I.

INTRODUCTION: THE RIGHTS-BASED APPROACH TO

ENVIRONMENTAL JUSTICE

Basic Approaches and Principles of Environmental Protection

While the gradual, yet ominous and potentially cataclysmic

degradation of our environment is undeniable, the concept of environmental
protection is in of itself a quagmire of grand proportions. Unlike more
traditionally defined human rights (and other categories of rights as well
such as civil rights), the question of whether environmental rights should be
enforced or should not be enforced depends on where the assessor’s
paradigm is plotted along a spectrum of competing interests. In the example
of genocide, for instance, assuming the elements of this international crime
have been established, there is no grey area with which one can question
whether rights have been violated. Either it is genocide or it is not. The
subject of genocide is sensitive and immediately strikes the nerve of human
dignity because of the crime’s gruesome and inhumane nature. The
protection of the environment, on the other hand, does not boast of such
clear polar ends of interpretation. One can argue that less environmental
protection maximizes the exploitation of resources for the benefit of the
people’s consumption.1 This traditional dichotomy of economic interests
versus environmental interests has suffused the discourse on environmental
protection, as well as other areas such as economic and social development.

Given these commonly competing interests, several schools of

thought have come about in seeking to address this perpetual dilemma. The
seemingly boundless and multifaceted nature of environmental rights has
spawned different basic approaches to its enforcement.2 Taken together, an
amorphous pool of theoretical and practical legal principles materialized,
giving way for an evolving environmental legal movement recognized all
over the world, but to varying degrees producing often contradictory
stances.3

The first is the anthropocentric approach to environmental protection.

Under this approach, the goal of preserving the environment is to satisfy
1
See Hohmann, Harald, Precautionary Legal Duties and Principles of Modern International Environmental
Law, pp. 1-2, Graham & Troutman/Martinus Nijhoff (1994).
2
Id., at 2-3.
3
See id., e.g. the anthropocentric approach calls for the preservation of nature to the extent that it may
continue to satisfy the needs of man, whereas the sustainability principle claims that nature must also be
maintained for its own sake and sustainable indefinitely spanning future generations.
health, aesthetic and economic interests of man.4 Man’s primary interest is
that there are enough resources to exploit for consumption. Thus, at the
breaking point of realizing the limit of resources, man is forced to consider
preserving nature to the extent that it could provide for enough resources to
last his lifetime.5 The glaring repercussion of this approach is that the
subsistence of our ecosystems would be endangered.6 In all likelihood, the
rate of exploitation far exceeds the rate of protection, where indifference to
protection is perpetuated by the presence of sufficient resources for the time
being. Accordingly, along the abovementioned spectrum of competing
interests, the anthropocentric approach would lie on the end favoring
economic interests.

Whether based on scientific evidence or mere observation,

environmental destruction has slowly come to the attention of us all.
Prerogatives to slow down the effects of an anthropocentric approach
resulted in more ecologically-favorable approaches to environmental
protection.7 The discipline of ecology is based on the interconnectivity and
interdependence between organisms and the elements of the environment.8
An appreciation of this link between all elements of living things and nature
would naturally instill a sense of urgency to protect our ecosystems.
Without such protection, the endangerment of the ecosystems will correlate
to the endangerment of humankind. Conversely, its protection would benefit
man and his ability to survive and sustain in the world. An extreme
manifestation of ecological protection is an ecocentric approach, the obvious
antithesis of anthropocentricity where economic and environmental interests
are at odds. Under the ecocentric approach, plants and animals themselves
have legal rights.9 The obvious trouble with strictly applying this approach
is that man may be impeded from exploiting natural resources for his
survival. As with the anthropocentric approach, heavily favoring one
interest over another (in this case environment over economy) could produce
absurd results for social and economic development.10

4
Id., at 2-3 citing Cf. Bosselman, KJ 1985, p.352 et seq., and 1986 p. 8 et seq.; G. Frank, DVBI, 1989, p.
696 et seq.
5
See id.
6
See id.
7
See id., at 2.
8
Id.
9
Id., at 3 citing Cf. Stone, 45 Southern California L. Review 450 (1972) et seq.
10
See id., at 2-3.
 Thus, the more nuanced principle of sustainability came into fruition.
The sustainability principle seeks to strike a delicate balance between the
competing interests of economic exploitation (and thus economic
development) and environmental protection. It espouses a system in which
man can exploit resources for his benefit without destroying the environment
in such a way that future generations cannot meet their own needs.11 In other
words, sustainability seeks to protect posterity, or inter-generational equity.12
In terms of renewable resources, sustainability requires that they be
exploited at a rate that allows for its continuing usage and availability in the
future without decline.13 For non-renewable resources, sustainability
requires that they be used as efficiently as possible.14 In sum, the aim of this
principle is to demand optimal management of environmental resources.15
Taking the main elements of other approaches and disciplines such as
ecology, sustainability appears to be the ideal principle upon which legal
regimes protecting the environment should be based.

Implementing sustainability, however, is a challenge entirely different

from that of having its tenets accepted internationally. There is a lingering
question on how to develop environmental laws, both internationally and
domestically, which properly reflect the balanced approach to environmental
protection. Several factors make this development extremely difficult. For
instance, certain jurisdictions have different economic needs than others.
The mere difference in degree of economic interests alone can hamper
political will to protect the environment. Moreover, such nuances also
challenge the development of international environmental norms where
consensus among jurisdictions with different economic and environmental
needs would be difficult to conceive. Yet, despite these potential issues, the
push for the enactment and enforcement of environmental laws comes with
the hope that they become authoritative through international norms or
influential through best domestic practices.

Environmental Law and the Emergence of the Rights-based Approach

The approaches to and principles of environmental protection must

necessarily be subsumed in environmental law. Thus, environmental law is
11
Id., at 2.
12
Id., at 1.
13
Id., at 2.
14
Id.
15
Id.
associated with two main approaches: the traditional approach, and the
modern resource-economical and ecological approach.16

There are three main purposes for environmental law under the
traditional approach:

1. protecting the safety and health of human beings from

harm and the risk of potential or impending harm;

2. assuring the general welfare of man (protection against

nuisance, fulfillment of recreational and esthetic needs,
etc.); and

3. protecting economic interests (especially in the fields of

agriculture, forestry, fish farming, energy production and
drinking water supply) from detrimental effects of
pollution.17

These purposes reflect important qualities: protecting man from

environmental harm and protecting the environment in such a way that
man’s interests (e.g. economic, esthetic) are not impeded. The qualities
reveal shades of the anthropocentric approach.

The more progressive paradigm is the modern resource-economical

and ecological approach. Under this approach, the economic and aesthetic
interests of man are protected, but also tempered with the protection of the
environment through sustainable use and optimal management of
resources.18 Quite obviously, this approach reflects the sustainability
principle. In this regard, the survival of future generations is vital,
demanding that environmental protection be done in such a manner that
guarantees sustainable use of natural resources.19

Taking sustainability a step further, environmental law received a

boost from components of the international community. The newer
approach took into account the now recognized intersection between

16
Id., at 3-4.
17
Id., at 3.
18
Id., at 4.
19
Id.
environmental rights and human rights, which aptly reflects the
interdependent relationship of man and nature.

In 1994, Fatma Zohra Ksentini, Special Rapporteur on Human Rights

and Environment finalized a seminal report entitled “Human Rights and the
Environment” (“Ksentini Report”).20 The Ksentini Report is known for
imploring the international community to recognize a human rights approach
to solving environmental issues. It generally posits that subsumed in the
nexus between human rights and the environment are several other
disciplinal elements such as the global economy, democracy and cultural
development among others.21 All of these elements together constitute a
more comprehensive human dimension to environmental justice. In this
regard, the Ksentini Report outlined the following principles:

Part I

1. Human rights, an ecologically sound environment,

sustainable development and peace are interdependent
and indivisible.

2. All persons have the right to a secure, healthy and

ecologically sound environment. This right and other
human rights, including civil, cultural, economic,
political and social rights, are universal, interdependent
and indivisible.

3. All persons shall be free from any form of discrimination

in regard to actions and decisions that affect the
environment.

4. All persons have the right to an environment adequate to

meet equitably the needs of present generations and that
does not impair the rights of future generations to meet
equitably their needs.22

Similar to the traditional approach of environmental law, these

principles revolve around “persons”. The main difference between both
20
Fatma Zohra Ksentini, Special Rapporteur’s Final Report, U.N. Doc. E/CN.4/Sub.2/1994/9, July 6, 1994.
21
See id.
22
Ksentini Report, at 74.
approaches appears to be that the Ksentini report, now integrates the element
of sustainability with the person-oriented right to a healthy environment.23
Even more compelling is the human rights angle to the rights-based
approach. Under this approach, the right of persons to environmental
protection would possess the same degree of authority of fundamental rights
that are backed by international norms.24 The aim is that this new wave of
environmental protection would be treated with the same respect as
international norms so as to allow domestic jurisdictions to take necessary
action in protecting the environment. Human rights generally enjoy
ascendancy in law that, by its fundamental nature, cannot be restrained or
altered by states.25

Adopting the Right-based Approach

One crucial implication to the rights-based approach is the question of

who can enforce environmental rights. The language of the Ksentini report
that focuses on the right of persons lends to the suggestion that it is such
person who can bring enforce his or her right to the protection of the
environment in the same way persons can seek judicial relief for the
violation of their civil or socioeconomic rights.26 This particular aspect of
the rights-based approach is one of the more important considerations for
formulating solutions to environmental protection in the Philippines.
Accordingly, the Supreme Court adopted the rights-based approach as the
most appropriate paradigm for facilitating the administration of
environmental justice.

The 1987 Constitution bestows upon the Supreme Court of the

Philippines a peculiar form of authority. Specifically, the Supreme Court
can enact rules to enforce constitutional rights, the power of which may be
typically lodged in the legislative bodies or branches of other jurisdictions.27
The Court also determines the procedures and rules of the judiciary which
are necessary to facilitate the administration of justice, and address the
obstacles that come with certain realms of legal issues.28 The complexity of
23
See id., and Hohmann at 2-4.
24
See i.e., The Universal Declaration of Human Rights, 1948.
25
See id.
26
See Ksentini Report, at 74.
27
See Article VIII, Sec. 5, par. (5), “The Supreme Court shall have the following powers…Promulgate
rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure
in all courts…”
28
See id.
environmental laws and their enforcement require the Court to rethink its
procedures in order to facilitate the administration of environmental justice.
Of the many guiding principles in formulating such solutions, the
participation of the people in enforcing environmental rights is key. It is
with this general framework, that the Court has adopted the rights-based
approach and effectuated the Rules of Procedure for Environmental Cases.

II. SOURCES OF ENVIRONMENTAL RIGHTS

A. Introduction – The Nexus Between Human Rights and
Environmental Rights

A growing number of international instruments as well as national

constitutions, domestic legislations, and academic literature have recognized
the inextricable link between human rights and environmental rights.29 It is
significant to note that a fair amount of literature on the origins of
environmental rights documents in parallel that the “right to an adequate
environment” or what is collectively known as “environmental rights” grew
out of a human rights framework.30

The human rights movement came to fore shortly after the

international community was recovering from the aftermath of World War
II.31 In many ways, human rights emerged as new kind of periphery for
political and economic development in a period of very great uncertainty.
The atrocities committed during the 2nd World War riveted public attention
to the urgency for the community of nations to adopt an internationally-
recognized policy that would foster and protect basic human dignity, peace,

29
The United Nations Environmental Program (UNEP) has a database of environmental law instruments
that date back to 1933, this database is available at http://www.unep.org/Law/Law_instruments/index.asp.

30
Sumudu Atapattu, The Right to a Healthy Life or the Right to Die Polluted?: The Emergence of a Human
Right to a Healthy Environment Under International Law, 16 Tul. Envtl. L.J. at 66 (2002) [hereinafter
Ataputtu], available at http://ideas.repec.org/a/spr/ieaple/v8y2008i2p179-181.html, last accessed 24
January 2010. Another way of framing this theory is acknowledging the reality that signs, values, attitudes
towards human rights helped endorsed the environmental rights movement.

31
Franz Perrez, Key Questions Concerning the Human rights and Environment Debate – An Introduction,
in Human Rights and the Environment: Proceedings of a Geneva Environment Network Roundtable 4,
(2004) [hereinafter Geneva Roundtable].
respect, and tolerance. In 1948, this common aspiration of according the
highest respect for human dignity was soon crystallized by the United
Nations General Assembly in its adoption of the “Universal Declaration of
Human Rights”.32 For the first time in history, the 1948 Universal
Declaration of Human Rights sets out fundamental human rights to be
universally protected.

This milestone document includes specific human rights such as the

right to life, liberty, security of person, right against arbitrary arrest and
detention, right to property, freedom of expression, and peaceful assembly.33
The political and legal significance of this instrument is of such import that
despite its status as a mere non-binding declaration it has influenced national
constitutions, serves as the foundation for a growing number of international
and regional covenants and treaties, including national legislation, and is
recognized by many international law scholars as part of customary
international law. In fact, the declaration also served as the foundation for
two binding United Nations’ documents – the International Covenant on
Civil and Political Rights (ICCPR) and the International Covenant on
Economic, Social, and Cultural Rights (ICESC).

Paramount to environmental rights advocates is Article 25 of the

Declaration which sets out in its first paragraph, “the right to a standard of
living adequate for the health and well-being” of an individual and his
family. Although neither the Declaration nor any of is articles made specific
reference to environmental protection, the adoption of the Declaration makes
a strong case for the position that a human rights lens is a helpful way of
viewing environmental issues. This Declaration captured the critical thesis
that the enjoyment of all human rights – not only the rights to life and health
– but also other social, economic, cultural, as well as civil and political
rights, depended greatly on a sound environment.34
32
The full text of the document is available at http://www.un.org/en/documents/udhr/.
33
Id. See Articles
34
Vid Vukasovic, Human Rights and Environmental Issues in Human Rights and Scientific and
Technological Development (1990) available at
http://www.unu.edu/unupress/unupbooks/uu06he/uu06he0i.htm, last accessed 24 January 2010. A good
number of human rights instruments guarantee a human right to a healthy and safe environment, some of
these are:
 It must be noted however, that at that point in environmental legal
history, the right to a safe and adequate environment was recognized
alongside other substantive human rights such as the right to life, the right to
health, the right to adequate housing, the right to water, the right to food, the
right to culture, the right to participate in public life, and the right to freedom
of speech.35 An independent right to a healthy environment had yet to
emerge and a deliberate plan by environmental rights advocates to sketch out
a massive grassroots political campaign for environmental rights was in the
offing. The brief inattention given to environment issues after the 2nd World
War (with the pre-occupation of most world leaders and policymakers on
human rights) would soon be short-lived as environmental rights advocates
pressed on with the environment agenda more deliberately in the 1960s with
the publication of Rachel Carson’s seminal work, Silent Spring,36 on the
ecologically-unsound pattern of usage by man of pesticides. Carson’s work
not only created more awareness regarding the debilitating effects of
environmentally hazardous practices, it also gave more legitimacy to the
troubled crusade of the environmental rights movement.

The first signs of an impending environmental crisis had already been

felt by the time of the extremely tumultuous decade of the 70s.37 As a
response to this clarion call for more precautionary measures in dealing with
the environment, the United Nations convened the first major international

a. Universal Declaration of Human Rights: Articles 22, 25, and 27.

b. ICESC: Articles 1, 6, 7, 11, 12, 13, and 15.
c. Convention on the Elimination of All Forms of Discrimination Against Women: Articles 11
and 14.
d. Convention on the Elimination of All Forms of Racial Discrimination: Articles 2 and 5.
e. Convention on the Rights of the Child: Articles 24 and 27.
f. ILO Indigenous and Tribal Peoples Convention (No. 169): Article 7.

35
See generally The National Human Rights Consultation – Engaging in the Debate (2009), available at
http://www.hrlrc.org.au/content/topics/national-human-rights-consultation/a-human-rights-act-for-all-
australians/ [last accessed on 5 February 2010].

36
Carson, R., Fawcett Publications, Inc. (1972). No less than U.S. Supreme Court Associate Justice
William O. Douglas commended Carson’s work as “the most important chronicle of this century for the
human race.”
37
The Vietnam War exacted a huge toll on the economies of the world (as the US suspended the
convertibility of the dollar to gold in 1971), two massive oil shocks caused LDC trade deficits to balloon,
cracks in the welfare system first began to show in the West, and mass marketing in cities, along with the
break-up of the traditional family structure, produced widespread alienation. Protests were rife – against
the North/South divide, against the indifference and cruelty of the ‘Establishment’, against the
conservatism of previous decades.
environmental conference in Stockholm, Sweden38 which gave rise to the
Stockholm Declaration of 1972, known world-over as the first international
document which recognized the right to a healthy environment. Principle 1
of the Stockholm Declaration linked environmental protection to human
rights, stating:

Man has the fundamental right to freedom, equality and

adequate conditions of life, in an environment of a
quality that permits a life of dignity and well being, and
he bears a solemn responsibility to protect and improve
the environment for present and future generations.

Two decades after the adoption of the Stockholm Declaration, a

second major international environmental conference was held in Rio de
Janeiro, Brazil,39 which focused on strategies to reverse the effects of
environmental degradation alongside efforts to promote international and
national sustainable development. A key result area of the conference was
the adoption of the Rio Declaration of 1992 which identifies 27 principles
concerning a number of issues related to the environment – environmental
protection, eradication of poverty, precautionary principle, polluter-pays
principle, right to development, right to information, and right to public
participation in environmental decision-making processes. Principle 1 of the
Rio Declaration states that “human beings are “at the centre of concerns for
sustainable development.” Though the statement falls short of recognizing a
healthy environment as a basic human right, it certainly points to that
direction.

B. General Sources of Environmental Rights

1. Non-binding International Sources

International documents of a non-binding nature play an important

role in all fields of international relations, and the human rights
problematique is not an exception. In many cases they can regulate
international relations in a specific field de facto, although they are not
formally binding. Besides, they often lead to a higher level of regulation, i.e.
international treaties, institutional arrangements, etc. The International
Declaration on Human Rights was followed, for instance, by the Covenants,
38
The United Nations Conference on the Human Environment, 5-16 June 1972.
39
The United Nations Conference on Environment and Development (UNCEP), 3-14 June 1992.
and similar developments occurred in other fields. From that point of view
the proposed Declaration on Human Rights and Scientific and Technological
Developments40 could be an important step towards better protection and
promotion of human rights. It seems to us that such a declaration should
contain, more or less, what has already been proposed by the group of
experts convened by the United Nations in Geneva in September 1975, but
that an additional effort should be made to link it more closely to
development and the environment.

