A.M. No. 09-6-8-SC
1586, Establishing an Environmental Impact
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
PART I
RULE 1
GENERAL PROVISIONS
Section 1. Title. These Rules shall be known as "The Rules of
Procedure for Environmental Cases."
Section 2. Scope. These Rules shall govern the procedure in civil,
criminal and special civil actions before the Regional Trial Courts,
Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal
Trial Courts and Municipal Circuit Trial Courts involving enforcement
or violations of environmental and other related laws, rules and
regulations such as but not limited to the following:
(a) Act No. 3572, Prohibition Against Cutting of Tindalo, Akli,
and Molave Trees;
(b) P.D. No. 705, Revised Forestry Code;
(c) P.D. No. 856, Sanitation Code;
(d) P.D. No. 979, Marine Pollution Decree;
(e) P.D. No. 1067, Water Code;
(f) P.D. No. 1151, Philippine Environmental Policy of 1977;
(g) P.D. No. 1433, Plant Quarantine Law of 1978;
(h) P.D. No.
Statement System Including Other Environmental Management
Related Measures and for Other Purposes;
(i) R.A. No. 3571, Prohibition Against the Cutting, Destroying
or Injuring of Planted or Growing Trees, Flowering Plants and
Shrubs or Plants of Scenic Value along Public Roads, in Plazas,
Parks, School Premises or in any Other Public Ground;
(j) R.A. No. 4850, Laguna Lake Development Authority Act;
(k) R.A. No. 6969, Toxic Substances and Hazardous Waste Act;
(l) R.A. No. 7076, Peoples Small-Scale Mining Act;
(m) R.A. No. 7586, National Integrated Protected Areas
System Act including all laws, decrees, orders, proclamations
and issuances establishing protected areas;
(n) R.A. No. 7611, Strategic Environmental Plan for Palawan
Act;
(o) R.A. No. 7942, Philippine Mining Act;
(p) R.A. No. 8371, Indigenous Peoples Rights Act;
(q) R.A. No. 8550, Philippine Fisheries Code;
(r) R.A. No. 8749, Clean Air Act;
(s) R.A. No. 9003, Ecological Solid Waste Management Act;
(t) R.A. No. 9072, National Caves and Cave Resource
Management Act;
 (u) R.A. No. 9147, Wildlife Conservation and Protection Act;
(v) R.A. No. 9175, Chainsaw Act;
(w) R.A. No. 9275, Clean Water Act;
(x) R.A. No. 9483, Oil Spill Compensation Act of 2007; and
Section 4. Definition of Terms. -
(y) Provisions in C.A. No. 141, The Public Land Act; R.A. No.
6657, Comprehensive Agrarian Reform Law of 1988; R.A. No.
7160, Local Government Code of 1991; R.A. No. 7161, Tax
Laws Incorporated in the Revised Forestry Code and Other
Environmental Laws (Amending the NIRC); R.A. No. 7308,
Seed Industry Development Act of 1992; R.A. No. 7900, High-
Value Crops Development
Rules of Procedure for Environmental Cases Act; R.A. No. 8048,
Coconut Preservation Act; R.A. No. 8435, Agriculture and Fisheries
Modernization Act of 1997; R.A. No. 9522, The Philippine
Archipelagic Baselines Law; R.A. No. 9593, Renewable Energy Act of
2008; R.A. No. 9637, Philippine Biofuels Act; and other existing laws
that relate to the conservation, development, preservation, protection
and utilization of the environment and natural resources.
Section 3. Objectives. - The objectives of these Rules are:
(a) To protect and advance the constitutional right of the people
to a balanced and healthful ecology;
(b) To provide a simplified, speedy and inexpensive procedure
for the enforcement of environmental rights and duties
recognized under the Constitution, existing laws, rules and
regulations, and international agreements;
(c) To introduce and adopt innovations and best practices
ensuring the effective enforcement of remedies and redress for
violation of environmental laws; and
(d) To enable the courts to monitor and exact compliance with
orders and judgments in environmental cases.
(a) By-product or derivatives means any part taken or
substance extracted from wildlife, in raw or in processed form
including stuffed animals and herbarium specimens. 1avvphi1
(b) Consent decree refers to a judicially-approved settlement
between concerned parties based on public interest and public
policy to protect and preserve the environment.
(c) Continuing mandamus is a writ issued by a court in an
environmental case directing any agency or instrumentality of
the government or officer thereof to perform an act or series of
acts decreed by final judgment which shall remain effective
until judgment is fully satisfied.
(d) 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.
(e) Mineral refers to all naturally occurring inorganic substance
in solid, gas, liquid, or any intermediate state excluding energy
materials such as coal, petroleum, natural gas, radioactive
materials and geothermal energy.
(f) Precautionary principle states that when human activities
may lead to threats of serious and irreversible damage to the
 environment that is scientifically plausible but uncertain,
actions shall be taken to avoid or diminish that threat.
(g) Strategic lawsuit against public participation (SLAPP)
refers to an action whether civil, criminal or administrative,
brought against any person, institution or any government
agency or local government unit or its officials and employees,
with the intent to harass, vex, exert undue pressure or stifle any
legal recourse that such person, institution or government
agency has taken or may take in the enforcement of
environmental laws, protection of the environment or assertion
of environmental rights.
(h) Wildlife means wild forms and varieties of flora and fauna,
in all developmental stages including those which are in
captivity or are being bred or propagated.
PART II
CIVIL PROCEDURE
RULE 2
PLEADINGS AND PARTIES
Section 1. Pleadings and motions allowed. The pleadings and
motions that may be filed are complaint, answer which may include
compulsory counterclaim and cross-claim, motion for intervention,
motion for discovery and motion for reconsideration of the judgment.
Motion for postponement, motion for new trial and petition for relief
from judgment shall be allowed in highly meritorious cases or to
prevent a manifest miscarriage of justice.
Section 2. Prohibited pleadings or motions. The following
pleadings or motions shall not be allowed:
(a) Motion to dismiss the complaint;
(b) Motion for a bill of particulars;
(c) Motion for extension of time to file pleadings, except to file
answer, the extension not to exceed fifteen (15) days;
(d) Motion to declare the defendant in default;
(e) Reply and rejoinder; and
(f) Third party complaint.
Section 3. Verified complaint. The verified complaint shall contain
the names of the parties, their addresses, the cause of action and the
reliefs prayed for.
The plaintiff shall attach to the verified complaint all evidence proving
or supporting the cause of action consisting of the affidavits of
witnesses, documentary evidence and if possible, object evidence. The
affidavits shall be in question and answer form and shall comply with
the rules of admissibility of evidence.
The complaint shall state that it is an environmental case and the law
involved. The complaint shall also include a certification against
forum shopping. If the complaint is not an environmental complaint,
the presiding judge shall refer it to the executive judge for re-raffle.
Section 4. Who may file. Any real party in interest, including the
government and juridical entities authorized by law, may file a civil
action involving the enforcement or violation of any environmental
law.
Section 5. Citizen suit. Any Filipino citizen in representation of
others, including minors or generations yet unborn, may file an action
to enforce rights or obligations under environmental laws. Upon the
filing of a citizen suit, the court shall issue an order which shall
contain a brief description of the cause of action and the reliefs prayed
for, requiring all interested parties to manifest their interest to
intervene in the case within fifteen (15) days from notice thereof. The
plaintiff may publish the order once in a newspaper of a general
circulation in the Philippines or furnish all affected barangays copies
of said order.
Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall be
governed by their respective provisions.
Section 6. Service of the complaint on the government or its agencies.
- Upon the filing of the complaint, the plaintiff is required to furnish
the government or the appropriate agency, although not a party, a copy
of the complaint. Proof of service upon the government or the
appropriate agency shall be attached to the complaint.
Section 7. Assignment by raffle. - If there is only one (1) designated
branch in a multiple-sala court, the executive judge shall immediately
refer the case to said branch. If there are two (2) or more designated
branches, the executive judge shall conduct a special raffle on the day
the complaint is filed.
Section 8. Issuance of Temporary Environmental Protection Order
(TEPO). - If it appears from the verified complaint with a prayer for
the issuance of an Environmental Protection Order (EPO) that the
matter is of extreme urgency and the applicant will suffer grave
injustice and irreparable injury, the executive judge of the multiple-
sala court before raffle or the presiding judge of a single-sala court as
the case may be, may issue ex parte a TEPO effective for only
seventy-two (72) hours from date of the receipt of the TEPO by the
party or person enjoined. Within said period, the court where the case
is assigned, shall conduct a summary hearing to determine whether the
TEPO may be extended until the termination of the case.
The court where the case is assigned, shall periodically monitor the
existence of acts that are the subject matter of the TEPO even if issued
by the executive judge, and may lift the same at any time as
circumstances may warrant.
The applicant shall be exempted from the posting of a bond for the
issuance of a TEPO.
Section 9. Action on motion for dissolution of TEPO. - The grounds
for motion to dissolve a TEPO shall be supported by affidavits of the
party or person enjoined which the applicant may oppose, also by
affidavits.
The TEPO may be dissolved if it appears after hearing that its issuance
or continuance would cause irreparable damage to the party or person
enjoined while the applicant may be fully compensated for such
damages as he may suffer and subject to the posting of a sufficient
bond by the party or person enjoined.
Section 10. Prohibition against temporary restraining order (TRO)
and preliminary injunction. - Except the Supreme Court, no court can
issue a TRO or writ of preliminary injunction against lawful actions of
government agencies that enforce environmental laws or prevent
violations thereof.
Section 11. Report on TEPO, EPO, TRO or preliminary injunction. -
The judge shall report any action taken on a TEPO, EPO, TRO or a
preliminary injunction, including its modification and dissolution, to
the Supreme Court, through the Office of the Court Administrator,
within ten (10) days from the action taken.
Section 12. Payment of filing and other legal fees. - The payment of
filing and other legal fees by the plaintiff shall be deferred until after
judgment unless the plaintiff is allowed to litigate as an indigent. It
shall constitute a first lien on the judgment award.
For a citizen suit, the court shall defer the payment of filing and other
legal fees that shall serve as first lien on the judgment award.
Section 13. Service of summons, orders and other court processes. -
The summons, orders and other court processes may be served by the
sheriff, his deputy or other proper court officer or for justifiable
reasons, by the counsel or representative of the plaintiff or any suitable
person authorized or deputized by the court issuing the summons.
Any private person who is authorized or deputized by the court to
serve summons, orders and other court processes shall for that purpose
be considered an officer of the court.
The summons shall be served on the defendant, together with a copy
of an order informing all parties that they have fifteen (15) days from
the filing of an answer, within which to avail of interrogatories to
parties under Rule 25 of the Rules of Court and request for admission
by adverse party under Rule 26, or at their discretion, make use of
depositions under Rule 23 or other measures under Rules 27 and 28.
Should personal and substituted service fail, summons by publication
shall be allowed. In the case of juridical entities, summons by
publication shall be done by indicating the names of the officers or
their duly authorized representatives.
Section 14. Verified answer. - Within fifteen (15) days from receipt of
summons, the defendant shall file a verified answer to the complaint
and serve a copy thereof on the plaintiff. The defendant shall attach
affidavits of witnesses, reports, studies of experts and all evidence in
support of the defense.
Affirmative and special defenses not pleaded shall be deemed waived,
except lack of jurisdiction.
Cross-claims and compulsory counterclaims not asserted shall be
considered barred. The answer to counterclaims or cross-claims shall
be filed and served within ten (10) days from service of the answer in
which they are pleaded.
Section 15. Effect of failure to answer. - Should the defendant fail to
answer the complaint within the period provided, the court shall
declare defendant in default and upon motion of the plaintiff, shall
receive evidence ex parte and render judgment based thereon and the
reliefs prayed for.
RULE 3
PRE-TRIAL
Section 1. Notice of pre-trial. - Within two (2) days from the filing of
the answer to the counterclaim or cross-claim, if any, the branch clerk
of court shall issue a notice of the pre-trial to be held not later than one
(1) month from the filing of the last pleading.
The court shall schedule the pre-trial and set as many pre-trial
conferences as may be necessary within a period of two (2) months
counted from the date of the first pre-trial conference.
Section 2. Pre-trial brief. - At least three (3) days before the pretrial,
the parties shall submit pre-trial briefs containing the following:
(a) A statement of their willingness to enter into an amicable
settlement indicating the desired terms thereof or to submit the
case to any of the alternative modes of dispute resolution;
 (b) A summary of admitted facts and proposed stipulation of
facts;
(c) The legal and factual issues to be tried or resolved. For each
factual issue, the parties shall state all evidence to support their
positions thereon. For each legal issue, parties shall state the
applicable law and jurisprudence supporting their respective
positions thereon;
(d) The documents or exhibits to be presented, including
depositions, answers to interrogatories and answers to written
request for admission by adverse party, stating the purpose
thereof;
(e) A manifestation of their having availed of discovery
procedures or their intention to avail themselves of referral to a
commissioner or panel of experts;
(f) The number and names of the witnesses and the substance
of their affidavits;
(g) Clarificatory questions from the parties; and
(h) List of cases arising out of the same facts pending before
other courts or administrative agencies. Failure to comply with
the required contents of a pre-trial brief may be a ground for
contempt.
Failure to file the pre-trial brief shall have the same effect as failure to
appear at the pre-trial.
Section 3. Referral to mediation. - At the start of the pre-trial
conference, the court shall inquire from the parties if they have settled
the dispute; otherwise, the court shall immediately refer the parties or
their counsel, if authorized by their clients, to the Philippine Mediation
Center (PMC) unit for purposes of mediation. If not available, the
court shall refer the case to the clerk of court or legal researcher for
mediation.
Mediation must be conducted within a non-extendible period of thirty
(30) days from receipt of notice of referral to mediation.
The mediation report must be submitted within ten (10) days from the
expiration of the 30-day period.
Section 4. Preliminary conference. - If mediation fails, the court will
schedule the continuance of the pre-trial. Before the scheduled date of
continuance, the court may refer the case to the branch clerk of court
for a preliminary conference for the following purposes:
(a) To assist the parties in reaching a settlement;
(b) To mark the documents or exhibits to be presented by the
parties and copies thereof to be attached to the records after
comparison with the originals;
(c) To ascertain from the parties the undisputed facts and
admissions on the genuineness and due execution of the
documents marked as exhibits;
(d) To require the parties to submit the depositions taken under
Rule 23 of the Rules of Court, the answers to written
interrogatories under Rule 25, and the answers to request for
admissions by the adverse party under Rule 26;
(e) To require the production of documents or things requested
by a party under Rule 27 and the results of the physical and
mental examination of persons under Rule 28;
 (f) To consider such other matters as may aid in its prompt
disposition;
(g) To record the proceedings in the "Minutes of Preliminary
Conference" to be signed by both parties or their counsels;
(h) To mark the affidavits of witnesses which shall be in
question and answer form and shall constitute the direct
examination of the witnesses; and
(i) To attach the minutes together with the marked exhibits
before the pre-trial proper.
The parties or their counsel must submit to the branch clerk of court
the names, addresses and contact numbers of the affiants.
During the preliminary conference, the branch clerk of court shall also
require the parties to submit the depositions taken under Rule 23 of the
Rules of Court, the answers to written interrogatories under Rule 25
and the answers to request for admissions by the adverse party under
Rule 26. The branch clerk of court may also require the production of
documents or things requested by a party under Rule 27 and the results
of the physical and mental examination of persons under Rule 28.
Section 5. Pre-trial conference; consent decree. - The judge shall put
the parties and their counsels under oath, and they shall remain under
oath in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties to arrive at a
settlement of the dispute. The judge may issue a consent decree
approving the agreement between the parties in accordance with law,
morals, public order and public policy to protect the right of the people
to a balanced and healthful ecology.
Evidence not presented during the pre-trial, except newly-discovered
evidence, shall be deemed waived.
Section 6. Failure to settle. - If there is no full settlement, the judge
shall:
(a) Adopt the minutes of the preliminary conference as part of
the pre-trial proceedings and confirm the markings of exhibits
or substituted photocopies and admissions on the genuineness
and due execution of documents;
(b) Determine if there are cases arising out of the same facts
pending before other courts and order its consolidation if
warranted;
(c) Determine if the pleadings are in order and if not, order the
amendments if necessary;
(d) Determine if interlocutory issues are involved and resolve
the same;
(e) Consider the adding or dropping of parties;
(f) Scrutinize every single allegation of the complaint, answer
and other pleadings and attachments thereto, and the contents
of documents and all other evidence identified and pre-marked
during pre-trial in determining further admissions;
(g) Obtain admissions based on the affidavits of witnesses and
evidence attached to the pleadings or submitted during pre-
trial;
(h) Define and simplify the factual and legal issues arising
from the pleadings and evidence. Uncontroverted issues and
frivolous claims or defenses should be eliminated;
 (i) Discuss the propriety of rendering a summary judgment or a
judgment based on the pleadings, evidence and admissions
made during pre-trial;
(j) Observe the Most Important Witness Rule in limiting the
number of witnesses, determining the facts to be proved by
each witness and fixing the approximate number of hours per
witness;
(k) Encourage referral of the case to a trial by commissioner
under Rule 32 of the Rules of Court or to a mediator or
arbitrator under any of the alternative modes of dispute
resolution governed by the Special Rules of Court on
Alternative Dispute Resolution;
(l) Determine the necessity of engaging the services of a
qualified expert as a friend of the court (amicus curiae); and
(m) Ask parties to agree on the specific trial dates for
continuous trial, comply with the one-day examination of
witness rule, adhere to the case flow chart determined by the
court which shall contain the different stages of the
proceedings up to the promulgation of the decision and use the
time frame for each stage in setting the trial dates.
Section 7. Effect of failure to appear at pre-trial. - The court shall not
dismiss the complaint, except upon repeated and unjustified failure of
the plaintiff to appear. The dismissal shall be without prejudice, and
the court may proceed with the counterclaim.
If the defendant fails to appear at the pre-trial, the court shall receive
evidence ex parte.
Section 8. Minutes of pre-trial. - The minutes of each pre-trial
conference shall contain matters taken up therein, more particularly
admissions of facts and exhibits, and shall be signed by the parties and
their counsel.
Section 9. Pre-trial order. - Within ten (10) days after the termination
of the pre-trial, the court shall issue a pre-trial order setting forth the
actions taken during the pre-trial conference, the facts stipulated, the
admissions made, the evidence marked, the number of witnesses to be
presented and the schedule of trial. Said order shall bind the parties,
limit the trial to matters not disposed of and control the course of
action during the trial.
Section 10. Efforts to settle. - The court shall endeavor to make the
parties agree to compromise or settle in accordance with law at any
stage of the proceedings before rendition of judgment.
RULE 4
TRIAL
Section 1. Continuous trial. - The judge shall conduct continuous trial
which shall not exceed two (2) months from the date of the issuance of
the pre-trial order.
Before the expiration of the two-month period, the judge may ask the
Supreme Court for the extension of the trial period for justifiable
cause.
Section 2. Affidavits in lieu of direct examination. - In lieu of direct
examination, affidavits marked during the pre-trial shall be presented
as direct examination of affiants subject to cross-
examination by the adverse party.
Section 3. One-day examination of witness rule. - The court shall
strictly adhere to the rule that a witness has to be fully examined in one
(1) day, subject to the courts discretion of extending the examination
for justifiable reason. After the presentation of the last witness, only
oral offer of evidence shall be allowed, and the opposing party shall
immediately interpose his objections. The judge shall forthwith rule on
the offer of evidence in open court.
Section 4. Submission of case for decision; filing of memoranda. -
After the last party has rested its case, the court shall issue an order
submitting the case for decision.
The court may require the parties to submit their respective
memoranda, if possible in electronic form, within a non-extendible
period of thirty (30) days from the date the case is submitted for
decision.
The court shall have a period of sixty (60) days to decide the case from
the date the case is submitted for decision.
Section 5. Period to try and decide. - The court shall have a period of
one (1) year from the filing of the complaint to try and decide the case.
Before the expiration of the one-year period, the court may petition the
Supreme Court for the extension of the period for justifiable cause.
The court shall prioritize the adjudication of environmental cases.
RULE 5
JUDGMENT AND EXECUTION
Section 1. Reliefs in a citizen suit. - If warranted, the court may grant
to the plaintiff proper reliefs which shall include the protection,
preservation or rehabilitation of the environment and the payment of
attorneys fees, costs of suit and other litigation expenses. It may also
require the violator to submit a program of rehabilitation or restoration
of the environment, the costs of which shall be borne by the violator,
or to contribute to a special trust fund for that purpose subject to the
control of the court.
Section 2. Judgment not stayed by appeal. - Any judgment directing
the performance of acts for the protection, preservation or
rehabilitation of the environment shall be executory pending appeal
unless restrained by the appellate court.
Section 3. Permanent EPO; writ of continuing mandamus. - In the
judgment, the court may convert the TEPO to a permanent EPO or
issue a writ of continuing mandamus directing the performance of acts
which shall be effective until the judgment is fully satisfied.
The court may, by itself or through the appropriate government
agency, monitor the execution of the judgment and require the party
concerned to submit written reports on a quarterly basis or sooner as
may be necessary, detailing the progress of the execution and
satisfaction of the judgment. The other party may, at its option, submit
its comments or observations on the execution of the judgment.
Section 4. Monitoring of compliance with judgment and orders of the
court by a commissioner. - The court may motu proprio, or upon
motion of the prevailing party, order that the enforcement of the
judgment or order be referred to a commissioner to be appointed by
the court. The commissioner shall file with the court written progress
reports on a quarterly basis or more frequently when necessary.
Section 5. Return of writ of execution. - The process of execution shall
terminate upon a sufficient showing that the decision or order has been
implemented to the satisfaction of the court in accordance with Section
14, Rule 39 of the Rules of Court.
RULE 6
STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION
Section 1. Strategic lawsuit against public participation (SLAPP). - A
legal action filed to harass, vex, exert undue pressure or stifle any legal
recourse that any person, institution or the government has taken or
may take in the enforcement of environmental laws, protection of the
environment or assertion of environmental rights shall be treated as a
SLAPP and shall be governed by these Rules.
Section 2. SLAPP as a defense; how alleged. - In a SLAPP filed
against a person involved in the enforcement of environmental laws,
protection of the environment, or assertion of environmental rights, the
defendant may file an answer interposing as a defense that the case is a
SLAPP and shall be supported by documents, affidavits, papers and
other evidence; and, by way of counterclaim, pray for damages,
attorneys fees and costs of suit.
The court shall direct the plaintiff or adverse party to file an opposition
showing the suit is not a SLAPP, attaching evidence in support thereof,
within a non-extendible period of five (5) days from receipt of notice
that an answer has been filed.
The defense of a SLAPP shall be set for hearing by the court after
issuance of the order to file an opposition within fifteen (15) days from
filing of the comment or the lapse of the period.
Section 3. Summary hearing. - The hearing on the defense of a SLAPP
shall be summary in nature. The parties must submit all available
evidence in support of their respective positions. The party seeking the
dismissal of the case must prove by substantial evidence that his act
for the enforcement of environmental law is a legitimate action for the
protection, preservation and rehabilitation of the environment. The
party filing the action assailed as a SLAPP shall prove by
preponderance of evidence that the action is not a SLAPP and is a
valid claim.
Section 4. Resolution of the defense of a SLAPP. - The affirmative
defense of a SLAPP shall be resolved within thirty (30) days after the
summary hearing. If the court dismisses the action, the court may
award damages, attorneys fees and costs of suit under a counterclaim
if such has been filed. The dismissal shall be with prejudice.
If the court rejects the defense of a SLAPP, the evidence adduced
during the summary hearing shall be treated as evidence of the parties
on the merits of the case. The action shall proceed in accordance with
the Rules of Court.
PART III
SPECIAL CIVIL ACTIONS
RULE 7
WRIT OF KALIKASAN
Section 1. Nature of the writ. - The writ is a remedy available to a
natural or juridical person, entity authorized by law, peoples
organization, non-governmental organization, or any public interest
group accredited by or registered with any government agency, on
behalf of persons whose constitutional right to a balanced and
healthful ecology is violated, or threatened with violation by an
unlawful act or omission of a public official or employee, or private
individual or entity, involving environmental damage of such
magnitude as to prejudice the life, health or property of inhabitants in
two or more cities or provinces.
Section 2. Contents of the petition. - The verified petition shall contain
the following:
(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the respondent or
if the name and personal circumstances are unknown and
uncertain, the respondent may be described by an assumed
appellation;
 (c) The environmental law, rule or regulation violated or
threatened to be violated, the act or omission complained of,
and the environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants in two or
more cities or provinces.
(d) All relevant and material evidence consisting of the
affidavits of witnesses, documentary evidence, scientific or
other expert studies, and if possible, object evidence;
(e) The certification of petitioner under oath that: (1) petitioner
has not commenced any action or filed any claim involving the
same issues in any court, tribunal or quasi-judicial agency, and
no such other action or claim is pending therein; (2) if there is
such other pending action or claim, a complete statement of its
present status; (3) if petitioner should learn that the same or
similar action or claim has been filed or is pending, petitioner
shall report to the court that fact within five (5) days therefrom;
and
(f) The reliefs prayed for which may include a prayer for the
issuance of a TEPO.
Section 3. Where to file. - The petition shall be filed with the Supreme
Court or with any of the stations of the Court of Appeals.
Section 4. No docket fees. - The petitioner shall be exempt from the
payment of docket
fees.
Section 5. Issuance of the writ. - Within three (3) days from the date of
filing of the petition, if the petition is sufficient in form and substance,
the court shall give an order: (a) issuing the writ; and (b) requiring the
respondent to file a verified return as provided in Section 8 of this
Rule. The clerk of court shall forthwith issue the writ under the seal of
the court including the issuance of a cease and desist order and other
temporary reliefs effective until further order.
Section 6. How the writ is served. - The writ shall be served upon the
respondent by a court officer or any person deputized by the court,
who shall retain a copy on which to make a return of service. In case
the writ cannot be served personally, the rule on substituted service
shall apply.
Section 7. Penalty for refusing to issue or serve the writ. - A clerk of
court who unduly delays or refuses to issue the writ after its allowance
or a court officer or deputized person who unduly delays or refuses to
serve the same shall be punished by the court for contempt without
prejudice to other civil, criminal or administrative actions.
Section 8. Return of respondent; contents. - Within a non-extendible
period of ten (10) days after service of the writ, the respondent shall
file a verified return which shall contain all defenses to show that
respondent did not violate or threaten to violate, or allow the violation
of any environmental law, rule or regulation or commit any act
resulting to environmental damage of such magnitude as to prejudice
the life, health or property of inhabitants in two or more cities or
provinces.
All defenses not raised in the return shall be deemed waived.
The return shall include affidavits of witnesses, documentary evidence,
scientific or other expert studies, and if possible, object evidence, in
support of the defense of the respondent.
A general denial of allegations in the petition shall be considered as an
admission thereof.
Section 9. Prohibited pleadings and motions. - The following
pleadings and motions are prohibited:
(a) Motion to dismiss;
(b) Motion for extension of time to file return;
(c) Motion for postponement;
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third-party complaint;
(g) Reply; and
(h) Motion to declare respondent in default.
Section 10. Effect of failure to file return. - In case the respondent fails
to file a return, the court shall proceed to hear the petition ex parte.
Section 11. Hearing. - Upon receipt of the return of the respondent,
the court may call a preliminary conference to simplify the issues,
determine the possibility of obtaining stipulations or admissions from
the parties, and set the petition for hearing.
The hearing including the preliminary conference shall not extend
beyond sixty (60) days and shall be given the same priority as petitions
for the writs of habeas corpus, amparo and habeas data.
Section 12. Discovery Measures. - A party may file a verified motion
for the following reliefs:
(a) Ocular Inspection; order The motion must show that an
ocular inspection order is necessary to establish the magnitude
of the violation or the threat as to prejudice the life, health or
property of inhabitants in two or more cities or provinces. It
shall state in detail the place or places to be inspected. It shall
be supported by affidavits of witnesses having personal
knowledge of the violation or threatened violation of
environmental law.
After hearing, the court may order any person in possession or
control of a designated land or other property to permit entry
for the purpose of inspecting or
photographing the property or any relevant object or operation
thereon.
The order shall specify the person or persons authorized to
make the inspection and the date, time, place and manner of
making the inspection and may prescribe other conditions to
protect the constitutional rights of all parties.
(b) Production or inspection of documents or things; order
The motion must show that a production order is necessary to
establish the magnitude of the violation or the threat as to
prejudice the life, health or property of inhabitants in two or
more cities or provinces.
After hearing, the court may order any person in possession,
custody or control of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which constitute or
contain evidence relevant to the petition or the return, to
produce and permit their inspection, copying or photographing
by or on behalf of the movant.
The production order shall specify the person or persons authorized to
make the production and the date, time, place and manner of making
the inspection or production and may prescribe other conditions to
protect the constitutional rights of all parties.
Section 13. Contempt. - The court may after hearing punish the
respondent who refuses or unduly delays the filing of a return, or who
makes a false return, or any person who disobeys or resists a lawful
process or order of the court for indirect contempt under Rule 71 of the
Rules of Court.
Section 14. Submission of case for decision; filing of memoranda. -
After hearing, the court shall issue an order submitting the case for
decision. The court may require the filing of memoranda and if
possible, in its electronic form, within a non-extendible period of thirty
(30) days from the date the petition is submitted for decision.
Section 15. Judgment. - Within sixty (60) days from the time the
petition is submitted for decision, the court shall render judgment
granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from
committing acts or neglecting the performance of a duty in
violation of environmental laws resulting in environmental
destruction or damage;
(b) Directing the respondent public official, government
agency, private person or entity to protect, preserve,
rehabilitate or restore the environment;
(c) Directing the respondent public official, government
agency, private person or entity to monitor strict compliance
with the decision and orders of the court;
(d) Directing the respondent public official, government
agency, or private person or entity to make periodic reports on
the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the people to a
balanced and healthful ecology or to the protection,
preservation, rehabilitation or restoration of the
environment, except the award of damages to individual
petitioners.
Section 16. Appeal. - Within fifteen (15) days from the date of notice
of the adverse judgment or denial of motion for reconsideration, any
party may appeal to the Supreme Court under Rule 45 of the Rules of
Court. The appeal may raise questions of fact.
Section 17. Institution of separate actions. - The filing of a petition for
the issuance of the writ of kalikasan shall not preclude the filing of
separate civil, criminal or administrative actions.
RULE 8
WRIT OF CONTINUING MANDAMUS
Section 1. Petition for continuing mandamus. - When any agency or
instrumentality of the government or officer thereof unlawfully
neglects the performance of an act which the law specifically enjoins
as a duty resulting from an office, trust or station in connection with
the enforcement or violation of an environmental law rule or
regulation or a right therein, or unlawfully excludes another from the
use or enjoyment of such right and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper court, alleging the
facts with certainty, attaching thereto supporting evidence, specifying
that the petition concerns an environmental law, rule or regulation, and
praying that judgment be rendered commanding the respondent to do
an act or series of acts until the judgment is fully satisfied, and to pay
damages sustained by the petitioner by reason of the malicious neglect
to perform the duties of the respondent, under the law, rules or
regulations. The petition shall also contain a sworn certification of
non-forum shopping.
Section 2. Where to file the petition. - The petition shall be filed with
the Regional Trial Court exercising jurisdiction over the territory
where the actionable neglect or omission occurred or with the Court of
Appeals or the Supreme Court.
Section 3. No docket fees. - The petitioner shall be exempt from the
payment of docket fees.
Section 4. Order to comment. - If the petition is sufficient in form and
substance, the court shall issue the writ and require the respondent to
comment on the petition within ten (10) days from receipt of a copy
thereof. Such order shall be served on the respondents in such manner
as the court may direct, together with a copy of the petition and any
annexes thereto.
Section 5. Expediting proceedings; TEPO. - The court in which the
petition is filed may issue such orders to expedite the proceedings, and
it may also grant a TEPO for the preservation of the rights of the
parties pending such proceedings.
Section 6. Proceedings after comment is filed. - After the comment is
filed or the time for the filing thereof has expired, the court may hear
the case which shall be summary in nature or require the parties to
submit memoranda. The petition shall be resolved without delay
within sixty (60) days from the date of the submission of the petition
for resolution.
Section 7. Judgment. - If warranted, the court shall grant the privilege
of the writ of continuing mandamus requiring respondent to perform
an act or series of acts until the judgment is fully satisfied and to grant
such other reliefs as may be warranted resulting from the wrongful or
illegal acts of the respondent. The court shall require the respondent to
submit periodic reports detailing the progress and execution of the
judgment, and the court may, by itself or through a commissioner or
the appropriate government agency, evaluate and monitor compliance.
The petitioner may submit its comments or observations on the
execution of the judgment.
Section 8. Return of the writ. - The periodic reports submitted by the
respondent detailing compliance with the judgment shall be contained
in partial returns of the writ.
Upon full satisfaction of the judgment, a final return of the writ shall
be made to the court by the respondent. If the court finds that the
judgment has been fully implemented, the satisfaction of judgment
shall be entered in the court docket.
PART IV
CRIMINAL PROCEDURE
RULE 9
PROSECUTION OF OFFENSES
Section 1. Who may file. - Any offended party, peace officer or any
public officer charged with the enforcement of an environmental law
may file a complaint before the proper officer in accordance with the
Rules of Court.
Section 2. Filing of the information. - An information, charging a
person with a violation of an environmental law and subscribed by the
prosecutor, shall be filed with the court.
Section 3. Special prosecutor. - In criminal cases, where there is no
private offended party, a counsel whose services are offered by any
person or organization may be allowed by the court as special
prosecutor, with the consent of and subject to the control and
supervision of the public prosecutor.
RULE 10
PROSECUTION OF CIVIL ACTIONS
Section 1. Institution of criminal and civil actions. - When a criminal
action is instituted, the civil action for the recovery of civil liability
arising from the offense charged, shall be deemed instituted with the
criminal action unless the complainant waives the civil action, reserves
the right to institute it separately or institutes the civil action prior to
the criminal action.
Unless the civil action has been instituted prior to the criminal action,
the reservation of the right to institute separately the civil action shall
be made during arraignment.
In case civil liability is imposed or damages are awarded, the filing
and other legal fees shall be imposed on said award in accordance with
Rule 141 of the Rules of Court, and the fees shall constitute a first lien
on the judgment award. The damages awarded in cases where there is
no private offended party, less the filing fees, shall accrue to the funds
of the agency charged with the implementation of the environmental
law violated. The award shall be used for the restoration and
rehabilitation of the environment adversely affected.
RULE 11
ARREST
Section 1. Arrest without warrant; when lawful. - A peace officer or an
individual deputized by the proper government agency may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing or is attempting to commit
an offense; or
(b) When an offense has just been committed, and he has
probable cause to believe based on personal knowledge of facts
or circumstances that the person to be arrested has committed
it. Individuals deputized by the proper government agency who
are enforcing environmental laws shall enjoy the presumption
of regularity under Section 3(m), Rule 131 of the Rules of
Court when effecting arrests for violations of environmental
laws.
Section 2. Warrant of arrest. - All warrants of arrest issued by the
court shall be accompanied by a certified true copy of the information
filed with the issuing court.
RULE 12
CUSTODY AND DISPOSITION OF SEIZED ITEMS,
EQUIPMENT,
PARAPHERNALIA, CONVEYANCES AND INSTRUMENTS
Section 1. Custody and disposition of seized items. - The custody and
disposition of seized items shall be in accordance with the applicable
laws or rules promulgated by the concerned government agency.
Section 2. Procedure. - In the absence of applicable laws or rules
promulgated by the concerned government agency, the following
procedure shall be observed:
(a) The apprehending officer having initial custody and control
of the seized items, equipment, paraphernalia, conveyances and
instruments shall physically inventory and whenever
practicable, photograph the same in the presence of the person
from whom such items were seized.
(b) Thereafter, the apprehending officer shall submit to the
issuing court the return of the search warrant within five (5)
days from date of seizure or in case of warrantless arrest,
submit within five (5) days from date of seizure, the inventory
report, compliance report, photographs, representative samples
and other pertinent documents to the public prosecutor for
appropriate action.
(c) Upon motion by any interested party, the court may direct
the auction sale of seized items, equipment, paraphernalia,
tools or instruments of the crime. The court shall, after hearing,
fix the minimum bid price based on the recommendation of the
concerned government agency. The sheriff shall conduct the
auction.
(d) The auction sale shall be with notice to the accused, the
person from whom the items were seized, or the owner thereof
and the concerned government agency.
(e) The notice of auction shall be posted in three conspicuous
places in the city or municipality where the items, equipment,
paraphernalia, tools or instruments of the crime were seized.
(f) The proceeds shall be held in trust and deposited with the
government depository bank for disposition according to the
judgment.
RULE 13
PROVISIONAL REMEDIES
Section 1. Attachment in environmental cases. - The provisional
remedy of attachment under Rule 127 of the Rules of Court may be
availed of in environmental cases.
Section 2. Environmental Protection Order (EPO); Temporary
Environmental Protection Order (TEPO) in criminal cases. - The
procedure for and issuance of EPO and TEPO shall be governed by
Rule 2 of these Rules.
RULE 14
BAIL
Section 1. Bail, where filed. - Bail in the amount fixed may be filed
with the court where the case is pending, or in the absence or
unavailability of the judge thereof, with any regional trial judge,
metropolitan trial judge, municipal trial judge or municipal circuit trial
judge in the province, city or municipality. If the accused is arrested in
a province, city or municipality other than where the case is pending,
bail may also be filed with any Regional Trial Court of said place, or if
no judge thereof is available, with any metropolitan trial judge,
municipal trial judge or municipal circuit trial judge therein. If the
court grants bail, the court may issue a hold-departure order in
appropriate cases.
Section 2. Duties of the court. - Before granting the application for
bail, the judge must read the information in a language known to and
understood by the accused and require the accused to sign a written
undertaking, as follows:
(a) To appear before the court that issued the warrant of arrest
for arraignment purposes on the date scheduled, and if the
 accused fails to appear without justification on the date of
arraignment, accused waives the reading of the information and
authorizes the court to enter a plea of not guilty on behalf of
the accused and to set the case for trial;
(b) To appear whenever required by the court where the case is
pending; and
(c) To waive the right of the accused to be present at the trial,
and upon failure of the accused to appear without justification
and despite due notice, the trial may proceed in absentia.
RULE 15
ARRAIGNMENT AND PLEA
Section 1. Arraignment. - The court shall set the arraignment of the
accused within fifteen (15) days from the time it acquires jurisdiction
over the accused, with notice to the public prosecutor and offended
party or concerned government agency that it will entertain plea-
bargaining on the date of the arraignment.
Section 2. Plea-bargaining. - On the scheduled date of arraignment,
the court shall consider plea-bargaining arrangements. Where the
prosecution and offended party or concerned government agency agree
to the plea offered by the accused, the court shall:
(a) Issue an order which contains the plea-bargaining arrived
at;
(b) Proceed to receive evidence on the civil aspect of the case,
if any; and
(c) Render and promulgate judgment of conviction, including
the civil liability for damages.
RULE 16
PRE-TRIAL
Section 1. Setting of pre-trial conference. - After the arraignment, the
court shall set the pre-trial conference within thirty (30) days. It may
refer the case to the branch clerk of court, if warranted, for a
preliminary conference to be set at least three (3) days prior to the pre-
trial.
Section 2. Preliminary conference. - The preliminary conference shall
be for the following purposes:
(a) To assist the parties in reaching a settlement of the civil
aspect of the case;
(b) To mark the documents to be presented as exhibits;
(c) To attach copies thereof to the records after comparison
with the originals;
(d) To ascertain from the parties the undisputed facts and
admissions on the genuineness and due execution of documents
marked as exhibits;
(e) To consider such other matters as may aid in the prompt
disposition of the case;
(f) To record the proceedings during the preliminary
conference in the Minutes of Preliminary Conference to be
signed by the parties and counsel;
(g) To mark the affidavits of witnesses which shall be in
question and answer form and shall constitute the direct
examination of the witnesses; and
 (h) To attach the Minutes and marked exhibits to the case
record before the pre-trial proper. The parties or their counsel
must submit to the branch clerk of court the names, addresses
and contact numbers of the affiants.
Section 3. Pre-trial duty of the judge. - During the pre-trial, the court
shall:
(a) Place the parties and their counsels under oath;
(b) Adopt the minutes of the preliminary conference as part of
the pre-trial proceedings, confirm markings of exhibits or
substituted photocopies and admissions on the genuineness and
due execution of documents, and list object and testimonial
evidence;
(c) Scrutinize the information and the statements in the
affidavits and other documents which form part of the record of
the preliminary investigation together with other documents
identified and marked as exhibits to determine further
admissions of facts as to:
i. The courts territorial jurisdiction relative to the
offense(s) charged;
ii. Qualification of expert witnesses; and
iii. Amount of damages;
(d) Define factual and legal issues;
(e) Ask parties to agree on the specific trial dates and adhere to
the flow chart determined by the court which shall contain the
time frames for the different stages of the proceeding up to
promulgation of decision;
(f) Require the parties to submit to the branch clerk of court the
names, addresses and contact numbers of witnesses that need to
be summoned by subpoena; and
(g) Consider modification of order of trial if the accused admits
the charge but interposes a lawful defense.
Section 4. Manner of questioning. - All questions or statements must
be directed to the court.
Section 5. Agreements or admissions. - All agreements or admissions
made or entered during the pre-trial conference shall be reduced in
writing and signed by the accused and counsel; otherwise, they cannot
be used against the accused. The agreements covering the matters
referred to in Section 1, Rule 118 of the Rules of Court shall be
approved by the court.
Section 6. Record of proceedings. - All proceedings during the pre-
trial shall be recorded, the transcripts prepared and the minutes signed
by the parties or their counsels.
Section 7. Pre-trial order. - The court shall issue a pre-trial order
within ten (10) days after the termination of the pre-trial, setting forth
the actions taken during the pre-trial conference, the facts stipulated,
the admissions made, evidence marked, the number of witnesses to be
presented and the schedule of trial. The order shall bind the parties and
control the course of action during the trial.
RULE 17
TRIAL
Section 1. Continuous trial. - The court shall endeavor to conduct
continuous trial which shall not exceed three (3) months from the date
of the issuance of the pre-trial order.
Section 2. Affidavit in lieu of direct examination. - Affidavit in lieu of
direct examination shall be used, subject to cross-examination and the
right to object to inadmissible portions of the affidavit.
Section 3. Submission of memoranda. - The court may require the
parties to submit their respective memoranda and if possible, in
electronic form, within a non-extendible period of thirty (30) days
from the date the case is submitted for decision.
With or without any memoranda filed, the court shall have a period of
sixty (60) days to decide the case counted from the last day of the 30-
day period to file the memoranda.
Section 4. Disposition period. - The court shall dispose the case within
a period of ten (10) months from the date of arraignment.
Section 5. Pro bono lawyers. - If the accused cannot afford the
services of counsel or there is no available public attorney, the court
shall require the Integrated Bar of the Philippines to provide pro bono
lawyers for the accused.
RULE 18
SUBSIDIARY LIABILITY
Section 1. Subsidiary liability. - In case of conviction of the accused
and subsidiary liability is allowed by law, the court may, by motion of
the person entitled to recover under judgment, enforce such subsidiary
liability against a person or corporation subsidiary liable under Article
102 and Article 103 of the Revised Penal Code.
RULE 19
STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION
IN CRIMINAL CASES
Section 1. Motion to dismiss. - Upon the filing of an information in
court and before arraignment, the accused may file a motion to dismiss
on the ground that the criminal action is a SLAPP.
Section 2. Summary hearing. - The hearing on the defense of a SLAPP
shall be summary in nature. The parties must submit all the available
evidence in support of their respective positions. The party seeking the
dismissal of the case must prove by substantial evidence that his acts
for the enforcement of environmental law is a legitimate action for the
protection, preservation and rehabilitation of the environment. The
party filing the action assailed as a SLAPP shall prove by
preponderance of evidence that the action is not a SLAPP.
Section 3. Resolution. - The court shall grant the motion if the accused
establishes in the summary hearing that the criminal case has been
filed with intent to harass, vex, exert undue pressure or stifle any legal
recourse that any person, institution or the government has taken or
may take in the enforcement of environmental laws, protection of the
environment or assertion of environmental rights.
If the court denies the motion, the court shall immediately proceed
with the arraignment of the accused.
PART V
EVIDENCE
RULE 20
PRECAUTIONARY PRINCIPLE
Section 1. Applicability. - When there is a lack of full scientific
certainty in establishing a causal link between human activity and
environmental effect, the court shall apply the precautionary principle
in resolving the case before it.
The constitutional right of the people to a balanced and healthful
ecology shall be given the benefit of the doubt.

