to confirm the pertinent contents of the Final Report. No reason appears in the
records of this case as to why the Casiño Group failed to present these expert witnesses.
We note, however, that these statements, on their face, especially the observations of Dr. Cruz,
raise serious objections to the environmental soundness of the project, specifically, the EIS
thereof.It brings to fore the question of whether the Court can, on its own, compel the
testimonies of these alleged experts in order to shed light on these matters in view of the rightat
stake— not just damage to the environment but the health, well-being and,ultimately, the livesof
those who may be affected by the project.
The Rules of Procedure for Environmental Cases liberally provide the courts with means and
methods to obtain sufficient information in order to adequately protect orsafeguard the right to a
healthful and balanced ecology. In Section 6 (l) 140 of Rule 3 (Pre-Trial), when there is a failure to
settle, the judge shall, among others, determine the necessity of engaging the services of a
qualified expert as a friend of the court (amicus curiae). While, in Section 12 141 of Rule 7 (Writ of
Kalikasan), a party may avail of discovery measures: (1) ocular inspection and (2) production or
inspection of documents or things. The liberality of the Rules in gathering and even compelling
information, specifically with regard to the Writ of Kalikasan, is explained in this wise: [T]he writ
of kalikasanwas refashioned as a tool to bridge the gap between allegation and proof by
providing a remedy for would-be environmental litigants to compel the production of information
within the custody of the government. The writ would effectively serve as a remedy for the
enforcement of the right to information about the environment. The scope of the fact-finding
power could be: (1) anything related to the issuance, grant of a government permit issued or
information controlled by the government or private entity and (2) [i]nformation contained in
documents such as environmental compliance certificate (ECC) and other government records.
In addition, the [w]rit may also be employed to compel the production of information, subject to
constitutional limitations. This function is analogous to a discovery measure, and may be availed
of upon application for the writ.142
Clearly, in environmental cases, the power toappoint friends of the court in order to shed light on
matters requiring special technical expertise as well as the power to order ocular inspections and
production of documents or things evince the main thrust of, and the spirit behind, the Rules to
allow the court sufficient leeway in acquiring the necessary information to rule on the issues
presented for its resolution, to the end that the right toa healthful and balanced ecology may be
adequately protected. To draw a parallel, in the protection of the constitutional rights of an
accused, when life or liberty isat stake, the testimonies of witnesses may be compelled as an
attribute of the Due Process Clause. Here, where the right to a healthful and balanced ecology of
a substantial magnitude is at stake, should we not tread the path of caution and prudence by
compelling the testimonies of these alleged experts?
After due consideration, we find that, based on the statements in the Final Report, there is no
sufficiently compelling reason to compel the testimonies of these alleged expert witnesses for
the following reasons.
First, the statementsare not sufficiently specificto point to us a flaw (or flaws) in the study or
design/implementation (or some other aspect) of the project which provides a causal link or, at
least, a reasonable connection between the construction and operation ofthe project vis-à-vis
potential grave environmental damage. In particular, they do not explain why the Environmental
Management Plan (EMP) contained in the EIS of the project will notadequately address these
concerns.
Second, some of the concerns raisedin the alleged statements, like acid rain, warming and
acidification of the seawater, and discharge of pollutants were, as previously discussed,
addressed by the evidence presented by RP Energy before the appellate court. Again, these
alleged statements do not explain why such concerns are not adequately covered by the EMP of
RP Energy.
Third, the key observations of Dr. Cruz, while concededly assailing certain aspects of the EIS, do
not clearly and specifically establish how these omissions have led to the issuance of an ECC
that will pose significant negative environmental impacts once the project is constructed and
becomes operational. The recommendations stated therein would seem to suggest points for
improvement in the operation and monitoring of the project,but they do not clearly show why
such recommendations are indispensable for the project to comply with existing environmental
laws and standards, or how non-compliance with such recommendations will lead to an
environmental damage of the magnitude contemplatedunder the writ of kalikasan. Again, these
statements do not state with sufficient particularity how the EMP in the EIS failed to adequately
address these concerns.
Fourth, because the reason for the non-presentation of the alleged expert witnesses does not
appear on record, we cannot assume that their testimonies are being unduly suppressed.
By ruling that we do not find a sufficiently compelling reason to compel the taking of the
testimonies of these alleged expert witnesses in relation to their serious objections to the power
plant project, we do not foreclose the possibility that their testimonies could later on be
presented, in a proper case, to more directly, specifically and sufficientlyassail the environmental
soundness of the project and establish the requisite magnitude of actualor threatened
environmental damage, if indeed present. After all, their sense ofcivic duty may well prevail upon
them to voluntarily testify, if there are truly sufficient reasons tostop the project, above and
beyond their inadequate claims in the Final Report that the project should not be pursued. As
things now stand,however, we have insufficient bases to compel their testimonies for the
reasons already proffered.
The alleged admissions of grave
environmental damage in the EIS of the
project.
In their Omnibus Motions for Clarification and Reconsideration before the appellate court and
Petition for Review before thisCourt, the Casiño Group belatedly claims that the statements in
the EIS prepared by RPEnergy established the significant negative environmental impacts of the
project. They argue in this manner:
Acid Rain
35. According to RP Energy’s Environmental Impact Statement for its proposed 2 x 150 MW
Coal-Fired Thermal Power Plant Project, acid rain may occur in the combustion of coal, to wit – x
xxx
During the operation phase, combustion of coal will result in emissions of particulates SOx and
NOx. This may contribute to the occurrence of acid rain due to elevated SO2 levels in the
atmosphere. High levels of NO2 emissions may give rise to health problems for residents within
the impact area.
xxxx
Asthma Attacks
36. The same EPRMP143 mentioned the incidence of asthma attacks [as a] result of power plant
operations, to wit –
xxxx
The incidence of asthma attacks among residents in the vicinity of the project site may increase
due to exposure to suspended particulates from plant operations. 144
RP Energy, however, counters that the above portions of the EIS were quoted out of context. As
to the subject of acid rain, the EIS states in full:
Operation
During the operation phase, combustion of coal will result in emissions of particulates, SOx and
NOx. This may contribute to the occurrence of acid rain due to elevated SO2 levels in the
atmosphere. High levels of NO2 emissions may give rise to health problems for residents within
the impact area. Emissions may also have an effect onvegetation (Section 4.1.4.2). However,
the use of CFBC technology is a built-in measure that results in reduced emission
concentrations. SOx emissions will beminimised by the inclusion of a desulfurisation process,
whilst NOx emissions will be reduced as the coal is burned at a temperature lower than that
required to oxidise nitrogen.145 (Emphasis supplied)
As to the subject of asthma attacks, the EIS states in full:
The incidence of asthma attacks among residents in the vicinity of the project site may increase
due to exposureto suspended particulates from plant operations. Coal and ash particulates may
also become suspended and dispersed into the air during unloading and transport, depending on
wind speed and direction. However, effect on air quality due to windblown coal particulates will
be insignificant as the coal handling system will have enclosures (i.e. enclosed conveyors and
coal dome) to eliminate the exposure of coal to open air, and therefore greatly reduce the
potential for particulates from being carried away by wind (coalhandling systems, Section
3.4.3.3). In addition, the proposed process will include an electrostaticprecipitator that will
remove fly ash from the flue gas prior to its release through the stacks, and so particulates
emissions will be minimal.146 (Emphasis supplied)
We agree with RP Energy that, while the EIS discusses the subjects of acid rain and asthma
attacks, it goes on to state that there are mitigating measures that will be put in place to prevent
these ill effects. Quite clearly, the Casiño Group quoted piecemeal the EIS in sucha way as to
mislead this Court as to its true and full contents.
We deplore the way the Casiño Group has argued this point and we take this time to remind it
that litigants should not trifle withcourt processes. Along the same lines, we note how the Casiño
Group has made serious allegations in its Petition for Writ of Kalikasanbut failed to substantiate
the same in the course of the proceedings before the appellate court. In particular, during the
preliminary conference of this case, the Casiño Group expressly abandoned its factual claims on
the alleged grave environmental damage that will be caused by the power plant (i.e., air, water
and land pollution) and, instead, limited itself to legal issues regarding the alleged non-
compliance of RP Energy with certain laws and rules in the procurement of the ECC.147 We also
note how the Casiño Group failed to comment on the subject Petitions before this Court, which
led this Court to eventually dispense with its comment.148 We must express our disapproval over
the way it has prosecuted itsclaims, bordering as it does on trifling with court processes. We
deem itproper, therefore, to admonishit to be more circumspect in how it prosecutesits claims.
In sum, we agree with the appellate court that the Casiño Group failed to substantiate its claims
thatthe construction and operation of the power plant will cause environmental damage of the
magnitude contemplated under the writ of kalikasan. The evidence it presented is inadequate to
establish the factual bases of its claims.
II.
Whether the ECC is invalid for lack of signature of Mr. Luis Miguel Aboitiz (Mr. Aboitiz), as
representative of RP Energy, in the Statement of Accountability of the ECC.
The appellate court ruled that the ECC is invalid because Mr. Aboitiz failed to sign the Statement
of Accountability portion of the ECC.
We shall discuss the correctness ofthis ruling on both procedural and substantive grounds.
Procedurally, we cannot fault the DENR for protesting the manner by which the appellate court
resolved the issue of the aforesaid lack of signature. We agree with the DENR that this issue
was not among those raised by the Casiño Group in its Petition for Writ of Kalikasan. 149 What is
more, this was not one of the triable issues specificallyset during the preliminary conference of
this case.150
How then did the issue oflack of signature arise?
A review of the voluminous records indicates that the matterof the lack of signature was
discussed, developed or surfaced only inthe course of the hearings, specifically, on clarificatory
questions from the appellate court, to wit:
J. LEAGOGO:
I would also show to you your ECC, that’s page 622 of the rollo. I am showing to you this
Environmental Compliance Certificate dated December 22, 2008 issued by Sec. Jose L. Atienza,
Jr. of the DENR. This is your "Exhibit "18." Would you like to go over this? Are you familiar with
this document?
MS. MERCADO:
Yes, it[’]s my Annex "3," Your Honor. Because the Statement of Accountability says, "Mr. Luis Miguel Aboitiz, Director, representing
Redondo Peninsula Energy with office address located at 110 Legaspi Street, Legaspi Village,
J. LEAGOGO: Makati City, takes full responsibility in complying with all conditions in thisEnvironmental
Compliance Certificate [ECC][.]" Will you tell this Court why this was not signed?
I would like to refer you to page 3 of the ECC dated December 22, 2008. Page 2 refers to the
Environmental Compliance Certificate, ECC Ref. No. 0804-011-4021. That’s page 2 of the letter MS. MERCADO:
dated December 22, 2008. And on page 3, Dr. Julian Amador recommended approval and it was
approved by Sec. Atienza. You see that on page 3? It was signed, Your Honor, but this copy wasn’t signed. My apologies, I was the one who
provided this, I believe, to the lawyers. This copy was not signed because during….
MS. MERCADO:
J. LEAGOGO:
Yes, Your Honor.
But this is your exhibit, this is yourExhibit "18" and this is not signed. Do you agree with me that
J. LEAGOGO: your Exhibit "18" is not signed by Mr. Aboitiz?

Okay. On the same page, page 3, there’s a Statement of Accountability. MS. MERCADO:

MS. MERCADO: That’s correct, Your Honor.151

Yes, Your Honor. We find this line of questioning inadequate to apprise the parties that the lack of signature would
be a key issue in this case; as in fact it became decisive in the eventual invalidation of the ECC
by the appellate court.
J. LEAGOGO:

Concededly, a court has the power to suspend its rules of procedure in order to attain substantial
Luis, who is Luis Miguel Aboitiz?
justice so that it has the discretion, in exceptional cases, to take into consideration matters not
originally within the scope of the issues raised in the pleadings or set during the preliminary
MS. MERCADO: conference, in order to prevent a miscarriage of justice. In the case at bar, the importance of the
signature cannot be seriously doubted because it goes into the consent and commitment of the
During that time he was the authorized representative of RP Energy, project proponent to comply with the conditions of the ECC, which is vital to the protection of the
right to a balanced and healthful ecology of those who may be affected by the project.
Your Honor. Nonetheless, the power of a court tosuspend its rules of procedure in exceptional cases does
not license it to foist a surprise on the parties in a given case. To illustrate, in oral arguments
J. LEAGOGO: before this Court, involving sufficiently important public interest cases, we note that individual
members of the Court, from time to time, point out matters that may not have been specifically
covered by the advisory (the advisory delineates the issues to be argued and decided).
Now, who is the authorized representative of RP Energy?
However, a directive is given to the concerned parties to discuss the aforesaid matters in their
memoranda. Such a procedure ensures that, at the very least, the parties are apprised that the
MS. MERCADO: Court has taken an interest in such matters and may adjudicate the case on the basis thereof.
Thus, the parties are given an opportunity to adequately argue the issue or meet the issue head-
It would be Mr. Aaron Domingo, I believe. on. We, therefore, find that the appellate court should have, at the very least, directed RP
Energy and the DENR to discuss and elaborate on the issue of lack of signature in the
J. LEAGOGO: presentation of their evidence and memoranda, beforemaking a definitive ruling that the lack
thereof invalidated the ECC.This is in keeping with the basic tenets of due process.
Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz, the Statement of
Accountability? At any rate, we shall disregard the procedural defect and rule directly on whether the lack of
signature invalidated the ECC in the interest of substantial justice.
 The laws governing the ECC, i.e., PresidentialDecree No. (PD) 1151 and PD 1586, do not
specifically state that the lack of signature in the Statement of Accountability has the effect of
invalidating the ECC. Unlike in wills or donations, where failure to comply withthe specific form
prescribed by law leads to its nullity,152 the applicable laws here are silentwith respect to the
necessity of a signature in the Statement of Accountability and the effect of the lack thereof. This
is, of course, understandable because the Statement of Accountability is a mere off-shoot of the
rule-making powers of the DENR relative tothe implementation of PD 1151 and PD 1586. To
determine, therefore, the effect of the lack of signature, we must look atthe significance thereof
under the Environmental Impact Assessment (EIA) Rules of the DENR and the surrounding
circumstances of this case.
To place this issue in its proper context, a helpful overview of the stages of the EIA process,
taken from the Revised Manual, is reproduced below:
Figure 1-3 Overview of Stages of the Philippine EIA Process153
1.0 SCREENING Screeningdetermines if a project is covered or not covered by the PEISS.154If a
project is covered, screening further determines what document type the project
should prepare to secure the needed approval, and what the rest of the
requirements are in terms of EMB office of application, endorsing and decision
authorities, duration of processing.
2.0 SCOPING Scopingis a Proponent-driven multi-sectoral formal process of determining the
focused Terms of Reference of the EIA Study. Scoping identifies the most
significant issues/impacts of a proposed project, and then, delimits the extent of
baseline information to those necessary to evaluate and mitigate the impacts.
The need for and scope of an Environmental Risk Assessment (ERA) is also
done during the scoping session. Scoping is done with the local community
through Public Scoping and with a third party EIA Review Committee (EIARC)
through Technical Scoping, both with the participation of the DENR-EMB. The
process results in a signed Formal Scoping Checklist by the review team, with
final approval by the EMB Chief.
EIA STUDY and The EIA Studyinvolves a description of the proposed project and its alternatives,
3.0 REPORT characterization of the project environment, impact identification and prediction,
PREPARATION evaluation of impact significance, impact mitigation, formulation of Environmental
Management and Monitoring Plan, withcorresponding cost estimates and
institutional support commitment. The study results are presented in an EIA
Reportfor which an outline is prescribed by EMB for every major document type
EIA REPORT Review of EIA Reportsnormally entails an EMB procedural screening for
4.0 REPORT compliance with minimum requirements specified during Scoping, followed by a
and substantive review of either composed third party experts commissioned by EMB
EVALUATION as the EIA Review Committee for PEIS/EIS-based applications, or DENR/EMB
internal specialists, the Technical Committee, for IEE-based applications. EMB
evaluates the EIARC recommendations and the public’s inputs during public
consultations/hearings in the process of recommending a decision on the
application. The EIARC Chair signs EIARC recommendations including issues
outside the mandate of the EMB. The entire EIA review and evaluation process
is summarized in the Review Process Report (RPR) of the EMB, which includes
a draft decision document.
5.0 DECISION Decision Making involves evaluation of EIA recommendations and the draft
MAKING decision document, resulting to the issuance of an ECC, CNC or Denial Letter.
When approved, a covered project is issued its certificate of Environmental
Compliance Commitment (ECC) while an application of a non-covered project is
issued a Certificate of Non-Coverage (CNC). Endorsing and deciding authorities
are designated by AO 155 42, and further detailed in this Manual for every report
type. Moreover, the Proponent signs a sworn statement of full responsibility on
implementation of its commitments prior to the release of the ECC. 156 The ECC
is then transmitted to concerned LGUs and other GAs for integration into their
decisionmaking process. The regulated part of EIA Review is limited to the
processes within EMB control. The timelines for the issuance of decision
documents provided for in AO 42 and DAO 2003-30 are applicable only from the
time the EIA Report is accepted for substantive review to the time a decision is
issued on the application.
MONITORING. Monitoring, Validation and Evaluation/Audit stage assesses performance of the
6.0 Proponent against the ECC and itscommitments in the Environmental
VALIDATION, Management and Monitoring Plans to ensure actual impacts of the project are
and adequately prevented or mitigated.
EVALUATION/
AUDIT
The signing of the Statement of Accountability takes placeat the Decision Making Stage. After a
favorable review of its ECC application, the project proponent, through its authorized
representative, is made to sign a sworn statement of full responsibility on the implementation
ofits commitments prior to the official release of the ECC.
The definition of the ECC in the Revised Manual highlights the importance of the signing of the
Statement of Accountability:
Environmental Compliance Certificate (ECC) - a certificate of Environmental Compliance
Commitment to which the Proponent conforms with, after DENR-EMB explains the ECC
conditions, by signing the sworn undertaking of full responsibility over implementation of
specified measures which are necessary to comply with existing environmental regulations or to
operate within best environmental practices that are not currently covered by existing laws. It is a
document issued by the DENR/EMB after a positive review of an ECC application, certifying that
the Proponent has complied with all the requirements of the EIS System and has committed to
implement its approved Environmental Management Plan. The ECC also provides guidance to
other agencies and to LGUs on EIA findings and recommendations, which need to be
considered in their respective decision-making process.157(Emphasis supplied)
As can be seen, the signing of the Statement of Accountabilityis an integral and significant
component of the EIA process and the ECC itself. The evident intention is to bind the project
proponentto the ECC conditions, which will ensure that the project will not cause significant
negative environmental impacts by the "implementation of specified measures which are
necessary to comply with existing environmental regulations or tooperate within best
environmental practices that are not currently covered by existing laws." Indeed, the EIA process
would be a meaningless exercise if the project proponent shall not be strictly bound to faithfully
comply withthe conditions necessary toadequately protect the right of the people to a healthful
and balanced ecology.
Contrary to RP Energy’s position, we, thus, find that the signature of the project proponent’s
representative in the Statement of Accountability is necessary for the validity of the ECC. It is
not, as RP Energy would have it, a mere formality and its absence a mere formal defect.
The question then is, was the absence of the signature of Mr. Aboitiz, as representative of RP
Energy, in the Statement of Accountability sufficient ground to invalidate the ECC?
Viewed within the particular circumstances of this case, we answer in the negative.
While it is clear that the signing of the Statement of Accountability is necessary for the validity
ofthe ECC, we cannot close oureyes to the particular circumstances of this case. So often have
we ruled that this Court is not merely a court of law but a court of justice. We find that there are
several circumstances present in this case which militate against the invalidation of the ECC on
this ground.
We explain.
First, the reason for the lack of signature was not adequately taken into consideration by the
appellate court. To reiterate, the matter surfaced during the hearing of this case on clarificatory
questions by the appellate court, viz:
J. LEAGOGO:
Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz, the Statement of
Accountability?
Because the Statement of Accountability says, "Mr. Luis Miguel Aboitiz, Director, representing
Redondo Peninsula Energy with office address located at 110 Legaspi Street, Legaspi Village,
Makati City, takes full responsibility in complying with all conditions in this Environmental
Compliance Certificate [ECC][.]" Will you tell this Court why this was not signed?
MS. MERCADO:
It was signed, Your Honor, but this copy wasn’t signed. My apologies, I was the one who
provided this, I believe, to the lawyers. This copy was not signed because during…
J. LEAGOGO:
But this is your exhibit, this is yourExhibit "18" and this is not signed. Do you agree with me that
your Exhibit "18" is not signed by Mr. Aboitiz?
MS. MERCADO:
That’s correct, Your Honor.158 (Emphasis supplied)
Due to the inadequacy of the transcriptand the apparent lack of opportunity for the witness to
explain the lack of signature, we find that the witness’ testimony does not, by itself, indicate that
there was a deliberate or malicious intent not to sign the Statement of Accountability.
Second, as previously discussed, the concerned parties to this case, specifically, the DENR and
RP Energy, werenot properly apprised that the issue relative to the lack of signature would be
decisive inthe determination of the validity of the ECC. Consequently, the DENR and RPEnergy
cannot be faulted for not presenting proof during the course ofthe hearings to squarely tackle the
issue of lack of signature.
Third, after the appellate court ruled in its January 30, 2013 Decision that the lack of signature
invalidated the ECC,RP Energy attached, to its Motion for Partial Reconsideration, a certified
true copy of the ECC, issued by the DENREMB, which bore the signature of Mr. Aboitiz. The
certified true copy of the ECC showed that the Statement of Accountability was signed by Mr.
Aboitiz on December 24, 2008.159
The authenticity and veracity of this certified true copy of the ECC was not controverted by the
Casiño Group in itscomment on RP Energy’s motion for partial reconsideration before the
appellate court nor in their petition before this Court. Thus, in accordance with the presumption
of regularity in the performance of official duties, it remains uncontroverted that the ECC on file
with the DENR contains the requisite signature of Mr. Aboitiz in the Statement of Accountability
portion.
As previously noted, the DENR and RPEnergy were not properly apprised that the issue relative
to the lack ofsignature would be decisive in the determination of the validity of the ECC. As a
result, we cannot fault RP Energy for submitting the certified true copy of the ECC only after it
learned that the appellate court had invalidated the ECC on the ground of lack ofsignature in its
January 30, 2013 Decision.
We note, however, that, as previously discussed, the certified true copy of the Statement of
Accountability was signed by Mr. Aboitiz on December 24, 2008 or two days after the ECC’s
official release on December 22, 2008. The aforediscussed rules under the Revised Manual,
however, state that the proponent shall sign the sworn statement of full responsibility on
implementation of its commitments priorto the release of the ECC. Itwould seem that the ECC
was first issued, then it was signed by Mr. Aboitiz, and thereafter, returned to the DENR to serve
as its file copy. Admittedly, there is lack of strict compliance with the rules although the signature
ispresent. Be thatas it may, we find nothing in the records to indicate that this was done with bad
faith or inexcusable negligence because of the inadequacy of the evidence and arguments
presented, relative to the issue of lack of signature, in view of the manner this issue arose in this
case, as previously discussed. Absent such proof, we are not prepared to rule that the procedure
adopted by the DENR was done with bad faithor inexcusable negligence but we remind the
DENR to be more circumspect in following the rules it provided in the Revised Manual. Thus, we
rule that the signature requirement was substantially complied with pro hac vice.
Fourth, we partly agree with the DENRthat the subsequent letter-requests for amendments to
the ECC, signed by Mr. Aboitiz on behalf of RP Energy, indicate its implied conformity to the
ECC conditions. In practical terms, if future litigation should occur due to violations of the ECC
conditions, RP Energy would be estopped from denying its consent and commitment to the ECC
conditions even if there was no signature in the Statement of Accountability. However, we note
that the Statement of Accountability precisely serves to obviate any doubt as to the consent and
commitment of the project proponent to the ECC conditions. At any rate, the aforesaid letter-
requests do additionally indicate RP Energy’s conformity to the ECC conditions and, thus,
negate a pattern to maliciously evade accountability for the ECC conditions or to intentionally
create a "loophole" in the ECC to be exploited in a possible futurelitigation over non-compliance
with the ECC conditions.
In sum, we rule that the appellate court erred when it invalidated the ECC on the ground of lack
of signature of Mr. Aboitiz in the ECC’s Statement of Accountability relative to the copy of the
ECC submitted by RP Energy to the appellate court. While the signature is necessary for the
validity of the ECC, the particular circumstances of this case show that the DENR and RP
Energy were not properly apprised of the issue of lack ofsignature in order for them to present
controverting evidence and arguments on this point, as the matter only developed during the
course of the proceedings upon clarificatory questions from the appellate court. Consequently,
RP Energy cannot be faulted for submitting the certified true copy of the ECC only after it
learned that the ECC had been invalidated on the ground of lack of signature in the January 30,
2013 Decision of the appellate court.
The certified true copy of the ECC, bearing the signature of Mr. Aboitiz in the Statement of
Accountability portion, was issued by the DENR-EMB and remains uncontroverted. Itshowed
that the Statement of Accountability was signed by Mr. Aboitiz on December 24, 2008. Although
the signing was done two days after the official release of the ECC on December 22, 2008,
absent sufficient proof, we are not prepared to rule that the procedure adoptedby the DENR was
done with bad faith or inexcusable negligence. Thus, werule that the signature requirement was
substantially complied with pro hac vice.
III.
Whether the first and second amendments to the ECC are invalid for failure to undergo a new
environmental impact assessment (EIA) because of the utilization of inappropriate EIA
documents.
Upholding the arguments of the Casiño Group, the appellate court ruled that the first and second
amendments tothe ECC were invalid because the ECC contained an express restriction that any
expansion of the project beyond the project description shall be the subject of a new EIA. It
found that both amendments failed to comply with the appropriate EIA documentary
requirements under DAO 2003-30 and the Revised Manual. In particular, it found that the
Environmental Performance Report and Management Plan (EPRMP) and Project Description
Report (PDR), which RP Energy submitted tothe DENR, relative to the application for the first
and second amendments, respectively, were not the proper EIA document type. Hence, the
appellate court ruled that the aforesaid amendments were invalid.
Preliminarily, we must state that executive actions carry presumptive validity so that the burden
of proof is on the Casiño Group to show that the procedure adopted bythe DENR in granting the
amendments to the ECC were done with grave abuse of discretion. More so here because the
administration of the EIA process involves special technical skill or knowledge which the law has
specifically vested in the DENR.
After our own examination of DAO 2003-30 and the Revised Manual as well as the voluminous
EIA documents of RP Energy appearing in the records of this case, we find that the appellate
court made an erroneous interpretation and application of the pertinent rules.
We explain.
As a backgrounder, PD 1151 set the Philippine Environment Policy. Notably, this law recognized
the right ofthe people to a healthful environment.160 Pursuant thereto, in every action, project or
undertaking, which significantly affects the quality of the environment, all agencies and
instrumentalities of the national government, including government-owned or -controlled
corporations, as well as private corporations, firms, and entities were required to prepare, file
and include a statement (i.e., Environmental Impact Statement or EIS) containing:
(a) the environmental impact of the proposed action, project or undertaking;
(b) any adverse environmental effect which cannot be avoided should the proposal be
implemented;
(c) alternative to the proposed action;
(d) a determination that the short-term uses of the resources of the environment are
consistent with the maintenance and enhancement of the longterm productivity of the
same; and
(e) whenever a proposal involves the use of depletable or non-renewable resources, a
finding must be made that such use and commitment are warranted.161
To further strengthen and develop the EIS, PD1586 was promulgated, which established the
Philippine Environmental Impact Statement System (PEISS). The PEISS is "a systems-oriented
and integrated approach to the EIS system to ensure a rational balance between socio-
economic development and environmental protection for the benefit of present and future
generations."162 The ECC requirement ismandated under Section 4 thereof:
SECTION 4. Presidential Proclamation ofEnvironmentally Critical Areas and Projects. The
President of the Philippines may, on his own initiative or upon recommendation of the National
Environmental Protection Council, by proclamation declare certain projects, undertakings or
areas in the country as environmentally critical. No person, partnership or corporation shall
undertake or operate any such declared environmentally critical project or area without first
securing an Environmental Compliance Certificate issued by the President or his dulyauthorized
representative. x x x (Emphasis supplied)
The PEISS consists of the Environmental Impact Assessment (EIA) process, which is mandatory
for private orpublic projects thatmay significantly affect the quality of the environment. It involves
evaluating and predicting the likely impacts of the project on the environment, designing
appropriate preventive, mitigating and enhancement measures addressing these consequences
to protect the environment and the community’s welfare. 163
PD 1586 was implemented by DAO 2003-30 which, in turn, set up a system or procedure to
determine when a project is required to secure an ECC and when it is not. When an ECC is not
required, the project proponent procures a Certificate of Non-Coverage (CNC).164 As part of the
EIA process, the project proponent is required to submit certain studies or reports (i.e., EIA
document type) to the DENR-EMB, which willbe used in the review process in assessing the
environmental impact of the project and the adequacy of the corresponding environmental
management plan or program to address such environmental impact. This will then be part of the
bases to grant or deny the application for an ECC or CNC, as the case may be.
Table 1-4 of the Revised Manual summarizes the required EIA document type for each project
category. It classifies a project as belonging to group I, II, III, IV or V, where:
I- Environmentally Critical Projects (ECPs) in either Environmentally Critical Area (ECA)
or Non-Environmentally Critical Area (NECA),
II- Non-Environmentally Critical Projects (NECPs) in ECA,
III- NECPs in NECA,
IV- Co-located Projects, and
V- Unclassified Projects.
The aforesaid table then further classifies a project, as pertinent to this case, as belonging to
category A,B or C, where:
A- new;
B- existing projects for modification or re-start up; and
C- operating projects without an ECC.
Finally, the aforesaid table considers whether the project is single or co-located.165 After which, it
states the appropriateEIA document typeneeded for the application for an ECC or CNC, as the
case may be.
The appropriate EIA document type vis-à-vis a particular project depends on the potential
significant environmental impact of the project. At the highest level would be an ECP, such as
the subject project. The hierarchy of EIA document type, based on comprehensiveness and
detail of the study or report contained therein, insofar as single projects are concerned, is as
follows:
1. Environmental Impact Statement166 (EIS),
2. Initial Environmental Examination167 (IEE) Report,
3. Initial Environmental Examination168 (IEE) Checklist Report,
4. Environmental Performance Report and Management Plan 169 (EPRMP), and
5. Project Description170 (PD) or Project Description Report (PDR).
Thus, in the course of RP Energy’s application for anECC, it was required by the DENR-EMB to
submit an EIS because the subject project is: an ECP, new and a single project.
The present controversy, however, revolves around, not an application for an ECC, but
amendments thereto.
RP Energy requested the subject first amendment to its ECC due to its desire to modify the
project design through the inclusion of a barge wharf, seawater intake breakwater, subsea
discharge pipeline, raw water collection system, drainage channel improvement and a 230-kV
double transmission line. The DENR-EMB determined that this was a major amendment and,
thus, required RP Energy to submit an EPRMP.
The Casiño Group argued, and the appellate court sustained, that an EPRMP is not the correct
EIA document type based on the definition of an EPRMP in DAO 2003-30 and the Revised
Manual.
In DAO 2003-30, an EPRMP is defined as:
Environmental Performance Report and Management Plan (EPRMP) — documentation of the
actual cumulative environmental impacts and effectiveness of current measures for single
projects that are already operating but without ECC's, i.e., Category A-3. For Category B-3
projects, a checklist form of the EPRMP would suffice; 171(Emphasis supplied)
Further, the table in Section 5 of DAO 2003-30 states that an EPRMP is required for "A-2:
Existing and to beexpanded (including undertakings that have stopped operations for more than
5 years and plan to re-start with or without expansion) and A-3: Operating without ECC."
On the other hand, the Revised Manual delineates when an EPRMP is the proper EIA document
type, thus:
For operating projects with previous ECCs but planning or applying for clearance to
modify/expand or re-start operations, or for projects operating without an ECCbut applying to
secure one to comply with PD 1586 regulations, the appropriate document is not an EIS but an
EIA Report incorporating the project’s environmental performance and its current Environmental
Management Plan. This report isx x x anx x x Environmental Performance Report and
Management Plan (EPRMP) for single project applications x x x172 (Emphasis supplied)
In its "Glossary," the Revised Manual defines an EPRMP as:
Environmental Performance Report and Management Plan (EPRMP) - documentation of the
actual cumulative environmental impacts and effectiveness of current measures for single
projects that are already operating but without ECCs. 173 (Emphasis supplied)
Finally, Table 1-4, in the Revised Manual, states that an EPRMP is required for "Item I-B:
Existing Projects for Modification or Re-start up (subject to conditions in Annex 2-1c) and I-C:
Operating without ECC."
From these definitions and tables, an EPRMP is, thus, the required EIA document type for an
ECP-single project which is:
1. Existing and to be expanded (including undertakings that have stopped operations for
more than 5 years and plan to re-start with or without expansion);
2. Operating but without ECCs;
3. Operating projects with previous ECCs but planning or applying for clearance to
modify/expand orre-start operations; and
4. Existing projects for modification or re-start up.
It may be observed that, based from the above, DAO2003-30 and the Revised Manual appear to
use the terms "operating"and "existing" interchangeably. In the case at bar, the subject project
has not yet been constructed although there have been horizontal clearing operations at the
project site.
On its face, therefore, the theory of the Casiño Group, as sustained by the appellate court — that
the EPRMP is not the appropriate EIA document type— seems plausible because the subject
project is not: (1) operating/existing with a previous ECC but planning or applying for
modification or expansion, or (2) operating but without an ECC. Instead, the subject project is an
unimplemented or a non-implemented, hence,non-operating project with a previous ECC but
planning for modification or expansion.
The error in the above theory lies in the failure to consider or trace the applicable provisions of
DAO 2003-30 and the Revised Manual on amendments to an ECC.
The proper starting point in determining the validity of the subject first amendment, specifically,
the propriety of the EIA document type (i.e., EPRMP) which RP Energy submitted in relation to
its application for the aforesaid amendment, must of necessity be the rules on amendments to
an ECC.174 This is principally found in Section 8.3,Article II of DAO 2003-03, viz:
8.3 Amending an ECC
Requirements for processing ECC amendments shall depend on the nature of the request but
shall be focused on the information necessary to assess the environmental impact of such
changes.
8.3.1. Requests for minor changes to ECCs such as extension of deadlines for
submission of post-ECC requirements shall be decided upon by the endorsing
authority.
8.3.2. Requests for major changes to ECCs shall be decided upon by the
deciding authority.
8.3.3. For ECCs issued pursuant to an IEE or IEE checklist, the processing of
the amendment application shall not exceed thirty (30) working days; and for
ECCs issued pursuant to an EIS, the processing shall not exceed sixty (60)
working days. Provisions on automatic approval related to prescribed
timeframes under AO 42 shall also apply for the processing of applications to
amend ECCs. (Emphasis supplied)
Implementing the afore-quoted section, the Revised Manual pertinently states in Section 2.2,
paragraph 16:
16) Application Process for ECC Amendments
Figure 2-4 presents how Proponents may request for minor or major changes in their ECCs.
Annex 2-1c provides a decision chart for the determination of requirements for project
modifications, particularly for delineating which application scenarios will require EPRMP (which
will be subject to Figure 2-1 process) or other support documentations (which will be subject to
Figure 2-4 process). Figure 2-4, in turn, provides:
 Figure 2-4. Flowchart on Request for ECC Amendments175
Scenario 1: Request for Minor Amendments
1. Typographical error
2. Extension of deadlines for submission of
post-ECC requirement/s
3. Extension of ECC validity
4. Change in company name/ownership
5. Decrease in land/project area or
production capacity
6. Other amendments deemed
"minor" at the discretion of the
EMB CO/RO Director
1 [Start]
Within three (3) years from ECC issuance
(for projects not started)176 OR at any time
during project implementation, the Proponent
prepares and submits to the ECC-endorsing
DENR-EMB office a LETTER-REQUEST for
ECC amendment, including data/information,
reports or documents to substantiate the
requested revisions.
2 EPRMP to the EMB CO/RO while for those with
detailed in Annex 2-1cfor every modification
scenario.
Scenario 2: Request for Major Amendments
1. Expansion of project area w/in catchment 3
described in EIA
2. Increase in production capacity or auxiliary The ECC-endorsing EMB office assigns a For EPRMP/PEPRMP-based requests, EMB forms a
component of the original project Case Handler to evaluate the request Technical/Review Committee to evaluate the
request. For other requests, a Case Handler may
3. Change/s in process flow or technology solely undertake the evaluation. EMB CO and RO
will process P/EPRMP for PECC/ECC under Groups
I and II respectively. (Go to Figure 2-1)
4. Addition of new product
3 4
5. Integration of ECCs for similar or dissimilar but
contiguous projects (NOTE: ITEM#5 IS
PROPONENT’S OPTION, NOT EMB’S)
ECC-endorsing Authority decides on the ECC-endorsing/issuing Authority (per Table 1-4)
6. Revision/Reformatting of ECC Conditions Letter-Request, based on CH decides on Letter Requests/EPRMP/PEPRMP/Other
recommendation documents based on EMB CH and/or Tech/Review
7. Other amendments deemed "major" at the Committee recommendations.
discretion of the EMB CO/RO Director
Maximum Processing Time to Issuance of Max Processing Time to Issuance of Decision
1[Start] Decision
Within three (3) years from ECC issuance (for EMB CO 7 workdays CO PEPRMP CO EPRMP RO RO
projects not started)177 OR at any time during project PEPRMP EPRMP
implementation, the Proponent prepares and
submits to the ECC-endorsing DENR-EMB office a EMB RO 7 workdays 120 90 60 30
LETTER-REQUESTfor ECC amendments, including
data/information, reports or documents to workdays workdays workdays workdays
substantiate the requested revisions.
Other document applications: max 30 workdays
2 (EMB CO and RO)
For projects that have started implementation, EMB
evaluates request based on Annex 2-1cfor various
scenarios of project modification. Documentary
requirements may range from a Letter-Request to an
Noteworthy in the above, which is pertinent to the issue at hand, is that the amendment process
Programmatic ECC, a PEPRMP may need to be
squarely applies to projects not started, such as the subject project, based on the phrase
submitted to the EMB CO to support the request. It
"[w]ithin three (3) years from ECC issuance (for projects not started) x x x".
is important to note that for operating projects, the
appropriate document is not an EIS but an EIA
Report incorporating the project’s historical Annex 2-1c, in turn, provides a "Decision Chart for Determination of Requirements For Project
environmental performance and its current EMP, Modification." We reproduce below the first three columns of Annex 2-1c, as are pertinent to the
subject to specific documentary requirements issue at hand:
 ANNEX 2-1c thresholds, or EMP & modification will result to a next
ERA cannot address higher level of threshold range
DECISION CHART FOR DETERMINATION OF REQUIREMENTS FOR PROJECT impacts and risks arising
MODIFICATION178 from modification Modification scenario and
decision process are applicable
Proposed Modifications to Analysis of Proposed Resulting Decision to both nonimplemented and
the Current Project Modifications Document/Type of EIA Report operating projects with or
Required without issued ECCs

Operational projects, or those 5. Change/s in process flow EMP and ERA can still address ECC Amendment /Letter
which have stopped for ≤5 or technology impacts & risks arising from Request with brief process
years and plan to re-start modification description

For Groups I and II EISbased EMP and ERA cannot address ECC Amendment
Projects with an ECC applying impacts & risks arising from /Environmental Performance
for modification modification Report and Management Plan
(EPRMP)
1. Expansion of land/project Since the modification will be in ECC Amendment /Letter
area w/in catchment or an area already described and Request with brief description of 6. Additional component or Activity is directly lessening or ECC Amendment /Letter
environment described in evaluated in the original EIA activities in the additional area products which will mitigating the project’s impacts Request with consolidated
the original EIA Report Report, incremental impacts enhance the environment on the environment. However, Project Description Report of
from additional land (e.g. due to compliance to to ensure there is no new project component and
development will have been new stringent component in the modification integrated EMP
addressed in the approved requirements) or lessen which fall under covered project
EMP impacts on the types, EMB will require
environment (e.g. thru disclosure of the description of
2. Expansion of land/project It is assumed the modification ECC Amendment utilization of waste into the components and process
area OUTSIDE proposal may have significant /Environmental Performance new products) with which the new product will
catchment or potential impacts due to Report and Management Plan be developed.
environment described in absence of prior assessment as (EPRMP)
the original EIA Report to how the project may affect 7. Downgrade project size No incremental adverse From ECC Amendment to
the proposed expansion area or area or other units of impacts; may result to lower Relief of ECC Commitments
measure of thresholds project threshold or may result (Conversion to CNC): /Letter-
3. Increase in capacity or Non-exceedance of PDR (non ECC Amendment /Letter limits to non-coverage Request only
auxiliary component of covered project) threshold is Request with brief description of
the original project which assumed that impacts are not additional capacity or 8. Conversion to new Considered new application but New ECC /EIS
will eithernot entail significant; component project type (e.g. bunker- with lesser data requirements
exceedance of PDR (non- fired plant to gas-fired) since most facilities are
covered project) established; environmental
Modification scenario and
thresholds or EMP & ERA performance in the past will
decision process are applicable
can still address impacts serve as baseline; However, for
to both nonimplemented and
& risks arising from operating projects, there may
operating projects issued ECCs
modification be need to request for Relief
from ECC Commitment prior to
4. Increase in capacity or Exceedance of PDR (non- ECC Amendment applying for new project type to
auxiliary component of covered) threshold is assumed /Environmental Performance ensure no balance of
the original project which that impacts may be potentially Report and Management Plan environmental accountabilities
will either exceed PDR significant, particularly if (EPRMP) from the current project
(noncovered project)
9. Integration of ECCs for No physical change in project
similar or contiguous size/area; no change in
projects process/technology but
improved management of
(Note: Integration of continuous projects by having
ECCs is at the option of an integrated planning
the Proponent to document in the form or an
request/apply) integrated ECC (ECC
conditions will be harmonized
across projects; conditions
relating to requirements within
other agencies’ mandates will
be deleted)
10. Revision/ Reformatting of No physical change on the
ECC Conditions project but ECC conditions
relating to requirements within
other agencies’ mandates will
be deleted
We now apply these provisions to the case at bar.
ECC Amendment /Letter
Request with consolidated
Project Description Report and
integrated EMP
4. Increase in capacity or
ECC Amendment /Letter
Request only
The Casiño Group does not controvert this finding by the DENR-EMB and we find the same
reasonably supported by the evidence on record considering that, among others, the
construction of a 230-kVdouble transmission line would result in major activities outside the
project site which could have significant environmental impacts.
Consequently, the amendment was considered asfalling under Item#4 of Annex 2-1c, and, thus,
the appropriate EIA document typeis an EPRMP, viz:
Exceedance of PDR (non- ECC Amendment
auxiliary component of the covered) thresholds is assumed /Environmental Performance
original project which will that impacts may be potentially Report and Management Plan
either exceed PDR (non- significant, particularly if (EPRMP)182
covered project) thresholds, modification will result to a next
or EMP & ERA cannot higher level of threshold range
address impacts and risks
arising from modification Modification scenario and
decision process are applicable
to both nonimplemented and
operating projects with or
without issued ECCs181

To reiterate, the first amendment to the ECC was requested by RP Energy due to its planned
change of project design involving the inclusion of a barge wharf, seawater intake breakwater,
subseadischarge pipeline, raw water collection system, drainage channel improvement and a
230-kV double transmission line. The DENR-EMB determined179 that the proposed modifications
involved a major amendment because it will result in anincrease in capacity or auxiliary
component, as per Scenario 2,Item #2 of Figure 2-4:
Note that the Chart expressly states that, "[m]odification scenario and decision process are
applicable to both non-implementedand operating projects withor without ECCs."183 To recall, the
subject project has not been constructed and is not yet operational, although horizontal clearing
activities have already been undertaken at the project site. Thus, the subject project may be
reasonably classified as a non-implemented project with an issued ECC, which falls under
Item#4 and, hence, an EPRMP is the appropriate EIA document type.

Scenario 2: Request for Major Amendments This lengthy explanation brings us toa simple conclusion. The definitions in DAO 2003-30 and
the Revised Manual, stating that the EPRMP is applicable to (1) operating/existing projectswith a
previous ECC but planning or applying for modification or expansion, or (2) operating projects
1. Expansion of project area w/in catchment described in EIA
but without an ECC, were not an exclusive list.
2. Increase in production capacity or auxiliary component of the original project 180
The afore-discussed provisions of Figure 2-4, in relation to Annex 2-1c, plainly show that the
EPRMP can, likewise, be used as an appropriate EIA document type for a single, non-
3. Change/s in process flow or technology implemented project applying for a major amendment to its ECC, involving an increase in
capacity or auxiliary component, which will exceed PDR (non-covered project) thresholds, or
4. Addition of new product result in the inability of the EMP and ERA to address the impacts and risks arising from the
modification, such as the subject project.
5. Integration of ECCs for similar or dissimilar but contiguous projects (NOTE: ITEM#5
IS PROPONENT’S OPTION, NOT EMB’S) That the proposed modifications in the subject project fall under this class or type of amendment
was a determination made by the DENR-EMBand, absent a showing of grave abuse of
6. Revision/Reformatting of ECC Conditions discretion, the DENR-EMB’s findings are entitled to great respect because it is the administrative
agency with the special competence or expertise to administer or implement the EIS System.
7. Other amendments deemed "major at the discretion of the EMB CO/RO Director The apparent confusion of the Casiño Group and the appellate court is understandable. They
had approached the issue with a legal training mindset or background. As a general proposition,
the definition of terms in a statute or rule is controlling as to its nature and scope within the
context of legal or judicial proceedings. Thus, since the procedure adopted by the DENR-EMB
seemed to contradict or go beyond the definition of terms in the relevant issuances, the Casiño
Group and the appellate court concluded that the procedure was infirm.
However, a holistic reading of DAO2003-30 and the Revised Manual will show that such a
legalistic approach inits interpretation and application is unwarranted. This is primarily because
the EIA process is a system, not a set of rigid rules and definitions. In the EIA process, there is
much room for flexibility in the determination and use ofthe appropriate EIA document type as
the foregoing discussion has shown.184 To our mind, whatshould be controlling is the guiding
principle set in DAO 2003-30 in the evaluation of applications for amendments to ECCs, as
stated in Section 8.3 thereof: "[r]equirements for processing ECC amendments shall depend on
the nature of the requestbut shall be focused on theinformation necessary to assess the
environmental impact of such changes." 185
This brings us to the next logicalquestion, did the EPRMP provide the necessary information in
order for the DENR-EMB to assess the environmental impact of RP Energy’s request relative to
the first amendment?
We answer in the affirmative.
In the first place, the Casiño Group never attempted to prove that the subject EPRMP, submitted
by RP Energy to the DENR-EMB, was insufficient for purposes of evaluating the environmental
impact of the proposed modifications to the original project design. There is no claim that the
data submitted were falsified or misrepresented. Neither was there an attempt to subpoena the
review process documents of the DENR to establish thatthe grant of the amendment to the ECC
was done with grave abuse of discretion or to the grave prejudice of the right to a healthful
environment of those who will beaffected by the project. Instead, the Casiño Group relied solely
on the definition of terms in DAO 2003-30 and the Revised Manual, which approach, as
previously discussed,was erroneous.
At any rate, we have examined the contents of the voluminous EPRMP submitted by RP Energy
and wefind therein substantial sections explaining the proposed changes as well as the
adjustments that will be made in the environmental management plan in order to address the
potential environmental impacts of the proposed modifications to the original project design.
These are summarized in the "Project Fact Sheet"186 of the EPRMP and extensively discussed in
Section 4187 thereof. Absent any claim or proof to the contrary, we have no bases to conclude
that these data were insufficient to assess the environmental impact of the proposed
modifications. In accordance with the presumption of regularity in the performance of official
duties, the DENR-EMB must be deemed to have adequately assessed the environmental impact
of the proposed changes, before granting the request under the first amendment to the subject
ECC.
In sum, the Revised Manual permits the use of an EPRMP, as the appropriate EIA document
type, for major amendments to an ECC, even for an unimplemented or non-implementedproject
with a previous ECC, such as the subject project. Consequently, we find that the procedure
adopted by the DENR, in requiring RP Energy to submitan EPRMP in order to undertake the
environmental impact assessment of the planned modifications to the original project design,
relative to the first amendment to the ECC, suffers from no infirmity.
We apply the same framework of analysis in determining the propriety of a PDR, as the
appropriate EIA document type, relative to the second amendment to the subject ECC.
Again, the Casiño Group, as sustained by the appellate court, relied on the definitions of a PDR
in DAO 2003-30 and the Revised Manual:
Project Description (PD) — document, which may also be a chapter in an EIS, that describes the
nature, configuration, use of raw materials and natural resources, production system, waste or
pollution generation and control and the activities of a proposed project. It includes a description
of the use of human resources as well as activity timelines, during the pre-construction,
construction, operation and abandonment phases. It is tobe used for reviewing co-located and
single projects under Category C, aswell as for Category D projects. 188
xxxx
a) For new projects: x x x For non-covered projects in Groups II and III, a x x x Project
Description Report (PDR) is the appropriate document to secure a decision from DENR/EMB.
The PDR is a "must" requirement for environmental enhancement and mitigation projects in both
ECAs (Group II) and NECAs (Group III) to allow EMB to confirm the benign nature of proposed
operations for eventual issuance of a Certificate ofNon-Coverage (CNC). All other Group III
(non-covered) projects do not need to submit PDRs – application is at the option of the
Proponent should it need a CNC for its own purposes, e.g. financing pre-requisite. For Group V
projects, a PDR is required to ensure new processes/technologies or any new unlisted project
does not pose harm to the environment. The Group V PDR is a basis for either issuance of a
CNC or classification of the project into its proper project group.
b) For operating projects with previous ECCs but planning or applying for clearance to
modify/expand or re-start operations, or for projects operating without an ECC but applying to
secure oneto comply with PD 1586 regulations, the appropriate document is not an EIS but an
EIA Report incorporating the project’s environmental performance and its current Environmental
Management Plan. This report is either an (6) Environmental Performance Report and
Management Plan (EPRMP) for single project applications or a (7) Programmatic EPRMP
(PEPRMP) for co-located project applications. However, for small project modifications, an
updating of the project description or the Environmental Management Plan with the use of the
proponent’s historical performance and monitoring records may suffice. 189
xxxx
Project Description (PD) - document, which may also be a chapter in an EIS, that describes the
nature, configuration, use of raw materials and natural resources, production system, waste or
pollution generation and control and the activities of a proposed project. It includes a description
 of the use of human resources as well as activity timelines, during the pre-construction, risks arising from operating projects issued
construction, operation and abandonment phases. 190 modification ECCs194

We will no longer delve intothe details of these definitions. Suffice it to state, similar to the
discussion on the EPRMP, that if we go by the strict limits of these definitions, the PDR relative We make the same observation, as before, that the above applies to an unimplemented or non-
to the subject second amendment would not fall squarely under any of the above. implemented project with a previous ECC, like the subject project. Although it may be noted
thatthe proposed modification does not squarely fall under Item#3, considering that, as
previously mentioned,there will be no increase in capacity relative to the second amendment,
However, again, these are not the only provisions governing the PDR in the Revised Manual. still, we find nothing objectionable to this classification by the DENR-EMB, for it seems plain
enough that this classification was used because the modification was deemed too minor to
After the favorable grant of the first amendment, RP Energy applied for another amendment to require a detailed project study like an EIS or EPRMP. Since this is the classification most
its ECC, this time inconsideration of its plan to change the configuration of the project from 2 x relevant and closely related to the intended amendment, following the basic precept that the
150 MWto 1 x 300 MW. In practical terms, this meant that the subject project will still produce greater includes the lesser, the DENR-EMB reasonably exercised its discretion in merely
300 MW of electricity but will now make use of only one boiler (instead of two) to achieve greater requiring a letter request with a brief description of the modification.
efficiency in the operations of the plant. The DENR-EMB determined191this amendment to be
minor, under Scenario 1, Item#6 of Figure 2-4: As earlier noted, the PDR is the EIA document type with the least detail, and, thus, applicable to
such minor modifications. Thus, the DENR-EMB cannot be faulted for requiring RPEnergy to
Scenario 1: Request for Minor submit a PDR relative to its application for the second amendment. Consequently, as before, we
findthat the Revised Manual supports the procedure adopted by the DENR-EMB in requiring RP
Amendments Energy to submit a PDR in order to assess the environmental impact of the planned
modifications relative to the second amendment.
1. Typographical error
In their Petition before this Court, the Casiño Group boldly asserts that "[t]here is nothing in the
2. Extension of deadlines for submission of post-ECC requirement/s Project Description Report that provides an environmental impact assessment of the effects of
constructing and operating a single 300-MW generating unit."196 However, to our dismay, as in
their other serious allegations in their Petition for Writ ofKalikasan, the same is, likewise,
3. Extension of ECC validity
baseless. Apart from such a sweeping claim, the Casiño Group has provided no evidence or
argument to back up the same.
4. Change in company name/ownership
An examination of the PDR readily reveals that it contains the details of the proposed
5. Decrease in land/project area or production capacity modifications197 and an express finding that no significant environmental impact will be
generated bysuch modifications, as in fact it is expected that the operation of the power plant will
6. Other amendments deemed "minor" at the discretion of the EMB CO/RO Director 192 become more efficient as a result of the change from 2 x 150 MW to 1 x 300 MW
configuration.198 Consequently, the PDR merely reiterates the same mitigating measures that will
— because (1) there is no increase in capacity; (2) it does not constitute any significant impact; presumably address the minor modifications to the project design. Again, no evidence was
and (3) its EMP and ERA as specified in the submitted EPRMP remain the same. 193 Relative to presented to show substantial errors or misrepresentations in these data or their inadequacy for
Annex 2-1c, the requested amendment was, in turn, determinedto fall under Item#3: providing the bases for the DENR-EMB to assess the environmental impact of the proposed
modifications under the second amendment.
3. Increase in capacity or Non-exceedance of PDR (non ECC Amendment /Letter
auxiliary component of the covered project) thresholds is Request with brief description of In fine, absent proof to the contrary, bearing in mind that allegations are not proof, we sustain the
original project which will assumed that impacts are not additional capacity or procedure adoptedby the DENR-EMB in requiring RP Energy to submit a PDR and, on the basis
either not entail significant; component195 thereof, approving the request for the second amendment.
exceedance of PDR (non-
covered project) Modification scenario and In another vein, we note that the appellate court proceeded from the erroneous premise that the
thresholds or EMP & ERA decision process are applicable EIA is a document, when it repeatedly stated that the amendments to the ECC require a new
can still address impacts & to both non-implemented and EIA, and not merely an EPRMP or PDR. The appellate court relied on the provisoin the ECC,
which stated that "[a]ny expansion of the project beyond the project description or any change in
the activity or transfer of location shall besubject to a new Environmental Impact Assessment." 199
However, as correctly pointed out by the DENR and RP Energy, the EIA is not a document but a
process:
Environmental Impact Assessment (EIA) — processthat involves evaluating and predicting the
likely impacts of a project (including cumulative impacts) on the environment during construction,
commissioning, operation and abandonment. It also includes designing appropriate preventive,
mitigating and enhancement measures addressing these consequences to protect the
environment and the community's welfare.The process is undertaken by, among others, the
project proponent and/orEIA Consultant, EMB, a Review Committee, affected communities and
other stakeholders.200 (Emphasis supplied)
When the provisoin the ECC, therefore, states that a new EIA shall beconducted, this simply
means that the project proponent shall be required to submit such study or report, as warranted
by the DENR Rules and circumstances, which will sufficiently aid the DENR in making a new EIA
and, thus, determine whether to grant the proposed amendment (or project modification). Aswe
have seen, consistent with DAO 2003-30 and the Revised Manual, the DENR required RP
Energy to submit an EPRMP and a PDR relative to the latter’s request involving the first and
second amendments, respectively, which led to the new EIA of the project in compliance with the
provisoof the ECC.
Verily, the various EIA documents, such as the EPRMP and PDR, are mere tools used by the
DENR to assess the environmental impact of a particular project. These documents are flexibly
used by the DENR, as the circumstances warrant, in order to adequately assess the impacts of a
new project or modifications thereto. Being the administrative agency entrusted with the
determination of which EIA document type applies to a particular application for an amendment
to an ECC, falling as it does within its particular technical expertise, wemust accord great respect
to its determination, absent a showing of grave abuse of discretion or patent illegality.
In sum, we find that the appellate court erred when it ruled that the first and second amendments
to the subject ECC wereinvalid for failure to comply with a new EIA and for violating DAO 2003-
30 and the Revised Manual. The appellate court failed to properly consider the applicable
provisions in DAO 2003-30 and the Revised Manual on amendments to ECCs. Our examination
of the provisions on amendments to ECCs, as well as the EPRMP and PDR themselves, shows
that the DENR reasonably exercised its discretion in requiring an EPRMP and a PDR for the first
and second amendments, respectively. Through these documents, which the DENR reviewed, a
new EIA was conducted relative to the proposed project modifications. Hence, absent sufficient
showing of grave abuse of discretion or patent illegality, relative to both the procedure and
substance of the amendment process, we uphold the validity of these amendments.
IV.
Whether the Certificate of Non-Overlap (CNO), under Section 59 of the IPRA Law, is a
precondition to the issuance of anECC and the lack of its prior issuance rendered the ECC
invalid.
The appellate court ruled that the ECC issued in favor of RP Energy on December 22, 2008 is
invalid because the CNO covering the subject project was issued only on October 31, 2012 or
almost fouryears from the timeof issuance of the ECC. Thus, the ECC was issued in violation of
Section 59 of the IPRA Law and its implementing rules which require that a CNO be obtained
prior to the issuance of a government agency of, among others, a license or permit. In so ruling,
the appellate court implicitly upheld the Casiño Group’s argument that the ECC is a form of
government license or permit pursuant to Section 4 of PD 1586 which requires all entities to
securean ECC before (1) engaging in an environmentally critical project or (2) implementing a
project within an environmentally critical area.
The DENR and RP Energy, however, argue that an ECC is not the license or permit
contemplated under Section 59 of the IPRA Law and its implementing rules as may be deduced
from the definition, nature and scope of an ECC under DAO 2003-03 and the Revised Manual.
The DENR explains that the issuance of an ECC does not exempt the project proponent from
securing other permits and clearances as required under existing laws, including the CNO, and
that the final decision on whether a project will be implemented lies with the concerned local
government unit/s or the lead government agency which has sectoral mandate to promote the
government programwhere the project belongs.
We agree with the DENR and RP Energy.
Section 59, Chapter VIII of the IPRA Law provides:
SEC. 59. Certification Precondition. All departments and other governmental agencies shall
henceforth be strictly enjoined from issuing, renewing, or granting any concession,license or
lease, or entering into any production-sharing agreement, without prior certification from the
NCIP that the area affected does not overlap with any ancestral domain.Such certification shall
only be issued after a field-based investigation is conducted by the Ancestral Domains Office of
the area concerned: Provided, That no certification shall be issued by the NCIP without the free
and prior informed and written consent of ICCs/IPs concerned: Provided, further, That no
department, government agency or government-owned or -controlled corporation may issue new
concession, license, lease, or production sharing agreement while there is a pending application
for a CADT: Provided, finally, That the ICCs/IPs shall have the right to stop or suspend, in
accordance with this Act, any project that has not satisfied the requirement of this consultation
process. (Emphasis supplied)
While Section 9, Part II, Rule VIII of National Commission on Indigenous Peoples (NCIP)
Administrative Order No. 01-98201 states:
SECTION 9. Certification Precondition Prior to Issuance of any Permits or Licenses. —
 a. Need for Certification. No department of government or other agencies shall issue,
renew or grant anyconcession, license, lease, permit, or enter into any production
sharing agreement without a prior certification from the NCIP that the area affected does
not overlap any ancestral domain.
b. Procedure for Issuance ofCertification by NCIP.
1) The certification, above mentioned, shall be issued by the Ancestral Domain
Office, only after a field based investigation that such areas are not within any
certified or claimed ancestral domains.
2) The certification shall be issued only upon the free, prior, informed and written
consent of the ICCs/IPs who will be affected by the operation of such
concessions, licenses or leases or production-sharing agreements. A written
consent for the issuance of such certification shall be signed by at least a
majority of the representatives of all the households comprising the concerned
ICCs/IPs. (Emphasis supplied)
As may be deduced from its subtitle, Section 59 requires as a precondition, relative to the
issuance of any concession, license, lease or agreement over natural resources, a certification
issued by the NCIP that the area subject thereof does not lie within any ancestral domain. 202 This
is in keeping with the State policy to protect the rights of Indigenous Cultural
Communities/Indigenous Peoples (ICCs/IPs) to their ancestral domains in order to ensure their
economic, social and cultural well-being as well as to recognize the applicability of customary
laws governing property rights or relations in determining the ownership and extent of such
ancestral domain.203
The IPRA Law and its implementing rules do not define the terms "license" and "permit" so that
resort to their plain or ordinary meaning in relation to the intendment of the law is appropriate.
A "license" has been defined as "a governmental permission to perform a particular act (such as
getting married), conduct a particular business or occupation, operate machinery or vehicles
after proving capacity and ability to do so safely, or use property for a certain purpose" 204 while a
"permit" has been defined as "a license or other document given by an authorized public official
or agency (building inspector, department ofmotor vehicles) to allow a person or business to
perform certain acts."205
The evident intention of Section 59, in requiring the CNO prior to the issuance of a license or
permit, is to prevent the implementation of a project that may impair the right of ICCs/IPs to their
ancestral domains. The law seeks to ensure that a project willnot overlap with any ancestral
domain prior to its implementation and thereby pre-empt any potential encroachment of, and/or
damage to the ancestral domains of ICCs/IPs without their prior and informed consent.
With these considerationsin mind, we now look atthe definition, nature and scope of an ECC in
order to determine if it falls within the ambit of a "license" or "permit" to which the CNO
requirement, under Section 59 of the IPRA Law and its implementing rules, finds application.
Section 4 of PD 1586 provides, in part:
SECTION 4. Presidential Proclamation of Environmentally Critical Areas and Projects. — The
President of the Philippines may, on his own initiative or upon recommendation of the National
Environmental Protection Council, by proclamation declare certain projects, undertakings or
areas in the country as environmentally critical. No person, partnership or corporation shall
undertake or operate any suchdeclared environmentally critical project or area without first
securing an Environmental Compliance Certificate issued by the President orhis duly authorized
representative.For the proper management of said critical project or area, the President may by
his proclamation reorganize such government offices, agencies, institutions, corporations or
instrumentalities including the re-alignment of government personnel, and their specific
functionsand responsibilities. (Emphasis supplied)
While the above statutory provision reveals that the ECC is an indispensable requirement before
(1) the conduct of an environmentally critical project or (2) the implementation of a project inan
environmentally critical area, it does not follow that the ECC is the "license" or "permit"
contemplated under Section 59 of the IPRA Law and its implementing rules.
Section 3(d), Article I of DAO 2003-03 defines an ECC in this wise:
SECTION 3. Definition of Terms. —
For the purpose of this Order, the following definitions shall be applied:
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d. Environmental Compliance Certificate (ECC) — document issued by the DENR/EMB after a
positive review of an ECC application, certifying that based on the representations of the
proponent, the proposed project or undertaking will not cause significant negative environmental
impact. The ECC also certifies that the proponent has complied with all the requirements of the
EIS System and has committed to implement its approved Environmental Management Plan.
The ECC contains specific measures and conditions that the project proponent has to undertake
beforeand during the operation of a project, and in some cases, during the project's
abandonment phase to mitigate identified environmental impacts.
In turn, Section 1.0, paragraphs 3 and 6 of the Revised Manual provide, in part:
3) Purpose of the EIA Process
As a basic principle, EIA is used to enhance planning and guide decisionmaking. In this Manual,
EIA is primarily presented in the context of a requirement to integrate environmental concerns in
the planning process of projects at the feasibility stage. Through the EIA Process, adverse
environmental impacts of proposed actions are considerably reduced through a reiterative
review process of project siting, design and other alternatives, and the subsequent formulation of
environmental management and monitoring plans. A positive determination by the DENR-EMB
results to the issuance of an Environmental Compliance Commitment (ECC) document, to be
conformed to by the Proponent and represents the project’s Environmental Compliance
Certificate. The release of the ECC allows the project to proceed to the next stage of project
planning, which is the acquisition of approvals from other government agencies and LGUs, after
which the project can start implementation.
xxxx
6) The EIA Process inRelation to Other Agencies’ Requirements It is inherent upon the EIA
Process to undertake a comprehensive and integrated approach in the review and evaluation of
environment-related concerns of government agencies (GAs), local government units (LGUs)
and the general public. The subsequent EIA findings shall provide guidance and
recommendations to these entities as a basis for their decision making process.
a) An Inter-agency MOA on EIS Streamlining was entered into in 1992 by 29
government agencies wherein ECC of covered projects was agreed to be a prerequisite
of all other subsequent government approvals;
b) DENR Memo Circular No. 2007-08 issued on 13 July 2007 reiterates in effect the
intent of the MOA and reinforces the role of the ECC/CNC as a guidance document to
other agencies and LGUs, as follows:
i) "No permits and/or clearances issued by other National Government Agencies
and Local Government Units shall be required in the processing of ECC or CNC
applications.
ii) The findings and recommendations ofthe EIA shall be transmitted to relevant
government agencies for them to integrate in their decision making prior to the
issuance of clearances, permits and licenses under their mandates.
iii) The issuance of an ECC or CNC for a project under the EIS System does not
exempt the Proponent from securing other government permits and clearances
as required by other laws. The current practice of requiring various permits,
clearancesand licenses only constrains the EIA evaluation process and negates
the purpose and function of the EIA."
iv) Henceforth, all related previous instructions and other issuances shall be
made consistent with the Circular.
c) "Permits, licenses and clearances" are inclusive of other national and local
government approvals such as endorsements, resolutions, certifications, plans and
programs, which have to be cleared/approved or other government documents required
within the respective mandates and jurisdiction of these agencies/LGUs.
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f) The final decision whether a project will be implemented or not lies either with the LGUs who
have spatial jurisdiction over the project or with the lead government agency who has sectoral
mandate to promote the government program where the project belongs, e.g. DOE for energy
projects; DENR-MGB for mining projects.(Emphasis supplied)
As can be seen, the issuance of the ECC does not, by and of itself, authorize the implementation
of the project. Although it is indispensable before the covered project can be commenced, asper
Section 4 of PD 1586,the issuanceof the ECC does not, as of yet, result inthe implementation of
the project. Rather, the ECC is intended to, among others, provide guidance or act as a
decision-making tool to other government agencies and LGUs which have the final authority to
grant licenses or permits, such as building permits or licenses to operate, that will ultimately
result in, or authorize the implementation of the project or the conduct of specific activities.
As a consequence, we find that the CNO requirement under Section 59 of the IPRA Law is not
required to be obtained prior to the issuance of an ECC. As previously discussed, Section 59
aims to forestall the implementation of a project that may impair the right of ICCs/IPs totheir
ancestral domains, by ensuring or verifying that a project will not overlap with any ancestral
domain prior to its implementation. However, because the issuance of an ECC does not result in
the implementation of the project, there is no necessity to secure a CNO prior to an ECC’s
issuance as the goal orpurpose, which Section 59 seeks to achieve, is, at the time of the
issuance of an ECC, not yet applicable.
In sum, we find that the ECC is not the license or permit contemplated under Section 59 of the
IPRA Law and its implementing rules. Hence, there is no necessity to secure the CNO under
Section 59 before an ECC may be issued and the issuance of the subject ECC without first
securing the aforesaid certification does not render it invalid.
V.
Whether the Certificate of Non-Overlap (CNO), under Section 59 of the IPRA Law, is a
precondition to the consummation of the Lease and Development Agreement (LDA) between
SBMA and RP Energy and the lack of its prior issuance rendered the LDA invalid.
We now turn to the applicability of Section 59 of the IPRA Law to the LDA entered into between
the SBMA and RP Energy on June 8, 2010. Similar to the ECC, the LDA was entered into prior
to the issuance ofthe CNO on October 31, 2012.
Before this Court, SBMA and RP Energy reiterate their arguments on why the CNO is no longer
necessary in the instant case, to wit:
1. Prior to entering into the LDA withRP Energy, SBMA entered into a lease agreement
with HHIC206 -Philippines, Inc. and a CNO was already issued therefor which, for all
intents and purposes, is applicable to the area leased by RP Energy being part of
contiguous lots in Redondo Peninsula.
 2. The site of the power plant project is very distant from the boundaries of the lone area
at the Subic Bay Freeport Zone covered by an Aeta Community’s Certificate of Ancestral
Domain Title (CADT).
3. There was no indigenous community within the vicinity of the project area as stated in
RP Energy’s EIS.
4. The land where the project is located was subsequently classified as industrial by the
SBMA. 5. The scoping/procedural screening checklist classified as "not relevant" the
issue of indigenous people.
6. Ms. Mercado, who was part of the team which prepared the EIS, testified that she
visited the project site ten or more times and did not see any Aeta communities there.
7. Mr. Evangelista testified that the project site used to be a firing range of the U.S.
Armed Forces which would make it impossible to be a settlement area of indigenous
communities.
8. Atty. Rodriguez stated that the project site is not covered by a CADT and that from the
start of negotiations on the LDA, the SBMA Ecology Center verified with the NCIP that
there was no application for said area to be covered by a CADT.
RP Energy further argues that, in any case, as a matter of prudence, it secured a CNO from the
NCIP. On October 31, 2012, the NCIP issued the subject CNO over the project site, which
should erase any doubt as to whether it overlaps with an ancestral domain.
Upholding the arguments of the Casiño Group, the appellate court ruled that SBMA failed to
comply with the CNO requirement and, thus, the LDA entered into between SBMA and RP
Energy is invalid. It rejected the reasons given by SBMA and RP Energy, to wit:
1. RP Energy’s reliance on its own field investigation that no indigenous community was
found within the vicinity is unavailing because it was not the field investigation by the
NCIP required by the IPRA Law.
2. RP Energy acknowledged that Aetas were among the earliest settlers in the
municipality where the project will be built. Hence, it was not clearly shown that in 2008,
at the time the LDA was entered into, there were no indigenouscommunities in the
project site.
3. SBMA’s representation that the project site is industrial relies on a letter dated March
5, 2008 and the scoping checklist, which are hearsay evidence.
4. The statements of Atty. Rodriguez have no probative value because he is not an
officer of SBMA Ecology Center oran officer of NCIP.
5. At the time the CNO was issued on October 31, 2012, and the field investigation
relative thereto was conducted by the NCIP, the project site no longer reflected the
actual condition on December 22, 2008 when the LDA was entered into because the
households which occupied the site had already been relocated by then.
6. SBMA, prior to entering into a lease agreement with HHIC, secured a CNO, but oddly
did not do the same with respect to the lease agreement with RP Energy, considering
that both leases cover lands located within the same peninsula. RP Energy appears to
have been accorded a different treatment.
7. The CNO issued in favor of HHIC cannot justify the lack of a CNO for the power plant
project because the two projects are situated in different locations: the HHIC project is
located in Sitio Agusuhin,while the power plant project is located in Sitio Naglatore.
While we agree with the appellate court that a CNO should have been secured prior to the
consummation of the LDA between SBMAand RP Energy, and not after, as was done here, we
find that, under the particular circumstances of this case, the subsequent and belated
compliance withthe CNO requirement does not invalidate the LDA.
For convenience, and as starting point of ouranalysis, we reproduce Section 59 of the IPRA Law
below:
SEC. 59. Certification Precondition. All departments and other governmental agencies shall
henceforth be strictly enjoined from issuing, renewing, or granting any concession, license or
lease, or entering into any productionsharing agreement, without prior certification from the NCIP
that the area affected does not overlap with any ancestral domain.Such certification shall only be
issued after a field-based investigation is conducted by the Ancestral Domains Office of the area
concerned: Provided, That no certification shall be issued by the NCIP without the free and prior
informed and written consent of ICCs/IPs concerned: Provided, further, That no department,
government agency or government-owned or -controlled corporation may issue new concession,
license, lease, or production sharing agreement while there is a pending application for a CADT:
Provided, finally, That the ICCs/IPs shall have the right to stop or suspend, in accordance with
this Act, any project that has not satisfied the requirement of this consultation process.
(Emphasis supplied)
The law is clear but its actual operation or application should not be interpreted beyond the
bounds of reason or practicality.
We explain.
Indeed, a CNO is required prior to the grant of a lease by all government agencies, including the
SBMA. Again, the evident intention is to prevent the impairment of the right of ICCs/IPs to their
ancestral domains. A lease, such as the LDA under consideration, would result in, among
others, granting RP Energy the right to the use and enjoyment of the project site to the exclusion
of third parties.207 As such, the lease could conceivably encroach on an ancestral domain if the
CNO is not first obtained.
However, implicit in the operation of Section 59 is the practical reality that the concerned
government agency must make a preliminary determinationon whether or not to obtain the
required certification in the first place. To expound, a government agency, which wishes to lease
part of its property located near Padre Faura Street, Manila City could not, and should not be
reasonably expected to obtain the CNO, as it is obviously inapplicable to its planned lease. In
contrast, a government agency, which intends to lease a property in a valley or mountainous
region, where indigenous communities are known to reside, conduct hunting activities, perform
rituals, or carry out some other activities, should be reasonably expected to secure the CNO
prior to consummating the planned lease with third persons.
Even if the indigenous community does not actuallyreside on the proposed lease site, the
government agency would still be required to obtain the CNO preciselyto rule out the possibility
that the proposed lease site encroaches upon an ancestral domain. The reason for this is that an
ancestral domain does not only cover the lands actually occupied by an indigenous community,
but all areas where they have a claim of ownership, through time immemorial use, such as
hunting, burial or worship grounds and to which they have traditional access for their subsistence
and other traditional activities.208
The wording of the law itself seems to presuppose that if the concession, lease, license or
production-sharing agreement is over natural resources, then the CNO should be first obtained.
This is because the lastterm, "production-sharing agreement," normally refers to natural
resources. But the problem arises as to what should be considered "natural resources"; for a
vacant lot, nearPadre Faura Street, or a forest land, in Mt. Banahaw, could both beconsidered as
"natural resources," depending on the restrictive or expansive understanding of that term.
After due consideration, we find that the proper rule of action, for purposes of application of
Section 59, is that all government offices should undertake proper and reasonable diligence in
making a preliminary determination on whether to secure the CNO, bearing in mind the
primordial State interest in protecting the rights of ICCs/IPs to their ancestral domains. They
should consider the nature and location of the areas involved; the historical background of the
aforesaid areas relative to the occupation, use or claim of ownership by ICCs/IPs; the present
and actual condition of the aforesaid areas likethe existence of ICCs/IPs within the area itself or
within nearby territories; and such other considerations that would help determine whether a
CNO should be first obtained prior to granting a concession, lease, license or permit, or entering
into a production-sharing agreement.
If there are circumstances that indicate that a claim of ownership by ICCs/IPs may be present or
a claim of ownership may be asserted in the future, no matter how remote, the proper and
prudent course ofaction is to obtain the CNO. In case of doubt, the doubt should be resolved in
favor of securing the CNO and, thus, the government agency is under obligation tosecure the
aforesaid certification in order to protect the interests and rights of ICCs/IPs to their ancestral
domains. This must be so if we are to accord the proper respect due to, and adequately
safeguard the interests and rights of, our brothers and sisters belonging to ICCs/IPs in
consonance with the constitutional policy209 to promote and protect the rights of ICCS/IPs as
fleshed out in the IPRA Law and its implementing rules.
In the case at bar, we find, applying this rule of action, that the SBMA should have first secured a
CNO before entering into the LDA with RP Energy for the following reasons.
First, the Subic area is historicallyknown to be the home of our brothers and sisters belonging to
the Aeta communities. In particular, the EIS210 itself of RP Energy noted that Aeta communities
originally occupiedthe proposed project site of the power plant. Thus, even if we assume that, at
the time of the ocular inspection of the proposed project site in 2008, there were no Aeta
communities seen thereat, as claimed by RP Energy, the exercise of reasonable prudence
should have moved SBMA and RP Energy to secure a CNO in order to rule out the possibility
that the project site may overlap with an ancestral domain. This is especially so, in view of the
observation previously made, that lack of actual occupation by an indigenous community ofthe
area does not necessarily mean that it is not a part of anancestral domain because the latter
encompasses areas that are not actually occupied by indigenouscommunities but are used for
other purposes like hunting, worship or burial grounds.
Second, SBMA and RP Energy claim that the SBMA Ecology Center verified with the NCIP that
the project site does not overlap with an ancestral domain. However, the person, who allegedly
did the verification, and the officer from the NCIP, who was contacted in this alleged verification,
were not presented in court. Assuming that this verification did take place and that the SBMA
Ecology Center determined that there is no pendingapplication for a CADT covering the project
site and that the presently recognized CADT of Aeta communities is too far away from the
project site, it still does not follow that the CNO under Section 59 should have been dispensed
with. The acts of individual members ofa government agency, who allegedly checked with the
NCIP that the project site does not overlap with an ancestral domain, cannot substitute for the
CNO required by law. The reason is obvious. Such posture would circumvent the noble and
laudable purposes of the law in providing the CNO as the appropriate mechanism in order to
validly and officially determine whether a particular project site does not overlap with an
ancestral domain. It would open the doors to abuse because a government agency can easily
claim that it checked with the NCIP regarding any application for an ancestral domain over a
proposed project site while stopping short of securing a CNO. To reiterate, the legally mandated
manner to verify if a project site overlaps with an ancestral domain is the CNO,and not through
personal verification by members of a government agency with the NCIP.
Third, that the project site was formerlyused as the firing range of the U.S. Armed Forces does
not preclude the possibility that a present orfuture claim of ancestral domain may be made over
the aforesaid site. The concept of an ancestral domain indicates that, even if the use ofan area
was interrupted by the occupation of foreign forces, it may still be validly claimed to be an
ancestral domain.211
Fourth, that the project site was subsequently classified by the SBMA as forming part of an
industrial zone does not exempt it from the CNO requirement. The change in the classification of
the land is not an exception to the CNO requirement under the IPRA Law. Otherwise,
government agencies can easily defeat the rights of ICCs/IPs through the conversion of land
use.
Fifth, SBMA argues that the CNO issued to HHIC should, for all intents and purposes, be
applicable to RP Energy. However, ascorrectly ruled by the appellate court, the CNO issued to
HHIC’s shipyard cannot be extended to RP Energy’s project site because they involve two
different locations although found within the same land mass. The CNO issued in favor of HHIC
clearly states that the findings in the CNO are applicable only to the shipyard location of HHIC.
Last, the steps taken by SBMA, in securing a CNO prior to its lease agreement with HHIC, was
the proper and prudent course of action that should have been applied to the LDA with RP
Energy. It does notmatter that HHIC itself asked for the CNO prior to entering into a lease
agreement with SBMA, as claimed by SBMA, while RP Energy did not make such a request
because, as we have discussed, SBMA had the obligation, given the surrounding circumstances,
to secure a CNO in order to rule out the possibility that the project site overlapped with an
ancestral domain.
All in all, we find, applying the foregoing rule of action,that SBMA should have secured a CNO
before entering into the LDA with RP Energy. Considering that Section 59 is a prohibitory
statutory provision, a violation thereof would ordinarily result in the nullification of the
contract.212 However, we rule that the harsh consequences of such a ruling should not be
applied to the case at bar.
The reason is that this is the first time that we lay down the foregoing rule of action so much so
that it would be inequitable to retroactively apply its effects with respect to the LDA entered into
between SBMA and RPEnergy. We also note that, under the particular circumstances of this
case, there is no showing that SBMA and RP Energy had a deliberate or ill intent to escape,
defeat or circumvent the mandate of Section 59 of the IPRA Law. On the contrary, they appear
to have believed in good faith, albeiterroneously, that a CNO was no longer needed because of
the afore-discussed defenses they raised herein. When the matter of lack of a CNO relative to
the LDA was brought to their attention, through the subject Petition for Writ ofKalikasan filed by
the Casiño Group, RP Energy, with the endorsement of SBMA, promptly undertook to secure the
CNO, which was issued on October 31, 2012 and stated that the project site does not overlap
with any ancestral domain.213
Thus, absent proof to the contrary, weare not prepared to rule that SBMA and RP Energy acted
inbad faith or with inexcusable negligence, considering that the foregoing rule of action has not
heretofore been laiddown by this Court. As a result, we hold that the LDA should notbe
invalidated due to equitable considerations present here.
By so ruling, we clarify that we reject RP Energy’s claim that the belated submission of the CNO
is an "over compliance" on its part. Quite the contrary, as we have discussed, the CNO should
have been first secured given the surrounding circumstances of this case.
In the same vein, we reject SBMA’s argument thatthe belated application for, and submission of
the CNO cured whatever defect the LDA had. We have purposely avoided a ruling to the effect
that a CNO secured subsequent to the concession, lease, license, permit or production-sharing
agreement will cure the defect. Such a ruling would lead to abuse of the CNO requirement since
the defect can be cured anyway by a subsequent and belated application for a CNO.
Government agencies and third parties, either through deliberate intent or negligence, may view
it as an excuse not to timely and promptly secure the CNO, even when the circumstances
warrant the application for a CNO under the aforediscussed rule of action, tothe damage and
prejudice of ICCs/IPs. Verily, once the concession, lease, license or permit is issued, or the
agreement is entered into without the requisite CNO, consequent damages will have already
occurred if it later turns out that the site overlaps with anancestral domain. This is so even if the
ICCs/IPs can have the project stopped upon discovery thatit overlapped with their ancestral
domain under the last proviso214 of Section 59. To prevent this evil, compliance with the CNO
requirement should be followed through the aforediscussed rule of action.
In sum, we rule that a CNO should have been secured prior to the consummation of the LDA
between SBMA and RP Energy. However, considering that this is the first time we lay down the
rule of action appropriate to the application of Section 59, we refrain from invalidating the LDA
due to equitable considerations.
VI.
Whether compliance with Section 27, inrelation to Section 26, of the LGC (i.e., approval of the
concerned sanggunianrequirement) is necessary prior to the implementation of the power plant
project.
Sustaining the arguments ofthe Casiño Group, the appellate court ruled that the subject project
cannot beconstructed and operated until after the prior approval of the concerned
sanggunianrequirement, under Section 27 of the LGC, is complied with. Hence, the ECC and
LDA could not be validly granted and entered into without first complying with the aforesaid
provision. It held that all the requisites for the application of the aforesaid provision are present.
As to the pertinent provisions of RA 7227 or "TheBases Conversion and Development Act of
1992," which grants broad powers of administration to the SBMA over the Subic Special
Economic Zone(SSEZ), the appellate court ruled that RA 7227 contains a provision recognizing
the basic autonomy ofthe LGUs which joined the SSEZ. Thus, the LGC and RA 7227should be
harmonized whereby the concerned sanggunian’spower to approve under Section 27 must be
respected.
The DENR impliedly agrees with the Casiño Group that compliance with Section 27 is still
required but without clearly elaborating its reasons therefor.
The SBMA and RP Energy, however, argue that the prior approval of the concerned
sanggunianrequirement, under Section 27, is inapplicable to the subject project because it is
located within the SSEZ. The LGC and RA 7227 cannot be harmonized because of the clear
mandate of the SBMA to govern and administer all investments and businesses within the
SSEZ. Hence, RA 7227 should be deemed as carving out an exception to the prior approval of
the concerned sanggunianrequirement insofar as the SSEZ is concerned.
We agree with the SBMA and RP Energy.
Preliminarily, we note that Sections 26 and 27 of the LGC contemplate two requirements: (1)
prior consultations and (2) prior approval of the concerned sanggunian,viz:
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 cropland,
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 peopleand the community in
terms of environmental or ecological balance, and the measures that will be undertaken to
prevent or minimize the adverse effects thereof. (Emphasis supplied)
SECTION 27. Prior Consultations Required. — No project or program shall be implemented by
government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are
complied with, and prior approval of the sanggunian concerned is obtained: Provided, That
occupants in areas where such projects are to be implemented shall not be evicted unless
appropriate relocation sites have been provided, in accordance with the provisions of the
Constitution. (Emphasis supplied)
In the case at bar, the Casiño Group only questions the alleged lack of the prior approval of the
concerned sanggunians under Section 27 of the LGC. Thus, we shall limit our discussion to the
resolution of this issue. (Parenthetically, we note that prior consultations, as required by Section
26 of the LGC, appear to have been complied with. This may begleaned from the EIS of
RPEnergy which contains the documentation of the extensive public consultations held, under
the supervision of the DENR-EMB, relative to the subject project, as required by the EIA
process,215 as well as the socialacceptability policy consultations conducted by the SBMA, which
generated the document entitled "Final Report: Social Acceptability Process for RP Energy,
Inc.’s 600-MW Coal Plant Project," as noted and discussed in an earlier subsection. 216)
We also note that the Casiño Group argues that the approval of the concerned sanggunian
requirement was necessary prior to the issuance of the ECC and the consummation of the LDA;
the absence of which invalidated the ECC and LDA.
We shall no longer discuss at length whether the approval of the concerned sanggunian
requirement must be complied with prior to the issuance of an ECC. As discussed in an earlier
subsection, the issuance of an ECC does not, by itself, result in the implementation of the
project. Hence, the purpose or goal of Sections 26 and 27 of the LGC,like Section 59 of the
IPRA Law, does not yet obtain and, thus, the ECC may be issued evenwithout prior compliance
with Sections 26 and 27 of the LGC.
We, thus, limit the discussion as to whether the approval of the concerned sanggunian
requirement should have been complied with prior to the consummation of the LDA, considering
that the LDA is part of the implementation of the subject project and already vests in RP Energy
the right to the use and enjoyment of the project site, asin fact horizontal clearing activities were
already undertaken by RP Energy at the project site by virtue of the LDA.
The prior approval of the concerned sanggunian requirement is an attribute and implementation
of the local autonomy granted to, and enjoyed by LGUs under the Constitution. 217 The LGU has
the duty to protect its constituents and interests in the implementation of the project. Hence, the
approval of the concerned sanggunian is required by law to ensure thatlocal communities
partake in the fruits of their own backyard. 218
For Section 27, in relation to Section 26, to apply, the following requisites must concur: (1) the
planning and implementation of the project or program is vested in a national agency or
government-owned and-controlled corporation, i.e., national programs and/or projects which are
to be implemented in a particular local community; and (2) the project or program may cause
pollution, climatic change, depletion of non-renewable resources, loss of cropland, rangeland, or
forest cover, extinction of animal or plant species, or call for the eviction of a particular group of
people residing in the locality where the project will be implemented. 219
In the case at bar, the two requisites are evidently present: (1) the planning and implementation
of the subject project involves the Department of Energy, DENR, and SBMA; and (2) the subject
project may cause pollution, climatic change, depletion of non-renewable resources, loss of
cropland, rangeland, or forest cover, and extinction of animal or plant species,or call for the
eviction of a particular group of people residing in the locality where the project will be
implemented. Hence, Section 27 of the LGC should ordinarily apply.
It is not disputed that no approval was sought from the concerned sangguniansrelative to the
subject project.1a\^/phi1 Whatis more, the affected LGUs have expressed their strong
oppositions to the project through various sanggunian resolutions. 220 However, it is also
undisputed that the subject project is located within the SSEZ and, thus, under the territorial
jurisdiction of the SBMA pursuant to RA 7227.
Thus, we are tasked to determine the applicability of the prior approval of the concerned
sanggunian requirement, under Section 27 of the LGC, relative to a project within the territorial
jurisdiction of the SBMA under RA 7227.
RA 7227 was passed on March 13, 1992 in the aftermath of the Mount Pinatubo eruption and
the closure of the Subic Naval Base ofthe U.S. Armed Forces. It sought to revivethe affected
areas by creating and developing the SSEZ into a "self-sustaining industrial, commercial,
financial and investment center to generate employment opportunities in and around the zone
and to attract and promote productive foreign investments." 221 The SSEZ covered the City of
Olangapo and Municipality of Subic in the Province ofZambales and the lands and its contiguous
extensions occupied by the former U.S. Naval Base, which traversed the territories of the
Municipalities of Hermosa and Morong in the Province of Bataan. Under Section 12 of RA 7227,
the creation of the SSEZ was made subject to the concurrence by resolution of the respective
sanggunians of the City of Olongapo and the Municipalities of Subic, Morong and Hermosa, viz:
SECTION 12. Subic Special Economic Zone. — Subject to the concurrence by resolution of the
sangguniang panlungsod of the City of Olongapo and the sangguniang bayanof the
Municipalities of Subic, Morong and Hermosa, there is hereby created a Special Economic and
Free-port Zone consisting of the City of Olongapo and the Municipality of Subic, Province of
Zambales, the lands occupied by the Subic Naval Base and its contiguous extensions as
embraced, covered, and defined by the 1947 Military Bases Agreement between the Philippines
and the United States of America as amended, and within the territorial jurisdiction of the
Municipalities of Morong and Hermosa, Province of Bataan, hereinafter referred to as the Subic
Special Economic Zone whose metes and bounds shall be delineated in a proclamation to be
issued by the President of the Philippines. Within thirty (30) days after the approval of this Act,
each local government unit shall submit its resolution of concurrence to join the Subic Special
Economic Zone to the office of the President. Thereafter, the President of the Philippines shall
issue a proclamation defining the metes and bounds of the Zone as provided herein.
Subsequently, the aforesaid sanggunians submitted their respective resolutions of concurrence
and the President issued Presidential Proclamation No. 532, Series of 1995, defining the metes
and bounds of the SSEZ.
In Executive Secretary v. Southwing Heavy Industries, Inc., 222 we described the concept of
SSEZ as a Freeport:
The Freeport was designed to ensurefree flow or movement of goods and capital within a portion
of the Philippine territory in order to attract investors to invest their capital in a business climate
with the least governmental intervention. The concept ofthis zone was explained by Senator
Guingona in this wise:
Senator Guingona. Mr. President, the special economic zone is successful in many places,
particularly Hong Kong, which is a free port. The difference between a special economic zone
and an industrial estate is simply expansive in the sense that the commercial activities, including
the establishment of banks, services, financial institutions, agro-industrial activities, maybe
agriculture to a certain extent.
This delineates the activities that would have the least of government intervention, and the
running of the affairs of the special economic zone would be run principally by the investors
themselves, similar toa housing subdivision, where the subdivision owners elect their
representatives to run the affairs of the subdivision, toset the policies, to set the guidelines.
We would like to see Subic area converted into a little Hong Kong, Mr. President, where there is
a hub of free port and free entry, free duties and activities to a maximum spur generation of
investment and jobs.
While the investor is reluctant to come in the Philippines, as a rule, because of red tape and
perceived delays, we envision this special economic zone to be an area where there will be
minimum government interference.
The initial outlay may not only come from the Government or the Authority as envisioned here,
but from them themselves, because they would be encouraged to invest not only for the land but
also for the buildings and factories. As long as they are convinced that in such an area they can
do business and reap reasonable profits, thenmany from other parts, both local and foreign,
would invest, Mr. President.223 (Emphasis in the original)
To achieve the above-mentioned purposes, the law created SBMA to administer the SSEZ. In
the process, SBMA was granted broad and enormous powers as provided for under Section
13(b) of RA 7227:
Sec. 13. The Subic Bay Metropolitan Authority. –
xxxx
(b) Powers and functions of the Subic Bay Metropolitan Authority - The Subic Bay
Metropolitan Authority, otherwise knownas the Subic Authority, shall have the following
powers and function: (1) To operate, administer, manage and develop the ship repair
and ship building facility, container port, oil storage and refueling facility and Cubi Air
Base within the Subic Special Economic and Free-port Zone as a free market in
accordance with the policies set forth in Section 12 of this Act;
(2) To accept any local or foreign investment, business or enterprise, subject
only to such rules and regulations to be promulgated by the Subic Authority in
conformity with the policies of the Conversion Authority without prejudice to the
nationalization requirements provided for in the Constitution;
(3) To undertake and regulate the establishment, operation and maintenance of
utilities, other services and infrastructure in the Subic Special Economic Zone
including shipping and related business, stevedoring and port terminal services
or concessions, incidental thereto and airport operations in coordination with the
Civil Aeronautics Board, and to fix just and reasonable rates, fares charges and
other prices therefor;
(4) To construct, acquire, own, lease, operate and maintain on its own or
through contract, franchise, license permits bulk purchase from the private
sector and build-operate transfer scheme or joint-venture the required utilities
and infrastructurein coordination with local government units and appropriate
government agencies concerned and inconformity with existing applicable laws
therefor;
(5) To adopt, alter and use a corporate seal; to contract, lease, sell, dispose,
acquire and own properties; to sue and be sued in order to carry out its duties
and functions as provided for in this Act and to exercise the power of eminent
domain for public use and public purpose;
(6) Within the limitation provided by law, to raise and/or borrow the necessary
funds from local and international financial institutions and to issue bonds,
promissory notes and other securities for that purpose and to secure the same
by guarantee, pledge, mortgage deed of trust, or assignment of its properties
held by the Subic Authority for the purpose of financing its projects and
programs within the framework and limitation of this Act;
 (7) To operate directly or indirectly or license tourism related activities subject to
priorities and standards set by the Subic Authority including games and
amusements, except horse racing, dog racing and casino gambling which shall
continue to be licensed by the Philippine Amusement and Gaming Corporation
(PAGCOR) upon recommendation of the Conversion Authority; to maintain and
preserve the forested areas as a national park;
(8) To authorize the establishment ofappropriate educational and medical
institutions;
(9) To protect, maintain and develop the virgin forests within the baselands,
which will be proclaimed as a national park and subject to a permanent total log
ban, and for this purpose, the rules and regulations of the Department of
Environment and Natural Resources and other government agencies directly
involved in the above functions shall be implemented by the Subic Authority;
(10) To adopt and implement measures and standards for environmental
pollution control of all areas within its territory, including but not limited to all
bodies of water and to enforce the same. For which purpose the Subic Authority
shall create an Ecology Center; and
(11) To exercise such powers as may be essential, necessary or incidental to
the powers granted to it hereunder as well as to carry out the policies and
objectives of this Act. (Emphasis supplied) The Implementing Rules of RA 7227
further provide:
Sec. 11. Responsibilities of the SBMA. Other than the powers and functions prescribed in
Section 10 of these Rules, the SBMA shall have the following responsibilities:
(a) The SBMA shall exercise authority and jurisdiction over all economic activity within the
SBF224
xxxx
(f) Consistent with the Constitution, the SBMA shall have the following powers to enforce the law
and these Rules in the SBF:
xxxx
(8) to issue, alter, modify, suspend or revoke for cause, any permit, certificate, license, visa or
privilege allowed under the Act or these Rules;
xxxx
(11) to promulgate such other rules, regulations and circulars as may be necessary, proper or
incidental to carry out the policies and objectives of the Act, these Rules, as well as the powers
and duties of the SBMA thereunder.225
As can be seen, the SBMA was given broad administrative powers over the SSEZ and these
necessarily include the power to approve or disapprove the subject project, which is within its
territorial jurisdiction. But, as previously discussed, the LGC grants the concerned
sangguniansthe power to approve and disapprove this same project. The SBMA asserts that its
approval of the project prevails over the apparent disapproval of the concerned sanggunians.
There is, therefore, a real clash between the powers granted under these two laws.
Which shall prevail?
Section 12 of RA 7227 provides:
Sec. 12. Subic Special Economic Zone. x x x
The abovementioned zone shall be subjected to the following policies:
(a) Within the framework and subject to the mandate and limitations of the Constitution and the
pertinent provisions of the Local Government Code, the Subic Special Economic Zone shall
bedeveloped into a self-sustaining, industrial, commercial, financial and investment center to
generate employment opportunities in and around the zone and to attract and promote
productive foreign investments;
xxxx
(i) Except as herein provided, the local government units comprising the Subic Special Economic
Zone shall retain their basic autonomy and identity. The cities shall be governed by their
respective charters and the municipalities shall operate and function in accordance with Republic
Act No. 7160, otherwise known as the Local Government Code of 1991. (Emphasis supplied)
This section sets out the basic policies underlying the creation of the SSEZ. Indeed, as noted by
the appellate court, Section 12(i) expressly recognizes the basic autonomy and identity of the
LGUscomprising the SSEZ. However, the clause "[e]xcept as herein provided" unambiguously
provides that the LGUs do not retain their basic autonomy and identitywhen it comes to matters
specified by the law as falling under the powers, functions and prerogatives of the SBMA.
In the case at bar, we find that the power to approve or disapprove projects within the SSEZ is
one such power over which the SBMA’s authority prevails over the LGU’s autonomy. Hence,
there isno need for the SBMA to secure the approval of the concerned sangguniansprior to the
implementation of the subject project.
This interpretation is based on the broad grant of powers to the SBMA over all administrative
matters relating to the SSEZ under Section 13 of RA 7227, as afore-discussed. Equally
important, under Section 14, other than those involving defense and security, the SBMA’s
decision prevails in case of conflict between the SBMA and the LGUs in all matters concerning
the SSEZ, viz.:
Sec. 14. Relationship with the Conversion Authority and the Local Government Units.
(a) The provisions of existing laws, rules and regulations to the contrary notwithstanding,
the Subic Authority shall exercise administrative powers, rule-making and disbursement
of funds over the Subic Special Economic Zonein conformity with the oversight function
of the Conversion Authority.
(b) In case of conflict between the Subic Authority and the local government units
concerned on matters affecting the Subic Special Economic Zone other than defense
and security, the decision of the SubicAuthority shall prevail. (Emphasis supplied)
Clearly, the subject project does not involve defense or security, but rather business and
investment to further the development of the SSEZ. Such is in line with the objective of RA 7227
to develop the SSEZ into a self-sustaining industrial, commercial, financial and investment
center. Hence, the decision of the SBMA would prevail over the apparent objections of the
concerned sanggunians of the LGUs.
Significantly, the legislative deliberations on RA 7227, likewise, support and confirm the
foregoing interpretation. As earlier noted, Section 13 b(4) of RA 7227 provides:
Sec. 13. The Subic Bay Metropolitan Authority. –
xxxx
(b) Powers and functions of the Subic Bay Metropolitan Authority - The Subic Bay Metropolitan
Authority, otherwise knownas the Subic Authority, shall have the following powers and function:
xxxx
(4) To construct, acquire, own, lease, operate and maintain on its own or through contract,
franchise, license permits bulk purchase from the private sector and build-operate transfer
scheme or joint-venture the required utilities and infrastructure in coordination with local
government units and appropriate government agencies concerned and in conformity with
existing applicable laws therefor;
In the Senate, during the period of amendments, when the provision which would eventually
become the afore-quoted Section 13 b(4) of RA 7227 was under consideration, the following
exchanges took place:
Senator Laurel. Mr. President.
The President. Senator Laurel is recognized.
Senator Laurel. Relative to line 27 up to line 31 of page 16, regarding the provision to the effect
that the Authoritywill have the following functions: "to construct, acquire, own, etcetera," that is all
right.
My motion is that we amend this particular line, starting from the word "structures", by deleting
the words that follow on line 31, which states: "in coordination with local government unitsand",
and substitute the following in place of those words: "SUBJECT TO THE APPROVAL OF THE
SANGGUNIAN OF THE AFFECTED LOCAL GOVERNMENT UNITS AND IN COORDINATION
WITH."
So, this paragraph will read, as follows: "to construct, own, lease, operate, and maintain on its
own or through contract, franchise, license permits, bulk purchase from the private sector and
build-operate-transfer scheme or joint venture the required utilities and infrastructure SUBJECT
TO THE APPROVAL OF THE SANGGUNIAN OF THE AFFECTED LOCAL GOVERNMENT
UNITS AND IN coordination with appropriate government agencies concerned and in conformity
with existing applicable laws therefor."
The President. What does the Sponsor say?
Senator Shahani. I believe this would cripple the Authority. I would like to remind our Colleagues
that in the Board of Directors, the representatives of the local government units that agree to join
with the Subic Special Economic Zone will be members of the Board so that they will have a say,
Mr. President. But if we say "subject," that is a very strong word. It really means that they will be
the ones to determine the policy.
So, I am afraid that I cannot accept this amendment, Mr. President.
Senator Laurel. May I respond or react, Mr. President.
The President. Yes.
Senator Laurel. The Constitution is there,very categorical inthe promotion and encouragement of
local autonomy, and mandating Congress to enact the necessary Local Government Code with
emphasis on local autonomy.
We have now Section 27 of the new Local Government Code which actually provides that for
every projectin any local government territory, the conformity or concurrence of the Sanggunian
of every such local government unit shall be secured in the form of resolution—the consent of
the Sanggunian.
The President. Well, both sides have already been heard. There is the Laurel amendment that
would make the power of the Subic Bay Metropolitan Authority to construct, acquire, own, lease,
operate and maintain on its own or through contract, franchise, license, permits, bulk purchases
from private sector, buildoperate-and-transfer scheme, or joint venture, the required utilities and
infrastructure, subject to approval by the appropriate Sanggunian of the local government
concerned.
This amendment to the amendment has been rejected by the Sponsor. So, we are voting now on
this amendment.
As many as are in favor of the Laurel amendment, say Aye. (Few Senators: Aye.)
Those who are against the said amendment, say Nay. (Several Senators: Nay.)
Senator Laurel. Mr. President, may I ask for a nominal voting.
The President. A nominal voting should beupon the request of one-fifth of the Members of the
House, but we can accommodate the Gentleman by asking for a division of the House.
Therefore, those in favor of the Laurel amendment, please raise their right hands. (Few Senators
raised their right hands.)
Senator Laurel. I was asking, Mr. President, for a nominal voting. The President. A nominal
voting can be had only upon motion ofone-fifth of the Members of the Body. Senator Laurel. That
is correct, Mr. President. But this issuch an important issue being presented to us, because this
question is related to the other important issue, which is: May an elected public official of a
particular government unit, such as a town or municipality, participate as a member of the Board
of Directors of this particular zone.
The President. The ruling of the Chair stands. The division of the House is hereby directed.
As many as are infavor of the Laurel amendment, please raised (sic) their right hands. (Few
Senators raised their right hands.)
As many as are against the said amendment, please do likewise. (Several Senators raised their
right hands.)
The amendment is lost.226 (Emphasis supplied)
Indubitably, the legislature rejected the attempts to engraft Section 27’s prior approval of the
concerned sanggunian requirement under the LGC into RA 7227. Hence, the clear intent was to
do awaywith the approval requirement of the concerned sangguniansrelative to the power ofthe
SBMA to approve or disapprove a project within the SSEZ.
The power to create the SSEZ is expressly recognized in Section 117 of the LGC, viz.:
TITLE VIII.
Autonomous Special Economic Zones
SECTION 117. Establishment of Autonomous Special Economic Zones. — The establishment
by law of autonomous special economic zones in selected areas of the country shall be subject
to concurrence by the local government units included therein.
When the concerned sanggunians opted to join the SSEZ, they were, thus, fully aware that this
would lead to some diminution of their local autonomy in order to gain the benefits and privileges
of being a part of the SSEZ.
Further, the point of Senator Shahani that the representation of the concerned LGUs in the
Board of Directors will compensate for the diminution of their local autonomy and allow them to
be represented in the decision-making of the SBMA is not lost on us. This is expressly provided
for in Section 13(c) of RA 7227, viz:
SECTION 13. The Subic Bay Metropolitan Authority. —
xxxx
(c) Board of Directors. — The powers of the Subic Authority shall be vested in and exercised by
a Board of Directors, hereinafter referred to as the Board, which shall be composed of fifteen
(15) members, to wit:
(1) Representatives of the local government units that concur to join the Subic Special
Economic Zone;
(2) Two (2) representatives from the National Government;
(3) Five (5) representatives from the private sector coming from the present naval
stations, public works center, ship repair facility, naval supply depot and naval air station;
and
(4) The remaining balance to complete the Board shall be composed of representatives
from the business and investment sectors. (Emphasis supplied)
SBMA’s undisputed claim is that, during the board meeting when the subject project was
approved, exceptfor one, all the representatives of the concerned LGUs were present and voted
to approve the subject project.227 Verily, the wisdom of the law creating the SSEZ; the wisdom of
the choice of the concerned LGUs to join the SSEZ; and the wisdom ofthe mechanism of
representation of the concerned LGUs in the decision-making process of the SBMA are matters
outside the scope of the power of judicial review. We can only interpret and apply the law as we
find it.
In sum, we find that the implementation of the project is not subject to the prior approval of the
concerned sanggunians, under Section 27 of the LGC, and the SBMA’s decision to approve the
project prevails over the apparent objections of the concerned sangguniansof the LGUs, by
virtue ofthe clear provisions of RA 7227. Thus, there was no infirmity when the LDA was entered
into between SBMA and RP Energy despite the lack of approval of the concerned sanggunians. xxxx
VII.
J. LEAGOGO:
Whether the validity of the third amendment to the ECC can be resolved by the Court.
Atty. Ridon, I go back to my question. We’re not yet talking of the legal points here. I’m just
The Casiño Group argues that the validity of the third amendment should have been resolved by talking of what are you questioning. You are questioning the 1 x 300?
the appellate court because it is covered by the broad issues set during the preliminary
conference. ATTY. RIDON:

