Republic of the Philippines NATIONAL CAPITAL JUDICIAL REGION Supreme Court Manila City ____ Division THE CITY

OF DAVAO, ET. AL. Petitioner- Appellants, -versusPILIPINO BANANA GROWERS AND EXPORTERS ASSOCIATION INC., Respondent- Appellees. x-----------------------------------------------------x G.R. NO.______________

Petition for Intervention

The Intervenor, Department of Environment and Natural Resources, through counsel, respectfully states: The Department of Environment and Natural Resources (DENR) is mandated to be the primary agency responsible for the conservation, management, development, and proper use of the countrys environment and natural resources. With this mandate, which emanates from the constitutional policy of the state to protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature, the DENR seeks to intervene in the case at bar in so far as the issue involves the conservation and preservation of the countrys environment in order to protect the aforementioned right.

ARGUMENTS
Upon the enactment of the Local Government Code of 1991, and following the policy of the State to ensure autonomy of local governments, national governmental powers were devolved to local government units. While the power to implement measures to protect the environment was also devolved to local government units, such power is still subject to the control and supervision of the DENR. There is no usurpation of power of the DENR by the City of Davao in enacting the challenged ordinance. Their power to do so is anchored on the powers granted to them by the Local Government Code. Moreover, the City of Davao did not unreasonably exercise its delegated police power granted by Local Government Code, giving the Sangguniang Panglungsod the power to enact ordinances for the general welfare of the city and its inhabitants.1 The general welfare of the people includes the protection of the environment and the imposition of appropriate penalties for acts which endanger the environment such as pollution as mentioned in Article 458 of the LGC. Particularly, SEC. 458. - Powers, Duties, Functions and Compensation.

(a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code 5) xxx (vi) Protect the environment and impose appropriate penalties for acts which endanger the environment, such as dynamite fishing and other forms of destructive fishing, illegal logging and smuggling of logs, smuggling of natural resources products and of endangered species of flora and fauna, slash and burn farming, and such other activities which result in pollution, acceleration of eutrophication of rivers and lakes, or of ecological imbalance; What the City of Davao did in the case at bar may be likened to what transpired in the case of Tatet v. Socrates wherein the validity of two ordinances, the first one, passed by the Legislative Council of Puerto Princesa City banning the export of live fish from the city to prevent cyanide fishing and the second ordinance passed by the Sanguniang Panlalawigan of the Province of Palawan, on the other hand, prohibiting the catching of certain coral-dwelling aquatic organisms for a period of five (5) years were questioned on the ground that the ordinances deprived them of their livelihood without due process of law. The ordinances were upheld to be valid because they meant to protect and conserve marine resources to the end that their enjoyment may be guaranteed not only for the present generation, but also for generations to come. The States policy enshrined in the Constitution regarding the duty of the State to protect and advance the right of the people to a healthful and balances ecology in accord with the rhythm and harmony of nature and the general welfare clause of the Local Government Code of 1991 which expressly mentions said right in the statement "within their respective territorial jurisdictions, local government units shall ensure and support, among others, the preservation and enrichment of culture, and enhance the right of the people to a balance ecology" were given emphasis as well. Albeit the case does not fall squarely with the present situation as Davao is not seeking to protect marine life but marine resources might as well be encompassed under the reason why Davao City Ordinance 03-09-07 was enacted- to protect both the environment (which include land and aquatic life) and also the inhabitants of those people living in the affected area.
2

According to the decision of the Court of Appeals, local governments must have a lawful subject and a lawful method in order to validly exercise its police power. In this case, the City of Davao, in enacting the contested ordinance, fulfilled said requirements. The publics interest and right to life and to a healthful ecology as mandated by the Constitution gave rise to the City of Davaos exercise of its police power. Undeniably, the city ordinance has a lawful subject which is the protection of the public health and the environment against the harmful effects of the pesticides or fungicides. Both the banana planters and those inhabitants in the surrounding area of the plantations would greatly benefit from the switching of methods. As regards the finding of the Court of Appeals that the means employed was unreasonable and unduly oppressive to individuals, the DENR finds that it was insufficiently shown that switching from aerial spraying to ground spraying in three (3) months was unreasonable. Grantia argumenti that there it would take three years to build roads should they opt for truck mounted boom spraying or that the other two methods mentioned were not as effective, there are other methods that may be availed of by the banana growers to control the insect problems and not just those enumerated by the court to enable it to comply with the required period. The court should not have limited the options as there are invariably other methods out there which if given proper attention would just be as effective.