Naturally, one must always have in mind the other side of the coin
More so-called soft law does not automatically mean more regulation and
further progress in the field. In some cases, it leads to a proliferation of
documents with very little or no importance at all, and it could even hinder
the process of legal regulation. In other cases, however, including the fields
of science, technology, the environment, and some other cognate domains,
non-binding norms can be, if functionally well designed, very important and
almost universally accepted and applied in such a way as to influence human
rights beneficially. Good examples of such norms are formally non-binding
ecological standards41 which are accepted by all or most interested states and
other subjects of international law because it is in their interest to do so. The
sanction for those who do not apply the standard becomes "functional." That
means that the mere fact of not applying them can cause impairment of the
environment, loss of profit, health problems, or even loss of life, lessening of
political prestige, etc. If adequately set, they could represent an optimal
mode of behaviour. In that way, although formally non-binding, they
contribute to the protection of the environment, having a directly or
indirectly positive impact on the protection and promotion of human rights.

There are a number of other international instruments that specifically

refer to environmental human rights but are not legally binding on
Philippines because they are draft texts, or they are not intended to be legally
binding on parties, or they are conventions that Philippines not is a party to.
Some of these instruments are environmental instruments that note human
rights linkages and some are human rights instruments that note the
importance of environmental rights. Although they are not binding on
Philippines they are evidence of a strong global recognition of the

40
Citation to follow
41
Citation to follow
importance of environmental rights and they indicate the path that
Philippines can follow.

As noted above, the Stockholm Declaration was the first international

instrument that specifically recognised the indivisible link between the
environment and human rights. It states at Principle 1:

“Man has the fundamental right to freedom, equality and

adequate conditions of life, in an environment of a quality that
permits a life of dignity and well-being, and he bears a solemn
responsibility to protect and improve the environment for
present and future generations.”

Similarly the 1992 Declaration on Environment and Development9, or

‘Rio Declaration,’ recognises the right of humans to a healthy and
productive life in harmony with nature.

The most comprehensive of all the international texts on

environmental rights is the 1994 Draft Principles on Human Rights and the
Environment, which was derived from the Ksentini Report mentioned
above.42 It contains a number of articles which outline the importance of
environmental rights in the human rights context. The document was drafted
by a group of international experts on human rights and environment
protection on behalf of the UN Special Rapporteur for Human Rights and
the Environment. It was never formalized as an international instrument and
is not binding. Some of the key articles in the Draft Principles state:

1 • “Human rights, an ecologically sound environment,

sustainable development and peace are interdependent and
indivisible.” (Article 1)

2 • “All persons have the right to a secure, healthy and

ecologically sound environment. This right and other human
rights, including civil, cultural, economic, political and social

42
Draft Principles On Human Rights And The Environment, E/CN.4/Sub.2/1994/9, Annex I (1994)
<http://www1.umn.edu/humanrts/instree/1994-dec.htm> on 19 May 2009
 rights, are universal, interdependent and indivisible.” (Article
2)

3 • “All persons have the right to an environment adequate to

meet equitably the needs of present generations and that does
not impair the rights of future generations to meet equitably
their needs.” (Article 4)

The Draft Principles highlight the indivisibility of human rights and

environmental rights. A clean healthy environment is integral to the
enjoyment of many other human rights such as the right to life, the right to
health and food, the right to adequate housing etc. The Draft Principles are
often quoted by human rights experts and international human rights bodies
as a model text of environmental rights protection.

As can be seen from the above statements there is considerable

support at the international level of the importance and indivisibility of
environmental rights within human rights protections. It is not a new concept
nor a radical concept. This recognition continues to grow through many
international bodies and provides a strong foundation for Philippines to
include environmental rights within human rights protections.

2. Environmental Rights within Domestic Human Rights

Instruments

The protection of environmental rights in a human rights context at a

domestic level is not a new concept. Many countries around the world
provide some protection of environmental rights within their human rights
charters.

Earthjustice summarised the constitutional recognition of

environmental rights in a submission to the UN Commission on Human
Rights in March 2005:43

43
Earthjustice, Environmental Rights Report on Human Rights and the Environment (2005) 37
<http://www.earthjustice.org/our_work/issues/international/human_rights/> at 19 May 2009.
 “Numerous constitutions of the nations of the world guarantee a
right to a clean and healthy environment or a related right. Of
the approximately 193 countries of the world, there are now
117 whose national constitutions mention the protection of the
environment or natural resources. One hundred and nine of
them recognise the right to a clean and healthy environment
and/or the state’s obligation to prevent environmental harm. Of
these, 56 constitutions explicitly recognise the right to a clean
and healthy environment, and 97 constitutions make it the duty
of the national government to prevent harm to the environment.
Fifty-six constitutions recognize a responsibility of citizens or
residents to protect the environment, while 14 prohibit the use
of property in a manner that harms the environment or
encourage land use planning to prevent such harm. Twenty
constitutions explicitly make those who harm the environment
liable for compensation and/or remediation of the harm, or
establish a right to compensation for those suffering
environmental injury. Sixteen constitutions provide an explicit
right to information concerning the health of the environment or
activities that may affect the environment.”

For example South Africa has specifically protected environmental

rights in its Constitution:44

“Everyone has the right (a) to an environment that is not

harmful to their health or well being; and (b) to have the
environment protected, for the benefit of present and future
generations, through reasonable and other legislative measures
that (i) prevent pollution and degradation; (ii) promote
conservation; and (iii) secure ecologically sustainable
development and use of natural resources while promoting
justifiable economic and social development.”

44
Commonwealth Constitution, Chapter 2 section 24.
 In 2005, France amended its constitution to include environmental
provisions, known as the Environment Charter. The Charter contains 10
articles covering rights and responsibilities of its citizens in relation to the
Environment. As it is incorporated into the Constitution it is legally binding
and gives environmental rights and responsibilities the same status as other
rights such as the right to life and universal suffrage. Article 1 of the Charter
states: 45

“Everyone has the right to live in a balanced environment

which shows due respect for health.”

Even small developing countries such as East Timor have provided

protection of environmental rights in their constitutions. Section 61 of the
East Timor Constitution states:46

“1. Everyone has the right to a humane, healthy, and

ecologically balanced environment and the duty to protect it
and improve it for the benefit of the future generations.

2. The State shall recognise the need to preserve and rationalise

natural resources.

3. The State should promote actions aimed at protecting the

environment and safeguarding the sustainable development of
the economy.’’

C. The Right to a Balanced and Healthful Ecology in the Philippines

- A Fundamental and Enforceable Right

1. The 1987 Constitution and Jurisprudence on Environmental

Rights

A leading commentator on environmental law posits that there is

diversity of approaches to structuring environmental rights in domestic

45
Constitution of 4 October 1958, accessed at http://www.assemblee-nationale.fr/english/8ab.asp.
46
Constitution of the Democratic Republic of Timor-Leste August 2001 accessed at http://www.timor-
leste.gov.tl/constitution/constitution.htm
constitutions: (1) as a policy statement, (2) as a procedural right or duty or
(3) as a substantive right.47

The 1987 Philippine Constitution contains a basic design for

environmental rights protection and policy. The environmental provisions
of the 1987 Constitution are located within a larger legal framework of
constitutionally-guaranteed rights. This legal framework primarily
48
establishes first principles by which government ought to exercise its
powers in relation to environmental rights and provides for institutional
arrangements and structures49 for authoritative governance.

The developmental construct of environmental rights under the 1987

Constitution is framed in such a way that these rights are shaped as state
policies and do not form part of the bill of rights.50 Article II, Section 1651 of
the 1987 Constitution is the flagship provision for environmental rights and
is complemented by Article II, Section 1552 which provides the state policy
on the right to health. This uproot from Article III of the Bill of Rights
however, does not in anyway make it less of a human right compared to
other freedoms protected by the 1987 Constitution because it also re-
emerges as part of, and is interdependent of other fundamental rights as
carved out (directly and indirectly) in other provisions of the 1987 Charter –
the state policies on peace and order and general welfare,53 on social
justice,54 on personal dignity and human rights;55 the article on social justice
47
James R. May and Erin Daly, Vindicating Fundamental Environmental Rights Worldwide, 11 Oregon
Review of International Law 373-(2009), available at http://ssrn.com/abstract=1479849 [last accessed on
25 January 2010].

48
Article II. Declaration of Principles and State Policies.
49
Article VI. Legislative Department defines the scope and limitations on the exercise of police power;
Article VII. Executive Department lays; Article VIII. Judicial Department.
50
See James R. May, Constituting Fundamental Environmental Rights Worldwide, 23 Pace Environmental
Law Review 173 (2005-2006), Appendix B. Professor May created two lists of countries whose
constitutions contained some reference to environmental protection – Appendix A listed down countries
whose constitutions treated environmental rights as fundamental rights; on the other hand, Appendix B
contained a list of countries whose constitutions referred to environmental rights as policy statements with
51
§ 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.
52
§ 15. The state shall protect and promote the right to health of the people and instill health consciousness
among them.
53
Article II, Section 5.
54
Article II, Section 10.
55
Article II, Section 11. The state values the dignity of every human person and guarantees full respect for
human rights.
and human rights56 are treasured concepts in Philippine constitutionalism
since the enactment of the 1935 Constitution. Furthermore, fleshed out in
greater detail, the right to life under Article III, Section 157 does not only
pertain to the protection of the right to be alive, but also means the right to a
good life.58 The exchange between Commissioners Bennagen and Nolledo
during the deliberations of the 1986 Constitutional Convention also supports
the general idea that environmental rights are included in the complete
concept of human rights.59

As much as the right to a balanced and healthful ecology is ordained

in our constitution, there is also the question of enforceability. Many legal
scholars who correlate fundamental environmental rights with enforceability
either through administrative agencies or courts of law have managed to
demonstrate that constitutionalizing commitments without the muscle of
enforcement do not translate to real improvements in environmental
conditions.60 Viewed as a whole, “enforcement” is seen as a barometer of
how confident people are about environmental justice. Even as nations
around the world have increasingly incorporated the principle of
environmental protection in their fundamental laws, many of their courts
have not found the occasion to interpret these textually-demonstrable
constitutional provisions.

In 1994, the Supreme Court of the Philippines found the occasion to

clarify and recast the notion of fundamental right to a healthy environment
when minors, represented by their parents, filed a complaint to compel the
Secretary of Environment and Natural Resources (DENR) to cancel all
existing Timber License Agreements (TLA) and prevent the Secretary from
issuing or renewing licenses. The landmark case of Oposa v Factoran, Jr. 61
offered an angle of vision for viewing environmental rights as
constitutionally-guaranteed and fundamental human rights which are

56
Article XIII. Social Justice and Human Rights.
57
Article III, Section 1. No person shall be deprived of life, liberty or property without due process of law,
nor shall any person be denied the equal protection of the laws.
58
Bernas, J.,S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary (2003).
59
IV RECORD 688. In response to the question of Commissioner Bennagen if the state should make a
conscious effort to enhance social, economic, and political conditions in relation to human rights,
Commissioner Nolledo replied, “….when we talk of human rights, we talk of the whole gamut of human
rights.”
60
Constitutionalising, vindicating environmental rights
61
224 SCRA 792 (1993).
enforceable in a court of law.62 Through then Mr. Chief Justice Hilario
Davide, the Court pronounced that the right to a balanced and healthful
ecology was not just an empty incantation found in the constitution:

While the right to a balanced and healthful ecology is to be

found under the Declaration of Principles and State Policies and
not under the Bill of Rights, it does not follow that it is less
important than any of the civil and political rights enumerated
in the latter. Such a right belongs to a different category of
rights altogether for it concerns nothing less than self-
preservation and self-perpetuation, aptly and fittingly stressed
by the petitioners. The advancement of which may even be
said to predate all governments and constitutions.

The Court went further and even maintained that environmental rights
“are enforceable notwithstanding whether they are constitutionally expressed
because of their inception before humankind”:63

As a matter of fact, these basic rights need not even be written

in the Constitution for they are assumed to exist from the
inception of humankind. If they are now explicitly mentioned in
the fundamental charter, it is because of the well-founded fear
of its framers that unless the rights to a balanced and healthful
ecology and to health are mandated as state policies by the
Constitution itself, thereby highlighting their continuing
importance and imposing upon the state a solemn obligation to
preserve the first and protect and advance the second, the day
would not be too far when all else would be lost not only for the
present generation, but also for those to come - generations
which stand to inherit nothing but parched earth incapable of
sustaining life.

1 Oposa is one of the best known jurisprudential triumphs in the history

of the Philippine High Court and not long after this case was decided, the
High Court found itself continually securing for current and future
generations the wealth of the environment, among others — Laguna Lake
Development Authority (LLDA) v. C.A., et. al.,64 Henares, et. al. v. Land

62
Id.
63
Id. at 187. See also May and Daly supra note __ at 398.
Transportation and Franchising Regulatory Board (LTFRB),65 and Social
Justice Society, et. al. v. Atienza, Jr.66
2
The key insights pronounced by the High Court in Oposa provided
powerful arguments for recognizing that not only were there fundamental
environmental rights in the Philippine Constitution, but more importantly,
ethical obligations were due to the entire community of life. Oposa was a
cause cèlébre for the entire environmental rights community because it
declared that a correlative duty to protect the environment could be exacted
on each and every individual:67

The right to a balanced and healthful ecology carries with it the

correlative duty to refrain from impairing the environment.
During the debates on this right in one of the plenary sessions
of the 1986 Constitutional Commission, the following exchange
transpired between Commissioner Wilfrido Villacorta and
Commissioner Adolfo Azcuna who sponsored the section in
question:

"MR.VILLACORTA:

Does this section mandate the State to provide sanctions

against all forms of pollution ? air, water and noise
pollution?

MR. AZCUNA:
64
G.R. No. 110120, March 16, 1994. Balancing between the responsibility of the city government to take
care of its garbage and the right of the people living near the dumpsite to a pollution-free environment, the
Supreme Court ruled that the right to health is a constitutionally enshrined right over which no impairment
can be made. The Supreme Court further said that the Philippines is a party to international instruments
which recognizes the right to health as a fundamental right.
65
G.R. No. 158290, October 23, 2006. This petition focuses on one fundamental legal right of petitioners,
their right to clean air. While the Supreme Court recognized the right of the petitioner, it however, ruled
that the lack of legislation on the matter served as a restriction on the prayer to grant mandamus.
66
GR No. 156052, March 7, 2007. The petitioners filed with the High Court an original action for
mandamus praying to compel Manila Mayor Atienza to enforce Ordinance No. 8027 which reclassifies
certain portions of Pandacan and Sta. Ana from industrial to commercial and directs businesses not falling
under the following classifications to “cease and desist from their operations” or relocate to another area.
Among the businesses affected were the oil terminals of Caltex, Petron, and Shell. The Supreme Court
granted the petition and ordered the immediate removal of the terminals of the said oil companies. The
Court held that “there is nothing that legally hinders [Mayor Atienza] from enforcing Ordinance No. 8027
67
 Yes, Madam President. The right to healthful (sic)
environment necessarily carries with it the correlative duty
of not impairing the same and, therefore, sanctions may be
provided for impairment of environmental balance." 12 The
said right implies, among many other things, the judicious
management and conservation of the country's forests.
Without such forests, the ecological or environmental
balance would be irreversibly disrupted.

Perhaps the second most eponymous decision of the Supreme Court of

the Philippines after Oposa, that inspired countless of people working in the
field of environmental law to enforce the right to a balanced and healthful
ecology is the case of Concerned Residents of Manila Bay v.
MetropolitanWaterworks and Sewerage System (MWSS), Local Water
Utilities Administration (LWUA), The Department of Environment and
NaturalResources (DENR), et al.68 The case upheld a request for a multi-
faceted injunctive relief to prevent pollution discharges from choking Manila
Bay and exacting compliance on various government agencies to clean and
protect it for future generations.69 The Court wrote:70

Even assuming the absence of a categorical legal provision

specifically prodding petitioners to clean up the bay, they and
the men and women representing them cannot escape their
obligation to future generations of Filipinos to keep the waters
of the Manila Bay clean and clear as humanly as possible.
Anything less would be a betrayal of the trust reposed in them.

Mr. Justice Presbitero J. Velasco, Jr., the ponente of the decision,

explains that the Manila Bay case was the first in a series of decisions that
affirms the constitutional environmental rights of citizens to push
government agencies that skirt their obligation to provide for institutional

68
G.R. Nos. 171947-48, December 18, 2008.

69
Id. at ____. See also May and Daly, supra note ____ at 399.
70
Id.
environmental protection arrangements.71 Opportunity for reform frequently
beckons in the wake of a disaster and the decision produced a lot of pressure
points for these agencies to clean up Manila Bay. Justice Velasco wrote:72

Those who have read the Court’s disposition in Manila Bay

would at once notice the all-encompassing thrust of the ruling.
Consider: It ordered any and all government agencies whose
official functions and statutory duties have a connective
bearing, however remote, to the cleaning and rehabilitation of
the Manila Bay to spare no effort, at the implied risk of
contempt of court, to perform these functions and duties, so as
to achieve the desired purpose. It tried to address all possible
causes, direct or contributory, of the pollution and decay of the
bay. In essence, the Court’s directives revolved around, and
may be broken into, three main areas: (1) prevention, control
and protection; (2) prosecution and sanctions; and (3)
rehabilitation.

2. Other Sources of Environmental Rights in the Philippines

Apart from the Constitution, domestic laws, domestic jurisprudence

and writings of legal experts, the structure of the Philippine legal system
considers international laws, international customs, general principles of
international laws, international jurisprudence and writings of legal
luminaries as sources of laws.73 In fact, under Article II, Section 2 of the
1987 Philippine Constitution, otherwise known as incorporation clause, it
is explicitly stated that:

“The Philippines renounces war as an instrument of national

policy, adopts the generally accepted principles of
international law as part of the law of the land, and adheres

71
See generally, Presbitero J. Velasco, Jr., Manila Bay: A Daunting Challenge in Environmental
Rehabilitation and Protection. Delivered on the occasion of the 3rd Annual Symposium on The Confluence
of Human Rights and the Environment, 20 February 2009, University of Oregon.
72
Id. at 5-7.
73
There are scant Supreme Court decisions dealing on the issue of applying customary laws in the
Philippines, however, none of them dealt with the right to life.
 to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations.”

Apart from the Constitution, the State, in several domestic laws, is

given the responsibility of protecting the individuals and the environment
against violations by non-State actors including violations committed by
transnational corporations.