RP Energy counters that this issue cannot be resolved because it was expressly excluded during Yes, Your Honor.
the preliminary conference.
J. LEAGOGO:
The appellate court sustained the position of RP Energy and ruled that this issue was not
included in the preliminary conference so that it cannot be resolved without violating the right Because it was 2 x 150 and then 1 x 300?
todue process of RP Energy.
ATTY. RIDON:
We agree with the appellate court.
Yes, Your Honor.
Indeed, the issue of the validity of the third amendment to the ECC was not part of the issues set
during the preliminary conference, as it appears at that time that the application for the third
amendment was still ongoing. The following clarificatory questions during the aforesaid J. LEAGOGO:
conference confirm this, viz.:
Up to that point?
J. LEAGOGO:
ATTY. RIDON:
So what are you questioning in your Petition?
Yes, Your Honor.
ATTY. RIDON:
J. LEAGOGO:
We are questioning the validity of the amendment, Your Honor.
Because there is no amended ECC yet for the 2 x 300 or 600. That’s clear enough for all of us.
J. LEAGOGO:
ATTY. RIDON:
Which amendment?
Yes, Your Honor.228
ATTY. RIDON:
Given the invocation of the right to due process by RP Energy, we must sustain the appellate
From 2 x 150 to 1 x 300, Your Honor. court’s finding that the issue as to the validity of the third amendment cannot be adjudicated in
this case.
J. LEAGOGO:
Refutation of the Partial Dissent.
Your Petition does not involve the 2 x 300 which is still pending with the DENR. Because you still
have remedies there, you can make your noise there, you can question it to your heart[’]s Justice Leonen partially dissents from the foregoing disposition on the following grounds:
content because it is still pending
 (a) Environmental cases, such asa petition for a writ of kalikasan, should not, in
general,be litigated viaa representative, citizen or class suit because of the danger of
misrepresenting the interests— and thus, barring future action due to res judicata— of
those not actually present in the prosecution of the case, either because they do not yet
exist, like the unborn generations, or because the parties bringing suit do not accurately
represent the interests ofthe group they represent or the class to which they belong. As
an exception, such representative, citizen or class suit may be allowed subject to certain
conditions; and
(b) The amendments to the ECC, granted by the DENR in favor of RP Energy, are void
for failure to submit a new EIS in support of the applications for these amendments to
the subject ECC, and a petition for writ of kalikasanis not the proper remedy to raise a
defect inthe ECC.
We disagree.
A.
Justice Leonen’s proposition that environmental cases should not, in general, be litigated via a
representative, citizen or class suit is both novel and ground-breaking. However, it
isinappropriate to resolve such an important issue in this case, in view of the requisites for the
exercise of our power of judicial review, because the matter was not raised by the parties so that
the issue was not squarely tackled and fully ventilated. The proposition will entail, as Justice
Leonen explains, an abandonment or, at least, a modification of our ruling in the landmark case
of Oposa v. Factoran.229 It will also require an amendment or a modification of Section 5 (on
citizen suits), Rule 2 ofthe Rules of Procedure for Environmental Cases. Hence, it is more
appropriate to await a case where such issues and arguments are properly raisedby the parties
for the consideration of the Court.
B.
Justice Leonen reasons that the amendments to the subject ECC are void because the
applications therefor were unsupported by anEIS, as required by PD 1151 and PD 1586. The
claim is made that an EIS is required by law, even if the amendment to the ECC is minor,
because an EIS is necessary to determine the environmental impact of the proposed
modifications to the original project design. The DENR rules, therefore, which permit the
modification of the original project design without the requisite EIS, are void for violating PD
1151 and PD 1586.
We disagree.
Indeed, Section 4 of PD 1151 sets out the basic policy of requiring an EIS in every action, project
or undertaking that significantly affects the quality of the environment, viz:
SECTION 4. Environmental Impact Statements. — Pursuant to the above enunciated policies
and goals, all agencies and instrumentalities of the national government, including government-
owned or -controlled corporations, as well as private corporations, firms and entities shall
prepare, file and include in every action, projector undertaking which significantly affects the
quality of the environmenta detailed statement on —
(a) the environmental impact of the proposed action, project or undertaking;
(b) any adverse environmental effect which cannot be avoided should the proposal be
implemented;
(c) alternative to the proposed action;
(d) a determination that the short-term uses of the resources of the environment are
consistent with the maintenance and enhancement of the long-term productivity of the
same; and
(e) whenever a proposal involves the use of depletable or 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. (Emphasis supplied)
As earlier stated, the EIS was subsequently developed and strengthened through PD 1586
which established the Philippine Environmental Impact Statement System. Sections 4 and 5 of
PD 1586 provide:
SECTION 4. Presidential Proclamation of Environmentally Critical Areas and
Projects.1avvphi1 The President of the Philippines may, on his own initiative or upon
recommendation of the National Environmental Protection Council, by proclamation declare
certain projects, undertakings or areas in the country as environmentally critical. No person,
partnership or corporation shall undertake or operate any such declared environmentally critical
project or area without first securing an Environmental Compliance Certificate issued by the
President or his duly authorized representative. For the proper management of said critical
project or area, the President may by his proclamation reorganize such government offices,
agencies, institutions, corporations or instrumentalities including the re-alignment of government
personnel, and their specific functions and responsibilities.
For the same purpose as above, the Ministry of Human Settlements shall: (a) prepare the proper
land or water use pattern for said critical project(s) or area(s); (b) establish ambient
environmental quality standards; (c) develop a program of environmental enhancement or
protective measures against calamituous factors such as earthquake, floods, water erosion and
others, and (d) perform such other functions as may be directed by the President from time to
time.
SECTION 5. Environmentally Non-Critical Projects. — All other projects, undertakings and areas
not declared by the President as environmentally critical shall be considered as non-critical and
shall not be required to submit an environmental impact statement. The National Environmental
Protection Council, thru the Ministry of Human Settlements may however require non-critical
projects and undertakings to provide additional environmental safeguards as it may deem
necessary. (Emphasis supplied)
These laws were, in turn, implemented by DAO 2003-30 and the Revised Manual.
As correctly noted by Justice Leonen,Presidential Proclamation No. 2146 was subsequently
issued which, among others, classified fossil-fueled power plants as environmentally critical
projects.
In conformity with the above-quoted laws and their implementing issuances, the subject project,
a coal power plant, was classified by the DENR as an environmentally critical project, new and
single. Hence, RP Energy was required to submit an EIS in support of its application for an ECC.
RP Energy thereafter complied with the EIS requirement and the DENR, after review, evaluation
and compliance with the other steps provided in its rules, issued an ECC in favor of RP Energy.
As can be seen, the EIS requirement was duly complied with.
Anent Justice Leonen’s argument thatthe subsequent amendments to the ECC were void for
failure to prepare and submit a new EIS relative to these amendments, it is important to note
thatPD 1586 does not state the procedure to be followed when there is an application for an
amendment to a previously issued ECC. There is nothing in PD 1586 which expressly requires
an EIS for an amendment to an ECC.
In footnote 174 of the ponencia, it is stated:
Parenthetically, we must mention that the validity of the rules providing for amendments to the
ECC was challenged by the Casiño Group on the ground that it is ultra vires before the appellate
court. It argued that the laws governing the ECC do not expressly permit the amendment of an
ECC. However, the appellate court correctly ruled that the validity of the rules cannot be
collaterally attacked. Besides,the power of the DENR to issue rules on amendments of an ECC
is sanctioned under the doctrine of necessary implication. Considering that the greater power
todeny or grant an ECC is vested by law in the President or his authorized representative, the
DENR, there is no obstacle to the exercise of the lesser or implied power to amend the ECC for
justifiable reasons. This issue was no longer raised before this Court and, thus, we no
longertackle the same here.
Because PD 1586 did not expressly provide the procedure to be followed in case of an
application for an amendment toa previously issued ECC, the DENR exercised its discretion,
pursuant to its delegated authority to implement this law, in issuing DAO 2003-30 and the
Revised Manual.
Justice Leonen’s argument effectively challenges the validity of the provisions in DAO 2003-30
and the Revised Manual relative to amendments to an ECC for being contrary to PD 1151 and
1586.
We disagree.
First, to repeat, there is nothing in PD 1586 which expressly requires an EIS for an amendment
to an ECC.
Second, as earlier noted, the proposition would constitute a collateral attack on the validity of
DAO 2003-30 and the Revised Manual, which is not allowed under the premises. The Casiño
Group itself has abandoned this claim before this Court so that the issue is not properly before
this Court for its resolution.
Third, assuming that a collateral attack on the validity of DAO 2003-30 and the Revised Manual
can be allowed in this case, the rules on amendments appear to be reasonable, absent a
showing of grave abuse of discretion or patent illegality.
Essentially, the rules take into consideration the nature of the amendment in determining the
proper Environmental Impact Assessment (EIA) document type that the project proponent will
submit in support of its application for an amendment to its previously issued ECC. A minor
amendment will require a less detailed EIA document type, like a Project Description Report
(PDR), while a major amendment will require a more detailed EIA document type, like an
Environmental Performance Report and Management Plan (EPRMP) or even an EIS.230
The rules appear to be based on the premise that it would be unduly burden some or impractical
to require a project proponent to submit a detailed EIA document type, like an EIS, for
amendments that, upon preliminary evaluation by the DENR, will not cause significant
environmental impact. In particular, as applied to the subject project, the DENR effectively
determined that it is impractical to requireRP Energy to, in a manner of speaking, start from
scratch by submitting a new EIS in support of its application for the first amendment to its
previously issued ECC, considering that the existing EIS may be supplemented by an EPRMP to
adequately evaluate the environmental impact of the proposed modifications under the first
amendment. The same reasoning may be applied to the PDR relative to the second amendment.
As previously discussed, the Casiño Group failed to provethat the EPRMP and PDR were
inadequate to assess the environmental impact of the planned modifications under the first and
second amendments, respectively. On the contrary, the EPRMP and PDR appeared to contain
the details of the planned modifications and the corresponding adjustments to bemade in the
environmental management plan or mitigating measures inorder to address the potential impacts
of these planned modifications. Hence, absent sufficient proof, there is no basis to conclude that
the procedure adopted by the DENR was done with grave abuse of discretion.
Justice Leonen’s proposition would effectively impose a stringent requirement of an EIS for each
and every proposed amendment to an ECC, no matter how minor the amendment may be. While
this requirement would seem ideal, in order to ensure that the environmental impact of the
proposed amendment is fully taken into consideration, the pertinent laws do not, however,
expressly require that such a procedure be followed.As already discussed, the DENR appear to
have reasonably issued DAO 2003-30 and the Revised Manualrelative to the amendment
process of an ECC, by balancing practicality vis-à-vis the need for sufficient information in
determining the environmental impact of the proposed amendment to an ECC. In fine, the Court
cannot invalidate the rules which appear to be reasonable, absent a showing of grave abuse of
discretion or patent illegality.
We next tackle Justice Leonen’s argument that a petition for certiorari,and not a writ of
kalikasan,is the proper remedy to question a defect in an ECC.
In general, the proper procedure to question a defectin an ECC is to follow the appeal process
provided in DAO 2003-30 and the Revised Manual. After complying with the proper
administrative appeal process, recourse may be made to the courts in accordance with the
doctrine of exhaustion of administrative remedies. However, as earlier discussed, in exceptional
cases, a writ of kalikasan may be availed of to challenge defects in the ECC providedthat (1) the
defects are causally linked or reasonably connected to an environmental damage of the nature
and magnitudecontemplated under the Rules on Writ of Kalikasan, and (2) the case does not
violate, or falls under an exception to, the doctrine of exhaustion of administrative remedies
and/or primary jurisdiction.
As previously discussed, in the case at bar, only the allegation with respect to the lack of an EIA
relative to the first and second amendments to the subject ECC may be reasonably connected to
such an environmental damage. Further, given the extreme urgency of resolving the issue due to
the looming power crisis, this case may be considered as falling under an exception to the
doctrine of exhaustion of administrative remedies. Thus, the aforesaid issue may be conceivably
resolved in a writ of kalikasan case.
More importantly, we have expressly ruled that this case is an exceptional case due to the
looming power crisis, so that the rules of procedure may be suspended in order to address
issues which, ordinarily, the Court would not consider proper in a writ of kalikasan case. Hence,
all issues, including those not proper in a writ of kalikasan case, were resolved here in order to
forestall another round of protracted litigation relative to the implementation of the subject
project.
Conclusion
We now summarize our findings:
1. The appellate court correctly ruled that the Casiño Group failed to substantiate its
claims thatthe construction and operation of the power plant will cause environmental
damage of the magnitude contemplated under the writ of kalikasan. On the other hand,
RP Energy presented evidenceto establish that the subject project will not cause grave
environmental damage, through its Environmental Management Plan, which will ensure
thatthe project will operate within the limits of existing environmental laws and standards;
2. The appellate court erred when it invalidated the ECC on the ground of lack of
signature of Mr. Aboitiz in the ECC’s Statement of Accountability relative to the copy of
the ECC submitted by RP Energy to the appellate court. While the signature is
necessary for the validity of the ECC, the particular circumstances of this case show that
the DENR and RP Energy were not properly apprised of the issue of lack of signature in
order for them to present controverting evidence and arguments on this point, as the
issue only arose during the course of the proceedings upon clarificatory questions from
the appellate court. Consequently, RP Energy cannot be faulted for submitting the
certified true copy of the ECC only after it learned that the ECC had been invalidatedon
the ground of lack of signature in the January 30, 2013 Decision of the appellate court.
The certified true copy of the ECC, bearing the signature of Mr. Aboitiz in the Statement
of Accountability portion, was issued by the DENR-EMB, and remains uncontroverted. It
showed that the Statement of Accountability was signed by Mr. Aboitiz on December 24,
2008. Because the signing was done after the official release of the ECC on December
22, 2008, wenote that the DENR did not strictly follow its rules, which require that the
signing of the Statement of Accountability should be done before the official release of
the ECC. However, considering that the issue was not adequately argued norwas
evidence presented before the appellate court on the circumstances at the time of
signing, there is insufficient basis to conclude that the procedure adoptedby the DENR
was tainted with bad faith or inexcusable negligence. We remind the DENR, however, to
be more circumspect in following its rules. Thus, we rule that the signature requirement
was substantially complied with pro hac vice.
3. The appellate court erred when it ruled that the first and second amendments to the
ECC were invalid for failure to comply with a new EIA and for violating DAO 2003-30 and
the Revised Manual. It failed to properly consider the applicable provisions in DAO 2003-
30 and the Revised Manual for amendment to ECCs. Our own examination of the
provisions on amendments to ECCs in DAO 2003-30 and the Revised Manual, as wellas
the EPRMP and PDR themselves, shows that the DENR reasonably exercised its
discretion in requiring an EPRMP and a PDR for the first and second amendments,
respectively. Through these documents, which the DENR reviewed, a new EIA was
conducted relative to the proposed project modifications. Hence, absent sufficient
showing of grave abuse of discretion or patent illegality, relative to both the procedure
and substance of the amendment process, we uphold the validity of these amendments;
4. The appellate court erred when it invalidated the ECC for failure to comply with
Section 59 of the IPRA Law.1âwphi1 The ECC is not the license or permit contemplated
under Section 59 of the IPRA Law and its implementing rules. Hence, there is no
necessity to secure the CNO under Section 59 before an ECC may be issued, and the
issuance of the subject ECC without first securing the aforesaid certification does not
render it invalid;
5. The appellate court erred when it invalidated the LDA between SBMA and RP Energy
for failure to comply withSection 59 of the IPRA Law. While we find that a CNO should
have been secured prior to the consummation of the LDA between SBMA and RP
Energy, considering that this is the first time we lay down the rule of action appropriate to
the application of Section 59, we refrain from invalidating the LDA for reasons of equity;
 6. The appellate court erred when it ruled that compliance with Section 27, in relation to
Section 26, of the LGC (i.e., approval of the concerned sanggunian requirement) is
necessary prior to issuance of the subjectECC. The issuance of an ECC does not, by
itself, result inthe implementation of the project. Hence, there is no necessity to secure
prior compliance with the approval of the concerned sanggunian requirement, and the
issuance of the subject ECC without first complying with the aforesaid requirement does
not render it invalid. The appellate court also erred when it ruled that compliance with the
aforesaid requirement is necessary prior to the consummation of the LDA. By virtue of
the clear provisions of RA 7227, the project is not subject to the aforesaid requirement
and the SBMA’s decision to approve the project prevails over the apparent objections of
the concerned sanggunians. Thus, the LDA entered into between SBMA and RP Energy
suffers from no infirmity despite the lack of approval of the concerned sanggunians; and
7. The appellate court correctly ruled thatthe issue as to the validity of the third
amendment to the ECC cannot be resolved in this case because it was not one of the
issues set during the preliminary conference, and would, thus, violate RP Energy’s right
to due process. WHEREFORE, the Court resolves to:
1. DENY the Petition in G.R. No. 207282; and
2. GRANT the Petitions in G.R.Nos. 207257, 207366 and 207276:
2.1. The January 30, 2013 Decision and May 22, 2013 Resolution of the
Court of Appeals in CA-G.R. SP No. 00015 are reversed and set aside;
2.2. The Petition for Writ of Kalikasan, docketed as CA-G.R. SP No.
00015, is denied for insufficiency of evidence;
2.3. The validity of the December 22, 2008 Environmental Compliance
Certificate, as well as the July 8, 2010 first amendment and the May 26,
2011 second amendment thereto, issued by the Department of
Environment and Natural Resources in favor of Redondo Peninsula
Energy, Inc., are upheld; and
2.4. The validity of the June 8, 2010 Lease and Development
Agreement between Subic Bay Metropolitan Authority and Redondo
Peninsula Energy, Inc. is upheld.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice
EN BANC
G.R. No. 209271, December 08, 2015
INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH APPLICATIONS,
INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT
SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO
CASIÑO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III,
CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY
MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY
ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD
S. HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.
CROP LIFE PHILIPPINES, INC., Petitioner-in-Intervention.
G.R. No. 209276
ENVIRONMENTAL MANAGEMENT BUREAU OF THE DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES, BUREAU OF PLANT INDUSTRY AND FERTILIZER AND
PESTICIDE AUTHORITY OF THE DEPARTMENT OF AGRICULTURE, Petitioners, v. COURT
OF APPEALS, GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT
SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO
CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III,
CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY
MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY
ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD
S. HAGEDORN AND EDWIN MARTHINE LOPEZ, RESPONDENTS. CROP LIFE
PHILIPPINES, INC. Petitioner-in-Intervention.
G.R. No. 209301
UNIVERSITY OF THE PHILIPPINES LOS BANOS FOUNDATION,
INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT
SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO
CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III,
CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY
MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. HARRY R.
ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD
S. HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.
G.R. No. 209430
UNIVERSITY OF THE PHILIPPINES, Petitioner, v. GREENPEACE SOUTHEAST ASIA
(PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA
(MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG,
LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO
MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, ATTY.
HARRY R. ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON,
MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.
 DECISION to "serve as a research university in various fields of expertise and specialization by conducting
basic and applied research and development, and promoting research in various colleges and
VILLARAMA, JR., J.: universities, and contributing to the dissemination and application of knowledge." 7

The other individual respondents are Filipino scientists, professors, public officials and ordinary
The consolidated petitions before Us seek the reversal of the Decision 1 dated May 17, 2013 and
citizens invoking their constitutionally guaranteed right to health and balanced ecology, and
Resolution2 dated September 20, 2013 of the Court of Appeals (CA) in CA-G.R. SP No. 00013
suing on their behalf and on behalf of future generations of Filipinos.
which permanently enjoined the conduct of field trials for genetically modified eggplant.
Factual Background
The Parties
Biotechnology is a multi-disciplinary field which may be defined as "any technique that uses
Respondent Greenpeace Southeast Asia (Philippines) is the Philippine branch of Greenpeace
living organisms or substances from those organisms to make or modify a product, to improve
Southeast Asia, a regional office of Greenpeace International registered in
plants or animals, or to develop microorganisms for specific uses." 8 Its many applications include
Thailand.3 Greenpeace is a non-governmental environmental organization which operates in
agricultural production, livestock, industrial chemicals and pharmaceuticals.
over 40 countries and with an international coordinating body in Amsterdam, Netherlands. It is
well known for independent direct actions in the global campaign to preserve the environment
In 1979, President Ferdinand Marcos approved and provided funding for the establishment of
and promote peace.
the National Institute for Applied Microbiology and Biotechnology (BIOTECH) at UPLB. It is the
premier national research and development (R & D) institution applying traditional and modern
Petitioner International Service for the Acquisition of Agri-Biotech Applications, Inc. (ISAAA) is an
biotechnologies in innovating products, processes, testing and analytical services for agriculture,
international non-profit organization founded in 1990 "to facilitate the acquisition and transfer of
health, energy, industry and development. 9
agricultural biotechnology applications from the industrial countries, for the benefit of resource-
poor farmers in the developing world" and ultimately "to alleviate hunger and poverty in the
In 1990, President Corazon C. Aquino signed Executive Order (EO) No. 430 creating the
developing countries." Partly funded by the United States Agency for International Development
National Committee on Biosafety of the Philippines (NCBP). NCBP was tasked, among others,
(USAID), ISAAA promotes the use of agricultural biotechnology, such as genetically modified
to "identify and evaluate potential hazards involved in initiating genetic engineering experiments
organisms (GMOs).4
or the introduction of new species and genetically engineered organisms and recommend
measures to minimize risks" and to "formulate and review national policies and guidelines on
Respondent Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura (MASIPAG) is a coalition
biosafety, such as the safe conduct of work on genetic engineering, pests and their genetic
of local farmers, scientists and NGOs working towards "the sustainable use and management of
materials for the protection of public health, environment and personnel and supervise the
biodiversity through farmers' control of genetic and biological resources, agricultural production,
implementation thereof."
and associated knowledge."
In 1991, NCBP formulated the Philippine Biosafety Guidelines, which governs the regulation of
The University of the Philippines Los Bafios (UPLB) is an autonomous constituent of the
the importation or introduction, movement and field release of potentially hazardous biological
University of the Philippines (UP), originally established as the UP College of Agriculture. It is the
materials in the Philippines. The guidelines also describe the required physical and biological
center of biotechnology education and research in Southeast Asia and home to at least four
containment and safety procedures in handling biological materials. This was followed in 1998
international research and extension centers. Petitioner UPLB Foundation, Inc. (UPLBFI) is a
by the "Guidelines on Planned Release of Genetically Manipulated Organisms (GMOs) and
private corporation organized "to be an instrument for institutionalizing a rational system of
Potentially Harmful Exotic Species (PHES)."10
utilizing UPLB expertise and other assets for generating additional revenues and other resources
needed by [UPLB]". Its main purpose is to assist UPLB in "expanding and optimally utilizing its
On December 29, 1993, the Convention on Biological Diversity (CBD) came into force. This
human, financial, and material resources towards a focused thrust in agriculture, biotechnology,
multilateral treaty recognized that "modern biotechnology has great potential for human well-
engineering and environmental sciences and related academic programs and activities." A
being if developed and used with adequate safety measures for the environment and human
memorandum of agreement between UPLBFI and UPLB allows the former to use available
health." Its main objectives, as spelled out in Article 1, are the "conservation of biological
facilities for its activities and the latter to designate from among its staff such personnel needed
diversity, the sustainable use of its components and the fair and equitable sharing of the benefits
by projects.5
arising out of the utilization of genetic resources."
Petitioner University of the Philippines (UP) is an institution of higher learning founded in 1908.
In January 2000, an agreement was reached on the Cartagena Protocol on Biosafety
Under its new charter, Republic Act 9500,6 approved on April 29, 2008 by President Gloria
(Cartagena Protocol), a supplemental to the CBD. The Cartagena Protocol aims "to contribute to
Macapagal-Arroyo, UP was declared as the national university tasked "to perform its unique and
ensuring an adequate level of the safe transfer, handling and use of living modified organisms
distinctive leadership in higher education and development." Among others, UP was mandated
resulting from modern biotechnology that may have adverse effects on the conservation and
sustainable use of biological diversity, taking into account risks to human health, and specifically
focusing on transboundary movements."
On May 24, 2000, the Philippines signed the Cartagena Protocol, which came into force on
September 11, 2003. On August 14, 2006, the Philippine Senate adopted Senate Resolution No.
92 or the "Resolution Concurring in the Ratification of the Cartagena Protocol on Biosafety
(CPB) to the UN Convention on Biological Diversity."
On July 16, 2001, President Gloria Macapagal-Arroyo issued a policy statement reiterating the
government policy of promoting the safe and responsible use of modern biotechnology and its
products as one of several means to achieve and sustain food security, equitable access to
health services, sustainable and safe environment and industry development. 11
In April 2002, the Department of Agriculture (DA) issued DA-Administrative Order (AO) No. 08
providing rules and regulations for the importation and release into the environment of plants and
plant products derived from the use of modem biotechnology.
DAO-08-2002 covers the importation or release into the environment of: (1) any plant which has
been altered or produced through the use of modem biotechnology if the donor organism, host
organism, or vector or vector agent belongs to the genera or taxa classified by the Bureau of
Plant Industry (BPI) as meeting the definition of plant pest or is a medium for the introduction of
noxious weeds; or (2) any plant or plant product altered through the use of modem
biotechnology which may pose significant risks to human health and the environment based on
available scientific and technical information.
The country's biosafety regulatory system was further strengthened with the issuance of EO No.
514 (EO 514) on March 17, 2006, "Establishing the National Biosafety Framework (NBF),
Prescribing Guidelines for its Implementation, and Strengthening the NCBP." The NBF shall
apply to the development, adoption and implementation of all biosafety policies, measures and
guidelines and in making decisions concerning the research, development, handling and use,
transboundary movement, release into the environment and management of regulated articles. 12
EO 514 expressly provides that, unless amended by the issuing departments or agencies, DAO
08-2002, the NCBP Guidelines on the Contained Use of Genetically Modified Organisms, except
for provisions on potentially harmful exotic species which were repealed, and all issuances of the
Bureau of Food and Drugs Authority (FDA) on products of modem biotechnology, shall continue
to be in force and effect.13
On September 24, 2010, a Memorandum of Undertaking 14 (MOU) was executed between
UPLBFI, ISAAA and UP Mindanao Foundation, Inc.
(UPMFI), in pursuance of a collaborative research and development project on eggplants that
are resistant to the fruit and shoot borer. Other partner agencies involved in the project were
UPLB through its Institute of Plant Breeding, Maharastra Hybrid Seed Company (MAHYCO) of
India, Cornell University and the Agricultural Biotechnology Support Project II (ABSPII) of US
AID.
As indicated in the Field Trial Proposal 15 submitted by the implementing institution (UPLB), the
pest-resistant crop subject of the field trial was described as a "bioengineered eggplant." The
crystal toxin genes from the soil bacterium Bacillus thuringiensis (Bt) were incorporated into the
eggplant (talong) genome to produce the protein CrylAc which is toxic to the target insect
pests. CrylAc protein is said to be highly specific to lepidopteran larvae such as the fruit and
shoot borer (FSB), the most destructive insect pest of eggplant.
Under the regulatory supervision of NCBP, a contained experiment was started in 2007 and
officially completed on March 3, 2009. The NCBP thus issued a Certificate of Completion of
Contained Experiment stating that "During the conduct of the experiment, all the biosafety
measures have been complied with and no untoward incident has occurred." 16
BPI issued Biosafety Permits17 to UPLB on March 16, 2010 and June 28, 2010. Thereafter, field
testing of Bt talong commenced on various dates in the following approved trial sites: Kabacan,
North Cotabato; Sta. Maria, Pangasinan; Pili, Camarines Sur; Bago Oshiro, Davao City; and
Bay, Laguna.
On April 26, 2012, Greenpeace, MASIPAG and individual respondents (Greenpeace, et al.) filed
a petition for writ of kalikasan and writ of continuing mandamus with prayer for the issuance of a
Temporary Environmental Protection Order (TEPO). They alleged that the Bt talong field trials
violate their constitutional right to health and a balanced ecology considering that (1) the
required environmental compliance certificate under Presidential Decree (PD) No. 1151 was not
secured prior to the project implementation; (2) as a regulated article under DAO 08-2002, Bt
talong is presumed harmful to human health and the environment, and there is no independent,
peer-reviewed study on the safety of Bt talong for human consumption and the environment; (3)
a study conducted by Professor Gilles-Eric Seralini showed adverse effects on rats who were
fed Bt corn, while local scientists also attested to the harmful effects of GMOs to human and
animal health; (4) Bt crops can be directly toxic to non-target species as highlighted by a
research conducted in the US which demonstrated that pollen from Bt maize was toxic to the
Monarch butterfly; (5) data from the use of Bt CrylAb maize indicate that beneficial insects have
increased mortality when fed on larvae of a maize pest, the corn borer, which had been fed
on Bt, and hence non-target beneficial species that may feed on eggplant could be similarly
affected; (6) data from China show that the use of Bt crops (Bt cotton) can exacerbate
populations of other secondary pests; (7) the built-in pesticides of Bt crops will lead
to Bt resistant pests, thus increasing the use of pesticides contrary to the claims by GMO
manufacturers; and (8) the 200 meters perimeter pollen trap area in the field testing area set by
BPI is not sufficient to stop contamination of nearby non-Bt eggplants because pollinators such
as honeybees can fly as far as four kilometers and an eggplant is 48% insect-pollinated. The full
acceptance by the project proponents of the findings in the MAHYCO Dossier was strongly
assailed on the ground that these do not precisely and adequately assess the numerous hazards
posed by Bt talong and its field trial.
Greenpeace, et al. further claimed that the Bt talong field test project did not comply with the
required public consultation under Sections 26 & 27 of the Local Government Code, A random
survey by Greenpeace on July 21, 2011 revealed that ten households living in the area
immediately around the Bt talong experimental farm in Bay, Laguna expressed lack of
knowledge about the field testing in their locality. The Sangguniang Barangay of Pangasugan in
Baybay, Leyte complained about the lack of information on the nature and uncertainties of the Bt
talong field testing in their barangay. The Davao City Government likewise opposed the project
due to lack of transparency and public consultation. It ordered the uprooting of Bt eggplants at
the trial site and disposed them strictly in accordance with protocols relayed by the BPI through
Ms. Merle Palacpac. Such action highlighted the city government's policy on "sustainable and
safe practices." On the other hand, the Sangguniang Bayan of Sta. Barbara, Iloilo passed a
resolution suspending the field testing due to the following: lack of public consultation; absence
of adequate study to determine the effect of Bt talong field testing on friendly insects; absence of
risk assessment on the potential impacts of genetically modified (GM) crops on human health
and the environment; and the possibility of cross-pollination of Bt eggplants with native species
or variety of eggplants, and serious threat to human health if these products were sold to the
market.
Greenpeace, et al. argued that this case calls for the application of the precautionary principle,
the Bt talong field testing being a classic environmental case where scientific evidence as to the
health, environmental and socio-economic safety is insufficient or uncertain and preliminary
scientific evaluation indicates reasonable grounds for concern that there are potentially
dangerous effects on human health and the environment.
The following reliefs are thus prayed for:
a. Upon the filing [of this petition], a Temporary Environment Protection Order should be issued:
(i) enjoining public respondents BPI and FPA of the DA from processing for field testing, and
registering as herbicidal product, Bt talong in the Philippines; (ii) stopping all pending field testing
of Bt talong anywhere in the Philippines; and (in) ordering the uprooting of planted Bt talong for
field trials as their very presence pose significant and irreparable risks to human health and the
environment.
b. Upon the filing [of this petition], issue a writ of continuing mandamus commanding:
(i) Respondents to submit to and undergo the process of environmental impact statement
system under the Environmental Management Bureau;
(ii) Respondents to submit independent, comprehensive, and rigid risk assessment, field tests
report, regulatory compliance reports and supporting documents, and other material particulars
of the Bt talong field trial;
(iii) Respondents to submit all its issued certifications on public information, public consultation,
public participation, and consent of the local government units in the barangays, municipalities,
and provinces affected by the field testing of Bt talong;
(iv) Respondent regulator, in coordination with relevant government agencies and in consultation
with stakeholders, to submit an acceptable draft of an amendment of the National Bio-Safety
Framework of the Philippines, and DA Administrative Order No. 08, defining or incorporating an
independent, transparent, and comprehensive scientific and socio-economic risk assessment,
public information, consultation, and participation, and providing for their effective
implementation, in accord with international safety standards; and,
(v) Respondent BPI of the DA, in coordination with relevant government agencies, to conduct
balanced nationwide public information on the nature of Bt talong and Bt talong field trial, and a
survey of social acceptability of the same.
c. Upon filing [of this petition], issue a writ of kalikasan commanding Respondents to file their
respective returns and explain why they should not be judicially sanctioned for violating or
threatening to violate or allowing the violation of the above-enumerated laws, principles, and
international principle and standards, or committing acts, which would result into an
environmental damage of such magnitude as to prejudice the life, health, or property of
petitioners in particular and of the Filipino people in general.
d. After hearing and judicial determination, to cancel all Bt talong field experiments that are found
to be violating the abovementioned laws, principles, and international standards; and
recommend to Congress curative legislations to effectuate such
order.18ChanRoblesVirtualawlibrary
On May 2, 2012, the Court issued the writ of kalikasan against ISAAA, Environmental
Management Bureau (EMB)/BPI/Fertilizer and Pesticide Authority (FPA) and UPLB, 18-a ordering
them to make a verified return within a non-extendible period often (10) days, as provided in
Sec. 8, Rule 7 of the Rules of Procedure for Environmental Cases.19
ISAAA, EMB/BPI/FPA, UPLBFI and UPMFI filed their respective verified returns. They all argued
that the issuance of writ of kalikasan is not proper because in the implementation of the Bt
talong project, all environmental laws were complied with, including public consultations in the
affected communities, to ensure that the people's right to a balanced and healthful ecology was
protected and respected. They also asserted that the Bt talong project is not covered by the
Philippine Environmental Impact Statement (PEIS) Law and that Bt talong field trials will not
significantly affect the quality of the environment nor pose a hazard to human health. ISAAA
contended that the NBF amply safeguards the environment policies and goals promoted by the
PEIS Law. On its part, UPLBFI asserted that there is a "plethora of scientific works and literature,
peer-reviewed, on the safety of Bt talong for human consumption."20 UPLB, which filed an
Answer21 to the petition before the CA, adopted said position of UPLBFI.
ISAAA argued that the allegations regarding the safety of Bt talong as food are irrelevant in the
field trial stage as none of the eggplants will be consumed by humans or animals, and all
materials that will not be used for analyses will be chopped, boiled and buried following the
Biosafety Permit requirements. It cited a 50-year history of safe use and consumption of
agricultural products sprayed with commercial Bt microbial pesticides and a 14-year history of
safe consumption of food and feed derived from Bt crops. Also mentioned is the almost 2 million
hectares of land in the Philippines which have been planted with Bt corn since 2003, and the
absence of documented significant and negative impact to the environment and human health.
The statements given by scientists and experts in support of the allegations of Greenpeace, et
al. on the safety of Bt corn was also addressed by citing the contrary findings in other studies
which have been peer-reviewed and published in scientific journals.
On the procedural aspect, ISAAA sought the dismissal of the petition for writ of kalikasan for
non-observance of the rule on hierarchy of courts and the allegations therein being mere
assertions and baseless conclusions of law. EMB, BPI and FPA questioned the legal standing of
Greenpeace, et al. in filing the petition for writ of kalikasan as they do not stand to suffer any
direct injury as a result of the Bt talong field tests. They likewise prayed for the denial of the
petition for continuing mandamus for failure to state a cause of action and for utter lack of merit.
UPMFI also questioned the legal standing of Greenpeace, et al. for failing to allege that they
have been prejudiced or damaged, or their constitutional rights to health and a balanced ecology
were violated or threatened to be violated by the conduct of Bt talong field trials. Insofar as the
field trials in Davao City, the actual field trials at Bago Oshiro started on November 25, 2010 but
the plants were uprooted by Davao City officials on December 17-18, 2010. There were no
further field trials conducted and hence no violation of constitutional rights of persons or damage
to the environment, with respect to Davao City, occurred which will justify the issuance of a writ
of kalikasan. UPMFI emphasized that under the MOU, its responsibility was only to handle the
funds for the project in their trial site. It pointed out that in the Field Trial Proposal, Public
Information Sheet, Biosafety Permit for Field Testing, and Terminal Report (Davao City
Government) by respondent Leonardo R. Avila III, nowhere does UPMFI appear either as project
proponent, partner or implementing arm. Since UPMFI, which is separate and distinct from UP,
undertook only the fund management of Bt talong field test project the duration of which expired
on July 1, 2011, it had nothing to do with any field trials conducted in other parts of the country.
Finally, it is argued that the precautionary principle is not applicable considering that the field
testing is only a part of a continuing study being done to ensure that the field trials have no
significant and negative impact on the environment. There is thus no resulting environmental
damage of such magnitude as to prejudice the life, health, property of inhabitants in two or more
cities or provinces. Moreover, the issues raised by Greenpeace, et al. largely involve technical
matters which pertain to the special competence of BPI whose determination thereon is entitled
to great respect and even finality.
By Resolution dated July 10, 2012, the Court referred this case to the CA for acceptance of the
return of the writ and for hearing, reception of evidence and rendition of judgment. 22
CA Proceedings and Judgment
At the preliminary conference held on September 12, 2012, the parties submitted the following
procedural issues: (1) whether or not Greenpeace, et al. have legal standing to file the petition
for writ of kalikasan; (2) whether or not said petition had been rendered moot and academic by
the alleged termination of the Bt talong field testing; and (3) whether or not the case presented a
justiciable controversy.
Under Resolution23 dated October 12, 2012, the CA resolved that: (1) Greenpeace, et al.
possess the requisite legal standing to file the petition for writ of kalikasan; (2)
assuming arguendo that the field trials have already been terminated, the case is not yet moot
since it is capable of repetition yet evading review; and (3) the alleged non-compliance with
environmental and local government laws present justiciable controversies for resolution by the
court.
The CA then proceeded to hear the merits of the case, adopting the "hot-tub" method wherein
the expert witnesses of both parties testify at the same time. Greenpeace, et al. presented the
following as expert witnesses: Dr. Ben Malayang III (Dr. Malayang), Dr. Charito Medina (Dr.
Medina), and Dr. Tushar Chakraborty (Dr. Chakraborty). On the opposing side were the expert
witnesses in the persons of Dr. Reynaldo Ebora (Dr. Ebora), Dr. Saturnina Halos (Dr. Halos), Dr.
Flerida Cariño (Dr. Cariño), and Dr. Peter Davies (Dr. Davies). Other witnesses who testified
were: Atty. Carmelo Segui (Atty. Segui), Ms. Merle Palacpac (Ms. Palacpac), Mr. Mario
Navasero (Mr. Navasero) and Dr. Randy Hautea (Dr. Hautea).
On November 20, 2012, Biotechnology Coalition of the Philippines, Inc. (BCPI) filed an Urgent
Motion for Leave to Intervene as Respondent.24 It claimed to have a legal interest in the subject
matter of the case as a broad-based coalition of advocates for the advancement of modern
biotechnology in the Philippines.
In its Resolution25 dated January 16, 2013, the CA denied BCPI's motion for intervention stating
that the latter had no direct and specific interest in the conduct of Bt talong field trials.
On May 17, 2013, the CA rendered a Decision in favor of Greenpeace, et al., as follows:
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by
us GRANTING the petition filed in this case. The respondents
are DIRECTED to:chanRoblesvirtualLawlibrary
(a) Permanently cease and desist from further conducting bt talong field trials; and
(b) Protect, preserve, rehabilitate and restore the environment in accordance with the foregoing
judgment of this Court.
No costs.
SO ORDERED.26ChanRoblesVirtualawlibrary
The CA found that existing regulations issued by the DA and the Department of Science and
Technology (DOST) are insufficient to guarantee the safety of the environment and health of the
people. Concurring with Dr. Malayang's view that the government must exercise precaution
"under the realm of public policy" and beyond scientific debate, the appellate court noted the
possible irreversible effects of the field trials and the introduction of Bt talong to the market.
After scrutinizing the parties' arguments and evidence, the CA concluded that the precautionary
principle set forth in Section 1, Rule 20 of the Rules of Procedure for Environmental
Cases27 finds relevance in the present controversy. Stressing the fact that the "over-all safety
guarantee of the bt talong" remains unknown, the appellate court cited the testimony of Dr.
Cariño who admitted that the product is not yet safe for consumption because a safety
assessment is still to be done. Again, the Decision quoted from Dr. Malayang who testified that
the question of Bt talong's safety demands maximum precaution and utmost prudence, bearing
in mind the country's rich biodiversity. Amid the uncertainties surrounding the Bt talong, the CA
thus upheld the primacy of the people's constitutional right to health and a balanced ecology.
Denying the motions for reconsideration filed by ISAAA, EMB/BPI/FPA, UPLB and UPLBFI, the
CA in its Resolution dated September 20, 2013 rejected the argument of UPLB that the appellate
court's ruling violated UPLB's constitutional right to academic freedom. The appellate court
pointed out that the writ of kalikasan originally issued by this Court did not stop research on Bt
talong but only the particular procedure adopted in doing field trials and only at this time when
there is yet no law in the form of a congressional enactment for ensuring its safety and levels of
acceptable risks when introduced into the open environment. Since the writ stops the field trials
of Bt talong as a procedure but does not stop Bt talong research, there is no assault on
academic freedom.
The CA then justified its ruling by expounding on the theory that introducing a genetically
modified plant into our ecosystem is an "ecologically imbalancing act." Thus:
We suppose that it is of universal and general knowledge that an ecosystem is a universe of
biotic (living) and non-biotic things interacting as a living community in a particular space and
time. In the ecosystem are found specific and particular biotic and non-biotic entities which
depend on each other for the biotic entities to survive and maintain life. A critical element for
biotic entities to maintain life would be that their populations are in a proper and natural
proportion to others so that, in the given limits of available non-biotic entities in the ecosystem,
no one population overwhelms another. In the case of the Philippines, it is considered as one of
the richest countries in terms of biodiversity. It has so many plants and animals. It also has many
kinds of other living things than many countries in the world. We do not fully know how all these
living things or creatures interact among themselves. But, for sure, there is a perfect and
sound balance of our biodiversity as created or brought about by God out of His infinite
and absolute wisdom. In other words, every living creature has been in existence or has come
into being for a purpose. So, we humans are not supposed to tamper with any one element in
this swirl of interrelationships among living things in our ecosystem. Now, introducing a
genetically modified plant in our intricate world of plants by humans certainly appears to
be an ecologically imbalancing act. The damage that it will cause may be irreparable and
irreversible.
At this point, it is significant to note that during the hearing conducted by this Court on November
20, 2012 wherein the testimonies of seven experts were given, Dr. Peter J. Davies (Ph.D in Plant
[Physiology]), Dr. Tuskar Chakraborty (Ph.D in Biochemistry and Molecular Biology), Dr. Charito
Medina (Ph.D in Environmental Biology), Dr. Reginaldo Ebora (Ph.D in Entomology), Dr. Flerida
Cariño (Ph.D in Insecticide Toxicology), Dr. Ben Malayang (Ph.D in Wildland Resource Science)
and Dr. Saturnina Halos (Ph.D in Genetics) were in unison in admitting that bt talong is an
altered plant. x x x
xxxx
Thus, it is evident and clear that bt talong is a technology involving the deliberate alteration of an
otherwise natural state of affairs. It is designed and intended to alter natural feed-feeder
relationships of the eggplant. It is a deliberate genetic reconstruction of the eggplant to alter its
natural order which is meant to eliminate one feeder (the borer) in order to give undue
advantage to another feeder (the humans). The genetic transformation is one designed to
make bt talong toxic to its pests (the targeted organisms). In effect, bt talong kills its targeted
organisms. Consequently, the testing or introduction of bt talong into the Philippines, by its
nature and intent, is a grave and present danger to (and an assault on) the Filipinos'
constitutional right to a balanced ecology because, in any book and by any yardstick, it is an
ecologically imbalancing event or phenomenon. It is a willful and deliberate tampering of a
naturally ordained feed-feeder relationship in our environment. It destroys the balance of our
biodiversity. Because it violates the conjunct right of our people to a balanced ecology, the whole
constitutional right of our people (as legally and logically construed) is violated.
Of course, the bt talong's threat to the human health of the Filipinos as of now remains uncertain.
This is because while, on one hand, no Filipinos has ever eaten it yet, and so, there is no factual
evidence of it actually causing acute or chronic harm to any or a number of ostensibly identifiable
perms, on the other hand, there is correspondingly no factual evidence either of it not causing
harm to anyone. However, in a study published on September 20, 2012 in "Food and Chemical
Toxicology", a team of scientists led by Professor Gilles-Eric Seralini from the University of Caen
and backed by the France-based Committee of Independent Research and Information on
Genetic Engineering came up with a finding that rats fed with Roundup-tolerant genetically
modified corn for two years developed cancers, tumors and multiple organ damage. The seven
expert witnesses who testified in this Court in the hearing conducted on November 20, 2012
were duly confronted with this finding and they were not able to convincingly rebut it. That is why
we, in deciding this case, applied the precautionary principle in granting the petition filed in the
case at bench.
Prescinding from the foregoing premises, therefore, because one conjunct right in the whole
Constitutional guarantee is factually and is undoubtedly at risk, and the other still factually
uncertain, the entire constitutional right of the Filipino people to a balanced and healthful ecology
is at risk. Hence, the issuance of the writ of kalikasan and the continuing writ of mandamus is
justified and warranted.28 (Additional Emphasis supplied.)
Petitioners' Arguments
G.R. No. 209271
ISAAA advances the following arguments in support of its petition:
I
THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION
FOR WRIT OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT
THE SAME IS ALREADY MOOT AND ACADEMIC.
II
THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION
FOR WRIT OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT
THE SAME RAISES POLITICAL QUESTIONS.
A. IN SEEKING TO COMPEL THE REGULATORY AGENCIES "TO SUBMIT AN
ACCEPTABLE DRAFT OF THE AMENDMENT OF THE NATIONAL BIO-
SAFETY FRAMEWORK OF THE PHILIPPINES, AND DA ADMINISTRATIVE
ORDER NO. 08," AND IN PRAYING THAT THE COURT OF APPEALS
"RECOMMEND TO CONGRESS CURATIVE LEGISLATIONS,"
RESPONDENTS SEEK TO REVIEW THE WISDOM OF THE PHILIPPINE
REGULATORY SYSTEM FOR GMOS, WHICH THE COURT OF APPEALS IS
WITHOUT JURISDICTION TO DO SO.
B. WORSE, THE COURT OF APPEALS EVEN HELD THAT THERE ARE NO
LAWS GOVERNING THE STUDY, INTRODUCTION AND USE OF GMOS IN
THE PHILIPPINES AND COMPLETELY DISREGARDED E.O. NO. 514 AND
DA- AO 08-2002.
 III
THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION
FOR WRIT OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT
RESPONDENTS FAILED TO EXHAUST ADMINISTRATIVE REMEDIES.
IV
THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION
FOR WRIT OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT
PRIMARY JURISDICTION OVER THE SAME LIES WITH THE REGULATORY AGENCIES.
V laws and rules.
THE COURT OF APPEALS EXHIBITED BIAS AND PARTIALITY AND PREJUDGED THE
INSTANT CASE WHEN IT RENDERED THE ASSAILED DECISION DATED 17 MAY 2013
AND RESOLUTION DATED 20 SEPTEMBER 2013.
VI
THE COURT OF APPEALS GRAVELY ERRED IN GRANTING THE WRIT OF KALIKASAN IN
FAVOR OF RESPONDENTS.
A. THE EVIDENCE ON RECORD SHOWS THAT THE PROJECT PROPONENTS
OF THE BT TALONG FIELD TRIALS COMPLIED WITH ALL
ENVIRONMENTAL LAWS, RULES AND REGULATIONS IN ORDER TO
ENSURE THAT THE PEOPLE'S RIGHT TO A BALANCED AND HEALTHFUL
ECOLOGY ARE PROTECTED AND RESPECTED.
B. THE EVIDENCE ON RECORD SHOWS THAT THE BT TALONG FIELD
TRIALS DO NOT CAUSE ENVIRONMENTAL DAMAGE AND DO NOT
PREJUDICE THE LIFE, HEALTH AND PROPERTY OF INHABITANTS OF
TWO OR MORE PROVINCES OR CITIES.
C. THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE
PRECAUTIONARY PRINCIPLE IN THIS CASE DESPITE THE FACT THAT
RESPONDENTS FAILED TO PRESENT AN IOTA OF EVIDENCE TO PROVE
THEIR CLAIM.
VII
THE COURT OF APPEALS GRAVELY ERRED IN GRANTING A WRIT OF CONTINUING
MANDAMUS AGAINST PETITIONER ISAAA.
VIII
THE COURT OF APPEALS' DECISION DATED 17 MAY 2013 AND RESOLUTION DATED 20
SEPTEMBER 2013 IS AN AFFRONT TO ACADEMIC FREEDOM AND SCIENTIFIC
PROGRESS.29ChanRoblesVirtualawlibrary
G.R. No. 209276
Petitioners EMB, BPI and FPA, represented by the Office of the Solicitor General (OSG) assails
the CA Decision granting the petition for writ of kalikasan and writ of continuing mandamus
despite the failure of Greenpeace, et al. (respondents) to prove the requisites for their issuance.
Petitioners contend that while respondents presented purported studies that supposedly show
signs of toxicity in genetically engineered eggplant and other crops, these studies are
insubstantial as they were not published in peer-reviewed scientific journals. Respondents thus
failed to present evidence to prove their claim that the Bt talong field trials violated environmental
As to the application of the precautionary principle, petitioners asserted that its application in this
case is misplaced. The paper by Prof. Seralini which was relied upon by the CA, was not
formally offered in evidence. In volunteering the said article to the parties, petitioners lament that
the CA manifested its bias towards respondents' position and did not even consider the
testimony of Dr. Davies who stated that "Seralini's work has been refuted by International
committees of scientists"30 as shown by published articles critical of Seralini's work.
Petitioners aver that there was no damage to human health since no Bt talong will be ingested
by any human being during the field trial stage. Besides, if the results of said testing are adverse,
petitioners will not allow the release of Bt talong to the environment, in line with the guidelines
set by EO 514. The CA thus misappreciated the regulatory process as approval for field testing
does not automatically mean approval for propagation of the same product. And even assuming
that the field trials may indeed cause adverse environmental or health effects, the requirement of
unlawful act or omission on the part of petitioners or any of the proponents, was still absent.
Respondents clearly failed to prove there was any unlawful deviation from the provisions of DAO
08-2002. The BPI's factual finding on the basis of risk assessment on the Bt talong project
should thus be accorded respect, if not finality by the courts.
Petitioners likewise fault the CA in giving such ambiguous and general directive for them to
protect, preserve, rehabilitate and restore the environment, lacking in specifics which only
indicates that there was really nothing to preserve, rehabilitate or restore as there was nothing
damaged or adversely affected in the first place. As to the supposed inadequacy and
ineffectiveness of existing regulations, these are all political questions and policy issues best left
to the discretion of the policy-makers, the Legislative and Executive branches of government.
Petitioners add that the CA treads on judicial legislation when it recommended the re-
examination of country's existing laws and regulations governing studies and research on
GMOs.
GR. No. 209301
Petitioner UPLBFI argues that respondents failed to adduce the quantum of evidence necessary
to prove actual or imminent injury to them or the environment as to render the controversy ripe
for judicial determination. It points out that nowhere in the testimonies during the "hot-tub"
presentation of expert witnesses did the witnesses for respondents claim actual or imminent
injury to them or to the environment as a result of the Bt talong field tests, as they spoke only of
injury in the speculative, imagined kind without any factual basis. Further, the petition for writ
of kalikasan has been mooted by the termination of the field trials as of August 10, 2012.
Finding the CA decision as a judgment not based on fact, UPLBFI maintains that by reason of
the nature, character, scale, duration, design, processes undertaken, risk assessments and
strategies employed, results heretofore recorded, scientific literature, the safeguards and other
precautionary measures undertaken and applied, the Bt talong field tests did not or could not
have violated the right of respondents to a balanced and healthful ecology. The appellate court
apparently misapprehended the nature, character, design of the field trials as one for
"consumption" rather than for "field testing" as defined in DAO 08-2002, the sole purpose of
which is for the "efficacy" of the eggplant variety's resistance to the FSB.
Against the respondents' bare allegations, UPLBFI submits the following "specific facts borne by
competent evidence on record" (admitted exhibits) 31:
118. Since the technology's inception 50 years ago, studies have shown that genetically
modified crops, including Bt talong, significantly reduce the use of pesticides by
farmers in growing eggplants, lessening pesticide poisoning to humans.
119. Pesticide use globally has decreased in the last [14-15] years owing to the use of
insect-resistant genetically modified crops. Moreover, that insect-resistant genetically
modified crops significantly reduce the use of pesticides in growing plants thus
lessening pesticide poisoning in humans, reducing pesticide load in the environment
and encouraging more biodiversity in farms.
120. Global warming is likewise reduced as more crops can be grown.
121. Transgenic Bacillus thuringensis (Bt) cotton has had a major impact on the Australian
cotton industry by largely controlling Lepidopteran pests. To date, it had no significant
impact on the invertebrate community studied.
122. Feeding on CrylAcc contaminated non-target herbivores does not harm predatory
heteropterans and, therefore, cultivation of Bt cotton may provide an opportunity for
conservation of these predators in cotton ecosystems by reducing insecticide use.
123. The Bt protein in Bt corn only affects target insects and that Bt corn pollens do not
negatively affect monarch butterflies.
124. The field trials will not cause "contamination" as feared by the petitioners because
flight distance of the pollinators is a deterrent to cross pollination. Studies reveal that
there can be no cross pollination more than a fifty (50) meter distance.
xx
xx
135. There is a 50 year history of safe use and consumption of agricultural products
sprayed with commercial Bt microbial pesticides and a 14 year history of safe
consumption of food and feed derived from Bt crops.
xx
xx
140. In separate reviews by the European Food Safety Agency (EFSA) and the Food
Standards Australia and New Zealand (FSANZ), the "work" of one Prof. Seralini relied
upon by [respondents] was dismissed as "scientifically flawed", thus providing no
plausible basis to the proposition that Bt talong is dangerous to public health.
141. In a learned treatise by James Clive entitled "Global Status of Commercialized
Biotech/GM Crops: 2011," the Philippines was cited to be the first country in the
ASEAN region to implement a regulatory system for transgenic crops (which includes
DAO 08-[2]002). Accordingly, the said regulatory system has also served as a model
for other countries in the region and other developing countries outside of Asia.
On the precautionary principle, UPLBFI contends that the CA misapplied it in this case. The
testimonial and documentary evidence of respondents, taken together, do not amount to
"scientifically plausible" evidence of threats of serious and irreversible damage to the
environment. In fact, since BPI started regulating GM crops in 2002, they have monitored 171
field trials all over the Philippines and said agency has not observed any adverse environmental
effect caused by said field trials. Plainly, respondents failed to show proof of "specific facts" of
environmental damage of the magnitude contemplated under the Rules of Procedure for
Environmental Cases as to warrant sanctions over the Bt talong field trials.

