Republic of the Philippines

SUPREME COURT (c) The environmental law, rule or regulation violated or threatened to be violated, the
Manila 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.
A.M. No. 09-6-8-SC
(d) All relevant and material evidence consisting of the affidavits of witnesses,
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES documentary evidence, scientific or other expert studies, and if possible, object
evidence;
RESOLUTION
(e) The certification of petitioner under oath that: (1) petitioner has not commenced any
Acting on the recommendation of the Chairperson of the Sub-committee on the Rules action or filed any claim involving the same issues in any court, tribunal or quasi-judicial
of Procedure for Environmental Cases submitting for this Court’s consideration and agency, and no such other action or claim is pending therein; (2) if there is such other
approval the proposed Rules of Procedure for Environmental Cases, the Court Resolved pending action or claim, a complete statement of its present status; (3) if petitioner
to APPROVE the same. 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
These Rules shall take effect within fifteen (15) days following its publication once in a
newspaper of general circulation. (f) The reliefs prayed for which may include a prayer for the issuance of a TEPO.

April 13, 2010. Section 3. Where to file. - The petition shall be filed with the Supreme Court or with any
XXX of the stations of the Court of Appeals.

PART III Section 4. No docket fees. - The petitioner shall be exempt from the payment of docket
SPECIAL CIVIL ACTIONS fees.

Section 5. Issuance of the writ. - Within three (3) days from the date of filing of the
RULE 7 petition, if the petition is sufficient in form and substance, the court shall give an order:
WRIT OF KALIKASAN (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
Section 1. Nature of the writ. - The writ is a remedy available to a natural or juridical of the court including the issuance of a cease and desist order and other temporary
person, entity authorized by law, people’s organization, non-governmental organization, reliefs effective until further order.
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 Section 6. How the writ is served. - The writ shall be served upon the respondent by a
violated, or threatened with violation by an unlawful act or omission of a public official court officer or any person deputized by the court, who shall retain a copy on which to
or employee, or private individual or entity, involving environmental damage of such make a return of service. In case the writ cannot be served personally, the rule on
magnitude as to prejudice the life, health or property of inhabitants in two or more cities substituted service shall apply.
or provinces.
Section 7. Penalty for refusing to issue or serve the writ. - A clerk of court who unduly
Section 2. Contents of the petition. - The verified petition shall contain the following: 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
(a) The personal circumstances of the petitioner; for contempt without prejudice to other civil, criminal or administrative actions.

(b) The name and personal circumstances of the respondent or if the name and personal Section 8. Return of respondent; contents. - Within a non-extendible period of ten (10)
circumstances are unknown and uncertain, the respondent may be described by an days after service of the writ, the respondent shall file a verified return which shall
assumed appellation; contain all defenses to show that respondent did not violate or threaten to violate, or

1
allow the violation of any environmental law, rule or regulation or commit any act Section 12. Discovery Measures. - A party may file a verified motion for the following
resulting to environmental damage of such magnitude as to prejudice the life, health or reliefs:
property of inhabitants in two or more cities or provinces.
(a) Ocular Inspection; order — The motion must show that an ocular inspection order is
All defenses not raised in the return shall be deemed waived. 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
The return shall include affidavits of witnesses, documentary evidence, scientific or detail the place or places to be inspected. It shall be supported by affidavits of witnesses
other expert studies, and if possible, object evidence, in support of the defense of the having personal knowledge of the violation or threatened violation of environmental
respondent. law.

A general denial of allegations in the petition shall be considered as an admission After hearing, the court may order any person in possession or control of a designated
thereof. land or other property to permit entry for the purpose of inspecting or

Section 9. Prohibited pleadings and motions. - The following pleadings and motions are photographing the property or any relevant object or operation thereon.
prohibited:
The order shall specify the person or persons authorized to make the inspection and the
(a) Motion to dismiss; date, time, place and manner of making the inspection and may prescribe other
conditions to protect the constitutional rights of all parties.
(b) Motion for extension of time to file return;
(b) Production or inspection of documents or things; order – The motion must show that
(c) Motion for postponement; 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
(d) Motion for a bill of particulars; provinces.

(e) Counterclaim or cross-claim; After hearing, the court may order any person in possession, custody or control of any
designated documents, papers, books, accounts, letters, photographs, objects or
(f) Third-party complaint; 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,
(g) Reply; and copying or photographing by or on behalf of the movant.

(h) Motion to declare respondent in default. 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
Section 10. Effect of failure to file return. - In case the respondent fails to file a return, and may prescribe other conditions to protect the constitutional rights of all parties.
the court shall proceed to hear the petition ex parte.
Section 13. Contempt. - The court may after hearing punish the respondent who refuses
Section 11. Hearing. - Upon receipt of the return of the respondent, the court may call a or unduly delays the filing of a return, or who makes a false return, or any person who
preliminary conference to simplify the issues, determine the possibility of obtaining disobeys or resists a lawful process or order of the court for indirect contempt under
stipulations or admissions from the parties, and set the petition for hearing. Rule 71 of the Rules of Court.

The hearing including the preliminary conference shall not extend beyond sixty (60) days Section 14. Submission of case for decision; filing of memoranda. - After hearing, the
and shall be given the same priority as petitions for the writs of habeas corpus, amparo court shall issue an order submitting the case for decision. The court may require the
and habeas data. 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.

2
Section 15. Judgment. - Within sixty (60) days from the time the petition is submitted for the petition concerns an environmental law, rule or regulation, and praying that
decision, the court shall render judgment granting or denying the privilege of the writ of judgment be rendered commanding the respondent to do an act or series of acts until
kalikasan. 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
The reliefs that may be granted under the writ are the following: regulations. The petition shall also contain a sworn certification of non-forum shopping.

(a) Directing respondent to permanently cease and desist from committing acts or Section 2. Where to file the petition. - The petition shall be filed with the Regional Trial
neglecting the performance of a duty in violation of environmental laws resulting in Court exercising jurisdiction over the territory where the actionable neglect or omission
environmental destruction or damage; occurred or with the Court of Appeals or the Supreme Court.

(b) Directing the respondent public official, government agency, private person or entity Section 3. No docket fees. - The petitioner shall be exempt from the payment of docket
to protect, preserve, rehabilitate or restore the environment; fees.

(c) Directing the respondent public official, government agency, private person or entity Section 4. Order to comment. - If the petition is sufficient in form and substance, the
to monitor strict compliance with the decision and orders of the court; 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
(d) Directing the respondent public official, government agency, or private person or respondents in such manner as the court may direct, together with a copy of the petition
entity to make periodic reports on the execution of the final judgment; and and any annexes thereto.

(e) Such other reliefs which relate to the right of the people to a balanced and healthful Section 5. Expediting proceedings; TEPO. - The court in which the petition is filed may
ecology or to the protection, preservation, rehabilitation or restoration of the 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.
environment, except the award of damages to individual petitioners.
Section 6. Proceedings after comment is filed. - After the comment is filed or the time
Section 16. Appeal. - Within fifteen (15) days from the date of notice of the adverse for the filing thereof has expired, the court may hear the case which shall be summary
judgment or denial of motion for reconsideration, any party may appeal to the Supreme in nature or require the parties to submit memoranda. The petition shall be resolved
Court under Rule 45 of the Rules of Court. The appeal may raise questions of fact. without delay within sixty (60) days from the date of the submission of the petition for
resolution.
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 Section 7. Judgment. - If warranted, the court shall grant the privilege of the writ of
administrative actions. 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
RULE 8 from the wrongful or illegal acts of the respondent. The court shall require the
WRIT OF CONTINUING MANDAMUS 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
Section 1. Petition for continuing mandamus. - When any agency or instrumentality of comments or observations on the execution of the judgment.
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 Section 8. Return of the writ. - The periodic reports submitted by the respondent
connection with the enforcement or violation of an environmental law rule or regulation detailing compliance with the judgment shall be contained in partial returns of the writ.
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 Upon full satisfaction of the judgment, a final return of the writ shall be made to the
law, the person aggrieved thereby may file a verified petition in the proper court, court by the respondent. If the court finds that the judgment has been fully
alleging the facts with certainty, attaching thereto supporting evidence, specifying that implemented, the satisfaction of judgment shall be entered in the court docket.