The Department of Environment and Natural Resources is the lead

national agency to look into environmental concerns of the country. In
addition, special governmental agencies have been created to look into
specific areas of concern like the Pollution Adjudication Board, the Laguna
Lake Development Authority, the Land Transportation and Franchising
Regulatory Board, the National Pollution Commission and the like. Further,
the local government units have the power to issue ordinances for the
protection of the environment and regulate the projects and activities of
these non-State actors (transnational corporations).

First, the grant of license to these transnational corporations lies with

the State. In some Supreme Court decisions, licenses and/or registrations
were withheld in instances where it was found that the corporation has
violated the environment and has failed in protecting and caring for the
same. (Ysmael vs. Deputy Executive Secretary, G.R. No. 79538, October 18,
1990)

Second, the State has the power to issue restraining orders and/or
injunctions for non-State actors found violating the environmental code. In
addition, closure of these corporations and payment of damages may also be
ordered. (Pollution Adjudication Board, vs. Court of Appeals, G.R. No.
93891, March 11, 1991; Technology Developers. Inc. vs. Court of Appeals,
G.R. No. 94759, January 21, 1991; Republic vs. Marcopper, G.R. 137174,
July 10, 2000; Laguna Lake Development Authority vs. Court of Appeals,
G.R. Nos. 120865-71, December 7, 1995)

Third, heads or officers of these corporations may likewise be found

criminally liable for negligence in their operation and violations of
environmental laws. (Mustang Lumber, Inc. vs. Court of Appeals, G.R. No.
104988, June 18, 1996; Loney vs. People, G.R. No. 152644, February 10,
2006).74

Fourth, the local government units may issue ordinances protecting

the environment which may have the effect of regulating non-State actors. In
some Supreme Court decisions, the constitutionality of these ordinances in
so far as they were made in furtherance of the right to a healthful ecology
was sustained. (Taño vs. Socrates, G.R. No. 110249, August 21, 1997;
Social Justice Society, Et Al. vs. Atienza, Jr., GR No. 156052, March 7,
2007)

Fifth, the legislature can enact laws to regulate projects and activities
of these industries in order to protect the environment and promote the
health. Further, the legislature can enact laws protecting the environment.
(Province of Rizal vs. Executive Secretary, G.R. No. 129546, December 13,
2005). In fact the Philippines has enacted legislation imposing human rights
obligations on non-State actors to protect the rights of life and health against
environmental harms arising from various activities. Some of these laws
include – Revised Forestry Code of the Philippines, the National Integrated
Protected Areas System Act of 1992, the Ecological Solid Waste
Management Act of 200, the Philippine Mining Act of 2005, Biofuels Act
of 2006, etc…75

Lastly, efforts towards education of the people on the area of

environment is being conducted by the state agencies as well as non-
governmental organizations.

III. THEORIES SUPPORTING ENVIRONMENTAL RIGHTS

74
In the case of Mustang Lumber, the Supreme Court boldly stated that, “The Government must not tire in
its vigilance to protect the environment by prosecuting without fear or favor any person who dares to
violate our laws for the utilization and protection of our forests.”
75
The role of Philippine jurisprudence has already been dealt with in the previous section, however, just to
add, the judiciary is tasked to interpret laws and in doing so, takes into consideration the principles
enunciated in the Constitution including the right to life and health. It can declare laws and ordinances as
unconstitutional. Further, the judiciary has the power to punish violators of our laws and demand reparation
for damages. (Macasiano vs. Diokno, G.R. No. 97764, August 10, 1992; Republic vs. Marcopper, G.R.
137174, July 10, 2000;)
 [c/o James/Camille]

IV. BEST PRACTICES IN OTHER JURISDICTIONS

[c/o Camille/Abi]

V. FORUM ON ENVIRONMENTAL JUSTICE

[c/o Camille]

VI. HIGHLIGHTS OF THE RULE OF PROCEDURE FOR

ENVIRONMENTAL CASES

The Proposed Rule of Procedure for Environmental Cases (“Proposed

Rule”) aims to achieve the following objectives:

(a) To protect and advance the constitutional right of the

people to health and to a balanced and healthful ecology;
(b) To provide a simplified, speedy, and inexpensive procedure
for increased access to environmental justice, for the
implementation of the precautionary principle, and for the
enforcement of rights and duties recognized under the Constitution
and environmental laws;
(c) To ensure the just and equitable administration of remedies
and redress for violations of environmental laws; and
(d) To enable the courts to effectively and efficiently manage
and monitor environmental cases.76

In meeting these objectives, the TWG formulated the Proposed Rule

according to specific guidelines: (1) the rules must reflect the constitutional
and jurisprudential concepts of liberalized standing requirements for
plaintiffs in environmental suits; (2) the rules will facilitate access to green
courts by providing for litigation tools such as citizen’s suits; (3) the rules
should shape procedural elements of environmental litigation to implement
the basic tenets of the precautionary principle; and (4) the rules must provide

76
Rule 1, Section 5, Proposed Rules.
other innovations deemed necessary for the proper disposition of
environmental justice.

The following elements of the Proposed Rule highlight the unique

nuances created for the accomplishment of the abovementioned goals.

A. LIBERALIZED LOCUS STANDI AND CITIZEN’S SUIT

The Proposed Rule reflects a more liberalized standing requirement in

environmental cases as already laid down by the Supreme Court in Oposa v.
Factoran, Jr.77 The Court in Oposa ruled that representatives suing in behalf
of succeeding generations is based on an “intergenerational responsibility
insofar as the right to a balanced and healthful ecology is concerned.”78
Moreover, the precautionary principle, as discussed in further detail below,
supports the idea of intergenerational representation in order to achieve true
ecological protection for the long-term, as opposed to mere economic
sustainability.79

Hence, Rule 2, Section 6 of the Proposed Rule states:

Who may file – Any person or group of persons, by themselves or

through their duly-authorized representatives, or in representation
of others, including minors, or generations yet unborn, the
government, people’s and non-government organizations and
public interest groups, accredited or recognized by, or registered
with any relevant government agency, indigenous peoples and
local communities, may file a civil action involving the
enforcement or violation of an environmental law.
(Emphasis added).

The language of this section demonstrates two important points. First,

it enumerates broad categories of persons allowed to file an environmental
suit lending to the concept that it is the rights of the people compromised in
such cases.80 Second, the section specifically recognizes persons’ standing
77
224 SCRA 792 (1993).
78
Id. at 802-3. See also Henares Jr. v. Land Transportation Franchising and Regulatory Board, 505
SCRA 104 (2006).
79
See Kiss, Alexandre, The Rights and Interests of Future Generations and the Precautionary Principle,
published in The Precautionary Principle and International Law, edited by David Freestone and Ellen Hey,
Kluwer International Law (1999).
80
See e.g., Harding, Andrew, Practical Human Rights, NGOs and the Environment in Malaysia, as
published in Human Rights Approaches to Environmental Protection, edited by Boyle, Alan E., and
in bringing environmental suits as representatives for future generations yet
unborn. This addition not only concretizes the landmark principle of
intergenerational responsibility as established in Oposa, but also accounts
for the ominous, long-lasting, and amorphous nature of environmental harm,
which cannot easily be traced from a fine point of origin and time. Thus,
plaintiffs are not faced with the difficulty of sustaining an environmental
action due to procedural obstacles, such as an inability to link with scientific
certainty a defendant’s alleged act to the environmental harm complained
therein.

Standing is often a barrier in many potential environmental suits

because it requires the plaintiff to show injury to himself. Breaches in
environmental laws however, more often than not, do not give direct injury
to a human person but rather destructs nature itself which could eventually
harm someone. In other cases where violations of environmental laws do
bring direct harm to humans, the harm is so small that it might not be worth
the resources to bring suit. The emergence of class actions, and citizens suits
however have given environmental claims a better chance of being heard in
a court of law.

Class actions help make environmental claims reach a court of law by

providing a way for a few individuals to bring an action in behalf of many
others who are unable to bring individual actions.81 This way, it is cost-
effective for plaintiffs to bring an action as they pool their resources
together. It therefore becomes worth it to bring an environmental claim and
defendants do not get away with their wrongdoings. Nonviable claims,
which environmental violations often are, now become possible.

Class actions however are limited and also has its drawbacks. Its
limitations include numerosity, commonality, typicality, and adequacy.82
(Federal rules of civil procedure rule 23). There are also other issues
associated with class actions such as giving adequate notice to all class
members. These issues are time-consuming and thus increases the cost of
litigation. Also, the violation of the defendant in a class action suit is
potentially magnified for the jury to scrutinize more seriously as compared

Anderson, Michael R., Clarendon Press (1996), for a case study on the role of NGOs in Malaysia enforcing
environmental rights through a human rights approach.
81
R. STEWART & J. KRIER, ENVIRONMENTAL LAW AND POLICY 316-24
(2d ed. 1978).
82
Federal Rules of Civil Procedure Rule 23
to when a single plaintiff brings the suit based on the little harm the violation
has caused him.

In other countries where class actions are more advanced, the negative
traits of class actions in the United States are done away with. In Brazil for
example, class actions, called collective actions, are not that much more
expensive to bring than individual suits and the “risks to defendants, as well
as the verdicts, are proportional to the actual damage suffered by each class
member multiplied by the number of members,” as Brazil does not follow a
jury system.83

The issue of adequate representation is also properly addressed in

Brazilian courts. In Brazil, whenever a class action is filed, the Attorney
General is always notified to see to it that the class is adequately represented
throughout the case as he plays his role as an overseer.84

Another problem often encountered with class actions is the res

judicata effect. Class actions bind all members of the class and thus their
rights are affected by the outcome of the case. The United States however
provide for notice to class members so that they could opt-out of the case
and bring their own individual suit instead. When the action prays for some
sort of injunctive relief however, they will be affected by the judgment
nonetheless.

Citizen suits on the other hand allow private citizens to bring an action
to sanction violators of the law. Specially in the environmental context, it
has been used as a tool to bypass bureaucratic and political constraints that
delay sanctions to violators or delay enforcement of environmental rights.85
Regulatory agencies who are supposed to enforce environmental rights often
lack the personnel and are bombarded with red tape and thus they could not
function properly.86 With the rise of citizen suits, citizens can play the role of
a watch guard and bring actions to court as if they were the attorney general.

83
Antonio Gidi, (CLASS ACTIONS IN BRAZIL--A MODEL FOR CIVIL LAW
COUNTRIES, 51 Am. J. Comp. L. 311, 321 (2003). )
84
Id at 399.
85
See Barry Boyer and Errol Meidinger, PRIVATIZING REGULATORY
ENFORCEMENT: A PRELIMINARY ASSESSMENT OF CITIZEN SUITS
UNDER FEDERAL ENVIRONMENTAL LAWS 34 Buff. L. Rev. 833, 836
(1985)
86
Id.
 Unlike in class suits where the class members must show harm to their
person, citizen suits do not have this requirement.87 Citizen suits are also
different from class actions because they are not brought for a class of
persons. Other individuals could join in as intervenors which constitute
additional parties. In a class suit, the individual members of the class are
considered as one party in the suit. Thus, the issue of res judicata which
often is a problem in a class suit where class members do not have a real
ability to opt out is not present in a citizen suit.

Citizen suits have been criticized however for violating a number of

doctrines in the United States. The issue of standing which requires injury
in fact for example is said to be ran over by the citizen suit. Many argue
however that there is indeed an injury from procedural violationsl In
addition, the Supreme Court of the United States has hinted that the
separation of powers doctrine is breached whenever Congress allows for
such in its statutes because it is the role of the executive branch to enforce
the law, not Congress – by including a citizen suit provision, Congress has a
tool to make sure agencies enforce laws.88

Strategic Litigation Against Public Participation (SLAPP) are actions

brought by parties who want to prevent or deter suits adverse to them.
SLAPP actions are famous in 1st amendment cases where one’s right to
speech threatened by a libel claim. SLAPP cases are also famous in
environmental disputes were small individual plaintiffs go against corporate
giants who are in violation of the environmental laws. These defendants
would often file actions against the plaintiffs to deter them from filing the
suit against the defendant:

“A second attorney involved in many toxic tort actions stated

that SLAPP suits "scare victims who have been exposed to
toxic materials to death" and that his "clients are absolutely
freaked out by the cases." [FN246] Litigation under the
Racketeering Influenced and Corrupt Organizations Act
(RICO) is another form of countersuit to which defense counsel

87
See Barry Boyer and Errol Meidinger, PRIVATIZING REGULATORY
ENFORCEMENT: A PRELIMINARY ASSESSMENT OF CITIZEN SUITS
UNDER FEDERAL ENVIRONMENTAL LAWS 34 Buff. L. Rev. 833, 836
(1985)
88
See id; 34 Colum. J. Envtl. L. 1
 resort, though less frequently. [FN247]” 33 Wm. & Mary L.
Rev. 429

While citizen suits and SLAPP suits are still gaining ground as legal
concepts in the Philippines, their recent inclusion in some key legislation
shows a growing recognition of their efficiency and usefulness in
environmental enforcement, prosecution, and adjudication. Some of these
laws include:

- Sec. 41 of the Clean Air Act (R.A. No. 8749)

SECTION 41. Citizen Suits. — For purposes of enforcing

the provisions of this Act or its implementing rules and
regulations, any citizen may file an appropriate civil, criminal
or administrative action in the proper courts against:

(a) Any person who violates or fails to comply with

the provisions of this Act or its implementing rules and
regulations; or

(b) The Department or other implementing agencies

with respect to orders, rules and regulations issued
inconsistent with this Act; and/or

(c) Any public officer who willfully or grossly

neglects the performance of an act specifically enjoined
as a duty by this Act or its implementing rules and
regulations; or abuses his authority in the performance of
his duty; or, in any manner, improperly performs his
duties under this Act or its implementing rules and
regulations: Provided, however, That no suit can be filed
until after thirty-day (30) notice has been given to the
public officer and the alleged violator concerned and no
appropriate action has been taken thereon.

The court shall exempt such action from the payment of

filing fees, except fees for actions not capable of
pecuniary estimations, and shall, likewise, upon prima
 facie showing of the non-enforcement or violation
complained of, exempt the plaintiff from the filing of an
injunction bond for the issuance of a preliminary
injunction.

Within thirty (30) days, the court shall make a

determination if the complaint herein is malicious and/or
baseless and shall accordingly dismiss the action and
award attorney's fees and damages.

- Sec. 52 of the Ecological Solid Waste Management Act (R.A. No.

9003)

SECTION 52. Citizen Suits. — For purposes of

enforcing the provisions of this Act or its implementing
rules and regulations, any citizen may file an appropriate
civil, criminal or administrative action in the proper
courts/bodies against:

(a) Any person who violates or fails to comply with

the provisions of this Act or its implementing rules and
regulations; or

(b) The Department or other implementing agencies

with respect to orders, rules and regulations issued
inconsistent with this Act; and/or

(c) Any public officer who willfully or grossly

neglects the performance of an act specifically enjoined
as a duty by this Act or its implementing rules and
regulations; or abuses his authority in the performance of
his duty; or, in any manner, improperly performs his
duties under this Act or its implementing rules and
regulations: Provided, however, That no suit can be filed
until after thirty-day (30) notice has been given to the
public officer and the alleged violator concerned and no
appropriate action has been taken thereon.
 The Court shall exempt such action from the payment of
filing fees and shall, likewise, upon prima facie showing
of the non-enforcement or violation complained of,
exempt the plaintiff from the filing of an injunction bond
for the issuance of a preliminary injunction.

In the event that the citizen should prevail, the Court

shall award reasonable attorney’s fees, moral damages
and litigation costs as appropriate.

- Sec. 43 of the Clean Air Act

SECTION 43. Suits and Strategic Legal Actions

Against Public Participation and the Enforcement of this
Act. — Where a suit is brought against a person who
filed an action as provided in Section 41 of this Act, or
against any person, institution or government agency that
implements this Act, it shall be the duty of the
investigating prosecutor or the court, as the case may be,
to immediately make a determination not exceeding
thirty (30) days whether said legal action has been filed
to harass, vex, exert undue pressure or stifle such legal
recourses of the person complaining of or enforcing the
provisions of this Act. Upon determination thereof,
evidence warranting the same, the court shall dismiss the
case and award attorney’s fees and double damages.

This provision shall also apply and benefit public officers

who are sued for acts committed in their official capacity,
there being no grave abuse of authority, and done in the
course of enforcing this Act.

- Sec. 53 of the Ecological Solid Waste Management Act

SECTION 53. Suits and Strategic Legal Action

Against Public Participation (SLAPP) and the
 Enforcement of this Act. — Where a suit is brought
against a person who filed an action as provided in Sec.
52 of this Act, or against any person, institution or
government agency that implements this Act, it shall be
the duty of the investigating prosecutor or the Court, as
the case may be, to immediately make a determination
not exceeding thirty (30) days whether said legal action
has been filed to harass, vex, exert undue pressure or
stifle such legal recourses of the person complaining of
or enforcing the provisions of this Act. Upon
determination thereof, evidence warranting the same, the
Court shall dismiss the case and award attorney’s fees
and double damages.

This provision shall also apply and benefit public officers

who are sued for acts committed in their official capacity,
there being no grave abuse of authority, and done in the
course of enforcing this Act.

A special section was added to the Proposed Rule in order to qualify

the type of suit that could be brought. Rule 2, Section 9 provides:

Citizen’s suit – Any Filipino Citizen may file an action to enforce

rights or obligations under environmental laws. Upon the filing of
a 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. Said order
shall be published once by the plaintiffs in a newspaper of a
general circulation in the Philippines. In the alternative, the
plaintiffs may furnish copies of said order to all affected
barangays.
Persons who manifest their interest to intervene shall be joined as
co-plaintiffs to the case and shall be bound by the judgment of the
court.
 While a plaintiff may avail of a class suit under Rule 3, Section 12 of
the Revised Rules of Court,89 the Proposed Rule also contains a special
provision for a citizen’s suit in an environmental case. The TWG proposed
such a provision because of concerns on liberalizing class suits (e.g. finding
that a minimum of 20 parties satisfies the requirement for numerousness).
The TWG believed that such class suits might create the risk of groups of
persons being able to file an environmental suit without being necessarily
representative of the class they are supposed to represent. Also, giving
plaintiffs an option whether or not to be joined in the class necessarily
removes the main feature of a class suit, which is the inclusion of all the
members of a class in the case filed albeit represented only by some of the
plaintiffs who belong in the same class. Hence, under this alternative model,
while a citizen’s suit can be instituted by one person, other persons may opt
to join as a “co-plaintiff”.

