ALTERNATIVE DISPUTE

RESOLUTION IN
ENVIRONMENTAL (ADR)
LITIGATION: MEDIATION
AND CONSENT DECREE
JUSTICE OSWALDO D. AGCAOILI
Philippine Judicial Academy
THE NATIONAL TERRITORY
The national territory consists of the
terrestrial domain, the maritime and fluvial
domain, and the aerial domain. The
Philippines claim the insular shelves as part
of its territory
The waters around, between, and
connecting the islands of the archipelago,
regardless of their breadth and dimensions,
form part of the internal waters of the
Philippines. (Art. I, Constitution)
 THE PHILIPPINE ARCHIPELAGO
What is an archipelago?
What are archipelagic waters?
Territorial sea 12 miles from baseline
Contiguous zone 12 miles from outer
limits of territorial sea
Economic zone 200 miles from low-water
mark
Countrys marine biodiversity
Use of marine wealth exclusively

Reserved for Filipinos

PHILIPPINES Projected Maritime Zones

Baselines 1982
UNCLOS
Archipelagic
Waters
Territorial Sea
(12 M)

Contiguous Zone
(24 M)

EEZ (200 M)

Juridical
Continental
Shelf (200 M)
Extended
Continental
Shelf
(Theoretical at
350 M)

NAMRIA SLIDE
UNCLOS Maritime Zones (2D)
Outer Space Outer Space Outer Space Outer Space Outer Space

National International
Airspace Airspace

Archipelagic
Baseline

EEZ 200nm
High Seas

Territorial Sea
(12nm)

Contiguous Zone
(24nm)
The Area

Juridical CS Extended CS
(200nm) (350nm)
ENVIRONMENTAL PROBLEMS

FACTS
Environmental problems deeply imbedded in
socio-economic fabric of nations
Greenhouse gases are expected to cause
permanent increase in temperatures
Climate change also has its pernicious
consequences
 Climate change represents the most serious,
most pervasive environmental threat that the
world faces. The issues are not merely
scientific; climate change spans political,
social and economic dimensions; crosses
national boundaries and reaches beyond the
present generation. It will aggravate the
complex problems of development that we
struggle with today like poverty, food, security
and water availability that threaten to ignite
large-scale political and social upheavals.
 The Philippines ranks No. 12 among 200
countries and territories whose populations are
most at risk from earthquakes, floods, tropical
cyclones and landslides. Greenpeace Southeast
Asia that the entire Philippines is a climate
hotspot as the country is vulnerable to the
worst manifestations of climate change.
 An indicative one-meter rise in sea level
may affect 64 out of 81 provinces, which
cover about 703 of the total 1,610
municipalities, and submerge almost 700
million square meters of land across the
country by 2095 to 2100.
 Extractive industries, such as logging and
mining, have destroyed most of the forests.
High human population density and growth
rate (2.3%) further put enormous pressure. In
turn rainforests have been converted to
agricultural land and plantations to augment
land needed to support a growing population.
In addition, cyanide and dynamite fishing,
along with rapid development in coastal
areas, continue to destroy coral reefs and
mangroves.
GLOBAL WARMING AND
CLIMATE CHANGE
Global warming refers to an increase in
average global temperatures, which in turn
cause climate change. Gases such as carbon
dioxide and methane absorb heat, thus
reducing the amount that escapes back to
space. As the atmosphere absorbs heat energy,
it warms the oceans and the surface of the
Earth. This process is called the greenhouse
effect.
TYPHOONS ONDOY AND
PEPENG
In a matter of ten days, two typhoons
wreaked havoc in northern Philippines.
First, it was typhoon Ondoy on September
26, 2009. Its heavy rainfall drowned Metro
Manila in under 6 hours. Floods rose at an
unusually fast rate, taking only 30 minutes
to reach 6 feet deep.
 Ondoy sent many people on their rooftops
for refuge where they remained for 20 hours
at least before rescue came their way. Some
homes and other means of livelihood were
left beyond repair or recovery. Those
rescued were given temporary shelter in
evacuation centers. Ondoy inflicted damage
estimated at Php15.5 billion. The death toll
reached 688.
 A week later, typhoon Pepeng threatened
to cause further destruction as it headed for
northern Philippines once more. The fierce
winds uprooted many trees, and destroyed
major infrastructures and means of
livelihood. As if this were not enough yet,
Pepeng lingered still for a few days and
caused serious flooding and landslides in La
Union, Benguet and especially Pangasinan.
DEFORESTATION: IMPACT ON
ENVIROMENT