3
 EN BANC
G.R. No. 209271, July 26, 2016
INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH APPLICATIONS,
INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT
SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO
CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III,
CATHERINE UNTALAN, ATTY, MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY
MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY
ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR
EDWARD S. HAGEDORN, AND EDWIN MARTHINE LOPEZ, RESPONDENTS. CROP LIFE
PHILIPPINES, INC., Petitioner-In-Intervention.
G.R. NO. 209276
ENVIRONMENTAL MANAGEMENT BUREAU OF THE DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES, BUREAU OF PLANT INDUSTRY AND THE FERTILIZER AND
PESTICIDE AUTHORITY OF THE DEPARTMENT OF AGRICULTURE, Petitioners, v. COURT
OF APPEALS, GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT
SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO
CASINO, DR. BEN MALAYANG III, DR, ANGELINA GALANG, LEONARDO AVILA HI,
CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY
MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY
ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR
EDWARD S. HAGEDORN, AND EDWIN MARTHINE LOPEZ, RESPONDENTS. CROP LIFE
PHILIPPINES, INC., Petitioner-In-Intervention.
G.R. NO. 209301
UNIVERSITY OF THE PHILIPPINES LOS BAÑOS FOUNDATION, INC.,. Petitioner, v.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES) MAGSASAKA AT SIYENTIPIKO SA
PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN
MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN,
ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO
QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY L. ROQUE, JR., FORMER SEN.
ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN, AND
EDWIN MARTHINE LOPEZ, Respondents.
G.R. NO. 209430
UNIVERSITY OF THE PHILIPPINES LOS BAÑOS, Petitioner, v. GREENPEACE SOUTHEAST
ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR.
ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ
LUNA, JUANITO MODINA, DAGOROY MAGAWAY, DR. ROMEO QUIJANO, DR.
WENCESLAO KIAT, JR., ATTY. H. HARRY L. ROQUE, JR., FORMER SEN. ORLANDO
MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN, AND
PROMULGATED: EDWIN MARTHINE LOPEZ, Respondent.
RESOLUTION
PERLAS-BERNABE, J.:
Before the Court are nine (9) Motions for Reconsideration1 assailing the Decision2 dated
December 8, 2015 of the Court (December 8, 2015 Decision), which upheld with
modification the Decision3 dated May 17, 2013 and the Resolution4 dated September
20, 2013 of the Court of Appeals (CA) in CA-G.R. SP No. 00013.
The Facts
The instant case arose from the conduct of field trials for "bioengineered eggplants,"
known as Bacillus thuringiensis (Bt) eggplant (Bt talong), administered pursuant to the
Memorandum of Undertaking5 (MOU) entered into by herein petitioners University of
the Philippines Los Banos Foundation, Inc. (UPLBFI) and International Service for the
Acquisition of Agri-Biotech Applications, Inc. (ISAAA), and the University of the
Philippines Mindanao Foundation, Inc. (UPMFI), among others. Bt talong contains the
crystal toxin genes from the soil bacterium Bt, which produces the Cry1Ac protein that
is toxic to target insect pests. The Cry1Ac protein is said to be highly specific to
lepidopteran larvae such as the fruit and shoot borer, the most destructive insect pest
to eggplants.6
From 2007 to 2009, petitioner University of the Philippines Los Baiios (UPLB), the
implementing institution of the field trials, conducted a contained experiment on Bt
talong under the supervision of the National Committee on Biosafety of the Philippines
(NCBP).7 The NCBP, created under Executive Order No. (EO) 430,8 is the regulatory body
tasked to: (a) "identify and evaluate potential hazards involved in initiating genetic
engineering experiments or the introduction of new species and genetically engineered
organisms and recommend measures to minimize risks"; and (b) "formulate and review
national policies and guidelines on biosafety, such as the safe conduct of work on genetic
engineering, pests and their genetic materials for the protection of public health,
environment[,] and personnel^] and supervise the implementation thereof."9 Upon the
completion of the contained experiment, the NCBP issued a Certificate10 therefor
stating that all biosafety measures were complied with, and no untoward incident had
occurred.11
4
On March 16, 2010 and June 28, 2010, the Bureau of Plant Industries (BPI) issued two
(2)-year Biosafety Permits12 for field testing of Bt talong13 after UPLB's field test On July 10, 2012, the Court issued a Resolution30 referring the case to the Court of
proposal satisfactorily completed biosafety risk assessment for field testing pursuant to Appeals for acceptance of the return of the writ and for hearing, reception of evidence,
the Department of Agriculture's (DA) Administrative Order No. 8, series of 200214 (DAO and rendition of judgment.31 In a hearing before the CA on August 14, 2012, UPLB was
08-2002),15 which provides for the rules and regulations for the importation and release impleaded as a party to the case and was furnished by respondents a copy of their
into the environment of plants and plant products derived from the use of modern petition. Consequently the CA directed UPLB to file its comment to the petition32 and,
biotechnology.16 Consequently, field testing proceeded in approved trial sites in North on August 24, 2012, UPLB filed its Answer33 adopting the arguments and allegations in
Cotabato, Pangasinan, Camarines Sur, Davao City, and Laguna.17 the verified return filed by UPLBFI. On the other hand, in a Resolution34 dated February
13, 2013, the CA discharged UPMFI as a party to the case pursuant to the Manifestation
On April 26, 2012, respondents Greenpeace Southeast Asia (Philippines) (Greenpeace), and Motion filed by respondents in order to expedite the proceedings and resolution of
Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura (MASIPAG), and others the latter's petition.
(respondents) filed before the Court a Petition for Writ of Continuing Mandamus and
Writ of Kalikasan with Prayer for the Issuance of a Temporary Environmental Protection The CA Ruling
Order (TEPO)18 (petition for Writ of Kalikasan) against herein petitioners the
Environmental Management Bureau (EMB) of the Department of Environment and In a Decision35 dated May 17, 2013, the CA ruled in favor of respondents and directed
Natural Resources (DENR), the BPI and the Fertilizer and Pesticide Authority (FPA) of the petitioners to permanently cease and desist from conducting the Bt talong field trials.36
DA, UPLBFI, and ISAAA, and UPMFI, alleging that the Bt talong field trials violated their At the outset, it did not find merit in petitioners' contention that the case should be
constitutional right to health and a balanced ecology considering, among others, that: dismissed on the ground of mootness, noting that the issues raised by the latter were
(a) the Environmental Compliance Certificate (ECC), as required by Presidential Decree "capable of repetition yet evading review" since the Bt talong field trial was just one of
No. (PD) 1151,19 was not secured prior to the field trials;20 (b) the required public the phases or stages of an overall and bigger study that is being conducted in relation to
consultations under the Local Government Code (LGC) were not complied with;21 and the said genetically-modified organism37 It then held that the precautionary principle
(c) as a regulated article under DAO 08-2002, Bt talong is presumed harmful to human set forth under Section I,38 Rule 20 of the Rules of Procedure for Environmental Cases39
health and the environment, and that there is no independent, peer-reviewed study is relevant, considering the Philippines' rich biodiversity and uncertainty surrounding the
showing its safety for human consumption and the environment.22 Further, they safety of Bt talong. It noted the possible irreversible effects of the field trials and the
contended that since the scientific evidence as to the safety of Bt talong remained introduction of Bt talong to the market, and found the existing regulations issued by the
insufficient or uncertain, and that preliminary scientific evaluation shows reasonable DA and the Department of Science and Technology (DOST) insufficient to guarantee the
grounds for concern, the precautionary principle should be applied and, thereby, the safety of the environment and the health of the people.40
field trials be enjoined.23
Aggrieved, petitioners separately moved for reconsideration.41 However, in a
On May 2, 2012, the Court issued24 a Writ of Kalikasan against petitioners (except Resolution42 dated September 20, 2013, the CA denied the same and remarked that
UPLB25cralawred) and UPMFI, ordering them to make a verified return within a non- introducing genetically modified plant into the ecosystem is an ecologically imbalancing
extendible period often (10) days, as provided for in Section 8, Rule 7 of the Rules of act.43 Anent UPLB's argument that the Writ of Kalikasan violated its right to academic
Procedure for Environmental Cases.26 Thus, in compliance therewith, ISAAA, freedom, the CA emphasized that the writ did not stop the research on Bt talong but
EMB/BPI/FPA, UPLBFI, and UPMFI27 filed their respective verified returns,28 and only the procedure employed in conducting the field trials, and only at this time when
therein maintained that: (a) all environmental laws were complied with, including the there is yet no law ensuring its safety when introduced to the environment.44
required public consultations in the affected communities; (b) an ECC was not required
for the field trials as it will not significantly affect the environment nor pose a hazard to Dissatisfied, petitioners filed their respective petitions for review on certiorari before
human health; (c) there is a plethora of scientific works and literature, peer-reviewed, this Court.
on the safety of Bt talong for human consumption; (d) at any rate, the safety of Bt talong
for human consumption is irrelevant because none of the eggplants will be consumed The Proceedings Before the Court
by humans or animals and all materials not used for analyses will be chopped, boiled,
and buried following the conditions of the Biosafety Permits; and (e) the precautionary In a Decision45 dated December 8, 2015, the Court denied the petitions and accordingly,
principle could not be applied as the field testing was only a part of a continuing study affirmed with modification the ruling of the CA.46 Agreeing with the CA, the Court held
to ensure that such trials have no significant and negative impact on the environment.29 that the precautionary principle applies in this case since the risk of harm from the field

5
trials of Bt talong remains uncertain and there exists a possibility of serious and
irreversible harm. The Court observed that eggplants are a staple vegetable in the The Court's Ruling
country that is mostly grown by small-scale farmers who are poor and marginalized;
thus, given the country's rich biodiversity, the consequences of contamination and The Court grants the motions for reconsideration on the ground of mootness.
genetic pollution would be disastrous and irreversible.47
As a rule, the Court may only adjudicate actual, ongoing controversies.62 The
The Court likewise agreed with the CA in not dismissing the case for being moot and requirement of the existence of a "case" or an "actual controversy" for the proper
academic despite the completion and tennination of the Bt talong field trials, on account exercise of the power of judicial review proceeds from Section 1, Article VIII of the 1987
of the following exceptions to the mootness principle: (a) the exceptional character of Constitution:
the situation and the paramount public interest is involved; and (b) the case is capable Section 1. The judicial power shall be vested in one Supreme Court and in such lower
of repetition yet evading review.48 courts as may be established by law.