Lastly, UPLBFI avers that the Bt talong field trial was an exercise of the constitutional liberty of
scientists and other academicians of UP, of which they have been deprived without due process
of law. Stressing that a possibility is not a fact, UPLBFI deplores the CA decision's
pronouncement of their guilt despite the preponderance of evidence on the environmental safety
of the field trials, as evident from its declaration that "the over-all safety guarantee of Bt
talong remains to be still unknown." It thus asks if in the meantime, petitioners must bear the
judicial stigma of being cast as violators of the right of the people to a balanced and healthful
ecology for an injury or damage unsubstantiated by evidence of scientific plausibility.
G.R. No. 209430
Petitioner UP reiterates UPLBFI's argument that the Bt talong field testing was conducted in the
exercise of UPLB's academic freedom, which is a constitutional right. In this case, there is
nothing based on evidence on record or overwhelming public welfare concern, such as the right
of the people to a balanced and healthful ecology, which would warrant restraint on UPLB's
exercise of academic freedom. Considering that UPLB complied with all laws, rules and
regulations regarding the application and conduct of field testing of GM eggplant, and was
performing such field tests within the prescribed limits of DAO 08-2002, and there being no harm
to the environment or prejudice that will be caused to the life, health or property of inhabitants in
two or more cities or provinces, to restrain it from performing the said field testing is unjustified.
Petitioner likewise objects to the CA's application of the precautionary principle in this case, in
violation of the standards set by the Rules of Procedure for Environmental Cases. It points out
that the Bt eggplants are not yet intended to be introduced into the Philippine ecosystem nor to
the local market for human consumption.
Cited were the testimonies of two expert witnesses presented before the CA: Dr. Navasero who
is an entomologist and expert in integrated pest management and insect taxonomy, and Dr.
Davies, a member of the faculty of the Department of Plant Biology and Horticulture at Cornell
University for 43 years and served as a senior science advisor in agricultural technology to the
United States Department of State. Both had testified that based on generally accepted and
scientific methodology, the field trial of Bt crops do not cause damage to the environment or
human health.
Petitioner assails the CA in relying instead on the conjectural statements of Dr. Malayang. It
asserts that the CA could not support its Decision and Resolution on the pure conjectures and
imagination of one witness. Basic is the rule that a decision must be supported by evidence on
record.
Respondents' Consolidated Comment
Respondents aver that Bt talong became the subject of public protest in our country precisely
because of the serious safety concerns on the impact of Bt talong toxin on human and animal
health and the environment through field trial contamination. They point out that the inherent and
potential risks and adverse effects of GM crops are recognized in the Cartagena Protocol and
our biosafety regulations (EO 514 and DAO 08-2002). Contamination may occur through
pollination, ingestion by insects and other animals, water and soil run off, human error,
mechanical accident and even by stealing was inevitable in growing Bt talong in an open
environment for field trial. Such contamination may manifest even after many years and in
places very far away from the trial sites.
Contrary to petitioners' claim that they did not violate any law or regulation, or unlawful omission,
respondents assert that, in the face of scientific uncertainties on the safety and effects of Bt
talong, petitioners omitted their crucial duties to conduct environmental impact assessment
(EIA); evaluate health impacts; get the free, prior and informed consent of the people in the host
communities; and provide remedial and liability processes in the approval of the biosafety permit
and conduct of the field trials in its five sites located in five provinces. These omissions have put
the people and the environment at serious and irreversible risks.
Respondents cite the numerous studies contained in "Adverse Impacts of Transgenic
Crops/Foods: A Compilation of Scientific References with Abstracts" printed by Coalition for a
GMO-Free India; a study on Bt corn in the Philippines, "Socio-economic Impacts of Genetically
Modified Corn in the Philippines" published by MASIPAG in 2013; and the published report of the
investigation conducted by Greenpeace, "White Corn in the Philippines: Contaminated with
Genetically Modified Corn Varieties" which revealed positive results for samples purchased from
different stores in Sultan Kudarat, Mindanao, indicating that they were contaminated with GM
corn varieties, specifically the herbicide tolerant and Bt insect resistant genes from Monsanto,
the world's largest biotech company based in the US.
To demonstrate the health hazards posed by Bt crops, respondents cite the following sources:
the studies of Drs. L. Moreno-Fierros, N. Garcia, R. Gutierrez, R. Lopez-Revilla, and RI
Vazquez-Padron, all from the Universidad Nacional Autonoma de Mexico; the conclusion made
by Prof. Eric-Gilles Seralini of the University of Caen, France, who is also the president of the
Scientific Council of the Committee for Independent Research and Information on Genetic
Engineering (CRIIGEN), in his review, commissioned by Greenpeace, of Mahyco's data
submitted in support of the application to grow and market Bt eggplant in India; and the medical
interpretations of Prof. Seralini's findings by Filipino doctors Dr. Romeo Quijano of the University
of the Philippines-Philippine General Hospital and Dr. Wency Kiat, Jr. of St. Luke's Medical
Center (Joint Affidavit).
According to respondents, the above findings and interpretations on serious health risks are
strengthened by the findings of a review of the safety claims in the MAHYCO Dossier authored
by Prof. David A. Andow of the University of Minnesota, an expert in environmental assessment
in crop science. The review was made upon the request in 2010 of His Honorable Shri Jairam
Ramesh of the Ministry of Environment and Forests of India, where MAHYCO is based.
MAHYCO is the corporate creator and patent owner of the Bt gene inserted in Bt talong.
The conclusions of health hazards from the above studies were summarized 32 by respondents,
as follows:
Studies/interpretation by Conclusion/interpretation
Drs. L. Moreno-Fierros, N. Garcia, For Bt modified crops (like Bt talong), there is concern
R. Gutierrez, R. over its potential
 Lopez-Revilla, and RI Vazquez-
Padron
Prof. Eric-Gilles Seralini
Dr. Romeo Quijano & Dr. Wency
Kiat, Jr.
allergenicity. CrylAcc (the gene inserted in Bt talong) the modified rice and
protoxin is a potent immunogen (triggers immune conventional varieties.
response); the protoxin is immunogenic by both the However, it was unable
intraperitoneal (injected) and intragastric (ingested) to conclude [if it] was
route; the immune response to the protoxin is both caused by gene flow
systemic and mucosal; and CrylAcc protoxin binds to (cross pollination) or
surface proteins in the mouse small intestine. These mechanical mixing.
suggest that extreme caution is required in the use
of CrylAcc in food crops. In 2009, unauthorised Canada lost exports to its main In the late 1980s a
GElinseed (also known as European market worth hundreds public research
His key findings showed statistical significant 'flax') produced by a public of millions of dollars and non- institution, the Crop
differences between group of animals fed GM and research institution was GElinseed farmers have faced Development Centre in
non-GM eggplant that raise food safety concerns discovered in food in several huge costs and market losses. Saskatoon, Saskat-
and warrant further investigation. EU countries, having been chewan, developed a
imported from Canada. GElinseed variety
Interpreting Prof. Seralini's findings, the altered FP96—believed to be
condition of rats symptomatically indicate hazards the origin of the
for human health. contamination.

Prof. David A. Andow The MAHYCO dossier is inadequate to support the During 2004, the Thai Exports of papaya to Europe GEpapaya is not grown
needed environmental risk assessment; MAHYCO's government found that papaya have been hit because of fears commercially in
food safety assessment does not comply with samples from 85 farms were that contamination could have Thailand, so it was
international standards; and that MAHYCO relied on genetically modified. The spread. The Thai government clear that the
dubious scientific assumptions and disregarded real contamination continued into said it was taking action to contamination
environmental threats. 2006 and it is likely that the destroy the contaminated trees. originated from the
GE contamination reached the government station
As to environmental effects, respondents said these include the potential for living modified food chain. experimentally
organisms, such as Bt talong tested in the field or released into the environment, to contaminate breeding GE papaya
non-GM traditional varieties and other wild eggplant relatives and turn them into novel pests, trees. Tests that
outcompete and replace their wild relatives, increase dependence on pesticides, or spread their showed that one third
introduced genes to weedy relatives, potentially creating superweeds, and kill beneficial insects. of papaya orchards
tested in the eastern
Respondents then gave the following tabulated summary 33 of field trial contamination province of Rayong
cases drawn from various news reports and some scientific literature submitted to the court: and the north-eastern
What happened Impact How did it occur provinces of
Mahasarakham,
During 2006 and 2007, traces In July 2011, Bayer eventually Field trials were Chaiyaphum and
of three varieties of agreed to a $750m US dollar conducted between the Kalasinhad GE-
unapproved genetically settlement resolving claims with mid-1990s and early contaminated papaya
modified rice owned by Bayer about 11,000 US farmers for 2000s. The US seeds in July 2005.
Crop Science were found in market losses and clean-up Department of The owners said that a
US rice exports in over 30 costs. Agriculture (USDA) research station gave
countries worldwide. reported these field them the seeds.
The total costs to the rice industry trials were the likely
are likely to have been over $1bn sources of the In the US in 2002, seeds from Prodigene, the company Seeds from the
worldwide. contamination between a GEmaize pharma-crop responsible, was fined $3m for GEmaize crop
containing a pig vaccine grew tainting half a million bushels of
independently among normal
soybean crops.
In 2005, Greenpeace
discovered that GE rice seeds
had been illegally sold in
Hubei, China. Then, in 2006,
GE rice event Bt63 was found
in baby food sold in Beijing,
Guangzhou and Hong Kong.
In late 2006, GE rice Bt63 was
found to be contaminating
exports in Austria, France, the
UK and Germany. In 2007 it
was again found in EU imports
to Cyprus, Germany, Greece,
Italy and Sweden.
In 2005, the European
Commission announced that
illegal Bt10 GEmaize produced
by GEseed company
Syngenta had entered the
European food chain. The
GEmaize Bt10 contains a
marker gene that codes for the
widely-used antibiotic
ampicillin, while the Bt11 does
not. According to the
international Codex
Alimentarius Guideline for
Conduct of Food Safety
Assessment of Foods Derived
from Recombinant-
DNA:Plants: 'Antibiotic
resistance genes used in food
soya bean with a trial vaccine
used to prevent stomach upsets
in piglets. Prodigene agreed to
pay a fine of $250,000 and to
repay the government for the cost
of incinerating the soya bean that
had been contaminated with
genetically altered corn.
The European Commission
adopted emergency measures
(on 15 August 2008) to require
compulsory certification for the
imports of Chinese rice products
that could contain the
unauthorised GE rice Bt63.
The Chinese government took
several measures to try to stop
the contamination, which
included punishing seed
companies, confiscating GEseed,
destroying GErice grown in the
field and tightening control over
the food chain.
The European Commission
blocked US grain import unless
they could be guaranteed free of
Bt10. The USDA fined Syngenta
$375,000. There are no figures
for the wider costs.
sprouted voluntarily in production that encode sophisticated analytical
the following season. resistance to clinically used techniques.
antibiotics should not be
present in foods' because it
increases the risk of antibiotic
resistance in the population.
Refuting the claim of petitioners that contamination is nil or minimal because the scale of Bt
talong field trial is isolated, restricted and that "each experiment per site per season consists of a
The source of the maximum net area planted to Bt eggplant of between 480 sq. meters to 1,080 sq.
contamination appears meters,"34 respondents emphasize that as shown by the above, contamination knows no size
to have been the result and boundaries in an open environment.
of illegal planting of
GEseeds. Seed With regard to the required geographical coverage of environmental damage for the issuance of
companies in China writ of kalikasan, respondents assert that while the Bt talong field trials were conducted in only
found to have sold five provinces, the environmental damage prejudicial to health extends beyond the health of the
GErice hybrid seed to present generation of inhabitants in those provinces.
farmers operated
directly under the On petitioners' insistence in demanding that those who allege injury must prove injury,
university developing respondents said that biosafety evidence could not be readily contained in a corpus delicti to be
GM rice. It has been presented in court. Indeed, the inherent and potential risks and adverse effects brought by
reported that the key GMOs are not like dead bodies or wounds that are immediately and physically identifiable to an
scientist sat on the eyewitness and which are resulting from a common crime. Precisely, this is why the Cartagena
board of one GEseed Protocol's foundation is on the precautionary principle and development of sound science and its
company. links, to social and human rights law through its elements of public awareness, public
participation and public right to know. This is also why the case was brought under the Rules of
Procedure for Environmental Cases and not under ordinary or other rules, on the grounds of
violation of the rights of the Filipino people to health, to a balanced and healthful ecology, to
The contamination information on matters of national concern, and to participation. The said Rules specifically
arose because provides that the appreciation of evidence in a case like this must be guided by the
Syngenta's quality precautionary principle.
control procedures did
not differentiate As to the non-exhaustion of administrative remedies being raised by petitioners as ground to
between Bt10 and its dismiss the present petition, respondents said that nowhere in the 22 sections of DAO 08-2002
sister commercial line, that one can find a remedy to appeal the decision of the DA issuing the field testing permit. What
Bt11. As a result, the is only provided for is a mechanism for applicants of a permit, not stakeholders like farmers,
experimental and traders and consumers to appeal a decision by the BPI-DA in case of denial of their application
substantially different for field testing. Moreover, DAO 08-2002 is silent on appeal after the issuance of the biosafety
Bt10 line was permit.
mistakenly used in
breeding. The error Finally, on the propriety of the writ of continuing mandamus, respondents argue that EO 514
was detected four explicitly states that the application of biosafety regulations shall be made in accordance
years later when one of with existing laws and the guidelines therein provided. Hence, aside from risk assessment
the seed companies requirement of the biosafety regulations, pursuant to the PEISS law and Sections 12 and 13 of
developing Bt11 the Philippine Fisheries Code of 1998, an environmental impact statement (EIS) is required and
varieties adopted more an environmental compliance certificate (ECC) is necessary before such Bt crop field trials can
be conducted.
 Petitioners' Replies
G.R. No. 209271
ISAAA contends that the Precautionary Principle and the Rules of Procedure for Environmental
Cases do not empower courts to adjudicate a controversy that is moot and academic. It points
out that respondents failed to satisfy all the requirements of the exception to the rule on actual
controversies. The Biosafety Permit is valid for only two years, while the purported stages in the
commercialization, propagation and registration of Bt talong still cannot confer jurisdiction on the
CA to decide a moot and academic case.
As to the propriety of the writ of continuing mandamus, ISAAA maintains that public petitioners
do not have "mandatory" and "ministerial" duty to re-examine and reform the biosafety regulatory
system, and to propose curative legislation. The law (EO 514) cited by respondents does not
impose such duty on public petitioners. As for the Cartagena Protocol, it laid down a procedure
for the evaluation of the Protocol itself, not of the Philippine biosafety regulatory system. ISAAA
stresses that the CA is without jurisdiction to review the soundness and wisdom of existing laws,
policy and regulations. Indeed, the questions posed by the respondents are political questions,
which must be resolved by the executive and legislative departments in deference to separation
of powers.
On the availability of administrative remedies, ISAAA asserts that respondents are mistaken in
saying that these are limited to appeals. The concerned public may invoke Section 8 (G) of DAO
08-2002 which grants them the right to submit their written comments on the BPI regarding the
field testing permits, or Section 8 (P) for the revocation and cancellation of a field testing permit.
Respondents' failure to resort to the internal mechanisms provided in DAO 08-2002 violates the
rule on exhaustion of administrative remedies, which warrants the dismissal of respondents'
petition.
ISAAA points out that under Section 7 of DAO 08-2002, the BPI is the approving authority for
field testing permits, while under Title IV, Chapter 4, Section 19 of the Administrative Code of
1987, the DA through the BPI, is responsible for the production of improved planting materials
and protection of agricultural crops from pests and diseases. In bypassing the administrative
remedies available, respondents not only failed to exhaust a less costly and speedier remedy, it
also deprived the parties of an opportunity to be heard by the BPI which has primary jurisdiction
and knowledgeable on the issues they sought to raise.
Rejecting the scientific data presented by the respondents, petitioners found Annex "A" of the
Consolidated Comment as irrelevant because it was not formally offered in evidence and are
hearsay. Majority of those records contain incomplete information and none of them pertain to
the Bt talong. Respondents likewise presented two misleading scientific studies which have
already been discredited: the 2013 study by B.P. Mezzomo, et al. and the study by Prof. Seralini
in 2012. Petitioner notes that both articles have been withdrawn from publication.
ISAAA further describes Annex "A" as a mere compilation of records of flawed studies with only
126 usable records out of the 338 records. In contrast, petitioner cites the work of Nicolia, A., A.
Manzo, F. Veronesi, and D. Rosellini, entitled "An overview of the last 10 years of genetically
engineered crop safety research." The authors evaluated 1,783 scientific records of GE crop
safety research papers, reviews, relevant opinions and scientific reports from 2002-2012. Their
findings concluded that "the scientific research conducted so far has not detected any significant
hazards directly connected with the use of GE crops." In the article "Impacts of GM crops on
biodiversity," in which scientific findings concluded that "[o]verall, x x x currently commercialized
GM crops have reduced the impacts of agriculture on biodiversity, through enhanced adoption of
conservation tillage practices, reduction of insecticide use and use of more environmentally
benign herbicides and increasing yields to alleviate pressure to convert additional land into
agricultural use."
Debunking the supposed inherent risks and potential dangers of GMOs, petitioner cites EUR
24473-A decade of EU-funded GMO research (2001-2010), concluded from more than 130
research projects, covering a period of 25 years of research, and involving more than 500
independent research groups, that "biotechnology, and in particular GMOs, are not per se more
risky than e.g. conventional plant breeding technologies." Another article cited is "Assessment of
the health impact of GM plant diets in long-term and multigenerational animal feeding trials: A
literature review" which states that scientific findings show that GM crops do not suggest any
health hazard, and are nutritionally equivalent to their non-GM counterparts and can be safely
used in food and feed.
Addressing the studies relied upon by respondents on the alleged adverse environmental effects
of GM crops, petitioner cites the article "Ecological Impacts of Genetically Modified Crops: Ten
Years of Field Research and Commercial Cultivation" which concluded that "[T]he data available
so far provide no scientific evidence that the cultivation of the presently commercialized GM
crops has caused environmental harm." A related article, "A Meta-Analysis of Effects of Bt
Cotton and Maize on Non-target Invertebrates" states that scientific findings show that non-target
insects are more abundant in GM crop fields like Bt cotton and Bt maize fields than in non-GM
crops that are sprayed with insecticides.
The two tables/summaries of studies submitted by respondents are likewise rejected by ISAAA,
which presented the following comments and criticisms on each of the paper/article cited, thus:
With respect to the study made by L. Moreno-Fierros, et al., the same should be rejected
considering that this was not formally offered as evidence by respondents. Hence, the same may
not be considered by the Honorable Court. (Section 34, Rule 132 of the Rules of Court; Heirs of
Pedro Pasag v. Spouses Parocha, supra)
Further, the study is irrelevant and immaterial. The CrylAcc protein used in the study was from
engineered E. coli and may have been contaminated by endotoxin. The CrylAcc used in the
study was not from Bt talong. Hence, respondents' attempt to extrapolate the interpretation and
conclusion of this study to Bt talong is grossly erroneous and calculated to mislead and deceive
the Honorable Court.
Moreover, in a review by Bruce D. Hammond and Michael S. Koch of the said study by L.
Moreno-Fierros, et al., which was published in an article entitled A Review of the Food Safety of
Bt Crops, the authors reported that Adel-Patient, et al. tried and failed to reproduce the results
obtained by the study made by L. Moreno-Fierros, et al. The reason is because of endotoxin
contamination in the preparation of the CrylAc protein. Further, when purified Cry protein was
injected to mice through intra-gastric administration, there was no impact on the immune
response of the mice.

In addition, the biological relevance of the study made by L. Moreno-Fierros, et al. to assessing
potential health risks from human consumption of foods derived from Bt crops can be questioned
because the doses tested in mice is irrelevant to human dietary exposure, i.e., the doses given
were "far in excess of potential human intakes".
With respect to the interpretation made by Prof. Eric-Gilles Seralini, the same is not entitled to
any weight and consideration because his sworn statement was not admitted in evidence by the
Court of Appeals.
Further, Seralini's findings are seriously flawed. Food safety experts explained the differences
observed by Seralini's statistical analysis as examples of random biological variation that occurs
when many measurements are made on test animals, and which have no biological significance.
Hence, there are no food safety concerns. Further, petitioner ISAAA presented in evidence the
findings of regulatory bodies, particularly the EFSA and the FSANZ, to controvert Seralini's
findings. The EFSA and the FSANZ rejected Seralini's findings because the same were based
on questionable statistical procedure employed in maize in 2007.
In addition, it must be pointed out that the Indian regulatory authority, GEAC, has not revised its
earlier decision approving the safety of Bt eggplant notwithstanding the findings of Seralini's
assessment. In effect, Seralini's findings and interpretation were rejected by the Indian regulatory
agency.
With respect to the interpretation made by Drs. Romeo Quijano and Wency Kiat, the same is not
entitled to any weight and consideration because the Court of Appeals did not admit their sworn
statement. Further, Drs. Romeo Quijano and Wency Kiat sought to interpret a seriously flawed
study, making their sworn statements equally flawed.
In an attempt to mislead the Honorable Court, respondents tried to pass off the review of Prof.
David A. Andow as the work of the National Academy of Sciences of the USA. Such claim is
grossly misleading. In truth, as Prof. David A. Andow indicated in the preface, the report was
produced upon the request of Aruna Rodriguez, a known anti-GM campaigner.
Further, Prof. David A. Andow's review did not point to any negative impact to the environment of
Mahyco's Bt brinjal (Indian name for Bt talong) during the entire period of conduct of field trials all
over the country. He concluded, however, that the dossier is inadequate for ERA. This is
perplexing considering this is the same gene that has been used in Bt cotton since 1996. Scores
of environmental and food safety risk assessment studies have been conducted and there is
wealth of information and experience on its safety. Various meta-analyses indicate that delaying
the use of this already effective Bt brinjal for managing this devastating pest only ensures the
continued use of frequent insecticide sprays with proven harm to human and animal health and
the environment and loss of potential income of resource-poor small farmers.
Notwithstanding the conclusions of Prof. David A. Andow, to date, it is worth repeating that the
Indian regulatory body, GEAC, has not revised its earlier decision approving the safety
of Bt eggplant based on the recommendation of two expert committees which found the Mahyco
regulatory dossier compliant to the ERA stipulated by the Indian regulatory body. In effect, like
Seralini, Andow's findings and interpretation were also rejected by the Indian regulatory
agency.35ChanRoblesVirtualawlibrary
Petitioner reiterates that the PEIS law does not apply to field testing of Bt talong and the rigid
requirements under Section 8 of DAO 08-2002 already takes into consideration any and all
significant risks not only to the environment but also to human health. The requirements under
Sections 26 and 27 of the Local Government Code are also inapplicable because the field
testing is not among the six environmentally sensitive activities mentioned therein; the public
consultations and prior local government unit (LGU) approval, were nevertheless complied with.
Moreover, the field testing is an exercise of academic freedom protected by the Constitution, the
possibility of Bt talong's commercialization in the future is but incidental to, and fruit of the
experiment.
As to the "commissioned studies" on Bt corn in the Philippines, petitioner asserts that these are
inadmissible, hearsay and unreliable. These were not formally offered in evidence; self-serving
as it was conducted by respondents Greenpeace and MASIPAG themselves; the persons who
prepared the same were not presented in court to identify and testify on its findings; and the
methods used in the investigation and research were not scientific. Said studies failed to
establish any correlation between Bt corn and the purported environmental and health problems.
G.R. No. 209276
EMB, BPI and FPA joined in objecting to Annex "A" of respondents' consolidated comment, for
the same reasons given by ISAAA. They noted that the affidavit of Prof. Seralini, and the joint
affidavit of Dr. Kiat and Dr. Quijano were denied admission by the CA. Given the failure of the
respondents to present scientific evidence to prove the claim of environmental and health
damages, respondents are not entitled to the writ of kalikasan.
Public petitioners reiterate that in issuing the Biosafety Permits to UPLB, they made sure that the
latter complied with all the requirements under DAO 08-2002, including the conduct of risk
assessment. The applications for field testing of Bt talong thus underwent the following
procedures:
Having completed the contained experiment on the Bt talong, UPLB filed with BPI several
applications for issuance of Biosafety Permits to conduct multi-locational field testing of Bt
talong. Even before the proponent submitted its application, petitioner BPI conducted a
consultative meeting with the proponent to enlighten the latter about the requirements set out by
DA AO No. 8.
Thereafter, petitioner BPI evaluated UPLB's applications vis-a-vis the requirements of Section 8
of DA AO No. 8 and found them to be sufficient in form and substance, to wit:
First. The applications were in the proper format and contained all of the relevant information as
required in Section 8 (A) (1) of DA AO No. 08.
Second. The applications were accompanied by a (i) Certification from the NCBP that the
regulated article has undergone satisfactory testing under contained conditions in the
Philippines, (ii) technical dossier consisting of scientific literature and other scientific materials
relied upon by the applicant showing that Bt talong will not pose any significant risks to human
health and the environment, and (iii) copy of the proposed PIS for Field Testing as prescribed by
Section 8 (A) (2) of DA AO No. 08; and
Third. The applications contained the Endorsement of proposal for field testing, duly approved by
the majority of all the members of the respective Institutional Biosafety Committees (IBC),
including at least one community representative, as required by Section 8 (E) of DA AO No. 08.
a. Under Sections 1 (L) and 8 (D) of DA AO No. 08, the IBC is responsible for the initial
evaluation of the risk assessment and risk management strategies of the applicant for field
testing using the NCBP guidelines. The IBC shall determine if the data obtained under
contained conditions provide sufficient basis to authorize the field testing of the
regulated article. In making the determination, the IBC shall ensure that field testing does
not pose any significant risks to human health and the environment. The IBC may, in its
discretion, require the proponent to perform additional experiments under contained conditions
before acting on the field testing proposal. The IBC shall either endorse the field testing proposal
to the BPI or reject it for failing the scientific risk assessment.
b. Relatedly, UPLB had previously complied with Section 1 (L) of DA AO No. 08 which requires
an applicant for field testing to establish an IBC in preparation for the field testing of a regulated
article and whose membership has been approved by the BPI. Section 1 (L) of DA AO No. 08,
requires that the IBC shall be composed of at least five (5) members, three (3) of whom shall be
designated as "scientist-members" who shall possess scientific and technological knowledge
and expertise sufficient to enable them to evaluate and monitor properly any work of the
applicant relating to the field testing of a regulated article, and the other members are designated
as "community representatives" who are in a position to represent the interest of the
communities where the field testing is to be conducted.
Before approving the intended multi-locations [field] trials, petitioner BPI, pursuant to Section 8
(F) of DA AO No. 08, forwarded the complete documents to three (3) independent Scientific
Technical Review Panel (STRP) members. Pending receipt of the risk assessment reports of the
three STRP members, petitioner BPI conducted its own risk assessment.
Thereafter, on separate occasions, petitioner BPI received the final risk assessment reports of
the three STRP members recommending the grant of Biosafety Permits to UPLB after a
thorough risk assessment and evaluation of UPLB's application for field trial of Bt talong.
Meanwhile, petitioner BPI received from UPLB proofs of posting of the PISs for Field Testing in
each concerned barangays and city/municipal halls of the localities having jurisdiction over its
proposed field trial sites.
In addition to the posting of the PISs for Field Testing, petitioner BPI conducted consultative
meetings and public seminars in order to provide public information and in order to give an
opportunity to the public to raise their questions and/or concerns regarding the Bt talong field
trials.36ChanRoblesVirtualawlibrary
Petitioners maintain that Sections 26 and 27 of the Local Government Code are inapplicable to
the Bt talong field testing considering that its subject matter is not mass production for human
consumption. The project entails only the planting of Bt eggplants and cultivation in a controlled
environment; indeed, the conduct of a field trial is not a guarantee that the Bt talong will be
commercialized and allowed for cultivation in the Philippines.
On the non-exhaustion of administrative remedies by the respondents, petitioners note that
during the period of public consultation under DAO 08-2002, it is BPI which processes written
comments on the application for field testing of a regulated article, and has the authority to
approve or disapprove the application. Also, under Section 8 (P), BPI may revoke a biosafety
permit issued on the ground of, among others, receipt of new information that the field testing
poses significant risks to human health and the environment. Petitioners assert they were never
remiss in the performance of their mandated functions, as shown by their immediate action with
respect to the defective certification of posting of PIS in Kabacan, North Cotabato. Upon
receiving the letter-complaint on January 24, 2012, BPI readily ordered their re-posting. The
same incident occurred in Davao City, where BPI refused to lift the suspension of biosafety
permits until "rectification of the conditions for public consultation is carried out."
To underscore respondents' blatant disregard of the administrative process, petitioners refer to
documented instances when respondents took the law in their own hands. Greenpeace barged
into one of the Bt talong field trial sites at Bgy. Paciano Rizal, Bay, Laguna, forcibly entered the
entrance gate through the use of a bolt cutter, and then proceeded to uproot the experimental
crops without permission from BPI or the project proponents. Petitioners submit that the non-
observance of the doctrine of exhaustion of administrative remedies results in lack of cause of
action, one of the grounds under the Rules of Court justifying the dismissal of a complaint.
Petitions-in-Intervention
Crop Life Philippines, Inc. (Crop Life)
Crop Life is an association of companies which belongs to a global (Crop Life International) as
well as regional (Crop Life Asia) networks of member-companies representing the plant science
industry. It aims to "help improve the productivity of Filipino farmers and contribute to Philippine
food security in a sustainable way." It supports "innovation, research and development in
agriculture through the use of biology, chemistry, biotechnology, plant breeding, other
techniques and disciplines."
On procedural grounds, Crop Life assails the CA in rendering judgment in violation of petitioners'
right to due process because it was prevented from cross-examining the respondents' expert
witnesses and conducting re-direct examination of petitioners' own witnesses, and being an
evidently partial and prejudiced court. It said the petition for writ of kalikasan should have been
dismissed outright as it effectively asks the Court to engage in "judicial legislation" to "cure" what
respondents feel is an inadequate regulatory framework for field testing of GMOs in the
Philippines. Respondents also violated the doctrine of exhaustion of administrative remedies,
and their petition is barred by estoppel and laches.
Crop Life concurs with the petitioners in arguing that respondents failed to specifically allege and
prove the particular environmental damage resulting from the Bt talong field testing. It cites the
scientific evidence on record and the internationally accepted scientific standards on GMOs and
GMO field testing, and considering the experience of various countries engaged in testing
GMOs, telling us that GMO field testing will not damage the environment nor harm human health
and more likely bring about beneficial improvements.
Crop Life likewise assails the application of the Precautionary Principle by the CA which
erroneously equated field testing of Bt talong with Bt talong itself; failed to recognize that in this
case, there was no particular environmental damage identified, much less proven; relied upon
the article of Prof. Seralini that was retracted by the scientific journal which published it; there is
no scientific uncertainty on the adverse effects of GMOs to environment and human health; and
did not consider respondents' failure to prove the insufficiency of the regulatory framework under
DAO 08-2002.
On policy grounds, Crop Life argues that requiring all organisms/plants to be considered
absolutely safe before any field testing may be allowed, would result in permanently placing the
Philippines in the shadows of more developed nations (whose economies rest on emerging
markets importing products from them). It points out that the testing of Bt talong specifically
addresses defined problems such as the need to curb the misuse of chemical pesticides.
Biotechnology Coalition of the Philippines (BCP)
BCP is a non-stock, non-profit membership association, a broad-based multi-sectoral coalition of
advocates of modern biotechnology in the Philippines.
Reversal of the CA ruling is sought on the following grounds:
I.
THE COURT OF APPEALS ERRED IN TAKING COGNIZANCE OF
THE KALIKASAN PETITION IN THE ABSENCE OF ANY JUSTICIABLE CONTROVERSY.
II.
EXISTING LEGISLATION AND ADMINISTRATIVE REGULATIONS ALREADY INCORPORATE
THE PRECAUTIONARY PRINCIPLE AS A GUIDING PRINCIPLE IN RELATION TO GMOs.
III.
THE CA DECISION AND THE CA RESOLUTION IMPROPERLY APPLIED THE
PRECAUTIONARY PRINCIPLE.
IV.
THE COURT OF APPEALS' ERRONEOUS APPLICATION OF THE PRECAUTIONARY
PRINCIPLE, IF SUSTAINED, WOULD PRODUCE A DANGEROUS PRECEDENT THAT IS
ANTI-PROGRESS, ANTI-TECHNOLOGY AND, ULTIMATELY, DETRIMENTAL TO THE
FILIPINO PEOPLE.37ChanRoblesVirtualawlibrary
BCP argued that in the guise of taking on a supposed justiciable controversy, despite the Bt
talong field trials having been terminated, the CA entertained a prohibited collateral attack on the
sufficiency of DAO 08-2002. Though not invalidating the issuance, which the CA knew was
highly improper, it nonetheless granted the petition for writ of kalikasan on the theory that "mere
biosafety regulations" were insufficient to guarantee the safety of the environment and the health
of the people.
Also reiterated were those grounds for dismissal already raised by the petitioners: failure to
exhaust administrative remedies and finality of findings of administrative agencies.
BCP further asserts that the application of a stringent "risk assessment" process to regulated
articles prior to any release in the environment for field testing mandated by AO No. 8 sufficiently
complies with the rationale behind the development of the precautionary principle. By
implementing the stringent provisions of DAO 08-2002, in conjunction with the standards set by
EO 514 and the NBF, the government preemptively intervenes and takes precautionary
measures prior to the release of any potentially harmful substance or article into the
environment. Thus, any potential damage to the environment is prevented or negated. Moreover,
international instruments ratified and formally adopted by the Philippines (CBD and the
Cartagena Protocol) provide additional support in the proper application of the precautionary
principle in relation to GMOs and the environment.
On the "misapplication" by the CA of the precautionary principle, BCP explains that the basic
premise for its application is the existence of threat of harm or damage to the environment,
which must be backed by a reasonable scientific basis and not based on mere hypothetical
allegation, before the burden of proof is shifted to the public respondents in a petition for writ
of kalikasan. Here, the CA relied heavily on its observation that "... field trials of bt talong could
not be declared ... as safe to human health and to ecology, with full scientific certainty, being an
alteration of an otherwise natural state of affairs in our ecology" and "introducing a genetically
modified plant in our intricate world of plants by humans certainly appears to be an ecologically
imbalancing act," among others. BCP finds that this pronouncement of the CA constitutes an
indictment not only against Bt talong but against all GMOs as well. The appellate court's opinion
is thus highly speculative, sweeping and laced with obvious bias.
There being no credible showing in the record that the conduct of Bt talong field trials entails real
threats and that these threats pertain to serious and irreversible damage to the environment,
BCP maintains that the precautionary principle finds no application in this case. While Rule 20 of
the Rules of Procedure for Environmental Cases states that "[w]hen there is a lack of full
scientific certainty in establishing a causal link between human activity and environmental effect,
the court shall apply the precautionary principle in resolving the case before it," the CA failed to
note that the element of lack of full scientific certainty pertains merely to the causal link between
human activity and environmental effect, and not the existence or risk of environmental effect.
BCP laments that sustaining the CA's line of reasoning would produce a chilling effect against
technological advancements, especially those in agriculture. Affirming the CA decision thus sets
a dangerous precedent where any and all human activity may be enjoined based on unfounded
fears of possible damage to health or the environment.
Issues
From the foregoing submissions, the Court is presented with the following issues for resolution:
1. Legal standing of respondents;
 2. Mootness;
3. Violation of the doctrines of primary jurisdiction and exhaustion of administrative
remedies;
4. Application of the law on environmental impact statement/assessment on
projects involving the introduction and propagation of GMOs in the country;
5. Evidence of damage or threat of damage to human health and the environment
in two or more provinces, as a result of the Bt talong field trials;
6. Neglect or unlawful omission committed by the public respondents in connection
with the processing and evaluation of the applications for Bt talong field testing;
and
7. Application of the Precautionary Principle.
The Court's Ruling
Legal Standing
Locus standi is "a right of appearance in a court of justice on a given question." 38 It refers
particularly to "a party's personal and substantial interest in a case where he has sustained or
will sustain direct injury as a result" of the act being challenged, and "calls for more than just a
generalized grievance."39
However, the rule on standing is a matter of procedure which can be relaxed for non-traditional
plaintiffs like ordinary citizens, taxpayers, and legislators when the public interest so requires,
such as when the matter is of transcendental importance, of overreaching significance to society,
or of paramount public interest.40 The Court thus had invariably adopted a liberal policy on
standing to allow ordinary citizens and civic organizations to prosecute actions before this Court
questioning the constitutionality or validity of laws, acts, rulings or orders of various government
agencies or instrumentalities.41
Oposa v. Factor an, Jr.42 signaled an even more liberalized policy on locus standi in public suits.
In said case, we recognized the "public right" of citizens to "a balanced and healthful ecology
which, for the first time in our nation's constitutional history, is solemnly incorporated in the
fundamental law." We held that such right need not be written in the Constitution for it is
assumed, like other civil and political rights guaranteed in the Bill of Rights, to exist from the
inception of mankind and it is an issue of transcendental importance with intergenerational
implications. Such right carries with it the correlative duty to refrain from impairing the
environment.
Since the Oposa ruling, ordinary citizens not only have legal standing to sue for the enforcement
of environmental rights, they can do so in representation of their own and future generations.
Thus:
Petitioners minors assert that they represent their generation as well as generations yet unborn.
We find no difficulty in ruling that they can, for themselves, for others of their generation and for
the succeeding generations, file a class suit. Their personality to sue in behalf of the
succeeding generations can only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is concerned. Such
a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means
the created world in its entirety. Such rhythm and harmony indispensably include, inter alia, the
judicious disposition, utilization, management, renewal and conservation of the country's forest,
mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end
that their exploration, development and utilization be equitably accessible to the present as well
as future generations. Needless to say, every generation has a responsibility to the next to
preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology.
Put a little differently, the minors' assertion of their right to a sound environment constitutes, at
the same time, the performance of their obligation to ensure the protection of that right for the
generations to come.43(Emphasis supplied.)
The liberalized rule on standing is now enshrined in the Rules of Procedure for Environmental
Cases which allows the filing of a citizen suit in environmental cases. 44 The provision on citizen
suits in the Rules "collapses the traditional rule on personal and direct interest, on the principle
that humans are stewards of nature," and aims to "further encourage the protection of the
environment."45
There is therefore no dispute on the standing of respondents to file before this Court their
petition for writ of kalikasan and writ of continuing mandamus.
Mootness
It is argued that this case has been mooted by the termination of all field trials on August 10,
2012. In fact, the validity of all Biosafety permits issued to UPLB expired in June 2012.
An action is considered 'moot' when it no longer presents a justiciable controversy because the
issues involved have become academic or dead, or when the matter in dispute has already been
resolved and hence, one is not entitled to judicial intervention unless the issue is likely to be
raised again between the parties.46 Time and again, courts have refrained from even expressing
an opinion in a case where the issues have become moot and academic, there being no more
justiciable controversy to speak of, so that a determination thereof would be of no practical use
or value.47
Nonetheless, courts will decide cases, otherwise moot and academic if: first, there is a grave
violation of the Constitution; second, the exceptional character of the situation and the
paramount public interest is involved; third, when the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar and the public; and fourth, the
case is capable of repetition yet evading review. 48 We find that the presence of the second and
fourth exceptions justified the CA in not dismissing the case despite the termination of Bt
talong field trials.
While it may be that the project proponents of Bt talong have terminated the subject field trials, it
is not certain if they have actually completed the field trial stage for the purpose of data
gathering. At any rate, it is on record that the proponents expect to proceed to the next phase of
the project, the preparation for commercial propagation of the Bt eggplants. Biosafety permits
will still be issued by the BPI for Bt talong or other GM crops. Hence, not only does this case fall
under the "capable of repetition yet evading review" exception to the mootness principle, the
human and environmental health hazards posed by the introduction of a genetically modified
plant, a very popular staple vegetable among Filipinos, is an issue of paramount public interest.
Primary Jurisdiction and Exhaustion of Administrative Remedies
In Republic v. Lacap,49 the Court explained the related doctrines of primary jurisdiction and
exhaustion of administrative remedies, as follows:
The general rule is that before a party may seek the intervention of the court, he should first avail
of all the means afforded him by administrative processes. The issues which administrative
agencies are authorized to decide should not be summarily taken from them and submitted to a
court without first giving such administrative agency the opportunity to dispose of the same after
due deliberation.
Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary
jurisdiction; that is, courts cannot or will not determine a controversy involving a question which
is within the jurisdiction of the administrative tribunal prior to the resolution of that question by the
administrative tribunal, where the question demands the exercise of sound administrative
discretion requiring the special knowledge, experience and services of the administrative tribunal
to determine technical and intricate matters of fact.
Nonetheless, the doctrine of exhaustion of administrative remedies and the corollary doctrine of
primary jurisdiction, which are based on sound public policy and practical considerations, are not
inflexible rules. There are many accepted exceptions, such as: (a) where there is estoppel on
the part of the party invoking the doctrine; (b) where the challenged administrative act is patently
illegal, amounting to lack of jurisdiction; (c) where there is unreasonable delay or official inaction
that will irretrievably prejudice the complainant; (d) where the amount involved is relatively small
so as to make the rule impractical and oppressive; (e) where the question involved is purely legal
and will ultimately have to be decided by the courts of justice; (f) where judicial intervention is
urgent; (g) when its application may cause great and irreparable damage; (h) where the
controverted acts violate due process; (i) when the issue of non-exhaustion of administrative
remedies has been rendered moot; (j) when there is no other plain, speedy and adequate
remedy; (k) when strong public interest is involved; and, (1) in quo warranto proceedings. x x x
(Emphasis supplied)
Under DAO 08-2002, the public is invited to submit written comments for evaluation by BPI after
public information sheets have been posted (Section 7[G]). Section 7(P) also provides for
revocation of field testing permit on certain grounds, to wit:
P. Revocation of Permit to Field Test. - A Permit to Field Test may be revoked for any of the
following grounds:
1. Provision of false information in the Application to Field Test;
2. Violation of SPS or biosafety rules and regulations or of any conditions specified
in the permit;
3. Failure to allow the inspection of the field testing site;
4. Receipt by BPI of new information that the field testing of the regulated article
poses significant risks to human health and the environment;
5. Whether the regulated article was imported, misdeclaration of shipment; or
6. Such other grounds as BPI may deem reasonable to prevent significant risks to
human health and the environment.
Respondents sought relief under the Rules of Procedure for Environmental Cases, claiming
serious health and environmental adverse effects of the Bt talong field trials due to "inherent
risks" associated with genetically modified crops and herbicides. They sought the immediate
issuance of a TEPO to enjoin the processing for field testing and registering Bt talong as
herbicidal product in the Philippines, stopping all pending field trials of Bt talong anywhere in the
country, and ordering the uprooting of planted Bt talong in the field trial sites.
In addition to the TEPO and writ of kalikasan, respondents also sought the issuance of a writ of
continuing mandamus commanding the respondents to: (1) comply with the requirement of
environmental impact statement; (2) submit comprehensive risk assessments, field test reports,
regulatory compliance reports and other material documents on Bt talong including issued
certifications on public consultation with LGUs; (3) work with other agencies to submit a draft
amendment to biosafety regulations; and (4) BPI, in coordination with relevant government
agencies, conduct balanced nationwide public information on the nature of Bt talong field trial,
and a survey of its social acceptability.
Clearly, the provisions of DAO 08-2002 do not provide a speedy, or adequate remedy for the
respondents "to determine the questions of unique national and local importance raised here that
pertain to laws and rules for environmental protection, thus [they were] justified in coming to this
Court."50 We take judicial notice of the fact that genetically modified food is an intensely debated
global issue, and despite the entry of GMO crops (Bt corn) into the Philippines in the last
decade, it is only now that such controversy involving alleged damage or threat to human health
and the environment from GMOs has reached the courts.
Genetic Engineering
Genetic manipulation has long been practiced by conventional breeders of plant or animal to
fulfill specific purposes. The basic strategy employed is to use the sexual mechanism to
reorganize the genomes of two individuals in a new genetic matrix, and select for individuals in
the progeny with the desirable combination of the parental characteristics. Hybridization is the
conventional way of creating variation. In animals, mating is effected by introducing the desired
sperm donor to the female at the right time. In plants, pollen grains from the desired source are
deposited on the stigma of a receptive female plant. Pollination or mating is followed by
fertilization and subsequently development into an embryo. The effect of this action is the
reorganization of the genomes of two parents into a new genetic matrix to create new individuals
expressing traits from both parents. The ease of crossing of mating varies from one species to
another. However, conventional breeding technologies are limited by their long duration, need
for sexual compatibility, low selection efficiency, and restricted gene pool.51
Recombinant DNA (rDNA) technology, often referred to as genetic engineering, allows scientists
to transfer genes from one organism to any other, circumventing the sexual process. For
example, a gene from a bacterium can be transferred to corn. Consequently, DNA technology
allowed scientists to treat all living things as belonging to one giant breeding pool. Unlike other
natural genome rearrangements phenomena, rDNA introduces alien DNA sequences into the
genome. Even though crossing of two sexually compatible individuals produces recombinant
progeny, the term recombinant DNA is restricted to the product of the union of DNA segments of
different biological origins. The product of recombinant DNA manipulation is called a transgenic
organism. rDNA is the core technology of biotechnology.52
The organism that is created through genetic engineering is called a genetically modified
organism (GMO). Since the production of the first GMOs in the 1970s, genes have been
transferred between animal species, between plant species, and from animal species to plant
species. Some genes can make an animal or plant grow faster or larger, or both. A gene
produced by flounder (anti-freeze) was transplanted into salmon so that salmon can be farmed in
colder climates. Many species offish are genetically engineered to speed growth, to alter flesh
quality, and to increase cold and disease resistance. In farm animals such as cattle, genes can
be inserted to reduce the amount of fat in meat, to increase milk production, and to increase
superior cheese-making proteins in milk. Biotechnology has also modified plants to produce its
own pesticide, resist common diseases or to tolerate weed-killing herbicide sprays.53
Despite these promising innovations, there has been a great deal of controversy over
bioengineered foods. Some scientists believe genetic engineering dangerously tampers with the
most fundamental natural components of life; that genetic engineering is scientifically unsound;
and that when scientists transfer genes into a new organism, the results could be unexpected
and dangerous. But no long-term studies have been done to determine what effects GMO foods
might have on human health.54
Genetically Modified Foods
The term GM food refers to crop plants created for human or animal consumption using the
latest molecular biology techniques. These plants are modified in the laboratory to enhance
desired traits such as increased resistance to herbicides or improved nutritional
content.55 Genetic modification of plants occurs in several stages:
1. An organism that has the desired characteristic is identified and the specific
gene producing this characteristic is located and the DNA is cut off.
2. The gene is then attached to a carrier in order to introduce the gene into the
cells of the plant to be modified. Mostly plasmid (piece of bacterial DNA) acts as
a carrier.
3. Along with the gene and carrier a 'promoter' is also added to ensure that the
gene works adequately when it is introduced into the plant.
4. The gene of interest together with carrier and promoter is then inserted into
bacterium, and is allowed to reproduce to create many copies of the gene which
are then transferred into the plant being modified.
5. The plants are examined to ensure that they have the desired physical
characteristic conferred by the new gene.
6. The genetically modified plants are bred with conventional plants of the same
variety to produce seed for further testing and possibly for future commercial
use. The entire process from the initial gene selection to commercial production
can take up to ten years or more.56
Benefits of GM Foods
The application of biotechnology in agricultural production promises to overcome the major
constraints being faced in farming such as insect pest infestation and diseases which lead to
substantial yield losses. Pest-resistant crops could substantially improve yields in developing
countries where pest damage is rampant and reduce the use of chemical pesticides. Crop plants
which have been genetically engineered to withstand the application of powerful
herbicides57 using genes from soil bacteria eliminates the time-consuming and not cost-effective
physical removal of weeds by tilling. The herbicides to which the GM crops are tolerant are
"broad spectrum" weedkillers, which means they can be sprayed over the entire field, killing all
plants apart from the GM crop. Herbicide-tolerant crops include transgenes providing tolerance
to the herbicides (glyphosate or glufosinate ammonium). These herbicides kill nearly all kinds of
plants except those that have the tolerance gene. Another important benefit is that this class of
herbicides breaks down quickly in the soil, eliminating residue carryover problems and reducing
adverse environmental impacts.58
Some plants are genetically engineered to withstand cold climates such as GM strawberries or
soybeans, expressing the anti-freeze gene of arctic flounder, to protect themselves against the
damaging effects of the frost; and GM tobacco and potato with anti-freeze gene from cold water
fish. Crops could also be genetically modified to produce micronutrients vital to the human diet
such as the "golden rice" genetically modified to produce beta-carotene, which can solve Vitamin
A deficiency and prevent night blindness in pre-school children. Other efforts to enhance
nutritional content of plants include the genetic modification of canola to enhance Vitamin E
content or better balance fatty acids, cereals for specific starch or protein, rice for increased iron
to reduce anemia, and plant oils to adjust cholesterol levels. There are also food crops
engineered to produce edible vaccines against infectious diseases that would make vaccination
more readily available to children around the world. For example, transgenic bananas containing
inactivated viruses protecting against common developing world diseases such as cholera,
hepatitis B and diarrhea, have been produced. These vaccines will be much easier to ship, store
and administer than traditional injectable vaccines. 59
Overall, biotechnology is perceived as having the potential to either help or hinder reconciling of
the often opposing goals of meeting the human demand for food, nutrition, fiber, timber, and
other natural resources. Biotech crops could put more food on the table per unit of land and
water used in agriculture, thus resulting in decreased land and water diverted to human uses.
Increasing crop yields and reducing the amount of cultivated land necessary would also reduce
the area subject to soil erosion from agricultural practices, which in turn would limit associated
environmental effects on water bodies and aquatic species and would reduce loss of carbon
sinks and stores into the atmosphere.60
Adverse Health Effects of GMOs
Along with the much heralded benefits of GM crops to human health and environment, there
emerged controversial issues concerning GM foods.
In 1999, it was found that genetically engineered foods can have negative health effects. Based
on scientific studies, these foods can unleash new pathogens, contain allergens and toxins, and
increase the risk of cancer, herbicide exposure, and harm to fetuses and infants. 61 Independent
studies conducted went as far to conclude that GM food and feed are "inherently hazardous to
health."62
A widely reported case is that of the Brazil nut gene expressed in soybean in order to increase
the methionine content for animal feed. The protein was subsequently shown to be an allergen
and the product was never marketed. Genetically modified foods can introduce novel proteins
into the food supply from organisms that are never consumed as foods, which may pose a health
risk. This may elicit potentially harmful immunological responses, including allergic
hypersensitivity.63
A feeding experiment conducted by Dr. Arpad Pusztai also demonstrated that potatoes
genetically altered to produce lectins, natural insecticides, to protect them against aphids,
damaged the animals' gut, other organs, and immune system. Dr. Pusztai found that "the
damage originated not from the transgene and its expressed product but from the damage
caused by the insertion of the transgene, probably due to insertional mutagenesis." 64 If
confirmed, Pusztai's conclusions will reinforce concerns that gene insertion itself may create new
toxins; it will also implicate the toxin commonly used in other genetically engineered crops -
the Bt toxin which, Pusztai says, is also a lectin.65
The use of antibiotic resistance marker (arm) gene, inserted into a plant or microbe, that helps
determine if the foreign gene has successfully spliced into the host organism, is another cause of
grave concern among scientists. These arm genes might unexpectedly recombine with disease-
causing bacteria or microbes in the environment or in the guts of animals or humans who eat
GM food, thus contributing to the growing public health danger of antibiotic-resistance of
infections that cannot be cured with traditional antibiotics (e.g., new strains of salmonella, e-coli,
campylobacter and enterococci).66However, recent advances in genetic engineering indicate that
use of such selection markers is likely to diminish with the anticipated development of alternative
types of marker genes.67
Increased cancer risk is another critical issue in the consumption of GM foods. A growth
hormone genetically modified to stimulate milk production in cows was found to elevate levels of
IGF-1 (insulin-like Growth Factor-1, identical versions of which occurs in cows and humans) in
cow's milk by 80%. IGF-1 is reported to be a key factor in prostate cancer, breast cancer and
lung cancer.68 Dr. Samuel Epstein of the University of Illinois warned of the danger of high levels
of IGF-1 contained in milk cows injected with synthetic bovine growth hormone (rBGH), which
could be a potential risk factor for breast and gastrointestinal cancers.69
Glyphosate, the active ingredient in Monsanto's Roundup® herbicide, has been found to worsen
modern diseases. A report published in the journal Entropy argues that glyphosate residues,
found in most commonly consumed foods in the Western diet courtesy of genetically engineered
sugar, corn, soy and wheat, "enhance the damaging effects of other food-borne chemical
residues and toxins in the environment to disrupt normal body functions and induce disease."
Another research demonstrated a connection between increased use of Roundup with rising
autism rates in the US.70
Adverse Effects of GMOs to the Environment
Genetically modified crops affect the environment in many ways such as contaminating non-
GMO plants, creating super weeds and super pests, harming non-target species, changing soil
microbial and biochemical properties, and threatening biodiversity.
There are two primary types of technology so far deployed: insect resistance (Bt) and herbicide
tolerance (HT). Both have drastic modes of action to kill the target species at high
efficiency. Bt crops contain a toxin lethal to certain insects, and Bt sprays have been used by
organic farmers as a last option to deal with certain pests like the corn borer. It is feared that
genetically modified Bt crops will speed up resistance to Bt, thereby rendering the organic spray
ineffective.71 Lab and field tests also indicate that common plant pests such as cotton bollworms,
living under constant pressure from GE crops, will soon evolve into "superpests" completely
immune to Bt sprays and other environmentally sustainable biopesticides. 72 In the case of HT,
the technology involves the combined use of a chemical herbicide and a GM plant. The herbicide
is generally a broad spectrum herbicide (commonly glyphosate or glufosinate) which kills weeds
while leaving the crop plant alive as it is genetically engineered to be resistant to the herbicide.
The herbicide acts to inhibit an essential enzyme that is found in all plants and as a result is able
to eliminate all weeds whereas most conventional herbicides are selective in their action and
target a limited number of weeds. Concern has been raised regarding over-reliance on use of
one or two herbicides in increased amounts over time which leads to the emergence of herbicide
resistant weeds. Also, the transfer of an herbicide-resistance gene into a weed can convert it into
a superweed. Pests and weeds will emerge that are pesticide or herbicide resistant, which
means that stronger, more toxic chemicals will be needed to get rid of the pests.73
It is a well-accepted fact that genetically engineered plants can move beyond the field sites and
cross with wild relatives.74 It is by nature a design of plants to cross pollinate to spread genes
further afield. Maize, oil seed rape, sugar beet, barley, among others, are wind and insect
pollinated, allowing pollen to travel large distances. In GM crop fields, pollen drift and insect
pollination create obvious problems for nearby non-GM or organic crops.75 GM maize could
cross-pollinate neighboring non-GM or organic maize crops. Maize pollen can travel at least 500-
700 meters and still be viable and distances of several kilometers have even been
reported.76 But many experiments showed varying results and actual cross-pollinations were
observed in Mexico up to 200 meters only, while in Oklahoma it was 500 meters. In crop species
that are outcrossers, many environmental factors influence the maximum pollination distance
such as the size of pollen grains, the humidity in the air, and the wind speed.77Brinjal is usually
self-pollinated, but the extent of cross-pollination has been reported as high as 48% and hence it
is classified as cross-pollinated crop. The cone-like formation of anthers favors self-pollination;
but since the stigma ultimately projects beyond the anthers, there is an ample opportunity for
cross-pollination. The rates of natural cross-pollination may vary depending on genotype,
location, and insect activity. The extent of outcrossing has been reported from 3 to 7% in China
and from 0 to 8.2% (with a mean of 2.7%) at Asian Vegetable Research Development Centre;
however the Indian researchers have reported 2 to 48% outcrossing in brinjal varieties in India.
Outcrossing primarily takes place with the help of insects. 78
The StarLink incident is also a widely reported GM fiasco. In June 2000, Starlink, a genetically
modified yellow corn which contains the pesticide Bt in every cell, was found in white corn tortilla
chips in Florida, USA. Starlink had been approved for animal feed but not for human
consumption due to concerns about dangerous allergic reactions. The Starlink incident is often
cited to illustrate how difficult it is to keep genetically modified crops from spreading. 79
This gene flow to wild species is particularly alarming to environmentalists. The wild species
from which our agricultural plants originate are an important genetic resource for further plant
breeding if, for example, there is a requirement for improved resistance to climate change or
plant pests. Future plant breeding could be jeopardized if transgenes spread into these
resources. Similarly, agriculture in the centers of origin could be permanently damaged if
transgenes spread into regional landraces. 80 Invasive species can replace a single species or a
whole range of species, and they can also change the conditions within ecological systems.
Crossing can cause losses in the genetic information of the original species, a reduction in
genetic diversity and an ongoing incremental change of genetic identity in the original plants. It is
hard to predict which species will become invasive. 81 Indeed, GM crops could threaten the
centers of crop biodiversity or outgrow a local flora to the detriment of native species. 82
Bt gene in genetically modified crops might be toxic to non-target organisms that consume it.
When Bt corn sheds its pollen, these are cast into the wind, dusting nearby plants and trees.
Concern has been expressed about the potential toxicity of the Bt toxin in corn pollen to the
monarch butterfly because initial laboratory studies showed increased mortality in larvae.
However, in another study it was believed that it is unlikely that a significant risk to those
butterflies exists.83
On the effect of transgene crops on soil, one study investigated CrylAcc and CpTI proteins and
their effects on microbial properties and enzyme activities. Results showed that there was
persistence of said proteins in soil under 4-year consecutive cultivation of transgenic cottons.
Soil microbial biomass carbon, microbial activities, and soil enzyme activities (except urease and
phosphodiesterase) significantly decreased in soil under transgenic cottons. 84
In another review, it was stated that the direct effects of the plant that has been modified is of the
most concern since the introduction of transgenic proteins for pest and disease resistance can
involve the production of chemical substances that are potentially toxic to non-target soil
organisms, including mycorrhizal fungi and soil microfauna that are involved in organic matter
decomposition. Experimental studies have shown that the transgenic proteins Bt crystal toxin
and T4 lysozyme, though used to prevent insect damage to the above ground plant parts, are
not only present in root exudates but that they maintain biological activity after entering the soil.85
As to the herbicide glyphosate, recent studies revealed its negative effects on the soil, which
include compaction and resultant runoff, the killing of beneficial microbes and bacteria, and the
exhaustion of necessary minerals and nutrients that plants require. It was found that glyphosate
"locks up" manganese and other minerals in the soil so that they can't be utilized by the plants
that need them, and that it is toxic to rhizobia, the bacterium that fixes nitrogen in the soil. There
is likewise evidence showing that glyphosates can make their way to groundwater supplies. 86 In
a study which tested the effects of the herbicide Roundup on six species of larval amphibians
from North America, it was demonstrated that when we "use realistic exposure times and the
frequently occurring stress of predators found in natural ecologic communities, one of our most
widely applied herbicides (Roundup) has the potential to kill many species of amphibians." At the
same time, the study noted that Monsanto Corporation has recently released "an additional
formulation of glyphosate (Roundup Biactive), which contains a different (but unspecified)
surfactant that is reported to be less toxic." 87
Evidence of Damage or Threat of Damage to Human Health and the Environment
Both petitioners and respondents submitted documentary evidence consisting of reports of
scientific studies and articles in support of their respective positions on the benefits and risks of
GM plants.
Further, the parties presented their respective expert witnesses who testified on the allegations
raised in the petition concerning damage or threat of damage to human health and the
environment resulting from the conduct of Bt talong field trials in the Philippines. The CA
conducted "hot tubbing," the colloquial term for concurrent expert evidence, a method used for
giving evidence in civil cases in Australia. In a "hot tub" hearing, the judge can hear all the
experts discussing the same issue at the same time to explain each of their points in a
discussion with a professional colleague. The objective is to achieve greater efficiency and
expedition, by reduced emphasis on cross-examination and increased emphasis on professional
dialogue, and swifter identification of the critical areas of disagreement between the experts. 88
On November 20, 2012, the parties' expert witnesses testified in a hot tub hearing before the
chairman and members of the CA's Special Thirteenth Division. Dr. Chakraborty, Dr. Medina and
Dr. Malayang were presented by the petitioners while Dr. Davies, Dr. Halos, Dr. Ebora and Dr.
Cariño appeared for the respondents.
The following are summaries of the expert witnesses' judicial affidavits:
For Petitioners
DR. DAVIES, Professor of Plant Physiology at Cornell University, Jefferson Science Fellow
serving as senior science advisor on agricultural biotechnology in the US Department of State,
and editor for plant physiology for McGraw-Hill Encyclopedia of Science and Technology.
In his review of agricultural biotechnology around the world, he has not encountered any
verifiable report of a field trial of any GM crop that caused damage to the environment and to
human health. This involves more than 25,000 field trials in 20 years with crops such
as Bt eggplant, Bt cotton, Bt corn, and others. The same applies to the commercial cultivation
of Bt crops, which have been grown in ever increasing quantities worldwide for 16 years and
now comprise the majority of the world acreage of maize and cotton.
A recent European Union (EU) report which concludes that more than 130 EU research projects
covering a period of more than 25 years of research involving more than 500 independent
research groups, show that consuming foods containing ingredients derived from GM crops is no
riskier than consuming the same foods containing ingredients from conventional crops. The
World Health Organization (WHO), American Medical Association, US National Academy of
Sciences, European Food Safety Authority (EFSA) all have come to the same conclusion.
GMOs have been proven safe as conventionally-bred crops in animal studies. A small number of
poorly done studies purportedly claiming negative effects, should be viewed with great caution
and have been highly criticized for their veracity by the overwhelming majority of highly
respected scientists. Many hundreds of studies show no harmful effects. To date, not a single
rigorous study of GM foods in animals has revealed any adverse effect; not a single case of
allergy, illness, cancer, or death have been shown to be associated with foods derived from GM
crops, despite the fact that they have been consumed by Americans for 16 years.
Recent studies indicate that Bt crops enhance the ecological diversity in the areas surrounding
those where Bt crops are grown. Over a period of 13 years, cultivation of Bt cotton in China
results in an increase in insect diversity and abundance and a decrease in crop damaging
insects not only in Bt crop fields but also in surrounding non-Bt fields.
GM crops deliver significant yield increases, result in less exposure to pesticides, improve food
security worldwide, protect against devastating crop losses and famine, improve nutrition, and
some GM crop techniques help combat climate change. 89
DR. HALOS, Ph.D. in Genetics, University of California Berkeley, B.S. Agriculture, Major in
Agronomy (Plant Breeding), UPLB, and served as Instructor, Associate Professor, Chief Science
Research Specialist, Research Director at UPLB, UP Diliman, De La Salle University, Forest
Research Institute now Ecosystems Research and Development Bureau of DENR and the
Biotechnology Coalition of the Philippines.
From her research, she gathered that the protein product of the Bt gene CrylAcc in Bt cotton that
is also in Bt eggplant has been found safe by many food and environmental safety regulatory
agencies such as those in Australia, New Zealand, USA, Canada, Brazil, China, India, Mexico,
Argentina, South Africa, Japan and EU.
Since 2002, BPI has granted 95 biosafety permits for field trials. Of these 70 field trial permits
were for Bt corn, cotton and eggplant. No adverse effect of any of these Bt crop field trials have
been reported. No report of adverse effects of Bt crop field trial exists. All claims of adverse
health and environmental effects of Bt crops has not been scientifically validated. The yearly
expansion of GM crop areas in both the developing and industrialized countries is an attestation
of the preference of farmers and the economic benefits that accrue to them.
GM crops have positive environmental impact. Currently commercialized GM crops have
reduced the adverse impacts of agriculture on biodiversity. The use of Bt crops has significantly
reduced the use of pesticides, and also increased farmer incomes. 90
DR. EBORA, Ph.D. in Entomology, Michigan State University; B.S. Agriculture and M.S.
Entomology (Insect Pathology/Microbial Control), UPLB; Post-graduate trainings in microbiology
and biotechnology, Osaka University, Japan, and Intellectual Property Management and
Technology Transfer, ISAAA AmeriCenter, Cornell University, USA. Director, and Research
Associate Professor, National Institute of Molecular Biology and Biotechnology (BIOTECH),
UPLB; Philippine Coordinator of the Program for Biosafety Systems; former Executive Director,
Philippine Council for Industry, Energy and Emerging Technology Research and Development,
DOST; former Chair, Biosafety Committee, DOST; and was a Member of the Institutional
Biosafety Committees of UPLB and International Rice Research Institute (IRRI); and was
extensively involved in the isolation, bioassay or efficacy testing and development of Bt as
microbial insecticides for the control of Asian corn borer and mosquito larvae at BIOTECH.
The contained field trial experiments, among others, were designed to address concerns on
cross-pollination or horizontal gene transfer, pollination distances, harm to beneficial organisms,
and development of insect resistance. To prevent cross-pollination, an isolation distance of 200
meters from other areas where eggplants are grown or wild relatives are present, was observed,
and with five (5) rows of non-transgenic eggplants that serve as pollen trap plants. As to the
flight distance of honeybees reaching 4 kilometers, what was not mentioned is the viability of
pollen after it was shed and travelled at a certain distance. Numerous literatures have shown
that isolation distances much less than 200 meters is sufficient to prevent cross-pollination. Two
studies are cited: Sekara and Bieniasz (2008) noted that cross-pollination at a distance of 50
meters was nonexistent; and the Asian Vegetable Research and Development Center (AVRDC)
indicated that eggplants produce perfect flowers which may be cross-pollinated but self-
pollination is more common, the extent of natural crossing depends upon insect activity and this
can be avoided by isolating each variety by 20 meters or with another tall flowering plant. The
isolation distance imposed by DA-BPI is 1 Ox the recommended isolation distance; the 200
meters distance was found sufficient for pure seed production in India (the same
recommendation by Chen [2001] of AVRDC foundation for seed production purity standards);
field studies in 2 locations in India have shown that at a distance beyond 30 meters no more
outcrossing could be detected. Taking all these data into account, the 48% outcrossing being
raised by petitioners is most likely for adjacent plants and therefore not a valid argument for the
on-going field trials.
The Bt talong will not directly affect beneficial organisms like pollinators, predators and parasites
of insect pests because it is toxic only to caterpillars or insects belonging to Order Lepidoptera
(butterfly and moths). The selective toxicity of Bt protein in Bt talong is partly due to the fact that
the gut physiology of these insects is very different from caterpillars, and not all caterpillars are
affected by it. There is a significant number of literature on Bt protein's selectivity and specificity.
As to the development of insect resistance, this is not possible during the multi-location field
trials for Bt talong because of low selection pressure and limited exposure of the insect pest to Bt
talong. Insect resistance is not unique to GM crops as it is a commonly observed biological
reaction of insect pests to control measures like insecticides. In the event Bt talong is approved
for commercialization and will be widely used by fanners, this concern could be addressed by
insect resistance management (IRM); an IRM strategy should be required prior to the
commercial release of Bt talong.
There is no compelling reason to stop the field trials; on the contrary they should be allowed to
proceed so that scientists and researchers will be able to generate valuable data and information
which will be helpful in making informed decisions regarding the usefulness of the technology. 91
For Respondents
DR. MALAYANG III, Ph.D. in Wildland Resource Science, University of California at Berkeley;
M.A. Philosophy, M.A. International Affairs (Southeast Asia Studies major in Economics), Ohio
University; AB Philosophy, UP Diliman; former Undersecretary of Environment and Natural
Resources; served as Environmental Science representative in the National Biosafety
Committee of the Philippines and participated in the drafting of the Philippines Biosafety
Framework; and student, lecturer and advocate of biodiversity, food security, biosafety and
environmental policy.
He is concerned with how GMOs are being introduced for commercial-scale use (as against
being used for academic research) in the Philippines on the following grounds: (a) how they
might contaminate the indigenous genetic resources of the country; (b) how they may cause an
imbalance of predator-prey relationships in ecosystems, so that certain species might dominate
ecological niches and erode their biodiversity and ecological stability; (c) how they may erode
the ability of farmers to control their genetic resources to sustain their cropping systems; and (d)
how much are present biosafety protocols able to safeguard the long-term ecological and
economic interests of the Philippines as a particularly biodiversity-rich country and which is,
therefore, highly sensitive to genetic pollution; to the extent that its biodiversity is its long-term
equity to advances in biotechnology, the most robust measures must be taken so that such
resources will not be lost.
Being a highly biodiversity-rich country, biosafety measures in the Philippines must be adopted
using a 3-stage approach: Stage 1 - Develop criteria for biosafety measures; meaning, first,
adopt a set of standards for determining the level of robustness of biosafety measures and
protocols that would be acceptable in the particular case of the Philippines; include required
scoping and internal and external validity requirements of impact and safety assessments; Stage
2 - Using the criteria produced in Stage 1, develop biosafety measures and protocols to be
adopted in the Philippines; and Stage 3 - Apply the protocol with the highest rigor.
Biosafety must be a public affair involving a broad spectrum of the Filipino state rather than its
considerations being restricted only to specific professionals and sectors in the country;
biosafety must be based on an enactment of Congress and open to challenge and adjudication
against international laws; provisions must be made to make it a crime against humanity to
recklessly erode and weaken genetic resources of our people. 92
DR. MEDINA, Ph.D. in Environmental Biology, University of Guelph, Canada; M.S. (Insect and
Plant Ecology) and B.S. Agriculture, UPLB; National Coordinator of MASIPAG; served as
resource person in more than a hundred trainings and seminars, both local and abroad; served
as member in international agricultural assessment sponsored by Food and Agriculture
Organization (FAO), United Nations Environment Program (UNEP), WHO, and the World Bank;
worked on a project for development of resistance to corn borer in 1981 at the Institute of Plant
Breeding in UPLB, and served as researcher and later Associate Professor of Environmental
Management of the UP Open University.
Based on her studies and extensive experience, the Bt talong field testing poses the following
risks or hazards: (a) While natural Bt sprays used in organic farming have little effect on non-
target organisms because the bacterial 'pro-toxin' is in an inactive state and only becomes toxic
when processed and reduced in the gut of certain (targeted) species of insect larvae, in
contrast, Bt plants contain an artificial, truncated Bt gene and less processing is required to
generate the toxin because the toxin is already in its active form. It is therefore less selective,
and may harm non-target insects that do not have the enzymes to process the pro-toxin, as well
as the pests for which it is intended; (b) Bt proteins from natural Bt sprays degrade relatively
quickly in the field as a result of ultraviolet light and lose most toxic activity within several days to
two weeks after application. In Bt crops, however, the Bt toxin is produced by the internal system
of the plants thus non-degradable by mere exposure to sunlight and generated throughout the
entire lifespan of the plant; (c) Bt talong can also affect the environment by harming important or
beneficial insects directly or indirectly. Genetically engineered Bt eggplant, like other Bt crops,
could be harmful to non-target organisms if they consume the toxin directly in pollen or plant
debris. This could cause harm to ecosystems by reducing the numbers of important species, or
reducing the numbers of beneficial organisms that would naturally help control the pest species;
(c) The evolution of resistance to Bt crops is a real risk and is treated as such in ecological
science throughout the world. If enough individuals become resistant then the pest control fails;
the pest becomes abundant and affects crop yield. Granting the pest control practice is
successful, it may also simply swap one pest for another, a phenomenon known as secondary
pest outbreak. Several studies have shown that other pest insects are filling the void left by the
absence of the one (or very few) insect pests that Bt crops target, and this is now the problem
with Bt maize.
Eggplant is 48% insect pollinated thereby any field release or field testing of genetically
modified Bt talong will eventually lead to contamination of non-genetically modified eggplant
varieties. Insects, particularly honeybees, can fly as far as 4 kilometers and therefore the 200
meters perimeter pollen trap area in the confined field testing set by BPI is not sufficient. And
once contamination occurs, genetic cleanup of eggplant or any other plant is impossible.
Moreover, intra-specific gene flow from Bt talong to other varieties and populations of eggplants
should be examined, as cultivated eggplant (Solanum melongena) can cross breed with feral
populations of S. melongena, and it is possible that cultivated varieties can revert to wild
phenotypes. Additionally, there is likely to be natural crossing between Bt talong and wild
relatives. Hybridization with perhaps as many as 29 wild relative species needs to be evaluated
carefully and the consequences of any hybridization that occurs needs to be evaluated.
In 2010, the Minister of Environment and Forests of the Government of India, in his decision for
moratorium of Bt Brinjal, listed potential contamination of eggplant varieties as one of the
reasons why the release of Bt Brinjal was not allowed. Dr. Andow of the University of Minnesota
also published an 84-pages report on the Environmental Risk Assessment of Bt Brinjal, and
among his conclusions is that several environmental risks were not considered and nearly all the
risk assessment done were inadequate. He concluded that until the risks were understood or
managed, there seems to be little reason to approve Bt Brinjal release.93
DR. CHAKRABORTY, Ph.D., M.S. Biochemistry, B.S. (Honors in Chemistry), Calcutta
University; Molecular Biologist, presently Principal Scientist and Head of the Gene Regulation
Laboratory in the Council of Scientific and Industrial Research - Indian Institute of Chemical
Biology (CSIR-IICB); Member, Governing Body and Executive Committee of the state council of
Biotechnology, Government of West Bengal and Chairman of the Biotechnology group of the
state council of Science and Technology, Government of West Bengal; Visiting Professor of the
National Institute of Science, Technology and Development (CSIR-NISTAD); citizen of India and
resident of Kolkata, India.
GMO is a classic example of "paradoxes of consequences", where human actions have
unintended consequences, which are in direct opposition to what was intended. The difference in
controlled laboratory condition and standards, and real life open field level micro and macro-
environment pushes the advantage towards the target and non-target living system, with time.
The pest resistance to Bt toxin and development of herbicide tolerance (HT) in weeds is just a
matter of time. The decade long experience in Bt and Ht genes amply proves this point. If we
ignore this now - we are manufacturing a global environmental disaster - which will be a crime
against humanity. There is no way to recall these GMO from the environment.
Even the short term benefits of GM agriculture are not scale neutral, or location-independent. It
will help the monopoly agribusiness and the expenses of monopolistic competition or
cooperative organic farming. Hot climate and rich biodiversity is detrimental towards the
effectiveness of Bt constructs, and helpful towards unintended gene flow. Moreover, the genetic
manipulation is no way fail safe or exact. Shotgun techniques are being adapted, aided by
focused laboratory based screen of traits - rather than the host or the full natural product. The
GM labeling is avoided to cover up this major fault.
The tendency to avoid the available risk assessment, and test is very clear in the GM
agribusiness. Before going ahead with spread of this technology, even in a batter form, the
foremost task is to establish rigorous test and assessment procedures. There are excellent
available tools of preteomics, transcriptomics, and metabolomics for detailed compositional
analysis in our hand to do this. Please ask, why they are not being employed? In fact, there is
not a single centre to test GM products on behalf of the corporate GM Agribusiness house. Thus,
low level, long term toxicity of GM foods are yet to be tested. I believe the time has come to
establish a standardization facility to carry out such test facility in any country before giving
permission to GM trial or cultivation.94ChanRoblesVirtualawlibrary
The relevant portions of the "hot-tub" hearing held on November 20, 2012, are herein
reproduced:
Dr. Cariño:chanRoblesvirtualLawlibrary
x x x This is to clarify something with the BT Talong and the BT Talong has its substance. It is
not supposed to be consumed at the moment still under field trial, so it is not supposed to be
eaten at the moment. It has not been released for food nor for feed and so in the context of a
confined field test, it has supposed to have it out in the field in a very controlled manner and any
produce that comes out from that area is supposed to be destroyed or kept from further safety
and analysis only.
Chairperson:chanRoblesvirtualLawlibrary
So, actually, there is no full scientific certainty that it does not cause any harm pertaining to
health?
Dr. Cariño:chanRoblesvirtualLawlibrary
BT Talong per se, has hot been fully evaluated yet that is why it is undergoing trials. If reporting
of the BT toxin in BT Talong is CrylAcc, there are numerous studies that had been actually
published on relative safety of CrylAcc protein and it is actually considered as an additional
protein and the various reviews can be seen in the OECD Digest of risk assessments
on CrylAcc protein. Alternatively, if you are looking at the possibility of harm coming from the
introduced protein as yet, we have not done a full blown assessment of it as of the moment. But
we look at the protein sequence and with a comparison of its sequence with other sequences in
the data basis to see if it is similar to this amino acid sequence of other known toxins and, so far,
I have actually ... in my affidavit, I have actually seen personally that it is not closely related to
any of the known toxins that are found into its system.
Chairperson:chanRoblesvirtualLawlibrary
So, in effect, we can not really say that BT Talong is perfectly safe for human consumption?
Dr. Cariño:chanRoblesvirtualLawlibrary
Right now it is not meant to be consumed by human at this point. Let me just clarify one point.
When any GM material is supposed to be introduced for food and for feed and before it is
actually utilized for life skill production, it goes through several steps. The first step is actually the
"lab", laboratory work and it is actually tested in this clean-houses, rolled-out confined limited
field test and then it goes to butyl abyss of field tests where it is like generating more and more
informations. We are still early on in this pathway, so we are only in the confined field test and, at
the moment, the thing is that it is still being tested. The focus is on its efficacy after doing a
preliminary assessment of the possible pathological and ecological effect, and that is the
pathway that has been recommended by so many academics as well as scientific institutions as
well. And, that has been a tract followed by almost all the genetically modified crops that is being
introduced in the market today, but at the moment BT Talong is not yet a commodity. It is not yet
being evaluated as a commodity.
Chairperson:chanRoblesvirtualLawlibrary
So, no one in this country has yet eaten this BT Talong?
Dr. Cariño:chanRoblesvirtualLawlibrary
No, it has not been eaten, as far as I know. Even in India it has not been consumed by human
beings because it has not been introduced as a commodity.
Chairperson:chanRoblesvirtualLawlibrary
But what is the ultimate purpose of growing BT Talong? It is not for human consumption, of
course?
Dr. Cariño:chanRoblesvirtualLawlibrary
If it passes the safety assessments. That there is always a peak condition that, if it would not to
be evaluated in a step of the way much like to evaluate any new product that is coming into the
market evaluation, goes on a step-by-step and at least day-to-day basis.