Section 2. Standards for application. - In applying the precautionary

principle, the following factors, among others, may be considered: (1)
threats to human life or health; (2) inequity to present or future
generations; or (3) prejudice to the environment without legal
consideration of the environmental rights of those affected.

RULE 21
DOCUMENTARY EVIDENCE

Section 1. Photographic, video and similar evidence. - Photographs,

videos and similar evidence of events, acts, transactions of wildlife,
wildlife by-products or derivatives, forest products or mineral
resources subject of a case shall be admissible when authenticated by
the person who took the same, by some other person present when said
evidence was taken, or by any other person competent to testify on the
accuracy thereof.

Section 2. Entries in official records. - Entries in official records made

in the performance of his duty by a public officer of the Philippines, or
by a person in performance of a duty specially enjoined by law, are
prima facie evidence of the facts therein stated.

RULE 22
FINAL PROVISIONS

Section 1. Effectivity. - These Rules shall take effect within fifteen (15)
days following publication once in a newspaper of general circulation.

Section 2. Application of the Rules of Court. - The Rules of Court

shall apply in a suppletory manner, except as otherwise provided
herein.

G.R. Nos. 171947-48 December 18, 2008
METROPOLITAN MANILA DEVELOPMENT AUTHORITY,
DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES, DEPARTMENT OF EDUCATION, CULTURE
AND SPORTS,1 DEPARTMENT OF HEALTH, DEPARTMENT
OF AGRICULTURE, DEPARTMENT OF PUBLIC WORKS AND
HIGHWAYS, DEPARTMENT OF BUDGET AND
MANAGEMENT, PHILIPPINE COAST GUARD, PHILIPPINE
NATIONAL POLICE MARITIME GROUP, and DEPARTMENT
OF THE INTERIOR AND LOCAL GOVERNMENT, petitioners,
vs.
CONCERNED RESIDENTS OF MANILA BAY, represented and
joined by DIVINA V. ILAS, SABINIANO ALBARRACIN,
MANUEL SANTOS, JR., DINAH DELA PEA, PAUL DENNIS
QUINTERO, MA. VICTORIA LLENOS, DONNA CALOZA,
FATIMA QUITAIN, VENICE SEGARRA, FRITZIE TANGKIA,
SARAH JOELLE LINTAG, HANNIBAL AUGUSTUS BOBIS,
FELIMON SANTIAGUEL, and JAIME AGUSTIN R. OPOSA,
respondents.
DECISION
VELASCO, JR., J.:
The need to address environmental pollution, as a cause of climate
change, has of late gained the attention of the international community.
Media have finally trained their sights on the ill effects of pollution,
the destruction of forests and other critical habitats, oil spills, and the
unabated improper disposal of garbage. And rightly so, for the
magnitude of environmental destruction is now on a scale few ever
foresaw and the wound no longer simply heals by itself.2 But amidst
hard evidence and clear signs of a climate crisis that need bold action,
the voice of cynicism, naysayers, and procrastinators can still be heard.
This case turns on government agencies and their officers who, by the
nature of their respective offices or by direct statutory command, are
tasked to protect and preserve, at the first instance, our internal waters,
rivers, shores, and seas polluted by human activities. To most of these
agencies and their official complement, the pollution menace does not
seem to carry the high national priority it deserves, if their track
records are to be the norm. Their cavalier attitude towards solving, if
not mitigating, the environmental pollution problem, is a sad
commentary on bureaucratic efficiency and commitment.
At the core of the case is the Manila Bay, a place with a proud historic
past, once brimming with marine life and, for so many decades in the
past, a spot for different contact recreation activities, but now a dirty
and slowly dying expanse mainly because of the abject official
indifference of people and institutions that could have otherwise made
a difference.
This case started when, on January 29, 1999, respondents Concerned
Residents of Manila Bay filed a complaint before the Regional Trial
Court (RTC) in Imus, Cavite against several government agencies,
among them the petitioners, for the cleanup, rehabilitation, and
protection of the Manila Bay. Raffled to Branch 20 and docketed as
Civil Case No. 1851-99 of the RTC, the complaint alleged that the
water quality of the Manila Bay had fallen way below the allowable
standards set by law, specifically Presidential Decree No. (PD) 1152 or
the Philippine Environment Code. This environmental aberration, the
complaint stated, stemmed from:
x x x [The] reckless, wholesale, accumulated and ongoing acts
of omission or commission [of the defendants] resulting in the
clear and present danger to public health and in the depletion
and contamination of the marine life of Manila Bay, [for which
reason] ALL defendants must be held jointly and/or solidarily
liable and be collectively ordered to clean up Manila Bay and
to restore its water quality to class B waters fit for swimming,
skin-diving, and other forms of contact recreation.3
In their individual causes of action, respondents alleged that the
continued neglect of petitioners in abating the pollution of the Manila
Bay constitutes a violation of, among others:
(1) Respondents constitutional right to life, health, and a
balanced ecology;
(2) The Environment Code (PD 1152);
(3) The Pollution Control Law (PD 984);
(4) The Water Code (PD 1067);
(5) The Sanitation Code (PD 856);
(6) The Illegal Disposal of Wastes Decree (PD 825);
(7) The Marine Pollution Law (PD 979);
(8) Executive Order No. 192;
(9) The Toxic and Hazardous Wastes Law (Republic Act No.
6969);
(10) Civil Code provisions on nuisance and human relations;
(11) The Trust Doctrine and the Principle of Guardianship; and
(12) International Law
Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be
ordered to clean the Manila Bay and submit to the RTC a concerted
concrete plan of action for the purpose.
The trial of the case started off with a hearing at the Manila Yacht Club
followed by an ocular inspection of the Manila Bay. Renato T. Cruz,
the Chief of the Water Quality Management Section, Environmental
Management Bureau, Department of Environment and Natural
Resources (DENR), testifying for petitioners, stated that water samples
collected from different beaches around the Manila Bay showed that
the amount of fecal coliform content ranged from 50,000 to 80,000
most probable number (MPN)/ml when what DENR Administrative
Order No. 34-90 prescribed as a safe level for bathing and other forms
of contact recreational activities, or the "SB" level, is one not
exceeding 200 MPN/100 ml.4
Rebecca de Vera, for Metropolitan Waterworks and Sewerage System
(MWSS) and in behalf of other petitioners, testified about the MWSS
efforts to reduce pollution along the Manila Bay through the Manila
Second Sewerage Project. For its part, the Philippine Ports Authority
(PPA) presented, as part of its evidence, its memorandum circulars on
the study being conducted on ship-generated waste treatment and
disposal, and its Linis Dagat (Clean the Ocean) project for the cleaning
of wastes accumulated or washed to shore.
 The RTC Ordered Petitioners to Clean Up and Rehabilitate
Manila Bay
On September 13, 2002, the RTC rendered a Decision5 in favor of
respondents. The dispositive portion reads:
WHEREFORE, finding merit in the complaint, judgment is
hereby rendered ordering the abovenamed defendant-
government agencies, jointly and solidarily, to clean up and
rehabilitate Manila Bay and restore its waters to SB
classification to make it fit for swimming, skin-diving and
other forms of contact recreation. To attain this, defendant-
agencies, with defendant DENR as the lead agency, are
directed, within six (6) months from receipt hereof, to act and
perform their respective duties by devising a consolidated,
coordinated and concerted scheme of action for the
rehabilitation and restoration of the bay.
In particular:
Defendant MWSS is directed to install, operate and maintain
adequate [sewerage] treatment facilities in strategic places
under its jurisdiction and increase their capacities.
Defendant LWUA, to see to it that the water districts under its
wings, provide, construct and operate sewage facilities for the
proper disposal of waste.
Defendant DENR, which is the lead agency in cleaning up
Manila Bay, to install, operate and maintain waste facilities to
rid the bay of toxic and hazardous substances.
Defendant PPA, to prevent and also to treat the discharge not
only of ship-generated wastes but also of other solid and liquid
wastes from docking vessels that contribute to the pollution of
the bay.
Defendant MMDA, to establish, operate and maintain an
adequate and appropriate sanitary landfill and/or adequate solid
waste and liquid disposal as well as other alternative garbage
disposal system such as re-use or recycling of wastes.
Defendant DA, through the Bureau of Fisheries and Aquatic
Resources, to revitalize the marine life in Manila Bay and
restock its waters with indigenous fish and other aquatic
animals.
Defendant DBM, to provide and set aside an adequate budget
solely for the purpose of cleaning up and rehabilitation of
Manila Bay.
Defendant DPWH, to remove and demolish structures and
other nuisances that obstruct the free flow of waters to the bay.
These nuisances discharge solid and liquid wastes which
eventually end up in Manila Bay. As the construction and
engineering arm of the government, DPWH is ordered to
actively participate in removing debris, such as carcass of
sunken vessels, and other non-biodegradable garbage in the
bay.
Defendant DOH, to closely supervise and monitor the
operations of septic and sludge companies and require them to
have proper facilities for the treatment and disposal of fecal
sludge and sewage coming from septic tanks.
Defendant DECS, to inculcate in the minds and hearts of the
people through education the importance of preserving and
protecting the environment.
 Defendant Philippine Coast Guard and the PNP Maritime
Group, to protect at all costs the Manila Bay from all forms of
illegal fishing.
No pronouncement as to damages and costs.
SO ORDERED.
The MWSS, Local Water Utilities Administration (LWUA), and PPA
filed before the Court of Appeals (CA) individual Notices of Appeal
which were eventually consolidated and docketed as CA-G.R. CV No.
76528.
On the other hand, the DENR, Department of Public Works and
Highways (DPWH), Metropolitan Manila Development Authority
(MMDA), Philippine Coast Guard (PCG), Philippine National Police
(PNP) Maritime Group, and five other executive departments and
agencies filed directly with this Court a petition for review under Rule
45. The Court, in a Resolution of December 9, 2002, sent the said
petition to the CA for consolidation with the consolidated appeals of
MWSS, LWUA, and PPA, docketed as CA-G.R. SP No. 74944.
Petitioners, before the CA, were one in arguing in the main that the
pertinent provisions of the Environment Code (PD 1152) relate only to
the cleaning of specific pollution incidents and do not cover cleaning
in general. And apart from raising concerns about the lack of funds
appropriated for cleaning purposes, petitioners also asserted that the
cleaning of the Manila Bay is not a ministerial act which can be
compelled by mandamus.
The CA Sustained the RTC
By a Decision6 of September 28, 2005, the CA denied petitioners
appeal and affirmed the Decision of the RTC in toto, stressing that the
trial courts decision did not require petitioners to do tasks outside of
their usual basic functions under existing laws.7
Petitioners are now before this Court praying for the allowance of their
Rule 45 petition on the following ground and supporting arguments:
THE [CA] DECIDED A QUESTION OF SUBSTANCE NOT
HERETOFORE PASSED UPON BY THE HONORABLE
COURT, I.E., IT AFFIRMED THE TRIAL COURTS
DECISION DECLARING THAT SECTION 20 OF [PD] 1152
REQUIRES CONCERNED GOVERNMENT AGENCIES TO
REMOVE ALL POLLUTANTS SPILLED AND
DISCHARGED IN THE WATER SUCH AS FECAL
COLIFORMS.
ARGUMENTS
I
[SECTIONS] 17 AND 20 OF [PD] 1152 RELATE ONLY TO
THE CLEANING OF SPECIFIC POLLUTION INCIDENTS
AND [DO] NOT COVER CLEANING IN GENERAL
II
THE CLEANING OR REHABILITATION OF THE MANILA
BAY IS NOT A MINISTERIAL ACT OF PETITIONERS
THAT CAN BE COMPELLED BY MANDAMUS.
The issues before us are two-fold. First, do Sections 17 and 20 of PD
1152 under the headings, Upgrading of Water Quality and Clean-up
Operations, envisage a cleanup in general or are they limited only to
the cleanup of specific pollution incidents? And second, can petitioners
be compelled by mandamus to clean up and rehabilitate the Manila
Bay?
On August 12, 2008, the Court conducted and heard the parties on oral
arguments.
Our Ruling
We shall first dwell on the propriety of the issuance of mandamus
under the premises.
The Cleaning or Rehabilitation of Manila Bay
Can be Compelled by Mandamus
Generally, the writ of mandamus lies to require the execution of a
ministerial duty.8 A ministerial duty is one that "requires neither the
exercise of official discretion nor judgment."9 It connotes an act in
which nothing is left to the discretion of the person executing it. It is a
"simple, definite duty arising under conditions admitted or proved to
exist and imposed by law."10 Mandamus is available to compel action,
when refused, on matters involving discretion, but not to direct the
exercise of judgment or discretion one way or the other.
Petitioners maintain that the MMDAs duty to take measures and
maintain adequate solid waste and liquid disposal systems necessarily
involves policy evaluation and the exercise of judgment on the part of
the agency concerned. They argue that the MMDA, in carrying out its
mandate, has to make decisions, including choosing where a landfill
should be located by undertaking feasibility studies and cost estimates,
all of which entail the exercise of discretion.
Respondents, on the other hand, counter that the statutory command is
clear and that petitioners duty to comply with and act according to the
clear mandate of the law does not require the exercise of discretion.
According to respondents, petitioners, the MMDA in particular, are
without discretion, for example, to choose which bodies of water they
are to clean up, or which discharge or spill they are to contain. By the
same token, respondents maintain that petitioners are bereft of
discretion on whether or not to alleviate the problem of solid and
liquid waste disposal; in other words, it is the MMDAs ministerial
duty to attend to such services.
We agree with respondents.
First off, we wish to state that petitioners obligation to perform their
duties as defined by law, on one hand, and how they are to carry out
such duties, on the other, are two different concepts. While the
implementation of the MMDAs mandated tasks may entail a decision-
making process, the enforcement of the law or the very act of doing
what the law exacts to be done is ministerial in nature and may be
compelled by mandamus. We said so in Social Justice Society v.
Atienza11 in which the Court directed the City of Manila to enforce, as
a matter of ministerial duty, its Ordinance No. 8027 directing the three
big local oil players to cease and desist from operating their business
in the so-called "Pandacan Terminals" within six months from the
effectivity of the ordinance. But to illustrate with respect to the instant
case, the MMDAs duty to put up an adequate and appropriate sanitary
landfill and solid waste and liquid disposal as well as other alternative
garbage disposal systems is ministerial, its duty being a statutory
imposition. The MMDAs duty in this regard is spelled out in Sec. 3(c)
of Republic Act No. (RA) 7924 creating the MMDA. This section
defines and delineates the scope of the MMDAs waste disposal
services to include:
Solid waste disposal and management which include
formulation and implementation of policies, standards,
programs and projects for proper and sanitary waste disposal. It
shall likewise include the establishment and operation of
sanitary land fill and related facilities and the
implementation of other alternative programs intended to
reduce, reuse and recycle solid waste. (Emphasis added.)
The MMDA is duty-bound to comply with Sec. 41 of the Ecological
Solid Waste Management Act (RA 9003) which prescribes the
minimum criteria for the establishment of sanitary landfills and Sec.
42 which provides the minimum operating requirements that each site
operator shall maintain in the operation of a sanitary landfill.
Complementing Sec. 41 are Secs. 36 and 37 of RA 9003,12 enjoining
the MMDA and local government units, among others, after the
effectivity of the law on February 15, 2001, from using and operating
open dumps for solid waste and disallowing, five years after such
effectivity, the use of controlled dumps.
The MMDAs duty in the area of solid waste disposal, as may be
noted, is set forth not only in the Environment Code (PD 1152) and
RA 9003, but in its charter as well. This duty of putting up a proper
waste disposal system cannot be characterized as discretionary, for, as
earlier stated, discretion presupposes the power or right given by law
to public functionaries to act officially according to their judgment or
conscience.13 A discretionary duty is one that "allows a person to
exercise judgment and choose to perform or not to perform."14 Any
suggestion that the MMDA has the option whether or not to perform
its solid waste disposal-related duties ought to be dismissed for want
of legal basis.
A perusal of other petitioners respective charters or like enabling
statutes and pertinent laws would yield this conclusion: these
government agencies are enjoined, as a matter of statutory obligation,
to perform certain functions relating directly or indirectly to the
cleanup, rehabilitation, protection, and preservation of the Manila Bay.
They are precluded from choosing not to perform these duties.
Consider:
(1) The DENR, under Executive Order No. (EO) 192,15 is the primary
agency responsible for the conservation, management, development,
and proper use of the countrys environment and natural resources.
Sec. 19 of the Philippine Clean Water Act of 2004 (RA 9275), on the
other hand, designates the DENR as the primary government agency
responsible for its enforcement and implementation, more particularly
over all aspects of water quality management. On water pollution, the
DENR, under the Acts Sec. 19(k), exercises jurisdiction "over all
aspects of water pollution, determine[s] its location, magnitude, extent,
severity, causes and effects and other pertinent information on
pollution, and [takes] measures, using available methods and
technologies, to prevent and abate such pollution."
The DENR, under RA 9275, is also tasked to prepare a National Water
Quality Status Report, an Integrated Water Quality Management
Framework, and a 10-year Water Quality Management Area Action
Plan which is nationwide in scope covering the Manila Bay and
adjoining areas. Sec. 19 of RA 9275 provides:
Sec. 19 Lead Agency.The [DENR] shall be the primary
government agency responsible for the implementation and
enforcement of this Act x x x unless otherwise provided herein.
As such, it shall have the following functions, powers and
responsibilities:
a) Prepare a National Water Quality Status report within
twenty-four (24) months from the effectivity of this Act:
Provided, That the Department shall thereafter review or revise
and publish annually, or as the need arises, said report;
b) Prepare an Integrated Water Quality Management
Framework within twelve (12) months following the
completion of the status report;
c) Prepare a ten (10) year Water Quality Management Area
Action Plan within 12 months following the completion of the
framework for each designated water management area. Such
 action plan shall be reviewed by the water quality management
area governing board every five (5) years or as need arises.
The DENR has prepared the status report for the period 2001 to 2005
and is in the process of completing the preparation of the Integrated
Water Quality Management Framework.16 Within twelve (12) months
thereafter, it has to submit a final Water Quality Management Area
Action Plan.17 Again, like the MMDA, the DENR should be made to
accomplish the tasks assigned to it under RA 9275.
Parenthetically, during the oral arguments, the DENR Secretary
manifested that the DENR, with the assistance of and in partnership
with various government agencies and non-government organizations,
has completed, as of December 2005, the final draft of a
comprehensive action plan with estimated budget and time frame,
denominated as Operation Plan for the Manila Bay Coastal Strategy,
for the rehabilitation, restoration, and rehabilitation of the Manila Bay.
The completion of the said action plan and even the implementation of
some of its phases should more than ever prod the concerned agencies
to fast track what are assigned them under existing laws.
(2) The MWSS, under Sec. 3 of RA 6234,18 is vested with jurisdiction,
supervision, and control over all waterworks and sewerage systems in
the territory comprising what is now the cities of Metro Manila and
several towns of the provinces of Rizal and Cavite, and charged with
the duty:
(g) To construct, maintain, and operate such sanitary sewerages
as may be necessary for the proper sanitation and other uses of
the cities and towns comprising the System; x x x
(3) The LWUA under PD 198 has the power of supervision and control
over local water districts. It can prescribe the minimum standards and
regulations for the operations of these districts and shall monitor and
evaluate local water standards. The LWUA can direct these districts to
construct, operate, and furnish facilities and services for the collection,
treatment, and disposal of sewerage, waste, and storm water.
Additionally, under RA 9275, the LWUA, as attached agency of the
DPWH, is tasked with providing sewerage and sanitation facilities,
inclusive of the setting up of efficient and safe collection, treatment,
and sewage disposal system in the different parts of the country.19 In
relation to the instant petition, the LWUA is mandated to provide
sewerage and sanitation facilities in Laguna, Cavite, Bulacan,
Pampanga, and Bataan to prevent pollution in the Manila Bay.
(4) The Department of Agriculture (DA), pursuant to the
Administrative Code of 1987 (EO 292),20 is designated as the agency
tasked to promulgate and enforce all laws and issuances respecting the
conservation and proper utilization of agricultural and fishery
resources. Furthermore, the DA, under the Philippine Fisheries Code
of 1998 (RA 8550), is, in coordination with local government units
(LGUs) and other concerned sectors, in charge of establishing a
monitoring, control, and surveillance system to ensure that fisheries
and aquatic resources in Philippine waters are judiciously utilized and
managed on a sustainable basis.21 Likewise under RA 9275, the DA is
charged with coordinating with the PCG and DENR for the
enforcement of water quality standards in marine waters.22 More
specifically, its Bureau of Fisheries and Aquatic Resources (BFAR)
under Sec. 22(c) of RA 9275 shall primarily be responsible for the
prevention and control of water pollution for the development,
management, and conservation of the fisheries and aquatic resources.
(5) The DPWH, as the engineering and construction arm of the
national government, is tasked under EO 29223 to provide integrated
planning, design, and construction services for, among others, flood
control and water resource development systems in accordance with
national development objectives and approved government plans and
specifications.
In Metro Manila, however, the MMDA is authorized by Sec. 3(d), RA
7924 to perform metro-wide services relating to "flood control and
sewerage management which include the formulation and
implementation of policies, standards, programs and projects for an
integrated flood control, drainage and sewerage system."
On July 9, 2002, a Memorandum of Agreement was entered into
between the DPWH and MMDA, whereby MMDA was made the
agency primarily responsible for flood control in Metro Manila. For
the rest of the country, DPWH shall remain as the implementing
agency for flood control services. The mandate of the MMDA and
DPWH on flood control and drainage services shall include the
removal of structures, constructions, and encroachments built along
rivers, waterways, and esteros (drainages) in violation of RA 7279, PD
1067, and other pertinent laws.
(6) The PCG, in accordance with Sec. 5(p) of PD 601, or the Revised
Coast Guard Law of 1974, and Sec. 6 of PD 979,24 or the Marine
Pollution Decree of 1976, shall have the primary responsibility of
enforcing laws, rules, and regulations governing marine pollution
within the territorial waters of the Philippines. It shall promulgate its
own rules and regulations in accordance with the national rules and
policies set by the National Pollution Control Commission upon
consultation with the latter for the effective implementation and
enforcement of PD 979. It shall, under Sec. 4 of the law, apprehend
violators who:
a. discharge, dump x x x harmful substances from or out of any
ship, vessel, barge, or any other floating craft, or other man-
made structures at sea, by any method, means or manner, into
or upon the territorial and inland navigable waters of the
Philippines;
b. throw, discharge or deposit, dump, or cause, suffer or
procure to be thrown, discharged, or deposited either from or
out of any ship, barge, or other floating craft or vessel of any
kind, or from the shore, wharf, manufacturing establishment, or
mill of any kind, any refuse matter of any kind or description
whatever other than that flowing from streets and sewers and
passing therefrom in a liquid state into tributary of any
navigable water from which the same shall float or be washed
into such navigable water; and
c. deposit x x x material of any kind in any place on the bank of
any navigable water or on the bank of any tributary of any
navigable water, where the same shall be liable to be washed
into such navigable water, either by ordinary or high tides, or
by storms or floods, or otherwise, whereby navigation shall or
may be impeded or obstructed or increase the level of pollution
of such water.
(7) When RA 6975 or the Department of the Interior and Local
Government (DILG) Act of 1990 was signed into law on December
13, 1990, the PNP Maritime Group was tasked to "perform all police
functions over the Philippine territorial waters and rivers." Under Sec.
86, RA 6975, the police functions of the PCG shall be taken over by
the PNP when the latter acquires the capability to perform such
functions. Since the PNP Maritime Group has not yet attained the
capability to assume and perform the police functions of PCG over
marine pollution, the PCG and PNP Maritime Group shall coordinate
with regard to the enforcement of laws, rules, and regulations
governing marine pollution within the territorial waters of the
Philippines. This was made clear in Sec. 124, RA 8550 or the
Philippine Fisheries Code of 1998, in which both the PCG and PNP
Maritime Group were authorized to enforce said law and other fishery
laws, rules, and regulations.25
(8) In accordance with Sec. 2 of EO 513, the PPA is mandated "to
establish, develop, regulate, manage and operate a rationalized
national port system in support of trade and national development."26
Moreover, Sec. 6-c of EO 513 states that the PPA has police authority
within the ports administered by it as may be necessary to carry out its
powers and functions and attain its purposes and objectives, without
prejudice to the exercise of the functions of the Bureau of Customs and
other law enforcement bodies within the area. Such police authority
shall include the following:
xxxx
b) To regulate the entry to, exit from, and movement within the
port, of persons and vehicles, as well as movement within the
port of watercraft.27
Lastly, as a member of the International Marine Organization and a
signatory to the International Convention for the Prevention of
Pollution from Ships, as amended by MARPOL 73/78,28 the
Philippines, through the PPA, must ensure the provision of adequate
reception facilities at ports and terminals for the reception of sewage
from the ships docking in Philippine ports. Thus, the PPA is tasked to
adopt such measures as are necessary to prevent the discharge and
dumping of solid and liquid wastes and other ship-generated wastes
into the Manila Bay waters from vessels docked at ports and
apprehend the violators. When the vessels are not docked at ports but
within Philippine territorial waters, it is the PCG and PNP Maritime
Group that have jurisdiction over said vessels.
(9) The MMDA, as earlier indicated, is duty-bound to put up and
maintain adequate sanitary landfill and solid waste and liquid disposal
system as well as other alternative garbage disposal systems. It is
primarily responsible for the implementation and enforcement of the
provisions of RA 9003, which would necessary include its penal
provisions, within its area of jurisdiction.29
Among the prohibited acts under Sec. 48, Chapter VI of RA 9003 that
are frequently violated are dumping of waste matters in public places,
such as roads, canals or esteros, open burning of solid waste, squatting
in open dumps and landfills, open dumping, burying of biodegradable
or non- biodegradable materials in flood-prone areas, establishment or
operation of open dumps as enjoined in RA 9003, and operation of
waste management facilities without an environmental compliance
certificate.
Under Sec. 28 of the Urban Development and Housing Act of 1992
(RA 7279), eviction or demolition may be allowed "when persons or
entities occupy danger areas such as esteros, railroad tracks, garbage
dumps, riverbanks, shorelines, waterways, and other public places
such as sidewalks, roads, parks and playgrounds." The MMDA, as lead
agency, in coordination with the DPWH, LGUs, and concerned
agencies, can dismantle and remove all structures, constructions, and
other encroachments built in breach of RA 7279 and other pertinent
laws along the rivers, waterways, and esteros in Metro Manila. With
respect to rivers, waterways, and esteros in Bulacan, Bataan,
Pampanga, Cavite, and Laguna that discharge wastewater directly or
eventually into the Manila Bay, the DILG shall direct the concerned
LGUs to implement the demolition and removal of such structures,
constructions, and other encroachments built in violation of RA 7279
and other applicable laws in coordination with the DPWH and
concerned agencies.
(10) The Department of Health (DOH), under Article 76 of PD 1067
(the Water Code), is tasked to promulgate rules and regulations for the
establishment of waste disposal areas that affect the source of a water
supply or a reservoir for domestic or municipal use. And under Sec. 8
of RA 9275, the DOH, in coordination with the DENR, DPWH, and
other concerned agencies, shall formulate guidelines and standards for
the collection, treatment, and disposal of sewage and the establishment
and operation of a centralized sewage treatment system. In areas not
considered as highly urbanized cities, septage or a mix sewerage-
septage management system shall be employed.
In accordance with Sec. 7230 of PD 856, the Code of Sanitation of the
Philippines, and Sec. 5.1.131 of Chapter XVII of its implementing
rules, the DOH is also ordered to ensure the regulation and monitoring
of the proper disposal of wastes by private sludge companies through
the strict enforcement of the requirement to obtain an environmental
sanitation clearance of sludge collection treatment and disposal before
these companies are issued their environmental sanitation permit.
(11) The Department of Education (DepEd), under the Philippine
Environment Code (PD 1152), is mandated to integrate subjects on
environmental education in its school curricula at all levels.32 Under
Sec. 118 of RA 8550, the DepEd, in collaboration with the DA,
Commission on Higher Education, and Philippine Information Agency,
shall launch and pursue a nationwide educational campaign to promote
the development, management, conservation, and proper use of the
environment. Under the Ecological Solid Waste Management Act (RA
9003), on the other hand, it is directed to strengthen the integration of
environmental concerns in school curricula at all levels, with an
emphasis on waste management principles.33
(12) The Department of Budget and Management (DBM) is tasked
under Sec. 2, Title XVII of the Administrative Code of 1987 to ensure
the efficient and sound utilization of government funds and revenues
so as to effectively achieve the countrys development objectives.34
One of the countrys development objectives is enshrined in RA 9275
or the Philippine Clean Water Act of 2004. This law stresses that the
State shall pursue a policy of economic growth in a manner consistent
with the protection, preservation, and revival of the quality of our
fresh, brackish, and marine waters. It also provides that it is the policy
of the government, among others, to streamline processes and
procedures in the prevention, control, and abatement of pollution
mechanisms for the protection of water resources; to promote
environmental strategies and use of appropriate economic instruments
and of control mechanisms for the protection of water resources; to
formulate a holistic national program of water quality management
that recognizes that issues related to this management cannot be
separated from concerns about water sources and ecological
protection, water supply, public health, and quality of life; and to
provide a comprehensive management program for water pollution
focusing on pollution prevention.
Thus, the DBM shall then endeavor to provide an adequate budget to
attain the noble objectives of RA 9275 in line with the countrys
development objectives.
All told, the aforementioned enabling laws and issuances are in
themselves clear, categorical, and complete as to what are the
obligations and mandate of each agency/petitioner under the law. We
need not belabor the issue that their tasks include the cleanup of the
Manila Bay.
Now, as to the crux of the petition. Do Secs. 17 and 20 of the
Environment Code encompass the cleanup of water pollution in
general, not just specific pollution incidents?
Secs. 17 and 20 of the Environment Code
Include Cleaning in General
The disputed sections are quoted as follows:
Section 17. Upgrading of Water Quality.Where the quality
of water has deteriorated to a degree where its state will
adversely affect its best usage, the government agencies
concerned shall take such measures as may be necessary to
upgrade the quality of such water to meet the prescribed water
quality standards.
Section 20. Clean-up Operations.It shall be the
responsibility of the polluter to contain, remove and clean-up
water pollution incidents at his own expense. In case of his
failure to do so, the government agencies concerned shall
undertake containment, removal and clean-up operations and
expenses incurred in said operations shall be charged against
the persons and/or entities responsible for such pollution.
When the Clean Water Act (RA 9275) took effect, its Sec. 16 on the
subject, o, amended the counterpart provision (Sec. 20) of the
Environment Code (PD 1152). Sec. 17 of PD 1152 continues, however,
to be operational.
The amendatory Sec. 16 of RA 9275 reads:
SEC. 16. Cleanup Operations.Notwithstanding the
provisions of Sections 15 and 26 hereof, any person who
causes pollution in or pollutes water bodies in excess of the
applicable and prevailing standards shall be responsible to
contain, remove and clean up any pollution incident at his own
expense to the extent that the same water bodies have been
rendered unfit for utilization and beneficial use: Provided, That
in the event emergency cleanup operations are necessary and
the polluter fails to immediately undertake the same, the
[DENR] in coordination with other government agencies
concerned, shall undertake containment, removal and cleanup
operations. Expenses incurred in said operations shall be
reimbursed by the persons found to have caused such pollution
under proper administrative determination x x x.
Reimbursements of the cost incurred shall be made to the
Water Quality Management Fund or to such other funds where
said disbursements were sourced.
As may be noted, the amendment to Sec. 20 of the Environment Code
is more apparent than real since the amendment, insofar as it is
relevant to this case, merely consists in the designation of the DENR
as lead agency in the cleanup operations.
Petitioners contend at every turn that Secs. 17 and 20 of the
Environment Code concern themselves only with the matter of
cleaning up in specific pollution incidents, as opposed to cleanup in
general. They aver that the twin provisions would have to be read
alongside the succeeding Sec. 62(g) and (h), which defines the terms
"cleanup operations" and "accidental spills," as follows:
g. Clean-up Operations [refer] to activities conducted in
removing the pollutants discharged or spilled in water to
restore it to pre-spill condition.
h. Accidental Spills [refer] to spills of oil or other hazardous
substances in water that result from accidents such as collisions
and groundings.
Petitioners proffer the argument that Secs. 17 and 20 of PD 1152
merely direct the government agencies concerned to undertake
containment, removal, and cleaning operations of a specific polluted
portion or portions of the body of water concerned. They maintain that
the application of said Sec. 20 is limited only to "water pollution
incidents," which are situations that presuppose the occurrence of
specific, isolated pollution events requiring the corresponding
containment, removal, and cleaning operations. Pushing the point
further, they argue that the aforequoted Sec. 62(g) requires "cleanup
operations" to restore the body of water to pre-spill condition, which
means that there must have been a specific incident of either
intentional or accidental spillage of oil or other hazardous substances,
as mentioned in Sec. 62(h).
As a counterpoint, respondents argue that petitioners erroneously read
Sec. 62(g) as delimiting the application of Sec. 20 to the containment,
removal, and cleanup operations for accidental spills only. Contrary to
petitioners posture, respondents assert that Sec. 62(g), in fact, even
expanded the coverage of Sec. 20. Respondents explain that without its
Sec. 62(g), PD 1152 may have indeed covered only pollution
accumulating from the day-to-day operations of businesses around the
Manila Bay and other sources of pollution that slowly accumulated in
the bay. Respondents, however, emphasize that Sec. 62(g), far from
being a delimiting provision, in fact even enlarged the operational
scope of Sec. 20, by including accidental spills as among the water
pollution incidents contemplated in Sec. 17 in relation to Sec. 20 of PD
1152.
To respondents, petitioners parochial view on environmental issues,
coupled with their narrow reading of their respective mandated roles,
has contributed to the worsening water quality of the Manila Bay.
Assuming, respondents assert, that petitioners are correct in saying that
the cleanup coverage of Sec. 20 of PD 1152 is constricted by the
definition of the phrase "cleanup operations" embodied in Sec. 62(g),
Sec. 17 is not hobbled by such limiting definition. As pointed out, the
phrases "cleanup operations" and "accidental spills" do not appear in
said Sec. 17, not even in the chapter where said section is found.
Respondents are correct. For one thing, said Sec. 17 does not in any
way state that the government agencies concerned ought to confine
themselves to the containment, removal, and cleaning operations when
a specific pollution incident occurs. On the contrary, Sec. 17 requires
them to act even in the absence of a specific pollution incident, as long
as water quality "has deteriorated to a degree where its state will
adversely affect its best usage." This section, to stress, commands
concerned government agencies, when appropriate, "to take such
measures as may be necessary to meet the prescribed water quality
standards." In fine, the underlying duty to upgrade the quality of water
is not conditional on the occurrence of any pollution incident.