Further, the Court noted that while the provisions of DAO 08-2002 were observed, the Judicial power includes the duty of the courts of justice to settle actual controversies
National Biosafety Framework (NBF) established under EO 514, series of 200649 which involving rights which are legally demandable and enforceable, and to determine
requires public participation in all stages-of biosafety decision-making, pursuant to the whether or not there has been a grave abuse of discretion amounting to lack or excess
Cartagena Protocol on Biosafety50 which was acceded to by the Philippines in 2000 and of jurisdiction on the part of any branch or instrumentality of the Government.
became effective locally in 2003, was not complied with.51 Moreover, the field testing (Emphasis supplied)
should have been subjected to Environmental Impact Assessment (EIA), considering that Accordingly, the Court is not empowered to decide moot questions or abstract
it involved new technologies with uncertain results.52 propositions, or to declare principles or rules of law which cannot affect the result as to
the thing in issue in the case before it. In other words, when a case is moot, it becomes
Thus, the Court permanently enjoined the field testing of Bt talong. In addition, it non-justiciable.63
declared DAO 08-2002 null and void for failure to consider the provisions of the NBF. The
Court also temporarily enjoined any application for contained use, field testing, An action is considered "moot" when it no longer presents a justiciable controversy
propagation, commercialization, and importation of genetically modified organisms until because the issues involved have become academic or dead or when the matter in
a new administrative order is promulgated in accordance with law.53 dispute has already been resolved and hence, one is not entitled to judicial intervention
unless the issue is likely to be raised again between the parties. There is nothing for the
The Issues Presented in the Motions for Reconsideration court to resolve as the determination thereof has been overtaken by subsequent
events.64
Undaunted, petitioners moved for reconsideration,54 arguing, among others, that: (a)
the case should have been dismissed for mootness in view of the completion and Nevertheless, case law states that the Court will decide cases, otherwise moot, if: first,
termination of the Bt talong field trials and the expiration of the Biosafety Permits;55 (b) there is a grave violation of the Constitution; second, the exceptional character of the
the Court should not have ruled on the validity of DAO 08-2002 as it was not raised as situation and the paramount public interest are involved; third, when the constitutional
an issue;56 and (c) the Court erred in relying on the studies cited in the December 8, issue raised requires formulation of controlling principles to guide the bench, the bar,
2015 Decision which were not offered in evidence and involved Bt corn, not Bt talong.57 and the public; and fourth, the case is capable of repetition yet evading review.65 Thus,
jurisprudence recognizes these four instances as exceptions to the mootness principle.
In their Consolidated Comments,58 respondents maintain, in essence, that: (a) the case
is not mooted by the completion of the field trials since field testing is part of the process In the December 8, 2015 Decision of the Court, it was held that (a) the present case is of
of commercialization and will eventually lead to propagation, commercialization, and exceptional character and paramount public interest is involved, and (b) it is likewise
consumption of Bt talong as a consumer product;59 (b) the validity of DAO 08-2002 was capable of repetition yet evading review. Hence, it was excepted from the mootness
raised by respondents when they argued in their petition for Writ of Kalikasan that such principle.66 However, upon a closer scrutiny of the parties' arguments, the Court
administrative issuance is not enough to adequately protect the Constitutional right of reconsiders its ruling and now finds merit in petitioners' assertion that the case should
the people to a balanced and healthful ecology;60 and (c) the Court correctly took have been dismissed for being moot and academic, and that the aforesaid exceptions to
judicial notice of the scientific studies showing the negative effects of Bt technology and the said rule should not have been applied.
applied the precautionaiy principle.61

6
I. On the paramount public interest exception. whether it may be considered as a government agency or not, which has a direct bearing
on the country's commitment to the One China Policy of the People's Republic of China.8
Jurisprudence in this jurisdiction has set no hard-and-fast rule in determining whether a
case involves paramount public interest in relation to the mootness principle. However, In contrast to the foregoing cases, no perceivable benefit to the public - whether rational
a survey of cases would show that, as a common guidepost for application, there should or practical - may be gained by resolving respondents' petition for Writ of Kalikasan on
be some perceivable benefit to the public which demands the Court to proceed with the the merits.
resolution of otherwise moot questions.
To recount, these cases, which stemmed from herein respondents petition for Writ of
In Gonzales v. Commission on Elections,67 an action for declaratory judgment assailing Kalikasan, were mooted by the undisputed expiration of the Biosafety Permits issued by
the validity of Republic Act No. (RA) 4880,68 which prohibits the early nomination of the BPI and the completion and tennination of the Bt talong field trials subject of the
candidates for elective offices and early election campaigns or partisan political activities same.82 These incidents effectively negated the necessity for the reliefs sought by
became moot by reason of the holding of the 1967 elections before the case could be respondents in their petition for Writ of Kalikasan as there was no longer any field test
decided. Nonetheless, the Court treated the petition as one for prohibition and rendered to enjoin. Hence, at the time the CA rendered its Decision dated May 17, 2013, the reliefs
judgment in view of the paramount public interest and the undeniable necessity for a petitioner sought and granted by the CA were no longer capable of execution.
ruling, the national elections [of 1969] being barely six months away."69
At this juncture, it is important to understand that the completion and termination of
In De Castro v. Commission on Elections,70 the Court proceeded to resolve the election the field tests do not mean that herein petitioners may inevitably proceed to
protest subject of that case notwithstanding the supervening death of one of the commercially propagate Bt talong 83 There are three (3) stages before genetically-
contestants. According to the Court, in an election contest, there is a paramount need modified organisms (GMOs) may become commercially available under DAO 08-200284
to dispel the uncertainty that beclouds the real choice of the electorate.71 and each stage is distinct, such that "[subsequent stages can only proceed if the prior
stage/s [is/]are completed and clearance is given to engage in the next regulatory
In David v. Macapagal-Arroyo,72 the Court ruled on the constitutionality of Presidential stage."85 Specifically, before a genetically modified organism is allowed to be
Proclamation No. 1017, s. 2006,73 which declared a state of National Emergency, even propagated under DAO 08-2002: (a) a permit for propagation must be secured from the
though the same was lifted before a decision could be rendered. The Court explained BPI; (b) it can be shown that based on the field testing conducted in the Philippines, the
that the case was one of exceptional character and involved paramount public interest, regulated article will not pose any significant risks to the environment; (c) food and/or
because the people's basic rights to expression, assembly, and of the press were at feed safety studies show that the regulated article will not pose any significant risks to
issue.74 human and animal health; and (d) if the regulated article is a pest-protected plant, its
transformation event has been duly registered with the FPA.86
In Constantino v. Sandiganbayan75 both of the accused were found guilty of graft and
corrupt practices under Section 3 (e) of RA 3019.76 One of the accused appealed the As the matter never went beyond the field testing phase, none of the foregoing tasks
conviction, while the other filed a petition for certiorari before the Court. While the related to propagation were pursued or the requirements therefor complied with. Thus,
appellant died during the pendency of his appeal, the Court still ruled on the merits there are no guaranteed after-effects to the already concluded Bt talong field trials that
thereof considering the exceptional character of the appeals in relation to each other, demand an adjudication from which the public may perceivably benefit. Any future
i.e., the two petitions were so intertwined that the absolution of the deceased was threat to the right of herein respondents or the public in general to a healthful and
determinative of the absolution of the other accused.77 balanced ecology is therefore more imagined than real.

More recently, in Funa v. Manila Economic and Cultural Office (MECO),78 the petitioner
prayed that the Commission on Audit (COA) be ordered to audit the MECO which is
based in Taiwan, on the premise that it is a government-owned and controlled
corporation.79 The COA argued that the case is already moot and should be dismissed,
since it had already directed a team of auditors to proceed to Taiwan to audit the
accounts of MECO.80 Ruling on the merits, the Court explained that the case was of
paramount public interest because it involved the COA's performance of its
constitutional duty and because the case concerns the legal status of MECO, i.e.,
In fact, it would appear to be more beneficial to the public to stay a verdict on the
safeness of Bt talong - or GMOs, for that matter - until an actual and justiciable case
properly presents itself before the Court. In his Concurring Opinion87 on the main,
Associate Justice Marvic M.V.F. Leonen (Justice Leonen) had aptly pointed out that "the
findings [resulting from the Bt talong field trials] should be the material to provide more
rigorous scientific analysis of the various claims made in relation to Bt talong"88 True
enough, the concluded field tests - like those in these cases - would yield data that may
prove useful for future studies and analyses. If at all, resolving the petition for Writ of