Dr. Davies:chanRoblesvirtualLawlibrary
Your Honor, may I interject, may I suggest with your permission? I would just like to make a little
bit of explanation.
Chairperson:chanRoblesvirtualLawlibrary
Proceed.
Dr. Davies:chanRoblesvirtualLawlibrary
I would like to address "BT" as a compound which is distinct from a plain in "Talong". First of all, I
think of the name BT toxin is very fortunate. It is really a protein. A protein is an essential
constituent of life. It is an essential constituent of our food. In the human body, and in the body of
other animals, this protein is under the same as any other protein in food. It has no effect on the
human body. This has been shown for many, many years, knowing BT Talong but BT has been
a constituent of "maize" in commercial production for 16 years.
xxxx
Dr. Davies:chanRoblesvirtualLawlibrary
x x x So it has been in corn for 16 years after substantial trials. It has been consumed by
Americans in corn products and by any other people who in[g]est American maize corn products
x x x. There is not a single case of illness or toxicity or allergenicity that can be or that has been
associated with this protein and, therefore, any food containing this protein has been declared by
authorities in all the countries that was mentioned by my colleagues, including the European
Union and the United States x x x to be as safe as any food derived from the same plant species
not containing this gene. I hope that explains a little bit about what it is.
Chairperson:chanRoblesvirtualLawlibrary
Are you aware of a study, Dr. Davies, released on September 20 of this year, saying that
Monsanto's genetically modified corn is linked to cancer?
Dr. Davies:chanRoblesvirtualLawlibrary
Yes. Are you referring, your Honor, to a publication by a French Scientist named Gilles-Eric
Seralini? I think this is one of the publications by Seralini's group. Dr. Seralini's work has been
refuted by International committees of scientists...
xxxx
Dr. Chakraborty:chanRoblesvirtualLawlibrary
Your Honor, may I butt in? It is wrong that proteins can not be toxins. Think about the snake
venoms. They are poisons, so whether it is protein or not that is not the question. So proteins
obviously venoms and proteins and enzymes and they are poisons so protein can be a poison
so that is now the point at all to be considered. The second thing is, yeah, low level toxins long
term in[g]estion of this BT toxin in human or in any other animal have not been tested. So that is
true so we do not know direct consumption of this, because notice have been turned down, that
is the objective fact. The third point is about the "American Corn", and if I can give you such
anecdotes, "American GM Corn" are not labelled, how do you know that? What is its effect?
What is its toxicity? And, obviously, there are more than a hundred of papers showing and
published in very good journals. I can give many references which have shown the detrimental
effect of BT Toxin.
xxxx
Chairperson:chanRoblesvirtualLawlibrary
But before having this BT talong scheduled and allowed for field testing, is it not proper that it
should be first determined whether this food product is really safe for eating or not?
Dr. Cariño:chanRoblesvirtualLawlibrary
There is an initial assessment that is generally done and according to the Codex Alimentarius of
the WHO, the thing that you do at this early stage of development is to compare the sequence of
the protein that is being introduced with published sequence of allergens, as well as toxicants
and toxins. So that has been done. Then you have to look for instability under heat conditions
because there is seldom do we heat grow eggplants, so is it stable under heating. Is it stable in
the presence of digestive juices? And, if the answer is "yes", there is at least fair certainty, a fair
assurance that it is likely to be safe but then you start thinking of what other component not
present in the product, does this. For example, any product that we consume today has
something that is bad for you, otherwise, you will not see it right now. Otherwise all the different
herbivores will be eating it up, right? It will be extinct if it does not have anything to protect itself
and, so, the thing is one, to quantify how much of that has changed when you lead the genetic
modification. So "Talong" has been known to have Solanine and glycoalkaloids whose level well
have to quantify. We have not done that yet. They have not submitted the data for that and this
as secondary metabolize whose relative concentration will change depending on the
environment to which you actually place the system.
Dr. Chakraborty:chanRoblesvirtualLawlibrary
x x x In india, we have a very bad experience x x x in location field trial with the BT Cotton. You
known that BT Cotton was introduced in India through the back door black market entry. During
the field trial, some of those seeds were taken out and given to the farmers for commercial
cultivation to black market. Monsanto goes well, Monsanto's BT Cotton, like Monsanto, did not
sue now apparently sue the company and they compelled the government that farmers wanted
those things and there was high ... how they pressurized the government. Now, in case
of BT cotton is one thing, but BT Eggplant is completely a different thing. That is why [the]
Supreme Court in India has taken a very strong stand and, now, the parliamentary committee in
India. The Supreme Court has also taken steps stand with the field trial. The first thing in field
trial we had to see that whether there is a definite need of this kind of intervention, because the
eggplant is a very common vegetable in this part of the world. There are so many hundreds of
varieties here, these are the origins of these varieties of this kind of vegetable. It is cheap. It is
available everyday. So why you go on changing if there is no crisis in cultivating the eggplants at
present. Therefore, when you give it to this patented seeds technology, its prices will increase,
lot of restrictions had to be deal. So, who will consume this high price eggplant. Many will be
exported, that was why the proponents are looking into it. But, basically, that is the thing that in
case of BT Brinjal, neighbor partisan is being given. There is a moratorium in India from the
Supreme Court and from the government side on field trial of BT Brinjal. Now, if x x x
the BT Eggplant is being taken to the Philippines, we guess, to get in as a bypass, and who will
guarantee that it will not go to the farmers?
xxxx
Justice Antonio-Valenzuela:chanRoblesvirtualLawlibrary
And, I was wondering in the conduct of the tests, the field testing x x x what would be the effect
of the planting .... of the existence of the genetically modified organism, for example, on insects,
on the soil, on the air? And then I was thinking, does this have this particular protein that result[s]
due to the genetic modification? Is it ... how is it expelled, for example how does it go into the
environment? Or, on the other hand, how does it go inside and out of human system so that
does it disintegrate or is it just there forever? I am very curious, sir. You have to educate me.
Dr. Davies:chanRoblesvirtualLawlibrary
x x x Okay, the DNA is in every cell of the eggplant and, so, a very small amount to protein
produced by each cell will be this BT protein. It does not get into the environment in general. A
very small amount might be in the pollen or in the leaves that fall to the ground but it has been
shown to be broken down in the soil by organisms so it will not exist in the environment. The only
way that it is going to get into animals or insects is if they eat the fruit and this is what an insect
that the "talong" fruit and shoot borer will be trying to. But, if it eats it, it reacts with its intestine so
that they become toxic to the caterpillar but this is very specific to the digestive system of the
caterpillar. It does not affect bees. It does not affect animals. It does not affect humans.
xxxx
Dr. Davies:chanRoblesvirtualLawlibrary
At the scientific level, it gets changed by alkalinity of the insect gut and reacts with specific
receptors of the cells of the walls of the insect gut. But, this is very specific to the gut of these
insects namely the "Lepidoptera" and some "coleoptera" which are the butterflies and the beetles
but it will only affect if they try to eat the plant. Now, you are asking us if what is the effect on the
environment. x x x I would like to cite x x x a recent paper published in the journal "Nature" x x x
the most prestigious scientific journal in the world, x x x published in "Nature" in June this year
and this is the result of a study of "insects" in BT Cotton fields in China in 17 locations for 14
years of a long period study. And these scientists revolt that they show a marked increase in the
abundance of three types of generalist arthropod predators (ladywings, lacewings and spiders)
and a decrease in abundance of aphid pests associated with widespread adoption of Bt cotton.
And they are referring to China and they conclude that such crops, x x x BT crops, can promote
beneficial control services in agricultural landscapes. And, it also showed that these effects
extend beyond the field. So, essentially x x x they found that there were more insects than in
conventionally grown cotton and the insect diversity was greater surrounded than being
detrimental to an agriculture ecosystem such BT cotton falls beneficial.
Dr. Chakraborty:chanRoblesvirtualLawlibrary
May I interject, your Honor. Now he is citing one paper they are. But in "Nature," there was
another news article, "Battlefield". One stream ecologist in United States itself, in a university,
she has studied the effect of growing BT Corn in the field and what is the effect on the stream
ecology, the west water, what is happening to other insects, insects in which it is getting
that BT toxin will not go. Yes, she has found that stream ecology...
xxxx
Dr. Chakraborty:chanRoblesvirtualLawlibrary
Why was it published in "Nature" when that stream ecologist from Loyola University Chicago in
Illinois published that paper, published that article in PNAS or Proceedings of the National
Academy of Sciences, a prestigious journal? Now, they have to desert her. She was abused, so
her file was taken out. So people started e-mailing, threatening her. So "Nature" has to publish
that. How dirty the field has become so they entitled it "Battelfield." If anybody produces any
evidence that BT Toxin or GM Technology is doing any harm to the environment then it will be
battered by the entire English lobby so there is worst the situation. But National Academy of
Sciences in United States has taken a strong decision and, in last year, there were six
publications that published where strong evidences are being produced about the environmental
and ecological damage cause[d] by this technology. So, that is the case.
Dr. Davies:chanRoblesvirtualLawlibrary
Can I respond to that, your Honors?
Dr. Malayang:chanRoblesvirtualLawlibrary
I think Filipinos should be able to talk also here.
Chairperson:chanRoblesvirtualLawlibrary
Can we give a chance to Dr. Malayang?
Dr. Malayang:chanRoblesvirtualLawlibrary
x x x My concern is on the process and participants in vetting the safety of GM crops, not
necessarily the intricacies of the science involved in genetic modification per se which, I think our
international friends, would like to focus on. x x x
One, I am concerned with the fallibility of technology, x x x even if it is much founded on or
produced from the most robust sciences, a technology could fail to be as useful as it was
intended or its use lead to an [unintended harm to humans and the environment. This is so
because science, by nature, as many scientists will agree, is very probabilistic rather than
absolutist. Many cases of common knowledge illustrate this point. May I just refer, for the Court's
notice for, First, the Nuclear Power Plants in Japan x x x. The best science and the best
technology did not necessarily translate to absolute safety.
Second example, the Union Carbide Plant in Bhopal, India. It was among the most advanced
production ton at its time, yet, we know what happened. x x x Union Carbide's [hurry] to set up a
plant to take advantage of a large pesticide market in India to help the country's farmers led to a
massive and deadly safety failure.
The Third example is the green revolution, x x x involves, however, the wide [use] of synthetic
chemicals for fertilizer and pesticides that were [at] the time hailed as wonder technologies.
Many scientists in the world at that time argued for their wider use but they later turned out to
harm people, soils and water. They prove good then bad, so bad that scientists today are using
their ill effects as justification for adopting alternative technologies to get us out of the synthetic
chemical regime in agriculture.
And finally, the most common example would be the unintended effects of medicine. x x x
Medicines are technologies intended to do good but, with even the best science and the vetting
processes using rigid safety and risk assessment methods, they still could cause side effects
entirely undesired and many of which can cause chronic or acute threats to human life. This
includes the use of "DDT" that was used to control lice among soldiers after the II World War
which, after all, proved to be very bad.
x x x I am also concerned with the fragility, fragility of the Philippine environment as the place
and context, the particular place and context of the introduction of BT crops like BT talong. x x x
the Philippines is among the world's biologically rich countries. x x x So, many of our insects are
not even fully known. We do not know how they all behave to influence the transfer of genetic
materials from plants to other plants. We do not fully know what we do not know about the
intricate interactions between plants and between insects and other living things that define the
universe of our healthful and balanced ecology. The universe of our healthful and balanced
ecology certainly go beyond specific crops. I am concerned that, absent a full as against partial
understanding of the intricate web of genetic flows and interactions among plants, animals and
other living things in our wet and tropical ecosystems, it will require extraordinary care to tamper
with any one element of this swirl of interrelationships. This is notwithstanding the seeming
preponderance of evidence of safety in other countries and environment that are certainly not
the same as ours. x x x we must be extra careful because the effects might be irreversible.
Introducing a genetically modified plant x x x could cause a string of changes across many
plants that, like the green revolution or in the case of medicine and the two other cases cited
above, could turn out and only to be realized much later to be harmful to humans and the
environment more than they were intended to be useful. x x x let us ensure that we adopt in the
country a biosafety vetting protocol that is: (1) sensitive to our high biodiversity this is a particular
condition in the Philippines; and (2) tested for error levels that are acceptable to or which can be
tolerated by our people. My affidavit states a three-stage approach to this. x x x the tests that we
will be doing is a test process acceptable to all as well rather than merely concocted or designed
by just a few people x x x must be a product of wider citizens' participation and reflect both
scientific and traditional knowledge and cultural sensitivity of our people. It is in the NBF after all,
x x x introducing BT Talong in the Philippines must be decided on the grounds of both science
and public policy and public policy, in this case, must involve full public disclosure and
participation in accepting both the potential gains and possible pains of BT Talong. The stakes,
both positive and negative, are so high that I believe BT Talong would require more public
scrutiny and wider democratic decision making beyond the [realm] of science. x x x for the sake
of our country and our rich biodiversity x x x prudence requires that maximum efforts be exerted
to ensure its safety beyond the parameters of science and into the sphere of public policy. For to
fail in doing so what might be highly anticipated to be beneficial may in some twist of failure or
precaution and prudence and failure for due diligence to establish the safety of Bt
Talong beyond reasonable doubt, the BT Talong may turn out to be harmful after all. This we
certainly do not want to do. I submit these views to the Court.
xxxx
Dr. Davies:chanRoblesvirtualLawlibrary
x x x another thing I would like to point out to the Court is, if you come into a market in the
Philippines and you see nice Talong, it has probably been treated with various insecticides. So,
there has been insecticide spray on your tips in your crops which are going to be harm on your
farmers, your farmer's children, the insect populations and also dangerous to the consumers as
well. By contrast, Bt Talong, if it is adopted, the BT has been shown to be beneficial to the
insects and the environment and also has been shown not to be toxic in food. Therefore, we are
changing a highly toxic chemical application for a much more benign modern technique that is
beneficial to the environment and beneficial to the consumers. That is my comment with the
views just made by my Filipino colleagues, your Honors.
Dr. Malayang:chanRoblesvirtualLawlibrary
x x x You know, in ecology and, I am sure you are aware of this, an expansion of anyone
population or a reduction of that population it would still be both not beneficial to the healthful
and balanced ecological health of the ecosystem. So to say that because the population of
insects are exploded and the diversity of insects exploded as a result of this particular
intervention is not necessarily good. That is my first point. The second one, you mentioned x x x
the "talong" is laden with pesticide. The same pesticide were advised by scientists from the
USAID before for us to use in this country because this is how to expand our production of food.
This was part of the green revolution, the systemic use of pesticides and fertilizer. Now, of
course, they were misused, I can guarantee that but, again, if that be the case, in the case of
pesticide why can it not be in the case of BT that it can also be misused? x x x we are talking
here not of the science or of the technology but on the policy aspect of the adoption of the
technology. As I said, I am talking about the bakery not of a baked-bread.
Dr. Saturnina Halos:chanRoblesvirtualLawlibrary
Well, the use of pesticide in the eggplant, right now, is very much abused. x x x In terms of the
use of Bt Talong, then, that kind of misuse is not going to happen x x x. Now, in the Philippines,
we have a very strict highly monitored field testing and I think Dr. Malayang knows about that
because he was one of those who prepared the guidelines for the field testing. So that is not
going to happen, it is a very strict regulatory system. We are known for that, actually, and...
xxxx
Dr. Saturnina Halos:chanRoblesvirtualLawlibrary
No, no. It does not happen because we have a risk management plan x x x.
xxxx
Dr. Halos:chanRoblesvirtualLawlibrary
x x x As far as do we know what is happening after we have given approval, yes, we are
monitoring. We are monitoring as far as BT corn is concerned. We are monitoring, continuously
monitoring, not only for the beneficial insects but also the effects that is continuing, we are also
continuing to monitor the weeds, weed population. In weed we decide to spray...
Dr. Malayang:chanRoblesvirtualLawlibrary
And why is this, ma'am, why are we monitoring? Because they could be harmful?
Dr. Halos:chanRoblesvirtualLawlibrary
No we have to know what is happening.
Dr. Malayang:chanRoblesvirtualLawlibrary
Yes, why? Because if you are sure that they are safe, if you are sure that they are safe, why
monitor?
Dr. Halos:chanRoblesvirtualLawlibrary
Well, we are going to give you the data for that because you keep on asking, you know, you
asked for a long term and we are going to give you that complete data.
xxxx
Dr. Medina:chanRoblesvirtualLawlibrary
I would like to raise several issues because I feel they are misleading sometimes. Dr. Davies
mentioned that the BT protein is a protein, therefore, it is safe. Are you sure that all proteins are
safe, Dr. Davies? Are you aware of anti-nutrients and allergens and other kinds of protein x x x it
is a misleading generalization. Secondly, I would like to say also that, when you say
that BT crops is beneficial to insect population but, how about humans? But, let me tell and
inform the Honorable Justices also that, in agriculture, there can be, the pests are there to
reduce the yield. There are also diseases so, that this Bt is only controlling one kind of pest and,
in my monitoring of BT corn as an example to this 2 years after the commercialization in 2003, at
first planting in 2003, the corn is attacked by about a dozen insect pests and six major diseases.
The Bt corn was attacked a "stem rot", a fungal disease. And, in this case in eggplant, there are
many fungal diseases, "phomopsis" x x x So in that case it is not field safe that you will not be
using pesticide anymore with BT eggplant. When you use the BT eggplant, assuming that there
is no more insect pests x x x There are many other methods of control and, therefore, do not
assume that you do not use pesticide therefore, BT is the only solution. That is also a risky and
wrong generalization or statement, x x x Dr. Halos x x x says that field tests are safe. I intend to
disagree with that. Safe to what? Especially to contamination. If I may use this picture of the field
testing of the Bt eggplant x x x it was encircled with cyclone wire with a diameter of something
like approximately 10 cm. by 7 cm. hole. While bees that can pollinate that, the size is about 1
cm. in length and .5 cm. in diameter of the insect. The bees and, in that case, they can easily get
in and get out and when they settle into the flowers and snip nectars and the fall of the pollen
then they can bring out the pollen to contaminate outside that. In fact, even assuming that the
fence is very small in size of the mess, the holes, still the insects can fly above that fence
because the fence is only about 5 feet in height. So, in that case it is not safe. Some arguments
say that "well the pollen will be dead" but, according to this technical manual of the Training
Workshop On Data Collection for Researchers And Collaborators of Multi-Location Trials of Fruit
and Shoot Borers Resistant Eggplant, that is the Bt Eggplant produced by the Institute of Plant
Breeding in UPLB who is one of the main researchers the datas, here say according to "Rasco",
cited by Dr. Narciso, is that the pollen can live 8 to 10 days pollen by ability at 20 to 22 degrees
centigrade, with a relative humidity of 50 to 55. x x x Meaning to say, that pollen can survive.
This can fly as fast as something like 60 kilometers per hours so it just take may be 3 minutes
and it can travel 4 kilometers and 4 kilometers is the effective flying distance of a bee in their
normal foraging.
xxxx
Dr. Medina:chanRoblesvirtualLawlibrary
x x x There is no data on the contamination so how come they argue, how can they conclude
that it is safe when they have not monitored any potential pollen flow by insect mitigated or
insect mediated flow pollen? So, in that case, the conclusion or the statement is really beyond
what their data may be is if their data is about safety.
xxxx
Dr. Ebora:chanRoblesvirtualLawlibrary
xxxx
x x x I hope that we will be able to look at the experimental design and you will see that all the
things are properly addressed, our risk assessment was done step by step, x x x I beg to
disagree with my friend Dr. Medina because it is becoming ... we are confusing 2 things. We are
not referring to contained trial. We are referring to confined field trial and in the design of this
particular experiment, you have your BT eggplant, your non-BT eggplant so that you can
compare the performance with the 2 crops. And, on design, you have 5 rows of
plant BT eggplants that will serve as a pollen trap. When we say pollen trap is that it just open
the pollen from the transgenic. It is going to be trapped by those plants, 5 rows, and then, after
that, you have a space of 200 meters surrounding the field which is the isolation distance. That
means no eggplant should be present in that particular distance because that is the isolation
distance that is found to be safe, x x x we know that Bt protein is very specific x x x effective only
against caterpillar x x x if they are eaten by other organism, they are not affected because it is
very specific. The gut of the larva is very alkaline while the gut of other insects is likely acidic
and, in that case, it does not have any harmful effect, x x x So another thing is we are saying that
it seems to be ridiculous that you are saying that honeybee is going to fly from the fence and the
size were even indicated. I would like to indicate that, that is not the purpose of the fence. It is
not to contain the insects. It is to prevent vandalism which is quite, unfortunately, being done by
other groups who are against the technology. x x x We should be able to have our own space,
our own time, considering the given regulation. Follow them. But our experimentation not be
destroyed because it is only then that we will be able to get the valuable data that is needed for
an informed decision. Without that we will not be able to proceed and I hope we can discuss this
based on the merits of the field trial, not from any other concern because the writ of kalikasan is
about the effect of field trial in the environment.
Dr. Medina:chanRoblesvirtualLawlibrary
Mr. Justice, can I give this immediate counteract to the one statement of Dr. [Ebora]? He said
that the "CrylAcc" is specific to caterpillars and, in fact, only some kinds of caterpillar, some
species, if you can read by chemical and by physical research communications this is Volume
271, pages 54-58, authored by Vasquez Pardonnet, published in 2000, publication under letter
(b), "CrylAcc protoxin" binds to the mucosal surface of the mouse small intestine. Small intestine
ay mammal po iyan so, meaning, it is a proxy animal for safety [testing] to humans because we
are also mammals so, the mice are usually the mammals 12 years ago, the data has been
already there that there is binding site, therefore it is not only specific to insects but also to
mammals. x x x he is saying that, by working on the natural BT is the same as the
transformed BT it is not true because the natural BT has 1155 "base pairs" of nucleic acids. And
the transformed GM Crop contains a fragment of that BT gene which is only half of that. And the
mechanism, by the way, x x x the natural toxin is broken into smaller pieces inside the intestine
of the insects because it is alkaline in terms of its system "ph" and for humans acidic. So it does
not work. But, because the transformed BT is already half, almost half of the normal or natural[ly]
occurring BT protein, it is already activated and, in that case, that is the reason why there is a
test and immediate effect to non-insect, meaning, to mammal, so that is the explanation of
scientist doing studies on that aspect.
x x xx
Dr. Chakraborty:chanRoblesvirtualLawlibrary
The scientists have 3 problems: One, the sparks, we have a tunnel vision; the second, fear
vision; x x x I will give some example. Yes, BT toxin, was it really good biological control agent?
But it is a completely different gene when you produce it into an edible plant inside genetically.
So, these are 2 different things. What will happen? We are scared that the efficacy, the use
of BT toxin as a spray, as biological control agent, will be vanished because now there will be
resistance against those in BT toxin, x x x resistance is coming very quickly, just like antibiotic
resistance, x x x The second thing, I have asked many plant biologists this simple question,
simple honest question. Do you know any plant that can kill a bee or a moth? No! There is no
way, why? Because those are the "pollinators". Plant never kills a bee or a moth that goes
against nature, x x x So, nature, for thousands of years, farmers help select or adopt edible non-
toxic plants. And, now, with the high science we are converting them, non-toxic edible plant into
a toxic plant. So not only toxic for the human, for the root microorganisms, x x x Those eggplants
are not only for humans to consume. So human effect, we do not know but what will be the
effect? Who will mind the effect? Is it the animal which goes through it? x x x in India, x x x
farmers x x x while growing BT cotton x x x the leaves and other they use to attract animals to
eat. x x x they found suddenly one thing that the BT cotton plants are not touched by those
buffalos, those cows, those [boars], but they can distinguish which is BT and non-BT. x x x and
when their animals started dying in some cases, they always blame, it is this animal which has
eaten that BT? x x x these are [going] against nature. Only few edible seed plants are there and
we are converting one safest plant into a poisonous and toxic plant and what is the effect on the
root microorganisms on the degrading animals and other? We do not know. That hard thing is
the tunnel vision, the confined field trial, x x x why implement this confined field trial? Is this
safe? Why do they have to do this x x x these things do good for a normal hybrid that is
something but for the gene concept we cannot follow the same separation rules, same rules? So
those are used, those separation distincts, those parameters are used not for the gene. So,
which is the safe field trial protocol for the gene plants? We do not know. So there goes against
[the] writ of kalikasan.
xxxx
Justice Antonio-Valenzuela:chanRoblesvirtualLawlibrary
How much is the increase in crop yield? x x x
Dr. Halos:chanRoblesvirtualLawlibrary
x x x The average increase yield is about 24% and that is for corn. And this data is actually taken
by our own Filipino scientists, Dr. Lluroge and Dr. Gonzales.
xxxx
Dr. Malayang:chanRoblesvirtualLawlibrary
x x x my question is for Ma'am Nina. I have not been up to date lately on the production of corn
so, you mean to say that corn production in the country has gone up and, because of that, you
are saying that 24% and the income of farmers had gone up as well? Do you mean to say that
the price of com had also gone up as a result of the increase in the volume of com production in
the Philippines?
Dr. Halos:chanRoblesvirtualLawlibrary
Well, the price is dictated by the market.
Dr.Malayang:chanRoblesvirtualLawlibrary
That is precisely the point.
Dr. Halos:chanRoblesvirtualLawlibrary
Yes.
Dr. Malayang:chanRoblesvirtualLawlibrary
x x x I am just bringing, hopefully to the attention of the Court, that, when you talk of a
technology such as GM Com or GM Talong affecting market there is also not only the regulatory
but economic regime that is attendant to it that makes adjustments. So it may not be harmful to
humans because we will not come out when we eat it but it might be harmful to the economy of a
particular agricultural crop. x x x
xxxx
Dr. Ebora:chanRoblesvirtualLawlibrary
x x x there are a lot of local studies being conducted now by entomologists from [UPLB] and
those are independent studies. And, precisely, this is to determine the effect on natural enemies
and the different insects x x x and some of those are already available, x x x you will be able to
protect the environment only if you know how to have a proper information in making the
decision. So, again, I am saying that, in field trial, you will be generating a lot of information that
you will be able to use in making a wise decision and informed decision.
x x x I would like to correct the impression lodged by the statement of Dr. Chakraborty regarding
butterflies and moths. Because they are not affected by BT because they are adult insects. The
only one that is affected are actually the larva, not even the pupa. So, we would like that to be
clear because it might create confusion.
The other thing in resistance, x x x even conventionally bred plant [loses] resistance after
sometime and that is the reason why we have a continuous breeding program. So, it is a natural
mechanism by an organism as mode of ad[a]potation. x x x are you telling us that we are going
to stop our breeding work because, anyway, they are going to develop resistance. I think it is a
wrong message x x x.
The other thing is in terms of the study cited by Dr. Medina regarding the "binding." In toxicology,
you can have the effect if you have, for example, the insects, you have a receptor. The toxin will
bind into the receptor. Toxin has to fall and then the toxin has re-insert into the membrane. If you
eliminate one of those steps you do not have any toxicity. So, that means binding by itself will
not be toxicity. It is a wrong impression that, since you have binding, there will be toxicity. It is
simply wrong because, the actuality that it should bind, it should fall then, it should insert, and it
is a very common x x x. To say that binding is equivalent to toxicity is simply not true.
The other one is natural BT toxin and activated toxin. When you were saying protoxin, protoxin is
basically the entire crystal protein. If it is already inside the gut of the insect it has to be clipped
by the purchase coming from the gut and you have it activated and you have the toxin. So what
you have in plant is already the toxin since the anther and the toxin, and the toxin in
microorganisms, the anther which are already clipped by a purchase are the same. So, to say
that they are different is actually wrong. You are comparing protoxin and toxin.
x x x regarding the protein, x x x do you know a lot of proteins of another characteristics and that
is why you have to characterize them and you have to separate the protein that are causing
problem and protein that are not causing problem. That is why you have allergen and, as
explained by Dr. Cariño, you have to check the sequence. x x x
xxxx
Dr. Chakraborty:chanRoblesvirtualLawlibrary
x x x the field trial wanted to basically go to the protocol. This is the efficacy, the efficiency of the
production not that much into the safety. You have to look into it carefully that how much will get
this efficacy, not the safety to that extent x x x. Second point x x x there is this already mentioned
that European Union there is no consensus, x x x they have published and submitted the
systemic list of genetically modified crop need for new approach in risk assessment. So that is
what is needed. There is another article, how does scientific risk assessment of GM crop fit
within wider risk analysis, x x x This is genetic engineering. The production process is very
precise in selecting the inserted gene but not in its enhancement, x x x they are never looking
into it. The second thing, they do not look into that from the laboratory condition to what is the
real life situation. They do not take that into account x x x so this assessment protocol has to be
modified or changed, x x x in the IAASTD or International Assessment of Agricultural
Knowledge, Science and Technology for Development. There is a supreme body, so many
nations, so many experts, scientists x x x. Only sustainable agricultural practice and that is the
only alternative. This GM technology is not going to help them x x x In my country also, when
the BT toxin evaluation was there, everybody was telling that this is pro-poor, this is scale neutral
so, everybody will be benefitted by that. So, we started questioning, x x x "What are the actual
economic analysis indeed? Just show me". Then, they come up with an answer. Scale neutral
means that even small farmers initially wanted BT cotton and big farmers also wanted BT cotton.
They are partisans. It is not the economic benefit because, economically, it is not going to be
beneficial so it is very much scale dependent its benefit. So, only the big farmers, large farmers
and x x x the vegetable field you never can give separation. Chances you never can give refuge.
The 1/5 of the land given for growing pests so that you cannot do. So it cannot help technology.
They have developed this technology for partisan large scale farming to completely automated
for BT technology where no label will be there. But the failed experiments, the contracts whose
patent will be over within 2-3 years, they are testing them in our country. So that is the bottom
line.
xxxx
Chairperson:chanRoblesvirtualLawlibrary
Let us put, probably, a close to this hot tub proceeding now.
The issue that the Court is really interested to resolve is whether or not the conduct of the field
trial of BT Talong by the respondents has violated or has threatened to violate the right of the
people to a balanced and healthful ecology. Is there absolute certainty that it has not so violated
such right. Because that is the requirement for applying or not applying the precautionary
principle, x x x
Dr. Cariño:chanRoblesvirtualLawlibrary

Yes. The answer to that is we have not violated, you know, the right of the people...
Chairperson:chanRoblesvirtualLawlibrary
But there is no absolute certainty?
Dr. Cariño:chanRoblesvirtualLawlibrary
Well, quite certain, your Honor, because we have placed all the necessary measures and they
did not show us, you know, there is no evidence of harm that has been shown to this Court.
There is no evidence at all.
Chairperson:chanRoblesvirtualLawlibrary
That is your opinion.95ChanRoblesVirtualawlibrary
As shown by the foregoing, the hot tub hearing has not yielded any consensus on the points of
contention between the expert witnesses, i.e., the safety of Bt talong to humans and the
environment. Evidently, their opinions are based on contrasting findings in hundreds of scientific
studies conducted from the time Bt technology was deployed in crop farming. These divergent
views of local scientists reflect the continuing international debate on GMOs and the varying
degrees of acceptance of GM technology by states especially the developed countries (USA,
EU, Japan, China, Australia, etc.).
Before proceeding to the current state of global GMO research, we briefly address the strong
objection of petitioners to the CA's reliance on the research conducted by Prof. Seralini, the
French scientist whose study was published in September 2012 in Food and Chemical
Toxicology, which was criticized as a "controversial feeding study." Seralini studied rats
consuming Monsanto's Roundup Ready treated corn for two years (using the same kind of rats
prone to tumors used by Monsanto in obtaining original approval for its product and the same
methodologies, but did it for 2 years which is longer than the 90-day experiment period done by
Monsanto). The rats formed massive cancerous tumors. All three test groups of rats, with 10 rats
in each group, died more frequently, suffered from liver problems, and had a pronounced
number of tumors specifically with grotesque mammary and testicular tumors. 96
Seralini's findings created an uproar and the study was expunged from the publication in
November 2013 even though the Editor-in-Chief found no evidence of fraud or intentional
misrepresentation of the data. Seralini stood by his work and further conducted similar laboratory
experiments. Critics faulted the experimental method, saying the number of rats studied was too
small and their diet was skewed when compared with their natural food intake. But over 300
scientists condemned the retraction, they said that the retraction lacked scientific integrity and
requested to reinstate the study. Last June 2014, Seralini's controversial study
was republished and has passed a third peer review arranged by the journal that is republishing
the study, Environmental Sciences Europe. The republished version contains extra material
addressing criticisms of the original publication and the raw data underlying the study's findings,
and accompanied by a separate commentary by Prof. Seralini's team describing the lobbying
efforts of GMO crop supporters to force the editor of the Food and Chemical Toxicology to
retract the original publication.97
The aforesaid incident serves to underscore the crucial role of scientists in providing relevant
information for effective regulation of GMOs. There can be no argument that "[s]ince scientific
advice plays a key role in GMO regulations, scientists have a responsibility to address and
communicate uncertainty to policy makers and the public." 98
GMOs: The Global Debate
The uncertainties generated by conflicting scientific findings or limited research is not diminished
by extensive use at present of GM technology in agriculture. The global area of GM crops has
reached over 175 million hectares in 2013, more than a hundredfold increase from 1.7 million
hectares in 1996.99 However, the worldwide debate on safety issues involving GM foods
continues.
It has been pointed out that the crux of the controversy surrounding GMOs lies in the very nature
of the technology itself. The process of combining inter-species genes, which is called
recombinant DNA technology, does not have the checks and balances that are imposed by
nature in traditional breeding. Because of this there is a risk of genetic instability. This means
that no one can make any accurate predictions about the long-term effects of GMOs on human
beings and the environment. Extensive testing in this regard is either very expensive or
impractical, and there is still a great deal about the process that scientists do not understand. 100
The basic concepts for the safety assessment of foods derived from GMOs have been
developed in close collaboration under the auspices of the Organization for Economic Co-
operation and Development (OECD) and the United Nations World Health Organization (WHO)
and Food and Agricultural Organization (FAO). The OECD's group of experts on biosafety
recommended conducting the safety assessment of a GM food on case-by-case basis through
comparison to an existing food with a long history of safe use. Thus, the concept of substantial
equivalence was developed that is widely used by national and international agencies, including
the US Food and Drug Administration (FDA), the WHO, OECD and the FAO. 101
"Substantial equivalence embodies the concept that if a new food or food component is found to
be substantially equivalent to an existing food or food component, it can be treated in the same
manner with respect to safety (i.e., the food or food component can be concluded to be as safe
as the conventional food or food component)."102 The safety assessment of a genetically
modified food is directed by the results of a comparison between the genetically modified food
and its conventional counterpart. It follows a stepwise process aided by a series of structured
questions. Factors taken into account in the safety assessment include:
• identity;
• source;
• composition;
• effects of processing/cooking;
• transformation process;

• the recombinant DNA (e.g. stability of insertion, potential for gene transfer);
• protein expression product of the novel DNA:
• effects on function;
• potential toxicity;
• potential allergenicity;
• possible secondary effects from gene expression or the disruption of the host DNA or metabolic
pathways, including composition of critical macro, micro-nutrients, anti-nutrients, endogenous
toxicants, allergens, and physiologically active substances; and,
• potential intake and dietary impact of the introduction of the genetically modified
food.103ChanRoblesVirtualawlibrary
The above factors are particularly pertinent to the assessment of foods derived from genetically
modified plants.104 However, the concept of substantial equivalence as the starting point of risk
assessment was criticized for being "unscientific and arbitrary" and "intentionally vague and ill-
defined to be as flexible, malleable, and open to interpretation as possible." It is likewise argued
that "comparisons are designed to conceal significant changes resulting from genetic
modifications," "the principle is weak and misleading even when it does not apply, effectively
giving producers carte blanche", and that there is insufficiency of background information for
assessing substantial equivalence. A paper presented at a WHO workshop pointed out that the
main difficulty associated with the biosafety assessment of transgenic crops is the unpredictable
nature of transformation. This unpredictability raises the concern that transgenic plants will
behave in an inconsistent manner when grown commercially. 105
The method of testing GM foods was further described as inadequate, as currently the testing
procedures consist almost exclusively of specific chemical and biochemical analytical
procedures designed to quantitate a specific nutrient or a specific toxin or allergen. It was noted
that in actual practice, the investigator compares only selected characteristics of the genetically
engineered food to those of its non-genetically engineered counterpart. These testing schemes
are viewed as completely incapable of detecting unsuspected or unanticipated health risks that
are generated by the process of genetic engineering itself. Hence, clinical tests are
recommended because only such tests have the broad specificity and relevance to human
physiology needed to detect the wide range of allergens and toxins that might result from
unexpected side-effects of the genetic engineering process.106
In another review article, it was pointed out that since a genetic modification is aimed at
introducing new traits into organisms, the result will always be a different composition of genes
and proteins. The most reasonable interpretation therefore is that a food derived from a GMO is
considered substantially equivalent to its traditional counterpart if the genetic modification has
not resulted in intended or unintended alterations in the composition of relevant nutrients and
inherent toxicants of the organism, and that the new genes and proteins have no adverse impact
on the dietary value of the food and do not therefore pose any harm to the consumer or the
environment. It was thus concluded that establishing substantial equivalence is not a safety
assessment in itself, but is a pragmatic tool to analyze the safety of a new food, and hence in the
testing of new foods, the latest scientific methods have to be used. All conceivable efforts to
protect consumers from health risks should thus be made, and at the same time, consumers
should be adequately informed about the real extent of risks and hazards. 107
The GMO global debate has so intensified that each side has accused the other camp of
mounting "paid advocacy" and criticizing studies adverse to their respective positions as flawed
or unscientific. Both the agri-business industry, and groups opposed to GMOs including the
organic farming industry, had utilized enormous resources and funds for lobbying and media
campaigns locally and internationally.
What appears to be highlighted in the promotion of GM crop production is the marked reduction
in the use of harmful chemical pesticides.108 The resulting increase in crop yields grown on
relatively small parcels of land is also regarded as a solution to the problem of feeding a fast
growing world population. Proponents of GM biotechnology insist that GM foods are safe to
humans and the environment based on scientific studies. On the other hand, anti-GM activists
disseminate adverse results of recent studies confirming the health and environmental hazards
of genetically engineered crop farming. Also, some countries have maintained a firm stance
against genetically engineered crops or GM foods, such as France and Austria. Over the years,
however, accumulated evidence of the dangers of GMOs, as well as unrealized socio-economic
benefits, has been increasingly recognized by the scientific community.
That GE farming increases crop yield has been debunked by new studies proving the contrary.
In the article, "GM Crops Do Not Increase Yield Potential," the Institute for Responsible
Technology cited reports from actual field studies in different countries revealing downward
figures for Bt crops, as summarized below:
• Bt corn took longer to reach maturity and produced up to 12% lower yields than non-GM
counterparts.
• Evidence for the "yield drag" of Roundup Ready soybeans has been known for over a decade -
with the disruptive effect of the GM transformation process accounting for approximately half the
drop in yield.
• Based on a comprehensive evaluation of yield since the introduction of commercial GM crops,
the International Assessment of Agricultural Knowledge, Science and Technology (IAASTD)
noted that GM crop yields were "highly variable" and in some cases, "yields declined".
• The Union of Concerned Scientists' 2009 report Failure to Yield, based on published peer-
reviewed studies conducted by academic scientists using adequate controls, concluded that
genetically engineered herbicide tolerant soybeans and herbicide-tolerant corn has not
increased yields while insect-resistant corn has only marginally improved yields. Traditional
breeding outperforms genetic engineering hands down.
• In developing countries, crop failure can have severe consequences as illustrated in India,
where a large number of cotton farmers, unable to pay back high interest loans, have committed
suicide. Several investigations have implicated the unreliable performance of Bt cotton as a
major contributor.
• Bt cotton was overrun by pests in Indonesia and China. In South Africa, farmers faced pest
problems and no increase in yield. The 100,000 hectares planted in 1998 dropped 80% to • indirect changes in susceptibility of crops against pathogens;
22,500 by 2002. As of 2004, 85% of the original Bt cotton farmers had given up while those
remaining had to be subsidized by the government. Similarly in the US, Bt cotton yields are not • adverse effects on agro-biodiversity;
necessarily consistent or more profitable.109ChanRoblesVirtualawlibrary
• indirect effects in fertilizer use;
GM technology is thus seen as a failure in terms of addressing food security; rather, it supports
corporate control and impedes common persons' access to adequate food. The root cause of
• potential changes in landscape structure;
hunger is not a lack of food, GM critics say, but a lack of access to food. The poor lack money to
buy food and lack of land on which to grow it. It is essential to follow sustainable traditional
• increased production of greenhouse gases;
farming practices that keeps food production in the hands of small-scale farmers, thereby
reducing corporate control.110
• increased mineral nutrient erosion and fertilizer leaching;
As regards the existing uncertainties of potential long-term effects of the release into the
• altered chemical attributes of soil fraction;
environment of GMOs, the BEETLE (Biological and Ecological Evaluation towards Long-term
Effects) study of 2009,111 made for the European Commission, analyzed more than 700 scientific
• emerging of stacked events;
publications from all over the world about GMOs and their potential effects on environment
including biodiversity, and received contributions to online surveys from 100 to 167 invited
• the necessity of regional differentiation of risk assessments. 112ChanRoblesVirtualawlibrary
environmental experts. This study declared the following uncertainties:
• increased fitness of GM plants; A critical observation was made on the argument that there is not enough evidence to reject the
hypothesis that GMO and GM food is safe. The fact emphasized was that experiments designed
• outbreeding depression after hybridization with wild relatives; to clarify potential adverse effects on health or the environment are nearly absent in peer-
reviewed journals. Scientific uncertainty, omitted research areas, and lack of basic knowledge
• outcrossing between related species and the fate of a transferred GM trait; crucial to risk assessments have become apparent. The present uncertainty warrants further
research and it has been demonstrated that there is a risk of bias relying on hypotheses that
• altered flower phenology; dominate mainstream science. There is therefore a need for independent research that is
without prejudice and unbiased by economic and professional interests.113 In another article it
• altered fecundity, increasing seed (gene) flow; was noted that the clinical trials carried out to ensure that negative externalities do not affect
humans and the environment are conducted by the same private firms that created the products,
• increased frequency of horizontal gene flow; raising conflict of interest concerns.114

• resistance development of pests; While existing literature on health effects of GM foods indicates that they are generally safe, and
similar conclusions have been drawn by government agencies and scientific organizations such
• effects on non-target organisms; as FAO/WHO and Society of Toxicology, a growing number of independent scientists have
spoken strongly against such generalizations from limited research mostly sponsored by biotech
• effects on non-target organisms due to altered nutritional composition of the GM plant; companies.

• effects on non-target organisms due to accumulation of toxic compounds; In 1999, the Open Letter from World Scientists to All Governments signed by 815 scientists from
82 countries expressed that they are extremely concerned about the hazards of GMOs to
• effects on rhizo sphere microbiota; biodiversity, food safety, human and animal health, and demanded a moratorium on
environmental releases in accordance with the precautionary principle. They are opposed to GM
• effects on symbiotic non-target organisms; crops that will intensify corporate monopoly, exacerbate inequality and prevent the essential shift
to sustainable agriculture that can provide food security and health around the world, and called
• changes in soil functions caused by GM traits; a ban on patents of life forms and living processes which threaten food security, sanction
biopiracy of indigenous knowledge and genetic resources and violate basic human rights and
• effects on biological control; dignity.115

• altered use of agrochemicals; On May 10, 2003, dozens of prominent scientists from various disciplines banded together as an
Independent Science Panel on GM at a public conference in London. On June 15, 2003, they
released a Final Report116 as their contribution to the National GM Debate in UK. In a
summary117 of the final report, these scientists declared the following:
The Case for a GM-Free Sustainable World - A Summary
Why GM-Free?
1. GM crops failed to deliver promised benefits
o No increase in yields or significant reduction in herbicide and pesticide use
o United States lost an estimated $12 billion over GM crops amid worldwide rejection
o Massive crop failures of up to 100% reported in India
o High risk future for agbiotech: "Monsanto could be another disaster waiting to happen for
investors"
2. GM crops posing escalating problems on the farm
o Transgenic lines unstable: "most cases of transgene inactivation never reach the literature"
o Triple herbicide-tolerant volunteers and weeds emerged in North America
o Glyphosate-tolerant weeds plague GM cotton and soya fields, atrazine back in use
o Bt biopesticide traits threatening to create superweeds and bt-resistant pests
3. Extensive transgenic contamination unavoidable
o Extensive transgenic contamination found in maize landraces in remote regions of Mexico
o 32 out of 33 commercial seed stocks found contaminated in Canada
o Pollen remains airborne for hours, and a 35 mile per hour wind speed is unexceptional
o There can be no co-existence of GM and non-GM crops
4. GM crops not safe
o GM crops have not been proven safe: regulation was fatally flawed from the start
o The principle of 'substantial equivalence', vague and ill defined, gave companies complete
licence in claiming GM products 'substantially equivalent' to non-GM, and hence 'safe'
5. GM food raises serious safety concerns
o Despite the paucity of credible studies, existing findings raise serious safety concerns
o 'Growth-factor-like' effects in the stomach and small intestine of young rats were attributed to
the transgenic process or the transgenic construct, and may hence be general to all GM food
6. Dangerous gene products are incorporated into food crops
o Bt proteins, incorporated into 25% of all GM crops worldwide, are harmful to many non-target
insects, and some are potent immunogens and allergens for humans and other mammals
o Food crops are increasingly used to produce pharmaceuticals and drugs, including cytokines
known to suppress the immune system, or linked to dementia, neurotoxicity and mood and
cognitive side effects; vaccines and viral sequences such as the 'spike' protein gene of the pig
coronavirus, in the same family as the SARS virus linked to the current epidemic; and
glycoprotein gene gpl20 of the AIDS virus that could interfere with the immune system and
recombine with viruses and bacteria to generate new and unpredictable pathogens.
7. Terminator crops spread male sterility
o Crops engineered with 'suicide' genes for male sterility, promoted as a means of preventing the
spread of transgenes, actually spread both male sterility and herbicide tolerance traits via pollen.
8. Broad-spectrum herbicides highly toxic to humans and other species
o Glufosinate ammonium and glyphosate, used with herbicide tolerant GM crops that currently
account for 75% of all GM crops worldwide, are both systemic metabolic poisons
o Glufosinate ammonium is linked to neurological, respiratory, gastrointestinal and
haematological toxicities, and birth defects in humans and mammals; also toxic to butterflies and
a number of beneficial insects, to larvae of clams and oysters, Daphnia and some freshwater
fish, especially the rainbow trout; it inhibits beneficial soil bacteria and fungi, especially those that
fix nitrogen.
o Glyphosate is the most frequent cause of complaints and poisoning in the UK, and
disturbances to many body functions have been reported after exposures at normal use levels;
glyphosate exposure nearly doubled the risk of late spontaneous abortion, and children born to
users of glyphosate had elevated neurobehavioral defects; glyphosate retards development of
the foetal skeleton in laboratory rats, inhibits the synthesis of steroids, and is genotoxic in
mammals, fish and frogs; field dose exposure of earthworms caused at least 50 percent mortality
and significant intestinal damage among surviving worms; Roundup (Monsanto's formulation of
glyphosate) caused cell division dysfunction that may be linked to human cancers.
9. Genetic engineering creates super-viruses
o The most insidious dangers of genetic engineering are inherent to the process; it greatly
enhances the scope and probability of horizontal gene transfer and recombination, the main
route to creating viruses and bacteria that cause disease epidemics.
o Newer techniques, such as DNA shuffling, allow geneticists to create in a matter of minutes in
the laboratory millions of recombinant viruses that have never existed in billions of years of
evolution
o Disease-causing viruses and bacteria and their genetic material are the predominant materials
and tools of genetic engineering, as much as for the intentional creation of bio-weapons.
10. Transgenic DNA in food taken up by bacteria in human gut
o Transgenic DNA from plants has been taken up by bacteria both in the soil and in the gut of
human volunteers; antibiotic resistance marker genes can spread from transgenic food to
pathogenic bacteria, making infections very difficult to treat.
11. Transgenic DNA and cancer
o Transgenic DNA known to survive digestion in the gut and to jump into the genome of
mammalian cells, raising the possibility for triggering cancer
o Feeding GM products such as maize to animals may carry risks, not just for the animals but
also for human beings consuming the animal products
12. CaMV 35S promoter increases horizontal gene transfer
o Evidence suggests that transgenic constructs with the CaMV 35S promoter could be especially
unstable and prone to horizontal gene transfer and recombination, with all the attendant hazards:
gene mutations due to random insertion, cancer, re-activation of dormant viruses and generation
of new viruses.
13. A history of misrepresentation and suppression of scientific evidence
o There has been a history of misrepresentation and suppression of scientific evidence,
especially on horizontal gene transfer. Key experiments failed to be performed, or were
performed badly and then misrepresented. Many experiments were not followed up, including
investigations on whether the CaMV 35S promoter is responsible for the 'growth-factor-like'
effects observed in young rats fed GM potatoes.
GM crops have failed to deliver the promised benefits and are posing escalating problems
on the farm. Transgenic contamination is now widely acknowledged to be unavoidable,
and hence there can be no co-existence of GM and non-GM agriculture. Most important of
all, GM crops have not been proven safe. On the contrary, sufficient evidence has
emerged to raise serious safety concerns, that if ignored could result in irreversible
damage to health and the environment. GM crops should therefore be firmly rejected now.
The ISP further concluded that "[s]ustainable agricultural practices have proven beneficial in all
aspects relevant to health and the environment. In addition, they bring food security and social
and cultural well being to local communities everywhere. There is an urgent need for a
comprehensive global shift to all forms of sustainable agriculture.118
In 2008, a Global Report119 was released by the International Assessment of Agricultural
Knowledge, Science and Technology for Development (IAASTD), a three-year international
collaborative effort (2005-2007) developed out of a consultative process involving 900
participants and 110 countries from all over the world. This global initiative assessed agricultural
knowledge, science and technology (AKST) in relation to meeting development and
sustainability goals of (1) reducing hunger and poverty; (2) improving nutrition, health and rural
livelihoods; and (3) facilitating social and environmental sustainability. The report concluded that
a radical transformation of the world's food and farming systems - especially the policies and
institutions that affect them - is necessary if we are to overcome converging economic and
environmental crises and feed the world sustainably. It also warned that technologies such as
high-yielding crop varieties, agrochemicals and mechanization have primarily benefited the
better-resourced groups in society and transnational corporations, rather than the most
vulnerable ones. In general, the IAASTD found little evidence to support a conclusion that
modern biotechnologies are well suited to meeting the needs of small-scale and subsistence
farmers, particularly under the increasingly unpredictable environmental and economic
conditions tha they face.120
More recently, in 2013, the European Network of Scientists for Social and Environmental
Responsibility (ENSSER), an international group of more than 90 scientists, academics and
physicians, released a statement that there is no scientific consensus on the safety of GM foods
and crops.121 The statement122 is herein reproduced:
10/21/13
Statement: No scientific consensus on GMO safety
As scientists, physicians, academics, and experts from disciplines relevant to the scientific, legal,
social and safety assessment aspects of genetically modified organisms (GMOs), we strongly
reject claims by GM seed developers and some scientists, commentators, and journalists that
there is a "scientific consensus" on GMO safety and that the debate on this topic is "over".
We feel compelled to issue this statement because the claimed consensus on GMO safety does
not exist. The claim that it does exist is misleading and misrepresents the currently available
scientific evidence and the broad diversity of opinion among scientists on this issue. Moreover,
the claim encourages a climate of complacency that could lead to a lack of regulatory and
scientific rigour and appropriate caution, potentially endangering the health of humans, animals,
and the environment.
Science and society do not proceed on the basis of a constructed consensus, as current
knowledge is always open to well-founded challenge and disagreement. We endorse the need
for further independent scientific inquiry and informed public discussion on GM product safety
and urge GM proponents to do the same.
Some of our objections to the claim of scientific consensus are listed below.
1. There is no consensus on GM food safety
Regarding the safety of GM crops and foods for human and animal health, a comprehensive
review of animal feeding studies of GM crops found "An equilibrium in the number [of] research
groups suggesting, on the basis of their studies, that a number of varieties of GM products
(mainly maize and soybeans) are as safe and nutritious as the respective conventional non-GM
plant, and those raising still serious concerns". The review also found that most studies
concluding that GM foods were as safe and nutritious as those obtained by conventional
breeding were "performed by biotechnology companies or associates, which are also
responsible [for] commercializing these GM plants".

A separate review of animal feeding studies that is often cited as showing that GM foods are
safe included studies that found significant differences in the GM-fed animals. While the review
authors dismissed these findings as not biologically significant, the interpretation of these
differences is the subject of continuing scientific debate and no consensus exists on the topic.
Rigorous studies investigating the safety of GM crops and foods would normally involve animal
feeding studies in which one group of animals is fed GM food and another group is fed an
equivalent non-GM diet. Independent studies of this type are rare, but when such studies have
been performed, some have revealed toxic effects or signs of toxicity in the GM-fed animals. The
concerns raised by these studies have not been followed up by targeted research that could
confirm or refute the initial findings.
The lack of scientific consensus on the safety of GM foods and crops is underlined by the recent
research calls of the European Union and the French government to investigate the long-term
health impacts of GM food consumption in the light of uncertainties raised by animal feeding
studies. These official calls imply recognition of the inadequacy of the relevant existing scientific
research protocols. They call into question the claim that existing research can be deemed
conclusive and the scientific debate on biosafety closed.
2. There are no epidemiological studies investigating potential effects of GM food
consumption on human health
It is often claimed that "trillions of GM meals" have been eaten in the US with no ill effects.
However, no epidemiological studies in human populations have been carried out to establish
whether there are any health effects associated with GM food consumption. As GM foods are
not labelled in North America, a major producer and consumer of GM crops, it is scientifically
impossible to trace, let alone study, patterns of consumption and their impacts. Therefore, claims
that GM foods are safe for human health based on the experience of North American
populations have no scientific basis.
3. Claims that scientific and governmental bodies endorse GMO safety are exaggerated or
inaccurate
Claims that there is a consensus among scientific and governmental bodies that GM foods are
safe, or that they are no more risky than non-GM foods, are false.
For instance, an expert panel of the Royal Society of Canada issued a report that was highly
critical of the regulatory system for GM foods and crops in that country. The report declared that
it is "scientifically unjustifiable" to presume that GM foods are safe without rigorous scientific
testing and that the "default prediction" for every GM food should be that the introduction of a
new gene will cause "unanticipated changes" in the expression of other genes, the pattern of
proteins produced, and/or metabolic activities. Possible outcomes of these changes identified in
the report included the presence of new or unexpected allergens.
A report by the British Medical Association concluded that with regard to the long-term effects of
GM foods on human health and the environment, "many unanswered questions remain" and that
"safety concerns cannot, as yet, be dismissed completely on the basis of information currently
available". The report called for more research, especially on potential impacts on human health
and the environment.
Moreover, the positions taken by other organizations have frequently been highly qualified,
acknowledging data gaps and potential risks, as well as potential benefits, of GM technology.
For example, a statement by the American Medical Association's Council on Science and Public
Health acknowledged "a small potential for adverse events ... due mainly to horizontal gene
transfer, allergenicity, and toxicity" and recommended that the current voluntary notification
procedure practised in the US prior to market release of GM crops be made mandatory. It should
be noted that even a "small potential for adverse events" may turn out to be significant, given the
widespread exposure of human and animal populations to GM crops.
A statement by the board of directors of the American Association for the Advancement of
Science (AAAS) affirming the safety of GM crops and opposing labelling cannot be assumed to
represent the view of AAAS members as a whole and was challenged in an open letter by a
group of 21 scientists, including many long-standing members of the AAAS. This episode
underlined the lack of consensus among scientists about GMO safety.
4. EU research project does not provide reliable evidence of GM food safety
An EU research project has been cited internationally as providing evidence for GM crop and
food safety. However, the report based on this project, "A Decade of EU-Funded GMO
Research", presents no data that could provide such evidence, from long-term feeding studies in
animals.
Indeed, the project was not designed to test the safety of any single GM food, but to focus on
"the development of safety assessment approaches". Only five published animal feeding studies
are referenced in the SAFOTEST section of the report, which is dedicated to GM food safety.
None of these studies tested a commercialised GM food; none tested the GM food for long-term
effects beyond the subchronic period of 90 days; all found differences in the GM-fed animals,
which in some cases were statistically significant; and none concluded on the safety of the GM
food tested, let alone on the safety of GM foods in general. Therefore the EU research project
provides no evidence for sweeping claims about the safety of any single GM food or of GM crops
in general.
5. List of several hundred studies does not show GM food safety
A frequently cited claim published on an Internet website that several hundred studies
"document the general safety and nutritional wholesomeness of GM foods and feeds" is
misleading. Examination of the studies listed reveals that many do not provide evidence of GM
food safety and, in fact, some provide evidence of a lack of safety. For
example:chanRoblesvirtualLawlibrary
• Many of the studies are not toxicological animal feeding studies of the type that can provide
useful information about health effects of GM food consumption. The list includes animal
production studies that examine parameters of interest to the food and agriculture industry, such
as milk yield and weight gain; studies on environmental effects of GM crops; and analytical
studies of the composition or genetic makeup of the crop.

• Among the animal feeding studies and reviews of such studies in the list, a substantial number
found toxic effects and signs of toxicity in GM-fed animals compared with controls. Concerns
raised by these studies have not been satisfactorily addressed and the claim that the body of
research shows a consensus over the safety of GM crops and foods is false and irresponsible.
• Many of the studies were conducted over short periods compared with the animal's total
lifespan and cannot detect long-term health effects.
We conclude that these studies, taken as a whole, are misrepresented on the Internet website
as they do not "document the general safety and nutritional wholesomeness of GM foods and
feeds". Rather, some of the studies give serious cause for concern and should be followed up by
more detailed investigations over an extended period of time.
6. There is no consensus on the environmental risks of GM crops
Environmental risks posed by GM crops include the effects of Bt insecticidal crops on non-target
organisms and effects of the herbicides used in tandem with herbicide-tolerant GM crops.
As with GM food safety, no scientific consensus exists regarding the environmental risks of GM
crops. A review of environmental risk assessment approaches for GM crops identified
shortcomings in the procedures used and found "no consensus" globally on the methodologies
that should be applied, let alone on standardized testing procedures.
Some reviews of the published data on Bt crops have found that they can have adverse effects
on non-target and beneficial organisms - effects that are widely neglected in regulatory
assessments and by some scientific commentators. Resistance to Bt toxins has emerged in
target pests, and problems with secondary (non-target) pests have been noted, for example,
in Bt cotton in China.
Herbicide-tolerant GM crops have proved equally controversial. Some reviews and individual
studies have associated them with increased herbicide use, the rapid spread of herbicide-
resistant weeds, and adverse health effects in human and animal populations exposed to
Roundup, the herbicide used on the majority of GM crops.
As with GM food safety, disagreement among scientists on the environmental risks of GM crops
may be correlated with funding sources. A peer-reviewed survey of the views of 62 life scientists
on the environmental risks of GM crops found that funding and disciplinary training had a
significant effect on attitudes. Scientists with industry funding and/or those trained in molecular
biology were very likely to have a positive attitude to GM crops and to hold that they do not
represent any unique risks, while publicly-funded scientists working independently of GM crop
developer companies and/or those trained in ecology were more likely to hold a "moderately
negative" attitude to GM crop safety and to emphasize the uncertainty and ignorance involved.
The review authors concluded, "The strong effects of training and funding might justify certain
institutional changes concerning how we organize science and how we make public decisions
when new technologies are to be evaluated."
7. International agreements show widespread recognition of risks posed by GM foods and
crops
The Cartagena Protocol on Biosafety was negotiated over many years and implemented in
2003. The Cartagena Protocol is an international agreement ratified by 166 governments
worldwide that seeks to protect biological diversity from the risks posed by GM technology. It
embodies the Precautionary Principle in that it allows signatory states to take precautionary
measures to protect themselves against threats of damage from GM crops and foods, even in
case of a lack of scientific certainty.
Another international body, the UN's Codex Alimentarius, worked with scientific experts for
seven years to develop international guidelines for the assessment of GM foods and crops,
because of concerns about the risks they pose. These guidelines were adopted by the Codex
Alimentarius Commission, of which over 160 nations are members, including major GM crop
producers such as the United States.
The Cartagena Protocol and Codex share a precautionary approach to GM crops and foods, in
that they agree that genetic engineering differs from conventional breeding and that safety
assessments should be required before GM organisms are used in food or released into the
environment.
These agreements would never have been negotiated, and the implementation processes
elaborating how such safety assessments should be conducted would not currently be
happening, without widespread international recognition of the risks posed by GM crops and
foods and the unresolved state of existing scientific understanding.
Concerns about risks are well-founded, as has been demonstrated by studies on some GM
crops and foods that have shown adverse effects on animal health and non-target organisms,
indicated above. Many of these studies have, in fact, fed into the negotiation and/or
implementation processes of the Cartagena Protocol and Codex. We support the application of
the Precautionary Principle with regard to the release and transboundary movement of GM crops
and foods.
Conclusion
In the scope of this document, we can only highlight a few examples to illustrate that the totality
of scientific research outcomes in the field of GM crop safety is nuanced, complex, often
contradictory or inconclusive, confounded by researchers' choices, assumptions, and funding
sources, and in general, has raised more questions than it has currently answered.
Whether to continue and expand the introduction of GM crops and foods into the human food
and animal feed supply, and whether the identified risks are acceptable or not, are decisions that
involve socioeconomic considerations beyond the scope of a narrow scientific debate and the
currently unresolved biosafety research agendas. These decisions must therefore involve the
broader society. They should, however, be supported by strong scientific evidence on the long-
term safety of GM crops and foods for human and animal health and the environment, obtained
in a manner that is honest, ethical, rigorous, independent, transparent, and sufficiently diversified
to compensate for bias.
Decisions on the future of our food and agriculture should not be based on misleading and
misrepresentative claims that a "scientific consensus" exists on GMO
safety.123ChanRoblesVirtualawlibrary
One of the most serious concerns raised against GM crops is that expressed by one of our
political analysts now serving in Congress, viz:
x x x patented GMO seeds concentrate power in the hands of a few biotech corporations and
marginalize small farmers. As the statement x x x of the 81 members of the World Future Council
put it, "While profitable to the few companies producing them, GMO seeds reinforce a model of
farming that undermines sustainability of cash-poor farmers, who make up most of the world's
hungry. GMO seeds continue farmers' dependency on purchased seed and chemical inputs. The
most dramatic impact of such dependency is in India, where 270,000 farmers, many trapped in
debt for buying seeds and chemicals, committed suicide between 1995 and
2012."124ChanRoblesVirtualawlibrary
In sum, current scientific research indicates that the biotech industry has not sufficiently
addressed the uncertainties over the safety of GM foods and crops.
Bt Brinjal Controversy in India
Brinjal (eggplant) is a major crop and a popular component of food diet in India, an important
ingredient in Ayurvedic medicine, and is of special value for the treatment of diabetes and liver
problems. The attempted commercial propagation of Bt brinjal spawned intense debate and
suffered obstacles due to sustained opposition from local scientists, academicians and non-
government organizations in India.
As in the case of the Philippines, proponents of Bt brinjal in India, believed to be the origin of
eggplant's diversity, said that if the new technology is adopted, decrease in the use of
insecticides, substantial increase in crop yields and greater food availability, can be expected.
But opponents argued, alongside food safety concerns, that there is a potential for toxic effects
on populations of non-target invertebrates, and potential replacement of traditional landraces as
farmers may move towards cultivation of a restricted number of GE forms. In addition to these
issues, there was the additional concern raised over the transfer of Bt transgenes to non-
GE brinjal or its wild relatives, and the consequences for plant biodiversity. 125
Writ petitions were lodged before the Supreme Court of India to stop the release into the
environment of Bt brinjal (Aruna Rodrigues and Ors, etc. vs. Union of India). The Court formed a
Technical Evaluation Committee (TEC) composed of experts nominated by the parties to
undertake a comprehensive evaluation of the feasibility of allowing the open field trials of Bt
brinjal and submit a final report, and in the event the TEC is unable to submit said final report, it
was directed instead to submit an interim report within the period set by the Court on the
following issue: Whether there should or should not be any ban, partial or otherwise, upon
conducting of open field tests of the GMOs? In the event open field trials are permitted, what
protocol should be followed and conditions, if any, that may be imposed by the Court for
implementation of open field trials." The Court also directed that the TEC would be free to review
report or studies authored by national and international scientists if it was necessary.
In its Interim Report dated October 17, 2012, the TEC recommended that, in view of its findings,
all field trials should be stopped until certain conditions have been met. A Final Report126 was
eventually submitted to the Court which noted weaknesses in the conditions imposed by the
regulatory agencies for conduct of field trials, as follows: 1) post-release monitoring, an important
aspect of environmental and health safety (if the GE crop is consumed as food) is not given
adequate attention; 2) the importance of need and socio-economic impact assessment of GM
products as one of the criteria that should be applied in the evaluation at an early stage; and 3)
need for additional tests not currently done such as long-term feeding studies for assessment of
chronic and intergeneration toxicity in small animals, genomewide expression analysis in the
toxicity studies to screen for possible unintended effects on host physiology. It was
recommended that a moratorium on field trials of herbicide tolerant crops until the issue had
been examined by an independent committee, and also noted that said technology may not be
suitable in the Indian socio-economic context due to possible impact of extensive use of broad
spectrum herbicides on the environmental biodiversity and smaller average farm size.
Examination of the safety dossier of Bt brinjal indicated certain concerns on the data, which had
not been addressed in the course of regulatory testing leading to approval due to lack of full-time
qualified personnel for the purpose. Overall, it was found that the quality of information in several
of the applications is far below what would be expected and required for rigorous evaluation by a
regulatory body and is unlikely to meet international regulatory guidelines.
On the mechanism of CrylAc proteins, the TEC cited studies showing that it is possible under
certain conditions for CrylAc protein to kill insects that lack the cadherin receptor. Also, while it is
generally believed that Cry toxins do not exert an effect on vertebrates as vertebrates lack the
receptor for Cry toxins, two studies (one in mice and the other in cows) have provided evidence
that Cry proteins can bind to mammalian intestinal epithelial cells. The report also discussed the
emergence of resistance in insect pests, health and food safety of Bt transgenics, and herbicide
tolerant crops and their effect on biodiversity and the environment. Specific recommendations
were made to address the foregoing issues and the report concluded that:
The release of a GM crop into its area of origin or diversity has far greater ramifications and
potential for negative impact than for other species. To justify this, there needs to be
extraordinarily compelling reasons and only when other choices are not available. GM crops that
offer incremental advantages or solutions to specific and limited problems are not sufficient
reasons to justify such release. The TEC did not find any such compelling reasons under the
present conditions. The fact is that unlike the situation in 1960s there is no desperate shortage of
food and in fact India is in a reasonably secure position. The TEC therefore recommends that
release of GM crops for which India is a centre of origin or diversity should not be
allowed.127ChanRoblesVirtualawlibrary
In 2010, responding to large-scale opposition to Bt brinjal's introduction in India, former
environment minister Jairam Ramesh placed an indefinite moratorium on its further field testing.
This was done after discussions with scientists, both pro and anti-GM crops, activists and
farmers across the country.
GMO Field Trials in the Philippines
As earlier mentioned, the conduct of field trials for GE plants and crops in our country is
governed primarily by DAO 08-2002 and implemented by the DA through the BPI. Petitioners
EMB, BPI and FPA all maintain there was no unlawful deviation from its provisions and that
respondents so far failed to present evidence to prove their claim that Bt talong field trials
violated environmental laws and rules.
Within the DA-BPI, it is the Scientific and Technical Review Panel (STRP) which, as an advisory
body, was tasked to "evaluate the potential risks of the proposed activity to human health and
the environment based on available scientific and technical information." Under DA Special
Order 241 and 384 (2002) the STRP membership was expanded to include "an independent
pool of experts...tapped by the [BPI] to evaluate the potential risks of the proposed release of
GMOs for field testing, propagation, food, feed to human health and the environment based on
available scientific and technical information."
DAO 08-2002 supplements the existing guidelines on the importation and release into the
environment of products of modern biotechnology by institutionalizing existing operational
arrangements between DA-BPI and the NCBP. Effective July 2003, applications for field test are
received and processed by DA-BPI, but the approval process for projects on contained use
remains under the supervision of NCBP. A mandatory risk assessment of GM plant and plant
products is required prior to importation or release into the environment. Experiments must first
be conducted under contained conditions, then the products are tested in field trials the product
is reviewed for commercial release. Risk assessment is done according to the principles
provided for by the Cartagena Protocol on Biosafety. Risk assessment is science-based, carried
out on a case by case manner, targets a specific crop and its transformation event, adopts the
concept of substantial equivalence in identifying risk, allows review, and provides that the
absence of scientific information or consensus should not be interpreted to indicate the absence
or presence and level of risk.128
Greenpeace, however, claims there is actually only a committee of three to five members which
conducts the risk assessment, and is aided by an informal group, the DA's Biotech Advisory
Team (BAT), of representatives from government biotech regulatory agencies: BPI, BAI, FPA,
DENR, DOH and DOST. It also assails the government regulatory agencies for their refusal to
open to scrutiny the names and qualifications of those incharge of regulation and risk
assessment, and for allowing the entry and use of all GMO applications requested by
multinational companies.129
It must be stressed that DAO 08-2002 and related DA orders are not the only legal bases for
regulating field trials of GM plants and plant products. EO 514 130 establishing the National
Biosafety Framework (NBF) clearly provides that the NBF shall apply to the development,
adoption and implementation of all biosafety policies, measures and guidelines and in making
biosafety decisions concerning the research, development, handling and use, transboundary
movement, release into the environment and management of regulated articles.131 The objective
of the NBF is to "[e]nhance the decision-making system on the application of products of modern
biotechnology to make it more efficient, predictable, effective, balanced, culturally appropriate,
ethical, transparent and participatory".132 Thus, "the socio-economic, ethical, and cultural benefit
and risks of modern biotechnology to the Philippines and its citizens, and in particular on small
farmers, indigenous peoples, women, small and medium enterprises and the domestic scientific
community, shall be taken into account in implementing the NBF." 133 The NBF also mandates
that decisions shall be arrived at in a transparent and participatory manner, recognizing that
biosafety issues are best handled with the participation of all relevant stakeholders and
organizations who shall have appropriate access to information and the opportunity to participate
responsibly and in an accountable manner in biosafety decision-making process.134
Most important, the NBF requires the use of precaution, as provided in Section 2.6 which reads:
2.6 Using Precaution. -In accordance with Principle 15 of the Rio Declaration of 1992 and the
relevant provisions of the Cartagena Protocol on Biosafety, in particular Articles 1, 10 (par. 6)
and 11 (par. 8), the precautionary approach shall guide biosafety decisions. The principles and
elements of this approach are hereby implemented through the decision-making system in the
NBF;
The NBF contains general principles and minimum guidelines that the concerned agencies are
expected to follow and which their respective rules and regulations must conform with. In cases
of conflict in applying the principles, the principle of protecting public interest and welfare shall
always prevail, and no provision of the NBF shall be construed as to limit the legal authority and
mandate of heads of departments and agencies to consider the national interest and public
welfare in making biosafety decisions.135
As to the conduct of risk assessment to identify and evaluate the risks to human health and the
environment, these shall be guided by the following:
5.2.1 Principles of Risk Assessment. - The following principles shall be followed when
performing a RA to determine whether a regulated article poses significant risks to human health
and the environment:chanRoblesvirtualLawlibrary
5.2.1.1 The RA shall be carried out in a scientifically sound and transparent manner based
on available scientific and technical information. The expert advice of and
guidelines developed by, relevant international organizations, including
intergovernmental bodies, and regulatory authorities of countries with
significant experience in the regulatory supervision of the regulated article
shall be taken into account in the conduct of risk assessment;
5.2.1.2 Lack of scientific knowledge or scientific consensus shall not be interpreted as
indicating a particular level of risk, an absence of risk, or an acceptable risk;
5.2.1.3 The identified characteristics of a regulated article and its use which have the
potential to pose significant risks to human health and the environment shall be
compared to those presented by the non-modified organism from which it is derived
and its use under the same conditions;
5.2.1.4 The RA shall be carried out case-by-case and on the basis of transformation event.
The required information may vary in nature and level of detail from case to case
depending on the regulated article concerned, its intended use and the receiving
environment; and,

5.2.1.5 If new information on the regulated article and its effects on human health and the
environment becomes available, and such information is relevant and significant,
the RA shall be readdressed to determine whether the risk has changed or whether
there is a need to amend the risk management strategies accordingly.
5.2.2 Risk Assessment Guidelines. - The conduct of RA by concerned departments and
agencies shall be in accordance with the policies and standards on RA issued by the NCBP.
Annex III of the Cartagena Protocol shall also guide RA. As appropriate, such department and
agencies may issue their own respective administrative issuances establishing the appropriate
RA under their particular jurisdictions.
5.3 Role of Environmental Impact Assessment. - The application of the EIA System to
biosafety decisions shall be determined by concerned departments and agencies subject to
the requirements of law and the standards set by the NCBP. Where applicable and under
the coordination of the NCBP, concerned departments and agencies shall issue joint guidelines
on the matter. (Emphasis supplied)
Considering the above minimum requirements under the most comprehensive national biosafety
regulation to date, compliance by the petitioners with DAO 08-2002 is not sufficient. Notably,
Section 7 of the NBF mandates a more transparent, meaningful and participatory public
consultation on the conduct of field trials beyond the posting and publication of notices and
information sheets, consultations with some residents and government officials, and submission
of written comments, provided in DAO 08-2002.
SECTION 7. PUBLIC PARTICIPATION
The concerned government departments and agencies, in developing and adopting biosafety
policies, guidelines and measures and in making biosafety decisions, shall promote, facilitate,
and conduct public awareness, education, meaningful, responsible and accountable
participation. They shall incorporate into their respective administrative issuances and processes
best practices and mechanisms on public participation in accordance with the following
guidelines:chanRoblesvirtualLawlibrary
7.1 Scope of Public Participation. - Public participation shall apply to all stages of the
biosafety decision-making process from the time the application is received. For
applications on biotechnology activities related to research and development, limited primarily for
contained use, notice of the filing of such application with the NCBP shall be sufficient, unless
the NCBP deems that public interest and welfare requires otherwise.
7.2 Minimum Requirements of Public Participation. - In conducting public participation
processes, the following minimum requirements shall be followed:chanRoblesvirtualLawlibrary
7.2.1 Notice to all concerned stakeholders, in a language understood by them and through
media to which they have access. Such notice must be adequate, timely, and effective and
posted prominently in public places in the areas affected, and in the case of commercial
releases, in the national print media; in all cases, such notices must be posted electronically in
the internet;
7.2.2 Adequate and reasonable time frames for public participation procedures. Such
procedures should allow relevant stakeholders to understand and analyze the benefits and risks,
consult with independent experts, and make timely interventions. Concerned departments and
agencies shall include in their appropriate rules and regulations specific time frames for their
respective public participation processes, including setting a minimum time frame as may be
appropriate;
7.2.3 Public consultations, as a way to secure wide input into the decisions that are to be made.
These could include formal hearings in certain cases, or solicitation of public comments,
particularly where there is public controversy about the proposed activities. Public consultations
shall encourage exchanges of information between applicants and the public before the
application is acted upon. Dialogue and consensus-building among all stakeholders shall be
encouraged. Concerned departments and agencies shall specify in their appropriate rules and
regulations the stages when public consultations are appropriate, the specific time frames for
such consultations, and the circumstances when formal hearings will be required, including
guidelines to ensure orderly proceedings. The networks of agricultural and fisheries
councils, indigenous peoples and community-based organizations in affected areas shall
be utilized;
7.2.4 Written submissions. Procedures for public participation shall include mechanisms
that allow public participation in writing or through public hearings, as appropriate, and
which allow the submission of any positions, comments, information, analyses or
opinions. Concerned departments and agencies shall include in their appropriate rules and
regulations the stages when and the process to be followed for submitting written comments;
and,
7.2.5 Consideration of public concerns in the decision-making phase following consultation and
submission of written comments. Public concerns as reflected through the procedures for public
participation shall be considered in making the decision. The public shall be informed of the final
decision promptly, have access to the decision, and shall be provided with the reasons and
considerations resulting in the decision, upon request.
We find that petitioners simply adhered to the procedures laid down by DAO 08-2002 and no
real effort was made to operationalize the principles of the NBF in the conduct of field testing
of Bt talong. The failure of DAO 08-2002 to accommodate the NBF means that the Department
of Agriculture lacks mechanisms to mandate applicants to comply with international biosafety
protocols. Greenpeace's claim that BPI had approved nearly all of the applications for GMO field
trials is confirmed by the data posted on their website. For these reasons, the DAO 08-2002
should be declared invalid.
Significantly, while petitioners repeatedly argued that the subject field trials are not covered by
the EIS law, EO 514 clearly mandates that concerned departments and agencies, most
particularly petitioners DENR-EMB, BPI and FPA, make a determination whether the EIS system
should apply to the release of GMOs into the environment and issue joint guidelines on the
matter.
The Philippine EIS System (PEISS) is concerned primarily with assessing the direct and indirect
impacts of a project on the biophysical and human environment and ensuring that these impacts ATTY. SEGUI:chanRoblesvirtualLawlibrary
are addressed by appropriate environmental protection and enhancement measures. It "aids
proponents in incorporating environmental considerations in planning their projects as well as in As far as my recollection can serve me, in a reading of the Petition itself, somewhere along the
determining the environment's impact on their project." There are six stages in the regular EIA Petition, petitioners never alleged that the project, the subject matter rather of this instant
process. The proponent initiates the first three stages while the EMB takes the lead in the last petition, is within an environmentally critical project.
three stages. Public participation is enlisted in most stages. 136
ATTY. SORIANO:chanRoblesvirtualLawlibrary
Even without the issuance of EO 514, GMO field testing should have at least been considered
for EIA under existing regulations of petitioner EMB on new and emerging technologies, to wit: Your Honor the Witness did not answer the question.
g) Group V (Unclassified Projects): These are the projects not listed in any of the groups,
e.g. projects using new processes/technologies with uncertain impacts. This is an interim HON. J. DICDICAN:chanRoblesvirtualLawlibrary
category - unclassified projects will eventually be classified into their appropriate groups after
EMB evaluation.137 (Emphasis supplied) Please answer the question.
All government agencies as well as private corporations, firms and entities who intend to
ATTY. SEGUI:chanRoblesvirtualLawlibrary
undertake activities or projects which will affect the quality of the environment are required to
prepare a detailed Environmental Impact Statement (EIS) prior to undertaking such development
Personally I have conferred with our personnel from the Environmental Impact Assessment
activity.138 An environmentally critical project (ECP) is considered by the EMB as "likely to have
Division and they intimated to me that the locations of the project, rather of this subject matter of
significant adverse impact that may be sensitive, irreversible and diverse" and which "include
the instant petition, not within any declared environmentally critical area.
activities that have significant environmental consequences." 139 In this context, and given the
overwhelming scientific attention worldwide on the potential hazards of GMOs to human health
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
and the environment, their release into the environment through field testing would definitely fall
under the category of ECP.
In other words, you are aware of the area where the BT Talong experiments are being
conducted. Is that the premise?
During the hearing at the CA, Arty. Segui of the EMB was evasive in answering questions on
whether his office undertook the necessary evaluation on the possible environmental impact
ATTY. SEGUI:chanRoblesvirtualLawlibrary
of Bt talong field trials subject of this case and the release of GMOs into the environment in
general. While he initially cited lack of budget and competence as reasons for their inaction, he
Judging from previous discussions we had . . . judging from the Petition, and showing it to the as
later said that an amendment of the law should be made since projects involving GMOs are not
I said personnel from Environmental Impact Division at our office, as I said they intimated to me
covered by Proclamation No. 2146140. Pertinent portions of his testimony before the CA are
that it's not within declared environmentally critical area.
herein quoted:
xxxx
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
ATTY. SORIANO:chanRoblesvirtualLawlibrary
That being the case, you did not act further? [You] did not make any further evaluation, on
whether the activity has an environmental impact? Is that the correct premise?
Let us go back Mr. Witness to your answer in Question No. 5 regarding the list under the PEISS
law. Granting Mr. Witness that a certain project or undertaking is not classified as
ATTY. SEGUI:chanRoblesvirtualLawlibrary
environmentally critical project, how would you know that the BT talong field testing is not
located in an environmentally critical area this time?
Well Your Honors I may be the Chief of the Legal Division of the EMB, I handle more of the legal
aspects of the Bureau's affairs. But when it comes to highly technical matters, I have to rely on
ATTY. ACANTILADO:chanRoblesvirtualLawlibrary
our technical people especially on environmentally impact assessment matters.
Objection Your Honor, argumentative.
ATTY. SORIANO:chanRoblesvirtualLawlibrary
HON. J. DICDICAN:chanRoblesvirtualLawlibrary
I will just ask him another question Your Honors. So did the Department of Agriculture Mr.
Witness coordinate with your Office with regard the field testing of BT Talong?
Witness may answer.
ATTY. SEGUI:chanRoblesvirtualLawlibrary As the section will initially provide. But there must be prior ... may I continue to harp on that Your
Honors. There must be prior ... let's say conditions ... there must be prior evaluation and
I'm sorry Your Honors I am not privy to that personally. assessment just the same by the EMB.

