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Environmental Law: Chapter 3 and 4

To: Atty. M. Mikhail Lee L. Maxino, Envi. Law Professor

From: Nubbin Paul C. Lagumbay, JD-III

Earth, give me back your pure gifts,

the towers of silence which rose
from the solemnity of their roots.
I want to go back to being what I have not been,
and learn to go back from such deeps
that amongst all natural things
I could live or not live; it does not matter
to be one stone more, the dark stone,
the pure stone which the river bears away.

~ from SELECTED POEMS OF PABLO NERUDA

The importance of our environment cannot be

underemphasized. For evident reasons, everything that supports
the survival of human beings is dependent on environment. It is
simply the only home of mankind, making it the most important
aspect in life. Wellness of the environment directly relates to the
wellness and health in human beings and every other species. In
addition, the environment provides remarkable beauty. 1

Right to a Balanced and Healthful Ecology

1 Why is the environment so important?, Reference,

https://www.reference.com/science/environment-important-57d187dd869aca9e# (last visited Feb 5,
2017).
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Henceforth as a testament to environments importance,

entrenched in 1987 Philippine Constitution, Article II, Section 16,
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.
In interpreting these provisions, the Supreme Court
recognized the primacy and centrality of the right to ecological
security and health among the many rights assured by the
Constitution.2 The court in landmark case of Oposa vs. Factoran3
said that:
While the right to a balanced and healthful
ecology is to be found under the Declaration of
Principles and State Policies and not under the
Bill of Rights, it does not follow that it is less
important than any of the civil and political
rights enumerated in the latter. Such a right
belongs to a different category of rights
altogether for it concerns nothing less than self-
preservation and self-perpetuation aptly and
fittingly stressed by the petitioners the
advancement of which may even be said to
predate all governments and constitutions. As a
matter of fact, these basic rights need not even
be written in the Constitution for they are
assumed to exist from the inception of
humankind. If they are now explicitly mentioned
in the fundamental charter, it is because of the
well-founded fear of its framers that unless the

2 Antonio Gabriel Maestrado La Via, THE RIGHT TO A BALANCED AND HEALTHFUL

ECOLOGY: THE ODYSSEY OF A CONSTITUTIONAL POLICY, Philippine Law Journal, volume 69
number 2 -02., p. 134.

3 Oposa vs. Factoran, G.R. No. 101083, July 30, 1993

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rights to a balanced and healthful ecology and

to health are mandated as state policies by the
Constitution itself, thereby highlighting their
continuing importance and imposing upon the
state a solemn obligation to preserve the first
and protect and advance the second, the day
would not be too far when all else would be lost
not only for the present generation, but also for
those to come generations which stand to
inherit nothing but parched earth incapable of
sustaining life.

Environmentalist Atty. Antonio G.M. La Via observes that

the constitutional right to a sound and healthful ecology is a self-
executory and actionable right, independent of specific legal
rights. It would, however, be imprudent on the part of
environmentalists or communities to rely on this right alone as a
basis for legal action.4
Based on the foregoing, I would like to highlight 2 important
views. First, the right to balanced and healthy ecology is a
constitutionally protected and mandated right. Second, though
such is a self-executory right, the state has the solemn obligation
to have a proactive approach in protecting the environment, such
as, crafting specific statutes and its rules and regulations

Right to Clean Air

Republic Act No. 8749, otherwise known as the Philippine

Clean Air Act of 1999, is a comprehensive air quality management
4 La Via, Right of Balanced Ecology, p. 137.
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policy and program which aims to achieve and maintain healthy

air for all Filipinos. The Clean Air Act is a milestone piece of
legislation that consolidates scattered rules and regulations on air
quality into a single law.5
Sec. 4 of the said act provides that the rights of citizens are
hereby sought to be recognized and the State shall seek to
guarantee their enjoyment: (a) The right to breathe clean air.
To this end, the law mandates, among others, to: (1) all
potential sources of air pollution (mobile, point, and area sources)
to comply with the provisions of the law. All emissions must be
within the air quality standards; (2) Improve fuel quality to reduce
or eliminate lead in gasoline and sulfur in diesel; (3) Reduce traffic
congestion and improving traffic flow; (4) Strengthen quality
monitoring, evaluation and reporting through hi-tech equipment;
and (5) Prevent other sources of pollution such as incinerators,
garbage burning and smoking.
On top of all is the so-called "polluters must pay" principle. 6
Meaning that those who produce pollution should bear the costs
of managing it to prevent damage to human health or the
environment. For instance, a factory that produces a potentially
poisonous substance as a byproduct of its activities is usually held
responsible for its safe disposal.7