7
Kalikasan would unnecessarily arrest the results of further research and testing on Bt
talong, and even GMOs in general, and hence, tend to hinder scientific advancement on Notably, the new framework under JDC 01-2016 is substantially different from that
the subject matter. under DAO 08-2002. In fact, the new parameters in JDC 01-2016 pertain to provisions
which prompted the Court to invalidate DAO 08-2002. In the December 8, 2015 Decision
More significantly, it is clear that no benefit would be derived by the public in assessing of the Court, it was observed that: (a) DAO 08-2002 has no mechanism to mandate
the merits of field trials whose parameters are not only unique to the specific type of Bt compliance with international biosafety protocols;95 (b) DAO 08-2002 does not comply
talong tested, but are now, in fact, rendered obsolete by the supervening change in the with the transparency and public participation requirements under the NBF;96 and (c)
regulatory framework applied to GMO field testing. To be sure, DAO 08-2002 has already risk assessment is conducted by an informal group, called the Biosafety Advisory Team
been superseded by Joint Department Circular No. 1, series of 201689 (JDC 01-2016), of the DA, composed of representatives from the BPI, Bureau of Animal Industry, FPA,
issued by the Department of Science and Technology (DOST), the DA, the DENR, the DENR, DQH, and DOST.97
Department of Health (DOH), and the Department of Interior and Local Government
(DILG), which provides a substantially different regulatory framework from that under Under DAO 08-2002, no specific guidelines were used in the conduct of risk assessment,
DAO 08-2002 as will be detailed below. Thus, to resolve respondents' petition for Writ and the DA was allowed to consider the expert advice of, and guidelines developed by,
of Kalikasan on its merits, would be tantamount to an unnecessary scholarly exercise for relevant international organizations and regulatory authorities of countries with
the Court to assess alleged violations of health and environmental rights that arose from significant experience in the regulatory supervision of the regulated article.98 However,
a past test case whose bearings do not find any - if not minimal - relevance to cases under JDC 01-2016, the CODEX Alimentarius Guidelines was adopted to govern the risk
operating under today's regulatory framework. assessment of activities involving the research, development, handling and use,
transboundary movement, release into the environment, and management of
Therefore, the paramount public interest exception to the mootness rule should not genetically modified plant and plant products derived from the use of modern
have been applied. biotechnology.99 Also, whereas DAO 08-2002 was limited to the DA's authority in
regulating the importation and release into the environment of plants and plant
II. The case is not one capable of repetition vet evading review. products derived from the use of modern biotechnology,100 under JDC 01-2016, various
relevant government agencies such as the DOST, DOH, DENR, and the DILG now
Likewise, contrary to the Court's earlier ruling,90 these cases do not fall under the participate in all stages of the biosafety decision-making process, with the DOST being
"capable of repetition yet evading review" exception. the central and lead agency.101

The Court notes that the petition for Writ of Kalikasan specifically raised issues only
against the field testing of Bt talong under the premises of DAO 08-2002,91i.e., that
herein petitioners failed to: (a) fully inform the people regarding the health,
environment, and other hazards involved;92 and (b) conduct any valid risk assessment
before conducting the field trial.93 As further pointed out by Justice Leonen, the reliefs
sought did not extend far enough to enjoin the use of the results of the field trials that
have been completed. Hence, the petition's specificity prevented it from falling under
the above exception to the mootness rule.94
More obviously, the supersession of DAO 08-2002 by JDC 01-2016 clearly prevents this
case from being one capable of repetition so as to warrant review despite its mootness.
To contextualize, JDC 01-2016 states that:
Section 1. Applicability. This Joint Department Circular shall apply to the research,
development, handling and use, transboundary movement, release into the
environment, and management of genetically-modified plant and plant products derived
from the use of modern technology, included under "regulated articles."
As earlier adverted to, with the issuance of JDC 01-2016, a new regulatory framework in
the conduct of field testing now applies.
JDC 01-2016 also provides for a more comprehensive avenue for public participation in
cases involving field trials and requires applications for permits and permits already
issued to be made public by posting them online in the websites of the NCBP and the
BPI.102 The composition of the Institutional Biosafety Committee (IBC) has also been
modified to include an elected local official in the locality where the field testing will be
conducted as one of the community representatives.103 Previously, under DAO 08-
2002, the only requirement for the community representatives is that they shall not be
affiliated with the applicant and shall be in a position to represent the interests of the
communities where the field testing is to be conducted.104
JDC 01-2016 also prescribes additional qualifications for the members of the Scientific
and Technical Review Panel (STRP), the pool of scientists that evaluates the risk
assessment submitted by the applicant for field trial, commercial propagation, or direct
use of regulated articles. Aside from not being an official, staff or employee of the DA or
any of its attached agencies, JDC 01-2016 requires that members of the STRP: (a) must
not be directly or indirectly employed or engaged by a company or institution with
pending applications for permits under JDC 01-2016; (b) must possess technical
expertise in food and nutrition, toxicology, ecology, crop protection, environmental

8
science, molecular biology and biotechnology, genetics, plant breeding, or animal the introduction of noxious weeds; or 2. Any plant or plant product altered or produced
nutrition; and (c) must be well-respected in the scientific community.105 through the use of modern biotechnology which may pose significant risks to human
health and the environment based on available scientific and technical information.
Below is a tabular presentation of the differences between the relevant portions of DAO A. [DA]. As the principal agency of the Philippine Government responsible for the
08-2002 and JDC 01-2016: promotion of agricultural and rural growth and development so as to ensure food
security and to contribute to poverty alleviation, the DA shall take the lead in addressing
DAO 08-2002 biosafety issues related to the country's agricultural productivity and food security, x x
JDC 01-2016 x.
1. As to coverage and government participation B.
WHEREAS, under Title IV, Chapter 4, Section 19 of the Administrative Code of 1987, the Exceptions. - This Order shall not apply to the contained use of a regulated article, which
Department of Agriculture, through the Bureau of Plant Industry, is responsible for the is within the regulatory supervision of NCBP.
production of improved planting materials and protection of agricultural crops from B.
pests and diseases; and [DOST]. As the premier science and technology body in the country, the DOST shall take
the lead in ensuring that the best available science is utilized and applied in adopting
ARTICLE I. GENERAL PROVISIONS biosafety policies, measures and guidelines, and in making biosafety decision, xxx.
C.
Section 1. Applicability. This Joint Department Circular shall apply to the research, [DENRJ. As the primary government agency responsible for the conservation,
development, handling and use, transboundary movement, release into the management, development and proper use of the country's environment and natural
environment, and management of genetically-modified plant and plant products derived resources, the DENR shall ensure that environmental assessments are done and impacts
from the use of modern biotechnology, included under "regulated articles." identified in biosafety decisions, x x x.
xxxx
xxxx
PART I D.
[DOH]. The DOH, as the principal authority on health, shall formulate guidelines in
GENERAL PROVISIONS assessing the health impacts posed by modern biotechnology and its applications, x x x.
E.
ARTICLE III. ADMINISTRATIVE [DILG]. The DILG shall coordinate with the DA, DOST, DENR and DOH in overseeing the
implementation of this Circular in relation to the activities that are to be implemented
FRAMEWORK in specific LGUs, particularly in relation to the conduct of public consultations as required
xxxx under the Local Government Code. xxx.

Section 4. Role of National Government Agencies Consistent with the NBF and the laws 2. As to guidelines in risk assessment
granting their powers and functions, national government agencies shall have the
following roles: PART I
Section 2

Coverage
ARTICLE II. BIOSAFETY DECISIONS

A. GENERAL PROVISIONS
Scope - This Order covers the importation or release into the environment of: 1. Any
plant which has been altered or produced through the use of modern biotechnology if
the donor organism, host organism, or vector or vector agent belongs to any of the xxxx Section 3. Guidelines in Making Biosafety Decisions
genera or taxa classified by BPI as meeting the definition of plant pest or is a medium for

9
 The principles under the NBF shall guide concerned agencies in making PART III
biosafety decisions, including:
ARTICLE V. FIELD TRIAL OF
Section 3
APPROVAL PROCESS FOR
Risk Assessment
A.
Principles of Risk Assessment - No regulated article shall be allowed to be imported or
released into the environment without the conduct of a risk assessment performed in
accordance with this Order. The following principles shall be followed when performing
a risk assessment to determine whether a regulated article poses significant risks to
human health and the environment:
xxxx
B.
Risk Assessment. Risk assessment shall be mandatory and central in making biosafety
decisions, consistent with policies and standards on risk assessment issued by the NCBP;
and guided by Annex III of the Cartagena Protocol on Biosafety. Pursuant to the NBF, the
following principles shall be followed when performing a risk assessment to determine
whether a regulated article poses significant risks to human health and the environment.
1.
The risk assessment shall be carried out in a scientifically sound and transparent manner
based on available scientific and technical information. The expert advice of, and
guidelines developed by, relevant international organizations and regulatory authorities
of countries with significant experience in the regulatory supervision of the regulated
article shall be taken into account in the conduct of risk assessment.
1.
The risk assessment shall be carried out in a scientifically sound and transparent manner
based on available scientific and technical information. The expert advice of and
guidelines developed by, relevant international organizations, including
intergovernmental bodies, and regulatory authorities of countries with significant
experience in the regulatory supervision of the regulated article shall be taken into
account. In the conduct of risk assessment, CODEX Alimentarius Guidelines on the Food
Safety Assessment of Foods Derived from the Recombinant-DNA Plants shall be adopted
as well as other internationally accepted consensus documents.
xxx
xxxx (Underscoring supplied)
3. As to public participation
REGULATED ARTICLES
FIELD TESTING OF REGULATED
ARTICLES
Section 12. Public Participation for Field Trial
xxxx A.
The BPI shall make public all applications and Biosafety Permits for Field Trial through
posting on the NCBP and BPI websites, and in the offices of the DA and DOST in the
province, city, or municipality where the field trial will be conducted.
Section 8
Requirements for Field Testing
xxxx
xxxx
G.
Public Consultation. - The applicant, acting through its IBC, shall notify and invite
comments on the field testing proposal from the barangays and city/municipal
governments with jurisdiction over the field test sites. The IBC shall post for three (3)
consecutive weeks copies of the Public Information Sheet for Field Testing approved by
the BPI in at least three (3) conspicuous places in each of the concerned barangay and
city/municipal halls. The Public Information Sheet for Field Testing shall, among others,
invite interested parties to send their comments on the proposed field testing to BPI
within a period of thirty (30) days from the date of posting. It shall be in a language
understood in the community. During the comment period, any interested person may
submit to BPI written comments regarding the application. The applicant shall submit
proof of posting in the form of certifications from the concerned barangay captains and
city/municipal mayors or an affidavit stating the dates and places of posting duly
executed by the responsible officer or his duly authorized representative,
4. As to membership in the Institutional Biosafety Committee
10
 x x x x (Underscoring supplied)
PART I The community representative must not be affiliated with the applicant, and must be in
a position to represent the interests of the communities where the activities are to be
ARTICLE III. conducted. One of the community representatives shall be an elected official of the LGU.
The other community representative shall be selected from the residents who are
GENERAL PROVISIONS members of the Civil Society Organizations represented in the Local Poverty Reduction
Action Team, pursuant to DILG Memorandum Circular No. 2015-45. For multi-location
ADMINISTRATIVE FRAMEWORK trials, community representatives of the IBC shall be designated per site, x x x.
(Underscoring supplied)