ATTY. SORIANO:chanRoblesvirtualLawlibrary HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

Mr. Witness, the question is did the Department of Agriculture coordinate with your Office with Prior to what Mr. Witness?
regard the field testing of BT Talong as required under the law?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
ATTY. SORIANO:chanRoblesvirtualLawlibrary
We will categorize it as unclassified but there must be ... (interrupted)
Already answered your Honor, objection.
HON. J. VALENZUELA:chanRoblesvirtualLawlibrary
HON. J. DICDICAN:chanRoblesvirtualLawlibrary
So initially you call it unclassified and then you say prior to...
The witness in effect said he does not know, he's not in a position to answer.
ATTY. SEGUI:chanRoblesvirtualLawlibrary
xxxx
I'm sorry Your Honors, may I reform.
ATTY. SORIANO:chanRoblesvirtualLawlibrary
HON. J. VALENZUELA:chanRoblesvirtualLawlibrary
Did the EMB Mr. Witness perform such evaluation in the case of BT Talong field testing?
Yes please.
ATTY. ACANTILADO:chanRoblesvirtualLawlibrary
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Your Honor that is speculative, the witness has just answered a while ago that the EMB has not
yet received any project with respect to that Your Honor. So the witness would not be in a Initially they will be considered/categorized as unclassified but there will be hopefully a
position to answer that Your Honors. subsequent evaluation or assessment of the matter to see if we also have the resources and
expertise if it can be finally unclassified. I should say should fall within the fairview of the system,
HON. J. DICDICAN:chanRoblesvirtualLawlibrary the EIA system. In other words, it's in a sort of how do you say that it's in a state of limbo. So it's
unclassified, that's the most we can do in the meantime.
Lay the basis first.
HON. J. VALENZUELA:chanRoblesvirtualLawlibrary
ATTY. SORIANO:chanRoblesvirtualLawlibrary
And Mr. Witness you also said that the agency the EMB is without the capability to evaluate the
The earlier answer Your Honor of the witness is in general terms. My second question, my projects such as this one in particular?
follow-up question is specifically Your Honor the BT talong field testing.
ATTY. SEGUI:chanRoblesvirtualLawlibrary
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Yes, Your Honors as of now.
Well from where I sit Your Honors, it would appear that it could be categorized as unclassified...
HON. J. VALENZUELA:chanRoblesvirtualLawlibrary
HON. J. VALENZUELA:chanRoblesvirtualLawlibrary
So therefore, when you say initially it's unclassified and then you're saying afterwards the
Unclassified? EMB needs evaluation but then you're saying the EMB is without any capability to
evaluate then what happens?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
ATTY. SEGUI:chanRoblesvirtualLawlibrary

Well Your Honors, I did not draft the regulation myself. As the Chief of the Legal of the
EMB that's how we interpret it. But the truth of the matter is with all pragmatism we don't
have the resources as of now and expertise to do just that.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
So in other words you admit that the EMB is without any competence to make a
categorical or initial examination of this uncategorized activity, is that what you mean?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
It would appear, yes.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
What do you think would prompt your office to make such initial examination?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Well executive fee at the usual dictates ... the Secretary of the DENR probably even by request
of the parties concerned.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
So that means you are waiting for a request? Are you not? Proactive in this activity in performing
your obligations and duties?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Well Your Honors, the national budget if I may ... I attend budget hearings myself. The budget
for the environment is hardly ... the ratio is ... if we want to protect indeed the environment
as we profess, with all due respect if Congress speaks otherwise.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
May I interrupt, can we go into specifics. From what I have read so far, under No. 2 of your
Judicial Affidavit, [you] are saying that the EMB is tasked in advising the DENR on matters
related to environmental management, conservation and pollution control, right?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Yes.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
Thereafter you stated that you are tasked mainly with PD 1586 which refers to Environmental
Critical Areas of Projects and more specifically focused on Proclamation No. 2146. With respect
to this BT Talong, you mentioned that this is at first is uncategorized, it's not within?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
It's not within Proclamation 2146 Your Honor.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
But you did mention that under the rules and regulations, even in an uncategorized activity,
pertaining to the environment, your Office has the mandate and then you later say that your
Office is without competence, do I follow your line of standing?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Yes, precisely it will be categorized as per section 7 as unclassified because it doesn't fall as of
now within Proclamation 2146.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
Yes, but under the implementing rules your Office has the mandate to act on other unclassified
activities and you answered that your Office has no competence.
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Proclamation 2146 executed by then Pres. Marcos, the IRR pointed to was executed by I believe
the Secretary of DENR. We need an amendment of 2146. 141 (Emphasis supplied)
The foregoing stance of the EMB's Chief of the Legal Division is an indication of the DENR-
EMB's lack of serious attention to their mandate under the law in the implementation of the NBF,
as provided in the following sections of EO 514:
4.9 Mandate of the Department of Environment and Natural Resources. - As the primary
government agency responsible for the conservation, management, development and proper
use of the country's environment and natural resources, the Department of Environment and
Natural Resources (DENR) shall ensure that environmental assessments are done and
impacts identified in biosafety decisions. It shall also take the lead in evaluating and
monitoring regulated articles intended for bioremediation, the improvement of forest genetic
resources, and wildlife genetic resources.
xxxx
4.12 Focal Point and Competent National Authorities.
4.12.1 For purposes of Article 19 of the Cartagena Protocol on Biosafety, the national focal point
responsible for liaison with the Secretariat shall be the Department of Foreign Affairs. The
competent national authorities, responsible for performing the administrative functions required
by the Protocol, shall be, depending on the particular genetically modified organisms in question,
the following:chanRoblesvirtualLawlibrary
xxxx Article

4.12.1.4 The Department of Environment and Natural Resources, for biosafety decisions 10
covered by the Protocol that concern regulated organisms intended for bioremediation, the
improvement of forest genetic resources, and wildlife genetic resources, and applications of DECISION PROCEDURE
modern biotechnology with potential impact on the conservation and sustainable use of
biodiversity. (Emphasis supplied) xxxx
On the supposed absence of budget mentioned by Atty. Segui, EO 514 itself directed the
6. Lack of scientific certainty due to insufficient relevant scientific information and knowledge
concerned agencies to ensure that there will be funding for the implementation of the NBF as it
regarding the extent of the potential adverse effects of a living modified organism on the
was intended to be a multi-disciplinary effort involving the different government departments and
conservation and sustainable use of biological diversity in the Party of import, taking also into
agencies.
account risks to human health, shall not prevent that Party from taking a decision, as
SEC. 6. Funding. - The DOST, DENR, DA, and DOH shall allocate funds from their present
appropriate, with regard to the import of the living modified organism in question as referred to in
budgets to implement the NBF, including support to the operations of the NCBP and its
paragraph 3 above, in order to avoid or minimize such potential adverse effects.
Secretariat. Starting 2006 and thereafter, the funding requirements shall be included in the
General Appropriations Bill submitted by each of said departments to Congress.
xxxx
These concerned departments shall enter into agreement on the sharing of financial and
technical resources to support the NCBP and its Secretariat. Article

All told, petitioners government agencies clearly failed to fulfil their mandates in the 11
implementation of the NBF.
PROCEDURE FOR LIVING MODIFIED ORGANISMS
Application of the Precautionary Principle
INTENDED FOR DIRECT USE AS FOOD OR FEED,
The precautionary principle originated in Germany in the 1960s, expressing the normative idea
that governments are obligated to "foresee and forestall" harm to the environment. In the OR FOR PROCESSING
following decades, the precautionary principle has served as the normative guideline for
policymaking by many national governments. 142 The Rio Declaration on Environment and 8. Lack of scientific certainty due to insufficient relevant scientific information and knowledge
Development, the outcome of the 1992 United Nations Conference on Environment and regarding the extent of the potential adverse effects of a living modified organism on the
Development held in Rio de Janeiro, defines the rights of the people to be involved in the conservation and sustainable use of biological diversity in the Party of import, taking also into
development of their economies, and the responsibilities of human beings to safeguard the account risks to human health, shall not prevent that Party from taking a decision, as
common environment. It states that the long term economic progress is only ensured if it is appropriate, with regard to the import of that living modified organism intended for direct use as
linked with the protection of the environment.143 For the first time, the precautionary approach food or feed, or for processing, in order to avoid or minimize such potential adverse effects.
was codified under Principle 15, which reads:
In order to protect the environment, the precautionary approach shall be widely applied by States xxxx
according to their capabilities. Where there are threats of serious or irreversible damage, lack of
full scientific certainty shall not be used as a reason for postponing cost-effective measures to Annex III
prevent environmental degradation.
Principle 15 codified for the first time at the global level the precautionary approach, which RISK ASSESSMENT
indicates that lack of scientific certainty is no reason to postpone action to avoid potentially
serious or irreversible harm to the environment. It has been incorporated in various international General principles
legal instruments.144 The Cartagena Protocol on Biosafety to the Convention on Biological
Diversity, finalized and adopted in Montreal on January 29, 2000, establishes an international xxxx
regime primarily aimed at regulating trade in GMOs intended for release into the environment, in
accordance with Principle 15 of the Rio Declaration on Environment and Development. The 4. Lack of scientific knowledge or scientific consensus should not necessarily be interpreted as
Protocol thus provides: indicating a particular level of risk, an absence of risk, or an acceptable risk.
The precautionary principle applies when the following conditions are met 145:
 there exist considerable scientific uncertainties;
 there exist scenarios (or models) of possible harm that are scientifically
reasonable (that is based on some scientifically plausible reasoning);
 uncertainties cannot be reduced in the short term without at the same time
increasing ignorance of other relevant factors by higher levels of abstraction and
idealization;
 the potential harm is sufficiently serious or even irreversible for present or future
generations or otherwise morally unacceptable;
 there is a need to act now, since effective counteraction later will be made
significantly more difficult or costly at any later time.
The Rules likewise incorporated the principle in Part V, Rule 20, which states:
PRECAUTIONARY PRINCIPLE
SEC. 1. Applicability. - When there is a lack of full scientific certainty in establishing a causal link
between human activity and environmental effect, the court shall apply the precautionary
principle in resolving the case before it.
The constitutional right of the people to a balanced and healthful ecology shall be given the
benefit of the doubt.
SEC. 2. Standards for application. - In applying the precautionary principle, the following factors,
among others, may be considered: (1) threats to human life or health; (2) inequity to present or
future generations; or (3) prejudice to the environment without legal consideration of the
environmental rights of those affected.
Under this Rule, the precautionary principle finds direct application in the evaluation of evidence
in cases before the courts. The precautionary principle bridges the gap in cases where scientific
certainty in factual findings cannot be achieved. By applying the precautionary principle, the
court may construe a set of facts as warranting either judicial action or inaction, with the goal of
preserving and protecting the environment. This may be further evinced from the second
paragraph where bias is created in favor of the constitutional right of the people to a balanced
and healthful ecology. In effect, the precautionary principle shifts the burden of evidence of harm
away from those likely to suffer harm and onto those desiring to change the status quo. An
application of the precautionary principle to the rules on evidence will enable courts to tackle
future environmental problems before ironclad scientific consensus emerges. 146
For purposes of evidence, the precautionary principle should be treated as a principle of last
resort, where application of the regular Rules of Evidence would cause in an inequitable result
for the environmental plaintiff
— (a) settings in which the risks of harm are uncertain; (b) settings in which harm might be
irreversible and what is lost is irreplaceable; and (c) settings in which the harm that might result
would be serious. When these features
— uncertainty, the possibility of irreversible harm, and the possibility of serious harm —
coincide, the case for the precautionary principle is strongest. When in doubt, cases must be
resolved in favor of the constitutional right to a balanced and healthful ecology. Parenthetically,
judicial adjudication is one of the strongest fora in which the precautionary principle may find
applicability.147
Assessing the evidence on record, as well as the current state of GMO research worldwide, the
Court finds all the three conditions present in this case - uncertainty, the possibility of irreversible
harm and the possibility of serious harm.
Eggplants (talong) are a staple vegetable in the country and grown by small-scale farmers,
majority of whom are poor and marginalized. While the goal of increasing crop yields to raise
farm incomes is laudable, independent scientific studies revealed uncertainties due to unfulfilled
economic benefits from Bt crops and plants, adverse effects on the environment associated with
use of GE technology in agriculture, and serious health hazards from consumption of GM foods.
For a biodiversity-rich country like the Philippines, the natural and unforeseen consequences of
contamination and genetic pollution would be disastrous and irreversible.
Alongside the aforesaid uncertainties, the non-implementation of the NBF in the crucial stages of
risk assessment and public consultation, including the determination of the applicability of the
EIS requirements to GMO field testing, are compelling reasons for the application of the
precautionary principle. There exists a preponderance of evidence that the release of GMOs into
the environment threatens to damage our ecosystems and not just the field trial sites, and
eventually the health of our people once the Bt eggplants are consumed as food. Adopting the
precautionary approach, the Court rules that the principles of the NBF need to be
operationalized first by the coordinated actions of the concerned departments and agencies
before allowing the release into the environment of genetically modified eggplant. The more
prudent course is to immediately enjoin the Bt talong field trials and approval for its propagation
or commercialization until the said government offices shall have performed their respective
mandates to implement the NBF.
We have found the experience of India in the Bt brinjal field trials - for which an indefinite
moratorium was recommended by a Supreme Court-appointed committee till the government
fixes regulatory and safety aspects - as relevant because majority of Filipino farmers are also
small-scale farmers. Further, the precautionary approach entailed inputs from all stakeholders,
including the marginalized farmers, not just the scientific community. This proceeds from the
realization that acceptance of uncertainty is not only a scientific issue, but is related to public
policy and involves an ethical dimension.148 For scientific research alone will not resolve all the
problems, but participation of different stakeholders from scientists to industry, NGOs, farmers
and the public will provide a needed variety of perspective foci, and knowledge. 149
Finally, while the drafters of the NBF saw the need for a law to specifically address the concern
for biosafety arising from the use of modern biotechnology, which is deemed necessary to
provide more permanent rules, institutions, and funding to adequately deal with this
challenge,150 the matter is within the exclusive prerogative of the legislative branch. 9
University of the Philippines Los Baños National Institute of Molecular Biology and
Biotechnology, "About Us" <http://biotech.uplb.edu.ph/index.php/en/about-us> (visited last
WHEREFORE, the petitions are DENIED. The Decision dated May 17, 2013 of the Court of November 7, 2014).
Appeals in CA-G.R. SP No. 00013 is hereby MODIFIED, as follows:chanRoblesvirtualLawlibrary
10
The Center for Media and Democracy, "GMOs in the Philippines"
1. The conduct of the assailed field testing for Bt talong is hereby PERMANENTLY ENJOINED; <http:/www.sourcewatch.org/index.php/GMOs_in_the_Philippines>, (visited last November 7,
2014).
2. Department of Agriculture Administrative Order No. 08, series of 2002 is declared NULL AND
11
VOID; and Id. (See also CA rollo, pp. 882-884).
12
3. Consequently, any application for contained use, field testing, propagation and EO 514, Sec. 2.1.
commercialization, and importation of genetically modified organisms is TEMPORARILY
13
ENJOINED until a new administrative order is promulgated in accordance with law. Id., Sec. 8.
14
No pronouncement as to costs. CA rollo (Vol. I), pp. 82-84.
15
SO ORDERED.chanroblesvirtuallawlibrary Id. at 85-86.
16
Sereno, C.J., Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Perez, Mendoza, Reyes, CA rollo (Vol. II), pp. 885-886.
and Perlas-Bernabe, JJ., concur.
17
Carpio, J., no part prior inhibition. Id. at 1058-1064.
Velasco, Jr., J., pls. see Concurring Opinion.
18
Brion, J., on official leave. CA rollo (Vol. I), pp. 67-69.
Leonen, J., see separate concurring opinion.
18-a
Jardeleza, J., no part. Id. at 400.
19
Endnotes: A.M. No. 09-6-8-SC (2010).
20
CA rollo (Vol. III), p. 2026.
1
Rollo (G.R. No. 209271), pp. 135-159. Penned by Associate Justice Isaias P. Dicdican with 21
Id. at 2120-2123. UPLB was not served with the writ of kalikasan issued by this Court nor
Associate Justices Myra V. Garcia-Fernandez and Nina G. Antonio-Valenzuela concurring.
furnished with copy of the petition of Greenpeace, et al. Its Answer, adopting the arguments and
2 allegations in the verified return filed by UPLBFI, was filed in the CA. See CA Resolution dated
Id. at 161-174.
August 17, 2012, id. at 2117-2119.
3
CA rollo (Vol. VI), Annex "O" of Biotech Petition. 22
Id. at 2100.
4
<http://www.isaaa.org/inbrief//default.asp> (visited last November 7, 2014). 23
Id. at 2312-2324.
5
UPLBFI, "History" <http://uplbfi.org/?page_id=231/> (visited last November 7, 2014). 24
CA rollo (Vol. IV), pp. 2450-2460.
6
"AN ACT TO STRENGTHEN THE UNIVERSITY OF THE PHILIPPINES AS THE NATIONAL 25
Id. at 2864-2871.
UNIVERSITY."
26
7 Rollo (G.R. No. 209271), Vol. 1, pp. 157-158.
RA 9500, Sec. 3(c).
27
8 SECTION 1. Applicability. - When there is lack of full scientific certainty in establishing a
Susan R. Barnum, Biotechnology: An Introduction by 1 (1998).
causal link between human activity and environmental effect, the court shall apply the
 46
precautionary principle in resolving the case before it. Santiago v. Court of Appeals, 348 Phil. 792, 800 (1998).
47
The constitutional right of the people to a balanced and healthful ecology shall be given the Barbieto v. Court of Appeals, G.R. No. 184645, October 30, 2009, 604 SCRA 825, 840.
benefit of the doubt.
48
Office of the Deputy Ombudsman for Luzon v. Francisco, Sr., G.R. No. 172553, December 14,
28
Rollo (GR. No. 209271), Vol. I, pp. 168-170. 2011, 662 SCRA 439,449, citing David v. Macapagal-Arroyo, supra note 38, at 754.
29 49
Id. at 35-37. 546 Phil. 87, 96-98 (2007).
30 50
Id. at 81. See Boracay Foundation, Inc. v. Province of Aklan, G.R. No. 196870, June 26, 2012, 674
SCRA 555, 608.
31
Rollo (G.R. No. 209301), pp. 48-50, 53-55.
51
George Acquaah, Understanding Biotechnology: an integrated and cyber-based approach,
32
Rollo (G.R. No. 209271), Vol. IX, pp. 4111-4112. Citations omitted. (Pearson Education, Inc., 2004) at 62, 64, 69 and 70.
33 52
Id. at 4112-4115. Citations omitted. Id. at 72.
34 53
Rollo (G.R. No. 209271), Vol. IX, p. 4115. Nancy Harris, Genetically Engineered Foods, (Greenhaven Press, 2004) at 5-6.
35 54
Id., Vol. XI, pp. 5715-5717. Id. at 7.
36 55
Id. at 5835-5837. Sheweta Barak, Deepak Mudgil and B.S. Khatkar, "Genetically modified food: benefits, safety
aspects and concerns" Asian Journal of Food and Agro-
37
Rollo (G.R. No. 209271), Vol. V, pp. 2386-2387. Industry <www.ajofai.info/Abstact/Genetically%2food%20benefits,%20safety%20aspects%2conc
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38
Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011, 641 SCRA 244, 254, citing David
56
v. Macapagal-Arroyo, 522 Phil. 705, 755 (2006). Id. at 550.
39 57
Id., citing Jumamil v. Cafe, 507 Phil. 455, 465 (2005). Herbicide is defined as "a poisonous substance used to destroy unwanted plants." (Compact
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40
Social Justice Society (SJS) v. Dangerous Drugs Board, et al., 591 Phil. 393, 404
58
(2008); Tatad v. Secretary of the Department of Energy, 346 Phil. 321 (1997); and De Guia v. Supra note 55, at 551-552.
COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422.
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Id. at 552-553.
41
Kilosbayan Incorporated v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110, 137.
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Indur M. Goklany, "Applying the Precautionary Principle to Genetically Modified Crops" Policy
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of-crops.html>. (visited last December 7, 2014). Mr. Neil J. Young QC, "Expert Witnesses: On the stand or in the hot tub - how, when and
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CA rollo (Vol. V), pp. 3482-3488.
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<http://cls.casa.colostate.edu/transgeniccrops/croptocrop.html>. CA rollo (Vol. III), pp. 1834-1836.
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"Biology of Brinjal" <http://dbtbiosafety.nic.in/guidelines/brinjal.pdf>. Id. at 1940-1944.
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Lilliston, supra note 71, at 54. CA rollo (Vol.I), pp. 164-165.
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A landrace is defined as "a dynamic population(s) of a cultivated plant that has historical origin, Id. at 2444-2445.

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Plot <http://nourishingplot.com/2014/06/24/retracted-scientific-studv-on-gmo-rats-republished/>
(visited last December 6, 2014); Plotner, Becky, "GMO Rat Study Forcibly
Retracted," Nourishing Plot <http://nourishingplot.com/2014/01/05/gmo-rat-study-forcibly-
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Anne Ingeborg Myrh and Terje Traavik, "The Precautionary Principle: Scientific Uncertainty
and Omitted Research in the Context of GMO Use and Release,"
<https://www.cbd.int/doc/articles/2008/A-00637.pdf> (visited last December 6, 2014).
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James Clive, 2013. Global Status of Commercialized Biotech GM Crops: 2013. ISAAA
Brief No. 46. ISAAA: Ithaca, NY.
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the Debate," <http://www.brighthub.com/science/genetics/articles/23358.aspx> (visited last
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Harry A. Kuiper, Gijs A. Kleter, Hub P.J.M. Noteborn and Esther J. Kok, "Assessment of the
Food Safety Issues Related to Genetically Modified Foods,
<http://www.data.forestry.oregonstate.edu/orb/BiotechClass/2004%20materials/5A-
FOOD%20REG/Plant%20Journal%202001.pdf>.
102
Joint FAO/WHO Biotechnology and Food Safety Report, 1996, p. 4.
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Origin," <http://www.fao.org/fileadmin/templates/agns/pdf/topics/ec_june2000_en.pdf> (visited
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Id. at 5.
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Mae-Wan Ho and Ricarda A. Steinbrecher, "Fatal Flaws in Food Safety Assessment: Critique
of The Joint FAO/WHO Biotechnology and Food Safety Report," Accessed at
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Derived From Genetically Modified Organisms" AgBiotech Net (April 2000)
<http://www.bfr.bund.de/cm/349/schauzu.pdf> (visited last December 6, 2014.)
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and European Perspectives on their Ability to Reduce Pesticide Use," Journal of Animal and
Feed Sciences (January 31, 2002), <http:///cib.org.br/wp-
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<http://responsibletechnology.org/docs/gm-crops-do-not-increase-yields.pdf>.
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Human Rights Advocates, "Promoting Right to Food Through Food Sovereignty,"
<http://www.humanrightsadvocates.org/wp-content/uploads/2014/03/HRC-25-Promoting-Right-
to-Food-Through-Food-Sovereignty.pdf> (visited last December 6, 2014).
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<http://ec.europa.eu/food/food/biotechnology/reports_studies/docs/It_effects_report_en.pdf>.
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Principle," <https://www.testbiotech.org/sites/default/files/GMO%20and%20precaution.pdf>
(visited last December 7, 2014).
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Ingeborg and Traavik, supra note 98, at 73, 80-81.
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Marcelo Gortari, "GMOs, Risk and the Precautionary Principle," Public Policy & Governance
Review (July 11, 2013) <http://ppgreview.ca/2013/07/ll/gmos-risk-and-the-precautionary-
principle/> (visited last December 7, 2014).
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"Open Letter from World Scientists to All Government Concerning Genetically Modified
Organisms (GMOs)," <http://www.i-sis.org.uk/list.php> (visited last December 7, 2014).
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International Assessment of Agricultural Knowledge, Science and Technology for
Development (IAASTD), "Agriculture at a Crossroads,"
<http://www.unep.org/dewa/agassessment/reports/IAASTD/EN/Agriculture%20at%20a%20Cros
sroads_Global%20Report%20(English.pdf> (visited last December 7,2014).
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"The Case for a GM-Free Sustainable World - A Summary," <http://www.i-sis.org.uk/ispr-
summary.php> (visited last December 7, 2014.).
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Id.
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Supra note 116.
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International Assessment of Agricultural Knowledge, Science and Technology for
Development (IAASTD), "Biotechnology and Sustainable Development," <www.biosafety-
info.net/file_dir/4542994024ca566872c339.pdf> (visited last December 7, 2014).
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"No scientific consensus on safety of genetically modified organisms,"
<http://phys.org/news/2013-10-scientific-consensus-safety-genetically.html> (visited last
December 7, 2014).
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scientific consensus on GMO safety," <http://www.ensser.org/increasing-public-information/no-
scientific-consensus-on-gmo-safety/> (visited last December 7, 2014). at
<https://www.doe.gov.ph/microsites/ipo%20web/linked%20files/2013/MEIF2013/03_DENR_Proc
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Citations omitted. edures.pdf>.
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Walden Bello, "GMO Wars: The Global Battlefield," Foreign Policy in Proclaiming Certain Areas and Types of Projects as Environmentally Critical and Within the
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<http://www.greenpeace.org/seasia/ph/Global/seasia/report/2007/10/ties-that-bind-regulatory- <http://unesdoc.unesco.org/images/0013/001395/139578e.pdf>.
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Id., Sec. 2.2.2.
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Anne Ingeborg-Myhr and Terje Traavik, "Genetically Modified (GM) Crops: Precautionary
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Id., Sec. 2.7.
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CONCURRING OPINION
EISS (PEISS).
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VELASCO,JR., J.:
139
Overview of the Environmental Impact Assessment Process, 25 September 2013. Accessed

Technological and scientific advances no longer involve raw materials manipulation and
transformation. It now embraces changing the very genetic make-up of live organisms, altering
and even mixing characteristics of flora, fauna, microorganisms, among others, for various
purposes, including attempts to increase agricultural yield and improve and develop sustainable
pest control.
The Philippines is not insulated from this genetic modification of organisms as it is, in fact, a
regulated activity in this jurisdiction. But, in view of the possible dangers that the activity poses to
the biodiversity-rich environs of the country, environmental protection in the Philippines has
evolved to adapt to these progresses and is still being further strengthened via executive,
legislative, and judicial efforts.
At bar are consolidated petitions seeking the reversal of the Decision of the Court of Appeals
(CA) dated May 17, 2013, as well as its Resolution dated September 20, 2013, in CA-G.R. SP
No. 00013 which permanently enjoined the conduct of field trials for the genetically modified
eggplant, commonly known as "Bt Talong" on concerns for biosafety.
Biosafety is a condition in which the probability of harm, injury and damage resulting from the
intentional and unintentional introduction and/or use of a regulated article is within acceptable
and manageable levels.1 "Regulated article" refers to genetically modified organisms 2 (GMOs),
which are "living modified organisms" under the Cartagena Protocol on Biosafety and refers to
any living organism that possesses a novel combination of genetic material obtained through the
use of modern biotechnology.3 Regulated articles also include the products of GMOs.4
Prior, however, to the introduction of biotechnology and genetic modification of organisms in the
Philippines, one of the main enactments governing environmental protection is Presidential
Decree No. 1151 (PD 1151) or the Philippine Environmental Policy issued by then President
Ferdinand E. Marcos on June 6, 1977.
The Philippine Environmental Impact Statement System (PEISS)
PD 1151, which put in place the use of Environmental Impact Statements in this jurisdiction,
declares as the State's continuing policy (a) to create, develop, maintain and improve conditions
under which man and nature can thrive in productive and enjoyable harmony with each other; (b)
to fulfill the social, economic and other requirements of present and future generations of
Filipinos; and (c) to insure the attainment of an environmental quality that is conducive to a life of
dignity and well-being.
In pursuit of its above-stated policy, Section 4 of PD 1151 requires thusly:
[A]ll agencies and instrumentalities of the national government, including government-owned or
controlled corporations, as well as private corporations, firms and entities shall prepare, file and
include in every action, project or undertaking which significantly affects the quality of the
environment a detailed statement on —
(a) the environmental impact of the proposed action, project or undertaking;
(b) any adverse environmental effect which cannot be avoided should the proposal be
implemented;
(c) alternative to the proposed action;
(d) a determination that the short-term uses of the resources of the environment are consistent
with the maintenance and enhancement of the long-term productivity of the same; and
(e) whenever a proposal involves the use of depletable or non- renewable resources, a finding
must be made that such use and commitment are warranted.
Before an environmental impact statement (EIS) 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.
Thereafter, to give more teeth to the EIS requirement, PD 1586 5 was issued on June 11, 1978,
establishing the EIS System (PEISS), instituting a systems-oriented and integrated approach to
the filing of the EIS in coordination with the whole environmental protection program of the
State.6 Section 2 thereof states:
There is hereby established an Environmental Impact Statement System founded and based on
the environmental impact statement required under Section 4 of Presidential Decree No. 1151,
of all agencies and instrumentalities of the national government, including government-owned or
controlled corporations, as well as private corporations, firms and entities, for every proposed
project and undertaking which significantly affect the quality of the environment.
To reiterate, Section 4 of PD 1151, on the other hand, provides:
Environmental Impact Statements. Pursuant to the above enunciated policies and goals, all
agencies and instrumentalities of the national government, including government-owned or
controlled corporations, as well as private corporations, firms and entities shall prepare, file and
include in every action, project or undertaking which significantly affects the quality of the
environment a detailed statement on
(a) the environmental impact of the proposed action, project or undertaking
(b) any adverse environmental effect which cannot be avoided should the proposal be
implemented
(c) alternative to the proposed action
(d) a determination that the short-term uses of the resources of the environment are consistent
with the maintenance and enhancement of the long-term productivity of the same; and
(e) whenever a proposal involves the use of depletable or 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.
As part of the PEISS, Section 4 of PD 1586 provides that "the President of the Philippines may,
on his own initiative or upon recommendation of the National Environmental Protection Council,
by proclamation declare certain projects, undertakings or areas in the country as environmentally
critical." Pursuant thereto, Proclamation No. 2146 was issued on December 14, 1981, declaring
certain areas7 and types of projects8 as environmentally critical and within the scope of the
Environmental Impact Statement System established under PD 1586. 9
In connection therewith, the same provision declares that "[n]o person, partnership or
corporation shall undertake or operate any such declared environmentally critical project or area
without first securing an Environmental Compliance Certificate (ECC) issued by the President or
his duly authorized representative."10
For those projects that are identified to be environmentally non-critical, Section 5 of the same
law provides that "[a]ll other projects, undertakings and areas not declared by the Presidents as
environmentally critical shall be considered as non-critical and shall not be required to submit an
environmental impact statement."
Thus and simply put, under the PEISS, if the project is itself identified to be environmentally
critical or to be undertaken at an environmentally critical area, the proponent has to secure an
ECC. If, however, the project is identified under the PEISS as environmentally non-critical and is
not to be undertaken in an environmentally critical area, then the proponent will secure a
Certificate of Non-Coverage (CNC) instead of an ECC.
It is, however, well to note that even though a project may be certified as not covered by the
environmental impact assessment requirement, still, there is nothing that will bar the government
agencies concerned from requiring from the proponent the adoption of additional environmental
safeguards that they may deem necessary.11
Hence, before the entry of biotechnology in Philippine jurisdiction and the introduction of GMOs
to its soil, and even after such, it is the PEISS that primarily governs projects that have or may
have an impact on the country's ecological balance and makeup, whether the project involves
biotechnology or not. And it was only in 1990, or almost a decade after the issuance of
Presidential Proclamation No. 2146 identifying environmentally critical areas and projects, when
the government began regulating Biotechnology research in the country.
Philippine Regulations on Biotechnology and Biosafety
In 1987, scientists from the University of the Philippines Los Banos (UPLB) and the International
Rice Research Institute (IRRI), the Quarantine Officer of the Bureau of Plant Industry (BPI), and
the Director for Crops of the Philippine Council for Agriculture, Forestry and Natural Resources
Research and Development (PCARRD), recognizing the potential harm of the introduction of
exotic species and genetic engineering, formed a committee and formulated the biosafety
protocols and guidelines for genetic engineering and related research activities for UPLB and
IRRI researchers. The committee went on to draft a Philippine biosafety policy, which was
submitted to the Office of the President. 12
On the basis of said submission, on October 15, 1990, then President Corazon C. Aquino signed
Executive Order No. 430 (EO 430) constituting the National Committee on Biosafety of the
Philippines (NCBP) among other purposes.13 Said directive was issued in recognition of the
value of biotechnology and its high potential to improve the quality of human life, as well as the
possible concomitant risks and hazards that biotechnology may pose to health safety,
environment, and society.14
EO 430 created the National Committee on Biosafety of the Philippines (NCBP) and vested upon
it the following functions, to wit:
(a) Identify and evaluate potentials hazards involved in initiating genetic engineering experiments
or the introduction of new species and genetically engineered organisms and recommend
measures to minimize risks;
(b) Formulate and review national policies and guidelines on biosafety, such as the safe conduct
of work on genetic engineering, pests and their genetic materials for the protection of public
health, environment and personnel and supervise the implementation thereof;
(c) Formulate and review national policies and guidelines in risk assessment of work
biotechnology, and supervise the implementation thereof;
(d) Develop working arrangements with the government quarantine services and institutions in
the evaluation, monitoring, and review of projects vis-a-vis adherence to national policies and
guidelines on biosafety;
(e) Assist in the development of technical expertise, facilities and other resources for quarantine
services and risk assessments;
(f) Recommend the development and promotion of research programs to establish risk
assessment protocols and assessment of long-term environmental effects of biological research
covered by these guidelines;
(g) Publish the results of internal deliberation and agency reviews of the committee;
(h) Hold public deliberations on proposed national policies, guidelines and other biosafety
issues;
(i) Provide assistance in the formulation, amendment of pertinent laws, rules and regulations;
and
(j) Call upon the assistance of any government agency, department, office, bureau including
government-owned and/or controlled corporations.15ChanRoblesVirtualawlibrary
Pursuant to its mandate, the NCBP published the first version of the Philippine National
Biosafety Guidelines in 1991 (1991 Guidelines). Said Guidelines governs regulating the
importation, transfer and use of GMOs and potentially harmful exotic species in the Philippines,
with focus on potentially hazardous work performed under contained conditions. Since the
publication of the first edition, the NCBP has received and evaluated more than eighty (80)
project proposals, all of which were to be performed under contained conditions. However,
recognizing the rapid advances in other countries in respect of field trials of selected GMOs, the
NCBP decided to look into the adequacy and relevance of the Guidelines, particularly as it
relates to planned release.
In 1996, the NCBP started to review the Guidelines with the view of revising it to address the
concerns of both the scientific and environmental communities. Hence, the second edition was
issued on May 15, 1998. Series No. 3 of the second edition contains the guidelines on the
deliberate release of GMOs and Potentially Harmful Exotic Species (PHES) into the Philippine
Environment.16 Furthermore, it specifically repealed the provisions of the 1991 Guidelines on
field release of regulated materials which are inconsistent therewith.17
From 1990 to 2002, the NCBP's scope of mandate included research and development in the
laboratory, screenhouse and in the field. 18Regulation of field testing was later removed from
the NCBP's mandate when the Department of Agriculture (DA) issued Administrative Order No.
8 (AO No. 8, s. 2002) or the "Rules and Regulations for the Importation and Release into the
Environment of Plants and Plant Products Derived from the Use of Modern Biotechnology."
AO No. 8, s. 2002 was approved on April 3, 2002 and became operational in July 2003. 19 It
covers the importation or release into the environment of:
 1. Any plant which has been altered or produced through the use of modern biotechnology
if the donor organism, host organism, or vector or vector agent belongs to any of the
genera or taxa classified by BPI as meeting the definition of plant pest or is a medium for
the introduction of noxious weeds; or
2. Any plant or plant product altered or produced through the use of modern biotechnology
which may pose significant risks to human health and the environment based on
available scientific and technical information.20
Furthermore, it specifically provides that it shall not apply to the contained use of a regulated
article, which is within the regulatory supervision of the NCBP.21 With these, the administrative
order thus transferred regulation of field testing of biotech crops to the DA's Bureau of Plant
Industry (BPI), among others.22
With DA AO No. 8, s. 2002, field tests and eventual commercial propagation of biotech crops
would be handled by the DA-BPI, instead of the NCBP, starting July 2003. Thus, DA AO 8
redefined the NCBP's tasks to focus on contained facility R & D involving genetically modified
organisms. However, NCBP continued to review and formulate policies on biotechnology as well
as review and modify the science-based risk assessment of protocols to be used by the
regulatory agencies implementing the commercial guidelines. All applications for field tests
received before July 1, 2003 remained under the supervision of the NCBP until their
completion.23
Meanwhile, or on September 11, 2003, the ratification by the Philippines of the Cartagena
Protocol on Biosafety entered into force, prompting the issuance by then President Gloria
Macapagal-Arroyo of Executive Order No. 514 (EO 514), series of 2006 on March 17, 2006.
Said executive order established the National Biosafety Framework (NBF), prescribed guidelines
for its implementation, strengthening the NCBP, among others.
EO 514 highlighted the need to enhance the existing biosafety framework to better respond to
the challenges presented by further advances in modern biotechnology and to comply with the
administrative requirements of the Cartagena Protocol on Biosafety. 24 Consistent with these, the
NBF has the following objectives, viz:
2.2.1. Strengthen the existing science-based determination of biosafety to ensure the safe and
responsible use of modern biotechnology so that the Philippines and its citizens can benefit from
its application while avoiding or minimizing the risks associated with it;
2.2.2. Enhance the decision-making system on the application of products of modern
biotechnology to make it more efficient, predictable, effective, balanced, culturally appropriate,
ethical, transparent and participatory; and
2.2.3. Serve as guidelines for implementing international obligations on biosafety.
In order to put these objectives into action, EO 514 strengthened the NCBP through the
expansion of its composition25 and functions.
Anent its composition, EO 514 provides thusly:
The NCBP shall be composed of the following: The Secretaries of the Departments of Science
and Technology, Agriculture, Health, Environment and Natural Resources, Foreign Affairs, Trade
and Industry, and Interior and Local Governments or their designated representatives.
The DOST Secretary shall be the permanent Chair; A consumer representative appointed by the
President from a list submitted by nationally recognized consumer organizations, serving for a
term of three (3) years, renewable for another term;
A community representative from the farmers, fisherfolk and indigenous sector appointed by the
President from a list submitted by nationally recognized sectoral organizations, serving for a term
of three (3) years, renewable for another term;
4.2.4 A representative from industry appointed by the President from a list submitted by the
Secretary of Trade and Industry, serving for a term of three (3) years, renewable for another
term; and,
A biological scientist, physical scientist, environmental scientist, health scientist, and social
scientist to be endorsed by the DOST Secretary upon the recommendation of recognized
professional and collegial bodies such as the National Academy of Science and Technology
(NAST) and the Philippine Social Science Council (PSSC), and appointed by the President, each
serving for a term of three (3) years, renewable for another term.
This new NCBP was then directed to, among others:
1. set the national scientific and technical biosafety standards on methods and procedures
for ensuring biosafety in the country, consistent with existing laws; and
2. to develop basic policies on addressing public interests on biosafety, provided that the
same are consistent with law and if such policies are found insufficiently addressed in
existing mandates and regulations of pertinent agencies. 26
The DA was designated as the agency that shall address biosafety issues related to the
country's agricultural productivity and food security. 27Additionally, the DA was directed to
exercise such jurisdiction and other powers that it has been conferred with under existing laws,
in coordination with other concerned departments and agencies, and consistent with the
requirements of transparency and public participation as provided in Sections 6 and 7 of the
NBF. Moreover, it was mandated to take the lead in evaluating and monitoring plant and plant
products derived from the use of modern biotechnology, as provided in Department of
Agriculture Administrative Order No. 008, s. 2002.
The Department of Science and Technology (DOST), on the other hand, is to take the lead in
ensuring that the best available science is utilized and applied in adopting biosafety policies,
measures and guidelines, and in making biosafety decisions. It also was tasked to ensure that
such policies, measures, guidelines and decisions are made on the basis of scientific information
that is of the highest quality, multi-disciplinary, peer-reviewed, and consistent with international
standards as they evolve.28
The Department of Environment and Natural Resources (DENR) was mandated to ensure that
environmental assessments are done and impacts identified in biosafety decisions. It shall
also take the lead in evaluating and monitoring regulated articles intended for bioremediation,
the improvement of forest genetic resources, and wildlife genetic resources. 29

With respect to its functions, Item 4.6, Section 4 of EO 514 provides thusly:
4.6 Powers and Functions of the NCBP. As the lead body in implementing the NBF, the NCBP
shall have the following powers and functions:chanRoblesvirtualLawlibrary
4.6.1 Biosafety Policy Functions
Assist concerned departments and agencies in formulating, reviewing, or amending their
respective policies, measures and guidelines on biosafety;
Hold public deliberations on proposed national policies, guidelines, and other biosafety issues;
4.6.1.3 Provide assistance in the formulation, amendment of pertinent laws, rules and
regulations;
4.6.1.4 In coordination with concerned departments and agencies and consistent with the
requirements of transparency and public participation as provided in Sections 6 and 7 of the
NBF, shall take the lead in periodically reviewing the NBF; Issue detailed guidelines on the
conduct of socio-economic impact evaluation of biosafety decisions; and,
Propose to Congress necessary and appropriate legislation.
4.6.2 Accountability Functions
4.6.2.1 Monitor the implementation of the NBF by concerned departments and agencies;
4.6.2.2 Ensure coordination among competent national authorities that have shared mandates;
4.6.2.3 Ensure that NCBP guidelines, and the principles and processes established in this
Framework are complied with by concerned departments and agencies; and,
Review procedures for accountability in biosafety decision-making by competent national
authorities, with particular emphasis on ensuring independence and impartiality in such
decisions.
4.6.3 Scientific Functions
4.6.3.1 Facilitate the study and evaluation of biosafety research and control and minimize the
concomitant risks and hazards associated with the deliberate release of regulated articles in the
environment;
4.6.3.2 Identify and evaluate potential hazards involved in modern biotechnological experiments
or the introduction of regulated articles and recommend measures to minimize risks;
4.6.3.3 Recommend the development and promotion of research programs to establish risk
assessment protocols and assessment of long-term environmental effects of regulated articles;
4.6.3.4 Develop working arrangements with the government quarantine services and institutions
in the evaluation, monitoring, and review of projects vis-a-vis adherence to national policies and
guidelines on biosafety;
4.6.3.5 Review and develop guidelines in the risk assessment of regulated articles for contained
use;
4.6.3.6 Assist other agencies in developing risk assessment guidelines and procedures of
regulated articles for field trials and commercial release;
4.6.3.7 Review the appointment of the members of the Institutional Biosafety Committees
created by institutions engaged in activities involving regulated articles, upon recommendation
by their respective heads of institutions;
4.6.3.8 Publish the results of internal deliberations and agency reviews of the NCBP;
4.6.3.9 Hold, discussions on the comparative ecological, economic and social impacts of
alternative approaches to attain the purposes/objectives of the proposed genetic modification
products and/or services; and,
4.6.3.10 Perform such functions as may be requested by concerned departments and agencies.
4.6.4 Capacity Building Functions
4.6.4.1 Assist in the development of technical expertise, facilities, and other resources for
quarantine services and risk assessments; and,
4.6.4.2 Take the lead in developing and implementing a national capacity- building program for
biosafety.
As to its effect on existing policies, rules, and issuances, specifically DA AO No. 8, s. 2002, it is
well to note that Section 830 of EO 514 specifically provided that DA AO No. 8, s. 2002 remains
to be in force and effect.
Despite the issuance, however, of EO 514, new biosafety policies or guidelines on GMO field
testing have yet to be issued. Furthermore, DA AO No. 8, s. 2002 has not been amended. As
such, it remains to be the rules that primarily govern the conduct of field trials for genetically
engineered plants and crops in our jurisdiction, as noted by the ponencia.
As it stands, application for field testing of regulated articles is governed by Part III (Approval
Process for Field Testing of Regulated Articles) of DA AO No. 8, s. 2002, Section 7 of which
states that:
No regulated article shall be released into the environment for field testing, unless: (i) a Permit to
Field Test has been secured from the BPI; and (ii) the regulated article has been tested under
contained conditions in the Philippines. x x x
It is important, however, to emphasize that despite the issuance of DA AO No. 8, s. 2002, the
NBF, and the NCBP Guidelines, other statutory requirements or those required by agencies
remain in full force and effect.31 This is bolstered by the fact that EO 514, as mentioned by
the ponencia, requires the determination by the concerned departments or agencies of whether
the Philippine Environmental Impact Assessment (EIA) System should be applied to biosafety
decisions.32 EO 514 also requires the DENR, as a member of the NCBP, to ensure that
environmental assessments are done and impacts identified in biosafety decisions. 33
The Present Controversy
The Bt Talong is a type of eggplant bio-engineered to develop resistance to lepidopteran larvae,
through the incorporation of crystal toxin genes from the soil bacterium Bacillus thuringiensis
(Bt) which triggers the production of the protein CrylAc which is toxic to the said target insect
pests.
Under the regulatory supervision of the NCBP, a contained experiment was started in 2007 and
officially completed on March 3, 2009. The NCBP, thus, issued a Certificate of Completion of
Contained Experiment stating that "During the conduct of the experiment, all the biosafety
measures have been complied with and no untoward incident has occurred."
After securing the necessary permits, the UPLB commenced the field testing of Bt Talong on
various dates, in the following approved sites: Kabacan, Borth Cotabato; Sta. Maria,
Pangasinan; Pili, Camarines Sur; Bago Oshiro, Davao City; and Bay, Laguna.
Reacting to the conduct of the field testing, the Sangguniang Barangay of Pangasugan, Baybay,
Leyte complained about the lack of information on the nature and uncertainties of the field
testing in their barangay. Too, the Davao City Government, in opposition thereto due to lack of
transparency and public consultation, ordered the uprooting and disposal of the Bt eggplants.
Similarly, the Sangguniang Bayan of Sta. Barbara, Iloilo passed a resolution suspending the field
testing due to the following: lack of public consultation, absence of adequate study to determine
the effect of Bt talong field testing on friendly insects, absence of risk assessment on the
potential impacts of GM crops on human health and the environment, and the possibility of
cross-pollination of Bt eggplants with native species or variety of eggplants, and serious threat to
human health if these were introduced in the market.
On April 26, 2012, respondents filed a petition for writ of kalikasan and writ of continuing
mandamus with prayer for the issuance of a Temporary Environmental Protection Order (TEPO).
They allege that the Bt Talong field trials violate their constitutional right to a healthful and
balanced ecology considering that:
1. The required environmental compliance certificate under Presidential Decree No. 1151
was not secured prior to the project implementation;
2. As a regulated article under DAO 8-2002, Bt Talong is presumed harmful to human
health and the environment, and there is no independent, peer-reviewed study on its
safety for human consumption and on the environment;
3. A study conducted by Professor Gilles-Eric Seralini showed adverse effects on rats who
were fed Bt corn, while local scientists also attested to the harmful effects of GMOs to
human and animal health;
4. Bt crops can be directly toxic to non-target species as highlighted by a research
conducted in the US which demonstrated that pollen from Bt Maize was toxic to the
Monarch butterfly;
5. Data from the use of Bt CrylAb maize indicate that beneficial insects have increased
mortality when fed on larvae of a maize pest, the corn borer, which had been fed on Bt,
and hence non-target beneficial species that may feed on eggplant could be similarly
affected;
6. Data from China show that the use of Bt crops (Bt cotton) can exacerbate populations of
other secondary pests;
7. The built-in pesticides of Bt crops will lead to Bt-resistant pests, thus increasing the use
of pesticides, contrary to the claims by GMO manufacturers;
8. The 200-meter perimeter pollen trap area in the field testing set by BPI is not sufficient to
stop contamination of nearby non-Bt eggplants because pollinators such as honeybees
can fly as far as four (4) kilometers and an eggplant is 48% insect-pollinated; and
9. The field test project did not comply with the required public consultation under Sections
26 & 27 of the Local Government Code.
The full acceptance by the project proponents of the findings in the MAHYCO Dossier was
strongly assailed on the ground that these do not precisely and adequately assess the numerous
hazards posed by Bt Talong and its field trial.
On these premises, the following reliefs were prayed for:
1. Upon the filing of the petition, a Temporary Environmental Protection Order should be
issued:
a. Enjoining Bureau of Plant Industry (BPI) and Fertilizer and Pesticide Authority
(FPA) of the DA from processing for field testing, and registering as herbicidal
product Bt talong in the Philippines;
b. Stopping all pending field testing of Bt talong anywhere in the Philippines; and
c. Ordering the uprooting of planted Bt talong for field trials as their very presence
poses significant and irreparable risks to human health and the environment;
2. Upon the filing of the petition, issue a writ of continuing mandamus commanding:
a. Respondents to submit to and undergo the process of environmental impact
statement system under the Environmental Management Bureau (EMB);
 b. Respondents to submit independent, comprehensive, and rigid risk assessment,
field test report, regulatory compliance reports and supporting documents, and
other material particulars of the Bt talong field trial;
c. Respondents to submit all its issued certifications on public information, public
consultation, public participation, and consent of the local government units in
the barangays, municipalities, and provinces affected by the field testing of Bt
talong;
d. Respondent regulator, in coordination with relevant government agencies and in
consultation with stakeholders, to submit an acceptable draft of an amendment
of the National Biosafety Framework of the Philippines, and DA Administrative
Order No. 08, defining or incorporating an independent, transparent, and
comprehensive scientific and socio-economic risk assessment, public
information, consultation, and participation, and providing for their effective
implementation, in accord with international safety standards; and
e. Respondent BPI of the DA, in coordination with relevant government agencies,
to conduct balanced nationwide public information of the nature of Bt
talong and Bt talong field trial, and a survey of social acceptability of the same.
3. Upon filing of the petition, issue a writ of kalikasan commanding respondents to file their
respective returns and explain why they should not be judicially sanctioned for violating
or threatening to violate or allowing the violation of the above-enumerated laws,
principles, and international principles and standards, or committing acts, which would
result into an environmental damage of such magnitude as to prejudice the life, health,
or property of petitioners in particular and of the Filipino people in general;
4. After hearing and judicial determination, to cancel all Bt talong field experiments that are
found to be violating the abovementioned laws, principles, and international standards;
and recommend to Congress curative legislations to effectuate such order.
On May 2, 2012, the Court issued a writ of kalikasan against International Service for the
Acquisition of Agri-Biotech Applications, Inc. (ISAAA), EMB/BPI/FPA and UPLB, ordering them
to make a verified return within a non-extendible period often (10) days, as provided in Sec. 8,
Rule 7, of the Rules of Procedure for Environmental Cases.
ISAAA, EMB/BPI/FPA, UPLB Foundation, Inc., and UP Mindanao Foundation, Inc. (UPMFI) filed
their respective verified returns. They all argued that the issuance of writ of kalikasan is not
proper because in the implementation of the Bt talong project, all environmental laws were
complied with, including public consultations in the affected communities, to ensure that the
people's right to a balanced and healthful ecology was protected and respected. They also
asserted that the Bt talong project is not covered by the Philippine Environmental Impact
Statement (PEIS) Law and that Bt talong field trials will neither significantly affect the quality of
the environment nor pose a hazard to human health. ISAAA contended that the NBF amply
safeguards the environment policies and goals promoted by the PEIS Law. For its part, UPLBFI
asserted that there is a "plethora of scientific works and literature, peer-reviewed, on the safety
of Bt talong for human consumption."
ISAAA argued that the allegations regarding the safety of Bt talong as food are irrelevant in the
field trial stage as none of the eggplant will be consumed by humans or animals, and all
materials that will not be used for analyses will be chopped, boiled, and buried following the
Biosafety Permit requirements. Too, it cited a 50-year history of safe use and consumption of
agricultural products sprayed with commercial Bt microbial pesticides and a 14-year history of
safe consumption of food and feed derived from Bt crops.
UPMFI contends that the Bt talong planted in Davao City have already been uprooted by the City
officials. And there having been no further field trials conducted thereat, there is no violation of
the constitutional rights of persons or damage to the environment with respect to Davao City that
will justify the issuance of a writ of kalikasan.
Finally, it is argued that the precautionary principle is not applicable considering that the field
testing is only a part of a continuing study being done to ensure that the field trials have no
significant impact on the environment. There is, thus, no resulting environmental damage of such
magnitude as to prejudice the life, health, or property of inhabitants in two or more cities or
provinces.
On July 10, 2012, the Court referred the case to the CA for acceptance of the return of the writ
and for hearing, reception of evidence, and rendition of judgment. The following issues were
submitted for the CA's resolution:
1. Whether or not Greenpeace, et al. have the legal standing to file the petition for writ
of kalikasan;
2. Whether or not the case presented a justiciable controversy; and
3. Whether or not said petition had been rendered moot and academic by the alleged
termination of the Bt talong field testing.
Under its Resolution dated October 12, 2012, the CA resolved that:chanRoblesvirtualLawlibrary
(1) Greenpeace, et al. possess the requisite legal standing to file the petition;
(2) assuming arguendo that the field trials have already been terminated, the case is not yet
moot since it is capable of repetition yet evading review; and
(3) the alleged non-compliance with environmental and local government laws present justiciable
controversies for resolution by the court.
After trial on the merits, the CA, on May 17, 2013, rendered a Decision in favor of Greenpeace,
et al., thus:
WHEREFORE, in view of the foregoing premises, Judgment is hereby rendered by
us GRANTING the petition filed in this case. The respondents are DIRECTED to:
 (a) Permanently cease and desist from further conducting bt talong field trials; and
(b) Protect, preserve, rehabilitate and restore the environment in accordance with the
foregoing judgment of this Court.
No costs.
SO ORDERED.
The CA found that existing regulations issued by the DA and the DOST are insufficient to
guarantee the safety of the environment and the health of the people. It likewise applied the
precautionary principle set forth in Section 1, Rule 20 of the Rules of Procedure for
Environmental Cases, stressing the fact that the "over-all safety guarantee of the bt talong" and
whether it poses a threat to human health remain unknown. In view of said uncertainty, the CA
upheld the primacy of the people's constitutional right to a healthful and balanced ecology.'
Then, in its September 20, 2013 Resolution, the CA rejected UPLB's argument that its ruling
violated the latter's constitutional right to academic freedom. The CA held that the writ issued by
the Court did not stop the research on Bt talong but only the particular procedure adopted in the
conduct of the field trials and only at this time when there is yet no law in the form of a
congressional enactment for ensuring its safety and levels of acceptable risks when introduced
into the environment.
The CA, in justifying its ruling, relied on the theory that the introduction of a genetically modified
plant into our ecosystem is an "ecologically imbalancing act." The CA noted that the Bt talong is
a technology involving a deliberate alteration of an otherwise natural state of affairs, designed to
alter the natural feed-feeder relationships of the eggplant.
From the foregoing, the following issues were presented for this Court's
resolution:chanRoblesvirtualLawlibrary
1. Legal standing of respondents;
2. Mootness;
3. Violation of the doctrines of primary jurisdiction and exhaustion of administrative remedies;
4. Application of the law on environmental impact statement/assessment on projects involving
the introduction and propagation of GMOs in the country;
5. Evidence of damage or threat of damage to human health and the environment in two or more
provinces, as a result of the Bt talong field trials;
6. Neglect or unlawful omission committed by the public respondents in connection with the
processing and evaluation of the applications for Bt talong field testing; and
7. Application of the precautionary principle.
Anent the technical aspect of the case, it is clear from the ponencicCs lengthy discussion that
the safety or danger of introduction of GMOs, in general, to the natural environment through field
testing has yet to be settled with scientific certainty, if it could indeed be settled. Furthermore, the
subject matter of the instant petition—that is, field testing of a GMO—is truly of a highly complex
nature and this complexity is strongly demonstrated by the fact that the matter remains to be
hotly debated in the scientific community. However, it is respectfully submitted that the instant
petition can be resolved, and the right to a balanced and healthful ecology sufficiently protected,
on a purely legal ground.
Anent the invocation of the Precautionary Principle under A.M. No. 09-6-8-SC or the Court's
Rules of Procedure for Environmental Cases, it is submitted that such is not necessary in the
instant petition since, as mentioned, it could be sufficiently settled on purely legal grounds and
without a heavy, if not complete, reliance on the scientific aspect of the case. As correctly
mentioned by the ponencia, it is an evidentiary rule that must be applied only as a last resort.
Thus, if an environmental case can be settled and the people's environmental rights sufficiently
protected without applying this principle, then the courts should refrain from doing so.
Among the numerous issues presented for this Court's consideration are alleged neglect or
unlawful omission committed by the public respondents in connection with the processing and
evaluation of the applications for Bt talong field testing and the applicability of the Philippine
Environmental Impact Statement System (PEISS) to GMO field trials. It is in these matters that,
in my opinion, the petitioner-agencies failed.
Petitioner-agencies maintain that the subject field trials are not covered by the PEISS. It is
submitted, however, that the PEISS also covers GMO field trials on the following
grounds:chanRoblesvirtualLawlibrary
First, as previously mentioned, EO 514 clearly requires the DENR to ensure that
environmental assessments are done and impacts identified in biosafety decisions.34 This,
in itself, is a clear indication that GMO field trials fall within the purview of our PEISS.
Under EO 514, "biosafety decisions" apply to the development, adoption and implementation of
all biosafety policies, measures and guidelines and in making decisions concerning the
research, development, handling and use, transboundary movement, release into the
environment and management of regulated articles.35
Thus, EO 514 calls for the conduct of environmental assessments and impact identification—
which precisely is the purpose of the PEISS— whenever biosafety decisions are to be made with
respect to the research, development, handling and use, transboundary movement, and release
into the environment of regulated articles, which are, to reiterate, GMOs. To my mind, "making
[biosafety] decisions concerning the research, development, handling and use, transboundary
movement, release into the environment and management of regulated articles" include
determining the coverage or non-coverage of a GMO field trial under the PEISS, as well as the
propriety of issuing an ECC or a CNC for a particular project.
Second, the assessment of the direct and indirect impacts of a project on the biophysical
and human environment and ensuring that these impacts are addressed by appropriate
environmental protection and enhancement measures is the primary concern of the
PEISS as declared in Article 1, Section 1 (Basic Policy and Operating Principles) of the DENR
AO No. 30 s. 2003 (DAO 30, s. 2003) or the Implementing Rules and Regulations (IRR) for the
Philippine Environmental Impact Statement (EIS) System.
Third, Section 4, paragraph 4.1, Article II of DAO 30, s. 2003, provides that projects that
pose potential significant impact to the environment shall be required to secure an ECC.
Anent this possibility of negatively affecting the environs, it is argued that the introduction of
the Bt talong to the natural environment in connection with the field trials will not adversely affect
the condition of the field trial sites, banking on the absence of documented significant and
negative impact of the planting of Bt corn in the Philippines, among others. However, it is curious
that in blocking the application of the precautionary principle, petitioners contradict this prior
assertion when they maintained that field testing is only a part of a continuing study being
done to ensure that the field trials have no significant and negative impact on the
environment. This, to my mind, only goes to show that it is erroneous for them to maintain that
the field trials in question will not adversely affect the environment when they themselves admit
that such is not yet a scientific certainty, hence the conduct of further research on the matter.
And without this certainty that the project will leave no footprint on the natural environment, as
well as a certification to that effect, it should be presumed that the field trial poses a potential
significant impact to the environment for which an ECC is required.
Fourth, the Revised Procedural Manual for DENR AO No. 30, s. 2003 (Revised Manual)
enumerates the projects that are covered by the PEISS. Said enumeration, as
the ponencia pointed out, includes Group V (Unclassified Projects) which pertains to those
projects using new processes/technologies with uncertain impacts. 36
Fifth, Item 8 of said Revised Manual, governing the EIA Report Types and Generic Contents,
requires a Project Description Report (PDR) for Group V projects, to ensure new
processes/technologies or any new unlisted project does not pose harm to the
environment. The Group Y PDR is a basis for either issuance of a CNC or classification of the
project into its proper project group.
Lastly, there is no evidence that a Certificate of Non-Coverage for the Bt talong field trials
was issued by the DENR, through its Environmental Management Bureau.
To my mind, the above grounds should have prompted the DENR to require from the project
proponents an EIA or at the very least evaluated the project's coverage or non-coverage as pre-
condition to the allowance of the field testing. In this regard, the DENR—as a member of the
NCBP with the clear mandate of making certain that environmental assessments are done
in the conduct of GMO research, and as the agency tasked to enforce the PEISS—may
have been remiss in its duty.
It may be that there is a confusion as to the requirements before field testing a GMO may be
allowed considering that the regulation that governs applications therefor, that is, DA AO No. 8,
s. 2002, makes no mention of the necessity of an EIA or the applicability of the PEISS.
Additionally, per the NCBP's Report,37 it was pointed out that the applicability of the PEISS to
field trials was a hotly discussed issue. While securing an ECC or a CNC was the perceived
requirement for EIA in biosafety valuations, there were those who argued that the EIA can take
many years to conduct and cost millions of pesos and could, therefore, delay field tests and
discourage proponents. It was likewise maintained that under the present practice of the NCBP,
the confinement afforded by the screenhouse and/or contained fields already provides a means
to prevent or minimize any adverse environmental impact and, thus, an EIA may not be required.
Per said Report, however, it was also stated that an environmental assessment may be
required when a confined field test involves new species, organisms or novel
modifications that raise new issues. Considering that data on the Bt talong, as admitted by
the proponents, is still being collected through research and field trials, and that its effects not
only on the environment but also on human health are yet to be determined with scientific
certainty, caution calls that the DENR-EMB should have applied the required standard of
precaution under EO 514, which requires that the precautionary approach shall guide biosafety
decisions in accordance with Principle 15 of the Rio Declaration of 1992 38 and the relevant
provisions of the Cartagena Protocol on Biosafety, in particular Articles 1, 39 10 (par.6)40 and 11
(par. 8)41 thereof.42 In this respect, EO 514 requires thusly:
SECTION 5. DECISION-MAKING PROCESSES
Biosafety decisions shall be made in accordance with existing laws and the following
guidelines:chanRoblesvirtualLawlibrary
Standard of Precaution. In accordance with Article 10 (par. 6) and Article 11 (par. 8) of the
Cartagena Protocol on Biosafety, lack of scientific certainty or consensus due to insufficient
relevant scientific information and knowledge regarding the extent of the potential
adverse effects of a genetically modified organism on the environment, particularly on the
conservation and sustainable use of biological diversity, and on human health, shall not
prevent concerned government departments and agencies from taking the appropriate
decision to avoid or minimize such potential adverse effects. In such cases, concerned
government department and agencies shall take the necessary action to protect public
interest and welfare.
Thus, in case there was, indeed, doubt as to the applicability or non-applicability of the PEISS to
biotechnology research, the DENR-EMB, in accordance with its mandate, should have observed
such standard of precaution and applied the PEISS to field trials of GMOs by requiring from
project proponents the prior securing of an ECC or a CNC.
Additionally, it is but timely to clarify that DA AO No. 8, s. 2002 did not expressly state that
projects falling under its coverage are withdrawn from the operation of the PEISS. As a matter of
fact, the DENR-EMB itself recognizes that "the PEISS is supplementary and complementary
to other existing environmental laws."43 This is further bolstered by the PEISS' role in relation
to the functions of other government agencies. In this regard, it was highlighted that it is inherent
upon the EIA Process to undertake a comprehensive and integrated approach in the review and
evaluation of environment-related concerns of government agencies (GAs), local government
units (LGUs) and the general public. The subsequent EIA findings shall provide guidance and
recommendations to these entities as a basis for their decision making process. 44
As such, it must be that whenever a project falls within the purview of the PEISS and DA AO No.
8, s. 2002, as well as other relevant laws, as Philippine biosafety regulations now stand and as
required by the NBF, the project proponent is required to comply with all applicable 4. Areas of unique historic, archaeological, or scientific interests;
statutory or regulatory requirements, not just DA AO No. 8, s. 2002.
5. Areas which are traditionally occupied by cultural communities or tribes;
With these, it is respectfully submitted that the omission by the project proponents of securing an
ECC or CNC, whichever is proper for its project, prior to the conduct of the field testing, and the 6. Areas frequently visited and/or hard-hit by natural calamities (geologic hazards, floods,
DENR-EMB's failure to evaluate GMO field trials within the purview of the PEISS and simply typhoons, volcanic activity, etc.);
allowing the trials to be conducted without a prior determination of whether the conduct of an EIA
or the prior securing of an ECC is a condition sine qua non for its conduct, warrant the issuance 7. Areas with critical slopes;
of a permanent environmental protection order directing:
8. Areas classified as prime agricultural lands;
a. herein project proponents to cease and desist from continuing any pending Bt
talong field trials without first complying with other applicable environmental 9. Recharged areas of aquifers;
laws, including the PEISS; and
b. the DENR-EMB to apply the PEISS to GMO field trials. 10. Water bodies characterized by one or any combination of the following
conditions:chanRoblesvirtualLawlibrary
On these premises, I vote to DENY the petition on the grounds that the project proponents failed
a. tapped for domestic purposes
to comply with the requirements under the PEISS and that the DENR-EMB failed to require
from/he project proponents the securing of an ECC or a CNC prior to the field^testing of the Bt
b. within the controlled and/or protected areas declared by appropriate authorities
talong.
c. which support wildlife and fishery activities
Endnotes:
11. Mangrove areas characterized by one or any combination of the following
conditions:chanRoblesvirtualLawlibrary
1
Item 3.3, Section 3, EO 514, s. 2006.
a. with primary pristine and dense young growth;
2
Sub-item 3.3.12, Item 3.3, Section 3, EO 514, s. 2006.
b. adjoining mouth of major river systems;
3
Sub-item 3.3.2, Item 3.3, Section 3, EO 514, s. 2006.
c. near or adjacent to traditional productive fry or fishing grounds;
4
Sub-item 3.3.12, Item 3.3, Section 3, EO 514, s. 2006.
d. which act as natural buffers against shore erosion, strong winds and storm floods;
5
Establishing An Environmental Impact Statement System Including Other Environmental
Management Related Measures And For Other Purposes. e. on which people are dependent for their livelihood.
6
Philippine Judicial Academy, A Sourcebook on Environmental Rights and Legal Remedies, p. 12. Coral reefs, characterized by one or any combinations of the following
58. conditions:chanRoblesvirtualLawlibrary
7
B. Environmentally Critical Areas a. with 50% and above live coralline cover;

1. All areas declared by law as national parks, watershed reserves, wildlife preserves and b. spawning and nursery grounds for fish;
sanctuaries;
c. which act as natural breakwater of coastlines.
2. Areas set aside as aesthetic potential tourist spots;
8
A. Environmentally Critical Projects
3. Areas which constitute the habitat for any endangered or threatened species of indigenous
Philippine Wildlife (flora and fauna); I. Heavy Industries
a. Non-ferrous metal industries
13]
http://www.ncbp.dost.gov.ph/19-guidelines/24-executive-order-no-430-s-1990. Last accessed
b. Iron and steel mills November 23, 2015.
14
c. Petroleum and petro-chemical industries including oil and gas WHEREAS, the impact qf the new technologies on health, agriculture, chemical and
pharmaceutical, and environment and natural resources has been a continuing worldwide
d. Smelting plants concern of many countries;

II. Resource Extractive Industries WHEREAS, biotechnology ha? high potential to improve the quality of human life may have
concomitant risks and hazards to health Safety, the environment and society;
a. Major mining and quarrying projects
WHEREAS, the hazards associated with the processes and the products of researches in
b. Forestry projects biotechnology may be minimized, if hot totally eliminated, by the different containment levels and
procedures observed in the laboratories and greenhouses;
1. Logging
WHEREAS, most of the risks are associated with the field testing and eventual deliberate
2. Major wood processing projects release of genetically manipulated/engineered orjganisms into the environment;

3. Introduction of fauna (exotic-animals) in public/private forests WHEREAS, there is a need to iconstitute a body that shall undertake the study and evaluation of
existing laws, policies and guidelines bn biotechnology and its related matters, and recommend
4. Forest occupancy such measures for its effective utilization and prevention of possible pernicious effects in the
environment. (EO 430, s. 1990)
5. Extraction of mangrove products
15
Section 4, EO 430 s. 1990.
6. Grazing
16
NCBP Monograph dated May 15, 1998.
c. Fishery Projects
17
SECTION 9. REPEALING CLAUSE All provisions of the Philippine Biosafety Guidelines (1991
1. Dikes for/and fishpond development projects edition), particularly Part III, paragraph 2.3 (Field release of Regulated Materials), which are
inconsistent with this Monograph are hereby repealed.
III. Infrastructure Projects
18
p. 15, Biosafety Regulations in the Philippines: A Review of the First fifteen Years, Preparing
a. Major dams for the Next Fifteen, A Report of the National Committee on Biosafety of the Philippines (NCBP),
by the National Academy on Science and Technology (NAST), Department of Science and
b. Major power plants (fossil-fueled, nuclear fueled, hydroelectric or geothermal) Technology (DOST), NCBP, and the Program for Biosafety Systems (2009).
19
c. Major reclamation projects Id.
20
d. Major roads and bridges Item A, Section 2, DA AO No. 8, s. 2002.
9 21
Republic v. City of Davao, G.R. No. 148622, September 12, 2002, 388 SCRA 691. Item B, Section 2, DA AO No. 8, s. 2002.
10 22
Section 4, PD 1586. pp. 29-30, Biosafety Regulations in the Philippines: A Review of the First fifteen Years,
Preparing for the Next Fifteen, A Report of the National Committee on Biosafety of the
11
Sec. 5, PD 1586. Philippines (NCBP), by the National Academy on Science and Technology (NAST), Department
of Science and Technology (DOST), NCBP, and the Program for Biosafety Systems (2009).
12
Evolution of the Philippine Biosafety System, Department of Agriculture-Bureau of Plant
23
Industry, http://biotech.da.gov.ph/. Last accessed, December 7, 2015. p. 15, Biosafety Regulations in the Philippines: A Review of the First fifteen Years, Preparing

for the Next Fifteen, A Report of the National Committee on Biosafety of the Philippines (NCBP),
by the National Academy on Science and Technology (NAST), Department of Science and
Technology (DOST), NCBP, and the Program for Biosafety Systems (2009).
24
WHEREAS, there is a need to enhance the existing biosafety framework to better respond to
the challenges presented by further advances in modern biotechnology and to comply with the
administrative requirements of the Cartagena Protocol on Biosafety.
25
Sub-section 4.2 (Composition of the NCBP), Section 4 (Administrative Framework) (EO 514).
26
SECTION 4. ADMINISTRATIVE FRAMEWORK. The administrative mechanism for biosafety
decisions shall be as follows:chanRoblesvirtualLawlibrary
(a) National scientific and technical biosafety standards and standards on methods and
procedures for ensuring biosafety in the country shall be set by the NCBP consistent with
existing laws: Basic policies on addressing public interests on biosafety shall be developed by
the NCBP, provided the same are consistent with law and if such policies are found insufficiently
addressed in existing mandates and regulations of pertinent agencies;
(b) Member-agencies of the NCBP shall continue to perform their regulatory functions in
accordance with their legal mandates, provided that their policies and programs relating to
biosafety shall be discussed in the NCBP for purposes of harmonization with other agencies'
functions;
(c) Other concerned agencies shall coordinate with NCBP on matters that may affect biosafety
decisions as provided in Sections 4.7 to 4.14;
(d) Administrative functions required under the Cartagena Protocol on Biosafety shall be
performed by agencies as provided in Section 4.14 and 4.15; and,
(e) The role of stakeholders and the general public shall be recognized and taken into account
as provided in Sections 6 and 7. (EO 514)
27
Item 4.8, Section 4 [Administrative Framework], EO 514.
28
Item 4.7, Section 4 [Administrative Framework], EO 514.
29
Item 4.9, Section 4 [Administrative Framework], EO 514.
30
Section 8. Repealing and Amending Clause. All orders, rules and regulations or parts thereto
which are inconsistent with any of the provisions of this Order are hereby repealed or amended
accordingly. For the avoidance of doubt, the following issuances, unless amended by the
respective issuing departments or agencies, shall continue to be in force and effect: Department
of Agriculture Administrative Order No. 008, s. 2002; the NCBP Guidelines on the Contained
Use of Genetically Modified Organisms, except for provisions on potentially harmful exotic
species which are hereby repealed; and all Bureau of Food and Drugs issuances on products of
modern biotechnology.
31
The NCBP reviews proposals on modern biotechnology applications for the benefit of the final
approving bodies (agencies which have regulatory functions on specific areas such as the
Department of Agriculture's Bureau of Plant Industry or the Department of Health or the
Department of Environment and Natural Resources which are official members of the NCBP).
The NCBP's actions of "approval" or "disapproval" of biotechnology applications is restricted to
"research and development, technical aspects (whether or not, on the basis of existing science,
safety risk are considered acceptable); scientific advice (i.e., it is directed to pertinent line
agencies to provide them a basis for acting on proposed applications; its action ("approved" or
"disapproved") is not a final permission to do the application; its action does not preclude any
other requirements of laws or by line agencies; final permission is to be granted by appropriate
line agencies." [Biosafety Regulations in the Philippines: A Review of the First fifteen Years,
Preparing for the Next Fifteen, A Report of the National Committee on Biosafety of the
Philippines (NCBP), by the National Academy on Science and Technology (NAST), Department
of Science and Technology (DOST), NCBP, and the Program for Biosafety Systems (2009), p.
15]
32
Role of Environment Impact Assessment. The application of the EIA System to biosafety
decisions shall be determined by concerned departments and agencies subject to the
requirements of law and the standards set by the NCBP. Where applicable and under the
coordination of the NCBP, concerned departments and agencies shall issue joint guidelines on
the matter. [Item 5.3, Section 5, EO 514].
33
Item 4.9, Section 4 [Administrative Framework], EO 514.
34
Id.
35
Item 3.3 [Definitions], Section 3 [Scope, Objectives and Definitions], EO 514.
36
See List of Covered Projects of the Philippine E1S System, item (g), Revised Procedural
Manual for DENR AO No. 30 s. 2003 [DAO 03-30].
37
Biosafety Regulations in the Philippines: A Review of the First fifteen Years, Preparing for the
Next Fifteen, A Report of the National Committee on Biosafety of the Philippines (NCBP), by the
National Academy on Science and Technology (NAST), Department of Science and Technology
(DOST), NCBP, and the Program for Biosafety Systems (2009).
38
Principle 15 - In order to protect the environment, the precautionary approach shall be widely
applied by States according to their capabilities. Where there are threats of serious or
irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing
cost-effective measures to prevent environmental degradation.
39
Article 1 [Objective] - In accordance with the precautionary approach contained in Principle 15
of the Rio Declaration on Environment and Development, the objective of this Protocol is to
contribute to ensuring an adequate level of protection in the field of the safe transfer, handling
and use of living modified organisms resulting from modern biotechnology that may have
adverse effects on the conservation and sustainable use of biological diversity, taking also into
account risks to human health, and specifically focusing on transboundary movements.
40
6. Lack of scientific certainty due to insufficient relevant scientific information and knowledge
regarding the extent of the potential adverse effects of a living modified organism on the
conservation and sustainable use of biological diversity in the Party of import, taking also into
account risks to human health, shall not prevent that Party from taking a decision, as
appropriate, with regard to the import of the living modified organism in question as referred to in
paragraph 3 above, in order to avoid or minimize such potential adverse effects.
41
8. Lack of scientific certainty due to insufficient relevant scientific information and knowledge
regarding the extent of the potential adverse effects of a living modified organism on the
conservation and sustainable use of biological diversity in the Party of import, taking also into
account risks to human health, shall not prevent that Party from taking a decision, as
appropriate, with regard'to the import of that living modified organism intended for direct use as
food or feed, or for processing, in order to avoid or minimize such potential adverse effects.
42
Item 2.6, EO 514.
43
Overview of the Philippine EIS System (PEISS), Revised Procedural Manual for DENR AO No.
30 s. 2003, p. 3 [DAO 03-30].
44
Id.cralawlawlibrary
CONCURRING OPINION
LEONEN, J.:
I concur in the result of the majority's opinion.
The Petition for Writ of Kalikasan of Greenpeace Southeast Asia (Philippines), et al. (now
respondents), insofar as it assails the field testing permit granted to private petitioners, should
have been dismissed and considered moot and academic by the Court of Appeals. The Petition
for Writ of Kalikasan was filed only a few months before the two-year permit expired and when
the field testing activities were already over. Thus, the pending Petitions which assail the
Decision of the Court of Appeals should be granted principally on this ground. There was grave
abuse of discretion which amounts to excess of jurisdiction.
This does not necessarily mean that petitioners in G.R. No. 209271 can proceed to commercially
propagate Bt talong. Under Department of Agriculture Administrative Order No. 8, Series of
2002, the proponent should submit a new set of requirements that will undergo a stringent
process of evaluation by the Bureau of Plant Industry and other agencies. Completion of field
testing by itself does not guarantee commercial propagation.
To recall, the introduction of genetically modified products, ingredients, and processes requires
three (3) mandatory stages of regulatory review. Propagation is not allowed until there is full field
testing. Field testing is not allowed unless there are laboratory experiments under contained
conditions.
Application for each stage has its own set of unique requirements. The standards of review have
their own level of rigor. All the applications for each stage should be published. Public
participation in each stage must not only be allowed but should be meaningful.
Furthermore, commercial propagation will not happen immediately with Bt talong because
Administrative Order No. 8 is null and void. In its salient parts, it is inconsistent with the basic
guidelines provided in our Constitution, violative of our binding international obligations
contained in the Cartagena Protocol on Biosafety to the Convention on Biodiversity (Cartagena
Protocol), and effectively disregards the Executive Orders issued by the President in the fields of
biodiversity and biosafety.
The effect of the invalidity of Administrative Order No. 8 is that petitioners cannot proceed further
with any field testing or propagation for lack of administrative guidelines. Any test or propagation
of transgenic crops should await valid regulations from the executive or restatements of policy by
Congress.
Furthermore, the Petitions in this case should be granted because the Court of Appeals, in
adopting the "hot tub" method to arrive at its factual findings, gravely abused its discretion. The
transcript of the proceedings presided by the Court of Appeals Division shows how this method
obfuscated further an already complicated legal issue. Courts of law have a precise and rigorous
method to ferret out the facts of a case, a method which is governed by our published rules of
evidence. By disregarding these rules, the Court of Appeals acted whimsically, capriciously, and
arbitrarily.
This is an important case on a novel issue that affects our food security, which touches on the
controversial political, economic, and scientific issues of the introduction of genetically modified
organisms into the consumer mainstream. This court speaks unanimously in narrowing down the
issues and exercising restraint and deference. This court must allow the competencies of the
administrative regulatory bodies and Congress to fully and meaningfully evolve.
I
The cessation of the validity of all the biosafety permits issued to the University of the Philippines
Los Banos in June 2012 and the termination of all field trials as of August 10, 2012 render the
Petition for Writ of Kalikasan moot and academic. 1 The Petition for Writ of Kalikasan was
originally filed before us on April 26, 2012.2
A brief overview of the regulatory process outlined in Administrative Order No. 8 will assist us in
providing a framework to put the Petition in context.
Administrative Order No. 8 recognizes three (3) stages before genetically modified organisms—
as products, ingredients, or processes— may become commercially available.
The first stage is the Contained Use where research on regulated articles is limited inside a
physical containment facility for purposes of laboratory experimentation. 3
The second stage is Field Testing where regulated articles are intentionally introduced into the
environment in a highly regulated manner also for experimental purposes. It is specifically
recognized that in field testing, no specific physical containment measures shall be undertaken
"to limit that contact of the regulated article with ... the general population and the
environment."4 Prior to field testing, the results of the contained experiments are taken into
consideration.
Finally, the Propagation stage is where regulated articles are introduced into commerce.
Each stage is distinct. Subsequent stages can only proceed if the prior stage/s are completed
and clearance is given to engage in the next regulatory stage. This is evident from the requisites
for conducting each stage.
For contained use, the importation or the removal from point of entry of the material requires (i)
authorization given by the Bureau of Plant Industry; and (ii) a letter of endorsement issued by the
National Committee on Biosafety of the Philippines.5 The National Committee on Biosafety of the
Philippines, on the other hand, proceeds with its own processes for evaluation of the application
for contained use.
Field testing requires that "(i) a Permit to Field Test has been secured from the [Bureau of Plant
Industry]; and (ii) the regulated article has been tested under contained conditions in the
Philippines."6
Release for commercial propagation will not be allowed unless "(i) a Permit for Propagation has
been secured from [the Bureau of Plant Industry]; (ii) it can be shown that based on field
testing conducted in the Philippines, the regulated article will not pose any significant
risks to the environment; (iii) food and/or feed safety studies show that the regulated article will
not pose any significant risks to human and animal health; and (iv) if the regulated article is a
pest-protected plant, its transformation event has been duly registered with the [Fertilizer and
Pesticide Authority]."7
Clearly, mere completion of a preceding stage is no guarantee that the subsequent stage shall
ensue. While each subsequent stage proceeds from the prior ones, each stage is subject to its
unique set of requisites.
It is, thus, improper to rely on the expectation that commercial propagation of Bt talong shall
ensue after field testing. For the process to proceed to commercial propagation, the concerned
applicants are still required to formally seek the permission of the Bureau of Plant Industry by
filing an application form. There is no presumption that the Bureau of Plant Industry will favorably
rule on any application for commercial propagation. It is also not a valid presumption that the
results of field testing are always favorable to the proponent for field testing let alone for those
who will continue on to propagation.
The alleged actual controversy in the Petition for Writ of Kalikasan arose out of the proposal to
do field trials. The reliefs in these remedies did not extend far enough to enjoin the use of the
results of the field trials that have been completed. Essentially, the findings should be the
material to provide more rigorous scientific analysis of the various claims made in
relation to Bt talong.
The original Petition was anchored on the broad proposition that respondents' right to a healthful
and balanced ecology was violated on the basis of the grant of the permit. With the cessation of
the validity of the biosafety permits and the actual termination of all field trials, the very subject of
the controversy adverted to by respondents became moot. Similarly because of the Petition's
specificity, the case could not be considered capable of repetition yet evading review and, thus,
an exception to the rule on mootness.
II
Nevertheless, for the guidance of the bench and bar, the validity of the biosafety permits is
discussed. The biosafety permits should have been declared null and void-due to the invalidity of
Administrative Order No. 8.
Administrative Order No. 8 was created to facilitate agricultural development and enhance the
production of agricultural crops through modern biotechnology.8 As early as October 15, 1990,
President Corazon Aquino recognized the importance of modern biotechnology and issued
Executive Order No. 4309 to create the National Committee on Biosafety of the Philippines. The
National Committee on Biosafety of the Philippines acts as the body that studies and evaluates
the laws, policies, and guidelines relating to biotechnology.
The role of the National Committee on Biosafety of the Philippines was further strengthened in
2006 under Executive Order No. 514, which established the National Biosafety Framework for
the Philippines. The Framework applies "to the development, adoption and implementation of all
biosafety policies, measures and guidelines and in making biosafety decisions concerning the
research, development, handling and use, transboundary movement, release into the
environment and management of regulated articles." 10
Currently, there is no legislation in relation to biotechnology or biosafety. The closest legislation
is under Republic Act No. 8435, otherwise known as the Agriculture and Fisheries Modernization
Act of 1997. This law makes it an objective of the state "[t]o modernize the agriculture and
fisheries sectors by transforming these sectors from a resource-based to a technology-based
industry."11 In line with this, Congress initially allocated 4% of the 10% research and
development fund for agriculture to be used to support the biotechnology program. 12
A more recent law, Republic Act No. 10068, otherwise known as the Organic Agriculture Act of
2010, also promotes the use of biotechnology but specifically excludes genetically modified
organisms.13 The law does not provide regulatory standards for genetically modified organisms.
Aside from the enactment of domestic executive orders and laws, Administrative Order No. 8
was enacted to comply with the Cartagena Protocol on Biosafety to the Convention on
Biodiversity. The Convention on Biodiversity came into force on December 29, 1993, and the
Cartagena Protocol on Biosafety supplemented the Convention on Biodiversity by providing
policy standards for biosafety in the use of living modified organisms. 14
On April 3, 2002, then Department of Agriculture Secretary Leonardo Q. Montemayor issued
Administrative Order No. 8, otherwise known as the Rules and Regulations for the Importation
and Release into the Environment of Plants and Plant Products Derived from the Use of Modern
Biotechnology. Administrative Order No. 8, Series of 2002, is a regulatory mechanism issued
pursuant to the state's police power. It is designed to minimize and manage15 the risks both to
human health and to the environment of genetitally modified organisms or plant products altered
or generated through "modern biotechnology."16 These genetically modified organisms or plant
products are, in turn, results of human ingenuity and legally recognized patentable inventions to
which their creators hold proprietary rights.
III
Two constitutional provisions bear upon the issues relied upon by private respondents in this
case. Both are found in Article II, viz.:
Section 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.
Section 16. The State shall protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature.
Traditionally, these provisions articulate the doctrine that health and ecological concerns are
proper purposes of regulation and, therefore, can be the basis of the state's exercise of police
power.17 Having constitutionally ordained goals and principles are, per se, compelling state
interests.18
Thus, restricting the rights to property and liberties does not deny their holders their "due
process of law" provided there is a discemable rational relationship between the regulatory
measure and these legitimate purposes. We have, prior to the 1987 Constitution, adopted a fairly
consistent deferential standard of judicial review considering that the Congress has more leeway
in examining various submissions of a wider range of experts and has the power to create the
forums for democratic deliberation on various approaches.
In recent times, we have included a higher degree of review of regulatory measures by requiring
that there shall be a judicially discemable demonstration that the measure is least restrictive of
fundamental rights.
Thus, in Serrano v. Gallant Maritime Services,19 this court recognized "three levels of scrutiny":
There are three levels of scrutiny at which the Court reviews the constitutionality of a
classification embodied in a law: a) the deferential or rational basis scrutiny in which the
challenged classification needs only be shown to be rationally related to serving a legitimate
state interest; b) the middle-tier or intermediate scrutiny in which the government must show that
the challenged classification serves an important state interest and that the classification is at
least substantially related to serving that interest; and c) strict judicial scrutiny in which a
legislative classification which impermissibly interferes with the exercise of a fundamental right or
operates to the peculiar disadvantage of a suspect class is presumed unconstitutional, and the
burden is upon the government to prove that the classification is necessary to achieve a
compelling state interest and that it is the least restrictive means to protect such interest.
Under American jurisprudence, strict judicial scrutiny is triggered by suspect classifications
based on race or gender but not when the classification is dnfvvn along income
categories.20 (Citations omitted)
This exacting level of scrutiny has been considered in several instances in recent jurisprudence.
In Estrada v. Escritor,21 this court required the state, through the Office of the Solicitor General,
to show that the means adopted to pursue the state's interest of preserving the integrity of the
judiciary by maintaining a high standard of morality and decency among its personnel was the
least restrictive means vis-a-vis respondent's religious freedom. More recently, our Decisions
in Diocese of Bacolod v. Commission on Elections22 and Social Weather Stations v. Commission
on Elections23 considered the propriety of measures adopted to regulate speech in the context of
political exercises.
The requirement of adopting the least restrictive means requires that respondent agencies show
that there were alternatives considered within the democratic and deliberative forums mandated
by law and that clear standards were considered within transparent processes. It is not for this
court to consider the validity of the standards chosen. We must, however, be convinced that
there is such a standard, that it was assiduously applied, and the application was consistent.
IV
Sections 15 and 16 of Article II are, thus, not simply hortatory rights. They are as much a part of
the fundamental law as any other provision in the Constitution. They add to the protection of the
right to life in Article III, Section 1.
To recall, this important provision states:
Section 1. No person shall be deprived of life, liberty or property without due process of law.
This norm is phrased as a traditional limitation on the powers of the state. That is, that the state's
inherent police powers cannot be exercised arbitrarily but must be shown to have been
reasonable and fair.24
The right to life is textually broad to signal the intention that the sphere of autonomy is assumed
to encompass life both in terms of its physical integrity and in terms of its quality. 25cralawred
Sections 15 and 16, however, impose on the state a positive duty to "promote and protect" the
right to health and to "promote and advance" the right of "the people to a balanced and healthful
ecology." With respect to health and ecology, therefore, the state is constitutionally mandated to
provide affirmative protection. The mandate is in the nature of an active duty rathe.r than a
passive prohibition.
These provisions represent, in no small measure, a shift in the concept of governance in relation
to society's health. It is a recognition that if private actors and entities are left to themselves, they
will pursue motivations which may not be too advantageous to nutrition or able to reduce the
risks of traditional and modern diseases. At best, the actors may not be aware of their
incremental contributions to increasing risks. At worse, there may be conscious efforts not to
examine health consequences of products and processes introduced in the market. It is
expedient for most to consider such costs as extraneous and affecting their final profit margins.
In short, the constitutional provisions embed the idea that there is no invisible hand 26 that guides
participants in the economic market to move toward optimal social welfare in its broadest
developmental sense.
Producers, by their very nature, participate in the market motivated by their objective to recover
costs and maximize their profits. Costs for them usually refer to their pecuniary expenditures.
Costs suffered incidentally by the ecology of the locations of their factories or by the health of
their consumers are not costs which producers readily and naturally internalize. 27 In an
unregulated market, they do not spend their capital to mitigate or remedy these types of
damages.28 In many instances, there is the tendency even to avoid incurring expenses to find
out whether these types of damages actually occur. Environmental damage and health risks are,
thus, externalities which are usually invisible to them. Externalities are costs which remain
unrecognized in the private transaction between the producers and their consumers.
Of course, producers will respond to both the quantity and quality of demand in a market. In an
unregulated market, collective consumer preferences will define the types of products that
producers will sell. In turn, this will provide the strongest incentive for producers to specialize
their products in an efficient and economical manner.
Consumers, however, are also shaped by the incentives in the market. The nature of the
benefits which defines incentives is likewise framed by the pervading culture.
Health and consciousness may evolve among consumers. There are, for instance, those who
will definitely purchase organic, nontransgenic, and unadulterated food products as a matter of
personal choice. There will also be those who, like rminy of the private respondents in this case,
evolve movements to convince the consumers to shift their tastes and their preferences.
Choices of consumers also depend on the consciousness that the present culture sponsors:
Consciousness can be defined as "the way people conceive of the 'natural' and normal way of
doing things, their habitual patterns of talk and action, and their commonsense understanding of
the world."29ChanRoblesVirtualawlibrary
Legal consciousness, on the other hand, is simply "all the ideas about the nature, function and
operation of law held by anyone in society at a given time." 30 This means that the culture and
framework of defining incentives and making choices among our consumers also depend on the
content .of the law and its interpretation in administrative regulatory issuances and judicial
decisions.
The imperative for the state's more active participation in matters that relate to health and
ecology is more salient given these perspectives and the pervasive impact of food on our
population.
At its bare minimum, Sections 15 and 16 imply that the standard to be used by the state in the
discharge of its regulatory oversight should be clear. This is where Administrative Order No. 8
fails. While providing for processes, it does not refer to any standard of evaluating the
applications to be presented before the Department of Agriculture or, in field testing, the
Scientific Review Technical Panel. There are many of such standards available based on best
practices. For instance, the regulators may be required to evaluate applications so that there is a
scientific demonstration of a "reasonable certainty of no harm" 31 to both health and environment
in all aspects in the creation, testing, and propagation of genetically modified ingredients,
processes, or products.
Without these standards, Sections 15 and 16 become meaningless. Hence, in this regard,
Administrative Order No. 8 is null and void.
V
In addition to constitutional provisions under Article II, the Philippines also sources its
environmental obligations from conventions and subsequent protocols. On May 24, 2000, the
Philippines became one of the signatories to the Cartagena Protocol on Biosafety to the
Convention on Biodiversity.32 By September 11, 2003, the Cartagena Protocol entered into force
in the Philippines.33
The Cartagena Protocol's objective is to ensure "an adequate level of protection in the field of
the safe transfer, handling and use of living modified organisms resulting from modern
biotechnology. . . ."34 Article 23 of the Cartagena Protocol 35 stresses that the public must be
consulted in the decision-making process regarding living modified organisms, and that the
decisions made with this regard must be communicated to the public. 36
The Cartagena Protocol emphasizes that risk assessment should be carried out in a scientifically
sound manner.37 In addition, Annex III of the Cartagena Protocol also provides that risk
assessment must also be done in a transparent manner. 38
Subsequent executive actions reflect the obligations of the Philippines under the Cartagena
Protocol. Executive Order No. 514, which established the National Biosafety Framework, was
enacted "to comply with the administrative requirements of the Cartagena Protocol on Biosafety,"
among other reasons.39 Executive Order No. 514 restructured the National Committee on
Biosafety of the Philippines, an interagency, multisectoral body in charge of the National
Biosafety Framework.40
The National Biosafety Framework has provisions on Access to Information (Section 6)41 and
Public Participation (Section 7).42 The provisions envision a culture of constant communication
and feedback from the public regarding biosafety decisions, risk assessment processes, product
monitoring, and product identification.
Executive Order No. 514, while not a statute, provides binding policies and rules for the
executive agencies of government in their task of implementing its legal obligations under the
Cartagena Protocol. Hence, all actions of agencies involved in the execution of biosafety in the
Philippines must follow the Cartagena Protocol, the National Biosafety Framework, and our
Constitution.
Like the National Biosafety Framework established by Executive Order No. 514, Administrative
Order No. 8 cites the Cartagena Protocol as a source of obligation of the state to regulate
transgenic plants.43
Administrative Order No. 8 fails to meet certain standards required under the Cartagena
Protocol.