For another, a perusal of Sec. 20 of the Environment Code, as
couched, indicates that it is properly applicable to a specific situation
in which the pollution is caused by polluters who fail to clean up the
mess they left behind. In such instance, the concerned government
agencies shall undertake the cleanup work for the polluters account.
Petitioners assertion, that they have to perform cleanup operations in
the Manila Bay only when there is a water pollution incident and the
erring polluters do not undertake the containment, removal, and
cleanup operations, is quite off mark. As earlier discussed, the
complementary Sec. 17 of the Environment Code comes into play and
the specific duties of the agencies to clean up come in even if there are
no pollution incidents staring at them. Petitioners, thus, cannot
plausibly invoke and hide behind Sec. 20 of PD 1152 or Sec. 16 of RA
9275 on the pretext that their cleanup mandate depends on the
happening of a specific pollution incident. In this regard, what the CA
said with respect to the impasse over Secs. 17 and 20 of PD 1152 is at
once valid as it is practical. The appellate court wrote: "PD 1152 aims
to introduce a comprehensive program of environmental protection
and management. This is better served by making Secs. 17 & 20 of
general application rather than limiting them to specific pollution
incidents."35
Granting arguendo that petitioners position thus described vis--vis
the implementation of Sec. 20 is correct, they seem to have overlooked
the fact that the pollution of the Manila Bay is of such magnitude and
scope that it is well-nigh impossible to draw the line between a
specific and a general pollution incident. And such impossibility
extends to pinpointing with reasonable certainty who the polluters are.
We note that Sec. 20 of PD 1152 mentions "water pollution incidents"
which may be caused by polluters in the waters of the Manila Bay
itself or by polluters in adjoining lands and in water bodies or
waterways that empty into the bay. Sec. 16 of RA 9275, on the other
hand, specifically adverts to "any person who causes pollution in or
pollutes water bodies," which may refer to an individual or an
establishment that pollutes the land mass near the Manila Bay or the
waterways, such that the contaminants eventually end up in the bay. In
this situation, the water pollution incidents are so numerous and
involve nameless and faceless polluters that they can validly be
categorized as beyond the specific pollution incident level.
Not to be ignored of course is the reality that the government agencies
concerned are so undermanned that it would be almost impossible to
apprehend the numerous polluters of the Manila Bay. It may perhaps
not be amiss to say that the apprehension, if any, of the Manila Bay
polluters has been few and far between. Hence, practically nobody has
been required to contain, remove, or clean up a given water pollution
incident. In this kind of setting, it behooves the Government to step in
and undertake cleanup operations. Thus, Sec. 16 of RA 9275,
previously Sec. 20 of PD 1152, covers for all intents and purposes a
general cleanup situation.
The cleanup and/or restoration of the Manila Bay is only an aspect and
the initial stage of the long-term solution. The preservation of the
water quality of the bay after the rehabilitation process is as important
as the cleaning phase. It is imperative then that the wastes and
contaminants found in the rivers, inland bays, and other bodies of
water be stopped from reaching the Manila Bay. Otherwise, any
cleanup effort would just be a futile, cosmetic exercise, for, in no time
at all, the Manila Bay water quality would again deteriorate below the
ideal minimum standards set by PD 1152, RA 9275, and other relevant
laws. It thus behooves the Court to put the heads of the petitioner-
department-agencies and the bureaus and offices under them on
continuing notice about, and to enjoin them to perform, their mandates
and duties towards cleaning up the Manila Bay and preserving the
quality of its water to the ideal level. Under what other judicial
discipline describes as "continuing mandamus,"36 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.37
The Court can take judicial notice of the presence of shanties and other
unauthorized structures which do not have septic tanks along the
Pasig-Marikina-San Juan Rivers, the National Capital Region (NCR)
(Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-
Tenejeros Rivers, the Meycuayan-Marilao-Obando (Bulacan) Rivers,
the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De
Bay, and other minor rivers and connecting waterways, river banks,
and esteros which discharge their waters, with all the accompanying
filth, dirt, and garbage, into the major rivers and eventually the Manila
Bay. If there is one factor responsible for the pollution of the major
river systems and the Manila Bay, these unauthorized structures would
be on top of the list. And if the issue of illegal or unauthorized
structures is not seriously addressed with sustained resolve, then
practically all efforts to cleanse these important bodies of water would
be for naught. The DENR Secretary said as much.38
Giving urgent dimension to the necessity of removing these illegal
structures is Art. 51 of PD 1067 or the Water Code,39 which prohibits
the building of structures within a given length along banks of rivers
and other waterways. Art. 51 reads:
 The banks of rivers and streams and the shores of the seas
and lakes throughout their entire length and within a zone
of three (3) meters in urban areas, twenty (20) meters in
agricultural areas and forty (40) meters in forest areas, along
their margins, are subject to the easement of public use in the
interest of recreation, navigation, floatage, fishing and
salvage. No person shall be allowed to stay in this zone
longer than what is necessary for recreation, navigation,
floatage, fishing or salvage or to build structures of any kind.
(Emphasis added.)
Judicial notice may likewise be taken of factories and other industrial
establishments standing along or near the banks of the Pasig River,
other major rivers, and connecting waterways. But while they may not
be treated as unauthorized constructions, some of these establishments
undoubtedly contribute to the pollution of the Pasig River and
waterways. The DILG and the concerned LGUs, have, accordingly, the
duty to see to it that non-complying industrial establishments set up,
within a reasonable period, the necessary waste water treatment
facilities and infrastructure to prevent their industrial discharge,
including their sewage waters, from flowing into the Pasig River, other
major rivers, and connecting waterways. After such period, non-
complying establishments shall be shut down or asked to transfer their
operations.
At this juncture, and if only to dramatize the urgency of the need for
petitioners-agencies to comply with their statutory tasks, we cite the
Asian Development Bank-commissioned study on the garbage
problem in Metro Manila, the results of which are embodied in the
The Garbage Book. As there reported, the garbage crisis in the
metropolitan area is as alarming as it is shocking. Some highlights of
the report:
1. As early as 2003, three land-filled dumpsites in Metro
Manila - the Payatas, Catmon and Rodriquez dumpsites -
generate an alarming quantity of lead and leachate or liquid
run-off. Leachate are toxic liquids that flow along the surface
and seep into the earth and poison the surface and groundwater
that are used for drinking, aquatic life, and the environment.
2. The high level of fecal coliform confirms the presence of a
large amount of human waste in the dump sites and
surrounding areas, which is presumably generated by
households that lack alternatives to sanitation. To say that
Manila Bay needs rehabilitation is an understatement.
3. Most of the deadly leachate, lead and other dangerous
contaminants and possibly strains of pathogens seeps untreated
into ground water and runs into the Marikina and Pasig River
systems and Manila Bay.40
Given the above perspective, sufficient sanitary landfills should now
more than ever be established as prescribed by the Ecological Solid
Waste Management Act (RA 9003). Particular note should be taken of
the blatant violations by some LGUs and possibly the MMDA of Sec.
37, reproduced below:
Sec. 37. Prohibition against the Use of Open Dumps for Solid
Waste.No open dumps shall be established and operated, nor
any practice or disposal of solid waste by any person, including
LGUs which [constitute] the use of open dumps for solid
waste, be allowed after the effectivity of this Act: Provided,
further that no controlled dumps shall be allowed (5) years
following the effectivity of this Act. (Emphasis added.)
RA 9003 took effect on February 15, 2001 and the adverted grace
period of five (5) years which ended on February 21, 2006 has come
and gone, but no single sanitary landfill which strictly complies with
the prescribed standards under RA 9003 has yet been set up.
In addition, there are rampant and repeated violations of Sec. 48 of RA
9003, like littering, dumping of waste matters in roads, canals, esteros,
and other public places, operation of open dumps, open burning of
solid waste, and the like. Some sludge companies which do not have
proper disposal facilities simply discharge sludge into the Metro
Manila sewerage system that ends up in the Manila Bay. Equally
unabated are violations of Sec. 27 of RA 9275, which enjoins the
pollution of water bodies, groundwater pollution, disposal of infectious
wastes from vessels, and unauthorized transport or dumping into sea
waters of sewage or solid waste and of Secs. 4 and 102 of RA 8550
which proscribes the introduction by human or machine of substances
to the aquatic environment including "dumping/disposal of waste and
other marine litters, discharge of petroleum or residual products of
petroleum of carbonaceous materials/substances [and other]
radioactive, noxious or harmful liquid, gaseous or solid substances,
from any water, land or air transport or other human-made structure."
In the light of the ongoing environmental degradation, the Court
wishes to emphasize the extreme necessity for all concerned executive
departments and agencies to immediately act and discharge their
respective official duties and obligations. Indeed, time is of the
essence; hence, there is a need to set timetables for the performance
and completion of the tasks, some of them as defined for them by law
and the nature of their respective offices and mandates.
The importance of the Manila Bay as a sea resource, playground, and
as a historical landmark cannot be over-emphasized. It is not yet too
late in the day to restore the Manila Bay to its former splendor and
bring back the plants and sea life that once thrived in its blue waters.
But the tasks ahead, daunting as they may be, could only be
accomplished if those mandated, with the help and cooperation of all
civic-minded individuals, would put their minds to these tasks and take
responsibility. This means that the State, through petitioners, has to
take the lead in the preservation and protection of the Manila Bay.
The era of delays, procrastination, and ad hoc measures is over.
Petitioners must transcend their limitations, real or imaginary, and
buckle down to work before the problem at hand becomes
unmanageable. Thus, we must reiterate that different government
agencies and instrumentalities cannot shirk from their mandates; they
must perform their basic functions in cleaning up and rehabilitating the
Manila Bay. We are disturbed by petitioners hiding behind two
untenable claims: (1) that there ought to be a specific pollution
incident before they are required to act; and (2) that the cleanup of the
bay is a discretionary duty.
RA 9003 is a sweeping piece of legislation enacted to radically
transform and improve waste management. It implements Sec. 16, Art.
II of the 1987 Constitution, which explicitly provides that 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.
So it was that in Oposa v. Factoran, Jr. the Court stated that the right
to a balanced and healthful ecology need not even be written in the
Constitution for it is assumed, like other civil and political rights
guaranteed in the Bill of Rights, to exist from the inception of mankind
and it is an issue of transcendental importance with intergenerational
implications.41 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.
WHEREFORE, the petition is DENIED. The September 28, 2005
Decision of the CA in CA-G.R. CV No. 76528 and SP No. 74944 and
the September 13, 2002 Decision of the RTC in Civil Case No. 1851-
99 are AFFIRMED but with MODIFICATIONS in view of
subsequent developments or supervening events in the case. The fallo
of the RTC Decision shall now read:
WHEREFORE, judgment is hereby rendered ordering the
abovenamed defendant-government agencies to clean up,
rehabilitate, and preserve Manila Bay, and restore and maintain
its waters to SB level (Class B sea waters per Water
Classification Tables under DENR Administrative Order No.
34 [1990]) to make them fit for swimming, skin-diving, and
other forms of contact recreation.
In particular:
(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary
agency responsible for the conservation, management, development,
and proper use of the countrys environment and natural resources, and
Sec. 19 of RA 9275, designating the DENR as the primary government
agency responsible for its enforcement and implementation, the DENR
is directed to fully implement its Operational Plan for the Manila Bay
Coastal Strategy for the rehabilitation, restoration, and conservation of
the Manila Bay at the earliest possible time. It is ordered to call regular
coordination meetings with concerned government departments and
agencies to ensure the successful implementation of the aforesaid plan
of action in accordance with its indicated completion schedules.
(2) Pursuant to Title XII (Local Government) of the Administrative
Code of 1987 and Sec. 25 of the Local Government Code of 1991,42
the DILG, in exercising the Presidents power of general supervision
and its duty to promulgate guidelines in establishing waste
management programs under Sec. 43 of the Philippine Environment
Code (PD 1152), shall direct all LGUs in Metro Manila, Rizal,
Laguna, Cavite, Bulacan, Pampanga, and Bataan to inspect all
factories, commercial establishments, and private homes along the
banks of the major river systems in their respective areas of
jurisdiction, such as but not limited to the Pasig-Marikina-San Juan
Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the Navotas-
Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-
Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus
(Cavite) River, the Laguna De Bay, and other minor rivers and
waterways that eventually discharge water into the Manila Bay; and
the lands abutting the bay, to determine whether they have wastewater
treatment facilities or hygienic septic tanks as prescribed by existing
laws, ordinances, and rules and regulations. If none be found, these
LGUs shall be ordered to require non-complying establishments and
homes to set up said facilities or septic tanks within a reasonable time
to prevent industrial wastes, sewage water, and human wastes from
flowing into these rivers, waterways, esteros, and the Manila Bay,
under pain of closure or imposition of fines and other sanctions.
(3) As mandated by Sec. 8 of RA 9275,43 the MWSS is directed to
provide, install, operate, and maintain the necessary adequate waste
water treatment facilities in Metro Manila, Rizal, and Cavite where
needed at the earliest possible time.
(4) Pursuant to RA 9275,44 the LWUA, through the local water districts
and in coordination with the DENR, is ordered to provide, install,
operate, and maintain sewerage and sanitation facilities and the
efficient and safe collection, treatment, and disposal of sewage in the
provinces of Laguna, Cavite, Bulacan, Pampanga, and Bataan where
needed at the earliest possible time.
(5) Pursuant to Sec. 65 of RA 8550,45 the DA, through the BFAR, is
ordered to improve and restore the marine life of the Manila Bay. It is
also directed to assist the LGUs in Metro Manila, Rizal, Cavite,
Laguna, Bulacan, Pampanga, and Bataan in developing, using
recognized methods, the fisheries and aquatic resources in the Manila
Bay.
(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP
Maritime Group, in accordance with Sec. 124 of RA 8550, in
coordination with each other, shall apprehend violators of PD 979, RA
8550, and other existing laws and regulations designed to prevent
marine pollution in the Manila Bay.
(7) Pursuant to Secs. 2 and 6-c of EO 51346 and the International
Convention for the Prevention of Pollution from Ships, the PPA is
ordered to immediately adopt such measures to prevent the discharge
and dumping of solid and liquid wastes and other ship-generated
wastes into the Manila Bay waters from vessels docked at ports and
apprehend the violators.
(8) The MMDA, as the lead agency and implementor of programs and
projects for flood control projects and drainage services in Metro
Manila, in coordination with the DPWH, DILG, affected LGUs, PNP
Maritime Group, Housing and Urban Development Coordinating
Council (HUDCC), and other agencies, shall dismantle and remove all
structures, constructions, and other encroachments established or built
in violation of RA 7279, and other applicable laws along the Pasig-
Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias)
Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and
connecting waterways and esteros in Metro Manila. The DPWH, as the
principal implementor of programs and projects for flood control
services in the rest of the country more particularly in Bulacan,
Bataan, Pampanga, Cavite, and Laguna, in coordination with the
DILG, affected LGUs, PNP Maritime Group, HUDCC, and other
concerned government agencies, shall remove and demolish all
structures, constructions, and other encroachments built in breach of
RA 7279 and other applicable laws along the Meycauayan-Marilao-
Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus
(Cavite) River, the Laguna De Bay, and other rivers, connecting
waterways, and esteros that discharge wastewater into the Manila Bay.
In addition, the MMDA is ordered to establish, operate, and maintain a
sanitary landfill, as prescribed by RA 9003, within a period of one (1)
year from finality of this Decision. On matters within its territorial
jurisdiction and in connection with the discharge of its duties on the
maintenance of sanitary landfills and like undertakings, it is also
ordered to cause the apprehension and filing of the appropriate
criminal cases against violators of the respective penal provisions of
RA 9003,47 Sec. 27 of RA 9275 (the Clean Water Act), and other
existing laws on pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of
RA 9275, within one (1) year from finality of this Decision, determine
if all licensed septic and sludge companies have the proper facilities
for the treatment and disposal of fecal sludge and sewage coming from
septic tanks. The DOH shall give the companies, if found to be non-
complying, a reasonable time within which to set up the necessary
facilities under pain of cancellation of its environmental sanitation
clearance.
(10) Pursuant to Sec. 53 of PD 1152,48 Sec. 118 of RA 8550, and Sec.
56 of RA 9003,49 the DepEd shall integrate lessons on pollution
prevention, waste management, environmental protection, and like
subjects in the school curricula of all levels to inculcate in the minds
and hearts of students and, through them, their parents and friends, the
importance of their duty toward achieving and maintaining a balanced
and healthful ecosystem in the Manila Bay and the entire Philippine
archipelago.
(11) The DBM shall consider incorporating an adequate budget in the
General Appropriations Act of 2010 and succeeding years to cover the
expenses relating to the cleanup, restoration, and preservation of the
water quality of the Manila Bay, in line with the countrys
development objective to attain economic growth in a manner
consistent with the protection, preservation, and revival of our marine
waters.
(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH,
DA, DPWH, DBM, PCG, PNP Maritime Group, DILG, and also of
MWSS, LWUA, and PPA, in line with the principle of "continuing
mandamus," shall, from finality of this Decision, each submit to the
Court a quarterly progressive report of the activities undertaken in
accordance with this Decision.
No costs.
SO ORDERED.
G.R. Nos. 171947-48 February 15, 2011
METROPOLITAN MANILA DEVELOPMENT AUTHORITY,
DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES, DEPARTMENT OF EDUCATION, CULTURE
AND SPORTS,1 DEPARTMENT OF HEALTH, DEPARTMENT
OF AGRICULTURE, DEPARTMENT OF PUBLIC WORKS AND
HIGHWAYS, DEPARTMENT OF BUDGET AND
MANAGEMENT, PHILIPPINE COAST GUARD, PHILIPPINE
NATIONAL POLICE MARITIME GROUP, and DEPARTMENT
OF THE INTERIOR AND LOCAL GOVERNMENT, Petitioners,
vs.
CONCERNED RESIDENTS OF MANILA BAY, represented and
joined by DIVINA V. ILAS, SABINIANO ALBARRACIN,
MANUEL SANTOS, JR., DINAH DELA PEA, PAUL DENNIS
QUINTERO, MA. VICTORIA LLENOS, DONNA CALOZA,
FATIMA QUITAIN, VENICE SEGARRA, FRITZIE TANGKIA,
SARAH JOELLE LINTAG, HANNIBAL AUGUSTUS BOBIS,
FELIMON SANTIAGUEL, and JAIME AGUSTIN R. OPOSA,
Respondents.
RESOLUTION
VELASCO, JR., J.:
On December 18, 2008, this Court rendered a Decision in G.R. Nos.
171947-48 ordering petitioners to clean up, rehabilitate and preserve
Manila Bay in their different capacities. The fallo reads:
WHEREFORE, the petition is DENIED. The September 28, 2005
Decision of the CA in CA-G.R. CV No. 76528 and SP No. 74944 and
the September 13, 2002 Decision of the RTC in Civil Case No. 1851-
99 are AFFIRMED but with MODIFICATIONS in view of subsequent
developments or supervening events in the case. The fallo of the RTC
Decision shall now read:
WHEREFORE, judgment is hereby rendered ordering the abovenamed
defendant-government agencies to clean up, rehabilitate, and preserve
Manila Bay, and restore and maintain its waters to SB level (Class B
sea waters per Water Classification Tables under DENR
Administrative Order No. 34 [1990]) to make them fit for swimming,
skin-diving, and other forms of contact recreation.
In particular:
(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the
primary agency responsible for the conservation, management,
development, and proper use of the countrys environment and
natural resources, and Sec. 19 of RA 9275, designating the
DENR as the primary government agency responsible for its
enforcement and implementation, the DENR is directed to fully
implement its Operational Plan for the Manila Bay Coastal
Strategy for the rehabilitation, restoration, and conservation of
the Manila Bay at the earliest possible time. It is ordered to call
regular coordination meetings with concerned government
departments and agencies to ensure the successful
implementation of the aforesaid plan of action in accordance
with its indicated completion schedules.
(2) Pursuant to Title XII (Local Government) of the
Administrative Code of 1987 and Sec. 25 of the Local
Government Code of 1991, the DILG, in exercising the
Presidents power of general supervision and its duty to
promulgate guidelines in establishing waste management
programs under Sec. 43 of the Philippine Environment Code
(PD 1152), shall direct all LGUs in Metro Manila, Rizal,
Laguna, Cavite, Bulacan, Pampanga, and Bataan to inspect all
factories, commercial establishments, and private homes along
the banks of the major river systems in their respective areas of
jurisdiction, such as but not limited to the Pasig-Marikina-San
Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers,
the Navotas-Malabon-Tullahan-Tenejeros Rivers, the
Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay
(Bataan) River, the Imus (Cavite) River, the Laguna De Bay,
and other minor rivers and waterways that eventually discharge
water into the Manila Bay; and the lands abutting the bay, to
determine whether they have wastewater treatment facilities or
hygienic septic tanks as prescribed by existing laws,
ordinances, and rules and regulations. If none be found, these
LGUs shall be ordered to require non-complying
establishments and homes to set up said facilities or septic
tanks within a reasonable time to prevent industrial wastes,
sewage water, and human wastes from flowing into these
rivers, waterways, esteros, and the Manila Bay, under pain of
closure or imposition of fines and other sanctions.
(3) As mandated by Sec. 8 of RA 9275, the MWSS is directed
to provide, install, operate, and maintain the necessary
adequate waste water treatment facilities in Metro Manila,
Rizal, and Cavite where needed at the earliest possible time.
(4) Pursuant to RA 9275, the LWUA, through the local water
districts and in coordination with the DENR, is ordered to
provide, install, operate, and maintain sewerage and sanitation
facilities and the efficient and safe collection, treatment, and
disposal of sewage in the provinces of Laguna, Cavite,
Bulacan, Pampanga, and Bataan where needed at the earliest
possible time.
(5) Pursuant to Sec. 65 of RA 8550, the DA, through the
BFAR, is ordered to improve and restore the marine life of the
Manila Bay. It is also directed to assist the LGUs in Metro
Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga, and Bataan
in developing, using recognized methods, the fisheries and
aquatic resources in the Manila Bay.
(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP
Maritime Group, in accordance with Sec. 124 of RA 8550, in
coordination with each other, shall apprehend violators of PD
979, RA 8550, and other existing laws and regulations
designed to prevent marine pollution in the Manila Bay.
(7) Pursuant to Secs. 2 and 6-c of EO 513 and the International
Convention for the Prevention of Pollution from Ships, the PPA
is ordered to immediately adopt such measures to prevent the
discharge and dumping of solid and liquid wastes and other
ship-generated wastes into the Manila Bay waters from vessels
docked at ports and apprehend the violators.
(8) The MMDA, as the lead agency and implementor of
programs and projects for flood control projects and drainage
services in Metro Manila, in coordination with the DPWH,
DILG, affected LGUs, PNP Maritime Group, Housing and
Urban Development Coordinating Council (HUDCC), and
other agencies, shall dismantle and remove all structures,
constructions, and other encroachments established or built in
violation of RA 7279, and other applicable laws along the
Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote,
Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros
Rivers, and connecting waterways and esteros in Metro Manila.
The DPWH, as the principal implementor of programs and
projects for flood control services in the rest of the country
more particularly in Bulacan, Bataan, Pampanga, Cavite, and
Laguna, in coordination with the DILG, affected LGUs, PNP
Maritime Group, HUDCC, and other concerned government
agencies, shall remove and demolish all structures,
constructions, and other encroachments built in breach of RA
7279 and other applicable laws along the Meycauayan-
Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River,
the Imus (Cavite) River, the Laguna De Bay, and other rivers,
connecting waterways, and esteros that discharge wastewater
into the Manila Bay.
In addition, the MMDA is ordered to establish, operate, and
maintain a sanitary landfill, as prescribed by RA 9003, within a
period of one (1) year from finality of this Decision. On
matters within its territorial jurisdiction and in connection with
the discharge of its duties on the maintenance of sanitary
landfills and like undertakings, it is also ordered to cause the
apprehension and filing of the appropriate criminal cases
against violators of the respective penal provisions of RA 9003,
Sec. 27 of RA 9275 (the Clean Water Act), and other existing
laws on pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec.
8 of RA 9275, within one (1) year from finality of this
Decision, determine if all licensed septic and sludge companies
have the proper facilities for the treatment and disposal of fecal
sludge and sewage coming from septic tanks. The DOH shall
give the companies, if found to be non-complying, a reasonable
time within which to set up the necessary facilities under pain
of cancellation of its environmental sanitation clearance.
(10) Pursuant to Sec. 53 of PD 1152, Sec. 118 of RA 8550, and
Sec. 56 of RA 9003, the DepEd shall integrate lessons on
pollution prevention, waste management, environmental
protection, and like subjects in the school curricula of all levels
to inculcate in the minds and hearts of students and, through
them, their parents and friends, the importance of their duty
toward achieving and maintaining a balanced and healthful
ecosystem in the Manila Bay and the entire Philippine
archipelago.
(11) The DBM shall consider incorporating an adequate budget
in the General Appropriations Act of 2010 and succeeding
years to cover the expenses relating to the cleanup, restoration,
and preservation of the water quality of the Manila Bay, in line
with the countrys development objective to attain economic
growth in a manner consistent with the protection,
preservation, and revival of our marine waters.
(12) The heads of petitioners-agencies MMDA, DENR,
DepEd, DOH, DA, DPWH, DBM, PCG, PNP Maritime Group,
DILG, and also of MWSS, LWUA, and PPA, in line with the
principle of "continuing mandamus," shall, from finality of this
Decision, each submit to the Court a quarterly progressive
report of the activities undertaken in accordance with this
Decision.
SO ORDERED.
The government agencies did not file any motion for reconsideration
and the Decision became final in January 2009.
The case is now in the execution phase of the final and executory
December 18, 2008 Decision. The Manila Bay Advisory Committee
was created to receive and evaluate the quarterly progressive reports
on the activities undertaken by the agencies in accordance with said
decision and to monitor the execution phase.
In the absence of specific completion periods, the Committee
recommended that time frames be set for the agencies to perform their
assigned tasks. This may be viewed as an encroachment over the
powers and functions of the Executive Branch headed by the President
of the Philippines.
This view is misplaced.
The issuance of subsequent resolutions by the Court is simply an
exercise of judicial power under Art. VIII of the Constitution, because
the execution of the Decision is but an integral part of the adjudicative
function of the Court. None of the agencies ever questioned the power
of the Court to implement the December 18, 2008 Decision nor has
any of them raised the alleged encroachment by the Court over
executive functions.
While additional activities are required of the agencies like submission
of plans of action, data or status reports, these directives are but part
and parcel of the execution stage of a final decision under Rule 39 of
the Rules of Court. Section 47 of Rule 39 reads:
Section 47. Effect of judgments or final orders.The effect of a
judgment or final order rendered by a court of the Philippines, having
jurisdiction to pronounce the judgment or final order, may be as
follows:
xxxx
(c) In any other litigation between the same parties of their successors
in interest, that only is deemed to have been adjudged in a former
judgment or final order which appears upon its face to have been so
adjudged, or which was actually and necessarily included therein or
necessary thereto. (Emphasis supplied.)
It is clear that the final judgment includes not only what appears upon
its face to have been so adjudged but also those matters "actually and
necessarily included therein or necessary thereto." Certainly, any
activity that is needed to fully implement a final judgment is
necessarily encompassed by said judgment.
Moreover, the submission of periodic reports is sanctioned by Secs. 7
and 8, Rule 8 of the Rules of Procedure for Environmental cases:
Sec. 7. Judgment.If warranted, the court shall grant the privilege of
the writ of continuing mandamus requiring respondent to perform an
act or series of acts until the judgment is fully satisfied and to grant
such other reliefs as may be warranted resulting from the wrongful or
illegal acts of the respondent. The court shall require the respondent to
submit periodic reports detailing the progress and execution of the
judgment, and the court may, by itself or through a commissioner or
the appropriate government agency, evaluate and monitor compliance.
The petitioner may submit its comments or observations on the
execution of the judgment.
Sec. 8. Return of the writ.The periodic reports submitted by the
respondent detailing compliance with the judgment shall be contained
in partial returns of the writ. Upon full satisfaction of the judgment, a
final return of the writ shall be made to the court by the respondent. If
the court finds that the judgment has been fully implemented, the
satisfaction of judgment shall be entered in the court docket.
(Emphasis supplied.)
With the final and executory judgment in MMDA, the writ of
continuing mandamus issued in MMDA means that until petitioner-
agencies have shown full compliance with the Courts orders, the
Court exercises continuing jurisdiction over them until full execution
of the judgment.
There being no encroachment over executive functions to speak of, We
shall now proceed to the recommendation of the Manila Bay Advisory
Committee.
Several problems were encountered by the Manila Bay Advisory
Committee.2 An evaluation of the quarterly progressive reports has
shown that (1) there are voluminous quarterly progressive reports that
are being submitted; (2) petitioner-agencies do not have a uniform
manner of reporting their cleanup, rehabilitation and preservation
activities; (3) as yet no definite deadlines have been set by petitioner
DENR as to petitioner-agencies timeframe for their respective duties;
(4) as of June 2010 there has been a change in leadership in both the
national and local levels; and (5) some agencies have encountered
difficulties in complying with the Courts directives.
In order to implement the afore-quoted Decision, certain directives
have to be issued by the Court to address the said concerns.
Acting on the recommendation of the Manila Bay Advisory
Committee, the Court hereby resolves to ORDER the following:
(1) The Department of Environment and Natural Resources (DENR),
as lead agency in the Philippine Clean Water Act of 2004, shall submit
to the Court on or before June 30, 2011 the updated Operational Plan
for the Manila Bay Coastal Strategy.
The DENR is ordered to submit summarized data on the overall
quality of Manila Bay waters for all four quarters of 2010 on or before
June 30, 2011.
The DENR is further ordered to submit the names and addresses of
persons and companies in Metro Manila, Rizal, Laguna, Cavite,
Bulacan, Pampanga and Bataan that generate toxic and hazardous
waste on or before September 30, 2011.
(2) On or before June 30, 2011, the Department of the Interior and
Local Government (DILG) shall order the Mayors of all cities in
Metro Manila; the Governors of Rizal, Laguna, Cavite, Bulacan,
Pampanga and Bataan; and the Mayors of all the cities and towns in
said provinces to inspect all factories, commercial establishments and
private homes along the banks of the major river systemssuch as but
not limited to the Pasig-Marikina-San Juan Rivers, the National
Capital Region (Paranaque-Zapote, Las Pinas) Rivers, the Navotas-
Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-
Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus
(Cavite) River, and the Laguna De Bayand other minor rivers and
waterways within their jurisdiction that eventually discharge water into
the Manila Bay and the lands abutting it, to determine if they have
wastewater treatment facilities and/or hygienic septic tanks, as
prescribed by existing laws, ordinances, rules and regulations. Said
local government unit (LGU) officials are given up to September 30,
2011 to finish the inspection of said establishments and houses.
In case of non-compliance, the LGU officials shall take appropriate
action to ensure compliance by non-complying factories, commercial
establishments and private homes with said law, rules and regulations
requiring the construction or installment of wastewater treatment
facilities or hygienic septic tanks.
The aforementioned governors and mayors shall submit to the DILG
on or before December 31, 2011 their respective compliance reports
which will contain the names and addresses or offices of the owners of
all the non-complying factories, commercial establishments and
private homes, copy furnished the concerned environmental agency, be
it the local DENR office or the Laguna Lake Development Authority.
The DILG is required to submit a five-year plan of action that will
contain measures intended to ensure compliance of all non-complying
factories, commercial establishments, and private homes.
On or before June 30, 2011, the DILG and the mayors of all cities in
Metro Manila shall consider providing land for the wastewater
facilities of the Metropolitan Waterworks and Sewerage System
(MWSS) or its concessionaires (Maynilad and Manila Water, Inc.)
within their respective jurisdictions.
(3) The MWSS shall submit to the Court on or before June 30, 2011
the list of areas in Metro Manila, Rizal and Cavite that do not have the
necessary wastewater treatment facilities. Within the same period, the
concessionaires of the MWSS shall submit their plans and projects for
the construction of wastewater treatment facilities in all the aforesaid
areas and the completion period for said facilities, which shall not go
beyond 2037.
On or before June 30, 2011, the MWSS is further required to have its
two concessionaires submit a report on the amount collected as
sewerage fees in their respective areas of operation as of December 31,
2010.
(4) The Local Water Utilities Administration is ordered to submit on or
before September 30, 2011 its plan to provide, install, operate and
maintain sewerage and sanitation facilities in said cities and towns and
the completion period for said works, which shall be fully
implemented by December 31, 2020.
(5) The Department of Agriculture (DA), through the Bureau of
Fisheries and Aquatic Resources, shall submit to the Court on or
before June 30, 2011 a report on areas in Manila Bay where marine
life has to be restored or improved and the assistance it has extended to
the LGUs in Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga
and Bataan in developing the fisheries and aquatic resources in Manila
Bay. The report shall contain monitoring data on the marine life in said
areas. Within the same period, it shall submit its five-year plan to
restore and improve the marine life in Manila Bay, its future activities
to assist the aforementioned LGUs for that purpose, and the
completion period for said undertakings.
The DA shall submit to the Court on or before September 30, 2011 the
baseline data as of September 30, 2010 on the pollution loading into
the Manila Bay system from agricultural and livestock sources.
(6) The Philippine Ports Authority (PPA) shall incorporate in its
quarterly reports the list of violators it has apprehended and the status
of their cases. The PPA is further ordered to include in its report the
names, make and capacity of the ships that dock in PPA ports. The
PPA shall submit to the Court on or before June 30, 2011 the measures
it intends to undertake to implement its compliance with paragraph 7
of the dispositive portion of the MMDA Decision and the completion
dates of such measures.
The PPA should include in its report the activities of its concessionaire
that collects and disposes of the solid and liquid wastes and other ship-
generated wastes, which shall state the names, make and capacity of
the ships serviced by it since August 2003 up to the present date, the
dates the ships docked at PPA ports, the number of days the ship was at