To reiterate, the potential health problems and the escalating concerns over the effects of the aerial spraying of pesticides prompted the City of Davao to enact the disputed ordinance. There need not be an actual injury or epidemic for it to act. The Sangguniang Panglungsod should be afforded the presumption of the regularity of work when they enacted the said ordinance and that they have weighed the matters at hand carefully when they did so. As a matter of fact, it had been reported in the news that before coming out with the ordinance, the city council had created a Technical Working Group, which included representatives from NGOs, affected communities and PBGEA(PILIPINO BANANA GROWERS AND EXPORTERS ASSOCIATION INC.). The city government also created a factfinding team headed by City Planning and Development Coordinator Mario Luis Jacinto to look into the issue. After collating all the data, the joint committees on environment, agriculture and health of the city council issued their report, which said in part: We have heard both sides of the issue: Public health and environment vs. local economy. The two are of great importance to any civilization. But when both factors collide, the policy of the State comes in to shed light and to remind us of the basic framework in which the government is created. Pesticides are poisonous, aerially spraying it is a nuisance, banning its aerial application is a justified response, the joint committee asserted. Can anyone imagine an urban area being aerially sprayed with pesticides? What makes the life and safety of the inhabitants of a community in nearby agricultural entities less? To remain indifferent to the plight of those being aerially sprayed with pesticides is inhuman. (Emphasis supplied.) Therefore, it was a choice between right to life and to right to property and clearly the Sangguniang Panglungsod chose the right to life when they decided to pass that city ordinance. After all, the right to life has primacy over the right to property in our hierarchy of rights.
3

Apart from the Local Government Code of 1991, the DENR anchors its stand that there had been no usurpation of its powers on the Clean Air Act of 1999, also known as Republic Act No. 8749, wherein the role of the local government units has been laid out, specifically under Section 36: SEC. 36. Role of Local Government Units.- Local Government Units (LGUs) shall share the responsibility in the management and maintenance of air quality within their territorial jurisdiction. Consistent with Sections 7, 8 and 9 of this Act, LGUs shall implement air quality standards set by the Board in areas within their jurisdiction; Provided, however, That in case where the board has not been duly constituted and has not promulgated its standards, the standards set forth in this Act shall apply. The Department (DENR) shall provide the LGUs with technical assistance, trainings and a continuing capability-building program to prepare them to undertake full administration of the air quality management and regulation within their territorial jurisdiction. (Emphasis supplied.) Clearly, the DENR does not have the exclusive power or sole responsibility to carry out the Constitutional mandate to care for the environment. The various local government units have also been tapped in our collective effort to have that balanced and healthful ecology. The Implementing Rules and Regulations of R.A. 8749 issued by the DENR supports the validity of the enactment of City Ordinance 03-09-07. Under Rule XLV of the IRR: Subject to Section 36 of the Act and pursuant to the Local Government Code (R.A. 7160) and other pertinent laws, the Local Government Units (LGUs) shall have the following roles within their respective territorial jurisdiction:

(a) To share the responsibility in the management and maintenance of air quality within their respective territorial jurisdiction; (b) To implement air quality standards set by the Governing Board, consistent with Sections 7, 8 and 9 of the Act; (c) To establish an Environment and Natural Resources Office (ENRO) in every province, city, or municipality which shall be headed by the environment and natural resources officer appointed by the chief executive of every province, city or municipality in accordance with the provisions of Section 484 of the R.A. 7160 and to exercise powers and duties set forth in Section 37 of the Act; (d) xxx (e) To prepare and implement a program and other measures including relocation, whenever necessary, to protect the health and welfare of residents in the area; (f) xxx (g) xxx To perform such other powers and functions as may be provided by applicable laws, rules and regulations. The Department shall provide the LGUs with technical assistance, training and a continuing capability-building program to prepare them to undertake full administration of the air quality management and regulations within their territorial jurisdiction. (Emphasis supplied.) This is one of the instances that show that the DENR has successfully forged a partnership with the local government units to help protect the right to a balanced and healthful society to which every Filipino (including those generations yet unborn) is entitled to as highlighted by the leading case of Oposa v. Factoran4, to wit: The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. Footnotes:
1

Local Government Code of 1991, Sec. 16.General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. SEC. 458. - Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code (5) xxx (vi) Protect the environment and impose appropriate penalties for acts which endanger the environment, such as dynamite fishing and other forms of destructive fishing, illegal logging and smuggling of logs, smuggling of natural resources products and of endangered species of flora and fauna, slash and burn farming, and such other activities which result in pollution, acceleration of eutrophication of rivers and lakes, or of ecological imbalance;

2 3 4

G.R. No. 110249, 21 August 199. http://www.verafiles.org/index.php/focus/128-davao-aerial-pesticide-row-tests-lgu-power 224 SCRA 792 (1993)

PRAYER
WHEREFORE, it is respectfully prayed that judgment be rendered in favor of the City of Davao 1. Finding the City Ordinance 03-09-07 valid and constitutional. 2. Dismissing the claim against the appellant local government unit for there was no usurpation of the DENRs public function or power. Other reliefs are likewise prayed for. February 20, 2009, Makati City for Manila City.

For the Department of Environment and Natural Resources Cruz and Talon Law Office Makati City By: Edel O. Cruz Krizia Katrina Leanne D. Talon