This Order requires an applicant for field testing of a regulated article to create an Institutional
Biosafety Committee. It is the applicant who chooses the members of the Institutional Biosafety
Committee.
The composition of the Institutional Biosafety Committee includes three scientist members and
two community representatives who "shall not be affiliated with the applicant apart from being
members of its [Institutional Biosafety Committee] and shall be in a position to represent the
interests of the communities where the field testing is to be conducted." 44 As an apparent
assurance for the lack of bias of these community representatives, the National Committee on
Biosafety of the Philippines must approve the composition of the Institutional Biosafety
Committee.45
The manner of choosing the composition of the Institutional Biosafety Committee is problematic.
It reduces meaningful compliance in our commitments enunciated in the Cartagena Protocol into
mere artifice. It defies the guidelines set by the National Biosafety Framework.
Both the Cartagena Protocol and National Biosafety Framework require participation from
community members. However, in Administrative Order No. 8, the applicant has the initial choice
as to the community representatives who will participate as members of the Institutional
Biosafety Committee. The approval by the National Committee on Biosafety of the Philippines is
not a sufficient mechanism to check this discretion. This interagency committee can only
approve or disapprove community representatives that were already selected by the applicant.
The applicant does not have any incentive to choose the critical community representatives. The
tendency would be to choose those whose dissenting voices are tolerable. Worse, the National
Committee on Biosafety of the fl Philippines, apart from not being a sufficient oversight for
people's participation, is a government body. A government body is not the community that
should supposedly be represented in the Institutional Biosafety Committee.
In addition, there are other problems with public participation in Administrative Order No. 8. For
field testing under Administrative Order No. 8, the only opportunity for public participation is
under Sections 8(G) and 8(H). Under Section 8(G), the public consultation on an application is
prompted by the posting of the Public Information Sheet on Field Testing, which shall be posted
in three conspicuous places in the barangay/city/municipality for three consecutive weeks. The
interested party is given thirty (30) days within which to file a written comment on the application.
The posting of the Public Information Sheet in three conspicuous places near the field testing
site is not enough to raise awareness regarding the field testing being applied for. The subject
matter in transgenic transformation is too complex and its consequences too pervasive as to
simply leave this through the fictional notice of public posting. The positive duty of the state
requires more in terms of the creation of public awareness and understanding. For instance, the
Department of Agriculture is competent and large enough so as to make actual face to face
community meetings reasonable.
Also, under the National Biosafety Framework, there must be posting on the Internet to capture
the attention of relevant stakeholders.46 This is not required under Section 8(G).
The mechanism under Administrative Order No. 8 does not even require that local government
authorities be apprised about the proposed field testing. Certainly, engaging local government
authorities invites more meaningful public discourse.
Section 8(H) requires the creation of a Scientific and Technical Review Panel. This is a group of
three independent scientists that reviews the risk assessment conducted by the Institutional
Biosafety Committee. The Scientific and Technical Review Panel does not have a community
representative. It is also tasked to evaluate—based on the individual scientist's own standards—
whether the proposed field testing poses significant risks on human health and the environment.
How the points raised during the mandatory public hearings will be considered in the issuance of
the field testing permits is not covered by Administrative Order No. 8. In this regard, there is no
standard or process.
The nonchalant attitude of the regulatory framework is best seen in this case. Petitioners alleged
that there was some public consultation prior to field testing. These consultations, however, were
not documented. The only proof of such consultation was a bare allegation made by Miss Merle
Palacpac of the Department of Agriculture in her judicial affidavit.47
The absence of an effective mechanism for public feedback during the application process for
field testing means that Administrative Order No. 8 fails in meeting the public participation
requirement of the Cartagena Protocol and the National Biosafety Framework. The current
mechanisms have all the badges of a "greenwash": 48 merely an exhibition of symbolic
compliance to environmental and biosafety policy.
The insouciant approach to public participation during the application process is obvious
as there is no appeal procedure for third parties under Administrative Order No. 8. The
regulation does not consider that communities affected may want to question the exercise of
discretion by the Department of Agriculture or the Bureau of Plant Industry. Section 18 of
Administrative Order No. 8 only covers appeals for "[a]ny person whose permit has been
revoked or has been denied a permit or whose petition for delisting has been denied by the
Director of [Bureau of Plant Industry]." Procedural due process is taken away from the public.
VI
Due to these fundamental deficiencies, Administrative Order No. 8 is null and void. In its present
form, it cannot be used as the guidelines to regulate further field testing or commercial
propagation of Bt talong. Until a law or a new regulation is passed consistent with the
Constitution, our treaty obligations, and our laws, no genetically modified ingredient process or
product can be alloVved to be imported, field tested, or commercially propagated.
VII
Science is not just a body of knowledge; it is the result of the application of the scientific
methodology.49 The direction of the methodology depends on the objective of each study or
research. The scientific methodology tests a hypothesis, or a proposed statement of
relationships between factors or variables that acts as a tentative answer to a specific research
question.50
From the hypothesis, a scientist reviews related literature and records observations relating to
the hypothesis. Sampling, observations, and measurements must be accurate and replicable.
These areas are vulnerable to errors that may distort a research's conclusions. 51 In order to
confirm found observations, a scientist can design tests in order to make observations under
controlled conditions.52
This basic process is also found in the environmental risk assessments conducted for transgenic
crops. There are four important steps in Environmental Risk
Assessments:chanRoblesvirtualLawlibrary
(1) Initial evaluation - This step determines whether risk assessment is required.
(2) Problem formulation - This step involves the formulation of risk hypothesis to be tested in the
laboratory and field. An example of a risk hypothesis is whether the transgenic crop affects
nontargeted organisms.
(3) Controlled experiment and gathering information - These are done first in the laboratory, and
then under controlled field conditions.
(4) Risk evaluation53
The results of scientific experimentation with transgenic crops form part of science. However,
these research articles must be rigorously and deliberately examined to scrutinize their subject
matter, the hypothesis and methodology deployed, and the cogency of the conclusions drawn
from the observed findings.
Certainly, the conclusions in studies concerning Bt maize may not always be valid with respect
to Bt talong. Some of the variables may be the same. Obviously, both transgenic crops include
the vector bacillus thuringiensis. However, there will also be obvious differences because of the
difference of the crops, their behavior in various environments, the manner in which-they
reproduce, their uses, and their consequences.
Currently, there is more literature regarding the viability and safety of Bt maize because it is
already being commercially propagated. On the other hand, Bt talong is still being studied and
assessed and is not yet ready for commercial release. The application for field testing for Bt
talong under the correct conditions is itself part of the scientific inquiry to test hypotheses both
for or against its propagation.
The Court of Appeals, instead of relying on these standards of science, employed a "hot tub"
examination of experts. It took into account literature on Bt maize or Bt cotton, and various
arguments and studies conducted for Bt maize. It then made conclusions, without a rigorous
explanation of its methodology and standards for credibility, from these studies.
Without these rigorous explanations, the Court of Appeals committed grave abuse of discretion
when it considered Bt maize research. Ideally, the Court of Appeals should have scrutinized the
results of the contained experimentation with respect to Bt talong because the results were the
basis for the Bureau of Plant Industry's allowance of field testing.54 It should have examined
whether the experimentation conducted may be replicated and whether it will yield the same
result.
The experts could have also been asked individually about the results of contained
experimentation and if the contained experiments answered research objectives relating not only
to the viability of the product, but the impact to the environment should the product undergo field
testing. The first objective is in line with the commercial interests of the applicant, while the latter
objective is more in tune with the state's policy of protecting the right of the people to a balanced
and healthful ecology. The imposition of the latter objective should* have been the role of the
Bureau of Plant Industry because it was the authorizing agency for field testing permits.
The Court of Appeals committed grave abuse of discretion by relying only on the study of Dr.
Gilles-Eric Seralini who made a study involving a completely different transgenic crop. This court
tasked the Court of Appeals to assess the propriety of the issuance of field testing permits with
respect to Bt talong, not to draw conclusions about Bt talong based on one scientific literature
on Bt maize.
The results of the field testing of Bt talong should still be subject to confirmatory tests involving
the same variables in order to attain a level of statistical reliability. However, these subsequent
field testing must be done under regulations consistent with our Constitution and international
obligations. They must be conducted under a regulatory agency that will have the competence to
be actively involved in the scientific inquiry.
VIII
The results of this case are neither an endorsement nor a repudiation of genetically modified
ingredients, processes, and food products. This should neither be interpreted as a rebuke of the
avowed mandates of respondents, many of whom have distinguished themselves in their
advocacies.
Certainly, there is a need for leaders, organizations, and dedicated movements that amplify the
concerns of communities, groups, and identities which tend to be put in the margins of forums
dominated by larger and more politically connected commercial interests. This includes forums
that create and implement regulatory frameworks. Liberal democratic deliberations at times fail
to represent the silenced majority as it succumbs to the powerful minority.
While acknowledging this reality, we also need to be careful that the chambers of this court do
not substitute for the needed political debate on public issues or the analytical rigor required by
truths in science. We are Justices primarily. While politics and science envelope some of our
important decisions, we should not lose the humility that the Constitution itself requires of us. We
are an important part of the constitutional order: always only a part, never one that should
dominate. Our decisions have the veneer of finality. It should never, however, be disguised
superiority in any form or manner.
Political debates indeed also mature when we pronounce the nature of fundamental rights in
concrete cases. Before cases ripen—or, as in this case, when it has become moot—restraint will
be the better approach. We participate in the shaping of the content of these fundamental rights
only with the guidance of an actual case. This, among others, distinguishes the judicial function
from the purely political engagement.