sea with the corresponding number of passengers and crew per trip, the
volume of solid, liquid and other wastes collected from said ships, the
treatment undertaken and the disposal site for said wastes.
(7) The Philippine National Police (PNP) Maritime Group shall submit
on or before June 30, 2011 its five-year plan of action on the measures
and activities it intends to undertake to apprehend the violators of
Republic Act No. (RA) 8550 or the Philippine Fisheries Code of 1998
and other pertinent laws, ordinances and regulations to prevent marine
pollution in Manila Bay and to ensure the successful prosecution of
violators.
The Philippine Coast Guard shall likewise submit on or before June
30, 2011 its five-year plan of action on the measures and activities they
intend to undertake to apprehend the violators of Presidential Decree
No. 979 or the Marine Pollution Decree of 1976 and RA 9993 or the
Philippine Coast Guard Law of 2009 and other pertinent laws and
regulations to prevent marine pollution in Manila Bay and to ensure
the successful prosecution of violators.
(8) The Metropolitan Manila Development Authority (MMDA) shall
submit to the Court on or before June 30, 2011 the names and
addresses of the informal settlers in Metro Manila who, as of
December 31, 2010, own and occupy houses, structures, constructions
and other encroachments established or built along the Pasig-
Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias)
Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and
connecting waterways and esteros, in violation of RA 7279 and other
applicable laws. On or before June 30, 2011, the MMDA shall submit
its plan for the removal of said informal settlers and the demolition of
the aforesaid houses, structures, constructions and encroachments, as
well as the completion dates for said activities, which shall be fully
implemented not later than December 31, 2015.
The MMDA is ordered to submit a status report, within thirty (30)
days from receipt of this Resolution, on the establishment of a sanitary
landfill facility for Metro Manila in compliance with the standards
under RA 9003 or the Ecological Solid Waste Management Act.
On or before June 30, 2011, the MMDA shall submit a report of the
location of open and controlled dumps in Metro Manila whose
operations are illegal after February 21, 2006,3 pursuant to Secs. 36
and 37 of RA 9003, and its plan for the closure of these open and
controlled dumps to be accomplished not later than December 31,
2012. Also, on or before June 30, 2011, the DENR Secretary, as
Chairperson of the National Solid Waste Management Commission
(NSWMC), shall submit a report on the location of all open and
controlled dumps in Rizal, Cavite, Laguna, Bulacan, Pampanga and
Bataan.
On or before June 30, 2011, the DENR Secretary, in his capacity as
NSWMC Chairperson, shall submit a report on whether or not the
following landfills strictly comply with Secs. 41 and 42 of RA 9003 on
the establishment and operation of sanitary landfills, to wit:
National Capital Region
1. Navotas SLF (PhilEco), Brgy. Tanza (New Site), Navotas
City
2. Payatas Controlled Dumpsite, Barangay Payatas, Quezon
City
Region III
3. Sitio Coral, Brgy. Matictic, Norzagaray, Bulacan
 4. Sitio Tiakad, Brgy. San Mateo, Norzagaray, Bulacan
5. Brgy. Minuyan, San Jose del Monte City, Bulacan
6. Brgy. Mapalad, Santa Rosa, Nueva Ecija
7. Sub-zone Kalangitan, Clark Capas, Tarlac Special Economic
Zone
Region IV-A
8. Kalayaan (Longos), Laguna
9. Brgy. Sto. Nino, San Pablo City, Laguna
10. Brgy. San Antonio (Pilotage SLF), San Pedro, Laguna
11. Morong, Rizal
12. Sitio Lukutan, Brgy. San Isidro, Rodriguez (Montalban),
Rizal (ISWIMS)
13. Brgy. Pintong Bukawe, San Mateo, Rizal (SMSLFDC)
On or before June 30, 2011, the MMDA and the seventeen (17) LGUs
in Metro Manila are ordered to jointly submit a report on the average
amount of garbage collected monthly per district in all the cities in
Metro Manila from January 2009 up to December 31, 2010 vis--vis
the average amount of garbage disposed monthly in landfills and
dumpsites. In its quarterly report for the last quarter of 2010 and
thereafter, MMDA shall report on the apprehensions for violations of
the penal provisions of RA 9003, RA 9275 and other laws on pollution
for the said period.
On or before June 30, 2011, the DPWH and the LGUs in Rizal,
Laguna, Cavite, Bulacan, Pampanga, and Bataan shall submit the
names and addresses of the informal settlers in their respective areas
who, as of September 30, 2010, own or occupy houses, structures,
constructions, and other encroachments built along the Meycauayan-
Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the
Imus (Cavite) River, the Laguna de Bay, and other rivers, connecting
waterways and esteros that discharge wastewater into the Manila Bay,
in breach of RA 7279 and other applicable laws. On or before June 30,
2011, the DPWH and the aforesaid LGUs shall jointly submit their
plan for the removal of said informal settlers and the demolition of the
aforesaid structures, constructions and encroachments, as well as the
completion dates for such activities which shall be implemented not
later than December 31, 2012.
(9) The Department of Health (DOH) shall submit to the Court on or
before June 30, 2011 the names and addresses of the owners of septic
and sludge companies including those that do not have the proper
facilities for the treatment and disposal of fecal sludge and sewage
coming from septic tanks.
The DOH shall implement rules and regulations on Environmental
Sanitation Clearances and shall require companies to procure a license
to operate from the DOH.
The DOH and DENR-Environmental Management Bureau shall
develop a toxic and hazardous waste management system by June 30,
2011 which will implement segregation of hospital/toxic/hazardous
wastes and prevent mixing with municipal solid waste.
On or before June 30, 2011, the DOH shall submit a plan of action to
ensure that the said companies have proper disposal facilities and the
completion dates of compliance.1avvphi1
(10) The Department of Education (DepEd) shall submit to the Court
on or before May 31, 2011 a report on the specific subjects on
pollution prevention, waste management, environmental protection,
environmental laws and the like that it has integrated into the school
curricula in all levels for the school year 2011-2012.
On or before June 30, 2011, the DepEd shall also submit its plan of
action to ensure compliance of all the schools under its supervision
with respect to the integration of the aforementioned subjects in the
school curricula which shall be fully implemented by June 30, 2012.
(11) All the agencies are required to submit their quarterly reports
electronically using the forms below. The agencies may add other key
performance indicators that they have identified.
SO ORDERED.
G.R. No. 196870 June 26, 2012
BORACAY FOUNDATION, INC., Petitioner,
vs.
THE PROVINCE OF AKLAN, REPRESENTED BY
GOVERNOR CARLITO S. MARQUEZ, THE PHILIPPINE
RECLAMATION AUTHORITY, AND THE DENR-EMB
(REGION VI), Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
In resolving this controversy, the Court took into consideration that all
the parties involved share common goals in pursuit of certain
primordial State policies and principles that are enshrined in the
Constitution and pertinent laws, such as the protection of the
environment, the empowerment of the local government units, the
promotion of tourism, and the encouragement of the participation of
the private sector. The Court seeks to reconcile the respective roles,
duties and responsibilities of the petitioner and respondents in
achieving these shared goals within the context of our Constitution,
laws and regulations.
Nature of the Case
This is an original petition for the issuance of an Environmental
Protection Order in the nature of a continuing mandamus under A.M.
No. 09-6-8-SC, otherwise known as the Rules of Procedure for
Environmental Cases, promulgated on April 29, 2010.
The Parties
Petitioner Boracay Foundation, Inc. (petitioner) is a duly registered,
non-stock domestic corporation. Its primary purpose is "to foster a
united, concerted and environment-conscious development of Boracay
Island, thereby preserving and maintaining its culture, natural beauty
and ecological balance, marking the island as the crown jewel of
Philippine tourism, a prime tourist destination in Asia and the whole
world."1 It counts among its members at least sixty (60) owners and
representatives of resorts, hotels, restaurants, and similar institutions;
at least five community organizations; and several environmentally-
conscious residents and advocates.2
Respondent Province of Aklan (respondent Province) is a political
subdivision of the government created pursuant to Republic Act No.
1414, represented by Honorable Carlito S. Marquez, the Provincial
Governor (Governor Marquez).
Respondent Philippine Reclamation Authority (respondent PRA),
formerly called the Public Estates Authority (PEA), is a government
entity created by Presidential Decree No. 1084,3 which states that one
of the purposes for which respondent PRA was created was to reclaim
land, including foreshore and submerged areas. PEA eventually
became the lead agency primarily responsible for all reclamation
projects in the country under Executive Order No. 525, series of 1979.
In June 2006, the President of the Philippines issued Executive Order
No. 543, delegating the power "to approve reclamation projects to
PRA through its governing Board, subject to compliance with existing
laws and rules and further subject to the condition that reclamation
contracts to be executed with any person or entity (must) go through
public bidding."4
Respondent Department of Environment and Natural Resources
Environmental Management Bureau (DENR-EMB), Regional Office
VI (respondent DENR-EMB RVI), is the government agency in the
Western Visayas Region authorized to issue environmental compliance
certificates regarding projects that require the environments protection
and management in the region.5
Summary of Antecedent Facts
Boracay Island (Boracay), a tropical paradise located in the Western
Visayas region of the Philippines and one of the countrys most
popular tourist destinations, was declared a tourist zone and marine
reserve in 1973 under Presidential Proclamation No. 1801.6 The island
comprises the barangays of Manoc-manoc, Balabag, and Yapak, all
within the municipality of Malay, in the province of Aklan.7
Petitioner describes Boracay as follows:
Boracay is well-known for its distinctive powdery white-sand beaches
which are the product of the unique ecosystem dynamics of the area.
The island itself is known to come from the uplifted remnants of an
ancient reef platform. Its beaches, the sandy land strip between the
water and the area currently occupied by numerous establishments, is
the primary draw for domestic and international tourists for its color,
texture and other unique characteristics. Needless to state, it is the
premier domestic and international tourist destination in the
Philippines.8
More than a decade ago, respondent Province built the Caticlan Jetty
Port and Passenger Terminal at Barangay Caticlan to be the main
gateway to Boracay. It also built the corresponding Cagban Jetty Port
and Passenger Terminal to be the receiving end for tourists in Boracay.
Respondent Province operates both ports "to provide structural
facilities suited for locals, tourists and guests and to provide safety and
security measures."9
In 2005, Boracay 2010 Summit was held and participated in by
representatives from national government agencies, local government
units (LGUs), and the private sector. Petitioner was one of the
organizers and participants thereto. The Summit aimed "to re-establish
a common vision of all stakeholders to ensure the conservation,
restoration, and preservation of Boracay Island" and "to develop an
action plan that [would allow] all sectors to work in concert among
and with each other for the long term benefit and sustainability of the
island and the community."10 The Summit yielded a Terminal Report11
stating that the participants had shared their dream of having world-
class land, water and air infrastructure, as well as given their
observations that government support was lacking, infrastructure was
poor, and, more importantly, the influx of tourists to Boracay was
increasing. The Report showed that there was a need to expand the
port facilities at Caticlan due to congestion in the holding area of the
existing port, caused by inadequate facilities, thus tourists suffered
long queues while waiting for the boat ride going to the island.12
Respondent Province claimed that tourist arrivals to Boracay reached
approximately 649,559 in 2009 and 779,666 in 2010, and this was
expected to reach a record of 1 million tourist arrivals in the years to
come. Thus, respondent Province conceptualized the expansion of the
port facilities at Barangay Caticlan.13
The Sangguniang Barangay of Caticlan, Malay Municipality, issued
Resolution No. 13, s. 200814 on April 25, 2008 stating that it had
learned that respondent Province had filed an application with the
DENR for a foreshore lease of areas along the shorelines of Barangay
Caticlan, and manifesting its strong opposition to said application, as
the proposed foreshore lease practically covered almost all the
coastlines of said barangay, thereby technically diminishing its
territorial jurisdiction, once granted, and depriving its constituents of
their statutory right of preference in the development and utilization of
the natural resources within its jurisdiction. The resolution further
stated that respondent Province did not conduct any consultations with
the Sangguniang Barangay of Caticlan regarding the proposed
foreshore lease, which failure the Sanggunian considered as an act of
bad faith on the part of respondent Province.15
On November 20, 2008, the Sangguniang Panlalawigan of respondent
Province approved Resolution No. 2008-369,16 formally authorizing
Governor Marquez to enter into negotiations towards the possibility of
effecting self-liquidating and income-producing development and
livelihood projects to be financed through bonds, debentures,
securities, collaterals, notes or other obligations as provided under
Section 299 of the Local Government Code, with the following
priority projects: (a) renovation/rehabilitation of the Caticlan/Cagban
Passenger Terminal Buildings and Jetty Ports; and (b) reclamation of a
portion of Caticlan foreshore for commercial purposes.17 This step was
taken as respondent Provinces existing jetty port and passenger
terminal was funded through bond flotation, which was successfully
redeemed and paid ahead of the target date. This was allegedly cited as
one of the LGUs Best Practices wherein respondent Province was
given the appropriate commendation.18
Respondent Province included the proposed expansion of the port
facilities at Barangay Caticlan in its 2009 Annual Investment Plan,19
envisioned as its project site the area adjacent to the existing jetty port,
and identified additional areas along the coastline of Barangay
Caticlan as the site for future project expansion.20
Governor Marquez sent a letter to respondent PRA on March 12,
200921 expressing the interest of respondent Province to reclaim about
2.64 hectares of land along the foreshores of Barangay Caticlan,
Municipality of Malay, Province of Aklan.
Sometime in April 2009, respondent Province entered into an
agreement with the Financial Advisor/Consultant that won in the
bidding process held a month before, to conduct the necessary
feasibility study of the proposed project for the
Renovation/Rehabilitation of the Caticlan Passenger Terminal
Building and Jetty Port, Enhancement and Recovery of Old Caticlan
Coastline, and Reclamation of a Portion of Foreshore for Commercial
Purposes (the Marina Project), in Malay, Aklan.22
Subsequently, on May 7, 2009, the Sangguniang Panlalawigan of
respondent Province issued Resolution No. 2009110,23 which
authorized Governor Marquez to file an application to reclaim the 2.64
hectares of foreshore area in Caticlan, Malay, Aklan with respondent
PRA.
Sometime in July 2009, the Financial Advisor/Consultant came up
with a feasibility study which focused on the land reclamation of 2.64
hectares by way of beach enhancement and recovery of the old
Caticlan coastline for the rehabilitation and expansion of the existing
jetty port, and for its future plans the construction of commercial
building and wellness center. The financial component of the said
study was Two Hundred Sixty Million Pesos (P260,000,000.00). Its
suggested financing scheme was bond flotation.24
Meanwhile, the Sangguniang Bayan of the Municipality of Malay
expressed its strong opposition to the intended foreshore lease
application, through Resolution No. 044,25 approved on July 22, 2009,
manifesting therein that respondent Provinces foreshore lease
application was for business enterprise purposes for its benefit, at the
expense of the local government of Malay, which by statutory
provisions was the rightful entity "to develop, utilize and reap benefits
from the natural resources found within its jurisdiction."26
In August 2009, a Preliminary Geohazard Assessment27 for the
enhancement/expansion of the existing Caticlan Jetty Port and
Passenger Terminal through beach zone restoration and Protective
Marina Developments in Caticlan, Malay, Aklan was completed.
Thereafter, Governor Marquez submitted an Environmental
Performance Report and Monitoring Program (EPRMP)28 to DENR-
EMB RVI, which he had attached to his letter29 dated September 19,
2009, as an initial step for securing an Environmental Compliance
Certificate (ECC). The letter reads in part:
With the project expected to start its construction implementation next
month, the province hereby assures your good office that it will give
preferential attention to and shall comply with whatever comments
that you may have on this EPRMP.30 (Emphasis added.)
Respondent Province was then authorized to issue "Caticlan Super
Marina Bonds" for the purpose of funding the renovation of the
Caticlan Jetty Port and Passenger Terminal Building, and the
reclamation of a portion of the foreshore lease area for commercial
purposes in Malay, Aklan through Provincial Ordinance No. 2009-013,
approved on September 10, 2009. The said ordinance authorized
Governor Marquez to negotiate, sign and execute agreements in
relation to the issuance of the Caticlan Super Marina Bonds in the
amount not exceeding P260,000,000.00.31
Subsequently, the Sangguniang Panlalawigan of the Province of Aklan
issued Provincial Ordinance No. 2009-01532 on October 1, 2009,
amending Provincial Ordinance No. 2009-013, authorizing the bond
flotation of the Province of Aklan through Governor Marquez to fund
the Marina Project and appropriate the entire proceeds of said bonds
for the project, and further authorizing Governor Marquez to negotiate,
sign and execute contracts or agreements pertinent to the transaction.33
Within the same month of October 2009, respondent Province
deliberated on the possible expansion from its original proposed
reclamation area of 2.64 hectares to forty (40) hectares in order to
maximize the utilization of its resources and as a response to the
findings of the Preliminary Geohazard Assessment study which
showed that the recession and retreat of the shoreline caused by coastal
erosion and scouring should be the first major concern in the project
site and nearby coastal area. The study likewise indicated the
vulnerability of the coastal zone within the proposed project site and
the nearby coastal area due to the effects of sea level rise and climate
change which will greatly affect the social, economic, and
environmental situation of Caticlan and nearby Malay coastal
communities.34
In his letter dated October 22, 2009 addressed to respondent PRA,
Governor Marquez wrote:
With our substantial compliance with the requirements under
Administrative Order No. 2007-2 relative to our request to PRA for
approval of the reclamation of the [proposed Beach Zone Restoration
and Protection Marine Development in Barangays Caticlan and
Manoc-Manoc] and as a result of our discussion during the [meeting
with the respondent PRA on October 12, 2009], may we respectfully
submit a revised Reclamation Project Description embodying certain
revisions/changes in the size and location of the areas to be reclaimed.
x x x.
On another note, we are pleased to inform your Office that the bond
flotation we have secured with the Local Government Unit Guarantee
Corporation (LGUGC) has been finally approved last October 14,
2009. This will pave the way for the implementation of said project.
Briefly, the Province has been recognized by the Bureau of Local
Government Finance (BLGF) for its capability to meet its loan
obligations. x x x.
With the continued increase of tourists coming to Boracay through
Caticlan, the Province is venturing into such development project with
the end in view of protection and/or restoring certain segments of the
shoreline in Barangays Caticlan (Caticlan side) and Manoc-manoc
(Boracay side) which, as reported by experts, has been experiencing
tremendous coastal erosion.
For the project to be self-liquidating, however, we will be developing
the reclaimed land for commercial and tourism-related facilities and
for other complementary uses.35 (Emphasis ours.)
Then, on November 19, 2009, the Sangguniang Panlalawigan enacted
Resolution No. 2009-29936 authorizing Governor Marquez to enter into
a Memorandum of Agreement (MOA) with respondent PRA in the
implementation of the Beach Zone Restoration and Protection Marina
Development Project, which shall reclaim a total of 40 hectares in the
areas adjacent to the jetty ports at Barangay Caticlan and Barangay
Manoc-manoc. The Sangguniang Panlalawigan approved the terms
and conditions of the necessary agreements for the implementation of
the bond flotation of respondent Province to fund the
renovation/rehabilitation of the existing jetty port by way of
enhancement and recovery of the Old Caticlan shoreline through
reclamation of an area of 2.64 hectares in the amount of
P260,000,000.00 on December 1, 2009.37
Respondent Province gave an initial presentation of the project with
consultation to the Sangguniang Bayan of Malay38 on December 9,
2009.
Respondent PRA approved the reclamation project on April 20, 2010
in its Resolution No. 4094 and authorized its General Manager/Chief
Executive Officer (CEO) to enter into a MOA with respondent
Province for the implementation of the reclamation project.39
On April 27, 2010, DENR-EMB RVI issued to respondent Province
ECC-R6-1003-096-7100 (the questioned ECC) for Phase 1 of the
Reclamation Project to the extent of 2.64 hectares to be done along the
Caticlan side beside the existing jetty port.40
On May 17, 2010, respondent Province entered into a MOA41 with
respondent PRA. Under Article III, the Project was described therein
as follows:
The proposed Aklan Beach Zone Restoration and Protection Marina
Development Project involves the reclamation and development of
approximately forty (40) hectares of foreshore and offshore areas of
the Municipality of Malay x x x.
The land use development of the reclamation project shall be for
commercial, recreational and institutional and other applicable uses.42
(Emphases supplied.)
It was at this point that respondent Province deemed it necessary to
conduct a series of what it calls "information-education campaigns,"
which provided the venue for interaction and dialogue with the public,
particularly the Barangay and Municipal officials of the Municipality
of Malay, the residents of Barangay Caticlan and Boracay, the
stakeholders, and the non-governmental organizations (NGOs). The
details of the campaign are summarized as follows43 :
a. June 17, 2010 at Casa Pilar Beach Resort, Boracay Island,
Malay, Aklan;44
b. July 28, 2010 at Caticlan Jetty Port and Passenger
Terminal;45
c. July 31, 2010 at Barangay Caticlan Plaza;46
d. September 15, 2010 at the Office of the Provincial Governor
with Municipal Mayor of Malay Mayor John P. Yap;47
e. October 12, 2010 at the Office of the Provincial Governor
with the Provincial Development Council Executive
Committee;48 and
f. October 29, 2010 at the Office of the Provincial Governor
with Officials of LGU-Malay and Petitioner.49
Petitioner claims that during the "public consultation meeting"
belatedly called by respondent Province on June 17, 2010, respondent
Province presented the Reclamation Project and only then detailed the
actions that it had already undertaken, particularly: the issuance of the
Caticlan Super Marina Bonds; the execution of the MOA with
respondent PRA; the alleged conduct of an Environmental Impact
Assessment (EIA) study for the reclamation project; and the expansion
of the project to forty (40) hectares from 2.64 hectares.50
In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the
Malay Municipality reiterated its strong opposition to respondent
Provinces project and denied its request for a favorable endorsement
of the Marina Project.51
The Malay Municipality subsequently issued Resolution No. 016,
Series of 2010, adopted on August 3, 2010, to request respondent PRA
"not to grant reclamation permit and notice to proceed to the Marina
Project of the [respondent] Provincial Government of Aklan located at
Caticlan, Malay, Aklan."52
In a letter53 dated October 12, 2010, petitioner informed respondent
PRA of its opposition to the reclamation project, primarily for the
reason that, based on the opinion of Dr. Porfirio M. Alio, an expert
from the University of the Philippines Marine Science Institute
(UPMSI), which he rendered based on the documents submitted by
respondent Province to obtain the ECC, a full EIA study is required to
assess the reclamation projects likelihood of rendering critical and
lasting effect on Boracay considering the proximity in distance,
geographical location, current and wind direction, and many other
environmental considerations in the area. Petitioner noted that said
documents had failed to deal with coastal erosion concerns in Boracay.
It also noted that respondent Province failed to comply with certain
mandatory provisions of the Local Government Code, particularly,
those requiring the project proponent to conduct consultations with
stakeholders.
Petitioner likewise transmitted its Resolution No. 001, Series of 2010,
registering its opposition to the reclamation project to respondent
Province, respondent PRA, respondent DENR-EMB, the National
Economic Development Authority Region VI, the Malay Municipality,
and other concerned entities.54
Petitioner alleges that despite the Malay Municipalitys denial of
respondent Provinces request for a favorable endorsement, as well as
the strong opposition manifested both by Barangay Caticlan and
petitioner as an NGO, respondent Province still continued with the
implementation of the Reclamation Project.55
On July 26, 2010, the Sangguniang Panlalawigan of respondent
Province set aside Resolution No. 046, s. 2010, of the Municipality of
Malay and manifested its support for the implementation of the
aforesaid project through its Resolution No. 2010-022.56
On July 27, 2010, the MOA was confirmed by respondent PRA Board
of Directors under its Resolution No. 4130. Respondent PRA wrote to
respondent Province on October 19, 2010, informing the latter to
proceed with the reclamation and development of phase 1 of site 1 of
its proposed project. Respondent PRA attached to said letter its
Evaluation Report dated October 18, 2010.57
Petitioner likewise received a copy of respondent PRAs letter dated
October 19, 2010, which authorized respondent Province to proceed
with phase 1 of the reclamation project, subject to compliance with the
requirements of its Evaluation Report. The reclamation project was
described as:
"[A] seafront development involving reclamation of an aggregate area
of more or less, forty (40) hectares in two (2) separate sites both in
Malay Municipality, Aklan Province. Site 1 is in Brgy. Caticlan with a
total area of 36.82 hectares and Site 2 in Brgy. Manoc-Manoc, Boracay
Island with a total area of 3.18 hectares. Sites 1 and 2 are on the
opposite sides of Tabon Strait, about 1,200 meters apart. x x x." 58
(Emphases added.)
The Sangguniang Panlalawigan of Aklan, through Resolution No.
2010-034,59 addressed the apprehensions of petitioner embodied in its
Resolution No. 001, s. 2010, and supported the implementation of the
project. Said resolution stated that the apprehensions of petitioner with
regard to the economic, social and political negative impacts of the
projects were mere perceptions and generalities and were not anchored
on definite scientific, social and political studies.
In the meantime, a study was commissioned by the Philippine
Chamber of Commerce and Industry-Boracay (PCCI-Boracay), funded
by the Department of Tourism (DOT) with the assistance of, among
others, petitioner. The study was conducted in November 2010 by
several marine biologists/experts from the Marine Environmental
Resources Foundation (MERF) of the UPMSI. The study was intended
to determine the potential impact of a reclamation project in the
hydrodynamics of the strait and on the coastal erosion patterns in the
southern coast of Boracay Island and along the coast of Caticlan.60
After noting the objections of the respective LGUs of Caticlan and
Malay, as well as the apprehensions of petitioner, respondent Province
issued a notice to the contractor on December 1, 2010 to commence
with the construction of the project.61
On April 4, 2011, the Sangguniang Panlalawigan of Aklan, through its
Committee on Cooperatives, Food, Agriculture, and Environmental
Protection and the Committee on Tourism, Trade, Industry and
Commerce, conducted a joint committee hearing wherein the study
undertaken by the MERF-UPMSI was discussed.62 In attendance were
Mr. Ariel Abriam, President of PCCI-Boracay, representatives from the
Provincial Government, and Dr. Cesar Villanoy, a professor from the
UPMSI. Dr. Villanoy said that the subject project, consisting of 2.64
hectares, would only have insignificant effect on the hydrodynamics of
the strait traversing the coastline of Barangay Caticlan and Boracay,
hence, there was a distant possibility that it would affect the Boracay
coastline, which includes the famous white-sand beach of the island.63
Thus, on April 6, 2011, the Sangguniang Panlalawigan of Aklan
enacted Resolution No. 2011-06564 noting the report on the survey of
the channel between Caticlan and Boracay conducted by the UPMSI in
relation to the effects of the ongoing reclamation to Boracay beaches,
and stating that Dr. Villanoy had admitted that nowhere in their study
was it pointed out that there would be an adverse effect on the white-
sand beach of Boracay.
During the First Quarter Regular Meeting of the Regional
Development Council, Region VI (RDC-VI) on April 16, 2011, it
approved and supported the subject project (covering 2.64 hectares)
through RDC-VI Resolution No. VI-26, series of 2011.65
Subsequently, Mr. Abriam sent a letter to Governor Marquez dated
April 25, 2011 stating that the study conducted by the UPMSI
confirms that the water flow across the Caticlan-Boracay channel is
primarily tide-driven, therefore, the marine scientists believe that the
2.64-hectare project of respondent Province would not significantly
affect the flow in the channel and would unlikely impact the Boracay
beaches. Based on this, PCCI-Boracay stated that it was not opposing
the 2.64-hectare Caticlan reclamation project on environmental
grounds.66
On June 1, 2011, petitioner filed the instant Petition for Environmental
Protection Order/Issuance of the Writ of Continuing Mandamus. On
June 7, 2011, this Court issued a Temporary Environmental Protection
Order (TEPO) and ordered the respondents to file their respective
comments to the petition.67
After receiving a copy of the TEPO on June 9, 2011, respondent
Province immediately issued an order to the Provincial Engineering
Office and the concerned contractor to cease and desist from
conducting any construction activities until further orders from this
Court.
The petition is premised on the following grounds:
I.
The respondent Province, proponent of the reclamation project, failed
to comply with relevant rules and regulations in the acquisition of an
ECC.
A. The reclamation project is co-located within
environmentally critical areas requiring the performance of a
full, or programmatic, environmental impact assessment.
B. Respondent Province failed to obtain the favorable
endorsement of the LGU concerned.
C. Respondent Province failed to conduct the required
consultation procedures as required by the Local Government
Code.
D. Respondent Province failed to perform a full environmental
impact assessment as required by law and relevant regulations.
II.
The reclamation of land bordering the strait between Caticlan and
Boracay shall adversely affect the frail ecological balance of the area.68
Petitioner objects to respondent Provinces classification of the
reclamation project as single instead of co-located, as "non-
environmentally critical," and as a mere "rehabilitation" of the existing
jetty port. Petitioner points out that the reclamation project is on two
sites (which are situated on the opposite sides of Tabon Strait, about
1,200 meters apart):
 36.82 hectares Site 1, in Bgy. Caticlan
3.18 hectares Site 2, in Manoc-manoc, Boracay Island69
Phase 1, which was started in December 2010 without the necessary
permits,70 is located on the Caticlan side of a narrow strait separating
mainland Aklan from Boracay. In the implementation of the project,
respondent Province obtained only an ECC to conduct Phase 1, instead
of an ECC on the entire 40 hectares. Thus, petitioner argues that
respondent Province abused and exploited the Revised Procedural
Manual for DENR Administrative Order No. 30, Series of 2003
(DENR DAO 2003-30)71 relating to the acquisition of an ECC by:
1. Declaring the reclamation project under "Group II Projects-
Non-ECP (environmentally critical project) in ECA
(environmentally critical area) based on the type and size of the
area," and
2. Failing to declare the reclamation project as a co-located
project application which would have required the Province to
submit a Programmatic Environmental Impact Statement
(PEIS)72 or Programmatic Environmental [Performance] Report
Management Plan (PE[P]RMP).73 (Emphases ours.)
Petitioner further alleges that the Revised Procedural Manual (on
which the classification above is based, which merely requires an
Environmental Impact Statement [EIS] for Group II projects) is
patently ultra vires, and respondent DENR-EMB RVI committed grave
abuse of discretion because the laws on EIS, namely, Presidential
Decree Nos. 1151 and 1586, as well as Presidential Proclamation No.
2146, clearly indicate that projects in environmentally critical areas are
to be immediately considered environmentally critical. Petitioner
complains that respondent Province applied for an ECC only for Phase
1; hence, unlawfully
evading the requirement that co-located projects74 within
Environmentally Critical Areas (ECAs) must submit a PEIS and/or a
PEPRMP.
Petitioner argues that respondent Province fraudulently classified and
misrepresented the project as a Non-ECP in an ECA, and as a single
project instead of a co-located one. The impact assessment allegedly
performed gives a patently erroneous and wrongly-premised appraisal
of the possible environmental impact of the reclamation project.
Petitioner contends that respondent Provinces choice of classification
was designed to avoid a comprehensive impact assessment of the
reclamation project.
Petitioner further contends that respondent DENR-EMB RVI willfully
and deliberately disregarded its duty to ensure that the environment is
protected from harmful developmental projects because it allegedly
performed only a cursory and superficial review of the documents
submitted by the respondent Province for an ECC, failing to note that
all the information and data used by respondent Province in its
application for the ECC were all dated and not current, as data was
gathered in the late 1990s for the ECC issued in 1999 for the first jetty
port. Thus, petitioner alleges that respondent DENR-EMB RVI
ignored the environmental impact to Boracay, which involves changes
in the structure of the coastline that could contribute to the changes in
the characteristics of the sand in the beaches of both Caticlan and
Boracay.
Petitioner insists that reclamation of land at the Caticlan side will
unavoidably adversely affect the Boracay side and notes that the
declared objective of the reclamation project is for the exploitation of
Boracays tourist trade, since the project is intended to enhance
support services thereto. But, petitioner argues, the primary reason for
Boracays popularity is its white-sand beaches which will be
negatively affected by the project.
Petitioner alleges that respondent PRA had required respondent
Province to obtain the favorable endorsement of the LGUs of
Barangay Caticlan and Malay Municipality pursuant to the
consultation procedures as required by the Local Government Code.75
Petitioner asserts that the reclamation project is in violation not only of
laws on EIS but also of the Local Government Code as respondent
Province failed to enter into proper consultations with the concerned
LGUs. In fact, the Liga ng mga Barangay-Malay Chapter also
expressed strong opposition against the project.76
Petitioner cites Sections 26 and 27 of the Local Government Code,
which require consultations if the project or program may cause
pollution, climactic change, depletion of non-renewable resources, etc.
According to petitioner, respondent Province ignored the LGUs
opposition expressed as early as 2008. Not only that, respondent
Province belatedly called for public "consultation meetings" on June
17 and July 28, 2010, after an ECC had already been issued and the
MOA between respondents PRA and Province had already been
executed. As the petitioner saw it, these were not consultations but
mere "project presentations."
Petitioner claims that respondent Province, aided and abetted by
respondents PRA and DENR-EMB, ignored the spirit and letter of the
Revised Procedural Manual, intended to implement the various
regulations governing the Environmental Impact Assessments (EIAs)
to ensure that developmental projects are in line with sustainable
development of natural resources. The project was conceptualized
without considering alternatives.
Further, as to its allegation that respondent Province failed to perform
a full EIA, petitioner argues that while it is true that as of now, only the
Caticlan side has been issued an ECC, the entire project involves the
Boracay side, which should have been considered a co-located project.
Petitioner claims that any project involving Boracay requires a full
EIA since it is an ECA. Phase 1 of the project will affect Boracay and
Caticlan as they are separated only by a narrow strait; thus, it should
be considered an ECP. Therefore, the ECC and permit issued must be
invalidated and cancelled.
Petitioner contends that a study shows that the flow of the water
through a narrower channel due to the reclamation project will likely
divert sand transport off the southwest part of Boracay, whereas the
characteristic coast of the Caticlan side of the strait indicate stronger
sediment transport.77 The white-sand beaches of Boracay and its
surrounding marine environment depend upon the natural flow of the
adjacent waters.
Regarding its claim that the reclamation of land bordering the strait
between Caticlan and Boracay shall adversely affect the frail
ecological balance of the area, petitioner submits that while the study
conducted by the MERF-UPMSI only considers the impact of the
reclamation project on the land, it is undeniable that it will also
adversely affect the already frail ecological balance of the area. The
effect of the project would have been properly assessed if the proper
EIA had been performed prior to any implementation of the project.
According to petitioner, respondent Provinces intended purposes do
not prevail over its duty and obligation to protect the environment.