Deforestation contributes to global warming

Trees use carbon dioxide and give off
oxygen in its place which helps create the
optimal balance of gases in the atmosphere
 As more trees are logged for timber or cut
down to make way for farming, however,
there are fewer trees to perform this critical
function
Ultimately, more greenhouse gases means
more infrared radiation trapped which
gradually increases temperature of the
Earths surface
DEFORESTATION: IMPACT ON
ENVIRONMENT
Fragile ecosystems get destroyed
Leads to damaged habitats, loss of
biodiversity
Imbalance in the microenvironment and
aridity
 Regions affected by soil erosion, wastelands
and other naturally growing things
Extinction of rare trees, animals, insects,
flowers
Adversely affects global climate conditions
ADVERSE EFFECTS OF EL
NIO
Dried up farmlands, reservoirs and
waterways
Croplands scorched, parched and cracked

Power deficiency, causing 2-3 hours of of

rotating brownout daily
 Crop damage has reached 3.77
Warm water have killed tons of fish
Steaming temperatures caused fevers in pig
farms
Drought has affected 1.5 million people
LEGAL FRAMEWORK FOR THE
PROTECTION AND PRESERVATION
OF THE ENVIRONMENT

Environmental protection has long been

entrenched and institutionalized in Philippine
institutions and structures. In terms of the
formulation of the legal framework for
environmental protection, the Philippines has
one of the most articulate and most progressive
environmental policies among developing
countries.
 Our Constitution guarantees the right of the
people to a healthy environment which the
Supreme Court has declared, in the landmark
case of Oposa v. Factoran, as a legally
demandable and enforceable right for it
concerns nothing less than self-preservation
and self-perpetuation.
 The protection of the nations marine
wealth in its archipelagic waters and the
institution of measures to prohibit logging
in endangered forest and watershed areas
are the subject of constitutional safeguards
There also exists a panoply of legislative
acts and executive issuances aimed at
implementing these constitutional
provisions.
JUDICIAL REFORMS INITIATIVE

The Supreme Court has taken great strides to

address delays in the resolution of environment
cases, lack of information, stringent
requirements in litigation, and other barriers to
environmental justice. It has actively pushed
for the use of ADR mechanisms, like Court-
Annexed Mediation (CAM) and Judicial
Dispute Resolution (JDR) in promoting
increased access to justice by court litigants.
RULES OF PROCEDURE FOR
ENVIRONMENTAL CASES
On April 13 this year, the Supreme Court en
banc approved the new Rules of Procedure
for Environmental Cases. Considered the
first of its kind in the world, this landmark
rule of procedure in environmental litigation
is a significant catalyst in support of far-
reaching and sweeping reforms in
environmental justice and protection.
 The new Rules implements the power of the
Supreme Court to promulgate rules
concerning the protection and enforcement
of constitutional rights and to provide a
simplified and inexpensive procedure for
the disposition of cases.
SALIENT FEATURES OF NEW
RULES

Lowers threshold on locus standi

Encourages citizens suit

Prescribes use of mediation

Provides for continuous trial

Adopts new writ of kalikasan

Introduces precautionary principle

 Assures speedy disposition of cases
Declogs court dockets

Respects party autonomy

Adopts writ of continuing mandamus

Enables judges to devote more time to more

important, novel, complex cases
Productive of goodwill, non-confrontational
and lasting relationships
PRE-TRIAL CONFERENCES

Rule 3 requires as many pre-trial

conferences as may be necessary to:
Reduce areas of conflict and simplify
issues
Enable parties to settle controversy
ENVIRONMENTAL ISSUES

OIL SPILL
Can the fisherfolk sue for the recovery of the fish
lost?
Can resident sea mammals, like whales, dolphins
and other cetacean species sue an oil exploration
firm for the oil spill?
In case a class suit is authorized, how would the
claimants prove damages and other economic
losses as a result of pollution
Is this mediatable?
OTHER ISSUES
Is the cutting of a single tree inside a private
subdivision without a permit a crime?
Who has the responsibility of cleaning up
the waters of Manila Bay, the polluters or
the government?
Can the City Mayor be enforced by
mandamus to relocate the Pandacan Oil
Depot following the zonification of the area
from industrial to commercial?
 Who has the authority to issue fishing
privileges in the Laguna Bay, the LLDA or
the LGUs?

May the Fiscal file an information for

violation of the law on pollution without a
prior finding by the Pollution Adjudication
Board that the act of the petitioner has
caused pollution?
 Can a judge issue a writ of replevin to
recover a conveyance used in transporting
illegally cut logs which is the subject matter
of DENR administrative forfeiture
proceedings?