Direct public participation can be instrumental in environmental

enforcement.90 A potential benefit from allowing citizen’s suits is
empowering citizens with negotiating clout against violators.91 In other
words, the citizens’ legal and practical ability to litigate allows them to
create cooperative relationships with alleged violators. This empowerment
and resulting cooperation can then supplement alternative dispute solutions,
such as the consent decree discussed further below.

Notably, a class suit in an environmental case may still be filed

notwithstanding the Proposed Rule 2, Section 9, further providing the
plaintiff with more avenues to litigate environmental claims.

The citizen suit provisions in Section 41 of Republic Act (R.A.) No.

8749 or the Clean Air Act92 and Section 52 of R.A. No. 9003 or the
89
Section 12 provides: “Class suit.—When the subject matter of the controversy is one of the common or
general interest to many persons so numerous that it is impracticable to join all as parties, a number of them
which the court finds to be sufficiently numerous and representative as to fully protect the interests of all
concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to
protect his individual interest.”
90
See Gwaltney of Smithfield Ltd. v. Chesapeake Bay Foundation Inc., 484 U.S. 49 (1987) (defining the
scope of the citizen’s suit provision in the Clear Water Act).
91
For a discussion on the important role of citizen’s suits in U.S. environmental protection, see Citizens
Suits: The Teeth in Public Participation, Adam Babich, 25 ELR 10141 (1995).
92
This provision provides:

SECTION 41. Citizen Suits. — For purposes of enforcing the provisions of this Act or
its implementing rules and regulations, any citizen may file an appropriate civil, criminal
or administrative action in the proper courts against:
Ecological Solid Waste Management Act93 focus on the violative conduct of
the polluter or regulating government agency as opposed to the specific
nature of the injury sustained. Both R.A. No. 8749 and R.A. No. 9003
require the citizen to notify the public officer and alleged violator concerned
before filing a complaint. They also prohibit citizen suits where an
appropriate action has been taken prior to the filing of a complaint.

(a) Any person who violates or fails to comply with the provisions of this Act or its
implementing rules and regulations; or

(b) The Department or other implementing agencies with respect to orders, rules and
regulations issued inconsistent with this Act; and/or

(c) Any public officer who willfully or grossly neglects the performance of an act
specifically enjoined as a duty by this Act or its implementing rules and regulations; or abuses his
authority in the performance of his duty; or, in any manner, improperly performs his duties under
this Act or its implementing rules and regulations: Provided, however, That no suit can be filed
until after thirty-day (30) notice has been given to the public officer and the alleged violator
concerned and no appropriate action has been taken thereon.

The court shall exempt such action from the payment of filing fees, except fees
for actions not capable of pecuniary estimations, and shall, likewise, upon prima facie
showing of the non-enforcement or violation complained of, exempt the plaintiff from the
filing of an injunction bond for the issuance of a preliminary injunction.

Within thirty (30) days, the court shall make a determination if the complaint
herein is malicious and/or baseless and shall accordingly dismiss the action and award
attorney's fees and damages.

93
This provision provides:

SECTION 52. Citizen Suits. — For purposes of enforcing the provisions of this Act or
its implementing rules and regulations, any citizen may file an appropriate civil, criminal
or administrative action in the proper courts/bodies against:

(d) Any person who violates or fails to comply with the provisions of this Act or its
implementing rules and regulations; or

(e) The Department or other implementing agencies with respect to orders, rules and
regulations issued inconsistent with this Act; and/or

(f) Any public officer who willfully or grossly neglects the performance of an act
specifically enjoined as a duty by this Act or its implementing rules and regulations; or abuses his
authority in the performance of his duty; or, in any manner, improperly performs his duties under
this Act or its implementing rules and regulations: Provided, however, That no suit can be filed
until after thirty-day (30) notice has been given to the public officer and the alleged violator
concerned and no appropriate action has been taken thereon.

The Court shall exempt such action from the payment of filing fees and shall,
likewise, upon prima facie showing of the non-enforcement or violation complained of,
 The general structure of these citizen suit provisions is similar to the
citizen suit provisions in U.S. environmental statutes. The U.S. Clean Air
Act of 1970, a good representation of analogous provisions in other U.S.
environmental statutes, requires potential plaintiffs to provide the violator as
well as the federal agency with jurisdiction and, in some cases, a state
agency with jurisdiction, notice before commencing a suit. The notice
requirement “preserves the government’s role as the primary enforcer of
environmental laws,” presenting federal and state government agencies the
opportunity to take enforcement action.94

The legislative history of the U.S. citizen provisions reveal that their
enactment was in the same period where “capture” theories were
predominant, suggesting that regulatory agencies “were sometimes subject
to sustained political pressure from regulated industries.”95 Regulatory
agencies were thought to be “unduly sympathetic to the interests of the
regulated industries,” because they had the resources to be heard in the
regulatory process of decision-making.96 Citizen suits, designed to close the
“resource gap between industry and public interest groups,” provided the
opportunity for oversight of the regulatory enforcement process.97 Citizen
suit provisions were intended to encourage public vigilance and to allow the
government to benefit from technical work of information gathering and
litigation by citizens.98 More importantly, the nature of the rights involved in
environmental protection justified the unprecedented power given to
citizens.99

While citizen suits appear to be a relatively new mechanism for the

enforcement of regulatory statues, the concept of shared public and private
exempt the plaintiff from the filing of an injunction bond for the issuance of a
preliminary injunction.

In the event that the citizen should prevail, the Court shall award reasonable
attorney's fees, moral damages and litigation costs as appropriate.
94
Trent A. Dougherty, Will Reisinger, and Nolan Moser, Environmental Enforcement and the Limits of
Cooperative Federalism: Will Courts Allow Citizen Suits to Pick up the Slack? 20 DUKE ENVTL. L. & POL'Y
F. 1, 12 (2010).
95
Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 MICH. L.
REV. 163, 183-184 (1992); Matthew D. Zinn, Policing Environmental Regulatory Enforcement:
Cooperation, Capture, and Citizen Suits 21 STAN. ENVTL. L.J. 81, 83 (2002).
96
Barry Boyer and Errol Meidinger, Privatizing Regulatory Enforcement: A Preliminary Assessment of
Citizen Suits under Federal Environmental Laws, 34 BUFF. L. REV. 833, 843-844 (1985).
97
Id.; Zinn, supra note at 84.
98
Dougherty, supra note at 15.
99
Id.
enforcement is rooted in the history of Anglo-American law. A water
pollution statute enacted in 1388 provided for a dual system of enforcement
at the instance of either public officials or private individuals.100 The
difference was often in the remedy sought. Public authorities were generally
interested in the punishment and deterrence of violations as well as the
imposition of fines as a result thereof, while private individuals “were
generally more interested in getting compensation for the injuries they had
suffered and in preventing future injuries.”101

That private enforcement appeared to be common through the

nineteenth century may be attributed to the absence of a developed
distinction between public and private functions. A violation of community
rules affected the entire community and its members so that it may be
reasonably inferred that the encouragement of private individuals to
prosecute wrongs increased their “investment in and commitment to the
existing order.”102 By the industrial revolution, the shift in the basis of
private enforcement appeared in numerous common informer statutes passed
in England. These statutes provided “that parties aiding in the apprehension
and conviction of violators would share in the fines collected as a result.”103
Similarly, the U.S. Supreme Court in the early decades of the last century,
referred to qui tam actions providing private enforcers with a share of
criminal fines. Private prosecution of criminal cases, without the financial
incentive of in qui tam actions, was also a practice extensively used.104 The
monopoly of the bureaucracy of public prosecution eventually took over
private prosecutions.

B. SPEEDY DISPOSITION OF CASES

C. CONSENT DECREE

There are several other nuances in the Proposed Rule on

Environmental Procedure that cater to the unique characteristics of

100
Boyer, supra note at 946-947.
101
Id. at 949.
102
Id. at 952.
103
Id. at 953.
104
Id. at 955
environmental litigation. The first is the use of the consent decree, as a
primary vehicle for resolution in the alternative of trial.

Proposed Rule 3, Section 4 states in part:

Duty of the judge - 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 court may approve the
agreement between the parties based on public interest and the
public policy to protect the environment and issue a consent decree
embodying said agreement.

The use of a consent decree is an innovative way to resolve

environmental cases. It allows for a compromise agreement between two
parties in environmental litigation over issues that would normally be
litigated in court, and other matters that may not necessarily be of issue in
court. The agreement is then subject to the approval of the court. Thus, the
judge’s involvement in the process of consent decree is vital. The judge’s
role shifts from that of an adjudicator into a mediator by fostering
cooperation between two previously adverse parties.105

The model of the United States Environmental Protection Agency

illustrates the advantages of a consent decree: (1) it encourages the parties
to come up with comprehensive, mutually-acceptable solutions to the
environmental problem, and since the agreement was arrived at voluntarily,
there is a greater possibility of actual compliance; (2) it is open to public
scrutiny; (3) it allows the parties to address issues other than those presented
to the court; and (4) it is still subject to judicial approval and can be enforced
through a court order.106

D. REMEDIAL MEASURES
A. TEMPORARY ENVIRONMENTAL PROTECTION
ORDER/ENVIRONMENTAL PROTECTION ORDER

105
See Article: The Freeway with a Heart: My Life as a Consent Decree Judge in the Century Freeway
Case, The Honorable Judge Harry Pregerson, 36 Sw. U. L. Rev. 291 (2007).
106
See Framework for Strengthening Environmental Adjudication in the Philippines, Justice Consuelo
Ynares-Santiago 52 Ateneo L.J. 744 (2008); see also e.g., U.S. v. The Boc Group, Inc., 2007 EPA Consent
LEXIS 35 (W.D.W. 2007); U.S. v. Davis, et al. 1998 EPA Consent LEXIS 80 (D.R.I. 1998);
 B. WRIT OF CONTINUING MANDAMUS

Environmental law highlights the shift in the focal-point for the

initiation of regulation from Congress to government agencies.107 Thus, a
government agency’s inaction, if any, has serious implications on the future
of environmental law. 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, to the extent that individuals, interest groups, and
corporations seek to change the nature and scope of the regulatory system,
they will rely on prod agencies themselves to take the initial steps; and this
prodding 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 performance of a
legal duty or the conduct of the tasks to which the writ pertains.
Metropolitan Manila Development Authority (MMDA) et al. v. Concerned
Residents of Manila Bay,108 introduces the writ of continuing mandamus and
cited two cases decided by the Supreme Court of India as examples of its
issuance: (1) Vineet Narain v. Union of India;109 and (2) M.C. Mehta v.
Union of India.110 The Court en banc related these two cases to continuing
mandamus as follows:

Under what other judicial discipline describes as ‘continuing mandamus’:

the Court may, under extraordinary circumstances, issue directives with
the end in view of ensuring that its decision would not be set to naught by
administrative inaction or indifference. In India, the doctrine of continuing
mandamus was used to enforce directives of the court to clean up the
length of the Ganges River from industrial and municipal pollution.111

The Supreme Court of India has interpreted its judicial power to extend to
the issuance of extraordinary remedial writs. The Indian Constitution
provides the “Supreme Court under Article 32… [with the power] to issue
107
. Eric Biber, Two Sides of the Same Coin: Judicial Review of Administrative Agency Action and Inaction,
26 VA. ENVTL. L.J. 461.
108
G.R. No. 171947-48, December 18, 2008.
109
1 SCC 226 (1998).
110
4 SCC 463 (1987).
111
MMDA v. Concerned Residents of Manila Bay, supra note 2.
writs and orders in the nature of habeas corpus, mandamus, certiorari,
prohibition, and quo warranto… for the enforcement of fundamental
rights.”112 One author explains that the Indian Constitution uses the phrase,
“in the nature of” as an “analogy to English writs.”113 Thus, “Indian courts
can issue directions, orders, and writs other than prerogative writs.”114 The
same author cited one of the Supreme Court of India’s earliest judgments to
emphasize the courts’ liberal approach to granting remedial reliefs, stating
that “[i]f the petitioner establishes a violation of his rights, the court will
issue an appropriate remedy, irrespective of what remedy has been
requested.”115

The Indian Supreme Court has also relied on Article 142 “to issue
detailed guidelines to executive agencies and private parties for ensuring the
implementation of the various environmental statutes and judicial
directions.”116 There have been numerous instances of positive directions,
such as when the Court directed a local body to make proper drainage
provisions.117 The Court’s issuance of a writ of continuing mandamus served
to monitor the implementation of its orders. It sought reports from
government agencies of its progress implementing such orders and
appointed committees to conduct “substantial empirical research and
provided valuable insights in cases that have dealt with vehicular pollution,
solid waste management and forest conservation.”118 Fact-finding
commissions, expert committees, and the involvement of amicus curiae have
further benefitted the monitoring of environmental cases.119

Vineet Narain v. Union of India was a consequence of the Central

Bureau of Investigation’s (CBI) interrogations and raids due to the arrest of
an alleged Hizbul Mujahideen official. The raids produced “the seizure of
two notebooks containing detailed accounts of vast payments made to
persons identified only by initials,” which “corresponded to the initials of
various high ranking politicians… and of high ranking bureaucrats.”120 Since
no investigations were conducted regarding the contents of the dairies, a writ
112
S.P. Sathe, Judicial Activism in India, 6 WASH. U. J. L. POL’Y 29 (2001).
113
Id.
114
Id.
115
Id. (citing T. C. Basappa v. T. Nagappa, A.I.R. 1954 S.C. 440).
116
Speech delivered by Hon. K.G. Balakrishnan, Chief Justice, Supreme Court of India, during the Seminar
on Law and Environment, on May 23, 2009.
117
Municipal Council Ratlam v. Vardichan, 4 SCC 1626 (1980).
118
Speech supra note.
119
Id.
petition was filed in public interest alleging, among others, “that the
government agencies like the CBI and the revenue authorities had failed to
perform their duties… to investigate the matters.”121 The Supreme Court of
India held that the CBI “had not carried out their public duty to investigate
the offences disclosed.”122 The Court adopted continuing mandamus to direct
the CBI “to fairly and properly conduct and complete investigations into
alleged acts of corruption… and to report to itself regarding the
investigation.”123 The Court monitored the investigations “only because the
superiors to whom the investigating authorities were supposed to report were
themselves involved or suspected to be involved in the crimes.”124 Finally,
the Court emphasized that “the task of the monitoring court would end the
moment a charge-sheet was filed in respect of a particular investigation and
that the ordinary process of the law would then take over.”125 By another
petition, Vineet Narain obtained “directions as to how the CBI could be
reorganized so as to ensure its independence as an investigation agency.”126

M.C. Mehta v. Union of India involved a petition for the issuance “in
the nature of” a writ of mandamus to restrain tanneries along the Ganges
River from releasing trade effluents into the river which have not undergone
treatment due to the absence of the necessary treatment plants.127 The
Supreme Court of India granted following reliefs: (1) ordering certain
tanneries to cease operations until they set up treatment plants as approved
by the State Board; (2) ordering tanneries that already set up primary
treatment plants to continue to keep said plants in working order; (3)
ordering tanneries that manifested their intent to establish primary treatment
plants to cease operations if the said plants are not established by a certain
deadline; and (4) to order the appropriate government agency to enforce the
Court’s order.128 In this case, the third court order that required monitoring
set a definite deadline for the respondent tanneries to establish a primary

120
Shubhankar Dam, Vineet Narain v. Union of India: “A Court of Law and not Justice” Is the Indian
Supreme Court Beyond the Indian Constitution, P.L. 2005, SUM, 239-248 (2005) (citing Vineet Narain v.
Union of India, supra note 3).
121
Id.
122
Vineet Narain v. Union of India, supra note 3.
123
Sathe, supra note 6 (citing Vineet Narain v. Union of India, supra note 3).
124
Id.
125
Vineet Narain v. Union of India, supra note 3.
126
Sathe, supra note 6 (citing Vineet Narain et al. v. Union of India, A.I.R. 1998 S.C. 889).
127
M.C. Mehta v. Union of India, supra note 4.
128
Id.
treatment plant, which failure would result in the cessation of operations.129

The case of T.N. Godavarman Thirumulpad v. Union of India,130

involving forest management and conservation, is particularly instructive in
showcasing the extent of the Court’s powers through the issuance of a
continuing mandamus. A three judge bench of the Court issued a continuing
mandamus to deal with issues including conversion of forest land for non-
forest purposes. As of March 2008, approximately 2,000 interlocutory
applications relating to forest issues have been disposed under this single
writ. In addition, several committees including a Compensatory
Afforestation Management and Planning Authority and a Central
Empowered Committee were created in pursuance of the orders.

C. WRIT OF KALIKASAN

As presently worded, the Writ of Kalikasan provides the same

remedies, provisional and final, which may already be availed of through the
Green Courts. The only distinction between the Writ of Kalikasan and the
general procedure in the proposed Rules is one of scope: the Writ of
Kalikasan is supposed to be issued in cases of great magnitude. The
magnitude in question is constituted of the environmental damage or injury
extending to 2 or more provinces.

This presents very practical problems for the judiciary. The generally
held apprehension is the filing of petitions, otherwise cognizable by the
Green Courts, before the Court of Appeals and the Supreme Court
respectively. The specific concern with respect to filing with the Supreme
Court is that the petitions may present fundamentally questions of fact.
The procedure provided for under the Writ of Kalikasan is
inconsistent with the nature of a writ as an extraordinary remedy. The
procedure is conducive towards further litigation and might defeat the very
purpose for which the Writ is proposed, i.e. as an urgent and immediate
relief.
Finally, with respect to the remedies available, the writ of Kalikasan
duplicates, rather than complements, the Green Courts. The following is a
129
Id.
130
2 SCC 267.
table between the proposed reliefs under the Writ of Kalikasan and its
corresponding availability in the provisional remedy of Environmental
Protection Order and as a final relief in the Green Courts.

On another note, there is no interface between the Court of Appeals

and the Green Courts with respect to the evidence presented and how they
shall be treated in the event an another action is filed. Likewise, while the
remedies duplicate, the Writ is also incomplete inasmuch as it does not
provide for the award of damages.