Petitioner believes that rehabilitation of the Jetty Port may be done
through other means.
In its Comment78 dated June 21, 2011, respondent Province claimed
that application for reclamation of 40 hectares is advantageous to the
Provincial Government considering that its filing fee would only cost
Php20,000.00 plus Value Added Tax (VAT) which is also the minimum
fee as prescribed under Section 4.2 of Administrative Order No. 2007-
2.79
Respondent Province considers the instant petition to be premature;
thus, it must necessarily fail for lack of cause of action due to the
failure of petitioner to fully exhaust the available administrative
remedies even before seeking judicial relief. According to respondent
Province, the petition primarily assailed the decision of respondent
DENR-EMB RVI in granting the ECC for the subject project
consisting of 2.64 hectares and sought the cancellation of the ECC for
alleged failure of respondent Province to submit proper documentation
as required for its issuance. Hence, the grounds relied upon by
petitioner can be addressed within the confines of administrative
processes provided by law.
Respondent Province believes that under Section 5.4.3 of DENR
Administrative Order No. 2003-30 (DAO 2003-30),80 the issuance of
an ECC81 is an official decision of DENR-EMB RVI on the application
of a project proponent.82 It cites Section 6 of DENR DAO 2003-30,
which provides for a remedy available to the party aggrieved by the
final decision on the proponents ECC applications.
Respondent Province argues that the instant petition is anchored on a
wrong premise that results to petitioners unfounded fears and baseless
apprehensions. It is respondent Provinces contention that its 2.64-
hectare reclamation project is considered as a "stand alone project,"
separate and independent from the approved area of 40 hectares. Thus,
petitioner should have observed the difference between the "future
development plan" of respondent Province from its "actual project"
being undertaken.83
Respondent Province clearly does not dispute the fact that it revised its
original application to respondent PRA from 2.64 hectares to 40
hectares. However, it claims that such revision is part of its future plan,
and implementation thereof is "still subject to availability of funds,
independent scientific environmental study, separate application of
ECC and notice to proceed to be issued by respondent PRA."84
Respondent Province goes on to claim that "[p]etitioners version of
the Caticlan jetty port expansion project is a bigger project which is
still at the conceptualization stage. Although this project was described
in the Notice to Proceed issued by respondent PRA to have two
phases, 36.82 hectares in Caticlan and 3.18 hectares in Boracay
[Island,] it is totally different from the [ongoing] Caticlan jetty port
expansion project."85
Respondent Province says that the Accomplishment Report86 of its
Engineering Office would attest that the actual project consists of 2.64
hectares only, as originally planned and conceptualized, which was
even reduced to 2.2 hectares due to some construction and design
modifications.
Thus, respondent Province alleges that from its standpoint, its
capability to reclaim is limited to 2.64 hectares only, based on
respondent PRAs Evaluation Report87 dated October 18, 2010, which
was in turn the basis of the issuance of the Notice to Proceed dated
October 19, 2010, because the projects financial component is
P260,000,000.00 only. Said Evaluation Report indicates that the
implementation of the other phases of the project including site 2,
which consists of the other portions of the 40-hectare area that
includes a portion in Boracay, is still within the 10-year period and
will depend largely on the availability of funds of respondent
Province.88
So, even if respondent PRA approved an area that would total up to 40
hectares, it was divided into phases in order to determine the period of
its implementation. Each phase was separate and independent because
the source of funds was also separate. The required documents and
requirements were also specific for each phase. The entire approved
area of 40 hectares could be implemented within a period of 10 years
but this would depend solely on the availability of funds.89
As far as respondent Province understands it, additional reclamations
not covered by the ECC, which only approved 2.64 hectares, should
undergo another EIA. If respondent Province intends to commence the
construction on the other component of the 40 hectares, then it agrees
that it is mandated to secure a new ECC.90
Respondent Province admits that it dreamt of a 40-hectare project,
even if it had originally planned and was at present only financially
equipped and legally compliant to undertake 2.64 hectares of the
project, and only as an expansion of its old jetty port.91
Respondent Province claims that it has complied with all the necessary
requirements for securing an ECC. On the issue that the reclamation
project is within an ECA requiring the performance of a full or
programmatic EIA, respondent Province reiterates that the idea of
expanding the area to 40 hectares is only a future plan. It only secured
an ECC for 2.64 hectares, based on the limits of its funding and
authority. From the beginning, its intention was to rehabilitate and
expand the existing jetty port terminal to accommodate an increasing
projected traffic. The subject project is specifically classified under
DENR DAO 2003-30 on its Project Grouping Matrix for
Determination of EIA Report Type considered as Minor Reclamation
Projects falling under Group II Non ECP in an ECA. Whether 2.64
or 40 hectares in area, the subject project falls within this
classification.
Consequently, respondent Province claims that petitioner erred in
considering the ongoing reclamation project at Caticlan, Malay, Aklan,
as co-located within an ECA.
Respondent Province, likewise argues that the 2.64-hectare project is
not a component of the approved 40-hectare area as it is originally
planned for the expansion site of the existing Caticlan jetty port. At
present, it has no definite conceptual construction plan of the said
portion in Boracay and it has no financial allocation to initiate any
project on the said Boracay portion.
Furthermore, respondent Province contends that the present project is
located in Caticlan while the alleged component that falls within an
ECA is in Boracay. Considering its geographical location, the two sites
cannot be considered as a contiguous area for the reason that it is
separated by a body of water a strait that traverses between the
mainland Panay wherein Caticlan is located and Boracay. Hence, it is
erroneous to consider the two sites as a co-located project within an
ECA. Being a "stand alone project" and an expansion of the existing
jetty port, respondent DENR-EMB RVI had required respondent
Province to perform an EPRMP to secure an ECC as sanctioned by
Item No. 8(b), page 7 of DENR DAO 2003-30.
Respondent Province contends that even if, granting for the sake of
argument, it had erroneously categorized its project as Non-ECP in an
ECA, this was not a final determination. Respondent DENR-EMB
RVI, which was the administrator of the EIS system, had the final
decision on this matter. Under DENR DAO 2003-30, an application
for ECC, even for a Category B2 project where an EPRMP is
conducted, shall be subjected to a review process. Respondent DENR-
EMB RVI had the authority to deny said application. Its Regional
Director could either issue an ECC for the project or deny the
application. He may also require a more comprehensive EIA study.
The Regional Director issued the ECC based on the EPRMP submitted
by respondent Province and after the same went through the EIA
review process.
Thus, respondent Province concludes that petitioners allegation of this
being a "co-located project" is premature if not baseless as the bigger
reclamation project is still on the conceptualization stage. Both
respondents PRA and Province are yet to complete studies and
feasibility studies to embark on another project.
Respondent Province claims that an ocular survey of the reclamation
project revealed that it had worked within the limits of the ECC.92
With regard to petitioners allegation that respondent Province failed
to get the favorable endorsement of the concerned LGUs in violation
of the Local Government Code, respondent Province contends that
consultation vis--vis the favorable endorsement from the concerned
LGUs as contemplated under the Local Government Code are merely
tools to seek advice and not a power clothed upon the LGUs to
unilaterally approve or disapprove any government projects.
Furthermore, such endorsement is not necessary for projects falling
under Category B2 unless required by the DENR-EMB RVI, under
Section 5.3 of DENR DAO 2003-30.
Moreover, DENR Memorandum Circular No. 08-2007 no longer
requires the issuance of permits and certifications as a pre-requisite for
the issuance of an ECC. Respondent Province claims to have
conducted consultative activities with LGUs in connection with
Sections 26 and 27 of the Local Government Code. The vehement and
staunch objections of both the Sangguniang Barangay of Caticlan and
the Sangguniang Bayan of Malay, according to respondent Province,
were not rooted on its perceived impact upon the people and the
community in terms of environmental or ecological balance, but due to
an alleged conflict with their "principal position to develop, utilize and
reap benefits from the natural resources found within its jurisdiction."93
Respondent Province argues that these concerns are not within the
purview of the Local Government Code. Furthermore, the Preliminary
Geohazard Assessment Report and EPRMP as well as Sangguniang
Panlalawigan Resolution Nos. 2010-022 and 2010-034 should address
any environmental issue they may raise.
Respondent Province posits that the spirit and intent of Sections 26
and 27 of the Local Government Code is to create an avenue for
parties, the proponent and the LGU concerned, to come up with a tool
in harmonizing its views and concerns about the project. The duty to
consult does not automatically require adherence to the opinions
during the consultation process. It is allegedly not within the
provisions to give the full authority to the LGU concerned to
unilaterally approve or disapprove the project in the guise of requiring
the proponent of securing its favorable endorsement. In this case,
petitioner is calling a halt to the project without providing an
alternative resolution to harmonize its position and that of respondent
Province.
Respondent Province claims that the EPRMP94 would reveal that:
[T]he area fronting the project site is practically composed of sand.
Dead coral communities may be found along the vicinity. Thus, fish
life at the project site is quite scarce due to the absence of marine
support systems like the sea grass beds and coral reefs.
x x x [T]here is no coral cover at the existing Caticlan jetty port.
[From] the deepest point of jetty to the shallowest point, there was no
more coral patch and the substrate is sandy. It is of public knowledge
that the said foreshore area is being utilized by the residents ever since
as berthing or anchorage site of their motorized banca. There will be
no possibility of any coral development therein because of its
continuous utilization. Likewise, the activity of the strait that traverses
between the main land Caticlan and Boracay Island would also be a
factor of the coral development. Corals [may] only be formed within
the area if there is scientific human intervention, which is absent up to
the present.
In light of the foregoing premise, it casts serious doubt on petitioners
allegations pertaining to the environmental effects of Respondent-
LGUs 2.64 hectares reclamation project. The alleged environmental
impact of the subject project to the beaches of Boracay Island remains
unconfirmed. Petitioner had unsuccessfully proven that the project
would cause imminent, grave and irreparable injury to the
community.95
Respondent Province prayed for the dissolution of the TEPO, claiming
that the rules provide that the TEPO may be dissolved if it appears
after hearing that its issuance or continuance would cause irreparable
damage to the party or person enjoined, while the applicant may be
fully compensated for such damages as he may suffer and subject to
the posting of a sufficient bond by the party or person enjoined.
Respondent Province contends that the TEPO would cause irreparable
damage in two aspects:
a. Financial dislocation and probable bankruptcy; and
b. Grave and imminent danger to safety and health of
inhabitants of immediate area, including tourists and
passengers serviced by the jetty port, brought about by the
abrupt cessation of development works.
As regards financial dislocation, the arguments of respondent Province
are summarized below:
1. This project is financed by bonds which the respondent
Province had issued to its creditors as the financing scheme in
funding the present project is by way of credit financing
through bond flotation.
2. The funds are financed by a Guarantee Bank getting
payment from bonds, being sold to investors, which in turn
would be paid by the income that the project would realize or
incur upon its completion.
3. While the project is under construction, respondent Province
is appropriating a portion of its Internal Revenue Allotment
(IRA) budget from the 20% development fund to defray the
interest and principal amortization due to the Guarantee Bank.
4. The respondent Provinces IRA, regular income, and/or such
other revenues or funds, as may be permitted by law, are being
used as security for the payment of the said loan used for the
projects construction.
5. The inability of the subject project to earn revenues as
projected upon completion will compel the Province to
 shoulder the full amount of the obligation, starting from year
2012.
6. Respondent province is mandated to assign its IRA, regular
income and/or such other revenues or funds as permitted by
law; if project is stopped, detriment of the public welfare and
its constituents.96
As to the second ground for the dissolution of the TEPO, respondent
Province argues:
1. Non-compliance with the guidelines of the ECC may result
to environmental hazards most especially that reclaimed land if
not properly secured may be eroded into the sea.
2. The construction has accomplished 65.26 percent of the
project. The embankment that was deposited on the project has
no proper concrete wave protection that might be washed out in
the event that a strong typhoon or big waves may occur
affecting the strait and the properties along the project site. It is
already the rainy season and there is a big possibility of
typhoon occurrence.
3. If said incident occurs, the aggregates of the embankment
that had been washed out might be transferred to the adjoining
properties which could affect its natural environmental state.
4. It might result to the total alteration of the physical
landscape of the area attributing to environmental disturbance.
5. The lack of proper concrete wave protection or revetment
would cause the total erosion of the embankment that has been
dumped on the accomplished area.97
Respondent Province claims that petitioner will not stand to suffer
immediate, grave and irreparable injury or damage from the ongoing
project. The petitioners perceived fear of environmental destruction
brought about by its erroneous appreciation of available data is
unfounded and does not translate into a matter of extreme urgency.
Thus, under the Rules of Procedure on Environmental Cases, the
TEPO may be dissolved.
Respondent PRA filed its Comment98 on June 22, 2011. It alleges that
on June 24, 2006, Executive Order No. 543 delegated the power "to
approve reclamation projects to respondent PRA through its governing
Board, subject to compliance with existing laws and rules and further
subject to the condition that reclamation contracts to be executed with
any person or entity (must) go through public bidding."
Section 4 of respondent PRAs Administrative Order No. 2007-2
provides for the approval process and procedures for various
reclamation projects to be undertaken. Respondent PRA prepared an
Evaluation Report on November 5, 200999 regarding Aklans proposal
to increase its project to 40 hectares.
Respondent PRA contends that it was only after respondent Province
had complied with the requirements under the law that respondent
PRA, through its Board of Directors, approved the proposed project
under its Board Resolution No. 4094.100 In the same Resolution,
respondent PRA Board authorized the General Manager/CEO to
execute a MOA with the Aklan provincial government to implement
the reclamation project under certain conditions.
The issue for respondent PRA was whether or not it approved the
respondent Provinces 2.64-hectare reclamation project proposal in
willful disregard of alleged "numerous irregularities" as claimed by
petitioner.101
Respondent PRA claims that its approval of the Aklan Reclamation
Project was in accordance with law and its rules. Indeed, it issued the
notice to proceed only after Aklan had complied with all the
requirements imposed by existing laws and regulations. It further
contends that the 40 hectares involved in this project remains a plan
insofar as respondent PRA is concerned. What has been approved for
reclamation by respondent PRA thus far is only the 2.64-hectare
reclamation project. Respondent PRA reiterates that it approved this
reclamation project after extensively reviewing the legal, technical,
financial, environmental, and operational aspects of the proposed
reclamation.102
One of the conditions that respondent PRA Board imposed before
approving the Aklan project was that no reclamation work could be
started until respondent PRA has approved the detailed engineering
plans/methodology, design and specifications of the reclamation. Part
of the required submissions to respondent PRA includes the drainage
design as approved by the Public Works Department and the ECC as
issued by the DENR, all of which the Aklan government must submit
to respondent PRA before starting any reclamation works.103 Under
Article IV(B)(3) of the MOA between respondent PRA and Aklan, the
latter is required to submit, apart from the ECC, the following
requirements for respondent PRAs review and approval, as basis for
the issuance of a Notice to Proceed (NTP) for Reclamation Works:
(a) Land-form plan with technical description of the metes and
bounds of the same land-form;
(b) Final master development and land use plan for the project;
(c) Detailed engineering studies, detailed engineering design,
plans and specification for reclamation works, reclamation
plans and methodology, plans for the sources of fill materials;
(d) Drainage plan vis-a-vis the land-form approved by DPWH
Regional Office to include a cost effective and efficient
drainage system as may be required based on the results of the
studies;
(e) Detailed project cost estimates and quantity take-off per
items of work of the rawland reclamation components, e.g.
reclamation containment structures and soil consolidation;
(f) Organizational chart of the construction arm, manning table,
equipment schedule for the project; and,
(g) Project timetable (PERT/CPM) for the entire project
construction period.104
In fact, respondent PRA further required respondent Province under
Article IV (B)(24) of the MOA to strictly comply with all conditions of
the DENR-EMB-issued ECC "and/or comply with pertinent local and
international commitments of the Republic of the Philippines to ensure
environmental protection."105
In its August 11, 2010 letter,106 respondent PRA referred for respondent
Provinces appropriate action petitioners Resolution 001, series of
2010 and Resolution 46, series of 2010, of the Sangguniang Bayan of
Malay. Governor Marquez wrote respondent PRA107 on September 16,
2010 informing it that respondent Province had already met with the
different officials of Malay, furnishing respondent PRA with the copies
of the minutes of such meetings/presentations. Governor Marquez also
assured respondent PRA that it had complied with the consultation
requirements as far as Malay was concerned.
Respondent PRA claims that in evaluating respondent Provinces
project and in issuing the necessary NTP for Phase 1 of Site 1 (2.64
hectares) of the Caticlan Jetty Port expansion and modernization,
respondent PRA gave considerable weight to all pertinent issuances,
especially the ECC issued by DENR-EMB RVI.108 Respondent PRA
stresses that its earlier approval of the 40-hectare reclamation project
under its Resolution No. 4094, series of 2010, still requires a second
level of compliance requirements from the proponent. Respondent
Province could not possibly begin its reclamation works since
respondent PRA had yet to issue an NTP in its favor.
Respondent PRA alleges that prior to the issuance of the NTP to
respondent Province for Phase 1 of Site 1, it required the submission
of the following pre-construction documents:
(a) Land-Form Plan (with technical description);
(b) Site Development Plan/Land Use Plan including,
(i) sewer and drainage systems and
(ii) waste water treatment;
 (c) Engineering Studies and Engineering Design;
(d) Reclamation Methodology;
(e) Sources of Fill Materials, and,
(f) The ECC.109
Respondent PRA claims that it was only after the evaluation of the
above submissions that it issued to respondent Province the NTP,
limited to the 2.64-hectare reclamation project. Respondent PRA even
emphasized in its evaluation report that should respondent Province
pursue the other phases of its project, it would still require the
submission of an ECC for each succeeding phases before the start of
any reclamation works.110
Respondent PRA, being the national governments arm in regulating
and coordinating all reclamation projects in the Philippines a
mandate conferred by law manifests that it is incumbent upon it, in
the exercise of its regulatory functions, to diligently evaluate, based on
its technical competencies, all reclamation projects submitted to it for
approval. Once the reclamation projects requirements set forth by law
and related rules have been complied with, respondent PRA is
mandated to approve the same. Respondent PRA claims, "[w]ith all the
foregoing rigorous and detailed requirements submitted and complied
with by Aklan, and the attendant careful and meticulous technical and
legal evaluation by respondent PRA, it cannot be argued that the
reclamation permit it issued to Aklan is founded upon numerous
irregularities; as recklessly and baselessly imputed by BFI."111
In its Comment112 dated July 1, 2011, respondent DENR-EMB RVI
asserts that its act of issuing the ECC certifies that the project had
undergone the proper EIA process by assessing, among others, the
direct and indirect impact of the project on the biophysical and human
environment and ensuring that these impacts are addressed by
appropriate environmental protection and enhancement measures,
pursuant to Presidential Decree No. 1586, the Revised Procedural
Manual for DENR DAO 2003-30, and the existing rules and
regulations.113
Respondent DENR-EMB RVI stresses that the declaration in 1978 of
several islands, which includes Boracay as tourist zone and marine
reserve under Proclamation No. 1801, has no relevance to the
expansion project of Caticlan Jetty Port and Passenger Terminal for the
very reason that the project is not located in the Island of Boracay,
being located in Barangay Caticlan, Malay, which is not a part of
mainland Panay. It admits that the site of the subject jetty port falls
within the ECA under Proclamation No. 2146 (1981), being within the
category of a water body. This was why respondent Province had
faithfully secured an ECC pursuant to the Revised Procedural Manual
for DENR DAO 2003-30 by submitting the necessary documents as
contained in the EPRMP on March 19, 2010, which were the bases in
granting ECC No. R6-1003-096-7100 (amended) on April 27, 2010 for
the expansion of Caticlan Jetty Port and Passenger Terminal, covering
2.64 hectares.114
Respondent DENR-EMB RVI claims that the issues raised by the
LGUs of Caticlan and Malay had been considered by the DENR-
Provincial Environment and Natural Resources Office (PENRO),
Aklan in the issuance of the Order115 dated January 26, 2010,
disregarding the claim of the Municipality of Malay, Aklan of a
portion of the foreshore land in Caticlan covered by the application of
the Province of Aklan; and another Order of Rejection dated February
5, 2010 of the two foreshore applications, namely FLA No. 060412-
43A and FLA No. 060412-43B, of the Province of Aklan.116
Respondent DENR-EMB RVI contends that the supporting documents
attached to the EPRMP for the issuance of an ECC were merely for the
expansion and modernization of the old jetty port in Barangay Caticlan
covering 2.64 hectares, and not the 40-hectare reclamation project in
Barangay Caticlan and Boracay. The previous letter of respondent
Province dated October 14, 2009 addressed to DENR-EMB RVI
Regional Executive Director, would show that the reclamation project
will cover approximately 2.6 hectares.117 This application for ECC was
not officially accepted due to lack of requirements or documents.
Although petitioner insists that the project involves 40 hectares in two
sites, respondent DENR-EMB RVI looked at the documents submitted
by respondent Province and saw that the subject area covered by the
ECC application and subsequently granted with ECC-R6-1003-096-
7100 consists only of 2.64 hectares; hence, respondent DENR-EMB
RVI could not comment on the excess area.118
Respondent DENR-EMB RVI admits that as regards the classification
of the 2.64-hectare reclamation project under "Non ECP in ECA," this
does not fall within the definition of a co-located project because the
subject project is merely an expansion of the old Caticlan Jetty Port,
which had a previously issued ECC (ECC No. 0699-1012-171 on
October 12, 1999). Thus, only an EPRMP, not a PEIS or PEPRMP, is
required.119
Respondent Province submitted to respondent DENR-EMB RVI the
following documents contained in the EPRMP:
a. The Observations on the Floor Bottom and its Marine
Resources at the Proposed Jetty Ports at Caticlan and Manok-
manok, Boracay, Aklan, conducted in 1999 by the Bureau of
Fisheries Aquatic Resources (BFAR) Central Office,
particularly in Caticlan site, and
b. The Study conducted by Dr. Ricarte S. Javelosa, Ph. D,
Mines and Geosciences Bureau (MGB), Central Office and
Engr. Roger Esto, Provincial Planning and Development Office
(PPDO), Aklan in 2009 entitled "Preliminary Geo-hazard
Assessment for the Enhancement of the Existing Caticlan Jetty
Port Terminal through Beach Zone Restoration and Protective
Marina Development in Malay, Aklan."
Respondent DENR-EMB RVI claims that the above two scientific
studies were enough for it to arrive at a best professional judgment to
issue an amended ECC for the Aklan Marina Project covering 2.64
hectares.120 Furthermore, to confirm that the 2.64-hectare reclamation
has no significant negative impact with the surrounding environment
particularly in Boracay, a more recent study was conducted, and
respondent DENR-EMB RVI alleges that "[i]t is very important to
highlight that the input data in the [MERF- UPMSI] study utilized the
[40-hectare] reclamation and [200-meter] width seaward using the
tidal and wave modelling."121 The study showed that the reclamation of
2.64 hectares had no effect to the hydrodynamics of the strait between
Barangay Caticlan and Boracay.
Respondent DENR-EMB RVI affirms that no permits and/or
clearances from National Government Agencies (NGAs) and LGUs
are required pursuant to the DENR Memorandum Circular No. 2007-
08, entitled "Simplifying the Requirements of ECC or CNC
Applications;" that the EPRMP was evaluated and processed based on
the Revised Procedural Manual for DENR DAO 2003-30 which
resulted to the issuance of ECC-R6-1003-096-7100; and that the ECC
is not a permit per se but a planning tool for LGUs to consider in its
decision whether or not to issue a local permit.122
Respondent DENR-EMB RVI concludes that in filing this case,
petitioner had bypassed and deprived the DENR Secretary of the
opportunity to review and/or reverse the decision of his subordinate
office, EMB RVI pursuant to the Revised Procedural Manual for
DENR DAO 2003-30. There is no "extreme urgency that necessitates
the granting of Mandamus or issuance of TEPO that put to balance
between the life and death of the petitioner or present grave or
irreparable damage to environment."123
After receiving the above Comments from all the respondents, the
Court set the case for oral arguments on September 13, 2011.
Meanwhile, on September 8, 2011, respondent Province filed a
Manifestation and Motion124 praying for the dismissal of the petition,
as the province was no longer pursuing the implementation of the
succeeding phases of the project due to its inability to comply with
Article IV B.2(3) of the MOA; hence, the issues and fears expressed
by petitioner had become moot. Respondent Province alleges that the
petition is "premised on a serious misappreciation of the real extent of
the contested reclamation project" as certainly the ECC covered only a
total of 2,691 square meters located in Barangay Caticlan, Malay,
Aklan; and although the MOA spoke of 40 hectares, respondent
Provinces submission of documents to respondent PRA pertaining to
said area was but the first of a two-step process of approval.
Respondent Province claims that its failure to comply with the
documentary requirements of respondent PRA within the period
provided, or 120 working days from the effectivity of the MOA,
indicated its waiver to pursue the remainder of the project.125
Respondent Province further manifested:
Confirming this in a letter dated 12 August 2011,126 Governor Marquez
informed respondent PRA that the Province of Aklan is no longer
"pursuing the implementation of the succeeding phases of the project
with a total area of 37.4 hectares for our inability to comply with
Article IV B.2 (3) of the MOA; hence, the existing MOA will cover
only the project area of 2.64 hectares."
In his reply-letter dated August 22, 2011,127 [respondent] PRA General
Manager informed Governor Marquez that the [respondent] PRA
Board of Directors has given [respondent] PRA the authority to
confirm the position of the Province of Aklan that the "Aklan Beach
Zone Restoration and Protection Marine Development Project will
now be confined to the reclamation and development of the 2.64
hectares, more or less.
It is undisputed from the start that the coverage of the Project is in fact
limited to 2.64 hectares, as evidenced by the NTP issued by respondent
PRA. The recent exchange of correspondence between respondents
Province of Aklan and [respondent] PRA further confirms the intent of
the parties all along. Hence, the Project subject of the petition, without
doubt, covers only 2.64 and not 40 hectares as feared. This completely
changes the extent of the Project and, consequently, moots the issues
and fears expressed by the petitioner.128 (Emphasis supplied.)
Based on the above contentions, respondent Province prays that the
petition be dismissed as no further justiciable controversy exists since
the feared adverse effect to Boracay Islands ecology had become
academic all together.129
The Court heard the parties oral arguments on September 13, 2011
and gave the latter twenty (20) days thereafter to file their respective
memoranda.
Respondent Province filed another Manifestation and Motion,130 which
the Court received on April 2, 2012 stating that:
1. it had submitted the required documents and studies to
respondent DENR-EMB RVI before an ECC was issued in its
favor;
2. it had substantially complied with the requirements provided
under PRA Administrative Order 2007-2, which compliance
caused respondent PRAs Board to approve the reclamation
project; and
3. it had conducted a series of "consultative [presentations]"
relative to the reclamation project before the LGU of Malay
Municipality, the Barangay Officials of Caticlan, and
stakeholders of Boracay Island.
Respondent Province further manifested that the Barangay Council of
Caticlan, Malay, Aklan enacted on February 13, 2012 Resolution No.
003, series of 2012, entitled "Resolution Favorably Endorsing the 2.6
Hectares Reclamation/MARINA Project of the Aklan Provincial
Government at Caticlan Coastline"131 and that the Sangguniang Bayan
of the Municipality of Malay, Aklan enacted Resolution No. 020,
series of 2012, entitled "Resolution Endorsing the 2.6 Hectares
Reclamation Project of the Provincial Government of Aklan Located at
Barangay Caticlan, Malay, Aklan."132
Respondent Province claims that its compliance with the requirements
of respondents DENR-EMB RVI and PRA that led to the approval of
the reclamation project by the said government agencies, as well as the
recent enactments of the Barangay Council of Caticlan and the
Sangguniang Bayan of the Municipality of Malay favorably endorsing
the said project, had "categorically addressed all the issues raised by
the Petitioner in its Petition dated June 1, 2011." Respondent Province
prays as follows:
WHEREFORE, premises considered, it is most respectfully prayed of
this Honorable Court that after due proceedings, the following be
rendered:
1. The Temporary Environmental Protection Order (TEPO) it
issued on June 7, 2011 be lifted/dissolved.
 2. The instant petition be dismissed for being moot and
academic.
3. Respondent Province of Aklan prays for such other reliefs
that are just and equitable under the premises. (Emphases in the
original.)
ISSUES
The Court will now resolve the following issues:
I. Whether or not the petition should be dismissed for having
been rendered moot and academic
II. Whether or not the petition is premature because petitioner
failed to exhaust administrative remedies before filing this case
III. Whether or not respondent Province failed to perform a full
EIA as required by laws and regulations based on the scope and
classification of the project
IV. Whether or not respondent Province complied with all the
requirements under the pertinent laws and regulations
V. Whether or not there was proper, timely, and sufficient
public consultation for the project
DISCUSSION
On the issue of whether or not the Petition should be dismissed for
having been rendered moot and academic
Respondent Province claims in its Manifestation and Motion filed on
April 2, 2012 that with the alleged favorable endorsement of the
reclamation project by the Sangguniang Barangay of Caticlan and the
Sangguniang Bayan of the Municipality of Malay, all the issues raised
by petitioner had already been addressed, and this petition should be
dismissed for being moot and academic.
On the contrary, a close reading of the two LGUs respective
resolutions would reveal that they are not sufficient to render the
petition moot and academic, as there are explicit conditions imposed
that must be complied with by respondent Province. In Resolution No.
003, series of 2012, of the Sangguniang Barangay of Caticlan it is
stated that "any vertical structures to be constructed shall be subject for
barangay endorsement."133 Clearly, what the barangay endorsed was
the reclamation only, and not the entire project that includes the
construction of a commercial building and wellness center, and other
tourism-related facilities. Petitioners objections, as may be recalled,
pertain not only to the reclamation per se, but also to the building to be
constructed and the entire projects perceived ill effects to the
surrounding environment.
Resolution No. 020, series of 2012, of the Sangguniang Bayan of
Malay134 is even more specific. It reads in part:
WHEREAS, noble it seems the reclamation project to the effect that it
will generate scores of benefits for the Local Government of Malay in
terms of income and employment for its constituents, but the fact
cannot be denied that the project will take its toll on the environment
especially on the nearby fragile island of Boracay and the fact also
remains that the project will eventually displace the local
transportation operators/cooperatives;
WHEREAS, considering the sensitivity of the project, this Honorable
Body through the Committee where this matter was referred conducted
several consultations/committee hearings with concerned departments
and the private sector specifically Boracay Foundation, Inc. and they
are one in its belief that this Local Government Unit has never been
against development so long as compliance with the law and proper
procedures have been observed and that paramount consideration have
been given to the environment lest we disturb the balance of nature to
the end that progress will be brought to naught;
WHEREAS, time and again, to ensure a healthy intergovernmental
relations, this August Body requires no less than transparency and
faithful commitment from the Provincial Government of Aklan in the
process of going through these improvements in the Municipality
because it once fell prey to infidelities in matters of governance;
WHEREAS, as a condition for the grant of this endorsement and to
address all issues and concerns, this Honorable Council necessitates a
sincere commitment from the Provincial Government of Aklan to the
end that:
1. To allocate an office space to LGU-Malay within the
building in the reclaimed area;
2. To convene the Cagban and Caticlan Jetty Port Management
Board before the resumption of the reclamation project;
3. That the reclamation project shall be limited only to 2.6
hectares in Barangay Caticlan and not beyond;
4. That the local transportation operators/cooperatives will not
be displaced; and
5. The Provincial Government of Aklan conduct a
simultaneous comprehensive study on the environmental
impact of the reclamation project especially during Habagat
and Amihan seasons and put in place as early as possible
mitigating measures on the effect of the project to the
environment.
WHEREAS, having presented these stipulations, failure to comply
herewith will leave this August Body no choice but to revoke this
endorsement, hence faithful compliance of the commitment of the
Provincial Government is highly appealed for[.]135 (Emphases added.)
The Sangguniang Bayan of Malay obviously imposed explicit
conditions for respondent Province to comply with on pain of
revocation of its endorsement of the project, including the need to
conduct a comprehensive study on the environmental impact of the
reclamation project, which is the heart of the petition before us.
Therefore, the contents of the two resolutions submitted by respondent
Province do not support its conclusion that the subsequent favorable
endorsement of the LGUs had already addressed all the issues raised
and rendered the instant petition moot and academic.
On the issue of failure to exhaust administrative remedies
Respondents, in essence, argue that the present petition should be
dismissed for petitioners failure to exhaust administrative remedies
and even to observe the hierarchy of courts. Furthermore, as the
petition questions the issuance of the ECC and the NTP, this involves
factual and technical verification, which are more properly within the
expertise of the concerned government agencies.
Respondents anchor their argument on Section 6, Article II of DENR
DAO 2003-30, which provides:
Section 6. Appeal
Any party aggrieved by the final decision on the ECC / CNC
applications may, within 15 days from receipt of such decision, file an
appeal on the following grounds:
a. Grave abuse of discretion on the part of the deciding
authority, or
b. Serious errors in the review findings.
The DENR may adopt alternative conflict/dispute resolution
procedures as a means to settle grievances between proponents and
aggrieved parties to avert unnecessary legal action. Frivolous appeals
shall not be countenanced.
The proponent or any stakeholder may file an appeal to the following:
Deciding Authority Where to file the appeal
EMB Regional Office Director Office of the EMB Director
EMB Central Office Director Office of the DENR Secretary
DENR Secretary Office of the President