5 Antonio A Oposa, Jr., A Legal Arsenal For The Philippine Environment, p. 511.

6 RA 8749, Sec. 2.

7 Duncan Clark, What is the 'polluter pays' principle? The ultimate climate change FAQ (2012),
https://www.theguardian.com/environment/2012/jul/02/polluter-pays-climate-change (last visited Feb 5,
2017).
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While the law is laudable in principle, the enforcement or

implementation, as always, is the main challenge.
In 2015, the air quality situation in the National Capital
Region in the first quarter of 2015 is even worse than it was at the
end of 2014, according to the data released by Department of
Environment and Natural Resources' Environmental Management
Bureau (DENR-EMB).
In the presentation made by DENR-EMB, air pollutant
concentration in the National Capital Region reached 130
micrograms per normal cubic meter (g/Ncm) in terms of total
suspended particulates (TSP), up from 106 g/Ncm at year's end
in 2014. The maximum safe level of air pollutant concentration is
90 g/Ncm.
The vehicles were identified as the top pollutant. According
to the partial results of the National Emissions Inventory in 2012,
71 percent of air pollution comes from "mobile sources"in other
words, vehicles on the road. This number is even higher in the
National Capital Region (NCR) where 85 percent of air pollution
comes from vehicles.
The rest of the country's pollutants come from stationary
sources such as buildings or immobile structures that emit air
pollutants and area sources such as construction activities and
unpaved roadways. 8

8 GMA News and Public Affairs, Metro Manilas air quality even worse this year data GMA News
Online, http://www.gmanetwork.com/news/story/509142/lifestyle/healthandwellness/metro-manila-s-air-
quality-even-worse-this-year-data (last visited Feb 5, 2017).
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This only goes to show that after 18 years since the enactment of
clean air act, we are still far from attaining the laws ideals.
The people must exercise discipline and vigilance while the
government must be serious in treating the air problems in this
country. Without cooperation between the people and
government, I register my doubts in a clean air Philippines.
While the end may still be far, I think we should never waive
hope, much so when more is at stake.
According to the US Environmental Protection Agency,
particulate matter (PM) small enough to be inhaled include gases
emitted from motor vehicles, and "can affect the heart and lungs
and cause serious health effects."
This pollution, particularly from PM that can find its way deep
into lungs, is to blame for 3.2 million preventable deaths every
year, according to the World Health Organization (WHO). 9
If we neglect in taking care of our environment now
particularly our air, we may be riddled with airborne diseases. It
would perhaps be more prudent to act now than regret later.
Sooner or later, we will have to recognise that the Earth has
rights, too, to live without pollution. What mankind must know is
that human beings cannot live without Mother Earth, but the
planet can live without humans.
- Evo Morales, Bolivian
President.

9 Id.
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WATERS

The life of the law has not been logic: it has been
experience, as the celebrated Justice Oliver Holmes remind us. In
a matter of perspective, laws address the current affairs of the
society. In other words, laws react to facts.
In the interest of order, I would like to submit some facts first
concerning water conditions in the world, in general and in the
Philippines, in particular.
United Nations Environment Program reports around 3.4
million people die every year from water-borne ailments such as
cholera, typhoid, some types of hepatitis and diarrheal diseases.
Every 21 seconds, a child dies globally from water-related
illnesses, international non-profit organization Water.org
estimated.
The agency estimated that 164 million people were at risk of
water-borne diseases in Africa, 134 million in Asia and 25 million
in Latin America.
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The rise is driven by factory waste, runoff from fertilisers and

pesticides used in agriculture, as well as an increase in untreated
sewage discarded into rivers and lakes, the report adds. 10

Courtesy of Rappler

10 Millions at risk from rising water pollution UN, Rappler, http://www.rappler.com/science-

nature/environment/144698-millions-risk-rising-water-pollution-un (last visited Feb 5, 2017).
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Particularly, in the Philippines, only 6 out of 115 Philippine