Does the mere presence of a person in an

area where he has no registration papers for
a fishing vessel give rise to a presumption
that he or the vessel is engaged in illegal
fishing?
ADR MECHANISMS IN
ENVIRONMENTAL LITIGATION

Court-Annexed Mediation (CAM)

Appellate Court Mediation (ACM)

Judicial Dispute Resolution (JDR)

Mobile Court-Annexed Mediation (MCAM)

Court-Annexed Arbitration (CAA)

SUBMISSION OF DISPUTE TO ADR
Sec. 2(a), Rule 3, requires the parties shall
submit a pre-trial brief stating: whether
they are willing to enter into an amicable
settlement or submit the case to any of the
alternative modes of dispute resolution, or
to refer the case to a panel of experts.
 Section 2(a) is significant in that it requires the
parties to state their willingness to enter into an
amicable settlement. A compromise permits
the parties to make reciprocal concessions,
avoid a litigation or put an end to one already
commenced. Indeed, Section 5, Rule 3,
requires that the judge shall exert best efforts
to persuade the parties to arrive a settlement of
the dispute.
THE PHILIPPINE JUDICIAL
ACADEMY
As the premiere education arm of the Supreme
Court, PHILJA provides an institutionalized,
integrated, progressive, professionalized and
continuing system of education in the country. It
conducts seminars, workshops and other training
programs designed to upgrade the legal
knowledge, moral fitness, probity, efficiency and
capability of members of the Bench, court
personnel, and lawyers aspiring for judicial posts.
 The Supreme Court designated PHILJA as its
component unit for court-referred, court-
related mediation cases and other forms of
Alternative Dispute Resolution (ADR)
mechanisms
PHILJA has established PMC units throughout
the country, and to provide a system for the
recruitment, training, and accreditation of
mediators, monitoring and evaluating their
performance
ADR: CONCEPTS

CAM process of mediation by a mediator

under the auspices of the court
ACM mediation program in the CA

JDR JDR judge employs mediation,

conciliation and early neutral evaluation at pre-
trial stage
MCAM mediation is employed in a mobile
court deployed in a specific area
MEDIATABLE CASES

All civil cases and the civil liability in

criminal cases covered by the Rule on
Summary Procedure
Special proceedings for the settlement of
estates
Civil and criminal cases filed with a
certificate to file action issued by Punong
Barangay or the Pangkat ng
Tagapagkasundo
 Civil aspect of less grave felonies
punishable by correctional penalties not
exceeding 6 years of imprisonment where
the offended party is a private person;
Civil aspect of estafa, theft and libel
CAM: IMPLEMENTING
PROCEDURE
CAM at the start of the pre-trial
conference, judge shall inquire from the
parties if they have settled their dispute. If
not, he shall refer the parties or their
counsel, if authorized by their clients, to the
PMC unit or, if not available, to the clerk of
court or legal researcher for mediation.
 The chosen mediator shall explain to the
parties the mediation process, stressing the
benefits of an early settlement of their
dispute based on mutual interests rather
than on the legal positions taken by them.
Mediator has 30 days to complete
mediation, extendible for 30 days.
 If full settlement is reached, the parties,
assisted by counsel, shall draft the
compromise agreement to be submitted to
the court for appropriate action.
If no settlement is reached, the case must
be returned to the referring judge (or the
JDR judge) for further proceedings.
CAM STATISTICAL REPORT

Example: For the settlement period directed

by the SC from Nov. to Dec. of 2008,
26,422 cases were referred to CAM by 857
courts in 20 sites (including Rizal through
MCAM). 485 Mediators participated
during the settlement period. Out of the
26,422 cases, 19,784 cases underwent
mediation proceedings or an acceptance rate
of 74.88%.
 10,800 were successfully mediated, or a
success rate of 69.28%.
Thus, 10,800 cases were taken out of the
857 court dockets in 20 sites.
Effectively, an average of 12 cases was
removed from the docket of each court
during settlement period (Nov. to Dec.
2008)
 CAM STATISTICAL REPORT FROM 2002 TO 2009
(Regular and Settlement Periods)
Numbe
YEAR r of
Number of
Number Number of Cases Unsucc
Successful Success Rate
of Cases Mediated essful
Mediation
Referred Mediati
on