Section 1 5. As to the composition and qualifications of the members of the Scientific and
Technical Review Panel

Definition of Terms
xxxx PART I
xxxx
ARTICLE III. ADMINISTRATIVE

L. "IBC" means the Institutional Biosafety Committee established by an applicant in GENERAL PROVISIONS
preparation for the field testing of a regulated article and whose membership has been
approved by BPI. The IBC shall be responsible for the initial evaluation of the risk FRAMEWORK
assessment and risk management strategies of the applicant for field testing. It shall be
composed of at least five (5) members, three (3) of whom shall be designated as
"scientist-members" who shall possess scientific and technological knowledge and Section 1
expertise sufficient to enable them to evaluate and monitor properly any work of the xxxx
applicant relating to the field testing of a regulated article. The other members, who
shall be designated as "community representatives", shall not be affiliated with the Definition of Terms
applicant apart from being members of its IBC and shall be in a position to represent the
interests of the communities where the field testing is to be conducted. For the
avoidance of doubt, NCBP shall be responsible for approving the membership of the IBC
for contained use of a regulated article. Section 7. Scientific and Technical Review Panel (STRP) The DA shall create a Scientific
Section 6. Institutional Biosafety Committee The company or institution applying for and and Technical Review Panel composed of a pool of non-DA scientists with expertise in
granted permits under this Circular shall constitute an IBC prior to the contained use, the evaluation of the potential risks of regulated articles to the environment and health,
confined test, or field trial of a regulated article. The membership of the IBC shall be xxx
approved by the DOST-BC for contained use or confined test, or by the DA-BC for field xxxx
trial. The IBC is responsible for the conduct of the risk assessment and preparation of
risk management strategies of the applicant for contained use, confined test, or field
trial. It shall make sure that the environment and human health are safeguarded in the EE. "STRP" means the Scientific and Technical Review Panel created by BPI as an advisory
conduct of any activity involving regulated articles. The IBC shall be composed of at least body, composed of at least three (3) reputable and independent scientists who shall not
five (5) members, three (3) of whom shall be designated as scientist-members and two be employees of the Department and who have the relevant professional background
(2) members shall be community representatives, All scientist-members must possess necessary to evaluate the potential risks of the proposed activity to human health and
scientific or technological knowledge and expertise sufficient to enable them to property the environment based on available scientific and technical information.
evaluate and monitor any work involving regulated articles conducted by the applicant. xxxx