Restraint is especially required when the remedy chosen is a Petition for the issuance of a Writ
of Kalikasan, which is designed to prevent an actual or imminent environmental catastrophe.
Again, in this case, the field testing ended. There is yet no permit to commercially propagate Bt
talong. The results of the field testing of the genetically modified food crop have not been
presented for evaluation by any of the relevant agencies charged with its eventual regulation.
Moreover, the results of the field testing have not been presented for proper public scrutiny.
If any, the resolution of this case implies rigor in environmental advocacy. Vigilance and passion
are the hallmarks of the public interest movement. There is no reason that the members of this
movement should not evolve the proper skills and attitudes to properly work the legal system
and understand the role of the judicial process. Environmental advocacy also requires an
understanding of science and the locating of the proper place of various norms such as the
precautionary principle. After all, representation of marginalized community voices deserves
excellent representation and responsible leadership. Filing a judicial remedy almost two years
too late and without the required scientific rigor patently required by the allegations and the
arguments misses these standards.
But, we cannot "just leave things as they are especially when patent unconstitutional provisions
surface and where deference will amount to a denial of the positive constitutional duties we are
required to discharge. There are grave errors in Administrative Order No. 8 that stack decisions
made by the Department of Agriculture and the Bureau of Plant Industry in favor of the
commercial applicant. We have so far only evaluated the provisions in accordance with law and
found them wanting. By declaring Administrative Order No. 8 null and void, there is now
incentive for either Congress or our administrative bodies to review the present regulatory
framework and bring it not only to legal fiat but also to address all concerns including those
voiced by respondents in this case.
Food safety and food security are vital for the assurance of human dignity. We can only hope
that the complex issues relating to genetic modification of the food we eat be debated
deliberately, vigorously, and with all the scientific rigor and rationality required in the proper
public forums. Food safety and food security are complex issues requiring the benefit of all the
wisdom of all our people.
ACCORDINGLY, I vote to declare Administrative Order No. 8, Series of 2002, of the Department
of Agriculture null and void, being violative of the Constitution, our treaty obligations under the
Cartagena Protocol, and the instructions of the President under Executive Order No. 514.
G.R. No. 180771 April 21, 2015
RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TAÑON STRAIT, e.g.,
TOOTHED WHALES, DOLPHINS, PORPOISES, AND OTHER CETACEAN SPECIES, Joined
in and Represented herein by Human Beings Gloria Estenzo Ramos and Rose-Liza Eisma-
Osorio, In Their Capacity as Legal Guardians of the Lesser Life-Forms and as
Responsible Stewards of God's Creations, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy
(DOE), SECRETARY JOSE L. ATIENZA, in his capacity as Secretary of the Department of
Environment and Natural Resources (DENR), LEONARDO R. SIBBALUCA, DENR Regional
Director-Region VII and in his capacity as Chairperson of the Tañon Strait Protected
Seascape Management Board, Bureau of Fisheries and Aquatic Resources (BFAR),
DIRECTOR MALCOLM J. SARMIENTO, JR., BFAR Regional Director for Region VII
ANDRES M. BOJOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as
represented by its Philippine Agent, SUPPLY OILFIELD SERVICES, INC. Respondents.
x-----------------------x
G.R. No. 181527
CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC), CERILO D.
ENGARCIAL, RAMON YANONG, FRANCISCO LABID, in their personal capacity and as
representatives of the SUBSISTENCE FISHERFOLKS OF THE MUNICIPALITIES OF
ALOGUINSAN AND PINAMUNGAJAN, CEBU, AND THEIR FAMILIES, AND THE PRESENT
AND FUTURE GENERATIONS OF FILIPINOS WHOSE RIGHTS ARE SIMILARLY
AFFECTED, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy
(DOE), JOSE L. ATIENZA, in his capacity as Secretary of the Department of Environment
and Natural Resources (DENR), LEONARDO R. SIBBALUCA, in his capacity as DENR
Regional Director-Region VII and as Chairperson of the Tañon Strait Protected Seascape
Management Board, ALAN ARRANGUEZ, in his capacity as Director - Environmental
Management Bureau-Region VII, DOE Regional Director for Region VIII1 ANTONIO
LABIOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented by its
Philippine Agent, SUPPLY OILFIELD SERVICES, INC., Respondents.
CONCURRING OPINION
"Until one has loved an animal,
a part of one 's soul remains unawakened."
Anatole France
LEONEN, J.:
I concur in the result, with the following additional reasons.
I
In G.R. No. 180771, petitioners Resident Marine Mammals allegedly bring their case in their
personal capacity, alleging that they stand to benefit or be injured from the judgment on the
issues. The human petitioners implead themselves in a representative capacity "as legal
guardians of the lesser life-forms and as responsible stewards of God's Creations."1 They use
Oposa v. Factoran, Jr.2 as basis for their claim, asserting their right to enforce international and
domestic environmental laws enacted for their benefit under the concept of stipulation pour
autrui.3 As the representatives of Resident Marine Mammals, the human petitioners assert that
they have the obligation to build awareness among the affected residents of Tañon Strait as well
as to protect the environment, especially in light of the government's failure, as primary steward,
to do its duty under the doctrine of public trust. 4
Resident Marine Mammals and the human petitioners also assert that through this case, this
court will have the opportunity to lower the threshold for locus standi as an exercise of "epistolary
jurisdiction."5
The zeal of the human petitioners to pursue their desire to protect the environment and to
continue to define environmental rights in the context of actual cases is commendable. However,
the space for legal creativity usually required for advocacy of issues of the public interest is not
so unlimited that it should be allowed to undermine the other values protected by current
substantive and procedural laws. Even rules of procedure as currently formulated set the
balance between competing interests. We cannot abandon these rules when the necessity is not
clearly and convincingly presented.
The human petitioners, in G.R. No. 180771, want us to create substantive and procedural rights
for animals through their allegation that they can speak for them. Obviously, we are asked to
accept the premises that (a) they were chosen by the Resident Marine Mammals of Tañon Strait;
(b) they were chosen by a representative group of all the species of the Resident Marine
Mammals; (c) they were able to communicate with them; and (d) they received clear consent
from their animal principals that they would wish to use human legal institutions to pursue their
interests. Alternatively, they ask us to acknowledge through judicial notice that the interests that
they, the human petitioners, assert are identical to what the Resident Marine Mammals would
assert had they been humans and the legal strategies that they invoked are the strategies that
they agree with.
In the alternative, they want us to accept through judicial notice that there is a relationship of
guardianship between them and all the resident mammals in the affected ecology.
Fundamental judicial doctrines that may significantly change substantive and procedural law
cannot be founded on feigned representation.
Instead, I agree that the human petitioners should only speak for themselves and already have
legal standing to sue with respect to the issue raised in their pleading. The rules on standing
have already been liberalized to take into consideration the difficulties in the assertion of
environmental rights. When standing becomes too liberal, this can be the occasion for abuse.
II
Rule 3, Section 1 of the 1997 Rules of Civil Procedure, in part, provides:
SECTION 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or
entities authorized by law may be parties in a civil action.
The Rules provide that parties may only be natural or juridical persons or entities that may be
authorized by statute to be parties in a civil action.
Basic is the concept of natural and juridical persons in our Civil Code:
ARTICLE 37. Juridical capacity, which is the fitness to be the subject of legal relations, is
inherent in every natural person and is lost only through death. Capacity to act, which is the
power to do acts with legal effect, is acquired and may be lost.
Article 40 further defines natural persons in the following manner:
ARTICLE 40. Birth determines personality; but the conceived child shall be considered born for
all purposes that are favorable to it, provided it be born later with the conditions specified 'in the
following article.
Article 44, on the other hand, enumerates the concept of a juridical person:
ARTICLE 44. The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public interest or purpose, created by
law; their personality begins as soon as they have been constituted according to law;
(3) Corporations, partnerships and associations for private interest or purpose to which
the law grants a juridical personality, separate and distinct from that of each shareholder,
partner or member.
Petitioners in G.R. No. 180771 implicitly suggest that we amend, rather than simply construe, the
provisions of the Rules of Court as well as substantive law to accommodate Resident Marine
Mammals or animals. This we cannot do.
Rule 3, Section 2 of the 1997 Rules of Civil Procedure further defines real party in interest:
SEC. 2. Parties in interest.-A real party in interest is the party who stands to be benefited or
injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be prosecuted or defended in the name of
the real party in interest. (2a)6
A litigant who stands to benefit or sustain an injury from the judgment of a case is a real party in
interest.7 When a case is brought to the courts, the real party in interest must show that another
party's act or omission has caused a direct injury, making his or her interest both material and
based on an enforceable legal right.8
Representatives as parties, on the other hand, are parties acting in representation of the real
party in interest, as defined in Rule 3, Section 3 of the 1997 Rules of Civil Procedure:
SEC. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended
by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in
the title of the case and shall be deemed to be the real party in interest. A representative may be
a trustee of an express rust, a guardian, an executor or administrator, or a party authorized by
law or these Rules. An agent acting in his own name and for the benefit of an undisclosed
principal may sue or be sued without joining the principal except when the contract involves
things belonging to the principal.(3a)9
The rule is two-pronged. First, it defines .a representative as a party who is not bound to directly
or actually benefit or suffer from the judgment, but instead brings a case in favor of an identified
real party in interest.10 The representative is an outsider to the cause of action. Second, the rule
provides a list of who may be considered as "representatives." It is not an exhaustive list, but the
rule limits the coverage only to those authorized by law or the Rules of Court. 11
These requirements should apply even in cases involving the environment, which means that for
the Petition of the human petitioners to prosper, they must show that (a) the Resident Marine
Mammals are real parties in interest; and (b) that the human petitioners are authorized by law or
the Rules to act in a representative capacity.
The Resident Marine Mammals are comprised of "toothed whales, dolphins, porpoises, and
other cetacean species inhabiting Tañon Strait." 12 While relatively new in Philippine jurisdiction,
the issue of whether animals have legal standing before courts has been the subject of
academic discourse in light of the emergence of animal and environmental rights.
In the United States, anim4l rights advocates have managed to establish a system which Hogan
explains as the "guardianship model for nonhuman animals": 13
Despite Animal Lovers, there exists a well-established system by which nonhuman animals may
obtain judicial review to enforce their statutory rights and protections: guardianships. With court
approval, animal advocacy organizations may bring suit on behalf of nonhuman animals in the
same way court-appointed guardians bring suit on behalf of mentally-challenged humans who
possess an enforceable right but lack the ability to enforce it themselves.
In the controversial but pivotal Should Trees Have Standing?-Toward Legal Rights for Natural
Objects, Christopher D. Stone asserts that the environment should possess the right to seek
judicial redress even though it is incapable of representing itself. While asserting the rights of
speechless entities such as the environment or nonhuman animals certainly poses legitimate
challenges - such as identifying the proper spokesman -the American legal system is already
well-equipped with a reliable mechanism by which nonhumans may obtain standing via a
judicially established guardianship. Stone notes that other speechless - and nonhuman - entities
such as corporations, states, estates, and municipalities have standing to bring suit on their own
behalf. There is little reason to fear abuses under this regime as procedures for removal and
substitution, avoiding conflicts of interest, and termination of a guardianship are well established.
In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The
court indicated that AL VA might have obtained standing in its own right if it had an established
history of dedication to the cause of the humane treatment of animals. It noted that the Fund for
Animals had standing and indicated that another more well-known advocacy organization might
have had standing as well. The court further concluded that an organization's standing is more
than a derivative of its history, but history is a relevant consideration where organizations are not
well-established prior to commencing legal action. ALVA was not the proper plaintiff because it
could not identify previous activities demonstrating its recognized activism for and commitment
to the dispute independent of its desire to pursue legal action. The court's analysis suggests that
a qualified organization with a demonstrated commitment to a cause could indeed bring suit on
behalf of the speechless in the form of a court-sanctioned guardianship.
This Comment advocates a shift in contemporary standing doctrine to empower non-profit
organizations with an established history of dedication to the cause and relevant expertise to
serve as official guardians ad !item on behalf of nonhuman animals interests. The American
legal system has numerous mechanisms for representing the rights and interests of nonhumans;
any challenges inherent in extending these pre-existing mechanisms to nonhuman animals are
minimal compared to an interest in the proper administration of justice. To adequately protect the
statutory rights of nonhuman animals, the legal system must recognize those statutory rights
independent of humans and provide a viable means of enforcement. Moreover, the idea of a
guardianship for speechless plaintiffs is not new and has been urged on behalf of the natural
environment. 'Such a model is even more compelling as applied to nonhuman animals, because
they are sentient beings with the ability to feel pain and exercise rational thought. Thus, animals
are qualitatively different from other legally protected nonhumans and therefore have interests
deserving direct legal protection.
Furthermore, the difficulty of enforcing the statutory rights of nonhuman animals threatens the
integrity of the federal statutes designed to protect them, essentially rendering them
meaningless. Sensing that laws protecting nonhuman animals would be difficult to enforce,
Congress provided for citizen suit provisions: the most well-known example is found in the
Endangered Species Act (ESA). Such provisions are evidence of legislative intent to encourage
civic participation on behalf of nonhuman animals. Our law of standing should reflect this intent
and its implication that humans are suitable representatives of the natural environment, which
includes nonhuman animals.14 (Emphasis supplied, citation omitted)
When a court allows guardianship as a basis of representation, animals are considered as
similarly situated as individuals who have enforceable rights but, for a legitimate reason (e.g.,
cognitive disability), are unable to bring suit for themselves. They are also similar to entities that
by their very nature are incapable of speaking for themselves (e.g., corporations, states, and
others).
In our jurisdiction, persons and entities are recognized both in law and the Rules of Court as
having standing to sue and, therefore, may be properly represented as real parties in interest.
The same cannot be said about animals.
Animals play an important role in households, communities, and the environment. While we, as
humans, may feel the need to nurture and protect them, we cannot go as far as saying we
represent their best interests and can, therefore, speak for them before the courts. As humans,
we cannot be so arrogant as to argue that we know the suffering of animals and that we know
what remedy they need in the face of an injury.
Even in Hogan's discussion, she points out that in a case before the United States District Court
for the Central District of California, Animal Lovers Volunteer Ass'n v. Weinberger, 15 the court
held that an emotional response to what humans perceive to be an injury inflicted on an animal
is not within the "zone-of-interest" protected by law.16Such sympathy cannot stand independent
of or as a substitute for an actual injury suffered by the claimant. 17 The ability to represent
animals was further limited in that case by the need to prove "genuine dedication" to asserting
and protecting animal rights:
What ultimately proved fatal to ALVA 's claim, however, was the court's assertion that standing
doctrine further required ALVA to differentiate its genuine dedication to the humane treatment of
animals from the general disdain for animal cruelty shared by the public at large. In doing so, the
court found ALVA 's asserted organizational injury to be abstract and thus relegated ALVA to the
ranks of the "concerned bystander. "
....
In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The
court indicated that ALVA might have obtained standing in its own right if it had an established
history of dedication to the cause of the humane treatment of animals. It noted that the Fund for
Animals had standing and indicated that another more well-known advocacy organization might
have had standing as well. The court further concluded that an organization's standing is more
than a derivative of its history, but history is a relevant consideration where organizations are not
well-established prior to commencing legal action. ALVA was not the proper plaintiff because it
could not identify previous activities demonstrating its recognized activism for and commitment
to the dispute independent of its desire to pursue legal action. The court's analysis suggests that
a qualified organization with a demonstrated commitment to a cause could indeed bring suit on
behalf of the speechless in the form of a court-sanctioned guardianship.18 (Emphasis supplied,
citation omitted)
What may be argued as being parallel to this concept of guardianship is the principle of human
stewardship over the environment in a citizen suit under the Rules of Procedure for
Environmental Cases. A citizen suit allows any Filipino to act as a representative of a party who
has enforceable rights under environmental laws before Philippine courts, and is defined in
Section 5: .
SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or
generations yet unborn, may file an action to enforce rights or obligations under environmental
laws. Upon the filing of a citizen suit, the court shall issue an order which shall contain a brief
description of the cause of action and the reliefs prayed for, requiring all interested parties to
manifest their interest to intervene in the case within fifteen (15) days from notice thereof. The
plaintiff may publish the order once in a newspaper of a general circulation in the Philippines or
furnish all affected barangays copies of said order.
There is no valid reason in law or the practical requirements of this case to implead and feign
representation on behalf of animals. To have done so betrays a very anthropocentric view of
environmental advocacy. There is no way that we, humans, can claim to speak for animals let
alone present that they would wish to use our court system, which is designed to ensure that
humans seriously carry their responsibility including ensuring a viable ecology for themselves,
which of course includes compassion for all living things.
Our rules on standing are sufficient and need not be further relaxed.
In Arigo v. Swift,19 I posed the possibility of further reviewing the broad interpretation we have
given to the rule on standing. While representatives are not required to establish direct injury on
their part, they should only be allowed to represent after complying with the following: [I]t is
imperative for them to indicate with certainty the injured parties on whose behalf they bring the
suit. Furthermore, the interest of those they represent must be based upon concrete legal rights.
It is not sufficient to draw out a perceived interest from a general, nebulous idea of a potential
"injury."20
I reiterate my position in Arigo v. Swift and in Paje v. Casiño 21 regarding this rule alongside the
appreciation of legal standing in Oposa v. Factoran 22 for environmental cases. In Arigo, I opined
that procedural liberality, especially in cases brought by representatives, should be used with
great caution:
Perhaps it is time to revisit the ruling in Oposa v. Factoran.
That case was significant in that, at that time, there was need to call attention to environmental
concerns in light of emerging international legal principles. While "intergenerational
responsibility" is a noble principle, it should not be used to obtain judgments that would preclude
future generations from making their own assessment based on their actual concerns. The
present generation must restrain itself from assuming that it can speak best for those who will
exist at a different time, under a different set of circumstances. In essence, the unbridled resort
to representative suit will inevitably result in preventing future generations from protecting their
own rights and pursuing their own interests and decisions. It reduces the autonomy of our
children and our children 's children. Even before they are born, we again restricted their ability
to make their own arguments.
It is my opinion that, at best, the use of the Oposa doctrine in environmental cases should be
allowed only when a) there is a clear legal basis for the representative suit; b) there are actual
concerns based squarely upon an existing legal right; c) there is no possibility of any
countervailing interests existing within the population represented or those that are yet to be
born; and d) there is an absolute necessity for such standing because there is a threat of
catastrophe so imminent that an immediate protective measure is necessary. Better still, in the
light of its costs and risks, we abandon the precedent all together. 23 (Emphasis in the original)
Similarly, in Paje:
A person cannot invoke the court's jurisdiction if he or she has no right or interest to protect. He
or she who invokes the court's jurisdiction must be the "owner of the right sought to be
enforced." In other words, he or she must have a cause of action. An action may be dismissed
on the ground of lack of cause of action if the person who instituted it is not the real party in
interest.24 The term "interest" under the Rules of Court must refer to a material interest that is not
merely a curiosity about or an "interest in the question involved." The interest must be present
and substantial. It is not a mere expectancy or a future, contingent interest.
A person who is not a real party in interest may institute an action if he or she is suing as
representative of a .real party in interest. When an action is prosecuted or defended by a
representative, that representative is not and does not become the real party in interest. The
person represented is deemed the real party in interest. The representative remains to be a third
party to the action instituted on behalf of another.
....
To sue under this rule, two elements must be present: "(a) the suit is brought on behalf of an
identified party whose right has been violated, resulting in some form of damage, and (b) the
representative authorized by law or the Rules of Court to represent the victim."
The Rules of Procedure for Environmental Cases allows filing of a citizen's suit. A citizen's suit
under this rule allows any Filipino citizen to file an action for the enforcement of environmental
law on behalf of minors or generations yet unborn. It is essentially a representative suit that
allows persons who are not real parties in interest to institute actions on behalf of the real party
in interest.
The expansion of what constitutes "real party in interest" to include minors and generations yet
unborn is a recognition of this court's ruling in Oposa v. Factoran. This court recognized the
capacity of minors (represented by their parents) to file a class suit on behalf of succeeding
generations based on the concept of intergenerational responsibility to ensure the future
generation's access to and enjoyment of [the] country's natural resources.
To allow citizen's suits to enforce environmental rights of others, including future generations, is
dangerous for three reasons:
First, they run the risk of foreclosing arguments of others who are unable to take part in the suit,
putting into. question its representativeness. Second, varying interests may potentially result in
arguments that are bordering on political issues, the resolutions of which do not fall upon this
court. Third, automatically allowing a class or citizen's suit on behalf of minors and generations
yet unborn may result in the oversimplification of what may be a complex issue, especially in
light of the impossibility of determining future generation's true interests on the matter.
In citizen's suits, persons who may have no interest in the case may file suits for others.
Uninterested persons will argue for the persons they represent, and the court will decide based
on their evidence and arguments. Any decision by the court will be binding upon the
beneficiaries, which in this case are the minors and the future generations. The court's decision
will be res judicata upon them and conclusive upon the issues presented. 25
The danger in invoking Oposa v. Factoran to justify all kinds of environmental claims lies in its
potential to diminish the value of legitimate environmental rights. Extending the application of
"real party in interest" to the Resident Marine Mammals, or animals in general, through a judicial
pronouncement will potentially result in allowing petitions based on mere concern rather than an
actual enforcement of a right. It is impossible for animals to tell humans what their concerns are.
At best, humans can only surmise the extent of injury inflicted, if there be any. Petitions invoking
a right and seeking legal redress before this court cannot be a product of guesswork, and
representatives have the responsibility to ensure that they bring "reasonably cogent, rational,
scientific, well-founded arguments"26 on behalf of those they represent.
Creative approaches to fundamental problems should be welcome. However, they should be
considered carefully so that no unintended or unwarranted consequences should follow. I concur
with the approach of Madame Justice Teresita J. Leonardo-De Castro in her brilliant ponencia as
it carefully narrows down the doctrine in terms of standing. Resident Marine Mammals and the
human petitioners have no legal standing to file any kind of petition.
However, I agree that petitioners in G.R. No. 181527, namely, Central Visayas Fisherfolk
Development Center,. Engarcial, Yanong, and Labid, have standing both as real parties in
interest and as representatives of subsistence fisherfolks of the Municipalities of Aloguinsan and
Pinamungahan, Cebu, and their families, and the present and future generations of Filipinos
whose rights are similarly affected. The activities undertaken under Service Contract 46 (SC-46)
directly affected their source of livelihood, primarily felt through the significant reduction of their
fish harvest.27 The actual, direct, and material damage they suffered, which has potential long-
term effects transcending generations, is a proper subject of a legal suit.
III
In our jurisdiction, there is neither reason nor any legal basis for the concept of implied
petitioners, most especially when the implied petitioner was a sitting President of the Republic of
the Philippines. In G.R. No. 180771, apart from adjudicating unto themselves the status of "legal
guardians" of whales, dolphins, porpoises, and other cetacean species, human petitioners also
impleaded Former President Gloria Macapagal-Arroyo as "unwilling co-petitioner" for "her
express declaration and undertaking in the ASEAN Charter to protect Tañon Strait." 28
No person may implead any other person as a co-plaintiff or co-petitioner without his or her
consent. In our jurisdiction, only when there is a party that should have been a necessary party
but was unwilling to join would there be an allegation as to why that party has been omitted. In
Rule 3, Section 9 of the 1997 Rules of Civil Procedure:
SEC. 9. Non-joinder of necessary parties to be pleaded. -Whenever in any pleading in which a
claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known,
and shall state why he is omitted. Should the court find the reason for the omission
unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his
person may be obtained.
The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a
waiver of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from proceeding in the action,
and the judgment rendered therein shall be without prejudice to the rights of such necessary
party.29
A party who should have been a plaintiff or petitioner but whose consent cannot be obtained
should be impleaded as a defendant in the nature of an unwilling co-plaintiff under Rule 3,
Section 10 of the 1997 Rules of Civil Procedure:
SEC. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as plaintiff can
not be obtained, he may be made a defendant and the reason therefor shall be stated in the
complaint.30
The reason for this rule is plain: Indispensable party plaintiffs who should be part of the action
but who do not consent should be put within the jurisdiction of the court through summons or
other court processes. Petitioners. should not take it upon themselves to simply imp lead any
party who does not consent as a petitioner. This places the unwilling co-petitioner at the risk of
being denied due process.
Besides, Former President Gloria Macapagal-Arroyo cannot be a party to this suit. As a co-equal
constitutional department, we cannot assume that the President needs to enforce policy
directions by suing his or her alter-egos. The procedural situation caused by petitioners may
have gained public attention, but its legal absurdity borders on the contemptuous. The Former
President's name should be stricken out of the title of this case.
IV
I also concur with the conclusion that SC-46 is both. illegal and unconstitutional.
SC-46 is illegal because it violates Republic Act No. ·7586 or the National Integrated Protected
Areas System Act of 1992, and Presidential Decree No. 1234, 31 which declared Tañon Strait as
a protected seascape. It is unconstitutional because it violates the fourth paragraph of Article XII,
Section 2 of the Constitution.
V
Petitioner Central Visayas Fisherfolk Development Center asserts that SC-46 violated Article XII,
Section 2, paragraph 1 of the .1987 Constitution because Japan Petroleum Exploration Co., Ltd.
(JAPEX) is 100% Japanese-owned.32 It further asserts that SC-46 cannot be validly classified as
a technical and financial assistance agreement executed under Article XII, Section 2, paragraph
4 of the 1987 Constitution.33 Public respondents counter that SC-46 does not fall under the
coverage of paragraph 1, but is a validly executed contract under paragraph 4. 34· Public
respondents further aver that SC-46 neither granted exclusive fishing rights to JAPEX nor
violated Central Visayas Fisherfolk Development Center's right to preferential use of communal
marine and fishing resources.35
VI
Article XII, Section 2 of the 1987 Constitution states:
Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral
oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State. With the exception. of agricultural lands, all other
natural resources shall not be alienated. The exploration, development, and utilization of natural
resources shall be under the full control and supervision of the State. The State may directly
undertake such activities, or it may enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations at least sixty per centum of
whose capital is owned by such citizens. Such agreements may be for a period not exceeding
twenty-five years, renewable for not more than twenty-five years, and under such terms and
conditions as may be provided by law. In cases of water rights for irrigation, water supply
fisheries, or industrial uses other than the development of water power, beneficial use may be
the measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens,
as well as cooperative fish farming, with priority to subsistence fishermen and fish-workers in
rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either
technical or financial assistance for large-scale exploration, development, and utilization of
minerals, petroleum, and other mineral oils according to the general terms and conditions
provided by law, based on real contributions to the economic growth and general welfare of the
country. In such agreements, the State shall promote the development and use of local scientific
and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution. (Emphasis supplied)
I agree that fully foreign-owned corporations may participate in the exploration, development,
and use of natural resources, but only through either financial agreements or technical ones.
This is the clear import of the words "either financial or technical assistance agreements." This is
also
the clear result if we compare the 1987 constitutional provision with the versions in the 1973 and
1935 Constitution:
1973 CONSTITUTION
ARTICLE XIV
THE NATIONAL ECONOMY AND THE PATRIMONY OF THE NATION
SEC. 9. The disposition, exploration, development, of exploitation, or utilization of any of the
natural resources of the Philippines shall be limited to citizens of the Philippines, or to
corporations or association at least sixty per centum of the capital of which is owned by such
citizens. The Batasang Pambansa, in the national interest, may allow such citizens,
corporations, or associations to enter into service contracts for financial, technical, management,
or other forms of assistance with any foreign person or entity for the exploitation, development,
exploitation, or utilization of any of the natural resources. Existing valid and binding service
contracts for financial, the technical, management, or other forms of assistance are hereby
recognized as such. (Emphasis supplied)
1935 CONSTITUTION
ARTICLE XIII
CONSERVATION AND UTILIZATION OF NATURAL RESOURCES
SECTION 1. All agricultural timber, and mineral. lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy, and other natural resources
of the Philippines belong to the State, and their disposition, exploitation, development, or
utilization shall be limited to citizens of the Philippines, or to corporations or associations at least
sixty per centum of the capital of which is owned by such citizens, subject to any existing right,
grant, lease, or concession at the time of the inauguration of the Government established under
this Constitution. Natural resources, with the exception of public agricultural land, shall not be
alienated, and no license, concession, or lease for the exploitation, development, or utilization of
any of the natural resources shall be granted for a period exceeding twenty-five years,
renewable for another twenty-five years, except as to water rights for irrigation, water supply,
fisheries, or industrial uses other than the development of water power, in which cases beneficial
use may be the measure and the limit of the grant.
The clear text of the Constitution in light of its history prevails over any attempt to infer
interpretation from the Constitutional Commission deliberations. The constitutional texts are the
product of a full sovereign act: deliberations in a constituent assembly and ratification. Reliance
on recorded discussion of Constitutional Commissions, on the other hand, may result in
dependence on incomplete authorship; Besides, it opens judicial review to further subjectivity
from those who spoke during the Constitutional Commission deliberations who may not have
predicted how their words will be used. It is safer that we use the words already in the
Constitution. The Constitution was their product. Its words were read by those who ratified it. The
Constitution is what society relies upon even at present.
SC-46 is neither a financial assistance nor a technical assistance agreement.
Even supposing for the sake of argument that it is, it could not be declared valid in light of the
standards set forth in La Bugal-B'laan Tribal Association, Inc. v. Ramos:36
Such service contracts may be entered into only with respect to minerals, petroleum and other
mineral oils. The grant thereof is subject to several safeguards, among which are these
requirements:
(1) The service contract shall be crafted m accordance with a general law that will set
standard or uniform terms, conditions and requirements, presumably to attain a certain
uniformity in provisions and avoid the possible insertion of terms disadvantageous to the
country.
(2) The President shall be the signatory for the government because, supposedly before
an agreement is presented to the President for signature, it will have been vetted several
times over at different levels to ensure that it conforms to law and can withstand public
scrutiny.
(3) Within thirty days of the executed agreement, the President shall report it to
Congress to give that branch of government an opportunity to look over the agreement
and interpose timely objections, if any.37(Emphasis in the original, citation omitted)
Based on the standards pronounced in La Bugal, SC-46' S validity must be tested against three
important points: (a) whether SC-46 was crafted in accordance with a general law that provides
standards, terms, and conditions; (b) whether SC-46 was signed by the President for and on
behalf of the government; and (c) whether it was reported by the President to Congress within 30
days of execution.
VII
The general law referred to as a possible basis for SC-46's validity is Presidential Decree No. 87
or the Oil Exploration and Development Act of 1972.1âwphi1 It is my opinion that this law is
unconstitutional in that it allows service contracts, contrary to Article XII, Section 2 of the 1987
Constitution:
The President may enter into agreements with foreign-owned corporations involving either
technical or financial assistance for large-scale exploration, development, and utilization of
minerals, petroleum, and other mineral oils according to the general terms and conditions
provided by law, based on real contributions to the economic growth and general welfare of the
country. In such agreements, the State shall promote the development and use of local scientific
and technical resources. (Emphasis supplied)
The deletion of service contracts from the enumeration of the kind of agreements the President
may enter into with foreign-owned corporations for exploration and utilization of resources
means that service contracts are no longer allowed by the Constitution. Pursuant to Article XVIII,
Section 3 of the 1987 Constitution,38 this inconsistency renders the law invalid and ineffective.
SC-46 suffers from the lack of a special law allowing its activities. The Main Opinion emphasizes
an important point, which is that SC-46 did not merely involve exploratory activities, but also
provided the rights and obligations of the parties should it be discovered that there is oil in
commercial quantities in the area. The Tañon Strait being a protected seascape under
Presidential Decree No. 123439 requires that the exploitation and utilization of energy resources
from that area are explicitly covered by a law passed by Congress specifically for that purpose,
pursuant to Section 14 of Republic Act No. 7586 or the National Integrated Protected Areas
System Act of 1992:
SEC. 14. Survey for Energy R6'sources. - Consistent with the policies declared in Section 2,
hereof, protected areas, except strict nature reserves and natural parks, may be subjected to
exploration only for the purpose of gathering information on energy resources and only if such
activity is carried out with the least damage to surrounding areas. Surveys shall be conducted
only in accordance with a program approved by the DENR, and the result of such surveys shall
be made available to the public and submitted to the President for recommendation to Congress.
Any exploitation and utilization of energy resources found within NIP AS areas shall be allowed
only through a law passed by Congress.40 (Emphasis supplied)
No law was passed by Congress specifically providing the standards, terms, and conditions of
an oil exploration, extraction, and/or utilization for Tañon Strait and, therefore, no such activities
could have been validly undertaken under SC-46. The National Integrated Protected Areas
System Act of 1992 is clear that exploitation and utilization of energy resources in a protected
seascape such as Tañon Strait shall only be allowed through a specific law.
VIII
Former President Gloria Macapagal-Arroyo was not the signatory to SC-46, contrary to the
requirement set by paragraph 4 of Article XII, Section 2 for service contracts involving the
exploration of petroleum. SC-46 was entered into by then Department of Energy Secretary
Vicente S. Perez, Jr., on behalf of the government. I agree with the Main Opinion that in cases
where the Constitution or law requires the President to act personally on the matter, the duty
cannot be delegated to another public official.41 La Bugal highlights the importance of the
President's involvement, being one of the constitutional safeguards against abuse and
corruption, as not mere formality:
At this point, we sum up the matters established, based on a careful reading of the ConCom
deliberations, as follows:
• In their deliberations on what was to become paragraph 4, the framers used the term
service contracts in referring to agreements x x x involving either technical or financial
assistance. • They spoke of service contracts as the concept was understood in the
1973 Constitution.
• It was obvious from their discussions that they were not about to ban or eradicate
service contracts.
• Instead, they were plainly crafting provisions to. put in place safeguards that would
eliminate or m minimize the abuses prevalent during the marital law regime. 42 (Emphasis
in the original)
Public respondents failed to show that. Former President Gloria Macapagal-Arroyo was involved
in the signing or execution of SC-46. The failure to comply with this constitutional requirement
renders SC-46 null and void.
IX
Public respondents also failed to show that Congress was subsequently informed of the
execution and existence of SC-46. The reporting requirement is an equally important requisite to
the validity of any service contract involving the exploration, development, and utilization of
Philippine petroleum. Public respondents' failure to report to Congress about SC-46 effectively
took away any opportunity for the legislative branch to scrutinize its terms and conditions.
In sum, SC-46 was executed and implemented absent all the requirements provided under
paragraph 4 of Article XII, Section 2. It is, therefore, null and void.
X
I am of the view that SC-46, aside from not having complied with the 1987 Constitution, is also
null and void for being violative of environmental laws protecting Tañon Strait. In particular, SC-
46 was implemented despite falling short of the requirements of the National Integrated
Protected Areas System Act of 1992.
As a protected seascape under Presidential Decree No. 1234, 43 Tañon Strait is covered by the
National Integrated Protected Areas System Act of 1992. This law declares as a matter of policy:
SEC. 2. Declaration of Policy. Cognizant of the profound impact of man's activities on all
components of the natural environment particularly the effect of increasing population, resource
exploitation and industrial advancement and recognizing the critical importance of protecting and
maintaining the natural biological and physical diversities of the environment notably on areas
with biologically unique features to sustain human life and development, as well as plant and
animal life, it is hereby declared the policy of the State to secure for the Filipino people of
present and future generations the perpetual existence of all native plants and animals through
the establishment of a comprehensive system of integrated protected areas within the
classification of national park as provided for in the Constitution.
It is hereby recognized that these areas, although distinct in features, possess common
ecological values that may be incorporated into a holistic plan representative of our natural
heritage; that effective administration of these areas is possible only through cooperation among
national government, local and concerned private organizations; that the use and enjoyment of
these protected areas must be consistent with the principles of biological diversity and
sustainable development.
To this end, there is hereby established a National Integrated Protected Areas System (NIPAS),
which shall encompass outstanding remarkable areas and biologically important public lands
that are habitats of rare and endangered species of plants and animals, biogeographic zones
and related ecosystems, whether terrestrial, wetland or marine, all of which shall be designated
as "protected areas."44 (Emphasis supplied)
Pursuant to this law, any proposed activity in Tañon Strait must undergo an Environmental
Impact Assessment:
SEC. 12. Environmental Impact Assessment. - Proposals for activities which are outside the
scope of the management plan for protected areas shall be subject to an environmental impact
assessment as required by law before they are adopted, and the results thereof shall be taken
into consideration in the decision-making process.45 (Emphasis supplied)
The same provision further requires that an Environmental Compliance Certificate be secured
under the Philippine Environmental Impact Assessment System before arty project is
implemented:
No actual implementation of such activities shall be allowed without the required Environmental
Compliance Certificate (ECC) under the Philippine Environment Impact Assessment (EIA)
system. In instances where such activities are allowed to be undertaken, the proponent shall
plan and carry them out in such manner as will minimize any adverse effects and take preventive
and remedial action when appropriate. The proponent shall be liable for any damage due to lack
of caution or indiscretion.46 (Emphasis supplied)
In projects involving the exploration or utilization of energy resources, the National Integrated
Protected Areas System Act of 1992 additionally requires that a program be approved by the
Department of Environment and Natural Resources, which shall be publicly accessible. The
program shall also be submitted to the President, who in turn will recommend the program to
Congress. Furthermore, Congress must enact a law specifically allowing the exploitation of
energy resources found within a protected area such as Tañon Strait:
SEC. 14. Survey for Energy Resources. - Consistent with the policies declared in Section 2,
hereof, protected areas, except strict nature reserves and natural parks, may be subjected to
exploration only for the purpose of gathering information on energy resources and only if such
activity is carried out with the least damage to surrounding areas. Surveys shall be conducted
only in accordance with a program approved by the DENR, and the result of such surveys shall
be made available to the public and submitted to the President for recommendation to Congress.
Any exploitation and utilization of energy resources found within NIPAS areas shall be allowed
only through a taw passed by Congress.47 (Emphasis supplied)
Public respondents argue that SC-46 complied with the procedural requirements of obtaining an
Environmental Compliance Certificate.48 At any rate, they assert that the activities covered by
SC-46 fell under Section 14 of the National Integrated Protected Areas System Act of 1992,
which they interpret to be an exception to Section 12. They argue that the Environmental
Compliance Certificate is not a strict requirement for the validity of SC-46 since (a) the Tañon
Strait is not a nature' reserve or natural park; (b) the exploration was merely for gathering
information; and ( c) measures were in place to ensure that the exploration caused the least
possible damage to the area.49
Section 14 is not an exception to Section 12, but instead provides additional requirements for
cases involving Philippine energy resources. The National Integrated Protected Areas System
Act of 1992 was enacted to recognize the importance of protecting the environment in light of
resource exploitation, among others.50 Systems are put in place to secure for Filipinos local
resources under the most favorable conditions. With the status of Tañon Strait as a protected
seascape, the institution of additional legal safeguards is even more significant.
Public respondents did not validly obtain an Environmental Compliance Certificate for SC-46.
Based on the records, JAPEX commissioned an environmental impact evaluation only in the
second subphase of its project, with the Environmental Management .Bureau of Region
VII granting the project an Environmental Compliance Certificate on March 6, 2007. 51
Despite its scale, the seismic surveys from May 9 to 18, 2005 were conducted without any
environmental assessment contrary to Section 12 of the National Integrated Protected Areas
System Act of 1992.
XI
Finally, we honor every living creature when we take care of our environment. As sentient
species, we do not lack in the wisdom or sensitivity to realize that we only borrow the resources
that we use to survive and to thrive. We are not incapable of mitigating the greed that is slowly
causing the demise of our planet. Thus, there is no need for us to feign representation of any
other species or some imagined unborn generation in filing any action in our courts of law to
claim any of our fundamental rights to a healthful ecology. In this way and with candor and
courage, we fully shoulder the responsibility deserving of the grace and power endowed on our
species.
ACCORDINGLY, I vote:
(a) to DISMISS G.R. No. 180771 for lack of standing and STRIKE OUT the name of
Former President Gloria Macapagal-Arroyo from the title of this case;
 (b) to GRANT G.R. No. 181527; and
(c) to DECLARE SERVICE CONTRACT 46 NULL AND VOID for violating the 1987
Constitution, Republic Act No. 7586, and Presidential Decree No. 1234.
MARVIC M.V.F. LEONEN
Associate Justice
G.R. No. 189185, August 16, 2016
WILFREDO MOSQUEDA, MARCELO VILLAGANES, JULIETA LAWAGON, CRISPIN
ALCOMENDRAS, CORAZON SABINADA, VIRGINIA CATA-AG, FLORENCIA SABANDON,
AND LEDEVINA ADLAWAN, Petitioners, v. PILIPINO BANANA GROWERS & EXPORTERS
ASSOCIATION, INC., DAVAO FRUITS CORPORATION, AND LAPANDAY AGRICULTURAL
AND DEVELOPMENT CORPORATION, Respondents.
G.R. No. 189305
CITY GOVERNMENT OF DAVAO, Petitioner, v. COURT OF APPEALS, PILIPINO BANANA
GROWERS & EXPORTERS ASSOCIATION (PBGEA), DAVAO FRUITS CORPORATION,
AND LAPANDAY AGRICULTURAL AND DEVELOPMENT CORPORATION, Respondent.
DECISION
BERSAMIN, J.:
This appeal through the consolidated petitions for review on certiorari assails the decision
promulgated on January 9, 20091 whereby the Court of Appeals (CA) reversed and set aside the
judgment rendered on September 22, 2007 by the Regional Trial Court (RTC), Branch 17, in
Davao City upholding the validity and constitutionality of Davao City Ordinance No. 0309-07, to
wit:ChanRoblesVirtualawlibrary
WHEREFORE, premises considered, the appeal is GRANTED. The assailed September 22,
2007 Decision of the Regional Trial Court (RTC), 11 th Judicial Region, Branch 17, Davao City,
upholding the validity and constitutionality of Davao City Ordinance No. 0309-07, is
hereby REVERSED and SET ASIDE.
FURTHER, the Writ of Preliminary Injunction dated 28 January 2008 enjoining the City
Government of Davao, and any other person or entity acting in its behalf, from enforcing and
implementing City Ordinance No. 0309-07, is hereby made permanent.
SO ORDERED.
Antecedents
After several committee hearings and consultations with various stakeholders, the
Sangguniang Panlungsod of Davao City enacted Ordinance No. 0309, Series of 2007, to impose
a ban against aerial spraying as an agricultural practice by all agricultural entities within Davao
City, viz.:ChanRoblesVirtualawlibrary
ORDINANCE NO. 0309-07
Series of 2007
AN ORDINANCE BANNING AERIAL SPRAYING AS AN AGRICULTURAL PRACTICE IN ALL
AGRICULTURAL ACTIVITIES BY ALL AGRICULTURAL ENTITIES IN DAVAO CITY
Be it enacted by the Sangguniang Panlungsod of Davao City in session assembled that:
chanRoblesvirtualLawlibrarySECTION 1. TITLE. This Ordinance shall be known as "An
Ordinance Banning Aerial Spraying as an Agricultural Practice in all Agricultural Activities by all
Agricultural Entities in Davao City";
SECTION 2. POLICY OF THE CITY. It shall be the policy of the City of Davao to eliminate the
method of aerial spraying as an agricultural practice in all agricultural activities by all entities
within Davao City;
SECTION 3. DEFINITION OF TERMS:
chanRoblesvirtualLawlibrarya. Aerial Spraying - refers to application of substances through the
use of aircraft of any form which dispenses the substances in the air.
b. Agricultural Practices - refer to the practices conducted by agricultural entities in relation to
their agricultural activities;
c. Agricultural Activities - refer to activities that include, but not limited to, land preparation,
seeding, planting, cultivation, harvesting and bagging;
d. Agricultural Entities - refer to persons, natural or juridical, involved in agricultural activities
e. Buffer Zone - is an identified 30-meter zone within and around the boundaries of agricultural
farms/plantations that need special monitoring to avoid or minimize harm to the environment and
inhabitants pursuant to policies and guidelines set forth in this Ordinance and other government
regulations. It is an area of land that must lie within the property which does not include public
lands, public thoroughfares or adjacent private properties. It must be planted with diversified
trees that grow taller than what are usually planted and grown in the plantation to protect those
within the adjacent fields, neighboring farms, residential area, schools and workplaces.
SECTION 4. SCOPE AND APPLICABILITY - The provisions of this Ordinance shall apply to all
agricultural entities within the territorial jurisdiction of Davao City;
SECTION 5. BAN OF AERIAL SPRAYING - A ban on aerial spraying shall be strictly enforced in
the territorial jurisdiction of Davao City three (3) months after the effectivity of this Ordinance.
SECTION 6. BUFFER ZONE - Consistent with national legislation and government regulations,
all agricultural entities must provide for a thirty (30) meter buffer zone within the boundaries of
their agricultural farms/plantations. This buffer zone must be properly identified through Global
Positioning System (GPS) survey. A survey plan showing the metes and bounds of each
agricultural farm/plantation must be submitted to the City Mayor's Office, with the buffer zone
clearly identified therein;
SECTION 7. PENAL PROVISION - Violation of any provision of this Ordinance shall be
punished as follows:
chanRoblesvirtualLawlibrarya. First Offense: Fine of P5,000.00 and imprisonment of not less
than one (1) month but not more than three (3) months;
b. Second Offense: Fine of P5,000.00 and imprisonment of not less than three (3) months but
not more than six (6) months and suspension of City-issued permits and licenses for one (1)
year;
c. Third Offense: Fine of P5,000.00 and imprisonment of not less than six (6) months but not
more than one (1) year and perpetual cancellation of City issued permits and licenses;
Provided, that in case the violation has been committed by a juridical person, the person in
charge of the management thereof shall be held liable;
SECTION 8. REPEALING CLAUSE - Any Ordinance that is contrary to or inconsistent with any
of the provisions of this Ordinance shall be deemed amended or repealed accordingly.
SECTION 9. EFFECTIVITY - This Ordinance shall take effect thirty (30) days from its publication
in a newspaper of general circulation in Davao City;
ENACTED, January 23, 2007 by a majority vote of all the Members of the Sangguniang
Panlungsod.2chanroblesvirtuallawlibrary
City Mayor Rodrigo Duterte approved the ordinance on February 9, 2007. 3 The ordinance took
effect on March 23, 2007 after its publication in the newspaper Mindanao Pioneer.4 Pursuant to
Section 5 of the ordinance, the ban against aerial spraying would be strictly enforced three
months thereafter.
The Pilipino Banana Growers and Exporters Association, Inc. (PBGEA) and two of its members,
namely: Davao Fruits Corporation and Lapanday Agricultural and Development Corporation
(PBGEA, et al.), filed their petition in the RTC to challenge the constitutionality of the ordinance,
and to seek the issuance of provisional reliefs through a temporary restraining order (TRO)
and/or writ of preliminary injunction.5 They alleged that the ordinance exemplified the
unreasonable exercise of police power; violated the equal protection clause; amounted to the
confiscation of property without due process of law; and lacked publication pursuant] to Section
5116 of Republic Act No. 7160 (Local Government Code).
On May 8, 2007, the residents living within and adjacent to banana plantations in Davao City led
by Wilfredo Mosqueda,7 joined by other residents of Davao City,8 (Mosqueda, et al.) submitted
their Motion for Leave to Intervene and Opposition to the Issuance of a Preliminary
Injunction.9 The RTC granted their motion on June 4, 2007. 10chanrobleslaw
On June 20, 2007, the RTC granted the prayer for issuance of the writ of preliminary injunction,
and subsequently issued the writ.11chanrobleslaw
Judgment of the RTC
On September 22, 2007, after trial, the RTC rendered judgment declaring Ordinance No. 0309-
07 valid and constitutional, decreeing thusly:ChanRoblesVirtualawlibrary
WHEREFORE, finding the subject [O]rdinance No. 0309-07 valid and constitutional in all aspect
of the grounds assailed by the petitioner, said [C]ity [O]rdinance No. 0309-07, is sustained of its
validity and constitutionality.
Accordingly, the order of this court dated June 20, 2007, granting the writ of preliminary
injunction as prayed for by petitioner is ordered cancelled and set aside as a result of this
decision.
SO ORDERED.12chanroblesvirtuallawlibrary
The RTC opined that the City of Davao had validly exercised police power13 under the General
Welfare Clause of the Local Government Code;14 that the ordinance, being based on a valid
classification, was consistent with the Equal Protection Clause; that aerial spraying was distinct
from other methods of pesticides application because it exposed the residents to a higher
degree of health risk caused by aerial drift; 15 and that the ordinance enjoyed the presumption of
constitutionality, and could be invalidated only upon a clear showing that it had violated the
Constitution.16chanrobleslaw
However, the RTC, recognizing the impracticability of the 3-month transition period under
Section 5 of Ordinance No. 0309-07, recommended the parties to agree on an extended
transition period.17chanrobleslaw
Decision of the CA
PBGEA, et al. appealed,18 and applied for injunctive relief from the CA, 19 which granted the
application20 and consequently issued a TRO to meanwhile enjoin the effectivity of the
ordinance.21chanrobleslaw
On January 9, 2009, the CA promulgated its assailed decision reversing the judgment of the
RTC.22 It declared Section 5 of Ordinance No. 0309-07 as void and unconstitutional for being
unreasonable and oppressive; found the three-month transition period impractical and
oppressive in view of the engineering and technical requirements of switching from aerial
spraying to truck-mounted boom spraying; and opined that the ban ran afoul with the Equal
Protection Clause inasmuch as Section 3(a) of the ordinance - which defined the term aerial
spraying - did not make reasonable distinction between the hazards, safety and beneficial effects
of liquid substances that were being applied aerially; the different classes of pesticides or
fungicides; and the levels of concentration of these substances that could be beneficial and
could enhance agricultural production.
The CA did not see any established relation between the purpose of protecting the public and
the environment against the harmful effects of aerial spraying, on one hand, and the imposition
of the ban against aerial spraying of all forms of substances, on the other. It ruled that the
maintenance of the 30-meter buffer zone within and around the agricultural plantations under
Section 6 of Ordinance No. 0309-07 constituted taking of property without due process because
the landowners were thereby compelled to cede portions of their property without just
compensation; that the exercise of police power to require the buffer zone was invalid because
there was no finding that the 30-meter surrounding belt was obnoxious to the public welfare; and
that, accordingly, Ordinance No. 0309-07 was unconstitutional because of the absence of a
separability clause.
The City of Davao and the intervenors filed their respective motions for reconsideration, but the
CA denied the motions on August 7, 2009.23chanrobleslaw
Hence, the separate, but now consolidated, appeals by petition for review on certiorari.
Issues
In G.R. No. 189185, petitioners Mosqueda, et al. rely on the following grounds,
namely:ChanRoblesVirtualawlibrary
I that necessarily flowed from the protection afforded by the ordinance from the unwanted effects
THE COURT OF APPEALS IGNORED FUNDAMENTAL PRECEPTS AND CONCEPTS OF
LAW WHICH, PROPERLY CONSIDERED, NECESSARILY LEAD TO THE CONCLUSION
THAT THE DAVAO ORDINANCE IS CONSTITUTIONAL AND VALID
II
THE DAVAO ORDINANCE IS CONSISTENT WITH THE EQUAL PROTECTION CLAUSE
III
THE MEANS EMPLOYED BY THE DAVAO ORDINANCE IS MORE THAN REASONABLY
RELATED TO THE PURPOSE IT SEEKS TO ACHIEVE
IV
THE DAVAO ORDINANCE IS VALID, BEING DEMONSTRABLY REASONABLE AND FAIR
V CONSTITUTION;
THE REQUIREMENT RELATING TO THE 30-METER BUFFER ZONE ARE [SIC]
CONSISTENT WITH DUE PROCESS OF LAW, BEING A VALID EXERCISE OF POLICE
POWER
Mosqueda, et al. state that the CA ignored well-established precepts like the primacy of human
rights over property rights and the presumption of validity in favor of the ordinance; that the CA
preferred the preservation of the profits of respondents PBGEA, et al. to the residents' right to
life, health and ecology,24 thereby disregarding the benevolent purpose of the ordinance; that the
CA assumed the functions of the lawmaker when it set aside the wisdom behind the enactment
of the ordinance; that the CA failed to apply the precautionary principle, by which the State was
allowed to take positive actions to prevent harm to the environment and to human health despite
the lack of scientific certainty; that the CA erred in applying the "strict scrutiny method" in holding
that the ordinance violated the Equal Protection Clause because it only thereby applied in
reviewing classifications that affected fundamental rights; that there was nothing wrong with
prohibiting aerial spraying per se considering that even the aerial spraying of water produced
drift that could affect unwilling neighbors whose, constitutional right to a clean and healthy
environment might be impinged;25cralawred that as far as the three-month period was
concerned, the CA should have considered that manual spraying could be conducted while the
PBGEA, et al. laid down the preparations for the conduct of boom spraying; 26 that
"reasonableness" could be more appropriately weighed by balancing the interests of the parties
against the protection of basic rights, like the right to life, to health, and to a balanced and
healthful ecology;27 that PBGEA, et al. did not substantiate their claim of potential profit losses
that would result from the shift; that business profits should remain inferior and subordinate to
their fundamental rights as residents of Davao City, which were the rights that the assailed
ordinance has sought to protect;28that PBGEA, et al. did not explore other modes of pesticide
treatment either as a stop-gap or as a temporary measure while shifting to truck mounted boom
spraying;29 that the imposition of the 30-meter buffer zone was a valid exercise of police power
of ground spraying; that the imposition of the buffer zone did not constitute compensable taking
under police power, pursuant to the pronouncements in Seng Kee & Co. v. Earnshaw and
Piatt30Patalinghug v. Court of Appeals,31 and Social Justice Society (SJS) v. Atienza, Jr.;32 and
that the 30-meter buffer zone conformed with the ISO 14000 33 and the DENR Environmental
Compliance Certificate (ECC) requirement.34chanrobleslaw
In G.R. No. 189305, petitioner City of Davao submits the following as the issues to be
considered and resolved, to wit:ChanRoblesVirtualawlibrary
I
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT
SECTION 5 OF ORDINANCE NO. 0309-07, SERIES OF 2007 IS OPPRESSIVE AND AN
UNREASONABLE EXERCISE OF DELEGATED POLICE POWER
II
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT
ORDINANCE NO. 0309-07 IS VIOLATIVE OF THE EQUAL PROTECTION CLAUSE OF THE
III
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT
ORDINANCE NO. 0309-07 CONSTITUTES TAKING OF PROPERTY WITHOUT
COMPENSATION, THUS, VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE
CONSTITUTION
 IV police power, rendering the claim for just compensation untenable; that the maintenance of the
buffer zone does not require the respondents to cede a portion of their landholdings; that the
WHETHER OR NOT AERIAL SPRAYING OF FUNGICIDES IS SAFE TO THE PEOPLE AND planting of diversified trees within the buffer zone will serve to insulate the residents from spray
THE ENVIRONMENT drift; that such buffer zone does not deprive the landowners of the lawful and beneficial use of
their property;45 and that the buffer zone is consistent with the Constitution, which reminds
The City of Davao explains that it had the authority to enact the assailed ordinance because it
property owners that the use of property bears a social function. 46chanrobleslaw
would thereby protect the environment and regulate property and business in the interest of the
general welfare pursuant to Section 458 of the Local Government Code;35 that the ordinance
In their comment, the respondents posit that the petition of the City; of Davao should be
was enacted to carry out its mandate of promoting the public welfare under the General Welfare
dismissed for failure to attach material portions of the records, and for raising factual errors that
Clause (Section 16 of the Local Government Code); that the ordinance did not violate the Equal
are not within the realm of this appeal by petition for review on certiorari; 47 that the CA correctly
Protection Clause because the distinction lies in aerial spray as a method of application being
declared the ordinance as unreasonable due to the impossibility of complying with the three-
more deleterious than other modes; that aerial spraying produces more drift that causes
month transition period; that shifting from aerial to truck-mounted boom spraying will take at least
discomfort, and an extremely offensive and obnoxious experience the part of the residents; that
three years and entails careful planning, equipment and machineries, civil works, and capital
spray drift cannot be controlled even with use by the respondents of highly advanced apparatus,
funding of at least P400,000,000.00;48that the Court could rely on its ruling in City of Manila v.
such as the Differential Global Positioning System, Micronair Rotary Drift Control Atomizers,
Laguio, Jr.,49 where an ordinance directing an existing establishment to wind up or to transfer its
Intellimap, Intelliflow Spray Valve System, Control and Display Unit and the Target Flow Spray
business was declared as confiscatory in nature, and, therefore, unconstitutional;50 that the total
Valve Switch System;36 that because of the inherent toxicity of Mancozeb (the fungicide aerially
ban against aerial sprayig, coupled with the inadequate time to shift to truck-mounted boom
applied by the respondents), there is no need to provide for a substantial distinction based on
spraying, effectively deprives the respondents with an efficient means to control the spread of
the level of concentration;37 that as soon as fungicides are released in the air, they become air
the Black Sigatoka disease that threatens the banana plantations; that the ordinance will only
pollutants pursuant to Section 5 of Republic Act No. 8749 (Philippine Clean Air Act of
expose the plantations to the virulent disease that is capable of infecting 60% of the plantations
1999),38 and the activity thus falls under the authority of the local government units to ban; and
on a single cycle51 missed;52 that compared with other modes of application, aerial spraying is
that the ordinance does not only seek to protect and promote human health but also serves as a
more cost-efficient, safe and accurate; that truck-mounted boom spraying, for instance, requires
measure against air pollution.
80-200 liters of solution per hectare,53 while manual spraying uses 200-300 liters of solution per
hectare; that aerial spraying oily requires 30 liters per hectare; that in terms of safety and
The City of Davao insists that it validly exercised police power because it does not thereby oblige
accuracy, manual spraying is the least safe and accurate, 54 and produces more drift than aerial
the shift from aerial to truck-mounted boom spraying; that the respondents only choose boom
spraying;55 that due to the 300-liter solution required, the workers will be more exposed to the
spraying to justify the alleged impracticability of the transition period by erroneously adding the
solution during manual application and such application will thus be more in conflict with the
months required for each of the stages without considering other steps that may be
purpose of the ordinance to prevent human exposure; 56 that the respondents also find the
simultaneously undertaken;39 that the Court should apply its ruling in Social Justice Society v.
irrigation sprinklers suggested by the City of Davao as wasteful, unsafe and impractical because
Atienza, Jr.,40 by which the six-month period for the folding-up of business operations was
it cannot provide the needed coverage for application of the solution to effectively control. the
declared a legitimate exercise of police power; that the respondents did not present any
Black Sigatoka disease; that in contrast, aerial application, coupled with the latest state of the art
documentary evidence on the feasibility of adopting other methods;41 that only 1,800 hectares
technology and equipment, ensures accuracy, effectiveness, efficiency and safety compared to
out of 5,200 hectares of plantations owned and operated by PBGEA's members use aerial
the other methods of application; that the respondents vouch for the safety of the fungicides they
spraying, hence, the perceived ominous consequence of imposing a ban on aerial spray to the
use by virtue of such fungicides having been registered with the Fertilizer and Pesticide Authority
banana industry is entirely misleading;42 that the urgency of prohibiting aerial spray justifies the
(FPA) and classified as Category IV,57 and found to be mild; and that oral ingestion in large
three-month transition period; that the complaints of the community residents - ranging from skin
doses is required before any adverse effects to humans may result. 58chanrobleslaw
itchiness, contraction and/or tightening in the chest, nausea, appetite loss and difficulty in
breathing after exposure to spray mist - only prove that aerial spraying brings discomfort and
The respondents lament that the ban was imposed without any scientific basis; that the
harm to the residents; that considering that the testimony of Dr. Lynn Crisanta R. Panganiban, a
report59prepared by a fact-finding team (composed of the Vice Mayor, the City Health Officer,
pharmacologist and toxicologist, established that fungicides could cause debilitating effects on
The City Planning and Development Coordinator and the Assistance City Planning and
the human body once inhaled or digested, the CA erred in holding that there was no correlation
Development Coordinator) organized by the City of Davao revealed that there was no scientific
between aerial application and the complaints of the residents; that given that aerial spray
evidence to support the clamor for the ban against aerial spraying; that furthermore, national
produces more drift and is uncontrollable compared to the other methods of applying fungicides,
government agencies like the Department of Agriculture (DA), Department of Health (DOR) and
the ordinance becomes reasonable;43 and that the medical-related complaints of the residents
the Department of Trade and Industry (DTI) similarly concluded that there was no scientific
need not be proven by medical records considering that these were based on personal
evidence to support the ban;60 that for four decades since the adoption of aerial spraying, there
knowledge.44chanrobleslaw
has been no reported outbreak or any predisposition to ailment connected with the pesticides
applied; that the testimonies of the residents during the trial were mere "emotional anecdotal
The City of Davao contends that the imposition of the 30-meter buffer zone is a valid exercise of
evidence" that did not establish any scientific or medical bases of any causal connection
between the alleged health conditions complained of and the fungicides applied during aerial
spraying;61 that the allegations of health and environmental harm brought by the pesticides used
to treat the banana plantations were unfounded; that the 2001 study of the International Agency
for Research on Cancer showed that, contrary to the claim of Dra. Panganiban, the by-product of
Mancozeb (Ethylenethiourea or ETU) was "non-genotoxic" and not expected to produce thyroid
cancer;62 that Carlos Mendoza, a geo-hydrologist and geophysicist, testified that underground
water contamination through aerial spraying would be impossible because of the presence of
latex, thick layers of clay and underlying rock formations; 63 that even the study conducted by the
Philippine Coconut Authority (PCA) showed that the rhinoceros beetle infestation in coconut
plantations adjacent to the banana plantations was due to the farmer's failure to observe phyto-
sanitary measures, not to aerial spraying;64 that furthermore, aerial spraying is internationally
accepted as a "Good Agricultural Practice" (GAP) 65 under the International Code of Conduct on
the Distribution and Use of Pesticides by the United Nations-Food and Agricultural Organization
(UN-FAO); that as such, they observe the standards laid down by the UN-FAO, and utilize aerial
spraying equipment that will ensure accuracy, safety and efficiency in applying the substances,
and which more than complies with the requirement under the Guidelines on Good Practice for
Aerial Application of Pesticides (Rome 2001);66 that in addition, they strictly observe standard
operating procedures prior to take-off,67 in-flight68 and post-flight;69 that they substantially
invested in state-of-the-art technology and equipment designed to ensure safety, accuracy, and
effectiveness of aerial spraying operations, to avoid aerial drift; 70 that their equipment include:
wind meters (to measure the wind velocity in a specific area), wind cones (to determine the wind
direction, and whether the wind is a headwind, tailwind or a crosswind); central weather station
(to measure wind speed, the temperature and relative humidity), Differential Global Positioning
System (DGPS),71 Intellimap,72 Control and Display Unit,73 Micronair Rotary Drift Control
Atomizers (AU 5000 Low-Drift model),74 Intelliflow Spray Valve System,75 and Target Flow Spray
Valve Switch System;76 and that they want to minimize, if not, eliminate the occurrence of spray
drift in order to minimize wastage of resources and reduced efficiency of spraying programs
implemented to control the Black Sigatoka disease. 77chanrobleslaw
The respondents maintain that Ordinance No. 0309-07 will regulate aerial spraying as a method
of application, instead of the substances being used therein; that the prohibition is overbroad in
light of other available reasonable measures that may be resorted to by the local government;
that the ordinance is unreasonable, unfair, oppressive, and tantamount to a restriction or
prohibition of trade;78 that the ordinance will effectively impose a prohibition against all
pesticides, including fungicides that fall under the mildest type of substance; that as such, the
petitioner has disregarded existing valid and substantive classifications established and
recognized by the World Health Organization (WHO) that are adopted by the FPA; that the FPA
is the national agency armed with the professional competence, technical expertise, and legal
mandate to deal with the issue of use and application of pesticides in our country; that the
fungicides they administer are duly registered with the FPA, and with other more developed
countries that have observed a stricter environmental and public health regulation such as the
United States Environmental Protection Agency (EPA) and the European Union (EU); that as
such, the City of Davao has disregarded valid, substantial and significant distinctions between
levels of concentration of the fungicides in the water solution aerially sprayed; that it is the FPA
that regulates the level of concentration of agricultural chemicals prior to commercial distribution
and use in the country; that the members of PBGEA only spray a water solution (water cocktail)
containing 0.1 liter to 1.5 liters of the active ingredient of fungicide in a 30-liter water solution per
hectare that has undergone rigorous testing and .evaluation prior to registration by the FPA; that
the active ingredients of the fungicide are so diluted that no harm may be posed to public health
or to the environment through aerial application; 79 that the ordinance was so broad that it
prohibits aerial application of any substance, including water; 80 and that aside from fungicides,
the respondents also aerially apply vitamins, minerals and organic fertilizers. 81chanrobleslaw
The respondents submit that the maintenance of the 30-meter buffer zone under Section 5 of the
ordinance constitutes an improper exercise of police power; that the ordinance will require all
landholdings to maintain the buffer zone, thereby diminishing to a mere 1,600 square meters of
usable and productive land for every hectare of the plantation bounding residential areas, with
the zone being reserved for planting "diversified trees;" that this requirement amounts to taking
without just compensation or due process; and that the imposition of the buffer zone unduly
deprives all landowners within the City of Davao the beneficial use of their property;82 that the
precautionary principle cannot be applied blindly, because its application still requires some
scientific basis; that the principle is also based on a mere declaration that has not even reached
the level of customary international law, not on a treaty binding on the
Government.83chanrobleslaw
The respondents argue that the illegality of the transition period results in the invalidity of the
ordinance as it does not carry a separability clause; and that the absence of such clause
signifies the intention of the Sangguniang Panlungsod of City of Davao to make the ordinance
effective as a whole.84chanrobleslaw
The main issue is whether or not Ordinance No. 0309-07 is unconstitutional on due process and
equal protection grounds for being unreasonable and oppressive, and an invalid exercise of
police power: (a) in imposing a ban on aerial spraying as an agricultural practice in Davao City
under Section 5; (b) in decreeing a 3-month transition-period to shift to other modes of pesticide
application under Section 5; and (c) in requiring the maintenance of the 30-meter buffer zone
under Section 6 thereof in all agricultural lands in Davao City.
Ruling of the Court
We deny the petitions for review for their lack of merit.
I
Preliminary considerations:
The significant role of the banana industry
in ensuring economic stability and food security
There is no question that the implementation of Ordinance No. 0309-07, although the ordinance
concerns the imposition of the ban against aerial spraying in all agricultural lands within Davao
City, will inevitably have a considerable impact on the country's banana industry, particularly on
export trading.
Banana exportation plays a significant role in the maintenance of the country's economic,
stability and food security. Banana is a consistent dollar earner and the fourth largest produced
commodity in the Philippines.85 In 2010, the Philippines figured among the top three banana
producing countries in the world.86 In 2014, fresh bananas accounted for 17% of the country's
top agricultural export commodities, gaining a close second to coconut oil with 18%. 87 The
Davao Region (Region XI)88 was the top banana producing region in 2013, with a production
growth rate of 16.4%, and 33.76% share in the total agricultural output of the
Region.89chanrobleslaw
Despite these optimistic statistics, the banana industry players struggle to keep up with the
demands of the trade by combatting the main threat to production posed by two major fungal
diseases: the Panama Disease Tropical Race 4 (Fusarium oxysprum f.sp. cubense) and the
Black Sigatoka leaf spot disease (Mycosphaerella ffiensis morelet). Pesticides have proven to be
effective only against the Black Sigatoka disease. There is yet no known cure for the Panama
disease.90chanrobleslaw
The menace of the Black Sigatoka disease cannot be taken lightly. The disease causes
destruction of the plant by significantly reducing the leaf area, leading to premature ripening of
the produce and resulting in yield losses of at least 50%.91 Due to its effects on banana export
trading, the disease has emerged as a global concern that has correspondingly forced banana
producers to increase the use of chemical pesticides. 92 Protectant fungicides such as Mancozeb,
chlorothalonil and Propiconazole are applied to combat the disease.93 These agricultural
chemicals are aerially applied by the respondents in the banana plantations within the
jurisdiction of Davao City to arrest the proliferation of the disease.
Considering that banana export plantations exist in vast monocultures, effective treatment of the
Black Sigatoka disease is done by frequent aerial application of fungicides. This is an expensive
practice because it requires permanent landing strips, facilities for the mixing and loading of
fungicides, and high recurring expense of spray materials. 94 The cost of aerial spraying accounts
to 15-20% of the final retail price of the crop, making the technology essentially unavailable to
small landholdings that are more vulnerable to the disease. 95chanrobleslaw
Aerial spraying has become an agricultural practice in Davao City since the establishment of the
banana plantations in 1960.96 Out of the 5,205 hectares of commercial plantations devoted to
Cavendish banana being operated by the respondents in Davao City,97 around 1,800 hectares
receive treatment through aerial application. These plantations are situated in Barangays Sirib,
Manuel Guianga, Tamayong, Subasta Dacudao, Lasang, Mandug, Waan, Tigatto and
Callawa,98 and are affected by the ban imposed by Ordinance No. 0309-07. The DTI has issued
a statement to the effect that the ban against aerial spraying in banana plantations "is expected
to kill the banana industry," affects the socio-economic development of the barangays hosting
the affected plantations, and has a disastrous impact on export trading. The DTI has forecasted
that the ban would discourage the entry of new players in the locality, which would have a
potential drawback in employment generation.99chanrobleslaw
II
The Sangguniang Bayan of Davao City
enacted Ordinance No. 0309-07
under its corporate powers
The petitioners assert that Ordinance No. 0309-07 is a valid act of the Sangguniang Bayan of
Davao City- pursuant to its delegated authority to exercise police power in the furtherance of
public welfare and in ensuring a sound and balanced environment for its constituents. The
respondents negate this assertion, describing the ordinance as unreasonable, discriminatory and
oppressive.
The petitioners' assertion of its authority to enact Ordinance No. 0309-07 is upheld.
To be considered as a valid police power measure, an ordinance must pass a two-pronged test:
the formal (i.e., whether the ordinance is enacted within the corporate powers of the local
government unit, and whether it is passed in accordance with the procedure prescribed by law);
and the substantive (i.e., involving inherent merit, like the conformity of the ordinance with the
limitations under the Constitution and the statutes, as well as with the requirements of fairness
and reason, and its consistency with public policy). 100chanrobleslaw
The formalities in enacting an ordinance are laid down in Section 53 101 and Section 54102 of The
Local Government Code. These provisions require the ordinance to be passed by the majority of
the members of the sanggunian concerned, and to be presented to the mayor for approval. With
no issues regarding quorum during its deliberation having been raised, and with its approval of
by City Mayor Duterte not being disputed, we see no reason to strike down Ordinance No. 0309-
07 for non-compliance with the formal requisites under the Local Government Code.
We next ascertain whether the City of Davao acted within the limits of its corporate powers in
enacting Ordinance No. 0309-07.
The corporate powers of the local government unit confer the basic authority to enact legislation
that may interfere with personal liberty, property, lawful businesses and occupations in order to
promote the general welfare.103 Such legislative powers spring from the delegation thereof by
Congress through either the Local Government Code or a special law. The General Welfare
Clause in Section 16 of the Local Government Code embodies the legislative grant that enables
the local government unit to effectively accomplish and carry out the declared objects of its
creation, and to promote and maintain local autonomy. 104 Section 16
reads:ChanRoblesVirtualawlibrary
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.
Section 16 comprehends two branches of delegated powers, namely: the general legislative
power and the police power proper. General legislative power refers to the power delegated by
Congress to the local legislative body, or the Sangguniang Panlungsod in the case of Dayao
City,105 to enable the local legislative body to enact ordinances and make regulations. This
power is limited in that the enacted ordinances must not be repugnant to law, and the power
must be exercised to effectuate and discharge the powers and duties legally conferred to the
local legislative body. The police power proper, on the other hand, authorizes the local
government unit to enact ordinances necessary and proper for the health and safety, prosperity,
morals, peace, good order, comfort, and convenience of the local government unit and its
constituents, and for the protection of their property. 106chanrobleslaw
Section 458 of the Local Government Code explicitly vests the local government unit with the
authority to enact legislation .aimed at promoting the general
welfare, viz.:ChanRoblesVirtualawlibrary
Section 458. Powers, Duties, Functions and Compensation. — (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and
appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of
this Code and in the proper exercise of the corporate powers of the city as provided for under
Section 22 of this Code. x x x
In terms of the right of the citizens to health and to a balanced and healthful ecology, the local
government unit takes its cue from Section 15 and Section 16, Article II of the 1987 Constitution.
Following the provisions of the Local Government Code and the Constitution, the acts of the
local government unit designed to ensure the health and lives of its constituents and to promote
a balanced and healthful ecology are well within the corporate powers vested in the local
government unit. Accordingly, the Sangguniang Bayan of Davao City is vested with the requisite
authority to enact an ordinance that seeks to protect the health and well-being of its constituents.
The respondents pose a challenge against Ordinance No. 0309-07 on the ground that the
Sangguniang Bayan of Davao City has disregarded the health of the plantation workers,
contending that by imposing the ban against aerial spraying the ordinance would place the
plantation workers at a higher health risk because the alternatives of either manual or truck-
boom spraying method would be adopted; and that exposing the workers to the same risk
sought to be prevented by the ordinance would defeat its purported purpose.
We disagree with the respondents.
With or without the ban against aerial spraying, the health and safety of plantation workers are
secured by existing state policies, rules and regulations implemented by the FPA, among others,
which the respondents are lawfully bound to comply with. The respondents even manifested
their strict compliance with these rules, including those in the UN-FAO Guidelines on Good
Practice for Aerial Application of Pesticides (Rome 2001). We should note that the Rome 2001
guidelines require the pesticide applicators to observe the standards provided therein to ensure
the health and safety of plantation workers. As such, there cannot be any imbalance between
the right to health of the residents vis-a-vis the workers even if a ban will be imposed against
aerial spraying and the consequent adoption of other modes of pesticide treatment.
Furthermore, the constitutional right to health and maintaining environmental integrity are
privileges that do not only advance the interests of a group of individuals. The benefits of
protecting human health and the environment transcend geographical locations and even
generations. This is the essence of Sections 15 and 16, Article II of the Constitution. In Oposa v.
Factoran, Jr.107 we declared that the right to a balanced and healthful ecology under Section 16
is an issue of transcendental importance with intergenerational implications. It is under this
milieu that the questioned ordinance should be appreciated.
Advancing the interests of the residents who are vulnerable to the alleged health risks due to
their exposure to pesticide drift justifies the motivation behind the enactment of the ordinance.
The City of Davao has the authority to enact pieces of legislation that will promote the general
welfare, specifically the health of its constituents. Such authority should not be construed,
however, as a valid license for the City of Davao to enact any ordinance it deems fit to discharge
its mandate. A thin but well-defined line separates authority to enact legislations from the method
of accomplishing the same.
By distinguishing authority from method we face this question: Is a prohibition against aerial
spraying a lawfully permissible method that the local government unit of Davao City may adopt
to prevent the purported effects of aerial drift? To resolve this question, the Court must dig
deeper into the intricate issues arising from these petitions.
II
Ordinance No. 0309-07 violates the Due Process Clause
A valid ordinance must not only be enacted within the corporate powers of the local government
and passed according to the procedure prescribed by law. 108 In order to declare it as a valid
piece of local legislation, it must also comply with the following substantive requirements,
namely: (1) it must not contravene the Constitution or any statute; (2) it must be fair, not
oppressive; (3) it must not be partial or discriminatory; (4) it must not prohibit but may regulate
trade; (5) it must be general and consistent with public policy; and (6) it must not be
unreasonable.109chanrobleslaw
In the State's exercise of police power, the property rights of individuals may be subjected to
restraints and burdens in order to fulfill the objectives of the Government. 110 A local government
unit is considered to have properly exercised its police powers only if it satisfies the following
requisites, to wit: (1) the interests of the public generally, as distinguished from those of a
particular class, require the interference of the State; and (2) the means employed are
reasonably necessary for the attainment of the object sought to be accomplished and not unduly
oppressive.111 The first requirement refers to the Equal Protection Clause of the Constitution; the
second, to the Due Process Clause of the Constitution. 112chanrobleslaw
Substantive due process requires that a valid ordinance must have a sufficient justification for
the Government's action.113 This means that in exercising police power the local government unit
must not arbitrarily, whimsically or despotically enact the ordinance regardless of its salutary
purpose. So long as the ordinance realistically serves a legitimate public purpose, and it employs
means that are reasonably necessary to achieve that purpose without unduly oppressing the
individuals regulated, the ordinance must survive a due process challenge. 114chanrobleslaw
The respondents challenge Section 5 of Ordinance No. 0309-07 for being unreasonable and
oppressive in that it sets the effectivity of the ban at three months after publication of the
ordinance. They allege that three months will be inadequate time to shift from aerial to truck-
mounted boom spraying, and effectively deprives them of efficient means to combat the Black
Sigatoka disease.
The petitioners counter that the period is justified considering the urgency of protecting the
health of the residents.
We find for the respondents.
The impossibility of carrying out a shift to another mode of pesticide application within three
months can readily be appreciated given the vast area of the affected plantations and the
corresponding resources required therefor. To recall, even the RTC recognized the impracticality
of attaining a full-shift to other modes of spraying within three months in view of the costly
financial and civil works required for the conversion. 115 In the assailed decision, the CA
appropriately observed:ChanRoblesVirtualawlibrary
There appears to be three (3) forms of ground spraying, as distinguished from aerial spraying,
which are: 1. "Truck-mounted boom spraying;" 2. "manual or backpack spraying." and 3.
"sprinkler spraying." Petitioners-appellants claim that it was physically impossible for them to
shift to "truck-mounted boom spraying" within three (3) months before the aerial spraying ban is
actually enforced. They cited the testimony of Dr. Maria Emilia Rita G. Fabregar, Ph.D, PBGEA
Chairperson, to the effect that since banana plantations in Davao City were configured for aerial
spraying, the same lack the road network to make "truck-mounted boom spraying" possible.
According to Dr. Fabregar, it was impossible to construct such road networks in a span of three
(3) months. Engr. Magno P. Porticos, Jr., confirmed that the shift demands the construction of
three hundred sixty (360) linear kilometers of road which cannot be completed in three (3)
months.
In their separate testimonies, Dr. Fabregar and Engr. Porticos explained that a shift to "truck-
mounted boom spraying" requires the following steps which may be completed in three (3)
years:ChanRoblesVirtualawlibrary
1. six (6) months for planning the reconfiguration of banana plantations to ensure effective truck-
mounted boom spraying for the adequate protections of the plantations from the Black Sigatoka
fungus and other diseases, while maximizing land use;
2. two (2) months to secure government permits for infrastructure works to be undertaken
thereon;
3. clearing banana plants and dismantling or reconstructing fixed infrastructures, such as roads,
drains, cable ways, and irrigation facilities, which phase may be completed in eighteen (18)
months;
4. importation and purchase of trucks mounted with boom spraying, nurse trucks and protective
gears. The placing of orders and delivery of these equipments, including the training [of] the
personnel who would man the same, would take six (6) months; and cralawlawlibrary
5. securing the needed capitalization to finance these undertakings would take six (6) months to
a year.
Ms. Maria Victoria E. Sembrano, CPA, Chairperson of the PBGEA Finance Committee, testified
that her committee and the Technical Committee and Engineering Group of PBGEA conducted a
feasibility study to determine the cost in undertaking the shift to ground spraying. Their findings
fixed the estimated cost for the purpose at Php 400 Million.
xxxx
Both appellees failed to rebut the foregoing testimonies with empirical findings to the contrary.
xxxx
Thus, in view of the infrastructural requirements as methodically explained, We are convinced
that it was physically impossible for petitioners-appellants to carry out a carefully planned
configuration of vast hectares of banana plantations and be able to actually adopt "truck-
mounted boom spraying" within three (3) months. To compel petitioners-appellants to abandon
aerial spraying in favor of "manual or backpack spraying" or "sprinkler spraying" within 3 months
puts petitioners-appellants in a vicious dilemma between protecting its investments and the
health of its workers, on the one hand, and the threat of prosecution if they refuse to comply with
the imposition. We even find the 3-months transition period insufficient, not only in acquiring and
gearing-up the plantation workers of safety appurtenances, but more importantly in reviewing
safety procedures for "manual or backpack spraying" and in training such workers for the
purpose. Additionally, the engineering works for a sprinkler system in vast hectares of banana
plantations could not possibly be completed within such period, considering that safety and
efficiency factors need to be considered in its structural re-designing.
xxxx
Respondent-appellee argues that the Ordinance merely banned an agricultural practice and did
not actually prohibit the operation of banana plantations; hence, it is not oppressive. While We
agree that the measure did not impose a closure of a lawful enterprise, the proviso in Section 5,
however, compels petitioners-appellants to abandon aerial spraying without affording them
enough time to convert and adopt other spraying practices. This would preclude petitioners-
appellants from being able to fertilize their plantations with essential vitamins and minerals
substances, aside from applying thereon the needed fungicides or pesticides to control, if not
eliminate the threat of, plant diseases. Such an apparent eventuality would prejudice the
operation of the plantations, and the economic repercussions thereof would just be akin to
shutting down the venture.
This Court, therefore, finds Section 5 of Ordinance No. 0309-07 an invalid provision because the
compulsion thereunder to abandon aerial spraying within an impracticable period of "three (3)
months after the effectivity of this Ordinance" is "unreasonable, oppressive and impossible to
comply with."116chanroblesvirtuallawlibrary
The required civil works for the conversion to truck-mounted boom spraying alone will consume
considerable time and financial resources given the topography and geographical features of the
plantations.117 As such, the conversion could not be completed within the short timeframe of
three months. Requiring the respondents and other affected individuals to comply with the
consequences of the ban within the three-month period under pain of penalty like fine,
imprisonment and even cancellation of business permits would definitely be oppressive as to
constitute abuse of police power.
The respondents posit that the requirement of maintaining a buffer zone under Section 6 of the
ordinance violates due process for being confiscatory; and that the imposition unduly deprives all
agricultural landowners within Davao City of the beneficial use of their property that amounts to
taking without just compensation.
The position of the respondents is untenable.
In City of Manila v. Laguio, Jr.,118 we have thoroughly explained that taking only becomes
confiscatory if it substantially divests the owner of the beneficial use of its
property, viz.:ChanRoblesVirtualawlibrary
An ordinance which permanently restricts the use of property that it cannot be used for any
reasonable purpose goes beyond regulation and must be recognized as a taking of the property
without just compensation. It is intrusive and violative of the private property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that "private property shall not be
taken for public use without just compensation." The provision is the most important protection of
property rights in the Constitution. This is a restriction on the general power of the government to
take property. The constitutional provision is about ensuring that the government does not
confiscate the property of some to give it to others. In part too, it is about loss spreading. If the
government takes away a person's property to benefit society, then society should pay. The
principal purpose of the guarantee is "to bar the Government from forcing some people alone to
bear public burdens which, in all fairness and justice, should be borne by the public as a whole.
There are two different types of taking that can be identified. A "possessory" taking occurs when
the government confiscates or physically occupies property. A "regulatory" taking occurs when
the government's regulation leaves no reasonable economically viable use of the property.
In the landmark case of Pennsylvania Coal v. Mahon, it was held that a taking also could be
found if government regulation of the use of property went "too far." When regulation reaches a
certain magnitude, in most if not in all cases there must be an exercise of eminent domain and
compensation to support the act. While property may be regulated to a certain extent, if
regulation goes too far it will be recognized as a taking.
No formula or rule can be devised to answer the questions of what is too far and when regulation
becomes a taking. In Mahon, Justice Holmes recognized that it was "a question of degree and
therefore cannot be disposed of by general propositions." On many other occasions as well, the
U.S. Supreme Court has said that the issue of when regulation constitutes a taking is a matter of
considering the facts in each case. The Court asks whether justice and fairness require that the
economic loss caused by public action must be compensated by the government and thus borne
by the public as a whole, or whether the loss should remain concentrated on those few persons
subject to the public action.
What is crucial in judicial consideration of regulatory takings is that government regulation is a
taking if it leaves no reasonable economically viable use of property in a manner that interferes
with reasonable expectations for use. A regulation that permanently denies all economically
beneficial or productive use of land is, from the owner's point of view, equivalent to a "taking"
unless principles of nuisance or property law that existed when the owner acquired the land
make the use prohibitable. When the owner of real property has been called upon to sacrifice all
economically beneficial uses in the name of the common good, that is, to leave his property
economically idle, he has suffered a taking.
A regulation which denies all economically beneficial or productive use of land will require
compensation under the takings clause. Where a regulation places limitations on land that fall
short of eliminating all economically beneficial use, a taking nonetheless may have occurred,
depending on a complex of factors including the regulation's economic effect on the landowner,
the extent to which the regulation interferes with reasonable investment-backed expectations
and the character of government action. These inquiries are informed by the purpose of the
takings clause which is to prevent the government from forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne by the public as a whole.
A restriction on use of property may also constitute a "taking" if not reasonably necessary to the
effectuation of a substantial public purpose or if it has an unduly harsh impact on the distinct
investment-backed expectations of the owner. (bold Emphasis supplied)
The establishment of the buffer zone is required for the purpose of minimizing the effects of
aerial spraying within and near the plantations. Although Section 3(e) of the ordinance requires
the planting of diversified trees within the identified buffer zone, the requirement cannot be
construed and deemed as confiscatory requiring payment of just compensation. A landowner
may only be entitled to compensation if the taking amounts to a permanent denial of all
economically beneficial or productive uses of the land. The respondents cannot be said to be
permanently and completely deprived of their landholdings because they can still cultivate or
make other productive uses of the areas to be identified as the buffer zones.
III
Ordinance No. 0309-07 violates the Equal Protection Clause
A serious challenge being posed against Ordinance No. 0309-07 rests on its supposed collision
with the Equal Protection Clause. The respondents submit that the ordinance transgresses this
constitutional guaranty on two counts, to wit: (1) by prohibiting aerial spraying per se, regardless
of the substance or the level of concentration of the chemicals to be applied; and (2) by imposing
the 30-meter buffer zone in all agricultural lands in Davao City regardless of the sizes of the
landholding.
The constitutional right to equal protection requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities imposed. It requires
public bodies and institutions to treat similarly situated individuals in a similar manner. The
guaranty equal protection secures every person within the State's jurisdiction against intentional
and arbitrary discrimination, whether occasioned by the express terms of a statue or by its
improper execution through the State's duly constituted authorities. The concept of equal justice
under the law demands that the State governs impartially, and not to draw distinctions between
individuals solely on differences that are irrelevant to the legitimate governmental
objective.119chanrobleslaw
Equal treatment neither requires universal application of laws to all persons or things without
distinction,120 nor intends to prohibit legislation by limiting the object to which it is directed or by
the territory in which it is to operate.121 The guaranty of equal protection envisions equality
among equals determined according to a valid classification. 122 If the groupings are
characterized by substantial distinctions that make real differences, one class may be treated
and regulated differently from another. 123 In other word, a valid classification must be: (1) based
on substantial distinctions; (2) germane to the purposes of the law; (3) not limited to existing
conditions only; and (4) equally applicable to all members of the class. 124chanrobleslaw
Based on these parameters, we find for the respondents.
The reasonability of a distinction and sufficiency of the justification given by the Government for
its conduct is gauged by using the means-end test.125 This test requires analysis of: (1) the
interests of the public that generally require its exercise, as distinguished from those of a
particular class; and (2) the means employed that are reasonably necessary for the
accomplishment of the purpose and are not unduly oppressive upon individuals. 126 To determine
the propriety of the classification, courts resort to three levels of scrutiny, viz: the rational
scrutiny, intermediate scrutiny and strict scrutiny.
The rational basis scrutiny (also known as the rational relation test or rational basis test)
demands that the classification reasonably relate to the legislative purpose. 127 The rational basis
test often applies in cases involving economics or social welfare,128 or to any other case not
involving a suspect class.129chanrobleslaw
When the classification puts a quasi-suspect class at a disadvantage, it will be treated under
intermediate or heightened review. Classifications based on gender or illegitimacy receives
intermediate scrutiny.130 To survive intermediate scrutiny, the law must not only further an
important governmental interest and be substantially related to that interest, but the justification
for the classification must be genuine and must not depend on broad
generalizations.131chanrobleslaw
The strict scrutiny review applies when a legislative classification impermissibly interferes with
the exercise of a fundamental right or operates to the peculiar class disadvantage of a suspect
class. The Government carries the burden to prove that the classification is necessary to achieve
a compelling state interest, and that it is the least restrictive means to protect such
interest.132chanrobleslaw
The petitioners advocate the rational basis test. In particular, the petitioning residents of Davao
City argue that the CA erroneously applied the strict scrutiny approach when it declared that the
ordinance violated the Equal Protection Clause because the ban included all substances
including water and vitamins. The respondents agree with the CA, however, and add that the
ordinance does not rest on a valid distinction because it has lacked scientific basis and has
ignored the classifications of pesticides observed by the FPA.
We partly agree with both parties.
In our view, the petitioners correctly argue that the rational basis approach appropriately applies
herein. Under the rational basis test, we shall: (1) discern the reasonable relationship between
the means and the purpose of the ordinance; and (2) examine whether the means or the
prohibition against aerial spraying is based on a substantial or reasonable distinction. A
reasonable classification includes all persons or things similarly situated with respect to the
purpose of the law.133chanrobleslaw
Applying the test, the established classification under Ordinance No. 0309-07 is to be viewed in
relation to the group of individuals similarly situated with respect to the avowed purpose. This
gives rise to two classes, namely: (1) the classification under Ordinance No. 0309-07 (legislative
classification); and (2) the classification based on purpose (elimination of the mischief). The
legislative classification found in Section 4 of the ordinance refers to "all agricultural entities"
within Davao City. Meanwhile, the classification based on the purpose of the ordinance cannot
be easily discerned because the ordinance does not make any express or implied reference to it.
We have to search the voluminous records of this case to divine the animus behind the action of
the Sangguniang Panglungsod in prohibiting aerial spraying as an agricultural activity. The effort
has led uS to the following proposed resolution of the Sangguniang
Panglungsod,134viz.:ChanRoblesVirtualawlibrary
RESOLUTION NO. ____
Series of 2007
A RESOLUTION TO ENACT AN ORDINANCE BANNING AERIAL SPRAYING AS AN
AGRICULTURAL PRACTICE IN ALL AGRICULTURAL ENTITIES IN DAVAO CITY
WHEREAS, the City of Davao, with fertile lands and ideal climactic condition, hosts various large
farms planted with different crops;
WHEREAS, these farms, lay adjacent to other agricultural businesses and that residential areas
abuts these farm boundaries;
WHEREAS, aerial spraying as a mode of applying chemical substances such as fungicides and
pesticides is being used by investors/companies over large agricultural plantations in Davao
City;
WHEREAS, the Davao City watersheds and ground water sources, located within and adjacent
to Mount Apo may be affected by the aerial spraying of chemical substances on the agricultural
farms and plantations therein;
WHEREAS, the effects of aerial spraying are found to be detrimental to the health of the
residents of Davao City most especially the inhabitants nearby agricultural plantations practicing
aerials spraying;
WHEREAS, the unstable wind direction during the conduct of aerial spray application of these
chemical substances pose health hazards to people, animals, other crops and ground water
sources;
WHEREAS, in order to achieve sustainable development, politics must be based on the
Precautionary Principle. Environment measures must anticipate, prevent, and attack the causes
of environmental degradation. Where there are threats of serious, irreversible damage, lack of
scientific certainty should not be used as a reason for postponing measures to prevent
environmental degradation;
WHEREAS, it is the policy of the City of Davao to ensure the safety of its inhabitants from all
forms of hazards, especially if such hazards come from development activities that are supposed
to be beneficial to everybody;
WHEREAS, pesticides are by its nature poisonous, it is all the more dangerous when dispensed
aerially through aircraft because of unstable wind conditions which in turn makes aerial spray
drifting to unintended targets a commonplace.
WHEREAS, aerial spraying of pesticides is undeniably a nuisance.
WHEREAS, looking at the plight of the complainants and other stakeholders opposed to aerial
spraying, the issue of aerial spraying of pesticides is in all fours a nuisance. Given the vastness
of the reach of aerial spraying, the said form of dispensation falls into the category of a public
nuisance. Public nuisance is defined by the New Civil Code as one which affects a community or
neighborhood or any considerable number of persons, although the extent of the annoyance,
danger or damage upon individuals may be unequal.
WHEREAS, the General Welfare Clause of the Local Government Code empowers Local
Government Units to enact ordinances that provide for the health and safety, promote the
comfort and convenience of the City and the inhabitants thereof.
NOW THEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, that for the health,
safety and peace of mind of all the inhabitants of Davao City, let an ordinance be enacted
banning aerial spraying as an agricultural practice in all agricultural entities in Davao City.
xxxx
The proposed resolution identified aerial spraying of pesticides as a nuisance because of the
unstable wind direction during the aerial application, which (1) could potentially contaminate the
Davao City watersheds and ground water sources; (2) was detrimental to the health of Davao
City residents, most especially those living in the. nearby plantations; and (3) posed a hazard to
animals and other crops. Plainly, the mischief that the prohibition sought to address was the
fungicide drift resulting from the aerial application; hence, the classification based on the intent of
the proposed ordinance covered all agricultural entities conducting aerial spraying of fungicides
that caused drift.
The assailed ordinance thus becomes riddled with several distinction issues.
A brief discussion on the occurrence of the drift that the ordinance seeks to address is
necessary.
Pesticide treatment is based on the use of different methods of application and equipment,135 the
choice of which methods depend largely on the objective of distributing the correct dose to a
defined target with the minimum of wastage due to "drift." 136 The term "drift" refers to the
movement of airborne spray droplets, vapors, or dust particles away from the target area during
pesticide application.137 Inevitably, any method of application causes drift, which may either be
primary or secondary. As fittingly described by scholars: 138
Primary drift is the off-site movement of spray droplets at, or very close to, the time of
application. For example, a field application using a boom in a gusty wind situation could easily
lead to a primary drift. Primary spray drift is not product specific, and the active ingredients do
not differ in their potential to drift. However, the type of formulation, surfactant, or other adjuvant
may affect spray drift potential.
Secondary drift is associated with pesticide vapor. Pesticide vapor drift is the movement of the
gas that forms when an active ingredient evaporates from plants, soil, or other surfaces. And
while vapor drift is an important issue, it only pertains to certain volatile products. Vapor drift and
other forms of secondary drift are product specific. Water-based sprays will volatize more quickly
than oil-based sprays. However, oil-based sprays can drift farther, especially above 95°F,
because they are lighter.
Understandably, aerial drift occurs using any method of application, be it through airplanes,
ground sprayers, airblast sprayers or irrigation systems.139 Several factors contribute to the
occurrence of drift depending on the method of application, viz.:ChanRoblesVirtualawlibrary
AERIAL AIRBLAST GROUND CHEMIGATION
Droplet size Crop canopy Droplet size Application height
Application height Droplet size Boom height Wind speed
Wind speed Wind speed Wind speed
Swath adjustment
Canopy
Boom length
Tank mix physical properties
Source: F.M. Fishel and J.A. Ferrell, "Managing Pesticide Drift," available
at http://edis.ifas.edu/pi232. citing Pesticide Notes, MSU Extension.
The four most common pesticide treatment methods adopted in Davao City are aerial, truck-
mounted boom, truck-mounted mechanical, and manual spraying. 140 However, Ordinance No.
0309-07 imposes the prohibition only against aerial spraying.
Davao City justifies the prohibition against aerial spraying by insisting that the occurrence of drift
causes inconvenience and harm to the residents and degrades the environment. Given this
justification, does the ordinance satisfy the requirement that the classification must rest on
substantial distinction?
We answer in the negative.
The occurrence of pesticide drift is not limited to aerial spraying but results from the conduct of
any mode of pesticide application. Even manual spraying or truck-mounted boom spraying
produces drift that may bring about the same inconvenience, discomfort and alleged health risks
to the community and to the environment. 141 A ban against aerial spraying does not weed out the
harm that the ordinance seeks to achieve. 142 In the process, the ordinance suffers from being
"underinclusive" because the classification does not include all individuals tainted with the same
mischief that the law seeks to eliminate.143 A classification that is drastically underinclusive with
respect to the purpose or end appears as an irrational means to the legislative end because it
poorly serves the intended purpose of the law. 144chanrobleslaw
The claim that aerial spraying produces more aerial drift cannot likewise be sustained in view of
the petitioners' failure to substantiate the same. The respondents have refuted this claim, and
have maintained that on the contrary, manual spraying produces more drift than aerial
treatment145 As such, the decision of prohibiting only aerial spraying is tainted with arbitrariness.
Aside from its being underinclusive, the assailed ordinance also tends to be "overinclusive"
because its .impending implementation will affect groups that have no relation to the
accomplishment of the legislative purpose. Its implementation will unnecessarily impose a
burden on a wider range of individuals than those included in the intended class based on the
purpose of the law.146chanrobleslaw
It can be noted that the imposition of the ban is too broad because the ordinance applies
irrespective of the substance to be aerially applied and irrespective of the agricultural activity to
be conducted. The respondents admit that they aerially treat their plantations not only with
pesticides but also vitamins and other substances. The imposition of the ban against aerial
spraying of substances other than fungicides and regardless of the agricultural activity being
performed becomes unreasonable inasmuch as it patently bears no relation to the purported
inconvenience, discomfort, health risk and environmental danger which the ordinance, seeks to
address. The burden now will become more onerous to various entities including the
respondents and even others with no connection whatsoever to the intended purpose of the
ordinance.
In this respect, the CA correctly observed:ChanRoblesVirtualawlibrary
Ordinance No. 0309-07 defines "aerial spraying" as the "application of substances through the
use of aircraft of any form which dispenses the substances in the air." Inevitably, the ban
imposed therein encompasses aerial application of practically all substances, not only pesticides
or fungicides but including water and all forms of chemicals, regardless of its elements,
composition, or degree of safety.
Going along with respondent-appellee's ratiocination that the prohibition in the Ordinance refers
to aerial spraying as a method of spraying pesticides or fungicides, there appears to be a need
to single out pesticides or fungicides in imposing such a ban because there is a striking
distinction between such chemicals and other substances (including water), particularly with
respect to its safety implications to the public welfare and ecology.
xxxx
We are, therefore, convinced that the total ban on aerial spraying runs afoul with the equal
protection clause because it does not classify which substances are prohibited from being
applied aerially even as reasonable distinctions should be made in terms of the hazards, safety
or beneficial effects of liquid substances to the public health, livelihood and the
environment.147chanroblesvirtuallawlibrary
We clarify that the CA did not thereby apply the strict scrutiny approach but only evaluated the
classification established by the ordinance in relation to the purpose. This is the essence of the
rational basis approach.
The petitioners should be made aware that the rational basis scrutiny is not based on a simple
means-purpose correlation; nor does the rational basis scrutiny automatically result in a
presumption of validity of the ordinance or deference to the wisdom of the local legislature. 148 To
reiterate, aside from ascertaining that the means and purpose of the ordinance are reasonably
related, the classification should be based on a substantial distinction.
However, we do not subscribe to the respondents' position that there must be a distinction based
on the level of concentration or the classification imposed by the FPA on pesticides. This
strenuous requirement cannot be expected from a local government unit that should only be
concerned with general policies in local administration and should not be restricted by technical
concerns that are best left to agencies vested with the appropriate special competencies. The
disregard of the pesticide classification is not an equal protection issue but is more relevant in
another aspect of delegated police power that we consider to be more appropriate in a later
discussion.
The overinclusiveness of Ordinance No. 0309-07 may also be traced to its Section 6 by virtue of
its requirement for the maintenance of the 30- meter buffer zone. This requirement applies
regardless of the area of the agricultural landholding, geographical location, topography, crops
grown and other distinguishing characteristics that ideally should bear a reasonable relation to
the evil sought to be avoided. As earlier discussed, only large banana plantations could rely on
aerial technology because of the financial capital required therefor.
The establishment and maintenance of the buffer zone will become more burdensome to the
small agricultural landholders because: (1) they have to reserve the 30-meter belt surrounding
their property; (2) that will have to be identified through GPS; (3) the metes and bounds of the
buffer zone will have to be plotted in a survey plan for submission to the local government unit;
and (4) will be limited as to the crops that may be cultivated therein based on the mandate that
the zone shall be devoted to "diversified trees" taller than what are being grown therein.149 The
arbitrariness of Section 6 all the more becomes evident when the land is presently devoted to
the cultivation of root crops and vegetables, and trees or plants slightly taller than the root crops
and vegetables are then to be planted. It is seriously to be doubted whether such circumstance
will prevent the occurrence of the drift to the nearby residential areas.
Section 6 also subjects to the 30-meter buffer zone requirement agricultural entities engaging in
organic farming, and' do not contribute to the occurrence of pesticide drift. The classification
indisputably becomes arbitrary and whimsical.
A substantially overinclusive or underinclusive classification tends to undercut the governmental
claim that the classification serves legitimate political ends.150 Where overinclusiveness is the
problem, the vice is that the law has a greater discriminatory or burdensome effect than
necessary.151 In this light, we strike down Section 5 and Section 6 of Ordinance No. 0309-07 for
carrying an invidious classification, and for thereby violating the Equal Protection Clause.
The discriminatory nature of the ordinance can be seen from its policy as stated in its Section 2,
to wit:ChanRoblesVirtualawlibrary
Section 2. POLICY OF THE CITY. It shall be the policy of the City of Davao to eliminate the
method of aerial spraying as an agricultural practice in all agricultural activities by all entities
within Davao City.
Evidently, the ordinance discriminates against large farmholdings that are the only ideal venues
for the investment of machineries and equipment capable of aerial spraying. It effectively denies
the affected individuals the technology aimed at efficient and cost-effective operations and
cultivation not only of banana but of other crops as well. The prohibition against aerial spraying
will seriously hamper the operations of the banana plantations that depend on aerial technology
to arrest the spread of the Black Sigatoka disease and other menaces that threaten their
production and harvest. As earlier shown, the effect of the ban will not be limited to Davao City in
view of the significant contribution of banana export trading to the country's economy.
The discriminatory character of the ordinance makes it oppressive and unreasonable in light of
the existence and availability of more permissible and practical alternatives that will not
overburden the respondents and those dependent on their operations as well as those who
stand to be affected by the ordinance. In the view of Regional Director Roger C. Chio of DA
Regional Field Unit XI, the alleged harm caused by aerial spraying may be addressed by
following the GAP that the DA has been promoting among plantation operators. He explained his
view thusly:ChanRoblesVirtualawlibrary
The allegation that aerial spraying is hazardous to animal and human being remains an
allegation and assumptions until otherwise scientifically proven by concerned authorities and
agencies. This issue can be addressed by following Good Agricultural Practices, which DA is
promoting among fruit and vegetable growers/plantations. Any method of agri-chemical
application whether aerial or non-aerial if not properly done in accordance with established
procedures and code of good agricultural practices and if the chemical applicators and or
handlers lack of necessary competency, certainly it could be hazardous. For the assurance that
commercial applicators/aerial applicators possessed the competency and responsibility of
handling agri-chemical, such applicators are required under Article III, Paragraph 2 of FPA Rules
and Regulation No. 1 to secure license from FPA.
Furthermore users and applicators of agri-chemicals are also guided by Section 6 Paragraph 2
and 3 under column of Pesticides and Other agricultural Chemicals of PD 11445 which stated:
"FPA shall establish and enforce tolerance levels and good agricultural practices in raw
agricultural commodities; to restrict or ban the use of any chemical or the formulation of certain
pesticides in specific areas or during certain period upon evidence that the pesticide is eminent
[sic] hazards has caused, or is causing widespread serious damage to crops, fish, livestock or to
public health and environment."
Besides the aforecited policy, rules and regulation enforced by DA, there are other laws and
regulations protecting and preserving the environment. If the implementation and monitoring of
all these laws and regulation are closely coordinated with concerned LGUs, Gas and NGAs and
other private sectors, perhaps we can maintain a sound and health environment x x
x.152chanroblesvirtuallawlibrary
Indeed, based on the Summary Report on the Assessment and Factfinding Activities on the
Issue of Aerial Spraying in Banana Plantations,153 submitted by the fact-finding team organized
by Davao City, only three out of the 13 barangays consulted by the fact-finding team opposed
the conduct of aerial spraying; and of the three barangays, aerial spraying was conducted only in
Barangay Subasta. In fact, the fact-finding team found that the residents in those barangays
were generally in favor of the operations of the banana plantations, and did not oppose the
conduct of aerial spraying.
IV
The Precautionary Principle still requires scientific basis
The petitioners finally plead that the Court should look at the merits of the ordinance based on
the precautionary principle. They argue that under the precautionary principle, the City of Davao
is justified in enacting Ordinance No. 0309-07 in order to prevent harm to the environment and
human health despite the lack of scientific certainty.
The petitioners' plea and argument cannot be sustained.
The principle of precaution originated as a social planning principle in Germany. In the 1980s,
the Federal Republic of Germany used the Vorsogeprinzip ("foresight principle") to justify the
implementation of vigorous policies to tackle acid rain, global warming and pollution of the North
Sea.154 It has since emerged from a need to protect humans and the environment from
increasingly unpredictable, uncertain, and unquantifiable but possibly catastrophic risks such as
those associated with Genetically Modified Organisms and climate change, 155 among others.
The oft-cited Principle 15 of the 1992 Rio Declaration on Environment and Development (1992
Rio Agenda), first embodied this principle, as follows:ChanRoblesVirtualawlibrary
Principle 15
In order to protect the environment, the precautionary approach shall be widely applied by States
according to their capabilities. Where there are threats of serious or irreversible damage, lack of
full scientific certainty shall not be used as a reason for postponing cost-effective measures to
prevent environmental degradation.
In this jurisdiction, the principle of precaution appearing in the Rules of Procedure for
Environmental Cases (A.M. No. 09-6-8-SC) involves matters of evidence in cases where there is
lack of full scientific certainty in establishing a causal link between human activity and
environmental effect.156 In such an event, the courts may construe a set of facts as warranting
either judicial action or inaction with the goal of preserving and protecting the
environment.157chanrobleslaw
It is notable, therefore, that the precautionary principle shall only be relevant if there is
concurrence of three elements, namely: uncertainty, threat of environmental damage and
serious or irreversible harm. In situations where the threat is relatively certain, or that the causal
link between an action and environmental damage can be established, or the probability of
occurrence can be calculated, only preventive, not precautionary measures, may be taken.
Neither will the precautionary principle apply if there is no indication of a threat of environmental
harm; or if the threatened harm is trivial or easily reversible. 158chanrobleslaw
We cannot see the presence of all the elements. To begin with, there has been no scientific
study. Although the precautionary principle allows lack of full scientific certainty in establishing a
connection between the serious or irreversible harm and the human activity, its application is still
premised on empirical studies. Scientific analysis is still a necessary basis for effective policy
choices under the precautionary principle. 159chanrobleslaw
Precaution is a risk management principle invoked after scientific inquiry takes place. This
scientific stage is often considered synonympus with risk assessment. 160 As such, resort to the
principle shall not be based on anxiety or emotion, but from a rational decision rule, based in
ethics.161 As much as possible, a complete and objective scientific evaluation of the risk to the
environment or health should be conducted and made available to decision-makers for them to
choose the most appropriate course of action.162 Furthermore, the positive and negative effects
of an activity is also important in the application of the principle. The potential harm resulting
from certain activities should always be judged in view of the potential benefits they offer, while
the positive and negative effects of potential precautionary measures should be
considered.163chanrobleslaw
The only study conducted to validate the effects of aerial spraying appears to be the Summary
Report on the Assessment and Fact-Finding Activities on the Issue of Aerial Spraying in Banana
Plantations.164 Yet, the fact-finding team that generated the report was not a scientific study that
could justify the resort to the .precautionary principle. In fact, the Sangguniang Bayan ignored
the findings and conclusions of the fact-finding team that recommended only a regulation, not a
ban, against aerial spraying. The recommendation was in line with the advocacy of judicious
handling and application of chemical pesticides by the DOH-Center for Health Development in
the Davao Region in view of the scarcity of scientific studies to support the ban against aerial
spraying.165chanrobleslaw
We should not apply the precautionary approach in sustaining the ban against aerial spraying if
little or nothing is known of the exact or potential dangers that aerial spraying may bring to the
health of the residents within and near the plantations and to the integrity and balance of the
environment. It is dangerous to quickly presume that the effects of aerial spraying would be
adverse even in the absence of evidence. Accordingly, for lack of scientific data supporting a
ban on aerial spraying, Ordinance No. 0309-07 should be struck down for being unreasonable.
V importantly, because the police power of the local government units flows from the express
Ordinance No. 0309-07 is an ultra vires act
The Court further holds that in addition to its unconstitutionality for carrying an unwarranted
classification that contravenes the Equal Protection Clause, Ordinance No. 0309-07 suffers from
another legal infirmity.
The petitioners represent that Ordinance No. 0309-07 is a valid exercise of legislative and police
powers by the Sangguniang Bayan of Davao City pursuant to Section 458 in relation to Section
16 both of the Local Government Code. The respondents counter that Davao City thereby
disregarded the regulations implemented by the Fertilizer and Pesticide Authority (FPA),
including its identification and classification of safe pesticides and other agricultural chemicals.
We uphold the respondents.
An ordinance enjoys the presumption of validity on the basis that:ChanRoblesVirtualawlibrary
The action of the elected representatives of the people cannot be lightly set aside. The
councilors must, in the very nature of things, be familiar with the necessities of their particular
municipality and with all the facts and circumstances which surround the subject, and necessities
of their particular municipality and with all the facts and circumstances which surround the
subject, and necessitate action. The local legislative body, by enacting the ordinance, has in
effect given notice that the regulations are essential to the well-being of the
people.166chanroblesvirtuallawlibrary
Section 5(c) of the Local Government Code accords a liberal interpretation to its general welfare
provisions. The policy of liberal construction is consistent with the spirit of local autonomy that
endows local government units with sufficient power and discretion to accelerate their economic
development and uplift the quality of life for their constituents.
Verily, the Court has championed the cause of public welfare on several occasions. In so doing,
it has accorded liberality to the general welfare provisions of the Local Government Code by
upholding the validity of local ordinances enacted for the common good. For instance, in Social
Justice Society (SJS) v. Atienza, Jr.,167 the Court validated a zoning ordinance that reclassified
areas covered by a large oil depot from industrial to commercial in order to ensure the life, health
and property of the inhabitants residing within the periphery of the oil depot. Another instance
is Gancayco v. City Government of Quezon City,168 where the Court declared as valid a city
ordinance ordering the construction of arcades that would ensure the health and safety of the
city and its inhabitants, improvement of their morals, peace, good order, comfort and
convenience, as well as the promotion of their prosperity. Even in its early years, the Court
already extended liberality towards the exercise by the local government units; of their legislative
powers in order to promote the general welfare of their communities. This was exemplified
in United States v. Salaveria,169 wherein gambling was characterized as "an act beyond the pale
of good morals" that the local legislative council could validly suppress to protect the well-being
of its constituents; and in United States v. Abendan,170 whereby the right of the then Municipality
of Cebu to enact an ordinance relating to sanitation and public health was upheld.
The power to legislate under the General Welfare Clause is not meant to be an invincible
authority. In fact, Salaveria and Abendan emphasized the reasonableness and consistency of
the exercise by the local government units with the laws or policies of the State. 171 More
delegation of the power by Congress, its exercise is to be construed in strictissimi juris. Any
doubt or ambiguity arising out of the terms used in granting the power should be construed
against the local legislative units.172 Judicial scrutiny comes into play whenever the exercise of
police power affects life, liberty or property. 173 The presumption of validity and the policy of
liberality are not restraints on the power of judicial review in the face of questions about whether
an ordinance conforms with the Constitution, the laws or public policy, or if it is unreasonable,
oppressive, partial, discriminating or in derogation of a common right. The ordinance must pass
the test of constitutionality and the test of consistency with the prevailing laws. 174chanrobleslaw
Although the Local Government Code vests the municipal corporations with sufficient power to
govern themselves and manage their affairs and activities, they definitely have no right to enact
ordinances dissonant with the State's laws and policy. The Local Government Code has been
fashioned to delineate the specific parameters and limitations to guide each local government
unit in exercising its delegated powers with the view of making the local government unit a fully
functioning subdivision of the State within the constitutional and statutory restraints.175 The Local
Government Code is not intended to vest in the local government unit the blanket authority to
legislate upon any subject that it finds proper to legislate upon in the guise of serving the
common good.
The function of pesticides control, regulation and development is within the jurisdiction of the
FPA under Presidential Decree No. 1144.176 The FPA was established in recognition of the need
for a technically oriented government entity177 that will protect the public from the risks inherent
in the use of pesticides.178 To perform its mandate, it was given under Section 6 of Presidential
Decree No. 1144 the following powers and functions with respect to pesticides and other
agricultural chemicals, viz.:ChanRoblesVirtualawlibrary
Section 6. Powers and functions. The FPA shall have jurisdiction, on over all existing handlers of
pesticides, fertilizers and other agricultural chemical inputs. The FPA shall have the following
powers and functions:
chanRoblesvirtualLawlibraryx x x x
III. Pesticides and Other Agricultural Chemicals
1. To determine specific uses or manners of use for each pesticide or pesticide formulation;
2. To establish and enforce levels and good agricultural practices for use of pesticides in raw
agricultural commodities;
3. To restrict or ban the use of any pesticide or the formulation of certain pesticides in specific
areas or during certain periods upon evidence that the pesticide is an imminent hazard, has
caused, or is causing widespread serious damage to crops, fish or livestock, or to public health
and environment;
xxxx
5. To inspect the establishment and premises of pesticide handlers to insure that industrial
health and safety rules and anti-pollution regulations are followed;
6. To enter and inspect farmers' fields to ensure that only the recommended pesticides are used
in specific crops in accordance with good agricultural practice;
x x x x (Emphasis supplied).
Evidently, the FPA was responsible for ensuring the compatibility between the usage and the
application of pesticides in agricultural activities and the demands for human health and
environmental safety. This responsibility includes not only the identification of safe and unsafe
pesticides, but also the prescription of the safe modes of application in keeping with the standard
of good agricultural practices.
On the other hand, the enumerated devolved functions to the local government units do not
include the regulation and control of pesticides and other agricultural chemicals.179 The non-
inclusion should preclude the Sangguniang Bayan of Davao City from enacting Ordinance No.
0309-07, for otherwise it would be arrogating unto itself the authority to prohibit the aerial
application of pesticides in derogation of the authority expressly vested in the FPA by
Presidential Decree No. 1144.
In enacting Ordinance No. 0309-07 without the inherent and explicit authority to do so, the City
of Davao performed an ultra vires act. As a local government unit, the City of Davao could act
only as an agent of Congress, and its every act should always conform to and reflect the will of
its principal.180As clarified in Batangas CATV, Inc. v. Court of Appeals:181
[W]here the state legislature has made provision for the regulation of conduct, it has manifested
its intention that the subject matter shall be fully covered by the statute, and that a municipality,
under its general powers, cannot regulate the same conduct. In Keller vs. State, it was held that:
"Where there is no express power in the charter of a municipality authorizing it to adopt
ordinances regulating certain matters which are specifically covered by a general statute, a
municipal ordinance, insofar as it attempts to regulate the subject which is completely covered
by a general statute of the legislature, may be rendered invalid. x x x Where the subject is of
statewide concern, and the legislature has appropriated the field and declared the rule, its
declaration is binding throughout the State." A reason advanced for this view is that such
ordinances are in excess of the powers granted to the municipal corporation.
Since E.O. No. 205, a general law, mandates that the regulation of CATV operations shall be
exercised by the NTC, an LGU cannot enact an ordinance or approve a resolution in violation of
the said law.
It is a fundamental principle that municipal ordinances are inferior in status and subordinate to
the laws of the state. An ordinance in conflict with a state law of general character and statewide
application is universally held to be invalid. The principle is frequently expressed in the
declaration that municipal authorities, under a general grant of power, cannot adopt ordinances
which infringe the spirit of a state law or repugnant to the general policy of the state. In every
power to pass ordinances given to a municipality, there is an implied restriction that the
ordinances shall be consistent with the general law. 182 (Emphasis ours)
For sure, every local government unit only derives its legislative authority from Congress. In no
instance can the local government unit rise above its source of authority. As such, its ordinance
cannot run against or contravene existing laws, precisely because its authority is only by virtue of
the valid delegation from Congress. As emphasized in City of Manila v. Laguio, Jr.:183
The requirement that the enactment must not violate existing law gives stress to the precept that
local government units are able to legislate only by virtue of their derivative legislative power, a
delegation of legislative power from the national legislature. The delegate cannot be superior to
the principal or exercise powers higher than those of the latter.
This relationship between the national legislature and the local government units has not been
enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy.
The national legislature is still the principal of the local government units, which cannot defy its
will or modify or violate it.184chanroblesvirtuallawlibrary
Moreover, Ordinance No. 0309-07 proposes to prohibit an activity already covered by the
jurisdiction of the FPA, which has issued its own regulations under its Memorandum Circular No.
02, Series of 2009, entitled Good Agricultural Practices for Aerial Spraying of Fungicide in
Banana Plantations.185While Ordinance No. 0309-07 prohibits aerial spraying in banana
plantations within the City of Davao, Memorandum Circular No. 02 seeks to regulate the conduct
of aerial spraying in banana plantations186pursuant to Section 6, Presidential Decree No. 1144,
and in conformity with the standard of Good Agricultural Practices (GAP). Memorandum Circular
No. 02 covers safety procedures,187 handling188and post-application,189 including the
qualifications of applicators,190 storing of fungicides,191 safety and equipment of plantation
personnel,192 all of which are incompatible with the prohibition against aerial spraying under
Ordinance No. 0309-07.
Although Memorandum Circular No. 02 and Ordinance No. 0309-07 both require the
maintenance of the buffer zone, they differ as to their treatment and maintenance of the buffer
zone. Under Memorandum Circular No. 02, a 50-meter "no-spray boundary" buffer zone should
be observed by the spray pilots,193 and the observance of the zone should be recorded in the
Aerial Spray Final Report (ASFR) as a post-application safety measure.194 On the other hand,
Ordinance No. 0309-07 requires the maintenance of the 30-meter buffer zone to be planted with
diversified trees.195chanrobleslaw
Devoid of the specific delegation to its local legislative body, the City of Davao exceeded its
delegated authority to enact Ordinance No. 0309-07. Hence, Ordinance No. 0309-07 must be
struck down also for being an ultra vires act on the part of the Sangguniang Bayan of Davao
City.
We must emphasize that our ruling herein does not seek to deprive the LGUs their right to
regulate activities within their jurisdiction. They are empowered under Section 16 of the Local
Government Code to promote the general welfare of the people through regulatory, not
prohibitive, ordinances that conform with the policy directions of the National Government.
Ordinance No. 0309-07 failed to pass this test as it contravenes the specific regulatory policy on
aerial spraying in banana plantations on a nationwide scale of the National Government, through
the FPA.
Finally, the unconstitutionality of the ban renders nugatory Ordinance No. 0309-07 in its entirety.
Consequently, any discussion on the lack of the separability clause becomes entirely irrelevant.
WHEREFORE, the Court DENIES the consolidated petitions for review on certiorari for their lack
of merit; AFFIRMS the decision promulgated on January 9, 2009 in C.A.-G.R. CV No. 01389-
MIN. declaring Ordinance No. 0309-07 UNCONSTITUTIONAL; PERMANENTLY
ENJOINS respondent City of Davao, and all persons or entities acting in its behalf or under its
authority, from enforcing and implementing Ordinance No. 0309-07; and ORDERS the
petitioners to pay the costs of suit.
SO ORDERED.
G.R. No. 196870 June 26, 2012
BORACAY FOUNDATION, INC., Petitioner,
vs.
THE PROVINCE OF AKLAN, REPRESENTED BY GOVERNOR CARLITO S. MARQUEZ, THE
PHILIPPINE RECLAMATION AUTHORITY, AND THE DENR-EMB (REGION VI), Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
In resolving this controversy, the Court took into consideration that all the parties involved share
common goals in pursuit of certain primordial State policies and principles that are enshrined in
the Constitution and pertinent laws, such as the protection of the environment, the empowerment
of the local government units, the promotion of tourism, and the encouragement of the
participation of the private sector. The Court seeks to reconcile the respective roles, duties and
responsibilities of the petitioner and respondents in achieving these shared goals within the
context of our Constitution, laws and regulations.
Nature of the Case
This is an original petition for the issuance of an Environmental Protection Order in the nature of
a continuing mandamus under A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure
for Environmental Cases, promulgated on April 29, 2010.
The Parties
Petitioner Boracay Foundation, Inc. (petitioner) is a duly registered, non-stock domestic
corporation. Its primary purpose is "to foster a united, concerted and environment-conscious
development of Boracay Island, thereby preserving and maintaining its culture, natural beauty
and ecological balance, marking the island as the crown jewel of Philippine tourism, a prime
tourist destination in Asia and the whole world." 1 It counts among its members at least sixty (60)
owners and representatives of resorts, hotels, restaurants, and similar institutions; at least five
community organizations; and several environmentally-conscious residents and advocates.2
Respondent Province of Aklan (respondent Province) is a political subdivision of the government
created pursuant to Republic Act No. 1414, represented by Honorable Carlito S. Marquez, the
Provincial Governor (Governor Marquez).
Respondent Philippine Reclamation Authority (respondent PRA), formerly called the Public
Estates Authority (PEA), is a government entity created by Presidential Decree No. 1084, 3 which
states that one of the purposes for which respondent PRA was created was to reclaim land,
including foreshore and submerged areas. PEA eventually became the lead agency primarily
responsible for all reclamation projects in the country under Executive Order No. 525, series of
1979. In June 2006, the President of the Philippines issued Executive Order No. 543, delegating
the power "to approve reclamation projects to PRA through its governing Board, subject to
compliance with existing laws and rules and further subject to the condition that reclamation
contracts to be executed with any person or entity (must) go through public bidding." 4
Respondent Department of Environment and Natural Resources – Environmental Management
Bureau (DENR-EMB), Regional Office VI (respondent DENR-EMB RVI), is the government
agency in the Western Visayas Region authorized to issue environmental compliance certificates
regarding projects that require the environment’s protection and management in the region.5
Summary of Antecedent Facts
Boracay Island (Boracay), a tropical paradise located in the Western Visayas region of the
Philippines and one of the country’s most popular tourist destinations, was declared a tourist
zone and marine reserve in 1973 under Presidential Proclamation No. 1801. 6 The island
comprises the barangays of Manoc-manoc, Balabag, and Yapak, all within the municipality of
Malay, in the province of Aklan.7
Petitioner describes Boracay as follows:
Boracay is well-known for its distinctive powdery white-sand beaches which are the product of
the unique ecosystem dynamics of the area. The island itself is known to come from the uplifted
remnants of an ancient reef platform. Its beaches, the sandy land strip between the water and
the area currently occupied by numerous establishments, is the primary draw for domestic and
international tourists for its color, texture and other unique characteristics. Needless to state, it is
the premier domestic and international tourist destination in the Philippines. 8
More than a decade ago, respondent Province built the Caticlan Jetty Port and Passenger
Terminal at Barangay Caticlan to be the main gateway to Boracay. It also built the corresponding
Cagban Jetty Port and Passenger Terminal to be the receiving end for tourists in Boracay.
Respondent Province operates both ports "to provide structural facilities suited for locals, tourists
and guests and to provide safety and security measures." 9
In 2005, Boracay 2010 Summit was held and participated in by representatives from national
government agencies, local government units (LGUs), and the private sector. Petitioner was one
of the organizers and participants thereto. The Summit aimed "to re-establish a common vision
of all stakeholders to ensure the conservation, restoration, and preservation of Boracay Island"
and "to develop an action plan that [would allow] all sectors to work in concert among and with
each other for the long term benefit and sustainability of the island and the community." 10 The
Summit yielded a Terminal Report11 stating that the participants had shared their dream of
having world-class land, water and air infrastructure, as well as given their observations that
government support was lacking, infrastructure was poor, and, more importantly, the influx of
tourists to Boracay was increasing. The Report showed that there was a need to expand the port
facilities at Caticlan due to congestion in the holding area of the existing port, caused by
inadequate facilities, thus tourists suffered long queues while waiting for the boat ride going to
the island.12
Respondent Province claimed that tourist arrivals to Boracay reached approximately 649,559 in
2009 and 779,666 in 2010, and this was expected to reach a record of 1 million tourist arrivals in
the years to come. Thus, respondent Province conceptualized the expansion of the port facilities
at Barangay Caticlan.13
The Sangguniang Barangay of Caticlan, Malay Municipality, issued Resolution No. 13, s.
200814 on April 25, 2008 stating that it had learned that respondent Province had filed an
application with the DENR for a foreshore lease of areas along the shorelines of Barangay
Caticlan, and manifesting its strong opposition to said application, as the proposed foreshore
lease practically covered almost all the coastlines of said barangay, thereby technically
diminishing its territorial jurisdiction, once granted, and depriving its constituents of their statutory
right of preference in the development and utilization of the natural resources within its
jurisdiction. The resolution further stated that respondent Province did not conduct any
consultations with the Sangguniang Barangay of Caticlan regarding the proposed foreshore
lease, which failure the Sanggunian considered as an act of bad faith on the part of respondent
Province.15
On November 20, 2008, the Sangguniang Panlalawigan of respondent Province approved
Resolution No. 2008-369,16 formally authorizing Governor Marquez to enter into negotiations
towards the possibility of effecting self-liquidating and income-producing development and
livelihood projects to be financed through bonds, debentures, securities, collaterals, notes or
other obligations as provided under Section 299 of the Local Government Code, with the
following priority projects: (a) renovation/rehabilitation of the Caticlan/Cagban Passenger
Terminal Buildings and Jetty Ports; and (b) reclamation of a portion of Caticlan foreshore for
commercial purposes.17 This step was taken as respondent Province’s existing jetty port and
passenger terminal was funded through bond flotation, which was successfully redeemed and
paid ahead of the target date. This was allegedly cited as one of the LGU’s Best Practices
wherein respondent Province was given the appropriate commendation. 18
Respondent Province included the proposed expansion of the port facilities at Barangay Caticlan
in its 2009 Annual Investment Plan,19 envisioned as its project site the area adjacent to the
existing jetty port, and identified additional areas along the coastline of Barangay Caticlan as the
site for future project expansion.20
Governor Marquez sent a letter to respondent PRA on March 12, 2009 21 expressing the interest
of respondent Province to reclaim about 2.64 hectares of land along the foreshores of Barangay
Caticlan, Municipality of Malay, Province of Aklan.
Sometime in April 2009, respondent Province entered into an agreement with the Financial
Advisor/Consultant that won in the bidding process held a month before, to conduct the
necessary feasibility study of the proposed project for the Renovation/Rehabilitation of the
Caticlan Passenger Terminal Building and Jetty Port, Enhancement and Recovery of Old
Caticlan Coastline, and Reclamation of a Portion of Foreshore for Commercial Purposes (the
Marina Project), in Malay, Aklan.22
Subsequently, on May 7, 2009, the Sangguniang Panlalawigan of respondent Province issued
Resolution No. 2009–110,23 which authorized Governor Marquez to file an application to reclaim
the 2.64 hectares of foreshore area in Caticlan, Malay, Aklan with respondent PRA.
Sometime in July 2009, the Financial Advisor/Consultant came up with a feasibility study which
focused on the land reclamation of 2.64 hectares by way of beach enhancement and recovery of
the old Caticlan coastline for the rehabilitation and expansion of the existing jetty port, and for its
future plans – the construction of commercial building and wellness center. The financial
component of the said study was Two Hundred Sixty Million Pesos (₱260,000,000.00). Its
suggested financing scheme was bond flotation. 24
Meanwhile, the Sangguniang Bayan of the Municipality of Malay expressed its strong opposition
to the intended foreshore lease application, through Resolution No. 044, 25 approved on July 22,
2009, manifesting therein that respondent Province’s foreshore lease application was for
business enterprise purposes for its benefit, at the expense of the local government of Malay,
which by statutory provisions was the rightful entity "to develop, utilize and reap benefits from the
natural resources found within its jurisdiction."26
In August 2009, a Preliminary Geohazard Assessment 27 for the enhancement/expansion of the
existing Caticlan Jetty Port and Passenger Terminal through beach zone restoration and
Protective Marina Developments in Caticlan, Malay, Aklan was completed.
Thereafter, Governor Marquez submitted an Environmental Performance Report and Monitoring
Program (EPRMP)28 to DENR-EMB RVI, which he had attached to his letter 29 dated September
19, 2009, as an initial step for securing an Environmental Compliance Certificate (ECC). The
letter reads in part:
With the project expected to start its construction implementation next month, the province
hereby assures your good office that it will give preferential attention to and shall comply with
whatever comments that you may have on this EPRMP.30 (Emphasis added.)
Respondent Province was then authorized to issue "Caticlan Super Marina Bonds" for the
purpose of funding the renovation of the Caticlan Jetty Port and Passenger Terminal Building,
and the reclamation of a portion of the foreshore lease area for commercial purposes in Malay,
Aklan through Provincial Ordinance No. 2009-013, approved on September 10, 2009. The said
ordinance authorized Governor Marquez to negotiate, sign and execute agreements in relation
to the issuance of the Caticlan Super Marina Bonds in the amount not exceeding
₱260,000,000.00.31
Subsequently, the Sangguniang Panlalawigan of the Province of Aklan issued Provincial
Ordinance No. 2009-01532 on October 1, 2009, amending Provincial Ordinance No. 2009-013,
authorizing the bond flotation of the Province of Aklan through Governor Marquez to fund the
Marina Project and appropriate the entire proceeds of said bonds for the project, and further
authorizing Governor Marquez to negotiate, sign and execute contracts or agreements pertinent
to the transaction.33
Within the same month of October 2009, respondent Province deliberated on the possible
expansion from its original proposed reclamation area of 2.64 hectares to forty (40) hectares in
order to maximize the utilization of its resources and as a response to the findings of the
Preliminary Geohazard Assessment study which showed that the recession and retreat of the
shoreline caused by coastal erosion and scouring should be the first major concern in the project
site and nearby coastal area. The study likewise indicated the vulnerability of the coastal zone
within the proposed project site and the nearby coastal area due to the effects of sea level rise
and climate change which will greatly affect the social, economic, and environmental situation of
Caticlan and nearby Malay coastal communities.34
In his letter dated October 22, 2009 addressed to respondent PRA, Governor Marquez wrote:
With our substantial compliance with the requirements under Administrative Order No. 2007-2
relative to our request to PRA for approval of the reclamation of the [proposed Beach Zone
Restoration and Protection Marine Development in Barangays Caticlan and Manoc-Manoc] and
as a result of our discussion during the [meeting with the respondent PRA on October 12, 2009],
may we respectfully submit a revised Reclamation Project Description embodying certain
revisions/changes in the size and location of the areas to be reclaimed. x x x.
On another note, we are pleased to inform your Office that the bond flotation we have secured
with the Local Government Unit Guarantee Corporation (LGUGC) has been finally approved last
October 14, 2009. This will pave the way for the implementation of said project. Briefly, the
Province has been recognized by the Bureau of Local Government Finance (BLGF) for its
capability to meet its loan obligations. x x x.
With the continued increase of tourists coming to Boracay through Caticlan, the Province is
venturing into such development project with the end in view of protection and/or restoring
certain segments of the shoreline in Barangays Caticlan (Caticlan side) and Manoc-manoc
(Boracay side) which, as reported by experts, has been experiencing tremendous coastal
erosion.
For the project to be self-liquidating, however, we will be developing the reclaimed land for
commercial and tourism-related facilities and for other complementary uses. 35 (Emphasis ours.)
Then, on November 19, 2009, the Sangguniang Panlalawigan enacted Resolution No. 2009-
29936 authorizing Governor Marquez to enter into a Memorandum of Agreement (MOA) with
respondent PRA in the implementation of the Beach Zone Restoration and Protection Marina
Development Project, which shall reclaim a total of 40 hectares in the areas adjacent to the jetty
ports at Barangay Caticlan and Barangay Manoc-manoc. The Sangguniang Panlalawigan
approved the terms and conditions of the necessary agreements for the implementation of the
bond flotation of respondent Province to fund the renovation/rehabilitation of the existing jetty
port by way of enhancement and recovery of the Old Caticlan shoreline through reclamation of
an area of 2.64 hectares in the amount of ₱260,000,000.00 on December 1, 2009. 37
Respondent Province gave an initial presentation of the project with consultation to the
Sangguniang Bayan of Malay38 on December 9, 2009.
Respondent PRA approved the reclamation project on April 20, 2010 in its Resolution No. 4094
and authorized its General Manager/Chief Executive Officer (CEO) to enter into a MOA with
respondent Province for the implementation of the reclamation project. 39
On April 27, 2010, DENR-EMB RVI issued to respondent Province ECC-R6-1003-096-7100 (the
questioned ECC) for Phase 1 of the Reclamation Project to the extent of 2.64 hectares to be
done along the Caticlan side beside the existing jetty port. 40
On May 17, 2010, respondent Province entered into a MOA 41 with respondent PRA. Under
Article III, the Project was described therein as follows:
The proposed Aklan Beach Zone Restoration and Protection Marina Development Project
involves the reclamation and development of approximately forty (40) hectares of foreshore and
offshore areas of the Municipality of Malay x x x.
The land use development of the reclamation project shall be for commercial, recreational and
institutional and other applicable uses.42 (Emphases supplied.)
It was at this point that respondent Province deemed it necessary to conduct a series of what it
calls "information-education campaigns," which provided the venue for interaction and dialogue
with the public, particularly the Barangay and Municipal officials of the Municipality of Malay, the
residents of Barangay Caticlan and Boracay, the stakeholders, and the non-governmental
organizations (NGOs). The details of the campaign are summarized as follows 43 :
44
a. June 17, 2010 at Casa Pilar Beach Resort, Boracay Island, Malay, Aklan;
b. July 28, 2010 at Caticlan Jetty Port and Passenger Terminal; 45
c. July 31, 2010 at Barangay Caticlan Plaza;46
d. September 15, 2010 at the Office of the Provincial Governor with Municipal Mayor of
Malay – Mayor John P. Yap;47
e. October 12, 2010 at the Office of the Provincial Governor with the Provincial
Development Council Executive Committee;48 and
f. October 29, 2010 at the Office of the Provincial Governor with Officials of LGU-Malay
and Petitioner.49
Petitioner claims that during the "public consultation meeting" belatedly called by respondent
Province on June 17, 2010, respondent Province presented the Reclamation Project and only
then detailed the actions that it had already undertaken, particularly: the issuance of the Caticlan
Super Marina Bonds; the execution of the MOA with respondent PRA; the alleged conduct of an
Environmental Impact Assessment (EIA) study for the reclamation project; and the expansion of
the project to forty (40) hectares from 2.64 hectares.50
In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the Malay Municipality
reiterated its strong opposition to respondent Province’s project and denied its request for a
favorable endorsement of the Marina Project. 51
The Malay Municipality subsequently issued Resolution No. 016, Series of 2010, adopted on
August 3, 2010, to request respondent PRA "not to grant reclamation permit and notice to
proceed to the Marina Project of the [respondent] Provincial Government of Aklan located at
Caticlan, Malay, Aklan."52
In a letter53 dated October 12, 2010, petitioner informed respondent PRA of its opposition to the
reclamation project, primarily for the reason that, based on the opinion of Dr. Porfirio M. Aliño, an
expert from the University of the Philippines Marine Science Institute (UPMSI), which he
rendered based on the documents submitted by respondent Province to obtain the ECC, a full
EIA study is required to assess the reclamation project’s likelihood of rendering critical and
lasting effect on Boracay considering the proximity in distance, geographical location, current
and wind direction, and many other environmental considerations in the area. Petitioner noted
that said documents had failed to deal with coastal erosion concerns in Boracay. It also noted
that respondent Province failed to comply with certain mandatory provisions of the Local
Government Code, particularly, those requiring the project proponent to conduct consultations
with stakeholders.
Petitioner likewise transmitted its Resolution No. 001, Series of 2010, registering its opposition to
the reclamation project to respondent Province, respondent PRA, respondent DENR-EMB, the
National Economic Development Authority Region VI, the Malay Municipality, and other
concerned entities.54
Petitioner alleges that despite the Malay Municipality’s denial of respondent Province’s request
for a favorable endorsement, as well as the strong opposition manifested both by Barangay
Caticlan and petitioner as an NGO, respondent Province still continued with the implementation
of the Reclamation Project.55
On July 26, 2010, the Sangguniang Panlalawigan of respondent Province set aside Resolution
No. 046, s. 2010, of the Municipality of Malay and manifested its support for the implementation
of the aforesaid project through its Resolution No. 2010-022.56
On July 27, 2010, the MOA was confirmed by respondent PRA Board of Directors under its
Resolution No. 4130. Respondent PRA wrote to respondent Province on October 19, 2010,
informing the latter to proceed with the reclamation and development of phase 1 of site 1 of its
proposed project. Respondent PRA attached to said letter its Evaluation Report dated October
18, 2010.57
Petitioner likewise received a copy of respondent PRA’s letter dated October 19, 2010, which
authorized respondent Province to proceed with phase 1 of the reclamation project, subject to
compliance with the requirements of its Evaluation Report. The reclamation project was
described as:
"[A] seafront development involving reclamation of an aggregate area of more or less, forty (40)
hectares in two (2) separate sites both in Malay Municipality, Aklan Province. Site 1 is in Brgy.
Caticlan with a total area of 36.82 hectares and Site 2 in Brgy. Manoc-Manoc, Boracay Island
with a total area of 3.18 hectares. Sites 1 and 2 are on the opposite sides of Tabon Strait, about
1,200 meters apart. x x x." 58 (Emphases added.)
The Sangguniang Panlalawigan of Aklan, through Resolution No. 2010-034,59 addressed the
apprehensions of petitioner embodied in its Resolution No. 001, s. 2010, and supported the
implementation of the project. Said resolution stated that the apprehensions of petitioner with
regard to the economic, social and political negative impacts of the projects were mere
perceptions and generalities and were not anchored on definite scientific, social and political
studies.
In the meantime, a study was commissioned by the Philippine Chamber of Commerce and
Industry-Boracay (PCCI-Boracay), funded by the Department of Tourism (DOT) with the
assistance of, among others, petitioner. The study was conducted in November 2010 by several
marine biologists/experts from the Marine Environmental Resources Foundation (MERF) of the
UPMSI. The study was intended to determine the potential impact of a reclamation project in the
hydrodynamics of the strait and on the coastal erosion patterns in the southern coast of Boracay
Island and along the coast of Caticlan.60
After noting the objections of the respective LGUs of Caticlan and Malay, as well as the
apprehensions of petitioner, respondent Province issued a notice to the contractor on December
1, 2010 to commence with the construction of the project. 61
On April 4, 2011, the Sangguniang Panlalawigan of Aklan, through its Committee on
Cooperatives, Food, Agriculture, and Environmental Protection and the Committee on Tourism,
Trade, Industry and Commerce, conducted a joint committee hearing wherein the study
undertaken by the MERF-UPMSI was discussed.62 In attendance were Mr. Ariel Abriam,
President of PCCI-Boracay, representatives from the Provincial Government, and Dr. Cesar
Villanoy, a professor from the UPMSI. Dr. Villanoy said that the subject project, consisting of
2.64 hectares, would only have insignificant effect on the hydrodynamics of the strait traversing
the coastline of Barangay Caticlan and Boracay, hence, there was a distant possibility that it
would affect the Boracay coastline, which includes the famous white-sand beach of the island.63
Thus, on April 6, 2011, the Sangguniang Panlalawigan of Aklan enacted Resolution No. 2011-
06564 noting the report on the survey of the channel between Caticlan and Boracay conducted by
the UPMSI in relation to the effects of the ongoing reclamation to Boracay beaches, and stating
that Dr. Villanoy had admitted that nowhere in their study was it pointed out that there would be
an adverse effect on the white-sand beach of Boracay.
During the First Quarter Regular Meeting of the Regional Development Council, Region VI
(RDC-VI) on April 16, 2011, it approved and supported the subject project (covering 2.64
hectares) through RDC-VI Resolution No. VI-26, series of 2011.65
Subsequently, Mr. Abriam sent a letter to Governor Marquez dated April 25, 2011 stating that the
study conducted by the UPMSI confirms that the water flow across the Caticlan-Boracay channel
is primarily tide-driven, therefore, the marine scientists believe that the 2.64-hectare project of
respondent Province would not significantly affect the flow in the channel and would unlikely
impact the Boracay beaches. Based on this, PCCI-Boracay stated that it was not opposing the
2.64-hectare Caticlan reclamation project on environmental grounds. 66
On June 1, 2011, petitioner filed the instant Petition for Environmental Protection Order/Issuance
of the Writ of Continuing Mandamus. On June 7, 2011, this Court issued a Temporary
Environmental Protection Order (TEPO) and ordered the respondents to file their respective
comments to the petition.67
After receiving a copy of the TEPO on June 9, 2011, respondent Province immediately issued an
order to the Provincial Engineering Office and the concerned contractor to cease and desist from
conducting any construction activities until further orders from this Court.
The petition is premised on the following grounds:
I.
The respondent Province, proponent of the reclamation project, failed to comply with relevant
rules and regulations in the acquisition of an ECC.
A. The reclamation project is co-located within environmentally critical areas requiring
the performance of a full, or programmatic, environmental impact assessment.
B. Respondent Province failed to obtain the favorable endorsement of the LGU
concerned.
C. Respondent Province failed to conduct the required consultation procedures as
required by the Local Government Code.
D. Respondent Province failed to perform a full environmental impact assessment as
required by law and relevant regulations.
II.
The reclamation of land bordering the strait between Caticlan and Boracay shall adversely affect
the frail ecological balance of the area.68
Petitioner objects to respondent Province’s classification of the reclamation project as single
instead of co-located, as "non-environmentally critical," and as a mere "rehabilitation" of the
existing jetty port. Petitioner points out that the reclamation project is on two sites (which are
situated on the opposite sides of Tabon Strait, about 1,200 meters apart):
 36.82 hectares – Site 1, in Bgy. Caticlan
 3.18 hectares – Site 2, in Manoc-manoc, Boracay Island69
Phase 1, which was started in December 2010 without the necessary permits, 70 is located on the
Caticlan side of a narrow strait separating mainland Aklan from Boracay. In the implementation
of the project, respondent Province obtained only an ECC to conduct Phase 1, instead of an
ECC on the entire 40 hectares. Thus, petitioner argues that respondent Province abused and
exploited the Revised Procedural Manual for DENR Administrative Order No. 30, Series of 2003
(DENR DAO 2003-30)71 relating to the acquisition of an ECC by:
 1. Declaring the reclamation project under "Group II Projects-Non-ECP (environmentally
critical project) in ECA (environmentally critical area) based on the type and size of the
area," and
2. Failing to declare the reclamation project as a co-located project application which
would have required the Province to submit a Programmatic Environmental Impact
Statement (PEIS)72 or Programmatic Environmental [Performance] Report Management
Plan (PE[P]RMP).73 (Emphases ours.)
Petitioner further alleges that the Revised Procedural Manual (on which the classification above
is based, which merely requires an Environmental Impact Statement [EIS] for Group II projects)
is patently ultra vires, and respondent DENR-EMB RVI committed grave abuse of discretion
because the laws on EIS, namely, Presidential Decree Nos. 1151 and 1586, as well as
Presidential Proclamation No. 2146, clearly indicate that projects in environmentally critical areas
are to be immediately considered environmentally critical. Petitioner complains that respondent
Province applied for an ECC only for Phase 1; hence, unlawfully
evading the requirement that co-located projects74 within Environmentally Critical Areas (ECAs)
must submit a PEIS and/or a PEPRMP.
Petitioner argues that respondent Province fraudulently classified and misrepresented the
project as a Non-ECP in an ECA, and as a single project instead of a co-located one. The impact
assessment allegedly performed gives a patently erroneous and wrongly-premised appraisal of
the possible environmental impact of the reclamation project. Petitioner contends that
respondent Province’s choice of classification was designed to avoid a comprehensive impact
assessment of the reclamation project.
Petitioner further contends that respondent DENR-EMB RVI willfully and deliberately
disregarded its duty to ensure that the environment is protected from harmful developmental
projects because it allegedly performed only a cursory and superficial review of the documents
submitted by the respondent Province for an ECC, failing to note that all the information and data
used by respondent Province in its application for the ECC were all dated and not current, as
data was gathered in the late 1990s for the ECC issued in 1999 for the first jetty port. Thus,
petitioner alleges that respondent DENR-EMB RVI ignored the environmental impact to Boracay,
which involves changes in the structure of the coastline that could contribute to the changes in
the characteristics of the sand in the beaches of both Caticlan and Boracay.
Petitioner insists that reclamation of land at the Caticlan side will unavoidably adversely affect
the Boracay side and notes that the declared objective of the reclamation project is for the
exploitation of Boracay’s tourist trade, since the project is intended to enhance support services
thereto. But, petitioner argues, the primary reason for Boracay’s popularity is its white-sand
beaches which will be negatively affected by the project.
Petitioner alleges that respondent PRA had required respondent Province to obtain the favorable
endorsement of the LGUs of Barangay Caticlan and Malay Municipality pursuant to the
consultation procedures as required by the Local Government Code. 75 Petitioner asserts that the
reclamation project is in violation not only of laws on EIS but also of the Local Government Code
as respondent Province failed to enter into proper consultations with the concerned LGUs. In
fact, the Liga ng mga Barangay-Malay Chapter also expressed strong opposition against the
project.76
Petitioner cites Sections 26 and 27 of the Local Government Code, which require consultations if
the project or program may cause pollution, climactic change, depletion of non-renewable
resources, etc. According to petitioner, respondent Province ignored the LGUs’ opposition
expressed as early as 2008. Not only that, respondent Province belatedly called for public
"consultation meetings" on June 17 and July 28, 2010, after an ECC had already been issued
and the MOA between respondents PRA and Province had already been executed. As the
petitioner saw it, these were not consultations but mere "project presentations."
Petitioner claims that respondent Province, aided and abetted by respondents PRA and DENR-
EMB, ignored the spirit and letter of the Revised Procedural Manual, intended to implement the
various regulations governing the Environmental Impact Assessments (EIAs) to ensure that
developmental projects are in line with sustainable development of natural resources. The
project was conceptualized without considering alternatives.
Further, as to its allegation that respondent Province failed to perform a full EIA, petitioner
argues that while it is true that as of now, only the Caticlan side has been issued an ECC, the
entire project involves the Boracay side, which should have been considered a co-located
project. Petitioner claims that any project involving Boracay requires a full EIA since it is an ECA.
Phase 1 of the project will affect Boracay and Caticlan as they are separated only by a narrow
strait; thus, it should be considered an ECP. Therefore, the ECC and permit issued must be
invalidated and cancelled.
Petitioner contends that a study shows that the flow of the water through a narrower channel due
to the reclamation project will likely divert sand transport off the southwest part of Boracay,
whereas the characteristic coast of the Caticlan side of the strait indicate stronger sediment
transport.77 The white-sand beaches of Boracay and its surrounding marine environment depend
upon the natural flow of the adjacent waters.
Regarding its claim that the reclamation of land bordering the strait between Caticlan and
Boracay shall adversely affect the frail ecological balance of the area, petitioner submits that
while the study conducted by the MERF-UPMSI only considers the impact of the reclamation
project on the land, it is undeniable that it will also adversely affect the already frail ecological
balance of the area. The effect of the project would have been properly assessed if the proper
EIA had been performed prior to any implementation of the project.
According to petitioner, respondent Province’s intended purposes do not prevail over its duty and
obligation to protect the environment. Petitioner believes that rehabilitation of the Jetty Port may
be done through other means.
In its Comment78 dated June 21, 2011, respondent Province claimed that application for
reclamation of 40 hectares is advantageous to the Provincial Government considering that its
filing fee would only cost Php20,000.00 plus Value Added Tax (VAT) which is also the minimum
fee as prescribed under Section 4.2 of Administrative Order No. 2007-2.79
Respondent Province considers the instant petition to be premature; thus, it must necessarily fail
for lack of cause of action due to the failure of petitioner to fully exhaust the available
administrative remedies even before seeking judicial relief. According to respondent Province,
the petition primarily assailed the decision of respondent DENR-EMB RVI in granting the ECC
for the subject project consisting of 2.64 hectares and sought the cancellation of the ECC for
alleged failure of respondent Province to submit proper documentation as required for its
issuance. Hence, the grounds relied upon by petitioner can be addressed within the confines of
administrative processes provided by law.
Respondent Province believes that under Section 5.4.3 of DENR Administrative Order No. 2003-
30 (DAO 2003-30),80 the issuance of an ECC81 is an official decision of DENR-EMB RVI on the
application of a project proponent.82 It cites Section 6 of DENR DAO 2003-30, which provides for
a remedy available to the party aggrieved by the final decision on the proponent’s ECC
applications.
Respondent Province argues that the instant petition is anchored on a wrong premise that
results to petitioner’s unfounded fears and baseless apprehensions. It is respondent Province’s
contention that its 2.64-hectare reclamation project is considered as a "stand alone project,"
separate and independent from the approved area of 40 hectares. Thus, petitioner should have
observed the difference between the "future development plan" of respondent Province from its
"actual project" being undertaken.83
Respondent Province clearly does not dispute the fact that it revised its original application to
respondent PRA from 2.64 hectares to 40 hectares. However, it claims that such revision is part
of its future plan, and implementation thereof is "still subject to availability of funds, independent
scientific environmental study, separate application of ECC and notice to proceed to be issued
by respondent PRA."84
Respondent Province goes on to claim that "[p]etitioner’s version of the Caticlan jetty port
expansion project is a bigger project which is still at the conceptualization stage. Although this
project was described in the Notice to Proceed issued by respondent PRA to have two phases,
36.82 hectares in Caticlan and 3.18 hectares in Boracay [Island,] it is totally different from the
[ongoing] Caticlan jetty port expansion project." 85
Respondent Province says that the Accomplishment Report 86 of its Engineering Office would
attest that the actual project consists of 2.64 hectares only, as originally planned and
conceptualized, which was even reduced to 2.2 hectares due to some construction and design
modifications.
Thus, respondent Province alleges that from its standpoint, its capability to reclaim is limited to
2.64 hectares only, based on respondent PRA’s Evaluation Report 87 dated October 18, 2010,
which was in turn the basis of the issuance of the Notice to Proceed dated October 19, 2010,
because the project’s financial component is ₱260,000,000.00 only. Said Evaluation Report
indicates that the implementation of the other phases of the project including site 2, which
consists of the other portions of the 40-hectare area that includes a portion in Boracay, is still
within the 10-year period and will depend largely on the availability of funds of respondent
Province.88
So, even if respondent PRA approved an area that would total up to 40 hectares, it was divided
into phases in order to determine the period of its implementation. Each phase was separate and
independent because the source of funds was also separate. The required documents and
requirements were also specific for each phase. The entire approved area of 40 hectares could
be implemented within a period of 10 years but this would depend solely on the availability of
funds.89
As far as respondent Province understands it, additional reclamations not covered by the ECC,
which only approved 2.64 hectares, should undergo another EIA. If respondent Province intends
to commence the construction on the other component of the 40 hectares, then it agrees that it is
mandated to secure a new ECC.90
Respondent Province admits that it dreamt of a 40-hectare project, even if it had originally
planned and was at present only financially equipped and legally compliant to undertake 2.64
hectares of the project, and only as an expansion of its old jetty port. 91
Respondent Province claims that it has complied with all the necessary requirements for
securing an ECC. On the issue that the reclamation project is within an ECA requiring the
performance of a full or programmatic EIA, respondent Province reiterates that the idea of
expanding the area to 40 hectares is only a future plan. It only secured an ECC for 2.64
hectares, based on the limits of its funding and authority. From the beginning, its intention was to
rehabilitate and expand the existing jetty port terminal to accommodate an increasing projected
traffic. The subject project is specifically classified under DENR DAO 2003-30 on its Project
Grouping Matrix for Determination of EIA Report Type considered as Minor Reclamation
Projects falling under Group II – Non ECP in an ECA. Whether 2.64 or 40 hectares in area, the
subject project falls within this classification.
Consequently, respondent Province claims that petitioner erred in considering the ongoing
reclamation project at Caticlan, Malay, Aklan, as co-located within an ECA.
Respondent Province, likewise argues that the 2.64-hectare project is not a component of the
approved 40-hectare area as it is originally planned for the expansion site of the existing Caticlan
jetty port. At present, it has no definite conceptual construction plan of the said portion in
Boracay and it has no financial allocation to initiate any project on the said Boracay portion.
Furthermore, respondent Province contends that the present project is located in Caticlan while
the alleged component that falls within an ECA is in Boracay. Considering its geographical
location, the two sites cannot be considered as a contiguous area for the reason that it is
separated by a body of water – a strait that traverses between the mainland Panay wherein
Caticlan is located and Boracay. Hence, it is erroneous to consider the two sites as a co-located
project within an ECA. Being a "stand alone project" and an expansion of the existing jetty port,
respondent DENR-EMB RVI had required respondent Province to perform an EPRMP to secure
an ECC as sanctioned by Item No. 8(b), page 7 of DENR DAO 2003-30.
Respondent Province contends that even if, granting for the sake of argument, it had
erroneously categorized its project as Non-ECP in an ECA, this was not a final determination.
Respondent DENR-EMB RVI, which was the administrator of the EIS system, had the final
decision on this matter. Under DENR DAO 2003-30, an application for ECC, even for a Category
B2 project where an EPRMP is conducted, shall be subjected to a review process. Respondent
DENR-EMB RVI had the authority to deny said application. Its Regional Director could either
issue an ECC for the project or deny the application. He may also require a more comprehensive
EIA study. The Regional Director issued the ECC based on the EPRMP submitted by
respondent Province and after the same went through the EIA review process.
Thus, respondent Province concludes that petitioner’s allegation of this being a "co-located
project" is premature if not baseless as the bigger reclamation project is still on the
conceptualization stage. Both respondents PRA and Province are yet to complete studies and
feasibility studies to embark on another project.
Respondent Province claims that an ocular survey of the reclamation project revealed that it had
worked within the limits of the ECC.92
With regard to petitioner’s allegation that respondent Province failed to get the favorable
endorsement of the concerned LGUs in violation of the Local Government Code, respondent
Province contends that consultation vis-à-vis the favorable endorsement from the concerned
LGUs as contemplated under the Local Government Code are merely tools to seek advice and
not a power clothed upon the LGUs to unilaterally approve or disapprove any government
projects. Furthermore, such endorsement is not necessary for projects falling under Category B2
unless required by the DENR-EMB RVI, under Section 5.3 of DENR DAO 2003-30.
Moreover, DENR Memorandum Circular No. 08-2007 no longer requires the issuance of permits
and certifications as a pre-requisite for the issuance of an ECC. Respondent Province claims to
have conducted consultative activities with LGUs in connection with Sections 26 and 27 of the
Local Government Code. The vehement and staunch objections of both the Sangguniang
Barangay of Caticlan and the Sangguniang Bayan of Malay, according to respondent Province,
were not rooted on its perceived impact upon the people and the community in terms of
environmental or ecological balance, but due to an alleged conflict with their "principal position to
develop, utilize and reap benefits from the natural resources found within its
jurisdiction."93 Respondent Province argues that these concerns are not within the purview of the
Local Government Code. Furthermore, the Preliminary Geohazard Assessment Report and
EPRMP as well as Sangguniang Panlalawigan Resolution Nos. 2010-022 and 2010-034 should
address any environmental issue they may raise.
Respondent Province posits that the spirit and intent of Sections 26 and 27 of the Local
Government Code is to create an avenue for parties, the proponent and the LGU concerned, to
come up with a tool in harmonizing its views and concerns about the project. The duty to consult
does not automatically require adherence to the opinions during the consultation process. It is
allegedly not within the provisions to give the full authority to the LGU concerned to unilaterally
approve or disapprove the project in the guise of requiring the proponent of securing its
favorable endorsement. In this case, petitioner is calling a halt to the project without providing an
alternative resolution to harmonize its position and that of respondent Province.
Respondent Province claims that the EPRMP 94 would reveal that:
[T]he area fronting the project site is practically composed of sand. Dead coral communities may
be found along the vicinity. Thus, fish life at the project site is quite scarce due to the absence of
marine support systems like the sea grass beds and coral reefs.
x x x [T]here is no coral cover at the existing Caticlan jetty port. [From] the deepest point of jetty
to the shallowest point, there was no more coral patch and the substrate is sandy. It is of public
knowledge that the said foreshore area is being utilized by the residents ever since as berthing
or anchorage site of their motorized banca. There will be no possibility of any coral development
therein because of its continuous utilization. Likewise, the activity of the strait that traverses
between the main land Caticlan and Boracay Island would also be a factor of the coral
development. Corals [may] only be formed within the area if there is scientific human
intervention, which is absent up to the present.
In light of the foregoing premise, it casts serious doubt on petitioner’s allegations pertaining to
the environmental effects of Respondent-LGU’s 2.64 hectares reclamation project. The alleged
environmental impact of the subject project to the beaches of Boracay Island remains
unconfirmed. Petitioner had unsuccessfully proven that the project would cause imminent, grave
and irreparable injury to the community. 95
Respondent Province prayed for the dissolution of the TEPO, claiming that the rules provide that
the TEPO may be dissolved if it appears after hearing that its issuance or continuance would
cause irreparable damage to the party or person enjoined, while the applicant may be fully
compensated for such damages as he may suffer and subject to the posting of a sufficient bond
by the party or person enjoined. Respondent Province contends that the TEPO would cause
irreparable damage in two aspects:
a. Financial dislocation and probable bankruptcy; and
b. Grave and imminent danger to safety and health of inhabitants of immediate area,
including tourists and passengers serviced by the jetty port, brought about by the abrupt
cessation of development works.
As regards financial dislocation, the arguments of respondent Province are summarized below:
1. This project is financed by bonds which the respondent Province had issued to its
creditors as the financing scheme in funding the present project is by way of credit
financing through bond flotation.
 2. The funds are financed by a Guarantee Bank – getting payment from bonds, being
sold to investors, which in turn would be paid by the income that the project would
realize or incur upon its completion.
3. While the project is under construction, respondent Province is appropriating a portion
of its Internal Revenue Allotment (IRA) budget from the 20% development fund to defray
the interest and principal amortization due to the Guarantee Bank.
4. The respondent Province’s IRA, regular income, and/or such other revenues or funds,
as may be permitted by law, are being used as security for the payment of the said loan
used for the project’s construction.
5. The inability of the subject project to earn revenues as projected upon completion will
compel the Province to shoulder the full amount of the obligation, starting from year
2012.
6. Respondent province is mandated to assign its IRA, regular income and/or such other
revenues or funds as permitted by law; if project is stopped, detriment of the public
welfare and its constituents.96
As to the second ground for the dissolution of the TEPO, respondent Province argues:
1. Non-compliance with the guidelines of the ECC may result to environmental hazards
most especially that reclaimed land if not properly secured may be eroded into the sea.
2. The construction has accomplished 65.26 percent of the project. The embankment
that was deposited on the project has no proper concrete wave protection that might be
washed out in the event that a strong typhoon or big waves may occur affecting the strait
and the properties along the project site. It is already the rainy season and there is a big
possibility of typhoon occurrence.
3. If said incident occurs, the aggregates of the embankment that had been washed out
might be transferred to the adjoining properties which could affect its natural
environmental state.
4. It might result to the total alteration of the physical landscape of the area attributing to
environmental disturbance.
5. The lack of proper concrete wave protection or revetment would cause the total
erosion of the embankment that has been dumped on the accomplished area. 97
Respondent Province claims that petitioner will not stand to suffer immediate, grave and
irreparable injury or damage from the ongoing project. The petitioner’s perceived fear of
environmental destruction brought about by its erroneous appreciation of available data is
unfounded and does not translate into a matter of extreme urgency. Thus, under the Rules of
Procedure on Environmental Cases, the TEPO may be dissolved.
Respondent PRA filed its Comment98 on June 22, 2011. It alleges that on June 24, 2006,
Executive Order No. 543 delegated the power "to approve reclamation projects to respondent
PRA through its governing Board, subject to compliance with existing laws and rules and further
subject to the condition that reclamation contracts to be executed with any person or entity
(must) go through public bidding."
Section 4 of respondent PRA’s Administrative Order No. 2007-2 provides for the approval
process and procedures for various reclamation projects to be undertaken. Respondent PRA
prepared an Evaluation Report on November 5, 2009 99 regarding Aklan’s proposal to increase its
project to 40 hectares.
Respondent PRA contends that it was only after respondent Province had complied with the
requirements under the law that respondent PRA, through its Board of Directors, approved the
proposed project under its Board Resolution No. 4094. 100 In the same Resolution, respondent
PRA Board authorized the General Manager/CEO to execute a MOA with the Aklan provincial
government to implement the reclamation project under certain conditions.
The issue for respondent PRA was whether or not it approved the respondent Province’s 2.64-
hectare reclamation project proposal in willful disregard of alleged "numerous irregularities" as
claimed by petitioner.101
Respondent PRA claims that its approval of the Aklan Reclamation Project was in accordance
with law and its rules. Indeed, it issued the notice to proceed only after Aklan had complied with
all the requirements imposed by existing laws and regulations. It further contends that the 40
hectares involved in this project remains a plan insofar as respondent PRA is concerned. What
has been approved for reclamation by respondent PRA thus far is only the 2.64-hectare
reclamation project. Respondent PRA reiterates that it approved this reclamation project after
extensively reviewing the legal, technical, financial, environmental, and operational aspects of
the proposed reclamation.102
One of the conditions that respondent PRA Board imposed before approving the Aklan project
was that no reclamation work could be started until respondent PRA has approved the detailed
engineering plans/methodology, design and specifications of the reclamation. Part of the
required submissions to respondent PRA includes the drainage design as approved by the
Public Works Department and the ECC as issued by the DENR, all of which the Aklan
government must submit to respondent PRA before starting any reclamation works. 103 Under
Article IV(B)(3) of the MOA between respondent PRA and Aklan, the latter is required to submit,
apart from the ECC, the following requirements for respondent PRA’s review and approval, as
basis for the issuance of a Notice to Proceed (NTP) for Reclamation Works:
(a) Land-form plan with technical description of the metes and bounds of the same land-
form;
 (b) Final master development and land use plan for the project;
(c) Detailed engineering studies, detailed engineering design, plans and specification for
reclamation works, reclamation plans and methodology, plans for the sources of fill
materials;
(d) Drainage plan vis-a-vis the land-form approved by DPWH Regional Office to include
a cost effective and efficient drainage system as may be required based on the results of
the studies;
(e) Detailed project cost estimates and quantity take-off per items of work of the rawland
reclamation components, e.g. reclamation containment structures and soil consolidation;
(f) Organizational chart of the construction arm, manning table, equipment schedule for
the project; and,
(g) Project timetable (PERT/CPM) for the entire project construction period. 104
In fact, respondent PRA further required respondent Province under Article IV (B)(24) of the
MOA to strictly comply with all conditions of the DENR-EMB-issued ECC "and/or comply with
pertinent local and international commitments of the Republic of the Philippines to ensure
environmental protection."105
In its August 11, 2010 letter,106 respondent PRA referred for respondent Province’s appropriate
action petitioner’s Resolution 001, series of 2010 and Resolution 46, series of 2010, of the
Sangguniang Bayan of Malay. Governor Marquez wrote respondent PRA 107 on September 16,
2010 informing it that respondent Province had already met with the different officials of Malay,
furnishing respondent PRA with the copies of the minutes of such meetings/presentations.
Governor Marquez also assured respondent PRA that it had complied with the consultation
requirements as far as Malay was concerned.
Respondent PRA claims that in evaluating respondent Province’s project and in issuing the
necessary NTP for Phase 1 of Site 1 (2.64 hectares) of the Caticlan Jetty Port expansion and
modernization, respondent PRA gave considerable weight to all pertinent issuances, especially
the ECC issued by DENR-EMB RVI.108 Respondent PRA stresses that its earlier approval of the
40-hectare reclamation project under its Resolution No. 4094, series of 2010, still requires a
second level of compliance requirements from the proponent. Respondent Province could not
possibly begin its reclamation works since respondent PRA had yet to issue an NTP in its favor.
Respondent PRA alleges that prior to the issuance of the NTP to respondent Province for Phase
1 of Site 1, it required the submission of the following pre-construction documents:
(a) Land-Form Plan (with technical description);
(b) Site Development Plan/Land Use Plan including,
(i) sewer and drainage systems and
(ii) waste water treatment;
(c) Engineering Studies and Engineering Design;
(d) Reclamation Methodology;
(e) Sources of Fill Materials, and,
(f) The ECC.109
Respondent PRA claims that it was only after the evaluation of the above submissions that it
issued to respondent Province the NTP, limited to the 2.64-hectare reclamation project.
Respondent PRA even emphasized in its evaluation report that should respondent Province
pursue the other phases of its project, it would still require the submission of an ECC for each
succeeding phases before the start of any reclamation works. 110
Respondent PRA, being the national government’s arm in regulating and coordinating all
reclamation projects in the Philippines – a mandate conferred by law – manifests that it is
incumbent upon it, in the exercise of its regulatory functions, to diligently evaluate, based on its
technical competencies, all reclamation projects submitted to it for approval. Once the
reclamation project’s requirements set forth by law and related rules have been complied with,
respondent PRA is mandated to approve the same. Respondent PRA claims, "[w]ith all the
foregoing rigorous and detailed requirements submitted and complied with by Aklan, and the
attendant careful and meticulous technical and legal evaluation by respondent PRA, it cannot be
argued that the reclamation permit it issued to Aklan is ‘founded upon numerous irregularities;’
as recklessly and baselessly imputed by BFI."111
In its Comment112 dated July 1, 2011, respondent DENR-EMB RVI asserts that its act of issuing
the ECC certifies that the project had undergone the proper EIA process by assessing, among
others, the direct and indirect impact of the project on the biophysical and human environment
and ensuring that these impacts are addressed by appropriate environmental protection and
enhancement measures, pursuant to Presidential Decree No. 1586, the Revised Procedural
Manual for DENR DAO 2003-30, and the existing rules and regulations.113
Respondent DENR-EMB RVI stresses that the declaration in 1978 of several islands, which
includes Boracay as tourist zone and marine reserve under Proclamation No. 1801, has no
relevance to the expansion project of Caticlan Jetty Port and Passenger Terminal for the very
reason that the project is not located in the Island of Boracay, being located in Barangay
Caticlan, Malay, which is not a part of mainland Panay. It admits that the site of the subject jetty
port falls within the ECA under Proclamation No. 2146 (1981), being within the category of a
water body. This was why respondent Province had faithfully secured an ECC pursuant to the
Revised Procedural Manual for DENR DAO 2003-30 by submitting the necessary documents as
contained in the EPRMP on March 19, 2010, which were the bases in granting ECC No. R6-
1003-096-7100 (amended) on April 27, 2010 for the expansion of Caticlan Jetty Port and
Passenger Terminal, covering 2.64 hectares.114
Respondent DENR-EMB RVI claims that the issues raised by the LGUs of Caticlan and Malay
had been considered by the DENR-Provincial Environment and Natural Resources Office
(PENRO), Aklan in the issuance of the Order 115 dated January 26, 2010, disregarding the claim
of the Municipality of Malay, Aklan of a portion of the foreshore land in Caticlan covered by the
application of the Province of Aklan; and another Order of Rejection dated February 5, 2010 of
the two foreshore applications, namely FLA No. 060412-43A and FLA No. 060412-43B, of the
Province of Aklan.116
Respondent DENR-EMB RVI contends that the supporting documents attached to the EPRMP
for the issuance of an ECC were merely for the expansion and modernization of the old jetty port
in Barangay Caticlan covering 2.64 hectares, and not the 40-hectare reclamation project in
Barangay Caticlan and Boracay. The previous letter of respondent Province dated October 14,
2009 addressed to DENR-EMB RVI Regional Executive Director, would show that the
reclamation project will cover approximately 2.6 hectares. 117 This application for ECC was not
officially accepted due to lack of requirements or documents.
Although petitioner insists that the project involves 40 hectares in two sites, respondent DENR-
EMB RVI looked at the documents submitted by respondent Province and saw that the subject
area covered by the ECC application and subsequently granted with ECC-R6-1003-096-7100
consists only of 2.64 hectares; hence, respondent DENR-EMB RVI could not comment on the
excess area.118
Respondent DENR-EMB RVI admits that as regards the classification of the 2.64-hectare
reclamation project under "Non ECP in ECA," this does not fall within the definition of a co-
located project because the subject project is merely an expansion of the old Caticlan Jetty Port,
which had a previously issued ECC (ECC No. 0699-1012-171 on October 12, 1999). Thus, only
an EPRMP, not a PEIS or PEPRMP, is required.119
Respondent Province submitted to respondent DENR-EMB RVI the following documents
contained in the EPRMP:
a. The Observations on the Floor Bottom and its Marine Resources at the Proposed
Jetty Ports at Caticlan and Manok-manok, Boracay, Aklan, conducted in 1999 by the
Bureau of Fisheries Aquatic Resources (BFAR) Central Office, particularly in Caticlan
site, and
b. The Study conducted by Dr. Ricarte S. Javelosa, Ph. D, Mines and Geosciences
Bureau (MGB), Central Office and Engr. Roger Esto, Provincial Planning and
Development Office (PPDO), Aklan in 2009 entitled "Preliminary Geo-hazard
Assessment for the Enhancement of the Existing Caticlan Jetty Port Terminal through
Beach Zone Restoration and Protective Marina Development in Malay, Aklan."
Respondent DENR-EMB RVI claims that the above two scientific studies were enough for it to
arrive at a best professional judgment to issue an amended ECC for the Aklan Marina Project
covering 2.64 hectares.120Furthermore, to confirm that the 2.64-hectare reclamation has no
significant negative impact with the surrounding environment particularly in Boracay, a more
recent study was conducted, and respondent DENR-EMB RVI alleges that "[i]t is very important
to highlight that the input data in the [MERF- UPMSI] study utilized the [40-hectare] reclamation
and [200-meter] width seaward using the tidal and wave modelling." 121 The study showed that
the reclamation of 2.64 hectares had no effect to the hydrodynamics of the strait between
Barangay Caticlan and Boracay.
Respondent DENR-EMB RVI affirms that no permits and/or clearances from National
Government Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum
Circular No. 2007-08, entitled "Simplifying the Requirements of ECC or CNC Applications;" that
the EPRMP was evaluated and processed based on the Revised Procedural Manual for DENR
DAO 2003-30 which resulted to the issuance of ECC-R6-1003-096-7100; and that the ECC is
not a permit per se but a planning tool for LGUs to consider in its decision whether or not to
issue a local permit.122
Respondent DENR-EMB RVI concludes that in filing this case, petitioner had bypassed and
deprived the DENR Secretary of the opportunity to review and/or reverse the decision of his
subordinate office, EMB RVI pursuant to the Revised Procedural Manual for DENR DAO 2003-
30. There is no "extreme urgency that necessitates the granting of Mandamus or issuance of
TEPO that put to balance between the life and death of the petitioner or present grave or
irreparable damage to environment." 123
After receiving the above Comments from all the respondents, the Court set the case for oral
arguments on September 13, 2011.
Meanwhile, on September 8, 2011, respondent Province filed a Manifestation and
Motion124 praying for the dismissal of the petition, as the province was no longer pursuing the
implementation of the succeeding phases of the project due to its inability to comply with Article
IV B.2(3) of the MOA; hence, the issues and fears expressed by petitioner had become moot.
Respondent Province alleges that the petition is "premised on a serious misappreciation of the
real extent of the contested reclamation project" as certainly the ECC covered only a total of
2,691 square meters located in Barangay Caticlan, Malay, Aklan; and although the MOA spoke
of 40 hectares, respondent Province’s submission of documents to respondent PRA pertaining
to said area was but the first of a two-step process of approval. Respondent Province claims that
its failure to comply with the documentary requirements of respondent PRA within the period
provided, or 120 working days from the effectivity of the MOA, indicated its waiver to pursue the
remainder of the project.125 Respondent Province further manifested:
Confirming this in a letter dated 12 August 2011, 126 Governor Marquez informed respondent PRA
that the Province of Aklan is no longer "pursuing the implementation of the succeeding phases of
the project with a total area of 37.4 hectares for our inability to comply with Article IV B.2 (3) of
the MOA; hence, the existing MOA will cover only the project area of 2.64 hectares."
In his reply-letter dated August 22, 2011,127 [respondent] PRA General Manager informed
Governor Marquez that the [respondent] PRA Board of Directors has given [respondent] PRA
the authority to confirm the position of the Province of Aklan that the "Aklan Beach Zone
Restoration and Protection Marine Development Project will now be confined to the reclamation
and development of the 2.64 hectares, more or less.
It is undisputed from the start that the coverage of the Project is in fact limited to 2.64 hectares,
as evidenced by the NTP issued by respondent PRA. The recent exchange of correspondence
between respondents Province of Aklan and [respondent] PRA further confirms the intent of the
parties all along. Hence, the Project subject of the petition, without doubt, covers only 2.64 and
not 40 hectares as feared. This completely changes the extent of the Project and, consequently,
moots the issues and fears expressed by the petitioner.128 (Emphasis supplied.)
Based on the above contentions, respondent Province prays that the petition be dismissed as no
further justiciable controversy exists since the feared adverse effect to Boracay Island’s ecology
had become academic all together.129
The Court heard the parties’ oral arguments on September 13, 2011 and gave the latter twenty
(20) days thereafter to file their respective memoranda.
Respondent Province filed another Manifestation and Motion, 130
which the Court received on
April 2, 2012 stating that:
1. it had submitted the required documents and studies to respondent DENR-EMB RVI
before an ECC was issued in its favor;
2. it had substantially complied with the requirements provided under PRA
Administrative Order 2007-2, which compliance caused respondent PRA’s Board to
approve the reclamation project; and
3. it had conducted a series of "consultative [presentations]" relative to the reclamation
project before the LGU of Malay Municipality, the Barangay Officials of Caticlan, and
stakeholders of Boracay Island.
Respondent Province further manifested that the Barangay Council of Caticlan, Malay, Aklan
enacted on February 13, 2012 Resolution No. 003, series of 2012, entitled "Resolution Favorably
Endorsing the 2.6 Hectares Reclamation/MARINA Project of the Aklan Provincial Government at
Caticlan Coastline"131 and that the Sangguniang Bayan of the Municipality of Malay, Aklan
enacted Resolution No. 020, series of 2012, entitled "Resolution Endorsing the 2.6 Hectares
Reclamation Project of the Provincial Government of Aklan Located at Barangay Caticlan,
Malay, Aklan."132
Respondent Province claims that its compliance with the requirements of respondents DENR-
EMB RVI and PRA that led to the approval of the reclamation project by the said government
agencies, as well as the recent enactments of the Barangay Council of Caticlan and the
Sangguniang Bayan of the Municipality of Malay favorably endorsing the said project, had
"categorically addressed all the issues raised by the Petitioner in its Petition dated June 1, 2011."
Respondent Province prays as follows:
WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that
after due proceedings, the following be rendered:
1. The Temporary Environmental Protection Order (TEPO) it issued on June 7, 2011 be
lifted/dissolved.
2. The instant petition be dismissed for being moot and academic.
3. Respondent Province of Aklan prays for such other reliefs that are just and equitable
under the premises. (Emphases in the original.)
ISSUES
The Court will now resolve the following issues:
I. Whether or not the petition should be dismissed for having been rendered moot and
academic
II. Whether or not the petition is premature because petitioner failed to exhaust
administrative remedies before filing this case
III. Whether or not respondent Province failed to perform a full EIA as required by laws
and regulations based on the scope and classification of the project
IV. Whether or not respondent Province complied with all the requirements under the
pertinent laws and regulations
V. Whether or not there was proper, timely, and sufficient public consultation for the
project
DISCUSSION
On the issue of whether or not the Petition should be dismissed for having been rendered moot
and academic
Respondent Province claims in its Manifestation and Motion filed on April 2, 2012 that with the
alleged favorable endorsement of the reclamation project by the Sangguniang Barangay of
Caticlan and the Sangguniang Bayan of the Municipality of Malay, all the issues raised by
petitioner had already been addressed, and this petition should be dismissed for being moot and
academic.
On the contrary, a close reading of the two LGUs’ respective resolutions would reveal that they
are not sufficient to render the petition moot and academic, as there are explicit conditions
imposed that must be complied with by respondent Province. In Resolution No. 003, series of
2012, of the Sangguniang Barangay of Caticlan it is stated that "any vertical structures to be
constructed shall be subject for barangay endorsement." 133 Clearly, what the barangay endorsed
was the reclamation only, and not the entire project that includes the construction of a
commercial building and wellness center, and other tourism-related facilities. Petitioner’s
objections, as may be recalled, pertain not only to the reclamation per se, but also to the building
to be constructed and the entire project’s perceived ill effects to the surrounding environment.
Resolution No. 020, series of 2012, of the Sangguniang Bayan of Malay 134 is even more specific.
It reads in part:
WHEREAS, noble it seems the reclamation project to the effect that it will generate scores of
benefits for the Local Government of Malay in terms of income and employment for its
constituents, but the fact cannot be denied that the project will take its toll on the environment
especially on the nearby fragile island of Boracay and the fact also remains that the project will
eventually displace the local transportation operators/cooperatives;
WHEREAS, considering the sensitivity of the project, this Honorable Body through the
Committee where this matter was referred conducted several consultations/committee hearings
with concerned departments and the private sector specifically Boracay Foundation, Inc. and
they are one in its belief that this Local Government Unit has never been against development
so long as compliance with the law and proper procedures have been observed and that
paramount consideration have been given to the environment lest we disturb the balance of
nature to the end that progress will be brought to naught;
WHEREAS, time and again, to ensure a healthy intergovernmental relations, this August Body
requires no less than transparency and faithful commitment from the Provincial Government of
Aklan in the process of going through these improvements in the Municipality because it once
fell prey to infidelities in matters of governance;
WHEREAS, as a condition for the grant of this endorsement and to address all issues and
concerns, this Honorable Council necessitates a sincere commitment from the Provincial
Government of Aklan to the end that:
1. To allocate an office space to LGU-Malay within the building in the reclaimed area;
2. To convene the Cagban and Caticlan Jetty Port Management Board before the
resumption of the reclamation project;
3. That the reclamation project shall be limited only to 2.6 hectares in Barangay Caticlan
and not beyond;
4. That the local transportation operators/cooperatives will not be displaced; and
5. The Provincial Government of Aklan conduct a simultaneous comprehensive study on
the environmental impact of the reclamation project especially during Habagat and
Amihan seasons and put in place as early as possible mitigating measures on the effect
of the project to the environment.
WHEREAS, having presented these stipulations, failure to comply herewith will leave this August
Body no choice but to revoke this endorsement, hence faithful compliance of the commitment of
the Provincial Government is highly appealed for[.] 135 (Emphases added.)
The Sangguniang Bayan of Malay obviously imposed explicit conditions for respondent Province
to comply with on pain of revocation of its endorsement of the project, including the need to
conduct a comprehensive study on the environmental impact of the reclamation project, which is
the heart of the petition before us. Therefore, the contents of the two resolutions submitted by
respondent Province do not support its conclusion that the subsequent favorable endorsement of
the LGUs had already addressed all the issues raised and rendered the instant petition moot and
academic.
On the issue of failure to exhaust administrative remedies
Respondents, in essence, argue that the present petition should be dismissed for petitioner’s
failure to exhaust administrative remedies and even to observe the hierarchy of courts.
Furthermore, as the petition questions the issuance of the ECC and the NTP, this involves
factual and technical verification, which are more properly within the expertise of the concerned
government agencies.
Respondents anchor their argument on Section 6, Article II of DENR DAO 2003-30, which
provides:
Section 6. Appeal
Any party aggrieved by the final decision on the ECC / CNC applications may, within 15 days
from receipt of such decision, file an appeal on the following grounds:
a. Grave abuse of discretion on the part of the deciding authority, or
b. Serious errors in the review findings.
The DENR may adopt alternative conflict/dispute resolution procedures as a means to settle
grievances between proponents and aggrieved parties to avert unnecessary legal action.
Frivolous appeals shall not be countenanced.
The proponent or any stakeholder may file an appeal to the following:
Deciding Authority Where to file the appeal
 EMB Regional Office Director Office of the EMB Director
EMB Central Office Director Office of the DENR Secretary
DENR Secretary Office of the President
(Emphases supplied.)
Respondents argue that since there is an administrative appeal provided for, then petitioner is
duty bound to observe the same and may not be granted recourse to the regular courts for its
failure to do so.
We do not agree with respondents’ appreciation of the applicability of the rule on exhaustion of
administrative remedies in this case. We are reminded of our ruling in Pagara v. Court of
Appeals,136 which summarized our earlier decisions on the procedural requirement of exhaustion
of administrative remedies, to wit:
The rule regarding exhaustion of administrative remedies is not a hard and fast rule. It is not
applicable (1) where the question in dispute is purely a legal one, or (2) where the controverted
act is patently illegal or was performed without jurisdiction or in excess of jurisdiction; or (3)
where the respondent is a department secretary, whose acts as an alter ego of the President
bear the implied or assumed approval of the latter, unless actually disapproved by him, or (4)
where there are circumstances indicating the urgency of judicial intervention, - Gonzales vs.
Hechanova, L-21897, October 22, 1963, 9 SCRA 230; Abaya vs. Villegas, L-25641, December
17, 1966, 18 SCRA; Mitra vs. Subido, L-21691, September 15, 1967, 21 SCRA 127.
Said principle may also be disregarded when it does not provide a plain, speedy and adequate
remedy, (Cipriano vs. Marcelino, 43 SCRA 291), when there is no due process observed
(Villanos vs. Subido, 45 SCRA 299), or where the protestant has no other recourse (Sta. Maria
vs. Lopez, 31 SCRA 637).137 (Emphases supplied.)
As petitioner correctly pointed out, the appeal provided for under Section 6 of DENR DAO 2003-
30 is only applicable, based on the first sentence thereof, if the person or entity charged with the
duty to exhaust the administrative remedy of appeal to the appropriate government agency has
been a party or has been made a party in the proceedings wherein the decision to be appealed
was rendered. It has been established by the facts that petitioner was never made a party to the
proceedings before respondent DENR-EMB RVI. Petitioner was only informed that the project
had already been approved after the ECC was already granted. 138 Not being a party to the said
proceedings, it does not appear that petitioner was officially furnished a copy of the decision,
from which the 15-day period to appeal should be reckoned, and which would warrant the
application of Section 6, Article II of DENR DAO 2003-30.
Although petitioner was not a party to the proceedings where the decision to issue an ECC was
rendered, it stands to be aggrieved by the decision, 139 because it claims that the reclamation of
land on the Caticlan side would unavoidably adversely affect the Boracay side, where
petitioner’s members own establishments engaged in the tourism trade. As noted earlier,
petitioner contends that the declared objective of the reclamation project is to exploit Boracay’s
tourism trade because the project is intended to enhance support services thereto; however, this
objective would not be achieved since the white-sand beaches for which Boracay is famous
might be negatively affected by the project. Petitioner’s conclusion is that respondent Province,
aided and abetted by respondents PRA and DENR-EMB RVI, ignored the spirit and letter of our
environmental laws, and should thus be compelled to perform their duties under said laws.
The new Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, provides a relief for
petitioner under the writ of continuing mandamus, which is a special civil action that may be
availed of "to compel the performance of an act specifically enjoined by law" 140 and which
provides for the issuance of a TEPO "as an auxiliary remedy prior to the issuance of the writ
itself."141 The Rationale of the said Rules explains the writ in this wise:
Environmental law highlights the shift in the focal-point from the initiation of regulation by
Congress to the implementation of regulatory programs by the appropriate government
agencies.
Thus, a government agency’s inaction, if any, has serious implications on the future of
environmental law enforcement. Private individuals, to the extent that they seek to change the
scope of the regulatory process, will have to rely on such agencies to take the initial incentives,
which may require a judicial component. Accordingly, questions regarding the propriety of an
agency’s action or inaction will need to be analyzed.
This point is emphasized in the availability of the remedy of the writ of mandamus, which allows
for the enforcement of the conduct of the tasks to which the writ pertains: the performance of a
legal duty.142 (Emphases added.)
The writ of continuing mandamus "permits the court to retain jurisdiction after judgment in order
to ensure the successful implementation of the reliefs mandated under the court’s decision" and,
in order to do this, "the court may compel the submission of compliance reports from the
respondent government agencies as well as avail of other means to monitor compliance with its
decision."143
According to petitioner, respondent Province acted pursuant to a MOA with respondent PRA that
was conditioned upon, among others, a properly-secured ECC from respondent DENR-EMB
RVI. For this reason, petitioner seeks to compel respondent Province to comply with certain
environmental laws, rules, and procedures that it claims were either circumvented or ignored.
Hence, we find that the petition was appropriately filed with this Court under Rule 8, Section 1,
A.M. No. 09-6-8-SC, which reads:
SECTION 1. Petition for continuing mandamus.—When any agency or instrumentality of the
government or officer thereof unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust or station in connection with the
enforcement or violation of an environmental law rule or regulation or a right therein, or
unlawfully excludes another from the use or enjoyment of such right and there is no other plain,
speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may
file a verified petition in the proper court, alleging the facts with certainty, attaching thereto
supporting evidence, specifying that the petition concerns an environmental law, rule or
regulation, and praying that judgment be rendered commanding the respondent to do an act or
series of acts until the judgment is fully satisfied, and to pay damages sustained by the petitioner
by reason of the malicious neglect to perform the duties of the respondent, under the law, rules
or regulations. The petition shall also contain a sworn certification of non-forum shopping.
SECTION 2. Where to file the petition.—The petition shall be filed with the Regional Trial Court
exercising jurisdiction over the territory where the actionable neglect or omission occurred or
with the Court of Appeals or the Supreme Court.
Petitioner had three options where to file this case under the rule: the Regional Trial Court
exercising jurisdiction over the territory where the actionable neglect or omission occurred, the
Court of Appeals, or this Court.
Petitioner had no other plain, speedy, or adequate remedy in the ordinary course of law to
determine the questions of unique national and local importance raised here that pertain to laws
and rules for environmental protection, thus it was justified in coming to this Court.
Having resolved the procedural issue, we now move to the substantive issues.
On the issues of whether, based on the scope and classification of the project, a full EIA is
required by laws and regulations, and whether respondent Province complied with all the
requirements under the pertinent laws and regulations
Petitioner’s arguments on this issue hinges upon its claim that the reclamation project is
misclassified as a single project when in fact it is co-located. Petitioner also questions the
classification made by respondent Province that the reclamation project is merely an expansion
of the existing jetty port, when the project descriptions embodied in the different documents filed
by respondent Province describe commercial establishments to be built, among others, to raise
revenues for the LGU; thus, it should have been classified as a new project. Petitioner likewise
cries foul to the manner by which respondent Province allegedly circumvented the documentary
requirements of the DENR-EMB RVI by the act of connecting the reclamation project with its
previous project in 1999 and claiming that the new project is a mere expansion of the previous
one.
As previously discussed, respondent Province filed a Manifestation and Motion stating that the
ECC issued by respondent DENR-EMB RVI covered an area of 2,691 square meters in Caticlan,
and its application for reclamation of 40 hectares with respondent PRA was conditioned on its
submission of specific documents within 120 days. Respondent Province claims that its failure to
comply with said condition indicated its waiver to pursue the succeeding phases of the
reclamation project and that the subject matter of this case had thus been limited to 2.64
hectares. Respondent PRA, for its part, declared through its General Manager that the "Aklan
Beach Zone Restoration and Protection Marine Development Project will now be confined to the
reclamation and development of the 2.64 hectares, more or less." 144
The Court notes such manifestation of respondent Province. Assuming, however, that the area
involved in the subject reclamation project has been limited to 2.64 hectares, this case has not
become moot and academic, as alleged by respondents, because the Court still has to check
whether respondents had complied with all applicable environmental laws, rules, and regulations
pertaining to the actual reclamation project.
We recognize at this point that the DENR is the government agency vested with delegated
powers to review and evaluate all EIA reports, and to grant or deny ECCs to project
proponents.145 It is the DENR that has the duty to implement the EIS system. It appears,
however, that respondent DENR-EMB RVI’s evaluation of this reclamation project was
problematic, based on the valid questions raised by petitioner.
Being the administrator of the EIS System, respondent DENR-EMB RVI’s submissions bear
great weight in this case. However, the following are the issues that put in question the wisdom
of respondent DENR-EMB RVI in issuing the ECC:
1. Its approval of respondent Province’s classification of the project as a mere expansion
of the existing jetty port in Caticlan, instead of classifying it as a new project;
2. Its classification of the reclamation project as a single instead of a co-located project;
3. The lack of prior public consultations and approval of local government agencies; and
4. The lack of comprehensive studies regarding the impact of the reclamation project to
the environment.
The above issues as raised put in question the sufficiency of the evaluation of the project by
respondent DENR-EMB RVI.
Nature of the project
The first question must be answered by respondent DENR-EMB RVI as the agency with the
expertise and authority to state whether this is a new project, subject to the more rigorous
environmental impact study requested by petitioner, or it is a mere expansion of the existing jetty
port facility.
The second issue refers to the classification of the project by respondent Province, approved by
respondent DENR-EMB RVI, as single instead of co-located. Under the Revised Procedural
Manual, the "Summary List of Additional Non-Environmentally-Critical Project (NECP) Types in
ECAs Classified under Group II" (Table I-2) lists "buildings, storage facilities and other
structures" as a separate item from "transport terminal facilities." This creates the question of
whether this project should be considered as consisting of more than one type of activity, and
should more properly be classified as "co-located," under the following definition from the same
Manual, which reads:
f) Group IV (Co-located Projects in either ECA or NECA): A co-located project is a group of
single projects, under one or more proponents/locators, which are located in a contiguous area
and managed by one administrator, who is also the ECC applicant. The co-located project may
be an economic zone or industrial park, or a mix of projects within a catchment, watershed or
river basin, or any other geographical, political or economic unit of area. Since the location or
threshold of specific projects within the contiguous area will yet be derived from the EIA process
based on the carrying capacity of the project environment, the nature of the project is called
"programmatic." (Emphasis added.)
Respondent DENR-EMB RVI should conduct a thorough and detailed evaluation of the project to
address the question of whether this could be deemed as a group of single projects (transport
terminal facility, building, etc.) in a contiguous area managed by respondent Province, or as a
single project.
The third item in the above enumeration will be discussed as a separate issue.
The answer to the fourth question depends on the final classification of the project under items 1
and 3 above because the type of EIA study required under the Revised Procedural Manual
depends on such classification.
The very definition of an EIA points to what was most likely neglected by respondent Province as
project proponent, and what was in turn overlooked by respondent DENR-EMB RVI, for it is
defined as follows:
An [EIA] is a ‘process that involves predicting and evaluating the likely impacts of a project
(including cumulative impacts) on the environment during construction, commissioning,
operation and abandonment. It also includes designing appropriate preventive, mitigating and
enhancement measures addressing these consequences to protect the environment and the
community’s welfare.146 (Emphases supplied.)
Thus, the EIA process must have been able to predict the likely impact of the reclamation project
to the environment and to prevent any harm that may otherwise be caused.
The project now before us involves reclamation of land that is more than five times the size of
the original reclaimed land. Furthermore, the area prior to construction merely contained a jetty
port, whereas the proposed expansion, as described in the EPRMP submitted by respondent
Province to respondent DENR-EMB RVI involves so much more, and we quote:
The expansion project will be constructed at the north side of the existing jetty port and terminal
that will have a total area of 2.64 hectares, more or less, after reclamation. The Phase 1 of the
project construction costing around ₱260 million includes the following:
1. Reclamation - 3,000 sq m (expansion of jetty port)
2. Reclamation - 13,500 sq m (buildable area)
3. Terminal annex building - 250 sq m
4. 2-storey commercial building – 2,500 sq m (1,750 sq m of leasable space)
5. Health and wellness center
6. Access road - 12 m (wide)
7. Parking, perimeter fences, lighting and water treatment sewerage system
8. Rehabilitation of existing jetty port and terminal
xxxx
The succeeding phases of the project will consist of [further] reclamation, completion of the
commercial center building, bay walk commercial strip, staff building, ferry terminal, a cable car
system and wharf marina. This will entail an additional estimated cost of ₱785 million bringing
the total investment requirement to about ₱1.0 billion. 147 (Emphases added.)
As may be gleaned from the breakdown of the 2.64 hectares as described by respondent
Province above, a significant portion of the reclaimed area would be devoted to the construction
of a commercial building, and the area to be utilized for the expansion of the jetty port consists of
a mere 3,000 square meters (sq. m). To be true to its definition, the EIA report submitted by
respondent Province should at the very least predict the impact that the construction of the new
buildings on the reclaimed land would have on the surrounding environment. These new
constructions and their environmental effects were not covered by the old studies that
respondent Province previously submitted for the construction of the original jetty port in 1999,
and which it re-submitted in its application for ECC in this alleged expansion, instead of
conducting updated and more comprehensive studies.
Any impact on the Boracay side cannot be totally ignored, as Caticlan and Boracay are
separated only by a narrow strait. This becomes more imperative because of the significant
contributions of Boracay’s white-sand beach to the country’s tourism trade, which requires
respondent Province to proceed with utmost caution in implementing projects within its vicinity.
We had occasion to emphasize the duty of local government units to ensure the quality of the
environment under Presidential Decree No. 1586 in Republic of the Philippines v. The City of
Davao,148 wherein we held:
Section 15 of Republic Act 7160, otherwise known as the Local Government Code, defines a
local government unit as a body politic and corporate endowed with powers to be exercised by it
in conformity with law. As such, it performs dual functions, governmental and proprietary.
Governmental functions are those that concern the health, safety and the advancement of the
public good or welfare as affecting the public generally. Proprietary functions are those that seek
to obtain special corporate benefits or earn pecuniary profit and intended for private advantage
and benefit. When exercising governmental powers and performing governmental duties, an
LGU is an agency of the national government. When engaged in corporate activities, it acts as
an agent of the community in the administration of local affairs.
Found in Section 16 of the Local Government Code is the duty of the LGUs to promote the
people’s right to a balanced ecology. Pursuant to this, an LGU, like the City of Davao, can not
claim exemption from the coverage of PD 1586. As a body politic endowed with governmental
functions, an LGU has the duty to ensure the quality of the environment, which is the very same
objective of PD 1586.
xxxx
Section 4 of PD 1586 clearly states that "no person, partnership or corporation shall undertake or
operate any such declared environmentally critical project or area without first securing an
Environmental Compliance Certificate issued by the President or his duly authorized
representative." The Civil Code defines a person as either natural or juridical. The state and its
political subdivisions, i.e., the local government units are juridical persons. Undoubtedly
therefore, local government units are not excluded from the coverage of PD 1586.
Lastly, very clear in Section 1 of PD 1586 that said law intends to implement the policy of the
state to achieve a balance between socio-economic development and environmental protection,
which are the twin goals of sustainable development. The above-quoted first paragraph of the
Whereas clause stresses that this can only be possible if we adopt a comprehensive and
integrated environmental protection program where all the sectors of the community are
involved, i.e., the government and the private sectors. The local government units, as part of the
machinery of the government, cannot therefore be deemed as outside the scope of the EIS
system.149(Emphases supplied.)
The Court chooses to remand these matters to respondent DENR-EMB RVI for it to make a
proper study, and if it should find necessary, to require respondent Province to address these
environmental issues raised by petitioner and submit the correct EIA report as required by the
project’s specifications. The Court requires respondent DENR-EMB RVI to complete its study
and submit a report within a non-extendible period of three months. Respondent DENR-EMB
RVI should establish to the Court in said report why the ECC it issued for the subject project
should not be canceled.
Lack of prior public consultation
The Local Government Code establishes the duties of national government agencies in the
maintenance of ecological balance, and requires them to secure prior public consultation and
approval of local government units for the projects described therein.
In the case before us, the national agency involved is respondent PRA. Even if the project
proponent is the local government of Aklan, it is respondent PRA which authorized the
reclamation, being the exclusive agency of the government to undertake reclamation nationwide.
Hence, it was necessary for respondent Province to go through respondent PRA and to execute
a MOA, wherein respondent PRA’s authority to reclaim was delegated to respondent Province.
Respondent DENR-EMB RVI, regional office of the DENR, is also a national government
institution which is tasked with the issuance of the ECC that is a prerequisite to projects covered
by environmental laws such as the one at bar.
This project can be classified as a national project that affects the environmental and ecological
balance of local communities, and is covered by the requirements found in the Local
Government Code provisions that are quoted below:
Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. -
It shall be the duty of every national agency or government-owned or controlled corporation
authorizing or involved in the planning and implementation of any project or program that may
cause pollution, climatic change, depletion of non-renewable resources, loss of crop land,
rangeland, or forest cover, and extinction of animal or plant species, to consult with the local
government units, nongovernmental organizations, and other sectors concerned and explain the
goals and objectives of the project or program, its impact upon the people and the community in
terms of environmental or ecological balance, and the measures that will be undertaken to
prevent or minimize the adverse effects thereof.
Section 27. Prior Consultations Required. - No project or program shall be implemented by
government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are
complied with, and prior approval of the sanggunian concerned is obtained: Provided, That
occupants in areas where such projects are to be implemented shall not be evicted unless
appropriate relocation sites have been provided, in accordance with the provisions of the
Constitution.
In Lina, Jr. v. Paño,150 we held that Section 27 of the Local Government Code applies only to
"national programs and/or projects which are to be implemented in a particular local
community"151 and that it should be read in conjunction with Section 26. We held further in this
manner:
Thus, the projects and programs mentioned in Section 27 should be interpreted to mean projects
and programs whose effects are among those enumerated in Section 26 and 27, to wit, those
that: (1) may cause pollution; (2) may bring about climatic change; (3) may cause the depletion
of non-renewable resources; (4) may result in loss of crop land, range-land, or forest cover; (5)
may eradicate certain animal or plant species from the face of the planet; and (6) other projects
or programs that may call for the eviction of a particular group of people residing in the locality
where these will be implemented. Obviously, none of these effects will be produced by the
introduction of lotto in the province of Laguna.152 (Emphasis added.)
During the oral arguments held on September 13, 2011, it was established that this project as
described above falls under Section 26 because the commercial establishments to be built on
phase 1, as described in the EPRMP quoted above, could cause pollution as it could generate
garbage, sewage, and possible toxic fuel discharge. 153
Our ruling in Province of Rizal v. Executive Secretary154 is instructive:
We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v. Lanzanas, where we
held that there was no statutory requirement for the sangguniang bayan of Puerto Galera to
approve the construction of a mooring facility, as Sections 26 and 27 are inapplicable to projects
which are not environmentally critical.
Moreover, Section 447, which enumerates the powers, duties and functions of the municipality,
grants the sangguniang bayan the power to, among other things, "enact ordinances, approve
resolutions and appropriate funds for the general welfare of the municipality and its inhabitants
pursuant to Section 16 of th(e) Code." These include:
(1) Approving ordinances and passing resolutions to protect the environment and
impose appropriate penalties for acts which endanger the environment, such as
dynamite fishing and other forms of destructive fishing, illegal logging and smuggling of
logs, smuggling of natural resources products and of endangered species of flora and
fauna, slash and burn farming, and such other activities which result in pollution,
acceleration of eutrophication of rivers and lakes, or of ecological imbalance; [Section
447 (1)(vi)]
(2) Prescribing reasonable limits and restraints on the use of property within the
jurisdiction of the municipality, adopting a comprehensive land use plan for the
municipality, reclassifying land within the jurisdiction of the city, subject to the pertinent
provisions of this Code, enacting integrated zoning ordinances in consonance with the
approved comprehensive land use plan, subject to existing laws, rules and regulations;
establishing fire limits or zones, particularly in populous centers; and regulating the
construction, repair or modification of buildings within said fire limits or zones in
accordance with the provisions of this Code; [Section 447 (2)(vi-ix)]
(3) Approving ordinances which shall ensure the efficient and effective delivery of the
basic services and facilities as provided for under Section 17 of this Code, and in
addition to said services and facilities, …providing for the establishment, maintenance,
protection, and conservation of communal forests and watersheds, tree parks,
greenbelts, mangroves, and other similar forest development projects …and, subject to
existing laws, establishing and providing for the maintenance, repair and operation of an
efficient waterworks system to supply water for the inhabitants and purifying the source
of the water supply; regulating the construction, maintenance, repair and use of
hydrants, pumps, cisterns and reservoirs; protecting the purity and quantity of the water
supply of the municipality and, for this purpose, extending the coverage of appropriate
ordinances over all territory within the drainage area of said water supply and within one
hundred (100) meters of the reservoir, conduit, canal, aqueduct, pumping station, or
watershed used in connection with the water service; and regulating the consumption,
use or wastage of water." [Section 447 (5)(i) & (vii)]
Under the Local Government Code, therefore, two requisites must be met before a national
project that affects the environmental and ecological balance of local communities can be
implemented: prior consultation with the affected local communities, and prior approval of the
project by the appropriate sanggunian. Absent either of these mandatory requirements, the
project’s implementation is illegal.155 (Emphasis added.)
Based on the above, therefore, prior consultations and prior approval are required by law to have
been conducted and secured by the respondent Province. Accordingly, the information
dissemination conducted months after the ECC had already been issued was insufficient to
comply with this requirement under the Local Government Code. Had they been conducted
properly, the prior public consultation should have considered the ecological or environmental
concerns of the stakeholders and studied measures alternative to the project, to avoid or
minimize adverse environmental impact or damage. In fact, respondent Province once tried to
obtain the favorable endorsement of the Sangguniang Bayan of Malay, but this was denied by
the latter.
Moreover, DENR DAO 2003-30 provides:
5.3 Public Hearing / Consultation Requirements
For projects under Category A-1, the conduct of public hearing as part of the EIS review is
mandatory unless otherwise determined by EMB. For all other undertakings, a public hearing is
not mandatory unless specifically required by EMB.
Proponents should initiate public consultations early in order to ensure that environmentally
relevant concerns of stakeholders are taken into consideration in the EIA study and the
formulation of the management plan. All public consultations and public hearings conducted
during the EIA process are to be documented. The public hearing/consultation Process report
shall be validated by the EMB/EMB RD and shall constitute part of the records of the EIA
process. (Emphasis supplied.)
In essence, the above-quoted rule shows that in cases requiring public consultations, the same
should be initiated early so that concerns of stakeholders could be taken into consideration in the
EIA study. In this case, respondent Province had already filed its ECC application before it met
with the local government units of Malay and Caticlan.
The claim of respondent DENR-EMB RVI is that no permits and/or clearances from National
Government Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum
Circular No. 2007-08. However, we still find that the LGC requirements of consultation and
approval apply in this case. This is because a Memorandum Circular cannot prevail over the
Local Government Code, which is a statute and which enjoys greater weight under our hierarchy
of laws.
Subsequent to the information campaign of respondent Province, the Municipality of Malay and
the Liga ng mga Barangay-Malay Chapter still opposed the project. Thus, when respondent
Province commenced the implementation project, it violated Section 27 of the LGC, which clearly
enunciates that "[no] project or program shall be implemented by government authorities unless
the consultations mentioned in Sections 2(c) and 26 hereof are complied with, and prior approval
of the sanggunian concerned is obtained."
The lack of prior public consultation and approval is not corrected by the subsequent
endorsement of the reclamation project by the Sangguniang Barangay of Caticlan on February
13, 2012, and the Sangguniang Bayan of the Municipality of Malay on February 28, 2012, which
were both undoubtedly achieved at the urging and insistence of respondent Province. As we
have established above, the respective resolutions issued by the LGUs concerned did not render
this petition moot and academic.
It is clear that both petitioner and respondent Province are interested in the promotion of tourism
in Boracay and the protection of the environment, lest they kill the proverbial hen that lays the
golden egg. At the beginning of this decision, we mentioned that there are common goals of
national significance that are very apparent from both the petitioner’s and the respondents’
respective pleadings and memoranda.
The parties are evidently in accord in seeking to uphold the mandate found in Article II,
Declaration of Principles and State Policies, of the 1987 Constitution, which we quote below:
SECTION 16. The State shall protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature.
xxxx
SECTION 20. The State recognizes the indispensable role of the private sector, encourages
private enterprise, and provides incentives to needed investments.
The protection of the environment in accordance with the aforesaid constitutional mandate is the
aim, among others, of Presidential Decree No. 1586, "Establishing an Environmental Impact
Statement System, Including Other Environmental Management Related Measures and For
Other Purposes," which declared in its first Section that it is "the policy of the State to attain and
maintain a rational and orderly balance between socio-economic growth and environmental
protection."
The parties undoubtedly too agree as to the importance of promoting tourism, pursuant to
Section 2 of Republic Act No. 9593, or "The Tourism Act of 2009," which reads:
SECTION 2. Declaration of Policy. – The State declares tourism as an indispensable element of
the national economy and an industry of national interest and importance, which must be
harnessed as an engine of socioeconomic growth and cultural affirmation to generate
investment, foreign exchange and employment, and to continue to mold an enhanced sense of
national pride for all Filipinos. (Emphasis ours.)
The primordial role of local government units under the Constitution and the Local Government
Code of 1991 in the subject matter of this case is also unquestionable. The Local Government
Code of 1991 (Republic Act No. 7160) pertinently provides:
Section 2. Declaration of Policy. - (a) It is hereby declared the policy of the State that the
territorial and political subdivisions of the State shall enjoy genuine and meaningful local
autonomy to enable them to attain their fullest development as self-reliant communities and
make them more effective partners in the attainment of national goals. Toward this end, the
State shall provide for a more responsive and accountable local government structure instituted
through a system of decentralization whereby local government units shall be given more
powers, authority, responsibilities, and resources. The process of decentralization shall proceed
from the national government to the local government units. 156 (Emphases ours.)
As shown by the above provisions of our laws and rules, the speedy and smooth resolution of
these issues would benefit all the parties. Thus, respondent Province’s cooperation with
respondent DENR-EMB RVI in the Court-mandated review of the proper classification and
environmental impact of the reclamation project is of utmost importance.
WHEREFORE, premises considered, the petition is hereby PARTIALLY
GRANTED.1âwphi1 The TEPO issued by this Court is hereby converted into a writ of continuing
mandamus specifically as follows:
1. Respondent Department of Environment and Natural Resources-Environmental
Management Bureau Regional Office VI shall revisit and review the following matters:
a. its classification of the reclamation project as a single instead of a co-located
project;
b. its approval of respondent Province’s classification of the project as a mere
expansion of the existing jetty port in Caticlan, instead of classifying it as a new
project; and
c. the impact of the reclamation project to the environment based on new,
updated, and comprehensive studies, which should forthwith be ordered by
respondent DENR-EMB RVI.
2. Respondent Province of Aklan shall perform the following:
a. fully cooperate with respondent DENR-EMB RVI in its review of the
reclamation project proposal and submit to the latter the appropriate report and
study; and
b. secure approvals from local government units and hold proper consultations
with non-governmental organizations and other stakeholders and sectors
concerned as required by Section 27 in relation to Section 26 of the Local
Government Code.
3. Respondent Philippine Reclamation Authority shall closely monitor the submission by
respondent Province of the requirements to be issued by respondent DENR-EMB RVI in
 connection to the environmental concerns raised by petitioner, and shall coordinate with
respondent Province in modifying the MOA, if necessary, based on the findings of
respondent DENR-EMB RVI.
4. The petitioner Boracay Foundation, Inc. and the respondents The Province of Aklan,
represented by Governor Carlito S. Marquez, The Philippine Reclamation Authority, and
The DENR-EMB (Region VI) are mandated to submit their respective reports to this
Court regarding their compliance with the requirements set forth in this Decision no later
than three (3) months from the date of promulgation of this Decision.
5. In the meantime, the respondents, their concerned contractor/s, and/or their agents,
representatives or persons acting in their place or stead, shall immediately cease and
desist from continuing the implementation of the project covered by ECC-R6-1003-096-
7100 until further orders from this Court. For this purpose, the respondents shall report
within five (5) days to this Court the status of the project as of their receipt of this
Decision, copy furnished the petitioner.
This Decision is immediately executory.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
G.R. No. 223076, September 13, 2016
PILAR CAÑEDA BRAGA, PETER TIU LAVINA, ANTONIO H. VERGARA, BENJIE T. BADAL,
DIOSDADO ANGELO A. MAHIPUS, AND SAMAL CITY RESORT OWNERS ASSOCIATION,
INC. (SCROA), Petitioners, v. HON. JOSEPH EMILIO A. ABAYA, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS,
DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS (DOTC), PRE-
QUALIFICATION, BIDS AND AWARDS COMMITTEE (PBAC) AND PHILIPPINE PORTS
AUTHORITY (PPA), Respondents.
DECISION
BRION, J.:
This is an Urgent Petition for a Writ of Continuing Mandamus and/or Writ of Kalikasan with a
prayer for the issuance of a temporary environmental protection order (TEPO). The petition is
directed against the Department of Transportation and Communications (DOTC) and the
Philippine Ports Authority's (PPA) modernization project: the Davao Sasa Wharf (the project), a
30-year concession to develop, operate, and manage the port under the Public-Private
Partnership (PPP) scheme.
The project is allegedly being carried out without the necessary Environmental Compliance
Certificate (ECC) or Environmental Impact Statements required under Presidential Decree No.
(P.D.) 15861 and P.D. 1151.2 The project also allegedly failed to conduct local consultation and
to secure prior sanggunian approval as required by the Local Government Code.3chanrobleslaw
The Facts
The Port of Davao is a seaport located in Mindanao. It is compose of several ports, all within the
gulf of Davao, but its base port is the Sasa Wharf located at Barangay Sasa, Davao City.
In 2011, the Sasa Wharf was pegged for privatization under the PPP scheme.
In 2012, the PPA commissioned a feasibility study (PPA study) on the current condition of the
Sasa Wharf and its potential new targets in volume increase expansion. The study, which was
completed in 2012, was conducted by Science & Vision For Technology, Inc.
The PPA study estimated that the modernization project would cost an estimated 3.5 Billion
pesos for the purchase of new equipment and the installation of new facilities. 4chanrobleslaw
However, the DOTC commissioned another firm, Hamburg port Consultants, to conduct a
second feasibility study (DOTC study) which was concluded in 2013. The DOTC study has a
projected cost of 18 billion pesos and requires the expansion of Sasa Wharf by 27.9
hectares.5chanrobleslaw
The DOTC study served as one of the primary considerations for current Sasa Wharf expansion
project.
On December 21, 2014, the Regional Development Council for Region XI (the Council)
endorsed the project through Resolution No. 118 subject to the following conditions that must
be met before its implementation:6
1. The DOTC shall immediately secure the acquisition of 6.4 hectares of right of way, per
recommendation of the National Economic and Development Authority - Investment
Coordination Committee (NEDA-ICC);
2. The DOTC shall ensure that appropriate compensation is paid to the owners of the
properties to be acquired as additional right of way;
3. The DOTC shall ensure the proper relocation/resettlement of the informal settlers
affected by the project; and cralawlawlibrary
4. The DOTC shall ensure the project will also benefit the port users and the people of
Davao by providing better, more affordable service, and generating sustainable
employment opportunities.7
On April 10, 2015, the DOTC published an invitation to pre-qualify and bid for the
Project.8chanrobleslaw