The following memorandum aims to recast the Writ of Kalikasan as a

different, and unique, remedy, drawing as models available writs in the
country and practices in other jurisdictions.
I. Nature of the Writ

At present, there are three available Writs available under the

Philippine legal system. These are the Writs of Habeas Corpus, Amparo and
Habeas Data. These Writs share common features: Immediacy, specificity
and, insofar as the proceedings leading to their issuance are concerned,
summary in character.
a. Immediate Similar to the writs of habeas corpus, amparo and
habeas data, the issuance of the writ of kalikasan must be
immediate in nature. This entails the use of a simplified
procedure for its application.

b. Specific Remedy: The writ of kalikasan must contain a very

specific remedy or set of remedies. Again, this draws from the
concept of a writ as reflected in the three other writs available
under Philippine jurisdiction. This also aims to address an
overlap between the remedies available under the rules
governing the green courts and the special remedy/ies available
under the writ of kalikasan. This will obviate a preliminary
resort to the Court of Appeals where the remedies under the
green courts will suffice, in consistency with the doctrine of the
hierarchy of courts.
 c. Summary; Dispenses with extensive litigation: To distinguish
the writ of kalikasan from other remedies already available
before the Green Courts, it must not be issued pursuant to a
litigious process; the process must be summary as befitting an
extraordinary writ. The summary process will likewise facilitate
prompt disposition of matters before the court.

As drafted, however, the Writ of Kalikasan’s procedure could lend

itself to extensive litigation, owing to the comprehensive reliefs available
under it. These reliefs could only be granted on solid factual foundations,
denominated as “environmental damage” and “injury”. Both are conclusions
of law which rely on extensive findings of fact.
The fact-finding process is most vulnerable to, first, the legal
maneuvers of the parties and two, to the capability of the court to analyze
data, most of which would, in most probability, be highly technical in
character. With respect to the latter, the Chamber of Mines had indicated
that, at least with matters pertaining to mining, the Department of
Environment and Natural Resources, through the Mining and Geosciences
Bureau, would be better equipped to deal with the factual questions which
may arise in proceedings or controversies arising from mining. They urge a
consideration of the doctrine of primary jurisdiction in favor of the DENR.
While this does not, in any way, preclude the Court of Appeals from
assuming jurisdiction in an otherwise justiciable controversy, it may be
worth considering in light of the observations set forth.
II. Writ of Kalikasan vis a vis EPO and other writs

The following reliefs are provided by both the Writ of Kalikasan and
the Environmental Protection Order (EPO): (1) to enjoin an act in order to
protect, preserve, or rehabilitate the environment;131 (2) to direct an act in

131
Section 16(a), Rule 7 of the Draft Rule provides:

The relief that can be granted by the writ shall be the following:

a) Directing respondent to cease and desist from undertaking

activities or committing acts or omissions in violation of
order to protect, preserve, or rehabilitate the environment;132 and (3) to direct
the submission of reports regarding the execution of the court’s orders.133
The remaining reliefs134 that may be granted through the Writ of Kalikasan
are also available as reliefs that may be granted in an ordinary case filed
before the Green Courts.
The nature of the Writ of Kalikasan does not appear to be analogous
to other writs and processes that are currently available in our jurisdiction.
Although the Sub-Committee on the Rule of Procedure for Environmental

environmental laws resulting into environmental destruction or

damage xxx.
132
Section 4(f), Rule 1 of the Draft Rule provides:

(f) Environmental protection order (EPO) refers to an order issued by the

court directing or enjoining any person or government agency to perform
or desist from performing an act in order to protect, preserve or
rehabilitate the environment.
133
Section 16(d), Rule 7 of the Draft Rule provides:

The relief that can be granted by the writ shall be the following:

xxx

d) Directing the respondent public official, private person or

entity, or government agency to make periodic reports on the
execution of the final judgment;

134
Section 16(b), (c), and (e), Rule 7 of the Draft Rule provides:

The relief that can be granted by the writ shall be the following:

xxx

b) Directing the respondent public official, government official,

private person or entity, to preserve, rehabilitate or restore the
environment;
Cases stressed that this writ is an extraordinary remedy, it appears to borrow
its features from the following remedies: (1) the writ of amparo;135 (2) the
writ of habeas data;136 (4) provisional remedies particularly the writ of
preliminary injunction;137 and (5) the writ of search and seizure in civil
actions for infringement of intellectual property rights.138
As a prerogative writ, the writ of amparo is not a criminal, civil, or
administrative suit, and thus amparo does not suspend such actions.139 The
Writ of Kalikasan also provides that it does not preclude the institution of
criminal or administrative actions, but it does preclude the institution of civil
actions.140
The writ of habeas data provides for a summary hearing,141 which
appears to be consistent with the specific reliefs granted by the writ.142 The

c) Directing the respondent public official, private person or

entity, or government agency to effectively monitor strict
compliance with the orders of the court;

e) Such other reliefs which relate to the protection of the right of the
people to a balanced and healthful ecology or to the preservation,
rehabilitation, or restoration of the environment.
135
Rule on the Writ of Amparo, A.M. No. 07-9-12-SC.
136
Rule on the Writ of Habeas Data, A.M. No. 08-1-16-SC.
137
RULES OF COURT, Rule 58.
138
Rule on Search and Seizure in Civil Actions for Infringement of Intellectual Property
Rights, A.M. No. 02-1-06-SC.
139
“Prerogative Writ” in Annotation to the Writ of Amparo, A.M. No. 07-9-12-SC.
140
Section 19, Rule 7 of the Draft Rule provides:

Sec. 19. Institution of separate actions. – The filing of a petition for the
issuance of the writ of kalikasan shall not preclude the filing of separate
criminal or administrative actions. However, when a civil action has been
commenced, no separate petition for the writ shall be filed involving the
same issues.
141
Section 15 of the Rule on the Writ of Habeas Data.
142
Section 16 of the Rule on the Writ of Habeas Data provides:

Section 16. Judgment. – The court shall render judgment within ten (10)
days from the time the petition is submitted for decision. If the allegations
in the petition are proven by substantial evidence, the court shall enjoin
the act complained of, or order the deletion, destruction, or
rectification of the erroneous data or information and grant other
Writ of Kalikasan provides for a time frame within which the hearing must
be conducted.143 Although the expedited nature of the hearing was intended
to address the magnitude and severity of the environmental damage subject
of the writ, the reliefs granted by the Writ of Kalikasan are broad and
general.144
Provisional remedies constitute temporary measures availed of during
the pendency of the main action. This limitation seems to coincide with the
allowance for the ex parte application of a temporary restraining order in
particular.145 The writ of search and seizure in civil actions for infringement
of intellectual property rights is unique in that its effectivity depends on
whether a civil action is filed subsequently. It provides for an ex parte
application, but even if granted, the writ will be set aside if the expected
adverse party fails to file a case within a certain period.146 While the Writ of

relevant reliefs as may be just and equitable; otherwise, the privilege of

the writ shall be denied. (Emphasis supplied)
143
Section 11, Rule 7 provides:

Sec. 11. Hearing. –The court shall hear the petition and may call a
preliminary conference to simplify the issues and determine the possibility
of obtaining stipulations and admissions from the parties.

The hearing shall not extend beyond sixty (60) days from date of
initial hearing and shall be given the same priority as petitions for habeas
corpus. When the exigencies of justice so require, the parties may be
allowed to submit additional evidence.
144
Section 16, Rule 7 of the Draft Rules.
145
RULES OF COURT, Rule 58, Section 5.
146
The appropriate provisions of the Rule on Search and Seizure in Civil Actions for
Infringement of Intellectual Property Rights respectively provide:

Section 2. The writ of search and seizure. — Where any delay is likely to
cause irreparable harm to the intellectual property right holder or where
there is demonstrable risk of evidence being destroyed, the intellectual
property right holder or his duly authorized representative in a pending
civil action for infringement or who intends to commence such an action
may apply ex parte for the issuance of a writ of search and seizure
directing the alleged infringing defendant or expected adverse party to
admit into his premises the persons named in the order and to allow the
search, inspection, copying, photographing, audio and audiovisual
recording or seizure of any document and article specified in the order.

Section 20. Failure to file complaint. — The writ shall also, upon motion
of the expected adverse party, be set aside and the seized documents and
Kalikasan entails an expedited process of hearing the case, it appears to
grant reliefs that are permanent in nature.

III. Scope of the Writ of Kalikasan:

As already pointed out, there is a need to sharply distinguish between

the remedies available under the writ of Kalikasan and the remedies already
available in the Green Courts. This involves, inter alia, providing for a
unique remedy, hitherto unavailable, which may effectively address
environmental controversies of great magnitude.

An important concern for any party seeking to enforce environmental

rights are the evidentiary matters which supports such a claim, apart from
affidavits and other documents which he could procure independently for
himself. A key component of any case is the competence and admissibility
of evidence accompanying the complaint. In environmental cases, the
presence or absence of such evidence is crucial: it may lead to the successful
prosecution of the claim for enforcement of environmental rights or it may
lead to the dismissal of the case. The latter brings with the bar of finality: res
judicata, even when the initial claim is a valid one.
The Writ of Kalikasan may be 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 be a remedy for the
enforcement of the right to information about the environment.

1. Scope of Fact-finding Power

a. Anything related to the issuance, grant of
government permit issued; Information
controlled by the government
b. This may cover the information in the
following documents
articles returned to the expected adverse party if no case is filed with the
appropriate court or authority within thirty-one (31) calendar days from
the date of issuance of the writ.
 i. Environmental Compliance
Certificate
ii. Other governmental records

In addition, the Writ may also be employed to compel the production

of information, subject to constitutional limitations, by the respondent. This
function may be analogous to a discovery measure, and may be availed of
upon the application for the Writ. At this, the Writ of Kalikasan may be
distinguished from the three other Writs, where the respondent is always the
respondent.
Procedural safeguards may be placed in the Writ to prevent its use as
a mechanism for “fishing”. This may include a clear showing of a violation
of a law, rule or regulation. This effectively narrows the instance in which
the Writ may be applied for against private entities. Judicial discretion also
comes into play in this aspect. Notably, the Court has already provided for
the remedy of Civil Searches and Seizures (the English “Anton Piller”
Order) as a remedy in alleged violations of the Intellectual Property Code.
To compel the production of evidence is a considerably tempered and
restrained exercise of judicial power.
A greater function of the Writ may be to employ the court as an
avenue for the mediation of environmental disputes. This would entail the
use of the court itself as mediator, to distinguish it from its function as
adjudicator. This is reflective of the current trend of developments in
environmental litigation which is to use the courts less as avenues for
dispute resolution and more for the resolution of controversies in a
meditative capacity. This is likewise more conducive towards the early
resolution of the controversy. Finally, this makes central use of the consent
decree, a key innovation introduced in the proposed Rules.
The sole function of the court in this instance is to compel the parties
to meet. The filing of the application for the Writ commences the process
and enables the court to assume jurisdiction. Upon assuming jurisdiction, the
Court shall be empowered to compel the production of evidence and issue
subpoenas to make this power effective.
The mediation may lead to the issuance of an order embodying the
terms of agreement between the parties concerned, i.e. as a consent decree.
 The court-presided mediation may lead to a referral of the controversy
to the appropriate Green Court or administrative agency for resolution. In
the event the mediation proceedings succeed, it could lead to the issuance of
a consent decree, which, as a judicially-approved document, functions as a
judgment on the controversy.
Upon the approval of the consent decree, the said decree can be
considered a final judgment on the matter. A component of the said decree
could be the monitoring capability embodied in the writ of continuing
mandamus. This may require the submission of compliance reports from the
government agency or respondent tasked to undertake the activities
stipulated in the consent decree. This Information in the form of compliance
submissions from the parties
IV. Forum Shopping and Concurrent Jurisdiction

Once an application for the Writ of Kalikasan is filed, all other

remedies must first be suspended. This is to afford the Court an opportunity
to mediate the conflict in a non-adversarial environment and bring about
resolution of the controversy without further litigation. This will also afford
the parties to clarify the issues before the court in light of the information
gathered through the exercises of the court’s power. The court may also, in
the exercise of its discretion, add the gathered information to the record of
the case, which it may then refer to the appropriate tribunal or agency.
As worded, the proposed Writ of Kalikasan may either be filed before
the Court of Appeals, in any of its divisions and the Supreme Court. This is
ostensibly to address the concern of magnitude and the questions of
jurisdiction arising from the environmental damage occurring in wide areas.
This concern may be addressed, however, by a separate provision in the
proposed rules providing for a direct resort to the Court of Appeals for cases
involving a great magnitude of environmental damage (pegged at damage to
two or more cities or provinces at present) and the application, mutatis
mutandis, of the proposed Rules to such controversies.
The Writ of Kalikasan may be made available as readily as the Writ of
Habeas Corpus, and may be obtained before the Regional Trial Court, the
Court of Appeals and the Supreme Court. This is to reflect the judicial
policy of prioritizing environmental rights. It will be independently
available, regardless of whether a separate proceeding is pending or not.
 As an extraordinary remedy, the proceedings do not necessarily lead
to res judicata with respect to the justiciable issues between the parties. The
function of the court is merely meditative, albeit a consent decree may be
issued pursuant to the mediation. Then, and only then, will it attain the
character of a final decision and constitute res judicata as to the issues
already resolved by the terms of the consent decree.
The Writ does not preclude the separate filing of an action with a
court or administrative agency: While great emphasis is placed on the
meditative function of the court in the kalikasan proceedings, this cannot
foreclose the possibility of litigation in the event the factual questions or
issues demand the extensive presentation and analysis of evidence. Here, the
information already obtained pursuant to the Writ becomes pivotal because
it may be ordered by the court to be a part of the records of the case. The
court likewise exercises discretion whether the foregoing shall constitute a
part of the record once it refers the matter to a Green Court, for adjudication
pursuant to the Environmental Rules of Procedure.
The litigation process may not necessarily be judicial in character,
although the extensive scope of the proposed rules suggests that most
controversies are properly cognizable by the courts.

VII. APPLICATION OF THE PRECAUTIONARY PRINCIPLE

Common to the aforementioned features, the key nuances of the Rule

of Procedure for Environmental Cases have been developed to address the
practical and procedural obstacles linked to environmental litigation. Some
of these novel provisions were made with the guidance of the precautionary
principle in order to formulate an optimal set of rules that allows for
facilitated access to courts in environmental cases, and a more appropriate
form of litigation tailored to the unique and complex characteristics of the
same.

The precautionary principle derives from a paradigm shift in

environmental protection. Traditional environmental protection was
measured by the concept of sustainability, an economic yardstick by
nature.147 Namely, the goal of protection was anthropocentric, because it
147
See Hohmann, Harald, Graham & Troutman/Martinus Nijhoff (1994).
only considered the use and availability of natural resources based on human
consumption.148 Environmental protection later evolved into a different
ecological approach. Ecological protection extended beyond mere
sustainability, and now took into account the preservation of an environment
for the sake of its preservation, and that could be enjoyed by future
generations.149 Thus, long-term foresight was imperative.150 It is from a
more nuanced version of this paradigm that the precautionary principle
originates.

Rule 1, Section 6, paragraph (i) of the Proposed Rule provides the

following definition:

Precautionary principle states that when human activities may lead

to morally unacceptable harm that is scientifically plausible but
uncertain, actions shall be taken to avoid or diminish that harm.
Morally unacceptable harm refers to harm to humans or the
environment that is (1) threatening to human life or health; (2)
serious and effectively irreversible; (3) inequitable to present or
future generations; or (4) imposed without adequate consideration
of the human rights of those affected.151

With this definition as the basis, the incorporation of the

precautionary principle into the Proposed Rule focuses on two areas: (1) the
plaintiff’s ability to proceed with litigation notwithstanding the potential
scientific uncertainty of the causal link between the act of the defendant and
the harm alleged; and (2) the shifting of the burden of persuasion to the
defendant.

Principle 15 of the Rio Declaration in 1992152 is a widely accepted

definition of the precautionary principle. One particular feature of the
principle serves as the basis for a complainant’s ability to sue without
unwarranted hindrances:
148
Id. at 2-4.
149
Id.
150
Id.
151
This definition is based on the working definition of the precautionary principle according to the United
Nations Educational, Scientific and Cultural Organization (UNESCO) World Commission on the Ethics of
Scientific Knowledge and Technology (COMEST) published March 2005.
152
Rio Declaration at the United Nations Conference on Environment and Development (UNCED), June
14, 1992.
 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.153

In light of this feature, the Proposed Rule makes clear that the
evidentiary threshold of the plaintiff corresponds to the long-term
preventative nature of the precautionary principle. Thus, Rule 16, Section 1
states in part:

Precautionary Principle – The court shall be guided by the

precautionary principle and evidence of full scientific certainty
shall not be required from the party alleging the environmental
damage or threats thereof…
(Emphasis added.)

In addition, the Proposed Rule does not require the plaintiff to

establish full scientific certainty when determining the issuance of a special
provisional remedy. Rule 2, Section 4 states in part:

Temporary EPO – If it appears from the verified complaint that

there is a prima facie violation of any environmental law, the court
may issue ex parte a temporary EPO to be effective until lifted by
the court. The court in resolving the prayer for the issuance of a
temporary EPO shall not require full scientific certainty as basis
for the issuance thereof…
(Emphasis added.)

The precautionary principle also creates one more unique result.

Since the plaintiff does not have to provide the causal link based on certain
scientific fact between the act and the environmental harm in cases of this
nature, the burden of evidence necessarily shifts to the defendant. In this
regard, Proposed Rule 16, Section 3 states:

Shifting the burden of evidence – Where the plaintiff has proven

the environmental damage or injury, and defendants appear to be
responsible therefore, the burden of evidence to prove otherwise
shall shift to the defendants.

In other words, according to this proposed rule, defendants in this

scenario would now have the burden to persuade the court that there is no
causal link between their actions and the environmental harm alleged.
153
Rio Declaration, 34 ILM 874, (1992).
 Notably, the precautionary principle does not apply to criminal cases
as such a move would alter the stricter quantum of proof required (guilt
beyond reasonable doubt) for determining criminal liability.154 The shifting
of burden of evidence as proposed therefore, only applies to the civil actions.

a. The German Vorsorgeprinzip…The vorsorgeprinzip are a set of

regulations on air pollution.155

b. Development and Key Materials in International Law

i. Differing formulations of the Precautionary Principle

have been articulated in several instruments. There is,
however, uncertainty as to its status under international
law.156

ii. Most recent and authoritative articulations of the

Precautionary Principle

1. The Rio Declaration, Principle 15

2. UN Framework Convention on Climate Change

Article 3 (3)

3. The Kyoto Protocol

4. 1992 Convention on Biological Diversity

II. Precautionary Principle as Tool for Adjudication

154
Rule 16, Section 1 of the Proposed Rules partially states: “However, in determining the criminal
liability, the precautionary principle shall not apply.”
155
La Franchi, Scott Surveying the Precautionary Principle’s Ongoing Global
Development: The Evolution of an Emerging Environmental Management
Tool. 32 Boston College Environmental Affairs Law Review 679 (2005) at 681.
156
See Hickey James. E. and Walker, Vern R. Refining the Precautionary
Principle in International Environmental Law 14 Virginia Environmental Law
Journal 423 (1995) at pp. 432-436.
 a. Administrative Adjudication

b. Judicial Adjudication

i. Practice in Other Jurisdictions

1. Australia – Leatch v. National Parks and Wildlife

2. India - Mehta v. Union of India

III.Criticisms of the Precautionary Principle

a. Lack of consensus as to its formulation leads to definitional

difficulties and a lack of consensus as to its true meaning,
leading to a spectrum of formulations, from “weak” to “strong”

b. Strong versions of the precautionary principle can actually lead

to paralysis in decision-making157

Weak and Strong Versions of the Precautionary Principle

The Supreme Court has recognized the varying degrees to which the
precautionary principle is applied. Without academic consensus, the Court
found it best to consider all versions of the precautionary principle in order
to determine what would is most compatible for purposes of the Rules of
Procedure on Environmental Cases.