(Emphases supplied.)

Respondents argue that since there is an administrative appeal

provided for, then petitioner is duty bound to observe the same and
may not be granted recourse to the regular courts for its failure to do
so.

We do not agree with respondents appreciation of the applicability of

the rule on exhaustion of administrative remedies in this case. We are
reminded of our ruling in Pagara v. Court of Appeals,136 which
summarized our earlier decisions on the procedural requirement of
exhaustion of administrative remedies, to wit:

The rule regarding exhaustion of administrative remedies is not a hard

and fast rule. It is not applicable (1) where the question in dispute is
purely a legal one, or (2) where the controverted act is patently illegal
or was performed without jurisdiction or in excess of jurisdiction; or
(3) where the respondent is a department secretary, whose acts as an
alter ego of the President bear the implied or assumed approval of the
latter, unless actually disapproved by him, or (4) where there are
circumstances indicating the urgency of judicial intervention, -
Gonzales vs. Hechanova, L-21897, October 22, 1963, 9 SCRA 230;
Abaya vs. Villegas, L-25641, December 17, 1966, 18 SCRA; Mitra vs.
Subido, L-21691, September 15, 1967, 21 SCRA 127.

Said principle may also be disregarded when it does not provide a

plain, speedy and adequate remedy, (Cipriano vs. Marcelino, 43 SCRA
291), when there is no due process observed (Villanos vs. Subido, 45
SCRA 299), or where the protestant has no other recourse (Sta. Maria
vs. Lopez, 31 SCRA 637).137 (Emphases supplied.)