11
The DA shall select scientists/experts in the STRP, who shall meet the following
qualifications:
x x x x (Underscoring supplied) A.
Must not be an official, staff or employee of the DA or any of its attached agencies;
B.
Must not be directly or indirectly employed or engaged by a company or institution with
pending applications for permits covered by this Circular;
C.
Possess technical expertise in at least one of the following fields: food and nutrition;
toxicology, ecology, crop protection, environmental science, molecular biology and
biotechnology, genetics, plant breeding, animal nutrition; and
D.
Well-respected in the scientific community as evidenced by positions held in science-
based organizations, awards and recognitions, publications in local and international
peer- reviewed scientific journals.
x x x x (Underscoring supplied)
Based on the foregoing, it is apparent that the regulatory framework now applicable in
conducting risk assessment in matters involving the research, development, handling,
movement, and release into the environment of genetically modified plant and plant
products derived from the use of modern biotechnology is substantially different from
that which was applied to the subject field trials. In this regard, it cannot be said that the
present case is one capable of repetition yet evading review.
The essence of cases capable of repetition yet evading review was succinctly explained
by the Court in Belgica v. Ochoa, Jr.,106 where the constitutionality of the Executive
Department's lump-sum, discretionary funds under the 2013 General Appropriations
Act, known as the Priority Development Assistance Fund (PDAF), was assailed. In that
case, the Court rejected the view that the issues related thereto had been rendered
moot and academic by the reforms undertaken by the Executive Department and former
President Benigno Simeon S. Aquino Ill's declaration that he had already "abolished the
PDAF." Citing the historical evolution of the ubiquitous Pork Barrel System, which was
the source of the PDAF, and the fact that it has always been incorporated in the national
budget which is enacted annually, the Court ruled that it is one capable of repetition yet
evading review, thus:
Finally, the application of the fourth exception [to the rule on mootness] is called for by
the recognition that the preparation and passage of the national budget is, by
constitutional imprimatur, an affair of annual occurrence. The relevance of the issues
before the Court does not cease with the passage of a "PDAF-free budget for 2014." The
evolution of the "Pork Barrel System," by its multifarious iterations throughout the
course of history, lends a semblance of truth to petitioners' claim that "the same dog
will just resurface wearing a different collar." In Sanlakas v. Executive Secretary, the
government had already backtracked on a previous course of action yet the Court used
the "capable of repetition but evading review" exception in order "[t]o prevent similar
questions from re-emerging." The situation similarly holds true to these cases. Indeed,
the myriad of issues underlying the manner in which certain public funds are spent, if
not resolved at this most opportune time, are capable of repetition and hence, must not
evade judicial review.107 (Emphases supplied)
Evidently, the "frequent" and "routinary" nature of the Pork Barrel Funds and the PDAF
are wanting herein. To reiterate, the issues in these cases involve factual considerations
which are peculiar only to the controversy at hand since the petition for Writ of Kalikasan
is specific to the field testing of Bt talong and does not involve other GMOs.
At this point, the Court discerns that there are two (2) factors to be considered before a
case is deemed one capable of repetition yet evading review: (1) the challenged action
was in its duration too short to be fully litigated prior to its cessation or expiration; and
(2) there was a reasonable expectation that the same complaining party would be
subjected to the same action.
Here, respondents cannot claim that the duration of the subject field tests was too short
to be fully litigated. It must be emphasized that the Biosafety Permits for the subject
field tests were issued on March 16, 2010 and June 28, 2010, and were valid for two (2)
years. However, as aptly pointed out by Justice Leonen, respondents filed their petition
for Writ of Kalikasan only on April 26, 2012 -just a few months before the Biosafety
Permits expired and when the field testing activities were already over.108 Obviously,
therefore, the cessation of the subject field tests before the case could be resolved was
due to respondents' own inaction.
Moreover, the situation respondents complain of is not susceptible to repetition. As
discussed above, DAO 08-2002 has already been superseded by JDC 01-2016. Hence,
future applications for field testing will be governed by JDC 01-2016 which, as illustrated,
adopts a regulatory framework that is substantially different from that of DAO 08-2002.
Therefore, it was improper for the Court to resolve the merits of the case which had
become moot in view of the absence of any valid exceptions to the rule on mootness,
and to thereupon rule on the objections against the validity and consequently nullify
DAO 08-2002 under the premises of the precautionary principle.
In fact, in relation to the latter, it is observed that the Court should not have even delved
into the constitutionality of DAO 08-2002 as it was merely collaterally challenged by
respondents, based on the constitutional precepts of the people's rights to information
on matters of public concern, to public participation, to a balanced and healthful
ecology, and to health.109 A cursory perusal of the petition for Writ of Kalikasan filed by
respondents on April 26, 2012 before the Court shows that they essentially assail herein
petitioners' failure to: (a) fully inform the people regarding the health, environment, and
other hazards involved;110 and (b) conduct any valid risk assessment before conducting
the field trial.111 However, while the provisions of DAO 08-2002 were averred to be
inadequate to protect (a) the constitutional right of the people to a balanced and
12
healthful ecology since "said regulation failed, among others, to anticipate 'the public
implications caused by the importation of GMOs in the Philippines"';112 and (b) "the
people from the potential harm these genetically modified plants and genetically
modified organisms may cause human health and the environment, [and] thus, x x x fall
short of Constitutional compliance,"113 respondents merely prayed for its amendment,
as well as that of the NBF, to define or incorporate "an independent, transparent, and
comprehensive scientific and socio-economic risk assessment, public information,
consultation, and participation, and providing for their effective implementation, in
accord with international safety standards[.]"114 This attempt to assail the
constitutionality of the public information and consultation requirements under DAO 08-
2002 and the NBF constitutes a collateral attack on the said provisions of law that runs
afoul of the well-settled rule that the constitutionality of a statute cannot be collaterally
attacked as constitutionality issues must be pleaded directly and not collaterally.115
Verily, the policy of the courts is to avoid ruling on constitutional questions and to
presume that the acts of the political departments are valid, absent a clear and
unmistakable showing to the contraiy, in deference to the doctrine of separation of
powers. This means that the measure had first been carefully studied by the executive
department and found to be in accord with the Constitution before it was finally enacted
and approved.116
All told, with respondents' petition for Writ of Kalikasan already mooted by the
expiration of the Biosafety Permits and the completion of the field trials subject of these
cases, and with none of the exceptions to the mootness principle properly attending, the
Court grants the instant motions for reconsideration and hereby dismisses the aforesaid
petition. With this pronouncement, no discussion on the substantive merits of the same
should be made.
WHEREFORE, the motions for reconsideration are GRANTED. The Decision dated
December 8, 2015 of the Court, which affirmed with modification the Decision dated
May 17, 2013 and the Resolution dated September 20, 2013 of the Court of Appeals in
CA-G.R. SP No. 00013, is hereby SET ASIDE for the reasons above-explained. A new one
is ENTERED DISMISSING the Petition for Writ of Continuing Mandamus and Writ of
Kalikasan with Prayer for the Issuance of a Temporary Environmental Protection Order
(TEPO) filed by respondents Greenpeace Southeast Asia (Philippines), Magsasaka at
Siyentipiko sa Pagpapaunladng Agrikultura, and others on the ground of mootness.
SO ORDERED.
G.R. No. 206510 September 16, 2014
MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV.
DEOGRACIAS S. INIGUEZ, JR., Bishop-Emeritus of Caloocan, FRANCES Q. QUIMPO,
CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO
M. REYES, JR., Bagong Alyansang Makabayan, HON. NERI JAVIER COLMENARES,
Bayan Muna Partylist, ROLAND G. SIMBULAN, PH.D., Junk VF A Movement, TERESITA
R. PEREZ, PH.D., HON. RAYMOND V. PALATINO, Kabataan Party-list, PETER SJ.
GONZALES, Pamalakaya, GIOVANNI A. TAPANG, PH. D., Agham, ELMER C. LABOG,
Kilusang Mayo Uno, JOAN MAY E. SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA,
THERESA A. CONCEPCION, MARY JOAN A. GUAN, NESTOR T. BAGUINON, PH.D., A.
EDSEL F. TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK A. RICE in
his capacity as Commanding Officer of the USS Guardian, PRESIDENT BENIGNO S.
AQUINO III in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines, HON. ALBERT F. DEL ROSARIO, Secretary, pepartment of Foreign Affair.s,
HON. PAQUITO OCHOA, JR., Executiv~.:Secretary, Office of the President, . HON.
VOLTAIRE T. GAZMIN, Secretary, Department of National Defense, HON. RAMON
JESUS P. P AJE, Secretary, Department of Environment and Natural Resoz!rces, VICE
ADMIRAL JOSE LUIS M. ALANO, Philippine Navy Flag Officer in Command, Armed
Forces of the Philippines, ADMIRAL RODOLFO D. ISO RENA, Commandant, Philippine
Coast Guard, COMMODORE ENRICO EFREN EVANGELISTA, Philippine Coast Guard
Palawan, MAJOR GEN. VIRGILIO 0. DOMINGO, Commandant of Armed Forces of the
Philippines Command and LT. GEN. TERRY G. ROBLING, US Marine Corps Forces.
Pacific and Balikatan 2013 Exercise Co-Director, Respondents.
DECISION
VILLARAMA, JR, J.:
Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the issuance
of a Temporary Environmental Protection Order (TEPO) under Rule 7 of A.M. No. 09-6-
8-SC, otherwise known as the Rules of Procedure for Environmental Cases (Rules),
involving violations of environmental laws and regulations in relation to the grounding
of the US military ship USS Guardian over the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring people of southern Philippines)
language which means "long reef exposed at low tide." Tubbataha is composed of two
huge coral atolls - the north atoll and the south atoll - and the Jessie Beazley Reef, a
smaller coral structure about 20 kilometers north of the atolls. The reefs of Tubbataha
13
and Jessie Beazley are considered part of Cagayancillo, a remote island municipality of 4, "reiterated his regrets over the grounding incident and assured Foreign Affairs
Palawan.1 Secretazy Albert F. del Rosario that the United States will provide appropriate
compensation for damage to the reef caused by the ship."6 By March 30, 2013, the US
In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation No. Navy-led salvage team had finished removing the last piece of the grounded ship from
306 issued by President Corazon C. Aquino on August 11, 1988. Located in the middle of the coral reef.
Central Sulu Sea, 150 kilometers southeast of Puerto Princesa City, Tubbataha lies at the
heart of the Coral Triangle, the global center of marine biodiversity. On April 1 7, 2013, the above-named petitioners on their behalf and in representation
of their respective sector/organization and others, including minors or generations yet
In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and unborn, filed the present petition agairtst Scott H. Swift in his capacity as Commander of
Cultural Organization (UNESCO) as a World Heritage Site. It was recognized as one of the the US 7th Fleet, Mark A. Rice in his capacity as Commanding Officer of the USS Guardian
Philippines' oldest ecosystems, containing excellent examples of pristine reefs and a high and Lt. Gen. Terry G. Robling, US Marine Corps Forces, Pacific and Balikatan 2013
diversity of marine life. The 97,030-hectare protected marine park is also an important Exercises Co-Director ("US respondents"); President Benigno S. Aquino III in his capacity
habitat for internationally threatened and endangered marine species. UNESCO cited as Commander-in-Chief of the Armed Forces of the Philippines (AFP), DF A Secretary
Tubbataha's outstanding universal value as an important and significant natural habitat Albert F. Del Rosario, Executive Secretary Paquito Ochoa, Jr., Secretary Voltaire T.
for in situ conservation of biological diversity; an example representing significant on- Gazmin (Department of National Defense), Secretary Jesus P. Paje (Department of
going ecological and biological processes; and an area of exceptional natural beauty and Environment and Natural Resources), Vice-Admiral Jose Luis M. Alano (Philippine Navy
aesthetic importance.2 Flag Officer in Command, AFP), Admiral Rodolfo D. Isorena (Philippine Coast Guard
Commandant), Commodore Enrico Efren Evangelista (Philippine Coast Guard-Palawan),
On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067,3 otherwise known as and Major General Virgilio 0. Domingo (AFP Commandant), collectively the "Philippine
the "Tubbataha Reefs Natural Park (TRNP) Act of 2009" "to ensure the protection and respondents."
conservation of the globally significant economic, biological, sociocultural, educational
and scientific values of the Tubbataha Reefs into perpetuity for the enjoyment of present The Petition
and future generations." Under the "no-take" policy, entry into the waters of TRNP is
strictly regulated and many human activities are prohibited and penalized or fined, Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS
including fishing, gathering, destroying and disturbing the resources within the TRNP. Guardian cause and continue to cause environmental damage of such magnitude as to
The law likewise created the Tubbataha Protected Area Management Board (TPAMB) affect the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental,
which shall be the sole policy-making and permit-granting body of the TRNP. Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which events
violate their constitutional rights to a balanced and healthful ecology. They also seek a
The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In directive from this Court for the institution of civil, administrative and criminal suits for
December 2012, the US Embassy in the Philippines requested diplomatic clearance for acts committed in violation of environmental laws and regulations in connection with
the said vessel "to enter and exit the territorial waters of the Philippines and to arrive at the grounding incident.
the port of Subic Bay for the purpose of routine ship replenishment, maintenance, and
crew liberty."4 On January 6, 2013, the ship left Sasebo, Japan for Subic Bay, arriving on Specifically, petitioners cite the following violations committed by US respondents under
January 13, 2013 after a brief stop for fuel in Okinawa, Japan.1âwphi1 R.A. No. 10067: unauthorized entry (Section 19); non-payment of conservation fees
(Section 21 ); obstruction of law enforcement officer (Section 30); damages to the reef
On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in (Section 20); and destroying and disturbing resources (Section 26[g]). Furthermore,
Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the petitioners assail certain provisions of the Visiting Forces Agreement (VFA) which they
ship ran aground on the northwest side of South Shoal of the Tubbataha Reefs, about 80 want this Court to nullify for being unconstitutional.
miles east-southeast of Palawan. No cine was injured in the incident, and there have
been no reports of leaking fuel or oil. The numerous reliefs sought in this case are set forth in the final prayer of the petition,
to wit: WHEREFORE, in view of the foregoing, Petitioners respectfully pray that the
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed Honorable Court: 1. Immediately issue upon the filing of this petition a Temporary
regret for the incident in a press statement.5 Likewise, US Ambassador to the Philippines Environmental Protection Order (TEPO) and/or a Writ of Kalikasan, which shall, in
Harry K. Thomas, Jr., in a meeting at the Department of Foreign Affairs (DFA) on February particular,