cities have sewerage systems, 31 percent of all reported illness
are caused by water-born sources.
Nearly 22.2 million metric tons of organic pollution are
produced annually by domestic (48%), agricultural (37%) and
industrial (15%) sectors; up to 58% of groundwater for drinking is
contaminated with coliform bacteria, according to Lisa Kircher
Lumbao, project manager of the USAID-funded LINAW project.
"More than 90% of the sewage generated is not disposed or
treated in an environmentally acceptable manner. Septic tanks
alone are not environmentally acceptable. In Asian cities, Metro
Manila ranks second to the lowest in providing piped sewerage
system. Only 7% of the population of Metro Manila is connected to
a piped sewerage system and only a few households have
acceptable effluent from their septic tanks, the report
continues.11
As a consequence, the Philippines once known to be
relatively abundant in water resources. However due to the
pressures of population growth, urbanization, and industrialization
placed a toll on the resources such as water. Serious concerns
mount up regarding watershed degradation and unmonitored
extraction of groundwater by illegal users. 12
11 Amada T. Valino, Disturbing facts about water pollution philstar.com,
http://www.philstar.com/agriculture/270177/disturbing-facts-about-water-pollution (last visited Feb 5,
2017).

12 The Clean Water Act Law of the Philippines: The Use of Incentives to Promote Investments |
AECEN, The Clean Water Act Law of the Philippines: The Use of Incentives to Promote Investments |
AECEN, http://www.aecen.org/good-practices/clean-water-act-law-philippines-use-incentives-promote-
investments (last visited Feb 5, 2017).
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In response to these pressing concerns, Republic Act No.

9275 or the Philippine Clean Water Act of 2004, an act providing
for a comprehensive water quality management and for other
purposes was enacted.
Section 2 of the said law provides 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. To achieve this end, the framework
for sustainable development shall be pursued.
This law, further, aims to promote and encourage the
protection of the countrys water resources. To fully encourage
local governments, water districts, communities, and the private
sector to partake in efforts on reducing water pollution, provisions
on incentives are provided for in the law. 13
Clean Water Act creates specialized management areas with
local governing boards, while solid waste management remains
primarily a local government concern.14
While the delegation of powers and duties of the law are
commendable there are certain issues as to its enforcement.
Environmental Management Bureau (EMB) reports that in
terms of enforcement of existing regulations, key challenges are
discernible, to wit:
Transition problems in the transformation of EMB towards

13 Id.

14 Greenpeace Philippines, The state of water in the Philippines, p. 41.

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becoming a line agency;

Overlapping authorities as a result of the creation of multi-
sectoral environmental bodies; and
Devolution of responsibility for waste management to local
governments
that lack capacity.
Moreover, with regard to compliance monitoring, EMB has
full legal authority and a complete array of regulatory instruments
for a comprehensive enforcement strategy.
However, excerpts from the Philippine Country Assessment:
Enforcement and Compliance Program by EMB presents the
following findings:

A recent study assessing environmental

enforcement and compliance reported that the
EMB is able to monitor and inspect only about
one-quarter of the regulated establishments in
its database. This number is estimated to be less
than five percent of total registered industrial
establishments nationwide.

Various factors have contributed to delay of the

enforcement process. These factors include the
uneven implementation of inspection, the
involvement of regional enforcers in other tasks,
the ambiguous guidelines on the duration of the
permit to operate (PTO), the practice of
unannounced visits, and the resistance of firms
to inspection and other regulatory processes.

In addition, according to the report of EMB, each year, DENR

sets targets to be achieved within the year, and are assessed at
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the end of each year. Oftentimes, unit reports would show that
achievements are either close to or even exceed the targets.
However, scientific studies continue to show the worsening
pollution problem in the country, which, according to the report,
suggests that the data the agency is gathering are not the
appropriate indicators for efficiency and success.
Thus, as previously stated, endeavor to effectively
implement laws should be the ultimate goal.
While there is a need to address limitations on existing
standards for water
quality and effluents to ensure that all types of pollutants are
taken into consideration, enforcement issues seem to be another
big issue that is greatly influenced by institutional concerns rather
than the absence or limitation of existing policies.
However, it goes to show that the better policy should
perhaps be pollution prevention rather than mere regulations
which, although present and, on paper, presumably adequate,
prove to be very difficult for involved government agencies to
enforce.15
Imagine a world where a liter of water costs two or three
times as much as a liter of gasoline because our water supply has
become so poisoned that there are very few sources of freshwater
left.
The pollution of the worlds freshwater supply is already
happening at an alarming rate, and if we do not take measures to
15 Id, 42-43.
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stop whats happening, we could be facing a water scarcity crisis

very soon.16

16 The problem, Greenpeace Philippines, http://www.greenpeace.org/seasia/ph/What-we-

do/Toxics/Water-Patrol/The-problem/ (last visited Feb 5, 2017).