2002 4,118 3,559 3,000 559 84.29%

2003 4,246 3,097 2,410 687 77.82%

2004 20,277 7,490 5,899 1,591 78.76%

2005 25,745 11,717 7,626 4,091 65.08%

2006 21,911 13,050 8,159 4,891 62.52%

2007 38,816 20,145 13,633 6,512 67.67%

2008 62,678 45,684 29,148 16,536 63.80%

2009 49,702 31,225 19,406 11,819 62.15%

TAL 226,793 135,967 89,281 46,686 65.66%

MCAM STATISTICAL REPORT

For 2008, 7,408 cases were referred for

mediation, 4,187 were successfully
mediated, or a success rate of 91.12%.
For 2009, 3,364 cases were referred for
mediation, 2,023 were successfully
mediated, or a success rate of 91.75%.
 MCAM STATISTICAL REPORT
FROM 2007 TO 2009
(Regular and Settlement Periods)

Number of
Number of Number of Number of
Unsuccessf Success
YEAR Cases Cases Successful
ul Rate
Referred Mediated Mediation
Mediation

2007 1,107 760 667 93 87.76%

2008 7,408 4,595 4,187 408 91.12%

2009 3,364 2,205 2,023 182 91.75%

TOTA
L 11,879 7,560 6,877 683 90.97%
JDR: IMPLEMENTING
PROCEDURE

JDR - is conducted by a judge after parties

fail to settle during CAM by a mediator.
JDR proceedings are conducted in 30 days
for first level courts (Municipal Trial Court,
Municipal Circuit Trial Courts, Municipal
Trial Courts in Cities, Metropolitan Trial
Courts) and 60 days for second level courts.
JDR: IMPLEMENTING
PROCEDURE
Following the return of the case not settled
through CAM or MCAM, the judge to whom
the case was raffled, issues an order requiring
the parties to appear on a specified date.
The JDR judge becomes a mediator,
conciliator or neutral evaluator.
Early neutral evaluation is usually conducted
during private caucus
JDR: IMPLEMENTING
PROCEDURE

JDR judge focuses on interests and

motivation of parties and not their demands
and positions.
If full settlement is reached, the parties,
assisted by counsel, drafts compromise
agreement to be submitted to the court for
appropriate action.
JDR STATISTICAL REPORT

Example: During the settlement period from

Nov. to Dec. 2008, 1,420 cases already in
the trial stage were referred by 143 courts
for JDR. 1,094 cases underwent JDR, 213
cases were successfully mediated, or a
success rate of 19.47%. Thus, of the 143
courts, an average 2 cases were out of
docket per court in 2 months.
 JDR STATISTICAL REPORT
FROM 2004 TO 2009
(Regular and Settlement Periods)
Number Number Number of
Number of
of Cases of Unsuccessf
YEAR Cases Success Rate
Mediate Successful ul
Referred
d Mediation Mediation

2004 22 22 15 7 68.18%

2005 487 487 205 282 42.09%

2006 1,437 1,171 454 717 38.77%

2007 6,370 3,982 1,660 2,322 41.69%

2008 8,569 5,447 2,010 3,437 36.90%

2009 5,727 3,470 1,487 1,983 42.85%

TOTAL 22,612 14,579 5,831 8,748 40.00%

 CAMStatisticalReportfor2008and2009

Total
Total Total
Number Of
Number of Number of Success
Year Cases
Cases Successful Rate
Referred to
Mediated Mediation
Mediation

2008* 70,086 50,279 33,335 66%

2009 53,066 33,430 21,429 64%

* IncludesSettlementPeriodStats(NovtoDec)
 MCAMStatisticalReportfor2008and2009

Total
Total Total
Number Of
Number of Number of Success
Year Cases
Cases Successful Rate
Referred to
Mediated Mediation
Mediation

2008* 7,408 4,595 4,187 91%

2009 3,364 2,205 2,023 92%

* IncludesSettlementPeriodStats(NovtoDec)
CONSENT DECREE

Consent decree - refers to a judicially-approved

settlement between concerned parties based on
public interest and public policy to protect and
preserve the environment.
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. (Sec. 5, Rule 3)
CONSENT DECREE

Advantages
Encourages the parties to come up with a
comprehensive, mutually-acceptable solution
to environmental problems
It is open to public scrutiny
Allows the parties to address issues other than
those presented to the court
Is subject to judicial approval and hence
judicially enforceable
 CONCLUSION
THE
VALUE OF A
LOWLY BOND
PAPER
 CONCLUSION
Environmental protection is not only a legal issue; it
is a moral, ethical and spiritual concern of ALL.