14
 f. Require the authorities of the Philippines and the United States to notify each other of
a. Order Respondents and any person acting on their behalf, to cease and desist all the disposition of all cases, wherever heard, related to the grounding of the Guardian;
operations over the Guardian grounding incident;
g. Restrain Respondents from proceeding with any purported restoration, repair, salvage
b. Initially demarcating the metes and bounds of the damaged area as well as an or post salvage plan or plans, including cleanup plans covering the damaged area of the
additional buffer zone; Tubbataha Reef absent a just settlement approved by the Honorable Court;

c. Order Respondents to stop all port calls and war games under 'Balikatan' because of h. Require Respondents to engage in stakeholder and LOU consultations in accordance
the absence of clear guidelines, duties, and liability schemes for breaches of those with the Local Government Code and R.A. 10067;
duties, and require Respondents to assume responsibility for prior and future
environmental damage in general, and environmental damage under the Visiting Forces i. Require Respondent US officials and their representatives to place a deposit to the
Agreement in particular. TRNP Trust Fund defined under Section 17 of RA 10067 as a bona .fide gesture towards
full reparations;
d. Temporarily define and describe allowable activities of ecotourism, diving, recreation,
and limited commercial activities by fisherfolk and indigenous communities near or j. Direct Respondents to undertake measures to rehabilitate the areas affected by the
around the TRNP but away from the damaged site and an additional buffer zone; grounding of the Guardian in light of Respondents' experience in the Port Royale
grounding in 2009, among other similar grounding incidents;
2. After summary hearing, issue a Resolution extending the TEPO until further orders of
the Court; k. Require Respondents to regularly publish on a quarterly basis and in the name of
transparency and accountability such environmental damage assessment, valuation, and
3. After due proceedings, render a Decision which shall include, without limitation: valuation methods, in all stages of negotiation;

a. Order Respondents Secretary of Foreign Affairs, following the dispositive portion of l. Convene a multisectoral technical working group to provide scientific and technical
Nicolas v. Romulo, "to forthwith negotiate with the United States representatives for the support to the TPAMB;
appropriate agreement on [environmental guidelines and environmental accountability]
under Philippine authorities as provided in Art. V[] of the VFA ... " m. Order the Department of Foreign Affairs, Department of National Defense, and the
Department of Environment and Natural Resources to review the Visiting Forces
b. Direct Respondents and appropriate agencies to commence administrative, civil, and Agreement and the Mutual Defense Treaty to consider whether their provisions allow
criminal proceedings against erring officers and individuals to the full extent of the law, for the exercise of erga omnes rights to a balanced and healthful ecology and for
and to make such proceedings public; damages which follow from any violation of those rights;

c. Declare that Philippine authorities may exercise primary and exclusive criminal n. Narrowly tailor the provisions of the Visiting Forces Agreement for purposes of
jurisdiction over erring U.S. personnel under the circumstances of this case; protecting the damaged areas of TRNP;

d. Require Respondents to pay just and reasonable compensation in the settlement of o. Declare the grant of immunity found in Article V ("Criminal Jurisdiction") and Article
all meritorious claims for damages caused to the Tubbataha Reef on terms and VI of the Visiting Forces Agreement unconstitutional for violating equal protection
conditions no less severe than those applicable to other States, and damages for and/or for violating the preemptory norm of nondiscrimination incorporated as part of
personal injury or death, if such had been the case; the law of the land under Section 2, Article II, of the Philippine Constitution;

e. Direct Respondents to cooperate in providing for the attendance of witnesses and in p. Allow for continuing discovery measures;
the collection and production of evidence, including seizure and delivery of objects
connected with the offenses related to the grounding of the Guardian; q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all other respects;
and

15
4. Provide just and equitable environmental rehabilitation measures and such other of environmental rights, they can do so in representation of their own and future
reliefs as are just and equitable under the premises.7 (Underscoring supplied.) generations. Thus:

Since only the Philippine respondents filed their comment8 to the petition, petitioners Petitioners minors assert that they represent their generation as well as generations yet
also filed a motion for early resolution and motion to proceed ex parte against the US unborn. We find no difficulty in ruling that they can, for themselves, for others of their
respondents.9 generation and for the succeeding generations, file a class suit. Their personality to sue
in behalf of the succeeding generations can only be based on the concept of
Respondents' Consolidated Comment intergenerational responsibility insofar as the right to a balanced and healthful ecology
is concerned. Such a right, as hereinafter expounded, considers the "rhythm and
In their consolidated comment with opposition to the application for a TEPO and ocular harmony of nature." Nature means the created world in its entirety. Such rhythm and
inspection and production orders, respondents assert that: ( 1) the grounds relied upon harmony indispensably include, inter alia, the judicious disposition, utilization,
for the issuance of a TEPO or writ of Kalikasan have become fait accompli as the salvage management, renewal and conservation of the country's forest, mineral, land, waters,
operations on the USS Guardian were already completed; (2) the petition is defective in fisheries, wildlife, off-shore areas and other natural resources to the end that their
form and substance; (3) the petition improperly raises issues involving the VFA between exploration, development and utilization be equitably accessible to the present a:: well
the Republic of the Philippines and the United States of America; and ( 4) the as future generations. Needless to say, every generation has a responsibility to the next
determination of the extent of responsibility of the US Government as regards the to preserve that rhythm and harmony for the full 1:njoyment of a balanced and healthful
damage to the Tubbataha Reefs rests exdusively with the executive branch. ecology. Put a little differently, the minors' assertion of their right to a sound
environment constitutes, at the same time, the performance of their obligation to
The Court's Ruling ensure the protection of that right for the generations to come.15 (Emphasis supplied.)

As a preliminary matter, there is no dispute on the legal standing of petitioners to file The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and
the present petition. generations yet unborn, is now enshrined in the Rules which allows the filing of a citizen
suit in environmental cases. The provision on citizen suits in the Rules "collapses the
Locus standi is "a right of appearance in a court of justice on a given question."10 traditional rule on personal and direct interest, on the principle that humans are
Specifically, it is "a party's personal and substantial interest in a case where he has stewards of nature."16
sustained or will sustain direct injury as a result" of the act being challenged, and "calls
for more than just a generalized grievance."11 However, the rule on standing is a Having settled the issue of locus standi, we shall address the more fundamental question
procedural matter which this Court has relaxed for non-traditional plaintiffs like ordinary of whether this Court has jurisdiction over the US respondents who did not submit any
citizens, taxpayers and legislators when the public interest so requires, such as when the pleading or manifestation in this case.
subject matter of the controversy is of transcendental importance, of overreaching
significance to society, or of paramount public interest.12 The immunity of the State from suit, known also as the doctrine of sovereign immunity
or non-suability of the State,17 is expressly provided in Article XVI of the 1987
In the landmark case of Oposa v. Factoran, Jr.,13 we recognized the "public right" of Constitution which states:
citizens to "a balanced and healthful ecology which, for the first time in our
constitutional history, is solemnly incorporated in the fundamental law." We declared Section 3. The State may not be sued without its consent.
that the right to a balanced and healthful ecology need not be written in the Constitution
for it is assumed, like other civil and polittcal rights guaranteed in the Bill of Rights, to In United States of America v. Judge Guinto,18 we discussed the principle of state
exist from the inception of mankind and it is an issue of transcendental importance with immunity from suit, as follows:
intergenerational implications.1âwphi1 Such right carries with it the correlative duty to
refrain from impairing the environment.14 The rule that a state may not be sued without its consent, now · expressed in Article XVI,
Section 3, of the 1987 Constitution, is one of the generally accepted principles of
On the novel element in the class suit filed by the petitioners minors in Oposa, this Court international law that we have adopted as part of the law of our land under Article II,
ruled that not only do ordinary citizens have legal standing to sue for the enforcement Section 2. x x x.