The varying versions of the precautionary principle cause different

implications. On one hand, the most cautious and weak versions suggest,
quite sensibly, that a lack of decisive evidence of harm should not be
grounds for refusing to regulate. Regulation might be justified even if one
cannot establish a definite connection between, for example, low-level
exposures to certain carcinogens and adverse effects on human health. In
157
Sunstein, Cass R. Beyond the Precautionary Principle 151 University of
Pennsylvania Law Review 1003.
particular, regulation might be urged, in such cases, if its costs are relatively
low. Thus, the 1992 Rio Declaration sensibly states that “[w]here 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.” The Ministerial Declaration of the Second
International Conference on the Protection of the North Sea, held in London
in 1987, states in the same vein: “Accepting that in order to protect the
North Sea from possibly damaging effects of the most dangerous substances,
a precautionary approach is necessary which may require action to control
inputs of such substances even before a causal link has been established by
absolutely clear scientific evidence.” Similarly, the United Nations
Framework Convention on Climate Change offers cautious language:

“Where there are threats of serious or irreversible damage,

lack of full scientific certainty should not be used as a reason
for postponing . . .[regulatory] measures, taking into account
that policies and measures to deal with climate change
should be cost-effective so as to ensure global benefits at the
lowest possible cost.”

The Wingspread Declaration goes further: “When an activity raises

threats of harm to human health or the environment, precautionary measures
should be taken even if some cause-and-effect relationships are not fully
established scientifically. In this context the proponent of an activity, rather
than the public, should bear the burden of proof.” The first sentence of this
quote is a mildly more aggressive version of the statement from the Rio
Declaration; it is more aggressive because it is not limited to threats of
serious or irreversible damage. But the component of reversing the burden
of proof, as stated in the second sentence adds to the strong favorability of
the environment, further depending on what is being required of the
proponent holding the burden of proof.

In Europe, the precautionary principle is sometimes understood in an

even stronger way, suggesting that it is important to build “a margin of
safety into all decision making.” According to one definition, the
precautionary principle means “that action should be taken to correct a
problem as soon as there is evidence that harm may occur, not after the harm
has already occurred.” In a comparably strong version, it is said that the
precautionary principle mandates that when there is a risk of significant
health or environmental damage to others or to future generations, and when
there is scientific uncertainty as to the nature of that damage or the
likelihood of the risk, then decisions should be made so as to prevent such
activities from being conducted unless and until scientific evidence shows
that the damage will not occur.

The Cartagena Protocol on Biosafety to the Convention on Biological

Diversity, adopted in 2000, appears to adopt a strong version as well. The
Final Declaration of the First European Seas at Risk Conference says that if
“the ‘worst case scenario’ for a certain activity is serious enough then even a
small amount of doubt as to the safety of that activity is sufficient to stop it
taking place.”

Professor Richard Stewart usefully distinguishes among four different

versions of the precautionary principle, capturing both weak and strong
types:

1. Nonpreclusion Precautionary Principle. Regulation should not

be precluded by the absence of scientific uncertainty about activities
that pose a risk of substantial harm.

2. Margin of Safety Precautionary Principle. Regulation should

include a margin of safety, limiting activities below the level at which
adverse effects have not been found or predicted.

3. Best Available Technology Precautionary Principle. Best

available technology requirements should be imposed on activities
that pose an uncertain potential to create substantial harm, unless
those in favor of those activities can show that they present no
appreciable risk.

4. Prohibitory Precautionary Principle. Prohibitions should be

imposed on activities that have an uncertain potential to impose
substantial harm, unless those in favor of those activities can show
that they present no appreciable risk.

This account shows that the precautionary principle might be

described both in terms of the level of uncertainty that triggers a regulatory
response and in terms of the tool that will be chosen in the face of
uncertainty (as in the case of technological requirements or prohibitions).
 In its strongest and most distinctive forms, the principle imposes a
burden of proof on those who create potential risks, and it requires
regulation of activities even if it cannot be shown that those activities are
likely to produce significant harms.

Various Definitions of the Precautionary Principle

1. World Charter for Nature of 1982, Article 11 (b)158

“Activities which are likely to pose significant risk to nature shall be

preceded by an exhaustive examination; their proponents shall
demonstrate that expected benefits outweigh potential damage to
nature, and where potential adverse effects are not fully understood,
the activities should not proceed;”

2. North Sea Declaration of 1987, Article VII159

”Accepting that in order to protect the North Sea from possibly

damaging
effects of the most dangerous substances, a precautionary approach is
necessary which may require action to control inputs of such
substances
even before a causal link has been established by absolutely clear
scientific evidence.”

3. New South Wales Protection of the Environment Administration

Act 1991, Sec. 6 (2a)160

“…if there are threats of serious or

irreversible environmental damage, lack of full scientific certainty
should not be used as a reason for postponing measures to
prevent environmental degradation.”
158
United Nations General Assembly Resolution 37/7, of 28 October 1982). It is the first international
endorsement of the principle.
159
Second International Conference on the Protection of the North Sea: Ministerial Declaration Calling for
Reduction of Pollution, Nov. 25, 1987.
160
The same provision provides for two guidelines in the implementation of the principle,” In the
application of the precautionary principle, public and private decisions should be guided by: (i) careful
evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and (ii) an
assessment of the risk-weighted consequences of various options,”
 4. The Rio Declaration of 1992, 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.”

5. United Nations Framework Convention on Climate Change 1992,

Article III. Principle 3161

“The Parties should take precautionary measures to anticipate,

prevent or minimize the causes of climate change and mitigate its
adverse effects. Where there are threats of serious or irreversible
damage, lack of full scientific certainty should not be used as a
reason for postponing such measures, taking into account that
policies and measures to deal with climate change should be cost-
effective so as to ensure global benefits at the lowest possible cost. To
achieve this, such policies and measures should take into account
different socio-economic contexts, be comprehensive, cover all
relevant sources, sinks and reservoirs of greenhouse gases and
adaptation, and comprise all economic sectors. Efforts to address
climate change may be carried out cooperatively by interested
Parties.”

6. Final Declaration of the First European Seas at Risk Conference

of 1994 (Preamble and Annex I)162

Preamble, “…to ensure that appropriate preventative measures are

taken when there is reason to believe that substances or energy
introduced into the marine environment or activities taking place in
the marine environment are likely to cause harm even when there is
no conclusive evidence to prove a causal relationship between
inputs/activities and effects; this applies to the entire spectrum of

161
U.N. Framework Convention on Climate Change, May 9, 1992.
162
First European SEAS AT RISK Conference, Copenhagen, 26-28 October 1994.
 environmental policy making and to all types of human impact on the
environment.”163

Annex I, Principle 1164, “Lack of scientific certainty regarding cause

and effect is not used as a reason for deferring measures to prevent
harm to the environment. Science, while important in providing
evidence of effect, is no longer required to provide proof of a causal
link between pollutant/disturbing activity and effect, and where no
clear evidence is available one way or the other the environment must
be given the "benefit of the doubt."

xxxxx

Annex I, Principle 4, “If the "worst case scenario" for a certain

activity is serious enough then even a small amount of doubt as to the
safety of that activity is sufficient to stop it taking place;”

7. European Community Treat of 1997, Art. 174 (2)

“Community policy on the environment shall aim at a high level of

protection taking into account the diversity of situations in the various
regions of the community. It shall be based on the precautionary
principle and on the principles that preventive action should be taken,
that environmental damage should as a priority be rectified at source
and that the polluter should pay.”

 Note: The EC Treaty contains only one explicit reference to

the precautionary principle, namely in the title on
environmental protection. However, in practice, the scope of
this principle is far wider and also covers consumer policy and
human, animal and plant health.

163
The definition even lays down the scope of the principle.
164
Annex I enumerates five principles of precautionary action. Principle 3 is equally important because it
shifts the burden of proof from the “regulator to the person responsible for the harmful activity.” Principle
3, “the "burden of proof" is shifted from the regulator to the person or persons responsible for the
potentially harmful activity, who will now have to demonstrate that their actions are not/will not cause
harm to the environment;”
 Since the precautionary principle is not defined in the
Treaty or in other Community instruments, the Council in its
Resolution of 13 April 1999 requested the Commission to
develop clear and effective guidelines for the application of the
principle. The Commission's Communication is a response to
this request (See Communication from the Commission on
the Precautionary Principle, COM [2000]1)

In its Communication, the Commission analyses the

factors that trigger use of the precautionary principle and the
associated measures. It then proposes guidelines for applying
the principle.

8. Wingspread Declaration of 1998

” When an activity raises threats of harm to human health or the

environment, precautionary measures should be taken even if some
cause-and-effect relationships are not established scientifically. In
this context the proponent of the activity, rather than the public,
should bear the burden of proof.”

9. 1999 Canadian Environmental Protection Act (CEPA 1999)

“Whereas the Government of Canada is committed to implementing

the
precautionary principle that, where there are threats of serious or
irreversible
damage, lack of full scientific certainty shall not be used as a reason
for postponing cost-effective measures to prevent environmental
degradation.”

 Note: The precautionary principle has been incorporated into

CEPA 1999 in the “Preamble”, “Administrative Duties” section
and in the provisions with respect to controlling toxic substances.

10. Cartagena Protocol on Biosafety to the Convention on Biological

Diversity of 2000 (Articles 10.6, 11.8; Annex III)165
165
Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Montreal (2000). Elements
of the precautionary approach find reflection in other parts of the Cartagena Protocol such as the Preamble
 Articles 10.6 and 11.8, "Lack of scientific certainty due to insufficient
relevant scientific information and knowledge regarding the extent of
the potential adverse effects of an LMO on biodiversity, taking into
account risks to human health, shall not prevent a Party of import
from taking a decision, as appropriate, with regard to the import of
the LMO in question, in order to avoid or minimize such potential
adverse effects.”
Annex III, “Lack of scientific knowledge or scientific consensus
should not necessarily be interpreted as indicating a particular level
of risk, an absence of risk, or an acceptable risk.”166

11. United States Clean Air Act of 2000167

Title 42, Chapter 85, “…allowing an adequate margin of safety…”168

12. Paul McFedries, Precautionary Principle (2002)169

“…action should be taken to correct a problem as soon as there is

evidence that harm may occur, not after the harm has already
occurred.”

13. Capitol
Hill Hearing Testimony Concerning the Cloning of
Humans and Genetic Modifications Before the Sub-committee on
Labor, Health and Human Servs., S. Appropriations Comm.,
107th Cong. (2002)170

“…the precautionary principle mandates that when there is a risk of

significant health or environmental damage to others or to future
generations ,and when there is scientific uncertainty as to the nature
of that damage or the likelihood of the risk, then decisions should be
made so as to prevent such activities from being conducted unless and
until scientific evidence shows that the damage will not occur.”

and Article 1, Objective.

166
Annex III: Risk Assessment, General Principles (4).
167
42 U.S.C. § 7409(b)(1) (2000).
168
Hence, in the face of scientific uncertainty, regulation is called for. Sunstein
169
Paul McFedries, Precautionary Principle, WORD SPY, Jan. 23, 2002, at http://
www.wordspy.com/words/precautionaryprinciple.asp. in Sunstein
170
Statement of Dr. Brent Blackwelder, President, Friends of the Earth), in Sunstein.
Jurisprudence on the Precautionary Principle

A. International Court of Justice

The International Court of Justice acknowledged the importance of

precaution in its 1997 decision171 adjudicating the dispute between Hungary
and Slovakia over water regulation on the Danube. Hungary had suspended
in 1989, and then in 1992 had unilaterally terminated, a 1977 treaty
governing a hydroelectric dam and navigation improvement project that had
been negotiated by Hungary and Czechoslovakia during the Soviet
dominance of Eastern Europe. After it broke away from the Soviet Union in
the late 1980s, Hungary argued that the treaty was a “mistake,” and that it
was entitled to terminate the treaty on the basis of an “ecological state of
necessity.” Hungary pointed to possible ecological risks that included “the
replacement of Danube groundwater flow with stagnant upstream reservoir
water, the silting of the Danube, eutrophication, and the threat to aquatic
habitats from peaking power releases.” Based on these threats, Hungary
argued that the precautionary principle imposed “an erga omnes obligation
of prevention of damage” and invoked Article 33 of the International Law
Commission Draft Articles on the International Responsibility of States,
which permits countries to avoid an international duty if necessary to
“safeguard an essential interest of the State against a grave and imminent
peril.”

The International Court of Justice agreed that Article 33 incorporated

concepts of precaution, but interpreted this doctrine narrowly, finding that a
country could invoke the principle as a basis for terminating a treaty only if
it could demonstrate “by credible scientific evidence that a real risk will
materialize in the near future and is thus more than a possibility.” The Court
then ruled that Hungary’s evidence of potential environmental damage had
failed to meet this standard and thus that Hungary remained bound by the
treaty, pursuant to the principle of pacta sunt servanda, requiring countries
to adhere to their treaty commitments. But the Court also stated that “new
knowledge of ecological risk does impose a duty on parties to a complex
river basin development treaty to take the information into consideration in
the ongoing implementation of the treaty and management of the river.” The
Court thus gave Hungary a partial victory by ordering the two countries “to
undertake good faith negotiations consistent with both international
environmental norms such as sustainable development and the law of
171
Case Concerning the Gabcikovo-Nagymaros Project (Hung. v. Slovak.), 1997 I.C.J. 7 (Sept. 25).
international water courses to come up with a new management scheme” for
the dam project.

Judge Weeramantry wrote a separate opinion emphasizing that the

interrelated principles of environmentally sustainable development and
cautionary environmental assessment are erga omnes rules of customary
international law. This opinion says that the precautionary principle includes
a requirement to prepare environmental assessments and to monitor all large
water development projects: “EIA, being a specific application of the larger
principle of caution, embodies the larger obligation of continuing
watchfulness and anticipation.” In the earlier 1995 Nuclear Tests Case,
although the Court failed to reach the merits, two judges mentioned the
precautionary principle as an emerging feature of international
environmental law. One of these judges also referred to the precautionary
principle in the 1996 Nuclear Weapons Case.

B. International Tribunal for the Law of the Sea

The Southern Bluefin Tuna case172 had a promising beginning, with

the International Tribunal for the Law of the Sea (ITLOS) issuing strong
provisional measures designed to protect an overfished species, but its
ending was unfortunate, when an ad hoc arbitral tribunal declared that both
it and ITLOS lacked jurisdiction over the case because of conflicting
dispute-resolution provisions in the relevant treaties. Despite the
inconclusive ending of this case, the provisional measures issued by ITLOS
may still be important for future disputes. The Tribunal tried to freeze the
status quo, and ordered Japan to stop its unilateral “experimental fishing” in
order to give the bluefin tuna a chance to recover while the countries
developed new management arrangements. In its Order, the Tribunal used
the following language:

[P]arties should in the circumstances act with prudence and

caution to ensure that effective conservation measures are taken
to prevent serious harm to the stock of southern bluefin tuna…

…[Although there is] scientific uncertainty regarding measures

to be taken to conserve the stock of southern bluefin tuna and…
although the Tribunal cannot conclusively assess the scientific
172
Southern Bluefin Tuna Case (Austl. and N.Z. v. Japan), Provisional Measures Order (ITLOS), Aug. 27,
1999.
 evidence presented by the parties, it finds that measures should
be taken as a matter of urgency to preserve the rights of the
parties and to avert further deterioration.

Judge Alexander Yankov, referring to this language, wrote later that

“there are some statements of the Tribunal in the Order which appear to
reveal its stand in favor of essential elements of the precautionary
approach.” Judge Tullio Treves added in his concurring opinion that,
although he “understood the reluctance of the Tribunal in taking a position
as to whether the precautionary approach is a binding principle of customary
international law,” nonetheless “a precautionary approach seems to me
inherent in the very notions of provisional measures.”

In the MOX Plant Case,173 the Tribunal issued another important

provisional measures ruling, stating that the duty to cooperate required
Ireland and the United Kingdom to exchange information concerning the
risks created by the expansion of the Sellafield nuclear facility in the United
Kingdom, to monitor the effects of this plant on the marine environment in
the Irish Sea, and to work together to reduce these risks. This case was then
transferred to an arbitral panel, which again found procedural obstacles that
blocked its ability to reach the merits of the dispute. But the filings of the
two parties show agreement that the precautionary principle is a central
norm applicable to the dispute. Ireland’s Memorial quoted Article 2(2)(a) of
the 1992 Convention for the Protection of the Marine Environment of the
North-East Atlantic (OSPAR Convention) as defining the duties of countries
under the precautionary principle and as reflecting “a rule of general
international law amongst European States.” Ireland also submitted that
“[t]he precautionary principle has been recognized as being inherent in the
approach adopted by UNCLOS” and that “the United Kingdom did not
challenge Ireland’s characterization of the precautionary principle as having
the status of customary international law.” The United Kingdom responded
in its Rejoinder by saying that “the United Kingdom was, and is today,
guided by the precautionary principle as elaborated in European Community
law in the context of its Strategy 2001-2020,” and that “the United
Kingdom’s practice in respect of the MOX Plant was entirely consistent
with a precautionary approach.”

C. European Court of Justice

173
The MOX Plant Case (Ireland v. U.K.), (ITLOS 2001), 41 I.L.M. 405 (2002).
 The most significant precautionary principle decision by the European
Court of Justice occurred in 1998, when the Court upheld the decision of the
European Commission (EC) to ban all bovine animals and all beef and veal
products from the United Kingdom, based on the EC’s judgment that all
risks of transmission from bovine spongiform encephalopathy (mad cow
disease) could not be excluded.174 In response to the argument of the English
National Farmers’ Union that this decision violated the principle of
proportionality, the Court acknowledged that the principle of proportionality
required that the least onerous alternative be chosen, but ruled also that
“[w]here there is uncertainty as to the existence or extent of risks to human
health, the institutions may take protective measures without having to wait
until the reality and seriousness of the risks become fully apparent.”