As petitioner correctly pointed out, the appeal provided for under

Section 6 of DENR DAO 2003-30 is only applicable, based on the first
sentence thereof, if the person or entity charged with the duty to
exhaust the administrative remedy of appeal to the appropriate
government agency has been a party or has been made a party in the
proceedings wherein the decision to be appealed was rendered. It has
been established by the facts that petitioner was never made a party to
the proceedings before respondent DENR-EMB RVI. Petitioner was
only informed that the project had already been approved after the
ECC was already granted.138 Not being a party to the said proceedings,
it does not appear that petitioner was officially furnished a copy of the
decision, from which the 15-day period to appeal should be reckoned,
and which would warrant the application of Section 6, Article II of
DENR DAO 2003-30.
Although petitioner was not a party to the proceedings where the
decision to issue an ECC was rendered, it stands to be aggrieved by the
decision,139 because it claims that the reclamation of land on the
Caticlan side would unavoidably adversely affect the Boracay side,
where petitioners members own establishments engaged in the
tourism trade. As noted earlier, petitioner contends that the declared
objective of the reclamation project is to exploit Boracays tourism
trade because the project is intended to enhance support services
thereto; however, this objective would not be achieved since the white-
sand beaches for which Boracay is famous might be negatively
affected by the project. Petitioners conclusion is that respondent
Province, aided and abetted by respondents PRA and DENR-EMB
RVI, ignored the spirit and letter of our environmental laws, and
should thus be compelled to perform their duties under said laws.
The new Rules of Procedure for Environmental Cases, A.M. No. 09-6-
8-SC, provides a relief for petitioner under the writ of continuing
mandamus, which is a special civil action that may be availed of "to
compel the performance of an act specifically enjoined by law"140 and
which provides for the issuance of a TEPO "as an auxiliary remedy
prior to the issuance of the writ itself."141 The Rationale of the said
Rules explains the writ in this wise:
Environmental law highlights the shift in the focal-point from the
initiation of regulation by Congress to the implementation of
regulatory programs by the appropriate government agencies.
Thus, a government agencys inaction, if any, has serious implications
on the future of environmental law enforcement. Private individuals, to
the extent that they seek to change the scope of the regulatory process,
will have to rely on such agencies to take the initial incentives, which
may require a judicial component. Accordingly, questions regarding
the propriety of an agencys action or inaction will need to be
analyzed.
This point is emphasized in the availability of the remedy of the writ
of mandamus, which allows for the enforcement of the conduct of the
tasks to which the writ pertains: the performance of a legal duty.142
(Emphases added.)
The writ of continuing mandamus "permits the court to retain
jurisdiction after judgment in order to ensure the successful
implementation of the reliefs mandated under the courts decision"
and, in order to do this, "the court may compel the submission of
compliance reports from the respondent government agencies as well
as avail of other means to monitor compliance with its decision."143
According to petitioner, respondent Province acted pursuant to a MOA
with respondent PRA that was conditioned upon, among others, a
properly-secured ECC from respondent DENR-EMB RVI. For this
reason, petitioner seeks to compel respondent Province to comply with
certain environmental laws, rules, and procedures that it claims were
either circumvented or ignored. Hence, we find that the petition was
appropriately filed with this Court under Rule 8, Section 1, A.M. No.
09-6-8-SC, which reads:
SECTION 1. Petition for continuing mandamus.When any agency
or instrumentality of the government or officer thereof unlawfully
neglects the performance of an act which the law specifically enjoins
as a duty resulting from an office, trust or station in connection with
the enforcement or violation of an environmental law rule or
regulation or a right therein, or unlawfully excludes another from the
use or enjoyment of such right and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper court, alleging the
facts with certainty, attaching thereto supporting evidence, specifying
that the petition concerns an environmental law, rule or regulation, and
praying that judgment be rendered commanding the respondent to do
an act or series of acts until the judgment is fully satisfied, and to pay
damages sustained by the petitioner by reason of the malicious neglect
to perform the duties of the respondent, under the law, rules or
regulations. The petition shall also contain a sworn certification of
non-forum shopping.
SECTION 2. Where to file the petition.The petition shall be filed
with the Regional Trial Court exercising jurisdiction over the territory
where the actionable neglect or omission occurred or with the Court of
Appeals or the Supreme Court.
Petitioner had three options where to file this case under the rule: the
Regional Trial Court exercising jurisdiction over the territory where
the actionable neglect or omission occurred, the Court of Appeals, or
this Court.
Petitioner had no other plain, speedy, or adequate remedy in the
ordinary course of law to determine the questions of unique national
and local importance raised here that pertain to laws and rules for
environmental protection, thus it was justified in coming to this Court.
Having resolved the procedural issue, we now move to the substantive
issues.
On the issues of whether, based on the scope and classification of the
project, a full EIA is required by laws and regulations, and whether
respondent Province complied with all the requirements under the
pertinent laws and regulations
Petitioners arguments on this issue hinges upon its claim that the
reclamation project is misclassified as a single project when in fact it is
co-located. Petitioner also questions the classification made by
respondent Province that the reclamation project is merely an
expansion of the existing jetty port, when the project descriptions
embodied in the different documents filed by respondent Province
describe commercial establishments to be built, among others, to raise
revenues for the LGU; thus, it should have been classified as a new
project. Petitioner likewise cries foul to the manner by which
respondent Province allegedly circumvented the documentary
requirements of the DENR-EMB RVI by the act of connecting the
reclamation project with its previous project in 1999 and claiming that
the new project is a mere expansion of the previous one.
As previously discussed, respondent Province filed a Manifestation
and Motion stating that the ECC issued by respondent DENR-EMB
RVI covered an area of 2,691 square meters in Caticlan, and its
application for reclamation of 40 hectares with respondent PRA was
conditioned on its submission of specific documents within 120 days.
Respondent Province claims that its failure to comply with said
condition indicated its waiver to pursue the succeeding phases of the
reclamation project and that the subject matter of this case had thus
been limited to 2.64 hectares. Respondent PRA, for its part, declared
through its General Manager that the "Aklan Beach Zone Restoration
and Protection Marine Development Project will now be confined to
the reclamation and development of the 2.64 hectares, more or less."144
The Court notes such manifestation of respondent Province. Assuming,
however, that the area involved in the subject reclamation project has
been limited to 2.64 hectares, this case has not become moot and
academic, as alleged by respondents, because the Court still has to
check whether respondents had complied with all applicable
environmental laws, rules, and regulations pertaining to the actual
reclamation project.
We recognize at this point that the DENR is the government agency
vested with delegated powers to review and evaluate all EIA reports,
and to grant or deny ECCs to project proponents.145 It is the DENR that
has the duty to implement the EIS system. It appears, however, that
respondent DENR-EMB RVIs evaluation of this reclamation project
was problematic, based on the valid questions raised by petitioner.
Being the administrator of the EIS System, respondent DENR-EMB
RVIs submissions bear great weight in this case. However, the
following are the issues that put in question the wisdom of respondent
DENR-EMB RVI in issuing the ECC:
 1. Its approval of respondent Provinces classification of the
project as a mere expansion of the existing jetty port in
Caticlan, instead of classifying it as a new project;
2. Its classification of the reclamation project as a single
instead of a co-located project;
3. The lack of prior public consultations and approval of local
government agencies; and
4. The lack of comprehensive studies regarding the impact of
the reclamation project to the environment.
The above issues as raised put in question the sufficiency of the
evaluation of the project by respondent DENR-EMB RVI.
Nature of the project
The first question must be answered by respondent DENR-EMB RVI
as the agency with the expertise and authority to state whether this is a
new project, subject to the more rigorous environmental impact study
requested by petitioner, or it is a mere expansion of the existing jetty
port facility.
The second issue refers to the classification of the project by
respondent Province, approved by respondent DENR-EMB RVI, as
single instead of co-located. Under the Revised Procedural Manual,
the "Summary List of Additional Non-Environmentally-Critical
Project (NECP) Types in ECAs Classified under Group II" (Table I-2)
lists "buildings, storage facilities and other structures" as a separate
item from "transport terminal facilities." This creates the question of
whether this project should be considered as consisting of more than
one type of activity, and should more properly be classified as "co-
located," under the following definition from the same Manual, which
reads:
f) Group IV (Co-located Projects in either ECA or NECA): A co-
located project is a group of single projects, under one or more
proponents/locators, which are located in a contiguous area and
managed by one administrator, who is also the ECC applicant. The co-
located project may be an economic zone or industrial park, or a mix
of projects within a catchment, watershed or river basin, or any other
geographical, political or economic unit of area. Since the location or
threshold of specific projects within the contiguous area will yet be
derived from the EIA process based on the carrying capacity of the
project environment, the nature of the project is called
"programmatic." (Emphasis added.)
Respondent DENR-EMB RVI should conduct a thorough and detailed
evaluation of the project to address the question of whether this could
be deemed as a group of single projects (transport terminal facility,
building, etc.) in a contiguous area managed by respondent Province,
or as a single project.
The third item in the above enumeration will be discussed as a separate
issue.
The answer to the fourth question depends on the final classification of
the project under items 1 and 3 above because the type of EIA study
required under the Revised Procedural Manual depends on such
classification.
The very definition of an EIA points to what was most likely neglected
by respondent Province as project proponent, and what was in turn
overlooked by respondent DENR-EMB RVI, for it is defined as
follows:
An [EIA] is a process that involves predicting and evaluating the
likely impacts of a project (including cumulative impacts) on the
environment during construction, commissioning, operation and
abandonment. It also includes designing appropriate preventive,
mitigating and enhancement measures addressing these consequences
to protect the environment and the communitys welfare.146 (Emphases
supplied.)
Thus, the EIA process must have been able to predict the likely impact
of the reclamation project to the environment and to prevent any harm
that may otherwise be caused.
The project now before us involves reclamation of land that is more
than five times the size of the original reclaimed land. Furthermore,
the area prior to construction merely contained a jetty port, whereas
the proposed expansion, as described in the EPRMP submitted by
respondent Province to respondent DENR-EMB RVI involves so much
more, and we quote:
The expansion project will be constructed at the north side of the
existing jetty port and terminal that will have a total area of 2.64
hectares, more or less, after reclamation. The Phase 1 of the project
construction costing around P260 million includes the following:
1. Reclamation - 3,000 sq m (expansion of jetty port)
2. Reclamation - 13,500 sq m (buildable area)
3. Terminal annex building - 250 sq m
4. 2-storey commercial building 2,500 sq m (1,750 sq m of
leasable space)
5. Health and wellness center
6. Access road - 12 m (wide)
7. Parking, perimeter fences, lighting and water treatment
sewerage system
8. Rehabilitation of existing jetty port and terminal
xxxx
The succeeding phases of the project will consist of [further]
reclamation, completion of the commercial center building, bay walk
commercial strip, staff building, ferry terminal, a cable car system and
wharf marina. This will entail an additional estimated cost of P785
million bringing the total investment requirement to about P1.0
billion.147 (Emphases added.)
As may be gleaned from the breakdown of the 2.64 hectares as
described by respondent Province above, a significant portion of the
reclaimed area would be devoted to the construction of a commercial
building, and the area to be utilized for the expansion of the jetty port
consists of a mere 3,000 square meters (sq. m). To be true to its
definition, the EIA report submitted by respondent Province should at
the very least predict the impact that the construction of the new
buildings on the reclaimed land would have on the surrounding
environment. These new constructions and their environmental effects
were not covered by the old studies that respondent Province
previously submitted for the construction of the original jetty port in
1999, and which it re-submitted in its application for ECC in this
alleged expansion, instead of conducting updated and more
comprehensive studies.
Any impact on the Boracay side cannot be totally ignored, as Caticlan
and Boracay are separated only by a narrow strait. This becomes more
imperative because of the significant contributions of Boracays white-
sand beach to the countrys tourism trade, which requires respondent
Province to proceed with utmost caution in implementing projects
within its vicinity.
We had occasion to emphasize the duty of local government units to
ensure the quality of the environment under Presidential Decree No.
1586 in Republic of the Philippines v. The City of Davao,148 wherein
we held:
Section 15 of Republic Act 7160, otherwise known as the Local
Government Code, defines a local government unit as a body politic
and corporate endowed with powers to be exercised by it in
conformity with law. As such, it performs dual functions,
governmental and proprietary. Governmental functions are those that
concern the health, safety and the advancement of the public good or
welfare as affecting the public generally. Proprietary functions are
those that seek to obtain special corporate benefits or earn pecuniary
profit and intended for private advantage and benefit. When exercising
governmental powers and performing governmental duties, an LGU is
an agency of the national government. When engaged in corporate
activities, it acts as an agent of the community in the administration of
local affairs.
Found in Section 16 of the Local Government Code is the duty of the
LGUs to promote the peoples right to a balanced ecology. Pursuant to
this, an LGU, like the City of Davao, can not claim exemption from
the coverage of PD 1586. As a body politic endowed with
governmental functions, an LGU has the duty to ensure the quality of
the environment, which is the very same objective of PD 1586.
xxxx
Section 4 of PD 1586 clearly states that "no person, partnership or
corporation shall undertake or operate any such declared
environmentally critical project or area without first securing an
Environmental Compliance Certificate issued by the President or his
duly authorized representative." The Civil Code defines a person as
either natural or juridical. The state and its political subdivisions, i.e.,
the local government units are juridical persons. Undoubtedly
therefore, local government units are not excluded from the coverage
of PD 1586.
Lastly, very clear in Section 1 of PD 1586 that said law intends to
implement the policy of the state to achieve a balance between socio-
economic development and environmental protection, which are the
twin goals of sustainable development. The above-quoted first
paragraph of the Whereas clause stresses that this can only be possible
if we adopt a comprehensive and integrated environmental protection
program where all the sectors of the community are involved, i.e., the
government and the private sectors. The local government units, as
part of the machinery of the government, cannot therefore be deemed
as outside the scope of the EIS system.149 (Emphases supplied.)
The Court chooses to remand these matters to respondent DENR-EMB
RVI for it to make a proper study, and if it should find necessary, to
require respondent Province to address these environmental issues
raised by petitioner and submit the correct EIA report as required by
the projects specifications. The Court requires respondent DENR-
EMB RVI to complete its study and submit a report within a non-
extendible period of three months. Respondent DENR-EMB RVI
should establish to the Court in said report why the ECC it issued for
the subject project should not be canceled.
Lack of prior public consultation
The Local Government Code establishes the duties of national
government agencies in the maintenance of ecological balance, and
requires them to secure prior public consultation and approval of local
government units for the projects described therein.
In the case before us, the national agency involved is respondent PRA.
Even if the project proponent is the local government of Aklan, it is
respondent PRA which authorized the reclamation, being the exclusive
agency of the government to undertake reclamation nationwide.
Hence, it was necessary for respondent Province to go through
respondent PRA and to execute a MOA, wherein respondent PRAs
authority to reclaim was delegated to respondent Province. Respondent
DENR-EMB RVI, regional office of the DENR, is also a national
government institution which is tasked with the issuance of the ECC
that is a prerequisite to projects covered by environmental laws such as
the one at bar.
This project can be classified as a national project that affects the
environmental and ecological balance of local communities, and is
covered by the requirements found in the Local Government Code
provisions that are quoted below:
Section 26. Duty of National Government Agencies in the
Maintenance of Ecological Balance. - It shall be the duty of every
national agency or government-owned or controlled corporation
authorizing or involved in the planning and implementation of any
project or program that may cause pollution, climatic change,
depletion of non-renewable resources, loss of crop land, rangeland, or
forest cover, and extinction of animal or plant species, to consult with
the local government units, nongovernmental organizations, and other
sectors concerned and explain the goals and objectives of the project
or program, its impact upon the people and the community in terms of
environmental or ecological balance, and the measures that will be
undertaken to prevent or minimize the adverse effects thereof.
Section 27. Prior Consultations Required. - No project or program
shall be implemented by government authorities unless the
consultations mentioned in Sections 2 (c) and 26 hereof are complied
with, and prior approval of the sanggunian concerned is obtained:
Provided, That occupants in areas where such projects are to be
implemented shall not be evicted unless appropriate relocation sites
have been provided, in accordance with the provisions of the
Constitution.
In Lina, Jr. v. Pao,150 we held that Section 27 of the Local
Government Code applies only to "national programs and/or projects
which are to be implemented in a particular local community"151 and
that it should be read in conjunction with Section 26. We held further
in this manner:
Thus, the projects and programs mentioned in Section 27 should be
interpreted to mean projects and programs whose effects are among
those enumerated in Section 26 and 27, to wit, those that: (1) may
cause pollution; (2) may bring about climatic change; (3) may cause
the depletion of non-renewable resources; (4) may result in loss of
crop land, range-land, or forest cover; (5) may eradicate certain animal
or plant species from the face of the planet; and (6) other projects or
programs that may call for the eviction of a particular group of people
residing in the locality where these will be implemented. Obviously,
none of these effects will be produced by the introduction of lotto in
the province of Laguna.152 (Emphasis added.)
During the oral arguments held on September 13, 2011, it was
established that this project as described above falls under Section 26
because the commercial establishments to be built on phase 1, as
described in the EPRMP quoted above, could cause pollution as it
could generate garbage, sewage, and possible toxic fuel discharge.153
Our ruling in Province of Rizal v. Executive Secretary154 is instructive:
We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk
v. Lanzanas, where we held that there was no statutory requirement for
the sangguniang bayan of Puerto Galera to approve the construction of
a mooring facility, as Sections 26 and 27 are inapplicable to projects
which are not environmentally critical.
Moreover, Section 447, which enumerates the powers, duties and
functions of the municipality, grants the sangguniang bayan the power
to, among other things, "enact ordinances, approve resolutions and
appropriate funds for the general welfare of the municipality and its
inhabitants pursuant to Section 16 of th(e) Code." These include:
(1) Approving ordinances and passing resolutions to protect the
environment and impose appropriate penalties for acts which
endanger the environment, such as dynamite fishing and other
forms of destructive fishing, illegal logging and smuggling of
logs, smuggling of natural resources products and of
endangered species of flora and fauna, slash and burn farming,
and such other activities which result in pollution, acceleration
of eutrophication of rivers and lakes, or of ecological
imbalance; [Section 447 (1)(vi)]
(2) Prescribing reasonable limits and restraints on the use of
property within the jurisdiction of the municipality, adopting a
comprehensive land use plan for the municipality, reclassifying
land within the jurisdiction of the city, subject to the pertinent
provisions of this Code, enacting integrated zoning ordinances
in consonance with the approved comprehensive land use plan,
subject to existing laws, rules and regulations; establishing fire
limits or zones, particularly in populous centers; and regulating
the construction, repair or modification of buildings within said
fire limits or zones in accordance with the provisions of this
Code; [Section 447 (2)(vi-ix)]
(3) Approving ordinances which shall ensure the efficient and
effective delivery of the basic services and facilities as
provided for under Section 17 of this Code, and in addition to
said services and facilities, providing for the establishment,
maintenance, protection, and conservation of communal forests
 and watersheds, tree parks, greenbelts, mangroves, and other
similar forest development projects and, subject to existing
laws, establishing and providing for the maintenance, repair
and operation of an efficient waterworks system to supply
water for the inhabitants and purifying the source of the water
supply; regulating the construction, maintenance, repair and
use of hydrants, pumps, cisterns and reservoirs; protecting the
purity and quantity of the water supply of the municipality and,
for this purpose, extending the coverage of appropriate
ordinances over all territory within the drainage area of said
water supply and within one hundred (100) meters of the
reservoir, conduit, canal, aqueduct, pumping station, or
watershed used in connection with the water service; and
regulating the consumption, use or wastage of water." [Section
447 (5)(i) & (vii)]
Under the Local Government Code, therefore, two requisites must be
met before a national project that affects the environmental and
ecological balance of local communities can be implemented: prior
consultation with the affected local communities, and prior approval
of the project by the appropriate sanggunian. Absent either of these
mandatory requirements, the projects implementation is illegal.155
(Emphasis added.)
Based on the above, therefore, prior consultations and prior approval
are required by law to have been conducted and secured by the
respondent Province. Accordingly, the information dissemination
conducted months after the ECC had already been issued was
insufficient to comply with this requirement under the Local
Government Code. Had they been conducted properly, the prior public
consultation should have considered the ecological or environmental
concerns of the stakeholders and studied measures alternative to the
project, to avoid or minimize adverse environmental impact or
damage. In fact, respondent Province once tried to obtain the favorable
endorsement of the Sangguniang Bayan of Malay, but this was denied
by the latter.
Moreover, DENR DAO 2003-30 provides:
5.3 Public Hearing / Consultation Requirements
For projects under Category A-1, the conduct of public hearing as part
of the EIS review is mandatory unless otherwise determined by EMB.
For all other undertakings, a public hearing is not mandatory unless
specifically required by EMB.
Proponents should initiate public consultations early in order to ensure
that environmentally relevant concerns of stakeholders are taken into
consideration in the EIA study and the formulation of the management
plan. All public consultations and public hearings conducted during the
EIA process are to be documented. The public hearing/consultation
Process report shall be validated by the EMB/EMB RD and shall
constitute part of the records of the EIA process. (Emphasis supplied.)
In essence, the above-quoted rule shows that in cases requiring public
consultations, the same should be initiated early so that concerns of
stakeholders could be taken into consideration in the EIA study. In this
case, respondent Province had already filed its ECC application before
it met with the local government units of Malay and Caticlan.
The claim of respondent DENR-EMB RVI is that no permits and/or
clearances from National Government Agencies (NGAs) and LGUs
are required pursuant to the DENR Memorandum Circular No. 2007-
08. However, we still find that the LGC requirements of consultation
and approval apply in this case. This is because a Memorandum
Circular cannot prevail over the Local Government Code, which is a
statute and which enjoys greater weight under our hierarchy of laws.
Subsequent to the information campaign of respondent Province, the
Municipality of Malay and the Liga ng mga Barangay-Malay Chapter
still opposed the project. Thus, when respondent Province commenced
the implementation project, it violated Section 27 of the LGC, which
clearly enunciates that "[no] project or program shall be implemented
by government authorities unless the consultations mentioned in
Sections 2(c) and 26 hereof are complied with, and prior approval of
the sanggunian concerned is obtained."
The lack of prior public consultation and approval is not corrected by
the subsequent endorsement of the reclamation project by the
Sangguniang Barangay of Caticlan on February 13, 2012, and the
Sangguniang Bayan of the Municipality of Malay on February 28,
2012, which were both undoubtedly achieved at the urging and
insistence of respondent Province. As we have established above, the
respective resolutions issued by the LGUs concerned did not render
this petition moot and academic.
It is clear that both petitioner and respondent Province are interested in
the promotion of tourism in Boracay and the protection of the
environment, lest they kill the proverbial hen that lays the golden egg.
At the beginning of this decision, we mentioned that there are common
goals of national significance that are very apparent from both the
petitioners and the respondents respective pleadings and memoranda.
The parties are evidently in accord in seeking to uphold the mandate
found in Article II, Declaration of Principles and State Policies, of the
1987 Constitution, which we quote below:
SECTION 16. The State shall protect and advance the right of the
people to a balanced and healthful ecology in accord with the rhythm
and harmony of nature.
xxxx
SECTION 20. The State recognizes the indispensable role of the
private sector, encourages private enterprise, and provides incentives
to needed investments.
The protection of the environment in accordance with the aforesaid
constitutional mandate is the aim, among others, of Presidential
Decree No. 1586, "Establishing an Environmental Impact Statement
System, Including Other Environmental Management Related
Measures and For Other Purposes," which declared in its first Section
that it is "the policy of the State to attain and maintain a rational and
orderly balance between socio-economic growth and environmental
protection."
The parties undoubtedly too agree as to the importance of promoting
tourism, pursuant to Section 2 of Republic Act No. 9593, or "The
Tourism Act of 2009," which reads:
SECTION 2. Declaration of Policy. The State declares tourism as an
indispensable element of the national economy and an industry of
national interest and importance, which must be harnessed as an
engine of socioeconomic growth and cultural affirmation to generate
investment, foreign exchange and employment, and to continue to
mold an enhanced sense of national pride for all Filipinos. (Emphasis
ours.)
The primordial role of local government units under the Constitution
and the Local Government Code of 1991 in the subject matter of this
case is also unquestionable. The Local Government Code of 1991
(Republic Act No. 7160) pertinently provides:
Section 2. Declaration of Policy. - (a) It is hereby declared the policy
of the State that the territorial and political subdivisions of the State
shall enjoy genuine and meaningful local autonomy to enable them to
attain their fullest development as self-reliant communities and make
them more effective partners in the attainment of national goals.
Toward this end, the State shall provide for a more responsive and
accountable local government structure instituted through a system of
decentralization whereby local government units shall be given more
powers, authority, responsibilities, and resources. The process of
decentralization shall proceed from the national government to the
local government units.156 (Emphases ours.)
As shown by the above provisions of our laws and rules, the speedy
and smooth resolution of these issues would benefit all the parties.
Thus, respondent Provinces cooperation with respondent DENR-EMB
RVI in the Court-mandated review of the proper classification and
environmental impact of the reclamation project is of utmost
importance.
WHEREFORE, premises considered, the petition is hereby
PARTIALLY GRANTED.1wphi1 The TEPO issued by this Court is
hereby converted into a writ of continuing mandamus specifically as
follows:
1. Respondent Department of Environment and Natural
Resources-Environmental Management Bureau Regional
Office VI shall revisit and review the following matters:
a. its classification of the reclamation project as a single
instead of a co-located project;
b. its approval of respondent Provinces classification of
the project as a mere expansion of the existing jetty port
in Caticlan, instead of classifying it as a new project;
and
c. the impact of the reclamation project to the
environment based on new, updated, and
comprehensive studies, which should forthwith be
ordered by respondent DENR-EMB RVI.
2. Respondent Province of Aklan shall perform the following:
a. fully cooperate with respondent DENR-EMB RVI in
its review of the reclamation project proposal and
submit to the latter the appropriate report and study;
and
b. secure approvals from local government units and
hold proper consultations with non-governmental
organizations and other stakeholders and sectors
concerned as required by Section 27 in relation to
Section 26 of the Local Government Code.
3. Respondent Philippine Reclamation Authority shall closely
monitor the submission by respondent Province of the
requirements to be issued by respondent DENR-EMB RVI in
connection to the environmental concerns raised by petitioner,
and shall coordinate with respondent Province in modifying the
MOA, if necessary, based on the findings of respondent
DENR-EMB RVI.
4. The petitioner Boracay Foundation, Inc. and the respondents
The Province of Aklan, represented by Governor Carlito S.
Marquez, The Philippine Reclamation Authority, and The
DENR-EMB (Region VI) are mandated to submit their
respective reports to this Court regarding their compliance with
the requirements set forth in this Decision no later than three
(3) months from the date of promulgation of this Decision.
5. In the meantime, the respondents, their concerned
contractor/s, and/or their agents, representatives or persons
acting in their place or stead, shall immediately cease and
desist from continuing the implementation of the project
covered by ECC-R6-1003-096-7100 until further orders from
this Court. For this purpose, the respondents shall report within
five (5) days to this Court the status of the project as of their
receipt of this Decision, copy furnished the petitioner.
This Decision is immediately executory.
SO ORDERED.
G.R. No. 199199 August 27, 2013
MARICRIS D. DOLOT, CHAIRMAN OF THE BAGONG
ALYANSANG MAKABAYAN-SORSOGON, PETITIONER
vs.
HON. RAMON PAJE, IN HIS CAPACITY AS THE SECRETARY
OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES, REYNULFO A. JUAN, REGIONAL DIRECTOR,
MINES AND GEOSCIENCES BUREAU, DENR, HON. RAUL R.
LEE, GOVERNOR, PROVINCE OF SORSOGON, ANTONIO C.
OCAMPO, JR., VICTORIA A. AJERO, ALFREDO M.
AGUILAR, AND JUAN M. AGUILAR, ANTONES
ENTERPRISES, GLOBAL SUMMIT MINES DEV'T CORP.,
AND TR ORE, RESPONDENTS.
DECISION
REYES, J.:
This is a petition for review on certiorari1 under Rule 45 of the Rules
of Court assailing the Order2 dated September 16, 2011 and
Resolution3 dated October 18, 2011 issued by the Regional Trial Court
(RTC) of Sorsogon, Branch 53. The assailed issuances dismissed Civil
Case No. 2011-8338 for Continuing Mandamus, Damages and
Attorneys Fees with Prayer for the Issuance of a Temporary
Environment Protection Order.
Antecedent Facts
On September 15, 2011, petitioner Maricris D. Dolot (Dolot), together
with the parish priest of the Holy Infant Jesus Parish and the officers
of Alyansa Laban sa Mina sa Matnog (petitioners), filed a petition for
continuing mandamus, damages and attorneys fees with the RTC of
Sorsogon, docketed as Civil Case No. 2011-8338.4 The petition
contained the following pertinent allegations: (1) sometime in 2009,
they protested the iron ore mining operations being conducted by
Antones Enterprises, Global Summit Mines Development Corporation
and TR Ore in Barangays Balocawe and Bon-ot Daco, located in the
Municipality of Matnog, to no avail; (2) Matnog is located in the
southern tip of Luzon and there is a need to protect, preserve and
maintain the geological foundation of the municipality; (3) Matnog is
susceptible to flooding and landslides, and confronted with the
environmental dangers of flood hazard, liquefaction, ground
settlement, ground subsidence and landslide hazard; (4) after
investigation, they learned that the mining operators did not have the
required permit to operate; (5) Sorsogon Governor Raul Lee and his
predecessor Sally Lee issued to the operators a small-scale mining
permit, which they did not have authority to issue; (6) the
representatives of the Presidential Management Staff and the
Department of Environment and Natural Resources (DENR), despite
knowledge, did not do anything to protect the interest of the people of
Matnog;5 and (7) the respondents violated Republic Act (R.A.) No.
7076 or the Peoples Small-Scale Mining Act of 1991, R.A. No. 7942
or the Philippine Mining Act of 1995, and the Local Government
Code.6 Thus, they prayed for the following reliefs: (1) the issuance of a
writ commanding the respondents to immediately stop the mining
operations in the Municipality of Matnog; (2) the issuance of a
temporary environment protection order or TEPO; (3) the creation of
an inter-agency group to undertake the rehabilitation of the mining
site; (4) award of damages; and (5) return of the iron ore, among
others.7
The case was referred by the Executive Judge to the RTC of Sorsogon,
Branch 53 being the designated environmental court.8 In the Order9
dated September 16, 2011, the case was summarily dismissed for lack
of jurisdiction.
The petitioners filed a motion for reconsideration but it was denied in
the Resolution10 dated October 18, 2011. Aside from sustaining the
dismissal of the case for lack of jurisdiction, the RTC11 further ruled
that: (1) there was no final court decree, order or decision yet that the
public officials allegedly failed to act on, which is a condition for the
issuance of the writ of continuing mandamus; (2) the case was
prematurely filed as the petitioners therein failed to exhaust their
administrative remedies; and (3) they also failed to attach judicial
affidavits and furnish a copy of the complaint to the government or
appropriate agency, as required by the rules.12
Petitioner Dolot went straight to this Court on pure questions of law.
Issues
The main issue in this case is whether the RTC-Branch 53 has
jurisdiction to resolve Civil Case No. 2011-8338. The other issue is
whether the petition is dismissible on the grounds that: (1) there is no
final court decree, order or decision that the public officials allegedly
failed to act on; (2) the case was prematurely filed for failure to
exhaust administrative remedies; and (3) the petitioners failed to attach
judicial affidavits and furnish a copy of the complaint to the
government or appropriate agency.
Ruling of the Court
Jurisdiction and Venue
In dismissing the petition for lack of jurisdiction, the RTC, in its Order
dated September 16, 2011, apparently relied on SC Administrative
Order (A.O.) No. 7 defining the territorial areas of the Regional Trial
Courts in Regions 1 to 12, and Administrative Circular (Admin.
Circular) No. 23-2008,13 designating the environmental courts "to try
and decide violations of environmental laws x x x committed within
their respective territorial jurisdictions."14 Thus, it ruled that its
territorial jurisdiction was limited within the boundaries of Sorsogon
City and the neighboring municipalities of Donsol, Pilar, Castilla,
Casiguran and Juban and that it was "bereft of jurisdiction to entertain,
hear and decide [the] case, as such authority rests before another co-
equal court."15
Such reasoning is plainly erroneous. The RTC cannot solely rely on
SC A.O. No. 7 and Admin. Circular No. 23-2008 and confine itself
within its four corners in determining whether it had jurisdiction over
the action filed by the petitioners.
None is more well-settled than the rule that jurisdiction, which is the
power and authority of the court to hear, try and decide a case, is
conferred by law.16 It may either be over the nature of the action, over
the subject matter, over the person of the defendants or over the issues
framed in the pleadings.17 By virtue of Batas Pambansa (B.P.) Blg. 129
or the Judiciary Reorganization Act of 1980, jurisdiction over special
civil actions for certiorari, prohibition and mandamus is vested in the
RTC. Particularly, Section 21(1) thereof provides that the RTCs shall
exercise original jurisdiction
in the issuance of writs of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction which may be enforced in any
part of their respective regions. (Emphasis ours)
A.O. No. 7 and Admin. Circular No. 23-2008 was issued pursuant to
Section 18 of B.P. Blg. 129, which gave the Court authority to define
the territory over which a branch of the RTC shall exercise its
authority. These administrative orders and circulars issued by the
Court merely provide for the venue where an action may be filed. The
Court does not have the power to confer jurisdiction on any court or
tribunal as the allocation of jurisdiction is lodged solely in Congress.18
It also cannot be delegated to another office or agency of the
Government.19 Section 18 of B.P. Blg. 129, in fact, explicitly states that
the territory thus defined shall be deemed to be the territorial area of
the branch concerned for purposes of determining the venue of all
suits, proceedings or actions. It was also clarified in Office of the
Court Administrator v. Judge Matas20 that
Administrative Order No. 3 [defining the territorial jurisdiction of the
Regional Trial Courts in the National Capital Judicial Region] and, in
like manner, Circular Nos. 13 and 19, did not per se confer jurisdiction
on the covered regional trial courts or its branches, such that non-
observance thereof would nullify their judicial acts. The administrative
order merely defines the limits of the administrative area within which
a branch of the court may exercise its authority pursuant to the
jurisdiction conferred by Batas Pambansa Blg. 129.21
The RTC need not be reminded that venue relates only to the place of
trial or the geographical location in which an action or proceeding
should be brought and does not equate to the jurisdiction of the court.
It is intended to accord convenience to the parties, as it relates to the
place of trial, and does not restrict their access to the courts.22
Consequently, the RTCs motu proprio dismissal of Civil Case No.
2011-8338 on the ground of lack of jurisdiction is patently incorrect.
At most, the error committed by the petitioners in filing the case with
the RTC of Sorsogon was that of improper venue. A.M. No. 09-6-8-SC
or the Rules of Procedure for Environmental Cases (Rules) specifically
states that a special civil action for continuing mandamus shall be filed
with the "[RTC] exercising jurisdiction over the territory where the
actionable neglect or omission occurred x x x."23 In this case, it
appears that the alleged actionable neglect or omission occurred in the
Municipality of Matnog and as such, the petition should have been
filed in the RTC of Irosin.24 But even then, it does not warrant the
outright dismissal of the petition by the RTC as venue may be
waived.25 Moreover, the action filed by the petitioners is not criminal
in nature where venue is an essential element of jurisdiction.26 In
Gomez-Castillo v. Commission on Elections,27 the Court even
expressed that what the RTC should have done under the
circumstances was to transfer the case (an election protest) to the
proper branch. Similarly, it would serve the higher interest of justice28
if the Court orders the transfer of Civil Case No. 2011 8338 to the RTC
of Irosin for proper and speedy resolution, with the RTC applying the
Rules in its disposition of the case.
At this juncture, the Court affirms the continuing applicability of
Admin. Circular No. 23-2008 constituting the different "green courts"
in the country and setting the administrative guidelines in the raffle
and disposition of environmental cases. While the designation and
guidelines were made in 2008, the same should operate in conjunction
with the Rules.
A.M. No. 09-6-8-SC: Rules of Procedure for Environmental Cases
In its Resolution dated October 18, 2011, which resolved the
petitioners motion for reconsideration of the order of dismissal, the
RTC further ruled that the petition was dismissible on the following
grounds: (1) there is no final court decree, order or decision yet that
the public officials allegedly failed to act on; (2) the case was
prematurely filed for failure to exhaust administrative remedies; and
(3) there was failure to attach judicial affidavits and furnish a copy of
the complaint to the government or appropriate agency.29 The
respondents, and even the Office of the Solicitor General, in behalf of
the public respondents, all concur with the view of the RTC.
The concept of continuing mandamus was first introduced in
Metropolitan Manila Development Authority v. Concerned Residents
of Manila Bay.30 Now cast in stone under Rule 8 of the Rules, the writ
of continuing mandamus enjoys a distinct procedure than that of
ordinary civil actions for the enforcement/violation of environmental
laws, which are covered by Part II (Civil Procedure). Similar to the
procedure under Rule 65 of the Rules of Court for special civil actions
for certiorari, prohibition and mandamus, Section 4, Rule 8 of the
Rules requires that the petition filed should be sufficient in form and
substance before a court may take further action; otherwise, the court
may dismiss the petition outright. Courts must be cautioned, however,
that the determination to give due course to the petition or dismiss it
outright is an exercise of discretion that must be applied in a
reasonable manner in consonance with the spirit of the law and always
with the view in mind of seeing to it that justice is served.31
Sufficiency in form and substance refers to the contents of the petition
filed under Rule 8, Section 1:
When any agency or instrumentality of the government or officer
thereof unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust or station
in connection with the enforcement or violation of an environmental
law rule or regulation or a right therein, or unlawfully excludes another
from the use or enjoyment of such right and there is no other plain,
speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty, attaching thereto supporting evidence,
specifying that the petition concerns an environmental law, rule or
regulation, and praying that judgment be rendered commanding the
respondent to do an act or series of acts until the judgment is fully
satisfied, and to pay damages sustained by the petitioner by reason of
the malicious neglect to perform the duties of the respondent, under
the law, rules or regulations. The petition shall also contain a sworn
certification of non-forum shopping.1wphi1
On matters of form, the petition must be verified and must contain
supporting evidence as well as a sworn certification of non-forum
shopping. It is also necessary that the petitioner must be one who is
aggrieved by an act or omission of the government agency,
instrumentality or its officer concerned. Sufficiency of substance, on
the other hand, necessitates that the petition must contain substantive
allegations specifically constituting an actionable neglect or omission
and must establish, at the very least, a prima facie basis for the
issuance of the writ, viz: (1) an agency or instrumentality of
government or its officer unlawfully neglects the performance of an
act or unlawfully excludes another from the use or enjoyment of a
right; (2) the act to be performed by the government agency,
instrumentality or its officer is specifically enjoined by law as a duty;
(3) such duty results from an office, trust or station in connection with
the enforcement or violation of an environmental law, rule or
regulation or a right therein; and (4) there is no other plain, speedy and
adequate remedy in the course of law.32
The writ of continuing mandamus is a special civil action that may be
availed of "to compel the performance of an act specifically enjoined
by law."33 The petition should mainly involve an environmental and
other related law, rule or regulation or a right therein. The RTCs
mistaken notion on the need for a final judgment, decree or order is
apparently based on the definition of the writ of continuing mandamus
under Section 4, Rule 1 of the Rules, to wit:
(c) Continuing mandamus is a writ issued by a court in an
environmental case directing any agency or instrumentality of the
government or officer thereof to perform an act or series of acts
decreed by final judgment which shall remain effective until judgment
is fully satisfied. (Emphasis ours)
The final court decree, order or decision erroneously alluded to by the
RTC actually pertains to the judgment or decree that a court would
eventually render in an environmental case for continuing mandamus
and which judgment or decree shall subsequently become final.
Under the Rules, after the court has rendered a judgment in conformity
with Rule 8, Section 7 and such judgment has become final, the
issuing court still retains jurisdiction over the case to ensure that the
government agency concerned is performing its tasks as mandated by
law and to monitor the effective performance of said tasks. It is only
upon full satisfaction of the final judgment, order or decision that a
final return of the writ shall be made to the court and if the court finds
that the judgment has been fully implemented, the satisfaction of
judgment shall be entered in the court docket.34 A writ of continuing
mandamus is, in essence, a command of continuing compliance with a
final judgment as it "permits the court to retain jurisdiction after
judgment in order to ensure the successful implementation of the
reliefs mandated under the courts decision."35
The Court, likewise, cannot sustain the argument that the petitioners
should have first filed a case with the Panel of Arbitrators (Panel),
which has jurisdiction over mining disputes under R.A. No. 7942.
Indeed, as pointed out by the respondents, the Panel has jurisdiction
over mining disputes.36 But the petition filed below does not involve a
mining dispute. What was being protested are the alleged negative
environmental impact of the small-scale mining operation being
conducted by Antones Enterprises, Global Summit Mines
Development Corporation and TR Ore in the Municipality of Matnog;
the authority of the Governor of Sorsogon to issue mining permits in
favor of these entities; and the perceived indifference of the DENR and
local government officials over the issue. Resolution of these matters
does not entail the technical knowledge and expertise of the members
of the Panel but requires an exercise of judicial function. Thus, in
Olympic Mines and Development Corp. v. Platinum Group Metals
Corporation,37 the Court stated
Arbitration before the Panel of Arbitrators is proper only when there is
a disagreement between the parties as to some provisions of the
contract between them, which needs the interpretation and the
application of that particular knowledge and expertise possessed by
members of that Panel. It is not proper when one of the parties
repudiates the existence or validity of such contract or agreement on
the ground of fraud or oppression as in this case. The validity of the
contract cannot be subject of arbitration proceedings. Allegations of
fraud and duress in the execution of a contract are matters within the
jurisdiction of the ordinary courts of law. These questions are legal in
nature and require the application and interpretation of laws and
jurisprudence which is necessarily a judicial function.38 (Emphasis
supplied in the former and ours in the latter)
Consequently, resort to the Panel would be completely useless and
unnecessary.
The Court also finds that the RTC erred in ruling that the petition is
infirm for failure to attach judicial affidavits. As previously stated,
Rule 8 requires that the petition should be verified, contain supporting
evidence and must be accompanied by a sworn certification of non-
forum shopping. There is nothing in Rule 8 that compels the inclusion
of judicial affidavits, albeit not prohibited. It is only if the evidence of
the petitioner would consist of testimony of witnesses that it would be
the time that judicial affidavits (affidavits of witnesses in the question
and answer form) must be attached to the petition/complaint.39
Finally, failure to furnish a copy of the petition to the respondents is
not a fatal defect such that the case should be dismissed. The RTC
could have just required the petitioners to furnish a copy of the petition
to the respondents. It should be remembered that "courts are not
enslaved by technicalities, and they have the prerogative to relax
compliance with procedural rules of even the most mandatory
character, mindful of the duty to reconcile both the need to speedily
put an end to litigation and the parties right to an opportunity to be
heard."40
WHEREFORE, the petition is GRANTED. The Order dated
September 16, 2011 and Resolution dated October 18, 2011 issued by
the Regional Trial Court of Sorsogon, Branch 53, dismissing Civil
Case No. 2011-8338 are NULLIFIED AND SET ASIDE. The
Executive Judge of the Regional Trial Court of Sorsogon is
DIRECTED to transfer the case to the Regional Trial Court of Irosin,
Branch 55, for further proceedings with dispatch. Petitioner Maricris
D. Dolot is also ORDERED to furnish the respondents with a copy of
the petition and its annexes within ten (10) days from receipt of this
Decision and to submit its Compliance with the RTC of Irosin.
SO ORDERED.
G.R. No. 194239 June 16, 2015
WEST TOWER CONDOMINIUM CORPORATION, on behalf of
the Residents of West Tower Condominium and in representation
of Barangay Bangkal, and others, including minors and
generations yet unborn, Petitioners,
vs.
FIRST PHILIPPINE INDUSTRIAL CORPORATION, FIRST
GEN CORPORATION and their RESPECTIVE BOARD OF
DIRECTORS AND OFFICERS, JOHN DOES, and RICHARD
DOES, Respondents.
DECISION
VELASCO, JR., J.:
Nature of the Case
Before the Court is the Petition for the Issuance of a Writ of Kalikasan
filed following the leak in the oil pipeline owned by First Philippine
Industrial Corporation (FPIC) in Makati City. The Facts
Respondent FPI C operates two pipelines since 1969, viz: ( 1) the
White Oil Pipeline (WOPL) System, which covers a 117-kilometer
stretch from Batangas to the Pandacan Terminal in Manila and
transports diesel, gasoline, jet fuel and kerosene; and (b) the Black Oil
Pipeline (BOPL) System which extends 105 kilometers and transports
bunker fuel from Batangas to a depot in Sucat, Paraaque. These
systems transport nearly 60% of the petroleum requirements of Metro
Manila and parts of the provinces of Bulacan, Laguna, and Rizal.
The two pipelines were supposedly designed to provide more than
double the standard safety allowance against leakage, considering that
they are made out of heavy duty steel that can withstand more than
twice the current operating pressure and are buried at a minimum
depth of 1.5 meters, which is deeper than the US Department of
Transportation standard of 0.9 meters. In May 2010, however, a
leakage from one of the pipelines was suspected after the residents of
West Tower Condominium (West Tower) started to smell gas within
the condominium. A search made on July 10, 2010 within the
condominium premises led to the discovery of a fuel leak from the
wall of its Basement 2. Owing to its inability to control the flow, West
Tower's management reported the matter to the Police Department of
Makati City, which in turn called the city's Bureau of Fire Protection.
What started as a two-drum leak at the initial stages became a 15-20
drum a day affair. Eventually, the sump pit of the condominium was
ordered shut down by the City of Makati to prevent the discharge of
contaminated water into the drainage system of Barangay Bangkal.
Eventually, the fumes compelled the residents of West Tower to
abandon their respective units on July 23, 2010 and the condo's power
was shut down.
Petitioner FPIC initially disowned any leak from its oil pipeline. Thus,
the residents of West Tower shouldered the expenses of hauling the
waste water from its basement, which eventually required the setting
up of a treatment plant in the area to separate fuel from the waste
water. On October 28, 2010, the University of the Philippines-National
Institute of Geological Sciences (UP-NIGS), which the City of Makati
invited to determine the source of the fuel, found a leak in FPIC's