On March 15, 2016, the petitioners - all stakeholders from Davao City and Samal, Davao del
Norte - filed this Urgent Petition for a Writ of Continuing Mandamus and/or Writ of Kalikasan.
The Petition
The petitioners allege: (1) that the DOTC issued the notice of public bidding despite
noncompliance with Resolution No. 118; (2) that the DOTC did not conduct prior consultation
and public hearings nor secure the approval of the sanggunian concerned as required under
Sections 26 and 27 of the LGC; (3) that the Davao City sanggunian had passed a resolution
objecting to the project for its noncompliance with the LGC; and (4) that the DOTC has not yet
obtained an Environmental Compliance Certificate (ECC) as required under P.D. 1586.
They argue that the DOTC's implementation of the project - one that as a significant impact on
the environment - without preparing an Environmental Impact Statement, securing an ECC, or
consulting the affected stakeholders, violates their constitutional right to a healthy and balanced
ecology.
The petitioners seek to restrain the implementation of the Project - including its bidding and
award - until the respondents secure an ECC and comply with the LGC.
The Counter-arguments
The respondents, through the Office of the Solicitor General (OSG), invoke the prematurity of the
petition. They argue that the Project is still in the bidding process; thus, there is still no proponent
to implement it.
The proponent — not the respondents — has the duty to initiate the Environmental Impact
Assessment (EIA) process and to apply for the issuance of the ECC. 9 Until the bidding process
is concluded, the EIA process cannot be undertaken and it would be premature to impute
noncompliance with the Environmental Impact Statement System. 10chanrobleslaw
Moreover, consultation with the stakeholders and the local government is premature and
speculative at this point because the proponent has not yet identified the actual details of the
project's implementation. Again, compliance with the consultation requirements of the LGC
remains premature pending the award of the contract.
They further argue that the allegations do not warrant the issuance of a writ
of kalikasan because the petitioners failed to prove the threat of environmental damage of such
magnitude as to prejudice the life, health, or property of inhabitants in two or more cities or
provinces.11chanrobleslaw
Our Ruling
The petition is premature.
To better understand our judgment, we must first delve into the relevant laws and their
progression over time.
On June 6, 1977, President Ferdinand Marcos enacted P.D. 1151, the Philippine Environmental
Policy. It required all agencies and instrumentalities of the national government, including
government-owned or -controlled corporations (GOCCs), as well as private corporations, firms,
and entities to prepare a detailed Environmental Impact Statement (EIS) for every project or
undertaking that significantly affects the quality of the environment.12chanrobleslaw
A year later on June 11, 1978, President Marcos issued P.D. 1586 which expounded on P.D.
1151 to institutionalized a more comprehensive EIS System. 13 It introduced the ECC, a
certificate issued by the President his representative) to environmentally critical projects that
have sufficient safeguards to protect and preserve the environment. It also penalized th who
violate the Environmental Impact System, its implementing rules, or the conditions of their
ECC.14chanrobleslaw
P.D. 1586 tasked the National Environmental Protection Council (the Council) to issue its
implementing rules and regulations (IRR). Environmental Management Bureau (EMB), a bureau
under the Department of Environment and Natural Resources (DENR), absorbed these powers
later on after the council was abolished.15chanrobleslaw
In 1991, Congress enacted the LGC which promoted public participation by requiring national
government agencies to consult stakeholders before undertaking programs with significant
ecological impact.
In 1996, President Fidel V. Ramos mandated the continuous Strengthening of DENR's
Environmental Impact Assessment Capability.16 He also required project proponents to conduct
the environmental impact study and the feasibility study of proposed projects simultaneously in
order to maximize the use of resources.17chanrobleslaw
In an effort to further rationalize the EIS System and streamline the CC application process,
President Gloria Macapagal-Arroyo directed the DENR Secretary to issue new guidelines in
2002.18chanrobleslaw
Consequently, the DENR issued Administrative Order (DAO) No. 2003-30, the current IRR for
the EIS System.
Impact Assessment and the EIS System
Environmental Impact Assessment (EIA) is the process of evaluating and predicting the likely
impacts - including cumulative impacts - of an undertaking on the environment.19 Its goal is to
prevent or mitigate potential harm to the environment and to protect the welfare of the affected
community. To this end, the process requires proponents to truthfully and responsibly disclose
all relevant information on the project through the EIS. This facilitates meaningful and informed
public participation that ensures the project's social acceptability to the community.
The following are the key operating principles of the EIS System:ChanRoblesVirtualawlibrary
 a. The EIS System is concerned primarily with assessing the direct and indirect
impacts of a project on the biophysical and human environment and ensuring
that these impacts are addressed by appropriate environmental protection and
enhancement measures.
b. The EIS System aids proponents in incorporating environmental considerations
in planning their projects as well as in determining the environment's impact on
their project.
c. Project proponents are responsible for determining and disclosing all
relevant information necessary for a methodical assessment of the
environmental impacts of their projects;
d. The review of the EIS by EMB shall be guided by three general criteria: (1) that
environmental considerations are integrated into the overall project planning, (2)
that the assessment is technically sound and proposed environmental mitigation
measures are effective, and (3) that, social acceptability is based on informed
public participation;
e. Effective regulatory review of the EIS depends largely on timely, full, and
accurate disclosure of relevant information by project proponents and
other stakeholders in the EIA process;
f. The social acceptability of a project is a result of meaningful public participation,
which shall be assessed as part of the Environmental Compliance Certificate
(ECC) application, based on concerns related to the project's environmental
impacts;
g. The timelines prescribed by this Order, within which an Environmental
Compliance Certificate must be issued, or denied, apply only to processes and
actions within the Environmental Management Bureau's (EMB) control and do
not include actions or activities that are the responsibility of the proponent. 20
Projects or undertakings that pose a potential significant impact to the environment are required
to undergo impact assessment in order to secure ECCs. 21 The proponent initiates the application
process by filing a comprehensive EIS with the EMB. The EIS should at least have the
following:ChanRoblesVirtualawlibrary
a. EIS Executive Summary;
b. Project Description;
c. Matrix of the scoping agreement identifying critical issues and concerns, as
validated by EMB;
d. Baseline environmental conditions focusing on the sectors (and resources) most
significantly affected by the proposed action;
e. Impact assessment focused on significant environmental impacts (in relation to
project construction/commissioning, operation and decommissioning), taking
into account cumulative impacts;
f. Environmental Risk Assessment if determined by EMB as necessary during
scoping;
g. Environmental Management Program/Plan;
h. Supporting documents; including technical/socio-economic data
used/generated; certificate of zoning viability and municipal land use plan; and
proof of consultation with stakeholders;
i. Proposals for Environmental Monitoring and Guarantee Funds including
justification of amount, when required;
j. Accountability statement of EIA consultants and the project proponent;
and cralawlawlibrary
k. Other clearances and documents that may be determined and agreed upon
during scoping.22
The EIS contains a detailed project description of the nature, configuration, the raw
materials/natural resources to be used, production system, waste generation and control,
timelines, and all other related activities of the proposed project.23 It also includes an
Environmental Management Plan (EMP) detailing the proponent's preventive, mitigating,
compensatory, and contingent measures to enhance the project's positive impacts and minimize
ecological risks.24chanrobleslaw
Projects with potentially significant negative environmental impacts are further required to
conduct public consultations so that the environmental concerns of stakeholders are addressed
in formulating the EMP.25cralawredchanrobleslaw
The impact assessment concludes with EMB's approval (in the form of an ECC) or rejection (in
the form of a denial letter).26 The ECC signifies that the proposed project will not cause
significant negative impact on the environment based on the proponent's representation. It also
certifies that the proponent has complied with the EIS System and has committed to implement
its approved EMP. Accordingly, the ECC contains the specific measures and conditions that the
proponent must undertake to mitigate the identified environmental impacts.
The duty to comply with the EIS System rests on the proponent.
The Sasa Wharf Modernization Project has the potential to significantly affect the quality of the
environment, putting it within the purview of the EIS System. However, (1) who is responsible for
preparing and filing the EIS and (2) when does this duty arise?
P.D. 1151 and P.D. 1586 requires all agencies and instrumentalities of national government,
including GOCCs, and private corporations, firms, and entities to file the EIS for every proposed
project or undertaking that significantly affects the quality of the environment. 27 Section 4 of P.D.
1151 reads:ChanRoblesVirtualawlibrary
Section 4. Environmental Impact Statements. Pursuant to the above enunciated policies and
goals, all agencies and instrumentalities of the national government, including
government-owned or -controlled corporations, as well as private corporations, firms, and
entities shall prepare, file, and include in every action, project, or undertaking which
significantly affects the quality of the environment, a detailed statement on:
chanRoblesvirtualLawlibrary
(a) the environmental impact of the proposed action, project or undertaking;
(b) any adverse environmental effect which cannot be avoided should the proposal be
implemented;
(c) alternative to the proposed action;
(d) a determination that the short-term uses of the resources of the environment are
consistent with the maintenance and enhancement of the long-term productivity of the
same; and
(e) whenever a proposal involve the use of depletable or 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.28chanroblesvirtuallawlibrary
On the other hand, P.D. 1586 states:ChanRoblesVirtualawlibrary
Section 2. Environmental Impact Statement System. There is hereby established an
Environmental Impact Statement System founded and based on the environmental impact
statement required, under Section 4 of Presidential Decree No. 1151, of all agencies and
instrumentalities of the national government, including government-owned or controlled
corporations, as well as private corporations, firms and entities, for every proposed project and
undertaking which significantly affect the quality of the environment.29chanroblesvirtuallawlibrary
These provisions demonstrate the expansive scope of the EIS System. Unfortunately, they are
also ambiguous when it comes to identifying with particularity the responsible party in multilateral
and collaborative projects.
The IRR of the EIS System simply designates the responsible party as the proponent. Ordinarily,
the proponent is easy to identify - it is the natural or juridical person intending to implement the
project.30But who ane the proponents in PPP Projects which are a collaborative effort between
the government and the private sector?
Republic Act No. 695731 as amended by R.A. 7718, commonly known as the Build-Operate-
Transfer (BOT) Law, identifies the proponent in a PPP project as "the private sector
entity which shall have contractual responsibility for the project"32 Accordingly, there is yet no
project proponent responsible for the EIS and the ECC until the bidding process has concluded
and the contract has been awarded.
Considering that the Project is still in the bidding stage, the petition or continuing mandamus to
compel the respondents to submit an EIS and secure an ECC is premature. It is
also misplaced because the public respondents DO NOT have the duty to submit the EIS or
secure an ECC.
The LGC requires the lead agency to conduct local consultation and secure the approval of the
concerned sanggunian prior to the implementation of the project.
The issuance of the ECC does not exempt the project from ompliance with other relevant laws.
The LGC, in particular, requires the government agency authorizing the project to conduct local
consultation and kecure prior consent for ecologically impactful
projects:ChanRoblesVirtualawlibrary
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 nonrenewable resources, loss
of crop land, rangeland, or forest cover, and extinction of animal or plant species, to consult
with the local government units, nongovernmental organizations, and other sectors
concerned and explain the goals and objectives of the project or program, its impact upon the
people and the community in terms of environmental or ecological balance, and the measures
that will be undertaken to prevent or minimize the adverse effects thereof.
Section 27. Prior Consultations Required. - No project or program shall be
implemented by government authorities unless the consultations mentioned in Sections 2 (c)
and 26 hereof are complied with, and prior approval of the sanggunian concerned is
obtained: Provided, That occupants in areas where such projects are to be implemented shall
not be evicted unless appropriate relocation sites have been provided, in accordance with the
provisions of the Constitution.33chanroblesvirtuallawlibrary
The duty to consult the concerned local government units and the stakeholders belongs to the
national government agency or GOCC authorizing or involved in the planning and
implementation of the project - not the private sector proponent. In this case, this refers to the
DOTC.
The LGC does not prohibit the agency from acting through a medium such as the project
proponent.34In fact, the required consultation under the LGC may overlap with the consultation
prescribed under the EIS System. Both are intended to measure a project's social acceptability
and secure the community's approval before the project's implementation.
However, the agency is responsible for ensuring that: (1) the concerned LGUs and stakeholders
have been thoroughly and truthfully informed of the objectives of the program and its ecological
impact on the community; so that (2) the community, through their sanggunian, can intelligently
give their approval to socially acceptable projects and reject the unacceptable ones. These
requirements must be complied with befor the project is implemented.
But when does implementation begin?
The BOT Law defines the proponent as the private sector entity with the contractual
responsibility over the project.35 The contract to a project is executed between the concerned
agency and the winning bidder within seven (7) days from the latter's receipt of the notice from
the agency that all conditions stated in the Notice of Award have been complied
with.36chanrobleslaw
Upon the signing of the contract, the winning bidder becomes the project proponent. Within
another 7 days from the date of approval or signing of the contract by the head of the Agency,
the agency will isjsue a "Notice to Commence Implementation" to the proponent.37 Interestingly
enough, even this does not signal the start of the implementation stage.
Upon receipt of the Notice, the proponent is required to prepare detailed engineering designs
and plans based on the prescribed minimum design and performance standards and
specifications in the bid/tender documents. 38 The agency shall review the detailed engineering
designs in terms of its compliance with the prescribed standards and specification the designs
are found acceptable, the agency shall approve them incorporation in the contract to be signed
by the proponent and the agency.39chanrobleslaw
The proponent shall construct the project based on the design and performance standards and
specifications in the detailed engineering design. 40 The signing of the finalized contract
incorporating the detailed engineering design is the reckoning point when implementation can
begin. This is the start of the Construction Stage.
The Sasa Wharf Modernization Project has not yet reached the construction stage. The bidding
process had not even been concluded when ithe present petition was filed. On this account, the
petition is also premature for the purpose of compelling the respondents to comply with Sections
26 and 27 of the LGC.
The purpose of a writ of continuing mandamus is to compel the espondent to perform his duties
under the law. This remedy is available When any government agency, instrumentality, or
officer unlawfully neglects a Specific legal duty in connection with the enforcement or
violation of an environmental law, rule, or regulation, or a right therein, unlawfully excludes
another from the use or enjoyment of such right and :here is no other plain, speedy and
adequate remedy in the ordinary course of law.41chanrobleslaw
The writ cannot be resorted to when the respondent is not the person obliged to perform the duty
under the law (as is the case under the EIS System) or when the period for the respondent to
perform its legal duty has not yet expired (as is. the case with the consultation requirements of
the LGC). Accordingly, we cannot issue a writ of continuing mandamus.
The petition does not warrant a writ of Kalikasan.
Likewise, the Court cannot issue a writ of kalikasan based on the petition. The writ is a remedy
to anyone whose constitutional right to a balanced and healthful ecology is violated or
threatened with violation by an lawful act or omission. However, the violation must
involve environmental damage of such magnitude as to prejudice the life, health, or property
of inhabitants in two or more cities or provinces in order to arrant the issuance of the
writ.42chanrobleslaw
The petitioners allege that the respondents have begun the process of transgressing their right
to health and a balanced ecology through the bidding process.43 They cite The Competitiveness
of Global Port-Cities: Synthesis Report44 to identify the four major negative impacts related to
port operations: 1) environmental impacts, 2) land use impacts, 3) traffic impacts, and 4) other
impacts. The synthesis report claims that most of these impacts affect the surrounding localities.
They claim that the environmental impacts of port operations "are within the field of air
emissions, water quality, soil, waste, biodiversity, noise and other impacts. These environmental
impacts can have consequences for the health of the population of the port city, especially the
poorer parts of port cities."45chanrobleslaw
The petitioners also cite Managing Impacts of Development in Coastal Zone, a joint publication
of the DENR, the Bureau of Fisheries Aquatic Resources (BFAR), the Department of the Interior
and Government (DILG), and the DENR Coastal Resource Management Project (CRMP) that
identified the effects of coastal construction and reclam including ports and offshore
moorings.46 The petition alleges that:ChanRoblesVirtualawlibrary
26. According to Managing Impacts, "Coastal construction has been the most
widespread of activities affecting coastal resources" since "Any construction that
modifies the shoreline will invariably change currents, wave action, tidal
fluctuations, and the transport of sediments along the coast" while "Coastal
construction that restricts the circulation of coastal water bodies can also
degrade water quali[t]y and coastal ecosystems." 47
However, these allegations are insufficient to warrant a writ of kalikasan.
First, the petition failed to identify the particular threats from the Project itself. All it does is cite
the negative impacts of operating a port inside a city based on the Synthesis Report. However,
these impacts already exist because the Port of Davao has been operating since 1900. The
Project is not for the creation of a new port but the modernization of an existing one. At best, the
allegations in support of the application for the writ of kalikasan are hazy and speculative.
Second, the joint publication is titled Managing Impacts of Development in the Coastal Zone for
a reason; it identifies the potential environmental impacts and proposes mitigation measures to
protest the environment. The petition is misleading because it only identified the isks but
neglected to mention the existence and availability of mitigating measures. 48chanrobleslaw
Moreover, this Court does not have the technical competence to ssess the Project, identify the
environmental threats, and weigh the sufficiency or insufficiency of any proposed mitigation
measures. This specialized competence is lodged in the DENR, who acts through the EMB In
the EIA process. As we have already established, the application of the EIS System is premature
until a proponent is selected.

Further, we fail to see an environmental risk that threatens to prejudice the inhabitants of two or
more cities or municipalities if we do not estrain the conduct of the bidding process. The bidding
process is not equivalent to the implementation of the project. The bidding process itself 'annot
conceivably cause any environmental damage.

Finally, it is premature to conclude that the respondents violated the conditions of Resolution No.
118 issued by the Regional Development Council of Region XI. Notably, the Resolution requires
compliance before the implementation of the project. Again, the project has not yet reached the
implementation stage.

WHEREFORE, we DENY the petition for its prematurity and lack of merit.

SO ORDERED.