D. World Trade Organization

In the case entitled EC Measures Concerning Meat and Meat

Products, the Appellate Body of the World Trade Organization noted that
the precautionary principle “continues to be the subject of debate” and that
its status is “less than clear,” but also stated that the principle is regarded by
“some” judges and commentators “as having crystallized into a general
principle of customary international environmental law.” In its conclusion,
the Appellate Body followed a precautionary approach by ruling that panels
evaluating scientific data should accept that “responsible, representative
governments commonly act from perspectives of prudence and precaution
where risks of irreversible, e.g. life terminating damage to human health are
concerned.”

E. Australia

Leatch v. National Parks and Wildlife Service175 was a merits appeal

against the granting of a license to Shoalhaven City Council to take and kill
endangered fauna from an area where a road was proposed to be constructed.
The third party objector claimed that the precautionary principle should be
applied to refuse the license because of scientific uncertainty surrounding
the effects on endangered fauna following from the road construction,
particularly on the giant burrowing frog and the yellow bellied glider.

174
Case C-147-96, The Queen v. Ministry of Agriculture, Fisheries and Food, Commissioners of Customs
& Excise, ex parte National Farmer’s Union, David Burnett and Sons Ltd., R.S., 1998 E.C.R. I-2211.
175
(1993) 81 LGERA 270.
 The appeal was upheld and the license refused. The Court held that
while almost every recent international environmental treaty, convention and
policy document, as well as the Intergovernmental Agreement on the
Environment (IGAE), referred to ecologically sustainable development and
in particular to the precautionary principle, the National Parks and Wildlife
Act, under which the Director-General of the National Parks and Wildlife
Service granted the license, did not expressly do so:

When Part 7 of the Act is examined it is readily apparent that

the precautionary principle, or what I have stated this may
entail, cannot be said to be an extraneous matter. While there is
no express provision requiring consideration of the
‘precautionary principle,’ consideration of the state of
knowledge or uncertainty regarding a species, the potential for
serious or irreversible harm to an endangered fauna and the
adoption of a cautious approach in protection of endangered
fauna is clearly consistent with the subject maker, scope and
purpose of the Act.

…[T]he precautionary principle is a statement of commonsense

and has already been applied by decision-makers in appropriate
circumstances prior to the principle being spelt out. It is
directed towards the prevention of serious or irreversible harm
to the environment in situations of scientific uncertainty. Its
premise is that where uncertainty or ignorance exists
concerning the nature or scope of environmental harm (whether
this follows from policies, decisions or activities), decision-
makers should be cautious.

…[C]aution should be the keystone to the Court’s approach.

Application of the precautionary principle appears to me to be
most apt in a situation of a scarcity of scientific knowledge of
species population, habitat and impacts. Indeed, one
permissible approach is to conclude that the state of knowledge
is such that one should not grant a license to ‘take or kill’ the
species until much more is known. It should be kept steadily in
mind that the definition of ‘take’ in… the Act includes disturb,
injure and a significant modification of habitat which is likely
to adversely affect the essential behavioral patterns of a species.
In this situation I am left in doubt as to the population, habitat
 and behavioral patterns of the Giant Burrowing Frog and am
unable to conclude with any degree of certainty that a license to
‘take or kill’ the species should be granted.

In Friends of Hinchinbrook Society Inc v. Minister for Environment176

the Minister had granted development consent for a proposed tourist resort
located near the Great Barrier Reef. In 1981, the Great Barrier Reef was
included in the World Heritage List, pursuant to the 1972 UNESCO
Convention for the Protection of the World Cultural and Natural Heritage.
Friends of the Hinchinbrook Society contended that the Minister had
improperly exercised his powers conferred under the World Heritage
Properties Conservation Act and failed to have regard to the precautionary
principle. It brought a challenge in the Federal Court.

The Court held that if the precautionary principle was a mandatory

consideration for the Minister, that would flow from a proper construction of
the relevant legislation and of its scope and purpose, rather than as a result of
Australia’s adoption of policies and objectives relevant to a national strategy
on the environment. The precautionary principle, in the form adopted by the
IGAE, was not a consideration that the Minister was bound to take into
account in exercising powers conferred under the World Heritage Act.
However, the Minister did take into account the need to exercise caution in
the situation of scientific uncertainty:

It is true that the Minister did not expressly refer to the

precautionary principle or some variation of it, in his reasons.
But it is equally clear that before making a final decision he
took steps to put in place arrangements designed to address the
matters of concern identified in the scientific reports and other
materials available to him. The implementation of these
arrangements … indicate that the Minister accepted that he
should act cautiously in assessing and addressing the risks to
World Heritage values … he took into account the
commonsense principle that caution should be exercised where
scientific opinion is divided or scientific information is
incomplete.

176
(1997) 142 ALR 622 and (1997) 87 LGERA 10.
 In Lawyers for Forests Inc v. Minister for the Environment, Heritage
and the Arts and Gunns Limited,177 the Federal Court considered the extent
and nature of environmental impact assessment information required by
the Commonwealth Minister before deciding whether to approve an action
under the Environment Protection and Biodiversity Conservation Act (EPBC
Act) as well as the nature and extent of some of his condition-making
powers.

Lawyers for Forests (LFF) challenged the decision by the then

Minister for the Environment, Heritage and the Arts (Minister) under the
EPBC Act to approve Gunns’ proposal to develop and operate a pulp mill.
The challenge centered around the validity of a number of approval
conditions which require Gunns to establish effluent trigger levels for
implementing approved response strategies and to carry out hydrodynamic
modeling of the effluent plume in Bass Strait. LFF argued that these
investigations should have been carried out before the Minister granted his
approval, not as a condition of the approval. LFF contended that the
approval was not authorized EPBC Act, because the Minister did not take
into account the precautionary principle pursuant to the Act.

The EPBC Act defines the precautionary principle as “the lack of full
scientific certainty should not be used as a reason for postponing a measure
to prevent degradation of the environment where there are threats of serious
or irreversible environmental damage.” The Act provides that the Minister
must take account of the precautionary principle in deciding whether to
approve a controlled action, to the extent he can do so consistently with its
other provisions. Before deciding whether to approve a controlled action, the
Act requires the Minister to consider principles of ecologically sustainable
development. These principles are defined to include a host of matters, of
which only one is the precautionary principle. The Court found that the
Minister was not required to take into account the precautionary principle in
isolation, nor give it pre-eminence over other relevant criteria specified in
the EPBC Act.

LFF argued that the Court must evaluate whether the Minister gave a
proper, genuine and realistic consideration to the matters which he was
required to have regard. The Court held that it was doubtful whether the
Minister was required to have regard to the precautionary principle at all,
because the principle only comes into play where there exist threats of
177
FCA 330 (9 April 2009).
serious or irreversible environmental damage. The Court concluded that the
evidence indicated that the Minister did not believe such a threat existed. In
any event, the Minister appeared to give effect to the precautionary principle
by applying conditions which endeavored to close the gap of scientific
uncertainty by requiring further data collection and hydrodynamic modeling.
Based on the Court’s decision, applicants will need evidence to support a
contention that the Minister was obligated but failed to consider the
precautionary principle and try and avoid legal arguments which invite the
court to stray into a consideration of the merits of the Minister’s decision.

F. Canada

In Spraytech v. Hudson (Town),178 a landscaping and lawncare

company challenged a bylaw passed by the Town of Hudson (a suburb of
Montreal) which regulated, and largely prohibited, the use of pesticides.
Spraytech argued that since Quebec’s Cities and Towns Act did not
expressly give municipalities the power to regulate pesticides, Hudson had
no jurisdiction to pass the bylaw and that the bylaw was therefore void.
Hudson argued that its power to pass the bylaw came from the section in the
Act that allowed bylaws that “secure peace, order, good government, health,
and general welfare in the territory of the municipality.”

The Supreme Court ruled that Hudson had the jurisdiction to regulate
pesticide use and upheld the bylaw. The Court found that it was reasonable
to conclude that the purpose of the bylaw was to limit the use of possibly
harmful pesticides in order to promote the health of the citizens of Hudson.
This purpose was squarely within the “health” component of the Cities and
Towns Act. The interpretation of the bylaw respects international law’s
precautionary principle. In the context of the precautionary principle’s
tenets, the Hudson’s concerns about pesticides fit well under their rubric of
preventive action.

G. Germany

The Kernkraftwerk Krummel case179 heard before the Supreme

Administrative Court of Germany is of interest. The Court overturned the
lower court’s decision holding that the administration had an obligation to
check whether radiation from the Krummel nuclear power station stayed
178
2001 SCC 40, [2001] 2 S.C.R. 241.
179
Judgment of 21.8.1996, BverwG 11 C 9.95.
within the limits of precaution required by the Atomic Energy Act. The
Court held that if the latest scientific evidence indicated that earlier norms
were now insufficient, the administration should set higher precautionary
standards. While the weighing of risks was one for the administration, not to
be replaced by the opinion of the courts, the lower court should have
checked whether the administration had ignored or paid unacceptably little
interest in the increase in leukemia cases noted in the vicinity of the plant.

H. India

In AP Pollution Control Board v Nayudu,180 the Supreme Court of

India was considering a petition claiming that certain hazardous industries
proposed to be established by the respondents without the necessary
certificate from the State Pollution Control Board could not proceed. The
Court discussed the difficulties faced by environmental courts globally in
dealing with scientific data, citing articles on the desirability of a specialist
environmental court and the status and application of the precautionary
principle:

The ‘uncertainty’ of scientific proof and its changing frontiers

from time to time has led to great changes in environment
concepts during the period between the Stockholm Conference
of 1972 and the Rio Conference of 1992. In Vellore Citizens’
Welfare Forum v Union of India and others, 1995 (5) SCC 647,
a three Judge Bench of this Court referred to these changes, to
the ‘precautionary principle’ and the new concept of ‘burden of
proof’ in environmental matters. Kuldip Singh, J after referring
to the principles evolved in various international Conferences
and to the concept of ‘Sustainable Development,’ stated that the
Precautionary Principle, the Polluter-Pays Principle and the
special concept of Onus of Proof have now emerged and govern
the law in our country too, as is clear from Articles 47, 48-A
and 51-A(g) of our Constitution and that, in fact, in the various
environmental statutes, such as the Water Act, 1974 and other
statutes, including The Environment (Protection) Act 1986,
these concepts are already implied. The learned Judge declared
that these principles have now become part of our law.

180
Supreme Court of India 1999 SOL Case No. 53, 27 January 1999, unreported.
 The Supreme Court discussed the development of the precautionary
principle in replacing the Assimilative Capacity Principle adopted at an
earlier point of time:

The principle of precaution involves the anticipation of

environmental harm and taking measures to avoid it or to
choose the least environmentally harmful activity. It is based on
scientific uncertainty. Environmental protection should not only
aim at protecting health, property and economic interest but
also protect the environment for its own sake. Precautionary
duties must not only be triggered by the suspicion of concrete
danger but also by (justified) concern or risk potential. The
precautionary principle was recommended by the UNEP
Governing Council (1989). The Bomako Convention also
lowered the threshold at which scientific evidence might
require action by not referring to ‘serious’ or ‘irreversible’ as
adjectives qualifying harm. However, summing up the legal
status of the precautionary principle, one commentator
characterized the principle as still ‘evolving’ for though it is
accepted as part of the international customary law, ‘the
consequences of its application in any potential situation will be
influenced by the circumstances of each case.’

The Court also discussed the issue of burden of proof in cases

involving the application of the precautionary principle. It is necessary that
the party attempting to preserve the status quo by maintaining a less-
polluted state should not carry the burden of proof. The party who wants to
alter it must bear this burden. The precautionary principle suggested that
where there is an identifiable risk of serious or irreversible harm, including,
for example, extinction of species, widespread toxic pollution in major
threats to essential ecological processes, it may be appropriate to place the
burden of proof on the person or entity proposing the activity that is
potentially harmful to the environment.

I. New Zealand

Ashburton Acclimatisation Society v. Federated Farmers of New

Zealand Inc.181 involved an appeal, referring back to the Planning Tribunal
for consideration, its report for a national water conservation order affecting
181
[1988] 1 NZLR 78 (CA).
the Raikaia River. The contest was between conservationists, who wished
the flow and characteristics of the river to be conserved, and farmers who
wished to use the water from the river for irrigation. It was submitted that if
implemented the report would unduly prejudice the rights and expectation of
the Farmers Federation.

At the heart of the appeal was the ground that the Tribunal had
misconstrued the Water and Soil Conservation Act by placing undue
emphasis upon protection of outstanding features of the river and by failing
to pay sufficient regard to the competing need of out of stream users, in
particular the needs of primary industry and the community. The Tribunal
had regarded the sustainability of the amenity afforded by the waters in their
natural state as being the overriding consideration.

The appellate court held that the Water and Soil Conservation Act, as
amended, placed emphasis on conservation of natural waters. Once it was
determined that the amenity afforded by the waters in their natural state
should be recognized and sustained, primacy was to be accorded to that
object, and it should not be defeated by striving to achieve a balance for
other users of water. The needs of primary industry were to be given weight
in considering an application for a conservation order, but this was to be
done bearing in mind that the primary object of the Act was the conservation
of waters in their natural state.

Greenpeace New Zealand Inc v. Minister for Fisheries182 involved a

total allowable commercial catch (TACC) for orange roughy set by the
Minister of Fisheries. Greenpeace applied for judicial review of the decision
on the basis that the orange roughy fishery was depleted and that overfishing
had endangered its survival. The New Zealand Fishing Industry Association
and others argued that “the research into the fishery has not yet been
sufficient to establish that the concerns of the applicant or the Ministry
scientists are justified and sees an excessive reduction as being not only
unjustified, but as imposing serious and unnecessary losses on the industry.”
Greenpeace argued that, in considering the TACC, the Minister was required
to apply the precautionary approach.

The Court held that the precautionary approach would also apply in
New Zealand. In the case under consideration, there was no statutory
obligation for the precautionary approach to be adopted under the Fisheries
182
High Court of New Zealand, CP 492/93, 27 November 1995, unreported.
Act 1983, but the statute reflected international obligations accepted by New
Zealand and that there is in that context at least a movement towards the
view that in questions of such moment, a degree of caution is appropriate.
The fact that a dispute exists as to the basic material upon which the decision
must rest, does not mean that necessarily the most conservative approach
must be adopted. The obligation is to consider the material and decide upon
the weight which can be given it with such care as the situation requires. In
the end this is a weighing and not a decisive factor. The Court held that the
precautionary approach must be applied by the Minister in formulating a
TACC. In assessing the information upon which a decision must be based,
the precautionary principle ought to be applied so that where uncertainty or
ignorance exists, decision-makers should be cautious.

VIII. STRATEGIC LEGAL ACTION AGAINST PUBLIC

PARTICIPATION (SLAPP)

A Strategic Lawsuit Against Public Participation or Strategic Legal

Action Against Public Participation (SLAPP) is a phenomenon that finds its
roots in U.S. litigation. It generally refers to a civil lawsuit for monetary
damages filed against non-governmental individuals and groups as
retaliation for the latter’s petitioning or communication to the government
(or other relevant body) on an issue of public concern, or to enforce a right
or law such as environmental rights or statutes.183 These suits are typically
reactions to past or anticipated opposition to such issues, and are usually
instituted not to vindicate any cognizable interest. Instead, a SLAPP is
brought to court to chill opposition.184 Many of these SLAPP actions are
brought within the context of environmental litigation, and thus deserve the
consideration of the Supreme Court in formulating the Rules of Procedure
for Environmental Cases.185

A SLAPP can be effective because it diverts attention away from the

petitioning party and can delay resolution of the original or real issue. In
addition, persons instituting a SLAPP typically have more resources to
183
See Mcbride, Edward W., The Empire State SLAPPs Back: New York’s
Legislative Response to SLAPP Suits, 17 Vt. L. Rev. 925 (1993). SLAPP was
initially analyzed by Penelope Canan and George W. Pring of the University of
Denver.
184
Id. at 926.
185
See Coover, Sheri, The 2nd Annual Goddard Forum Symposium: Global
Warming: Causes, Effects and Mitigation Strategies for States and Localities,
12 Penn St. Entl. L. Rev. 263, 264 (Winter 2004).
sustain litigation against smaller petitioning parties.186 In this regard, a
SLAPP suit is used to financially burden a petitioning party with frivolous
litigation. In the realm of environmental law where public participation is
central, chilling litigation serves as a serious obstacle to the enforcement of
environmental rights.

Constitutional Basis for Protection against a SLAPP Suit

The original basis for measures against SLAPP can be found in the
United States Constitution. First Amendment of the Constitution of the
United States of America (and several state constitutions in their own
manner) provides citizens with the right to free speech and the right to
petition the government to redress grievances of public matter.187 It is from
this superior law that states have enacted Anti-SLAPP legislation.188

Moreover, under the Noerr-Pennington doctrine, a citizen’s right to

petition the government should be protected regardless of whether the
motivation for doing so is to advance their own interests.189 Typically, in
order for a person to avail of the protection of an Anti-SLAPP law, he or she
must have communicated the complaint or information regarding the public
matter to the branch or agency of government instituting the SLAPP.190

Given the constitutional basis for Anti-SLAPP suits, one would

logically think that the protection afforded persons in such situations applies
only when a government body institutes a SLAPP. Such is the case in the
state of Florida.191 This limitation, however, is the exception to the general
practice.192 Other jurisdictions, such as the state of Oregon, are broader in
application, and have thus formulated Anti-SLAPP legislation to protect

186
See id., at 263.
187
See First Amendment, The Constitution of the United States of America.
188
See Mcbride, at 925.
189
See Coover, at 267-68. Footnote 23 states: “The Noerr-Pennington doctrine is based on two
Supreme Court cases - Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S.
127 (1961) and United Mine Workers v. Pennington, 381 U.S. 657 (1965). Although both of
these cases dealt with anti-trust litigation, the Noerr-Pennington doctrine has been extended to
protect other action in which a citizen or organization petitions the government. Barnes Found v.
Township of Lower Merion, 927 F. Supp 874 at 876 (E.D.Pa. 1996).”
190
See Mcbride, at 927.
191
Coover, at 277.
192
Id.
persons from SLAPPs instituted by private parties as well.193 For purposes
of adopting a more effective and comprehensive Rules of Procedure for
Environmental Cases, the Supreme Court has adopted the view that SLAPP
protection should also include protection against private parties such as
corporations.