WOPL about 86 meters from West Tower.
A day after, or on October 29, 2010, FPIC admitted that indeed the
source of the fuel leak is the WOPL, which was already closed since
October 24, 2010, but denied liability by placing blame on the
construction activities on the roads surrounding West Tower.
On November 15, 2010, West Tower Condominium Corporation (West
Tower Corp.) interposed the present Petition for the Issuance of a Writ
of Kalikasan on behalf of the residents of West Tower and in
representation of the surrounding communities in Barangay Bangkal,
Makati City. West Tower Corp. also alleged that it is joined by the civil
society and several people's organizations, non-governmental
organizations and public interest groups who have expressed their
intent to join the suit because of the magnitude of the environmental
issues involved.1
In their petition, petitioners prayed that respondents FPIC and its board
of directors and officers, and First Gen Corporation (FGC) and its
board of directors and officers be directed to: (1) permanently cease
and desist from committing acts of negligence in the performance of
their functions as a common carrier; (2) continue to check the
structural integrity of the whole 117-kilometer pipeline and to replace
the same; (3) make periodic reports on their findings with regard to the
117-kilometer pipeline and their replacement of the same; (4)
rehabilitate and restore the environment, especially Barangay Bangkal
and West Tower, at least to what it was before the signs of the leak
became manifest; and (5) to open a special trust fund to answer for
similar and future contingencies in the future. Furthermore, petitioners
pray that respondents be prohibited from opening the pipeline and
allowing the use thereof until the same has been thoroughly checked
and replaced, and be temporarily restrained from operating the pipeline
until the final resolution of the case.
To bolster their petition, petitioners argued that FPIC's omission or
failure to timely replace. its pipelines and to observe extraordinary
diligence caused the petroleum spill in the City of Makati. Thus, for
petitioners, the continued use of the now 4 7-year old pipeline would
not only be a hazard or a threat to the lives, health, and property of
those who live or sojourn in all the municipalities in which the pipeline
is laid, but would also affect the rights of the generations yet unborn to
live in a balanced and "healthful ecology," guaranteed under Section
16, Article II of the 1987 Constitution.
On November 19, 2010, the Court issued the Writ of Kalikasan2 with a
Temporary Environmental Protection Order (TEPO) requiring
respondents FPIC, FGC, and the members of their Boards of Directors
to file their respective verified returns. The TEPO enjoined FPIC and
FGC to: (a) cease and desist from operating the WOPL until further
orders; (b) check the structural integrity of the whole span of the 11 7-
kilometer WOPL while implementing sufficient measures to prevent
and avert any untoward incident that may result from any leak of the
pipeline; and ( c) make a report thereon within 60 days from receipt
thereof.
In compliance with the writ, FPIC directors Edgar Chua, Dennis
Javier, Dennis Gamab and Willie Sarmiento submitted a Joint Return3
praying for the dismissal of the petition and the denial of the privilege
of the Writ of Kalikasan. They alleged that: petitioners had no legal
capacity to institute the petition; there is no allegation that the
environmental damage affected the inhabitants of two (2) or more
cities or provinces; and the continued operation of the pipeline should
be allowed in the interest of maintaining adequate petroleum supply to
the public.
Respondents FPIC and its directors and officers, other than the
aforementioned four ( 4) directors, also filed a Verified Return4
claiming that not all requirements for the issuance of the Writ of
Kalikasan are present and there is no showing that West Tower Corp.
was authorized by all those it claimed to represent. They further
averred that the petition contains no allegation that respondents FPIC
directors and officers acted in such a manner as to allow the piercing
of the corporate veil.
Meanwhile, on January 18, 201-1, FGC and the members of its Board
of Directors and Officers filed a Joint Compliance5 submitting the
report required by the Writ of Kalikasan/TEPO. They contended that
they neither own nor operate the pipelines, adding that it is impossible
for them to report on the structural integrity of the pipelines, much less
to cease and desist from operating them as they have no capability,
power, control or responsibility over the pipelines. They, thus, prayed
that the directives of the Writ of Kalikasan/TEPO be considered as
sufficiently performed, as to them.
On January 21, 2011, FPIC, in compliance with the writ, submitted its
4-page "Report on Pipeline Integrity Check and Preventive
Maintenance Program."6 In gist, FPIC reported the following: (I) For
the structural integrity of the 117-kilometer pipeline, (a) the DOE
engaged the services of UP-NIGS to do borehole testing on 81 pre-
identified critical areas of the WQPL in eight cities and municipalities-
all the boreholes showed negative presence of petroleum vapors; (b)
pressure tests were conducted after the repair of the leak and results
showed negative leaks and the DOE's pipeline expert, Societe General
de Surveillance, New Zealand, has developed a pressure test protocol
requiring a 24-hour operation of running a scraper pig through the
pipeline to eliminate air gap; (c) In-Line Inspection Test, was
conducted by NDT through MFL and ultrasonic. The NDT later
cleared the WOPL from any damage or corrosion.
(II) For preventive maintenance measures, (a) Cathodic Protection
Systems are installed involving the use of anode materials and the
introduction of electric current in the pipeline to enhance prevention of
corrosion; (b) Regular Scraper Runs through the pipeline to maintain
cleanliness and integrity of the pipelines' internal surface; (c) Daily
Patrols every two hours of the pipeline route to deter unauthorized
diggings in the vicinity of the pipeline segments; ( d) Regular
coordination meetings with DPWH, MMDA and utility companies to
monitor projects that might involve digging or excavation in the
vicinity of the pipeline segments; (e) Installation of Security Warning
Signs along the pipeline route with toll free number which can be
called in the event of an accident or emergency; (f) Emergency
Response Procedure of the ERT is activated by a call-out procedure;
(g) Maintenance of Emergency Equipment and Repair Kit which are
always on standby; and, (h) Remotely controlled Isolation Valves are
in place to shut the pipeline when necessary.
On February 9, 2011, petitioners filed, and the Court eventually
granted, their Motion to Set the Case for Preliminary Conference and
Hearing7 pursuant to Sec. 11, Rule 7 of the Rules of Procedure for
Environmental Cases.
On April 15, 2011, the Court conducted an ocular inspection of the
WOPL in the vicinity of West Tower to determine the veracity of the
claim that there were two (2) additional leaks on FPIC's pipeline.
Results of the ocular inspection belied the claim.
In the meantime, petitioners also filed civil and criminal complaints
against respondents arising from the same incident or leakage from the
WOPL.8
Since after the Court's issuance of the Writ of Kalikasan and the TEPO
on November 19, 2010, FPIC has ceased operations on both the
WOPL and the BOPL. On May 31, 2011, however, the Court,
answering a query of the DOE, clarified and confirmed that what is
covered by the Writ of Kalikasan and TEPO is only the WOPL System
of FPIC; thus, FPIC can resume operation of its BOPL System.9
On July 7, 2011, petitioners filed an Omnibus Motion10 assailing the
Court's May 31, 2011 Resolution, praying for the conduct of oral
argument on the issue of reopening the BOPL System. This was
followed, on September 9, 2011, by a Manifestation (Re: Current
Developments) with Omnibus Motion11 wherein petitioners invoked
the precautionary principle12 and asserted that the possibility of a leak
in the BOPL System leading to catastrophic environmental damage is
enough reason to order the closure of its operation. They likewise
alleged that the entities contracted by FPIC to clean and remediate the
environment are illegally discharging waste water, which had not
undergone proper treatment, into the Paraaque River. Petitioners,
thus, prayed that respondents be directed to comply with
environmental laws in rehabilitating the surroundings affected by the
oil leak and to submit a copy of their work plan and monthly reports
on the progress thereof. To these omnibus motions, respondents were
directed to file their respective comments.
On September 28, 2011, respondent FPIC filed an Urgent Motion for
Leave (To Undertake "Bangkal Realignment" Project)13 in order to
reduce stress on the WOPL System. FPIC sought to construct a new
realigned segment to replace the old pipe segment under the
Magallanes Interchange, which covers the portion that leaked.
Petitioners were directed to file their comment on FPIC's motion.
Report and Recommendation of the Court of Appeals
To expedite the resolution of the controversy, the Court remanded the
case to the Court of Appeals (CA). By this Court's Resolution dated
November 22, 2011,14 the appellate court was required to conduct
hearings and, thereafter, submit a report and recommendation within
30 days after the receipt of the parties' memoranda.
On March 21, 2012, the preliminary conference was continued before
the CA wherein the parties made admissions and stipulations of facts
and defined the issues for resolution. In view of the technical nature of
the case, the CA also appointed15 several amici curiae,16 but only
four (4) filed their reports.17
On December 26, 2012, the CA Former 11th Division submitted to the
Court its well-crafted and exhaustive 156-page Report and
Recommendation18 dated December 21, 2012 (CA Report). Some
highlights of the Report:
1. Anent petitioners' June 28, 2011 Omnibus Motion assailing
the reopening of the BOPL System, the CA directed respondent
FPIC to submit the appropriate certification from the DOE as
to the safe commercial operation of the BOPL; otherwise, the
operation of the BOPL must also be enjoined.
2. On petitioners' September 9, 2011 Manifestation (Re:
Current Developments) with Omnibus Motion, the CA directed
the Inter-Agency Committee on Health to submit its evaluation
of the remediation plan prepared by CH2M Hill Philippines,
Inc. for FPIC. Further, the appellate court directed FPIC to
strictly comply with the stipulations contained in the permits
issued by the Department of Environment and Natural
Resources (DENR) for its remediation activities in Barangay
Bangkal, Makati City. The DENR was in turn directed by the
CA to:
(a) monitor compliance by respondent FPIC with
applicable environmental laws and regulations and
conditions set forth in the permits issued;
(b) conduct independent analysis of end-products of the
Multi-Phase Extraction System;
(c) conduct regular consultative meetings with the City
of Makati, residents of Barangay Bangkal and other
stakeholders concerning the remediation activities; and,
 (d) evaluate the viability of the recommendation of
amicus Dr. Benjamin R. De Jesus, Jr. to include the use
of surfactants and oxygen-releasing compounds (ORCs)
in the middle and terminal portions of the remediation
plan.
3. Respondent's September 27, 2011 Urgent Motion for Leave
(To Undertake "Bangkal Realignment" Project) was denied.
4. With regard to the March 29, 2012 Supplemental
Manifestation (Re: List of Amici Curiae and Recent Possible
Leak in the Pipeline) filed by petitioners, the CA found that the
existence of another possible leak alleged by petitioners was
not established. Nonetheless, to prevent such event, the CA
ordered FPIC to: (i) review, adopt and strictly observe
appropriate safety and precautionary measures; (ii) closely
monitor the conduct of its maintenance and repair works; and
(iii) submit to the DOE regular monthly reports on the
structural integrity and safe commercial operation of the
pipeline.
5. As to the merits of the case, the CA submitted the following
recommendations:
(a) That the people's organizations, non-governmental
organizations, and public interest groups that indicated
their intention to join the petition and submitted proof
of juridical personality (namely: the Catholic Bishop's
Conference of the Philippines; Kilusang Makabansang
Ekonomiya, Inc.; Women's Business Council of the
Philippines, Inc.; Junior Chambers International
Philippines, Inc. - San Juan Chapter; Zonta Club of
Makati Ayala Foundations; and the Consolidated
Mansions Condominium Corporation) be allowed to be
formally impleaded as petitioners.
(b) That respondent FPIC be ordered to submit a
certification from the DOE Secretary that the WOPL is
already safe for commercial operation. The certification
should take into consideration the adoption by FPIC of
the appropriate leak detection system to be used in
monitoring the entire pipeline's mass input versus mass
output. The certification must also consider the
necessity of replacing the pipes with existing patches
and sleeves. In case of failure of respondent FPIC to
submit the required certification from the DOE
Secretary within sixty (60) days from notice of the
Honorable Supreme Court's approval of this
recommendation, the TEPO must be made permanent.
(c) That petitioners' prayer for the creation of a special
trust fund to answer for similar contingencies in the
future be denied for lack of sufficient basis.
d) That respondent FGC be not held solidarily liable
under the TEPO.
 (e) That without prejudice to the outcome of the civil
and criminal cases filed against respondents, the
individual directors and officers of FPIC and FGC be
not held liable in their individual capacities.
On January 11, 2013, petitioners filed their Motion for Partial
Reconsideration19 of the CA's Report praying that (a) instead of the
DOE, the required certification should be issued by the DOST-Metal
Industry Research and Development Center; (b) a trust fund be created
to answer for future contingencies; and ( c) the directors and officers
of FPIC and FGC be held accountable.
On January 25, 2013, FPIC filed its Compliance (Re: Department of
Energy Certification on the Black Oil Pipeline)20 and submitted the
required DOE Certification21 issued on January 22, 2013 by DOE
Secretary Carlos Jericho L. Petilla (Secretary Petilla). On March 14,
2013, petitioners countered with a Manifestation with Motion22
asserting that FPIC's certification is not compliant with the CA's
requirement. Hence, petitioners moved that the certification should be
disregarded, the 30-day period be deemed to have lapsed, and FPIC be
permanently enjoined from operating the BOPL.
On July 30, 2013, the Court issued a Resolution adopting the
recommendation of the CA in its Report and Recommendation that
FPIC be ordered to secure a certification from the DOE Secretary
before the WOPL may resume its operations. The pertinent portion of
said Resolution reads:
[FPIC] is hereby ORDERED to submit a certification from the DOE
Secretary that the pipeline is already safe for commercial operation.
The certification should take into consideration the adoption by FPIC
of the appropriate leak detection system to be used in monitoring the
entire pipeline's mass input versus mass output. The certification must
also consider the necessity of replacing the pipes with existing patches
and sleeves x x x.23
The DOE Secretary is DIRECTED to consult the [DOST] regarding
the adoption of the appropriate leak detection system and the necessity
of replacing the pipes with existing patches and sleeves.
On October 2, 2013, petitioners, in a Motion for Reconsideration with
Motion for Clarification, emphasized that the CA found FPIC's tests
and maintenance program to be insufficient and inconclusive to
establish the WOPL' s structural integrity for continued commercial
operation.24 Furthermore, petitioners point out that the DOE is biased
and incapable of determining the WOPL's structural integrity.
Respondents, for their part, maintain that the DOE has the technical
competence and expertise to assess the structural integrity of the
WOPL and to certify the system's safety for commercial operation.25
Respondents further allege that the DOE is the agency empowered to
regulate the transportation and distribution of petroleum products, and
to regulate and monitor downstream oil industry activities, including
"product distribution" through pipelines.26
In compliance with the Court's July 30, 2013 Resolution, the DOE
Secretary issued on October 25, 2013 a Certification,27 attesting that
the WOPL is safe to resume commercial operations, subject to
monitoring or inspection requirements, and imposing several
conditions that FPIC must comply with. The Certification, in its
entirety, reads:
This is to certify that based on the Pipeline Integrity Management
Systems (PIMS) being implemented by [FPIC] for its [WOPL] facility,
the same is safe to resume commercial operations. This certification is
being issued after consultation with the [DOST] and on the basis of the
following considerations, to wit:
1. DOE noted the adoption by FPIC of the appropriate leak
detection system to be used in monitoring the pipeline's mass
input versus mass output, as well as the other measures of leak
detection and prevention adopted by the latter;
2. DOE further noted that FPIC has already undertaken
realignment and reinforcement works on the current pipeline to
remove majority of the patches. FPIC has likewise presented
substantial and adequate documentation showing that the
remaining patches and sleeves are safe, and that the use of such
is recognized by the industry and complies with existing
standards;
3. DOE finally noted the results of various tests and inspections
done on the pipeline as indicated in the Manifestation
submitted by ,the DOE on March 31, 2012, in the civil case
docketed as CA GR SP No. 00008 and entitled West Tower
Condominium, et al. [v.] First Philippine Industrial
Corporation, et al.
This certification is being issued subject to the condition that FPIC
will submit itself to regular monitoring and validation by the Oil
Industry Management Bureau (OIMB) of the implementation of its
PIMS, particularly on the following: (a) mass or volume input versus
mass or volume output loss/gain accounting; (b) results of borehole
monitoring, (c) inspection of the pipeline cathodic protection and (d)
pressure test.
Further, FPIC shall submit itself to any test or inspection that the DOE
and DOST may deem appropriate for purposes of monitoring the
operations of the WOPL facility.
The Court is fully cognizant of the WOPL' s value in commerce and
the adverse effects of a prolonged closure thereof. Nevertheless, there
is a need to balance the necessity of the immediate reopening of the
WOPL with the more important need to ensure that it is sound for
continued operation, since the substances it carries pose a significant
hazard to the surrounding population and to the environment.28 A
cursory review of the most recent oil pipeline tragedies around the
world will readily show that extreme caution should be exercised in
the monitoring and operation of these common carriers:
(1) On August 1, 2014, a series of powerful explosions from
underground pipeline systems ripped up the streets of
Kaohsiung, Taiwan, killing at least 28 people and injuring 299
more. Further, 23 ,600, 2,268 and 6,000 households were left
without gas, power and water, respectively, in the 2-3 square
kilometer blast area.29
(2) On November 22, 2013, an oil pipeline leaked, caught fire,
and exploded in Qingdao, Shangdao Province in China, killing
55 people and injuring more than a hundred more.30
(3) On September 14, 2011, a fuel pipeline exploded in Kenya's
capital city, Nairobi, reducing bodies to dust and flattening
homes. At least 7 5 people died in the explosion, while more
than a hundred people were injured.31
(4) In September 2010, a natural gas pipeline ruptured and set
off a fireball, killing eight (8) people and leveling 3 8 homes in
San Bruno, California in the United States.32
 (5) On July 30, 2004, a rupture of an underground natural gas
pipeline buried six (6) meters in Ghislenghien, Belgium
resulted in 24 deaths and over 120 injuries.33
On April 29 and 30, 2014, the DOE organized a dialogue between said
government agencies and the FPIC. There it was stated that during the
dialogue, "the division heads and a high profile team from FPIC, both
from operation and management made presentations and answered
questions on pipeline pumping operation and product delivery, and a
detailed explanation of the FPIC PIMS' control measures, condition
monitoring measures, and emergency measures, as well as its various
activities and projects implemented since 2010 such as pipeline
replacement and realignment in Pandacan and Bangkal, inspection and
reinforcement of all patches in the WOPL, inspection and
reinforcement of a number of reported dents in the WOPL, conduct of
successful leak tests, and installation of boreholes that are gas-tested
on a weekly basis, and the safety systems that go with the daily
pipeline operation and maintenance and project execution."34
On August 5, 2014, Secretary Carlos Jericho L. Petilla of the DOE
submitted a letter35 recommending activities and timetable for the
resumption of the WOPL operations, to wit:
A. Preparatory to the Test Run
I. FPIC Tasks:
a. Continue submission of monitoring charts, data/reading,
accomplishment reports, and project status for all related
activities/works. Respond to comments and prepare for site
inspection.
b. Continue gas testing along the right-of-way using the
monitoring wells or boreholes. Prepare for inspection of right-
of-way and observation of gas testing activities on monitoring
wells and boreholes.
c. Expound on the selection of borehole location. For example,
identify those located in pipeline bends, bodies of water,
residential areas, repaired portions of the pipelines, dents and
welded joints.
d. Continue submitting status report relating to "Project
Mojica" (an ongoing pipeline segment realignment activity
undertaken by FPIC to give way to a flood control project of
MMDA in the vicinity of Mojica St. and Pres. Osmea
Highway in Makati City). Prepare for site inspection.
II. Inter-agency undertaking:
a. Conduct onsite inspection of right-of-way
b. Review/check remaining 22 patches that were already
inspected and reinforced with Clockspring sleeves.
i. Determine location of sleeves.
ii. Review of procedures on repair of sleeves.
iii. Random visual inspection of areas easily accessible.
c. Cathodic protection's onsite inspection on rectifier to check
readings
i. Old readings
ii. Current Readings
iii. Segment covered
 iv. Criteria for prioritization for corrective action
d. Observe and witness the running/operation of the cleaning
pig.
e. Check and validate all calibration certificate of instruments
i. Instrument verification and calibration.
B. Actual Test Run (to be undertaken both by FPIC and inter-agency)
a. Perform Cleaning Pig Run
i. Witness launching and receiving of the cleaning pig.
ii. Handling of the residuals after cleaning.
b. Demonstrate Various Pressure Tests (already being
conducted by FPIC)
i. Blocked-in pressure test (Leak Test, not in operation)
ii. In-operation (hourly reading)
c. Continue Current Gas Monitoring (boreholes)
i. Ocular inspection of selected areas
d. Demonstrate mass or volume balance computation during
WOPL test run (already being implemented in the BOPL)
i. 30 days baseline data generation
ii. 30 days computational analysis and monitoring
C. Commissioning or Return to Commercial Operation
I. FPIC Tasks:
a. Continue implementation of the PIMS. Review
recommendations from DOE.
b. Continue monthly reporting of operations and maintenance
activities with DOE.
c. Continue reporting and coordination with DOE and other
government agencies for implementation of projects.36
Secretary Petilla also recounted to the Court in his August 5, 2014
letter that the DOE, together with the DPWH and the Metropolitan
Manila Development Authority (MMDA), observed the different
milestones of the realignment project being undertaken by FPIC in
support of the MMDA Flood Control Project and stated that the new
line segment as laid was coated with corrosion protection prior to the
backfilling of the excavated portion.
On February 3, 2015, the Court required the parties to submit their
comment on Sec. Petilla's letter within ten (10) days from receipt of
the Resolution. On various dates, respondents First Gen Corporation,
FPIC, and petitioner West Tower filed their respective comments37 in
compliance with the Court's resolution. The intervenors were unable to
comply with the Court's directive; hence, they are deemed to have
waived their right to file their respective comments. The Issues
Having received the October 25, 2013 Certification and the August 5,
2014 Letter from the DOE on the state of the WOPL, as well as the
parties' comments thereon, the following issues defined by the parties
during the March 21, 2012 preliminary conference are now ripe for
adjudication:
1. Whether petitioner West Tower Corp. has the legal capacity
to represent the other petitioners and whether the other
 petitioners, apart from the residents of West Tower and
Barangay Bangkal, are real parties-in-interest;
2. Whether a Permanent Environmental Protection Order
should be issued to direct the respondents to perform or to
desist from performing acts in order to protect, preserve, and
rehabilitate the affected environment;
3. Whether a special trust fund should be opened by
respondents to answer for future similar contingencies; and
4. Whether FGC and the directors and officers of respondents
FPIC and FGC may be held liable under the environmental
protection order.38
The Court's Ruling
We adopt, with modifications, the recommendations of the CA and
discuss the foregoing issues in seriatim.
I.
Petitioners as Real Parties-in-Interest
On the procedural aspect, We agree with the CA that petitioners who
are affected residents of West Tower and Barangay Bangkal have the
requisite concern to be real parties-in-interest to pursue the instant
petition.
Residents of West Tower and Barangay Bangkal
As defined, a real party-in-interest is the party who stands to be
benefited or injured by the judgment in the suit, or the party entitled to
the avails of the suit.39 Generally, every action must be prosecuted or
defended in the name of the real parties-in-interest.40 In other words,
the action must be brought by the person who, by substantive law,
possesses the right sought to be enforced.41 Alternatively, one who has
no right or interest to protect cannot invoke the jurisdiction of the court
as party-plaintiff-in-action for it is jurisprudentially ordained that
every action must be prosecuted or defended in the name of the real
party-in-interest.42
In the case at bar, there can be no quibble that the oil leak from the
WOPL affected all the condominium unit owners and residents of
West Tower as, in fact, all had to evacuate their units at the wee hours
in the morning of July 23, 2010, when the condominium's electrical
power was shut down. Until now, the unit owners and residents of
West Tower could still not return to their condominium units. Thus,
there is no gainsaying that the residents of West Tower are real parties-
in-interest.
There can also be no denying that West Tower Corp. represents the
common interest of its unit owners and residents, and has the legal
standing to file and pursue the instant petition. While a condominium
corporation has limited powers under RA 4 726, otherwise known as
The Condominium Act,43 it is empowered to pursue actions in behalf
of its members. In the instant case, the condominium corporation .is
the management body of West Tower and deals with everything that
may affect some or all of the condominium unit owners or users.
It is of no moment that only five residents of West Tower signed their
acquiescence to the filing of the petition for the issuance of the Writ of
Kalikasan, as the merits of such petition is, as aptly put by the CA, not
measured by the number of persons who signified their assent thereto,
but on the existence of a prima facie case of a massive environmental
disaster.
Moreover, the fact that no board resolution was submitted by West
Tower Corp. authorizing Manuel Dy Chuaunsu, Jr. to sign the
Verification and Certification of Non-forum Shopping is irrelevant.
The records show that petitioners submitted a notarized Secretary's
Certificate44 attesting that the authority of Chuaunsu to represent the
condominium corporation in filing the petition is from the resolution
of the total membership of West Tower Corp. issued during their
November 9, 2010 meeting with the requisite quorum. It is, thus, clear
that it was not the Board of West Tower Corp. which granted
Chuaunsu the authority but the full membership of the condominium
corporation itself.
As to the residents of Barangay Bangkal, they are similarly situated
with the unit owners and residents of West Tower and are real parties-
in-interest to the instant case, i.e., if they so wish to join the
petitioners.
Organizations that indicated their intention to join the petition
and submitted proof of juridical personality
Anent the propriety of including the Catholic Bishops' Conference of
the Philippines, Kilusang Makabansang Ekonomiya, Inc., Women's
Business Council of the Philippines, Inc., Junior Chambers
International Philippines, Inc. - San Juan Chapter, Zonta Club of
Makati Ayala Foundations, and the Consolidated Mansions
Condominium Corporation, as petitioners in the case, the Court
already granted their intervention in the present controversy in the
adverted July 30, 2013 Resolution.
This is so considering that the filing of a petition for the issuance of a
writ of kalikasan under Sec. 1, Rule 745 of the Rules of Procedure for
Environmental Cases does not require that a petitioner be directly
affected by an environmental disaster. The rule clearly allows juridical
persons to file the petition on behalf of persons whose constitutional
right to a balanced and healthful ecology is violated, or threatened with
violation.
Thus, as parties to the case, they are entitled to be furnished copies of
all the submissions to the Court, including the periodic reports of FPIC
and the results of the evaluations and tests conducted on the WOPL.
Having disposed of the procedural issue, We proceed to the bone of
contention in the pending motions. Suffice it to state in the outset that
as regards the substantive issues presented, the Court, likewise,
concurs with the other recommendations of the CA, with a few
modifications.
II.
Propriety of Converting the TEPO to PEPO or its Lifting in light of the
DOE Certification of the WOPL's Commercial Viability
To recall, petitioners' persistent plea is for the conversion of the
November 19, 2010 TEPO into a Permanent Environmental Protection
Order (PEPO) pursuant to Sec. 3,46 Rule 5 of the Rules of Procedure
for Environmental Cases. For its part, respondent FPIC asserts that
regular testing, as well as the measures that are already in place, will
sufficiently address any concern of oil leaks from the WOPL.
With respect to leak detection, FPIC claims that it has in place the
following systems: (a) regular cleaning scraper runs, which are done
quarterly; (b) pipeline integrity gauge (PIG) tests/Intelligent PIG, now
known as in-line inspections (ILI), which is done every five years; (c)
pressure monitoring valves; and ( d) 24-hour patrols. Additionally,
FPIC asserted that it also undertook the following: (a) monitoring of
wells and borehole testing/vapor tests; (b) leak tightness test, also
known as segment pressure test; (c) pressure-controlled test; (d)
inspection and reinforcement of patches; (e) inspection and
reinforcement of dents; and (f) Pandacan segment replacement.47
Furthermore, in August 2010, with the oil leak hogging the headlines,
FPIC hired NDT Middle East FZE (NDT) to conduct ILI inspections
through magnetic flux leakage (MFL) and ultrasonic tests to,
respectively, detect wall thinning of the pipeline and check it for
cracks.
The CA, however, observed that all of these tests and measures are
inconclusive and insufficient for purposes of leak detection and
pipeline integrity maintenance. Hence, considering the necessary
caution and level of assurance required to ensure that the WOPL
system is free from leaks and is safe for commercial operation, the CA
recommended that FPIC obtain from the DOE a certification that the
WOPL is already safe for commercial operation. This certification,
according to the CA, was to be issued with due consideration of the
adoption by FPIC of the appropriate leak detection systems to monitor
sufficiently the entire WOPL and the need to replace portions of the
pipes with existing patches and sleeves. Sans the required certification,
use of the WOPL shall remain abated.
The Court found this recommendation of the appellate court proper.
Hence, We required FPIC to obtain the adverted DOE Certification in
Our July 30, 2013 Resolution. We deemed it proper to require said
certification from the DOE considering that the core issue of this case
requires the specialized knowledge and special expertise of the DOE
and various other administrative agencies. On October 25, 2013, the
DOE submitted the certification pursuant to the July 30, 2013
Resolution of the Court. Later, however, on August 5, 2014, DOE
Secretary Carlos Jericho I. Petilla submitted a letter recommending
certain activities and the timetable for the resumption of the WOPL
operations after conducting a dialogue between the concerned
government agencies and FPIC.
After a perusal of the recommendations of the DOE and the
submissions of the parties, the Court adopts the activities and measures
prescribed in the DOE letter dated August 5, 2014 to be complied with
by FPIC as conditions for the resumption of the commercial operations
of the WOPL. The DOE should, therefore, proceed with the
implementation of the tests proposed in the said August 5, 2014 letter.
Thereafter, if it is satisfied that the results warrant the immediate
reopening of the WOPL, the DOE shall issue an order allowing FPIC
to resume the operation of the WOPL. On the other hand, should the
probe result in a finding that the pipeline is no longer safe for
continued use and that its condition is irremediable, or that it already
exceeded its serviceable life, among others, the closure of the WOPL
may be ordered.
The DOE is specially equipped to consider FPIC's proper
implementation and compliance with its PIMS and to evaluate the
result of the various tests conducted on the pipeline. The DOE is
empowered by Sec. 12(b)(l), RA 7638 to formulate and implement
policies for the efficient and economical "distribution, transportation,
and storage of petroleum, coal, natural gas."48 Thus, it cannot be
gainsaid that the DOE possesses technical knowledge and special
expertise with respect to practices in the transportation of oil through
pipelines.
Moreover, it is notable that the DOE did not only limit itself to the
knowledge and proficiency available within its offices, it has also
rallied around the assistance of pertinent bureaus of the other
administrative agencies: the ITDI49 of the DOST, which is mandated
to undertake technical services including standards, analytical and
calibration services; the MIRDC,50 also of the DOST, which is the
sole government entity directly supporting the metals and engineering
industry;51 the EMB52 of the DENR, the agency mandated to
implement, among others, RA 6969 (Toxic Substances and Hazardous
and Nuclear Waste Control Act of 1990) and RA 9275 (Philippine
Clean Water Act of 2004); and the BOD of the DPWH, which is
mandated to conduct, supervise, and review the technical design
aspects of projects of government agencies.53
The specialized knowledge and expertise of the foregoing agencies
must, therefore, be availed of to arrive at a judicious decision on the
propriety of allowing the immediate resumption of the WOPL's
operation. In a host of cases, this Court held that when the adjudication
of a controversy requires the resolution of issues within the expertise
of an administrative body, such issues must be investigated and
resolved by the administrative body equipped with the specialized
knowledge and the technical expertise.54 Hence, the courts, although
they may have jurisdiction and power to decide cases, can utilize the
findings and recommendations of the administrative agency on
questions that demand "the exercise of sound administrative discretion
requiring the special knowledge, experience, and services of the
administrative tribunal to determine technical and intricate matters of
fact."55
Justice Leonen, in his dissent, is of the view that the petition should be
denied and the TEPO immediately lifted in light of the DOE's issuance
of a certification attesting to the safety of the WOPL for continued
commercial operations, thereby rendering the instant petition moot and
academic, seeking, as it does, the checking of the pipeline's structural
integrity. According to his dissent, the writ of kalikasan issued by the
Court has already served its functions and, therefore, is functus officio.
Moreover, he argues that directing the DOE and FPIC to repeat their
previous procedures is tantamount to doubting the agency's
performance of its statutorily-mandated tasks, over which they have
the necessary expertise, and implies that said DOE certification is
improper, a breach, allegedly, of the principle of separation of powers.
He also contends that the majority ordered the repetition of the
procedures and tests already conducted on the WOPL because of the
fear and uncertainty on its safeness despite the finding of the DOE in
favor of its reopening, taking into consideration the occurrence of
numerous pipeline incidents worldwide. The dissent argues that the
precautionary principle should not be so strictly applied as to
unjustifiably deprive the public of the benefits of the activity to be
inhibited, and to unduly create other risks.
The dissent's contentions that the case is already moot and academic,
that the writ of kalikasan has already served its function, and that the
delay in the lifting of the TEPO may do more harm than good are
anchored on the mistaken premise that the precautionary principle was
applied in order to justify the order to the DOE and the FPIC for the
conduct of the various tests anew. The following reasons easily debunk
these arguments:
1. The precautionary principle is not applicable to the instant
case;
2. The DOE certification is not an absolute attestation as to the
WOPL's structural integrity and in fact imposes several
conditions for FPIC's compliance;
3. The DOE itself, in consultation with FPIC and the other
concerned agencies, proposed the activities to be conducted
preparatory to the reopening of the pipeline; and
4 . There are no conclusive findings yet on the WOPL's
structural integrity.
Section 1, Rule 20 of A.M. No. 09-6-8-SC or the Rules of Procedure
for Environmental Cases, on the Precautionary Principle, provides that
"[ w ]hen there is lack of full scientific certainty in establishing a
causal link between human activity and environmental effect, the court
shall apply the precautionary principle in resolving the case before it."
According to the dissent, the directive for the repetition of the tests is
based on speculations, justified by the application of said principle.
This, however, is not the case. Nowhere did We apply the
precautionary principle in deciding the issue on the WOPL's structural
integrity.
The precautionary principle only applies when the link between the
cause, that is the human activity sought to be inhibited, and the effect,
that is the damage to the environment, cannot be established with full
scientific certainty. Here, however, such absence of a link is not an
issue. Detecting the existence of a leak or the presence of defects in the
WOPL, which is the issue in the case at bar, is different from
determining whether the spillage of hazardous materials into the
surroundings will cause environmental damage or will harm human
health or that of other organisms. As a matter of fact, the petroleum
leak and the harm that it caused to the environment and to the residents
of the affected areas is not even questioned by FPIC.
It must be stressed that what is in issue in the instant petition is the
WOPL's compliance with pipeline structure standards so as to make it
fit for its purpose, a question of fact that is to be determined on the
basis of the evidence presented by the parties on the WOPL's actual
state. Hence, Our consideration of the numerous findings and
recommendations of the CA, the DOE, and the amici curiae on the
WOPL' s present structure, and not the cited pipeline incidents as the
dissent propounds.
Consider also the fact that it is the DOE itself that imposed several
conditions upon FPIC for the resumption of the operations of the
WOPL. This, coupled with the submission by the DOE of its proposed
activities and timetable, is a clear and unequivocal message coming
from the DOE that the WOPL's soundness for resumption of and
continued commercial operations is not yet fully determined. And it is
only after an extensive determination by the DOE of the pipeline's
actual physical state through its proposed activities, and not merely
through a short-form integrity audit,56 that the factual issue on the
WOPL's viability can be settled. The issue, therefore, on the pipeline's
structural integrity has not yet been rendered moot and remains to be
subject to this Court's resolution. Consequently, We cannot say that the
DOE's issuance of the certification adverted to equates to the writ of
kalikasan being functus officio at this point.
The dissent is correct in emphasizing that We defer to the findings of
fact of administrative agencies considering their specialized
knowledge in their field. And We, as a matter of fact, acceded to the
DOE' s conclusions on the necessity of the conduct of the various
activities and tests enumerated in Sec. Petilla's letter to this Court
dated August 5, 2014. Hence, Our directive for the DOE to
immediately commence the activities enumerated in said Letter, to
determine the pipeline's reliability, and to order its reopening should
the DOE find that such is proper.
The dissent also loses sight of the fact that the petition not only seeks
the checking of the WOPL's structural integrity, but also prays for the
rehabilitation of the areas affected by the leak, the creation of a special
trust fund, the imposition of liability upon the directors of FPIC,
among others. These issues, undoubtedly, are matters that are not
addressed by the DOE certification alone. Furthermore, these are
issues that no longer relate to the WOPL' s structure but to its
maintenance and operations, as well as to the residues of the incident.
It will, thus, be improper for Us to simply dismiss the petition on the
basis solely of the alleged resolution of only one of several issues,
which purportedly renders the issue on the WOPL' s soundness moot,
without disposing of the other issues presented.
Lastly, any delay in the reopening of the WOPL, if said delay is for the
purpose of making sure that the pipeline is commercially viable, is
better than hastily allowing its reopening without an extensive check
on its structural integrity when experience shows that there were and
may still be flaws in the pipeline. Even the DOE, the agency tasked to
oversee the supply and distribution of petroleum in the country, is well
aware of this and even recommended the checking of the patched
portions of the pipeline, among others. In this regard, the Court deems
it best to take the necessary safeguards, which are not similar to
applying the precautionary principle as previously explained, in order
to prevent a similar incident from happening in the future.
III.
Propriety of the Creation of a Special Trust Fund
Anent petitioners' prayer for the creation of a special trust fund, We
note that under Sec. 1, Rule 5 of the Rules of Procedure for
Environmental Cases, a trust fund is limited solely for the purpose of
rehabilitating or restoring the environment. Said proviso pertinently
provides:
SEC. 1. Reliefs in a citizen suit. - If warranted, the court may grant to
the plaintiff proper reliefs which shall include the protection,
preservation or rehabilitation of the environment and the payment of
attorney's fees, costs of suit and other litigation expenses. It may also
require the violator to submit a program of rehabilitation or restoration
of the environment, the costs of which shall be borne by the violator,
or to contribute to a special trust fund for that purpose subject to the
control of the court. (emphasis supplied)
Furthermore, Sec. 15( e ), Rule 7 of the Rules of Procedure for
Environmental Cases expressly prohibits the grant of damages to
petitioners in a petition for the issuance of a writ of kalikasan, viz:
Section 15. Judgment. - Within sixty (60) days from the time the
petition is submitted for decision, the court shall render judgment
granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
xxxx
(e) Such other reliefs which relate to the right of the people to a
balanced and healthful ecology or to the protection, preservation,
rehabilitation or restoration of the environment, except the award of
damages to individual petitioners.
A reading of the petition and the motion for partial reconsideration
readily reveals that the prayer is for the creation of a trust fund for
similar future contingencies. This is clearly outside the limited purpose
of a special trust fund under the Rules of Procedure for Environmental
Cases, which is to rehabilitate or restore the environment that has
presumably already suffered. Hence, the Court affirms with
concurrence the observation of the appellate court that the prayer is but
a claim for damages, which is prohibited by the Rules of Procedure for
Environmental Cases. As such, the Court is of the considered view that
the creation of a special trust fund is misplaced. The present ruling on
petitioners' prayer for the creation of a special trust fund in the instant
recourse, however, is without prejudice to the judgment/s that may be
rendered in the civil and/or criminal cases filed by petitioners arising
from the same incident if the payment of damages is found warranted.
IV.
Liability of FPIC, FGC and their respective Directors and Officers
On the last issue of the liability of FPIC, FGC and their respective
directors and officers, the CA found FGC not liable under the TEPO
and, without prejudice to the outcome of the civil case (Civil Case No.
11-256, RTC, Branch 58 in Makati City) and criminal complaint
(Complaint-Affidavit for Reckless Imprudence, Office of the
Provincial Prosecutor of Makati City) filed against them, the
individual directors and officers of FPIC and FGC are not liable in
their individual capacities.
The Court will refrain from ruling on the finding of the CA that the
individual directors and officers of FPIC and FGC are not liable due to
the explicit rule in the Rules of Procedure for Environmental cases that
in a petition for a writ of kalikasan, the Court cannot grant the award
of damages to individual petitioners under Rule 7, Sec. 15(e) of the
Rules of Procedure for Environmental Cases. As duly noted by the
CA, the civil case and criminal complaint filed by petitioners against
respondents are the proper proceedings to ventilate and determine the
individual liability of respondents, if any, on their exercise of corporate
powers and the management of FPIC relative to the dire environmental
impact of the dumping of petroleum products stemming from the leak
in the WOPL in Barangay Bangkal, Makati City.
Hence, the Court will not rule on the alleged liability on the part of the
FPIC and FGC officials which can, however, be properly resolved in
the civil and criminal cases now pending against them.
Other Matters
The CA's resolution on petitioners' September 9, 2011 Manifestation
(Re: Current Developments) with Omnibus Motion on the remediation
plan in Barangay Bangkal by directing the Inter-Agency Committee on
Environmental Health to submit its evaluation of the said plan
prepared by CH2M Philippines, Inc., for FPIC to strictly comply with
the stipulations embodied in the permits issued by the DENR, and to
get a certification from the DENR of its compliance thereto is well
taken. DENR is the government agency tasked to implement the state
policy of "maintaining a sound ecological balance and protecting and
enhancing the quality of the environment"57 and to "promulgate rules
and regulations for the control of water, air, and land pollution."58 It is
indubitable that the DENR has jurisdiction in overseeing and
supervising the environmental remediation of Barangay Bangkal,
which is adversely affected by the leak in the WOPL in 2010.
With regard to petitioners' March 29, 2012 Supplemental
Manifestation about a recent possible leak in the pipeline, the CA
appropriately found no additional leak. However, due to the
devastating effect on the environs in Barangay Bangkal due to the
2010 leak, the Court finds it fitting that the pipeline be closely and
regularly monitored to obviate another catastrophic event which will
prejudice the health of the affected people, and to preserve and protect
the environment not only for the present but also for the future
generations to come.
Petitioner's January 10, 2013 Motion for Partial Recommendation of
the CA' s Report need not be discussed and given consideration. As the
CA' s Report contains but the appellate court's recommendation on
how the issues should be resolved, and not the adjudication by this
Court, there is nothing for the appellate court to reconsider.
As to petitioner's October 2, 2013 Motion for Reconsideration with
Motion for Clarification, the matters contained therein have been
considered in the foregoing discussion of the primary issues of this
case. With all these, We need not belabor the other arguments raised by
the parties.
IN VIEW OF THE FOREGOING, the Motion for Partial
Reconsideration is hereby DENIED. The Motion for Reconsideration
with Motion for Clarification is PARTLY GRANTED. The Court of
Appeals' recommendations, embodied in its December 21, 2012
Report and Recommendation, are hereby ADOPTED with the
following MODIFICATIONS:
I. The Department of Energy (DOE) is hereby ORDERED to oversee
the strict implementation of the following activities:
A. Preparatory to the Test Run of the entire stretch of the
WOPL:
1) FPIC shall perform the following:
 a. Continue submission of monitoring charts,
data/reading, accomplishment reports, and
project status for all related activities/works.
Respond to comments and prepare for site
inspection.
b. Continue gas testing along the right-of-way
using the monitoring wells or boreholes. Prepare
for inspection of right-of-way and observation
of gas testing activities on monitoring wells and
boreholes.
c. Explain the process of the selection of
borehole location and identify those located in
pipeline bends, bodies of water, highways,
residential areas, repaired portions of the
pipelines, dents and welded joints, as well other
notable factors, circumstances, or exposure to
stresses. d. Set up additional boreholes and
monitoring wells sufficient to cover the entire
stretch of the WOPL, the number and location
of which shall be determined by the DOE.
e. Continue submitting status report to the
concerned government agency/ies relating to
"Project Mojica," or the on-going pipeline
segment realignment activity being undertaken
by FPIC to give way to a flood control project
of the MMDA in the vicinity of Mojica St. and
Pres. Osmea Highway, and prepare for site
inspection.
2) The DOE shall perform the following undertakings:
a. Conduct onsite inspection of the pipeline
right-of-way, the area around the WOPL and the
equipment installed underground or
aboveground.
b. Review and check the condition of the 22
patches reinforced with Clockspring sleeves by
performing the following:
i. Determine the location of the sleeves
ii. Review the procedure for the repair of
the sleeves
iii. Inspect the areas where the affected
portions of the WOPL are located and
which are easily accessible.
c. Inspect onsite the cathodic protection rectifier
to check the following:
i. old and current readings
ii. the segment/s covered by the cathodic
protection system
iii. review the criteria for prioritization
of corrective action.
d. Observe and witness the running/operation of
the intelligent and cleaning pigs.
e. Check and calibrate the instruments that will
be used for the actual tests on the pipeline, and
 validate the calibration certificates of these
instruments.
B. During the Actual Test Run:
1) FPIC shall perform the following:
a. Perform Cleaning Pig run and witness the
launching and receiving of the intelligent and
cleaning pigs.
b. Demonstrate and observe the various pressure
and leakage tests, including the following:
i. "Blocked-in pressure test" or the
pressure test conducted while all the
WOPL's openings are blocked or closed
off; and
ii. "In-operation test" or the hourly
monitoring of pressure rating after the
pipeline is filled with dyed water and
pressurized at a specified rate.
c. Continue, inspect, and oversee the current gas
monitoring system, or the monitoring of gas
flow from the boreholes and monitoring wells of
the WOPL.
d. Check the mass or volume balance
computation during WOPL test run by
conducting:
i. 30 days baseline data generation
ii. Computational analysis and
monitoring of the data generated.
II. After FPIC has undertaken the activities prescribed in the preceding
paragraph 1, the DOE shall determine if the activities and the results of
the test run warrant the re-opening of the WOPL. In the event that the
DOE is satisfied that the WOPL is safe for continued commercial
operations, it shall issue an order allowing FPIC to resume the
operations of the pipeline.
III. Once the WOPL is re-opened, the DOE shall see to it that FPIC
strictly complies with the following directives:
a. Continue implementation of its Pipeline Integrity
Management System (PIMS), as reviewed by the DOE, which
shall include, but shall not be limited to:
1. the conduct of daily patrols on the entire stretch of
the WOPL, every two hours;
2. continued close monitoring of all the boreholes and
monitoring wells of the WOPL pipeline;
3. regular periodic testing and maintenance based on its
PIMS; and
4. the auditing of the pipeline's mass input versus mass
output;
b. submit to the DOE, within ten (10) days of each succeeding
month, monthly reports on its compliance with the above
directives and any other conditions that the DOE may impose,
the results of the monitoring, tests, and audit, as well as any
and all activities undertaken on the WOPL or in connection
with its operation. The concerned government agencies,
 namely: the Industrial Technology Development Institute
(ITDI) and the Metals Industry Research and Development
Center (MIRDC), both under the Department of Science and
Technology (DOST), the Environmental Management Bureau
(EMB) of the Department of Environment and Natural
Resources (DENR), the Bureau of Design (BOD) of the
Department of Public Works and Highways (DPWH), the
University of the Philippines - National Institute of Geological
Science (UP-NI GS) and University of the Philippines -
Institute of Civil Engineering (UP-ICE), the petitioners,
intervenors and this Court shall likewise be furnished by FPIC
with the monthly reports. This shall include, but shall not be
limited to: realignment, repairs, and maintenance works; and
c. continue coordination with the concerned government
agencies for the implementation of its projects.1wphi1
IV. Respondent FPIC is also DIRECTED to undertake and continue
the remediation, rehabilitation and restoration of the affected Barangay
Bangkal environment until full restoration of the affected area to its
condition prior to the leakage is achieved. For this purpose, respondent
FPIC must strictly comply with the measures, directives and permits
issued by the DENR for its remediation activities in Barangay
Bangkal, including but not limited to, the Wastewater Discharge
Permit and Permit to Operate. The DENR has the authority to oversee
and supervise the aforesaid activities on said affected barangay.
V. The Inter-Agency Committee on Environmental Health under the
City Government of Makati shall SUBMIT to the DENR its evaluation
of the Remediation Plan prepared by CH2M Hill Philippines, Inc.
within thirty (30) days from receipt hereof.
VI. Petitioners' prayer for the creation of a special trust fund to answer
for similar contingencies in the future is DENIED.
SO ORDERED.