Forms of SLAPP Suits

SLAPP suits can come in many seemingly valid forms of action such
as defamation suits,194 and tortious interference with contractual relations195
as they have been filed in the United States. Some Anti-SLAPP laws
recognize that a SLAPP can be brought before a court as a claim (instituted
as a lawsuit in the first instance), a counterclaim (brought within litigation
instituted against the SLAPP party)196, and a cross-claim197. This broad
approach is in line with a comprehensive approach to environmental
enforcement, especially since there is more than one way for alleged
environmental violators to institute a SLAPP.

Modes of Anti-SLAPP Procedure

Given the different aforementioned forms of SLAPP, Anti-SLAPP

legislation executes protection against SLAPP typically in a form of a
defense. Some U.S. state jurisdictions refer to this as qualified or
conditional immunity from civil liability.198 If a person falls under the
requirements mentioned above, he or she can avail of qualified immunity.

Some jurisdictions provide this immunity through a Special Motion to

Strike , Motion to dismiss, and/or Motion for Summary Judgment.200 In
199

193
See Oregon Anti-SLAPP Law - Title 3. Remedies and Special Actions and Proceedings,
Chapter 31. Tort Actions, Special Motion to Strike, ORS § 31.150 (2007).
194
Northon v. Rule, 494 F. Supp. 2d 1183, 2007 U.S. Dist. LEXIS 51537 (D. Or. 2007) (Oregon
– motion to strike applied to defamation suit).
195
Hometown Properties, Inc. v. Fleming, 680 A.2d 56 (R.I. 1996) (Rhode Island – anti-slapp
applied to tortious interference with contractual relations claim).
196
See Note under Washington Anti-SLAPP law, ARCW § 4.24.510 (2009), citing history at
2002 c 232 §2.
197
Florida Citizen Participation in Government Act -- Strategic Lawsuits Against Public
Participation (SLAPP) suits by governmental entities prohibited, Fla. Stat. §768.295 (2009).
198
See e.g. Title 9. Courts and Civil Procedure Generally, Chapter 33. Limits on Strategic
Litigation Against Public Participation, R.I. Gen. Laws §9-33-2 (2009).
199
See Oregon Anti-SLAPP Law.
200
See Coover, at 277-78.
most of these motions, the court sets hearings on the matter and relies on
affidavits and pleadings in making their determination.201

In the state of Maine, filing a motion to dismiss under an Anti-SLAPP

provision can be done within a 60-day period following the service of the
complaint, or at the court’s discretion, at any later time upon terms the court
determines proper.202 Given the potentially complex and tedious concerns of
establishing that a claim or counterclaim is a SLAPP, adopting this Maine
provision is ideal because it gives parties a “soft” period to resolve the
matter, and the judge the discretion to do the same at a later time.203
Moreover, after the court has decided that a SLAPP exists, it must dismiss
the SLAPP claim unless the non-moving party shows that the SLAPP target
initiated a “sham petition” (described below in greater detail), which action
was made in bad faith or intended to harass a passive enforcer or alleged
violator of the original issue.204

Other jurisdictions provide SLAPP protection in a more preventative

manner. The state of Georgia, for example, requires that a party initiating a
suit also submit a special verification with its pleading.205 The party initiating
the claim and his or her counsel must sign the verification.206 The signed
verification guarantees, among other things, that the “claim is not interposed
for any improper purpose such as to suppress a person’s or entity’s right of
free speech or right to petition government, or to harass, or to cause
unnecessary delay or needless increase in the cost of litigation.”207

If the claim does not have with it a verification that meets these
requirements, the claim shall be stricken unless the party makes the
corrections within 10 days after the omission is called to its attention.208 If
claim is verified, but violates the Anti-SLAPP law, the court upon motion or
its own initiative, shall impose upon the persons who signed the verification,
201
See Oregon Anti-SLAPP Law, at par. (4).
202
Osborn and Thaler, Feature: Maine’s Anti-SLAPP Law: Special Protection Against Improper
Lawsuits Targeting Free Speech and Petitioning, 23 Maine Bar J. 32, 34 (Winter 2008).
203
See id.
204
See id.
205
See Exercise of rights of freedom of speech and right to petition government for redress of
grievances; legislative findings; verification of claims; definitions; procedure on motions;
exception; attorney’s fees and expenses, §O.C.G.A. 9-11-11.1 (2009).
206
Id.
207
Id.
208
Id.
sanctions which may include dismissal of the claim and an order to pay to
the other party reasonable expenses plus attorney’s fees.209 Including a
similar provision to the Environmental Rules could add another layer of
protection from frivolous suits.

In Oregon, the defendant has the initial burden to establish that the
SLAPP claim arises out of an act protected by the constitution.210 If the
defendant meets this, the burden then shifts to the plaintiff to produce
evidence to support a prima facie case that the lawsuit is not a SLAPP.211 If
plaintiff is successful, then the courts deny the motion to strike.212 Rhode
Island’s Anti-SLAPP law is different insofar as the SLAPP plaintiff has the
burden of proving that the defendant’s petition was a sham petition and thus
did not qualify for immunity.213 In both these examples, the burden-shifting
aspect is that which makes the Anti-SLAPP motion to dismiss different from
the motion to dismiss falling under the normal rules of civil procedure.

The Washington Anti-SLAPP law provides for a more definitive

burden of proof for the SLAPP plaintiff in a defamation suit. It states that
the defamed party must show by clear and convincing evidence that the
defendant did not act in good faith when alleging a SLAPP.214 In contrast, the
Anti-SLAPP law in Georgia suggests that neither party has the burden of
proof on a motion to dismiss or strike under its Anti-SLAPP law “because
this issue is a matter of law for the trial court’s determination based upon the
pleadings rather than upon evidence presented by either party.”215

A “SLAPP-back” is a method for a party targeted by an alleged

SLAPP, to counter that SLAPP by instituting his or her own SLAPP. Some
jurisdictions such as Oregon, California, and Rhode Island have Anti-
SLAPP-back provisions that provide for damages to be awarded to a
plaintiff who successfully debunks the assertion that his or her claim was a

209
Id.
210
Oregon Anti-SLAPP Law, at par. (3).
211
Id.
212
Id.
213
Coover, at 278.
214
See Gilman v. MacDonald, 74 Wn. App. 733, 875 P.2d 697, review denied, 125 Wn.2d 1010,
889 P.2d 498 (1994); Right-Price Recreation, LLC v. Connells Prairie Cmty. Council, 146 Wn.2d
370, 46 P.3d 789 (2002).
215
Browns Mill Dev. Co. v. Denton, 247 Ga. App. 232, 543 S.E.2d 65 (2000), aff'd, 275 Ga. 2,
561 S.E.2d 431 (2002).
SLAPP action.216 In Oregon, the court can direct a defendant found to have
brought a frivolous Anti-SLAPP motion to strike to pay reasonable costs and
attorney fees to the plaintiff defending against the motion.217 In California,
the court is authorized to direct costs against a defendant if it is found that
the motion to strike was merely made to cause delay.218 Other jurisdictions,
such as Pennsylvania do not have such provisions.

As a matter of policy, Rhode Island does not allow SLAPP-Backs, as

they find the ruling (and its corresponding potential damages, costs, and fees
awarded) on a motion to dismiss based on an Anti-SLAPP legislation to be
sufficient in resolving the matter.219

Other jurisdictions allow, though not explicitly, the use of SLAPP-

backs to battle SLAPPs.220 The targets of original SLAPPs are attracted to
using SLAPP backs because of potential damages to be awarded in their
favor.221 The disadvantage of using this strategy is that it would entail more
costly litigation and further delay the already chilled original action seeking
to enforce environmental rights.222

For purposes of the Rules of Procedure for Environmental Cases, the

Supreme Court of the Philippines took into consideration all these modes of
anti-SLAPP measures and developed its own rules that are best suited for
environmental litigants in this jurisdiction. Due process for all parties of the
case is a primary consideration in these decisions.

Prohibition against Sham Petitions

As mentioned above, courts in several jurisdictions must dismiss a

claim that is found to be a SLAPP unless the SLAPP plaintiff establishes
that the SLAPP target originally engaged in a sham petition against the
SLAPP plaintiff (e.g. a citizen’s group puts forth a sham petition against a
government agency intended only to harass that agency). This made way for
the doctrine of “sham exception” to SLAPP suits.
216
Coover, at 280.
217
Id.
218
Id.
219
See Palazzo v. Alves, 944 A.2d 144, 2008 R.I. LEXIS 33 (R.I. 2008).
220
See Stetson, Mamie, Reforming SLAPP Reform: New York’s Anti-SLAPP Statute, 70 N.Y.U.L.
Rev. 1324, 1351-1353 (1995).
221
See id.
222
See id.
 The U.S. Supreme Court developed a two-part test to determine if an
action that is filed with the government falls under the sham exception.223
First, the Court identified that a “sham” petition is baseless in that “no
reasonable litigant could realistically expect success on the merits.”224
Second, a “sham” petition is directed at injuring the opposition through the
use of government process, as opposed to the outcome of the process. 225 For
purposes of the Environmental Rules, it would be advisable to add language
to an Anti-SLAPP provision reflecting the court’s ability to dismiss a
SLAPP unless the original petition against the government or other alleged
violating body was a sham petition as defined under U.S. laws. This ruling
reflects the involvement of jurisprudence in determining the difficult issues
associated with SLAPP.

Compensatory and Punitive Damages, Reasonable Costs and Attorney’s

Fees

To further the policy of providing disincentives to instituting SLAPPs,

Anti-SLAPP legislation provides courts with the authority to award
compensatory and punitive damages, reasonable costs, and attorney’s fees to
successful movants against SLAPPs.226 Delaware, Minnesota and Rhode
Island provide for punitive damages for cases where it is established that the
suit was brought for the purpose of harassing, intimidating, punishing or
otherwise maliciously inhibiting the free exercise of petition, speech or
assembly.227 In Hawaii, a court should direct a plaintiff found instituting a
SLAPP the greater amount of $5,000 or actual damaged incurred by the
defendant, plus costs, attorney’s fees, and any additional sanctions it may
deem necessary.228

Conversely, in Oregon, if the court determines that a SLAPP-back

was instituted (meaning the defendant responded with a SLAPP of his/her
own in violation of the law), then the defendant should pay reasonable costs
and attorney fees.229
223
See Coover at 268, citing Prof’l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc.,
508 U.S. 49, 60-62 (1993).
224
Id.
225
Id.
226
Coover, 279-280.
227
Id., at 279.
228
Id., at 279-280.
229
Id., at 280.
 Georgia provides that attorney’s fees and expenses may be requested
by motion at any time during the course of the action but not later than 45
days after final disposition, including but not limited to dismissal by the
plaintiff of the action.230 Notably, failure to request for damages in the
original adjudication of SLAPP issues may bar a party from requesting for
such damages on appeal.231

Our Supreme Court has taken into consideration the importance of

awarding damages, litigation costs and attorney’s fees to the successful party
in a SLAPP determination. It recognized that the aim is to not only defray
the costs of excess litigation, but also to establish a disincentive for parties to
institute a SLAPP.

The Role of Government in SLAPP Cases

Some U.S. jurisdictions, such as Washington, Nevada and

Pennsylvania, provide that a government agency may intervene or
participate in the lawsuit.232 In some of these states, the agency to which the
communication was made has the option of providing the defense against a
lawsuit that pertains to the exercise of the defendant’s free speech.233 In
Nevada, the Attorney General may replace the government agency to which
the communication was made in defending a SLAPP action.234

In Florida, the governmental entity that is found to violate this section

shall report such a ruling to Attorney General no later than 30 days after
order is final.235 The Attorney General shall then report to Cabinet, Senate
president and Speaker of the House.236

Given these practices, in the Philippines, the Supreme Court assessed

the role of appropriate government agencies and the Department of Justice in
the Rules of Procedure for Environmental Cases.

230
Georgia Anti-SLAPP Law, at par. (f).
231
See Palazzo, at 33.
232
Coover, at 280.
233
Id.
234
Id.
235
Florida Anti-SLAPP Law, at par. (6).
236
Id.
Voluntary Dismissal of a Lawsuit by a Plaintiff

In cases where the SLAPP is in the form of an initial claim, Georgia

provides that a voluntary dismissal of such lawsuit by plaintiff does not
preclude imposition of a sanction under the law.237

Other jurisdictions are more lenient. The Anti-SLAPP law in New

York for example, contains a safe-harbor provision that gives the SLAPP
plaintiff a period in which he or she may voluntarily withdraw the SLAPP
without fear of being penalized for the same.238 In this regard, a sanctions
motion cannot be filed at least twenty-one days after being served, and the
original filer of the lawsuit may withdraw the suit during the twenty-one
days without impunity.239 This creates an effective incentive to withdraw a
SLAPP, but also allows the SLAPP filer to enjoy the chilling effect of his or
her lawsuit for twenty-one days without sanction.240

Admission of Evidence and Preclusion of Recovery

Oregon has a provision states that if the plaintiff (the party accused of
instituting a SLAPP) wins the SLAPP motion, the fact that the determination
has been made and the substance of the same may not be admitted into
evidence at any later stage of the case.241 The determination also does not
affect the burden of proof standard applied to the proceeding.242 The
Philippine Supreme Court has taken into account the ramifications of
allowing evidence submitted during a SLAPP hearing, to be admitted in the
subsequent trial.

IX. CRIMINAL PROCEDURE FOR ENVIRONMENTAL

CASES

The TWG has also proposed a stringent provision with regard to bail
in environmental criminal actions. Proposed Rule 12, Section 3 states:

237
See Hagemann v. Berkman Wynhaven Assoc., L.P., 290 Ga. App. 677, 660 S.E.2d 449 (2008).
238
Stetson, at 1345.
239
Id.
240
Id.
241
See Oregon Anti-SLAPP Law, at par. (5) (a).
242
Id., at par. (5)(b).
 No bail during inquest – During inquest, the suspect detainee is not
entitled to bail during inquest.

The TWG is weighing the importance of this strict provision and

attempting to strike a balance between the rights of the accused and the
rights of the complainant in an environmental case. For obvious reasons, a
stringent bail provision would serve as a deterrent against environmental
crimes.

IV. CONCLUSION: EXPERIENCE OF OTHER STATES IN

ENVIRONMENTAL LAW

I. On Types of Environmental Court

A. Specialized Courts (New South Wales, Australia; New Zealand;
Vermont, USA)
B. Specialized Court Branches or “Green Benches” (Philippines,
Netherlands, Finland, Thailand, Kenya Supreme Court)

C. Quasi-Judicial Bodies (US Environmental Protection Agency;

Philippines’ Mines Adjudication Board, Pollution Adjudication
Board; Kenya’s National Environmental Tribunal)

D. Other specialized forums (India’s special court-appointed

commissions; Japan’s and Korea’s non-judicial ADR bodies;
Kenya and Austria’s special environmental Ombudsmen

II. On Standing
A. Liberal Approach (India, Finland, Belgium, Austria, Canada, USA,
Australia, South Africa)
B. Strict Approach (Ireland, Bangladesh)
C. Standing of NGOs (Malaysia Bakun Dam case)

III. On Specialized Environmental Prosecutors (Brazil)

IV. On Expert Evidence

 A. Court-appointed and -paid independent experts (Ontario, Canada)
B. Rely solely on expert witnesses presented by the parties, the so-
called “battle of the experts” (US EPA, Vermont)
C. Rely on government experts (New York City)
D. Appoint experts (scientists, engineers, etc.) as judges, with equal
weight given to their opinions as to the legal judges on the panel
(Sweden has a lawyer and a chemical engineer as judges on one
panel)
E. Keep lists of volunteer experts in various disciplines in academia,
think tanks, consulting firms, etc., on whom the court can call
(Denmark, Belgium)
F. Make parties’ experts swear to represent only the court, not the
parties (although the parties are paying the experts) or be in
contempt of court (New South Wales)
G. Require parties’ experts to focus only on issues of professional
disagreement, possibly putting both sides’ experts on the witness
stand together and having them respond directly to each others’
points of disagreement – so-called “hottubbing” (New South
Wales)
H. Utilize site visits to see, evaluate, and make informed judgments
(Ireland, Brazil, Vermont);

I. Appoint special commissions of experts to investigate and report

their recommendations back to court (India);

J. Rely completely on the record of the preceding decision maker or

court for expert testimony (Tasmania, Australia; Finland)

K. Employ trial de novo, starting over with testimony from the same
or different experts (Vermont)

V. On Alternative Dispute Resolution (ADR)

a. Generally no ADR, except for judge-supervised settlement
conferences. (In jurisdictions more focused on “rule of law” such
 as Sweden, Finland, Denmark)

b. Mediation widely used (Tasmania, Vermont, New Zealand)

or being promoted (Indonesia, Japan, Thailand, China)

c. Restorative justice in criminal cases – cooperative sessions

focused on the harm to the victims and society rather than just
penalizing the wrong-doer (New Zealand)

d. Ombudsmen are utilized in some jurisdictions (Austria,

Kenya) – individuals or commissions separate from the court and
the environmental agency who negotiate the interests of the public,
may have standing to represent concerned parties in court, and can
monitor outcomes of court orders.

VI. On Reduction of Costs

VII. On Liability for Costs of Litigation
VIII. On Case Management

1. Appointment of a court staff as “Case Manager”

2. Information Technology
3. Conduct of “Directions Hearing”
4. Mobile Courts
5. Simplified Rules of Procedure

In conclusion, the Proposed Rule is taking great strides in paving

avenues for the proper disposition of environmental justice. To be sure,
there are several other jurisdictions to use as guidance for the progression of
our environmental law. Constitutional recognition of environmental rights
has been the norm in a number of states. This is in lieu of a formal
definition of what environmental law really is. Constitutional recognition of
environmental rights may come in either of two forms: either as a
fundamental right or as a statement of policy. South Africa, for example, has
classified the right to a healthy environment as a right in the South African
Constitution’s Bill of Rights.

In another example, Indian courts have offered remedies of directions,

injunction, and civil and criminal damages. The power of courts is broad.
For instance, they have created panels for litigation to track progress and
ordered unconditional closures. The courts have required necessary
measures to be taken to inform the public of dangers, and even ordered
necessary actions to have proper legislation passed to remedy the
environmental harm the obstacle preventing its correction.243

For purposes of our context, the rights-based approach, in tandem

with our Constitution, jurisprudence, international norms, and foreign best
practices will together serve as the most comprehensive guide for our
finalization of the Proposed Rule.

243
Jona Razzaque, Background Paper No. 4: Human Rights and the Environment: the national experience
in South Asia and Africa, in the Joint UNEP-OHCHR Expert Seminar on Human Rights and the
Environment (UNEP-OHCHR 2002).