16
Even without such affirmation, we would still be bound by the generally accepted immunity of the foreign sovereign from suit without its consent. Suing a representative
principles of international law under the doctrine of incorporation. Under this doctrine, of a state is believed to be, in effect, suing the state itself. The proscription is not
as accepted by the majority of states, such principles are deemed incorporated in the accorded for the benefit of an individual but for the State, in whose service he is, under
law of every civilized state as a condition and consequence of its membership in the the maxim -par in parem, non habet imperium -that all states are soverr~ign equals and
society of nations. Upon its admission to such society, the state is automatically cannot assert jurisdiction over one another. The implication, in broad terms, is that if the
obligated to comply with these principles in its relations with other states. judgment against an official would rec 1uire the state itself to perform an affirmative act
to satisfy the award, such as the appropriation of the amount needed to pay the
As applied to the local state, the doctrine of state immunity is based on the justification damages decreed against him, the suit must be regarded as being against the state itself,
given by Justice Holmes that ''there can be no legal right against the authority which although it has not been formally impleaded.21 (Emphasis supplied.)
makes the law on which the right depends." [Kawanakoa v. Polybank, 205 U.S. 349]
There are other practical reasons for the enforcement of the doctrine. In the case of the In the same case we also mentioned that in the case of diplomatic immunity, the
foreign state sought to be impleaded in the local jurisdiction, the added inhibition is privilege is not an immunity from the observance of the law of the territorial sovereign
expressed in the maxim par in parem, non habet imperium. All states are sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise of territorial
equals and cannot assert jurisdiction over one another. A contrary disposition would, in jurisdiction.22
the language of a celebrated case, "unduly vex the peace of nations." [De Haber v. Queen
of Portugal, 17 Q. B. 171] In United States of America v. Judge Guinto,23 one of the consolidated cases therein
involved a Filipino employed at Clark Air Base who was arrested following a buy-bust
While the doctrine appears to prohibit only suits against the state without its consent, it operation conducted by two officers of the US Air Force, and was eventually dismissed
is also applicable to complaints filed against officials of the state for acts allegedly from his employment when he was charged in court for violation of R.A. No. 6425. In a
performed by them in the discharge of their duties. The rule is that if the judgment complaint for damages filed by the said employee against the military officers, the latter
against such officials will require the state itself to perform an affirmative act to satisfy moved to dismiss the case on the ground that the suit was against the US Government
the same,. such as the appropriation of the amount needed to pay the damages awarded which had not given its consent. The RTC denied the motion but on a petition for
against them, the suit must be regarded as against the state itself although it has not certiorari and prohibition filed before this Court, we reversed the RTC and dismissed the
been formally impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In such a situation, the complaint. We held that petitioners US military officers were acting in the exercise of
state may move to dismiss the comp.taint on the ground that it has been filed without their official functions when they conducted the buy-bust operation against the
its consent.19 (Emphasis supplied.) complainant and thereafter testified against him at his trial. It follows that for
discharging their duties as agents of the United States, they cannot be directly impleaded
Under the American Constitution, the doctrine is expressed in the Eleventh Amendment for acts imputable to their principal, which has not given its consent to be sued.
which reads:
This traditional rule of State immunity which exempts a State from being sued in the
The Judicial power of the United States shall not be construed to extend to any suit in courts of another State without the former's consent or waiver has evolved into a
law or equity, commenced or prosecuted against one of the United States by Citizens of restrictive doctrine which distinguishes sovereign and governmental acts (Jure imperil")
another State, or by Citizens or Subjects of any Foreign State. from private, commercial and proprietary acts (Jure gestionis). Under the restrictive rule
of State immunity, State immunity extends only to acts Jure imperii. The restrictive
In the case of Minucher v. Court of Appeals,20 we further expounded on the immunity application of State immunity is proper only when the proceedings arise out of
of foreign states from the jurisdiction of local courts, as follows: commercial transactions of the foreign sovereign, its commercial activities or economic
affairs.24
The precept that a State cannot be sued in the courts of a foreign state is a long-standing
rule of customary international law then closely identified with the personal immunity In Shauf v. Court of Appeals,25 we discussed the limitations of the State immunity
of a foreign sovereign from suit and, with the emergence of democratic states, made to principle, thus:
attach not just to the person of the head of state, or his representative, but also distinctly
to the state itself in its sovereign capacity. If the acts giving rise to a suit arc those of a It is a different matter where the public official is made to account in his capacity as such
foreign government done by its foreign agent, although not necessarily a diplomatic for acts contrary to law and injurious to the rights of plaintiff. As was clearly set forth by
personage, but acting in his official capacity, the complaint could be barred by the JustiGe Zaldivar in Director of the Bureau of Telecommunications, et al. vs. Aligaen, etc.,

17
et al. : "Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts
of government officials or officers are not acts of the State, and an action against the
officials or officers by one whose rights have been invaded or violated by such acts, for
the protection of his rights, is not a suit against the State within the rule of immunity of
the State from suit. In the same tenor, it has been said that an action at law or suit in
equity against a State officer or the director of a State department on the ground that,
while claiming to act for the State, he violates or invades the personal and property rights
of the plaintiff, under an unconstitutional act or under an assumption of authority which
he does not have, is not a suit against the State within the constitutional provision that
the State may not be sued without its consent." The rationale for this ruling is that the
doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.
xxxx
The aforecited authorities are clear on the matter. They state that the doctrine of
immunity from suit will not apply and may not be invoked where the public official is
being sued in his private and personal capacity as an ordinary citizen. The cloak of
protection afforded the officers and agents of the government is removed the moment
they are sued in their individual capacity. This situation usually arises where the public
official acts without authority or in excess of the powers vested in him. It is a well-settled
principle of law that a public official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with malice and in bad faith, or
beyond the scope of his authority or jurisdiction.26 (Emphasis supplied.) In this case, the
US respondents were sued in their official capacity as commanding officers of the US
Navy who had control and supervision over the USS Guardian and its crew. The alleged
act or omission resulting in the unfortunate grounding of the USS Guardian on the TRNP
was committed while they we:re performing official military duties. Considering that the
satisfaction of a judgment against said officials will require remedial actions and
appropriation of funds by the US government, the suit is deemed to be one against the
US itself. The principle of State immunity therefore bars the exercise of jurisdiction by
this Court over the persons of respondents Swift, Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T. Carpio took the position
that the conduct of the US in this case, when its warship entered a restricted area in
violation of R.A. No. 10067 and caused damage to the TRNP reef system, brings the
matter within the ambit of Article 31 of the United Nations Convention on the Law of
the Sea (UNCLOS). He explained that while historically, warships enjoy sovereign
immunity from suit as extensions of their flag State, Art. 31 of the UNCLOS creates an
exception to this rule in cases where they fail to comply with the rules and regulations
of the coastal State regarding passage through the latter's internal waters and the
territorial sea.
According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a The flag State shall bear international responsibility for any loss or damage to the coastal
matter of long-standing policy the US considers itself bound by customary international State resulting from the non-compliance by a warship or other government ship
rules on the "traditional uses of the oceans" as codified in UNCLOS, as can be gleaned
from previous declarations by former Presidents Reagan and Clinton, and the US
judiciary in the case of United States v. Royal Caribbean Cruise Lines, Ltd.27
The international law of the sea is generally defined as "a body of treaty rules arid
customary norms governing the uses of the sea, the exploitation of its resources, and
the exercise of jurisdiction over maritime regimes. It is a branch of public international
law, regulating the relations of states with respect to the uses of the oceans."28 The
UNCLOS is a multilateral treaty which was opened for signature on December 10, 1982
at Montego Bay, Jamaica. It was ratified by the Philippines in 1984 but came into force
on November 16, 1994 upon the submission of the 60th ratification.
The UNCLOS is a product of international negotiation that seeks to balance State
sovereignty (mare clausum) and the principle of freedom of the high seas (mare
liberum).29 The freedom to use the world's marine waters is one of the oldest customary
principles of international law.30 The UNCLOS gives to the coastal State sovereign rights
in varying degrees over the different zones of the sea which are: 1) internal waters, 2)
territorial sea, 3) contiguous zone, 4) exclusive economic zone, and 5) the high seas. It
also gives coastal States more or less jurisdiction over foreign vessels depending on
where the vessel is located.31
Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises
sovereignty, subject to the UNCLOS and other rules of international law. Such
sovereignty extends to the air space over the territorial sea as well as to its bed and
subsoil.32
In the case of warships,33 as pointed out by Justice Carpio, they continue to enjoy
sovereign immunity subject to the following exceptions:
Article 30
Non-compliance by warships with the laws and regulations of the coastal State
If any warship does not comply with the laws and regulations of the coastal State
concerning passage through the territorial sea and disregards any request for
compliance therewith which is made to it, the coastal State may require it to leave the
territorial sea immediately.
Article 31
Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-commercial purposes
18
operated for non-commercial purposes with the laws and regulations of the coastal State encourage other countries to do likewise." Since Article 31 relates to the "traditional
concerning passage through the territorial sea or with the provisions of this Convention uses of the oceans," and "if under its policy, the US 'recognize[s] the rights of the other
or other rules of international law. states in the waters off their coasts,"' Justice Carpio postulates that "there is more
reason to expect it to recognize the rights of other states in their internal waters, such
Article 32 as the Sulu Sea in this case."
Immunities of warships and other government ships operated for non-commercial
purposes As to the non-ratification by the US, Justice Carpio emphasizes that "the US' refusal to
join the UN CLOS was centered on its disagreement with UN CLOS' regime of deep
With such exceptions as are contained in subsection A and in articles 30 and 31, nothing seabed mining (Part XI) which considers the oceans and deep seabed commonly owned
in this Convention affects the immunities of warships and other government ships by mankind," pointing out that such "has nothing to do with its [the US'] acceptance of
operated for non-commercial purposes. (Emphasis supplied.) A foreign warship's customary international rules on navigation."
unauthorized entry into our internal waters with resulting damage to marine resources
is one situation in which the above provisions may apply. But what if the offending It may be mentioned that even the US Navy Judge Advocate General's Corps publicly
warship is a non-party to the UNCLOS, as in this case, the US? endorses the ratification of the UNCLOS, as shown by the following statement posted on
its official website:
An overwhelming majority - over 80% -- of nation states are now members of UNCLOS,
but despite this the US, the world's leading maritime power, has not ratified it. The Convention is in the national interest of the United States because it establishes
stable maritime zones, including a maximum outer limit for territorial seas; codifies
While the Reagan administration was instrumental in UNCLOS' negotiation and drafting, innocent passage, transit passage, and archipelagic sea lanes passage rights; works
the U.S. delegation ultimately voted against and refrained from signing it due to against "jurisdictiomtl creep" by preventing coastal nations from expanding their own
concerns over deep seabed mining technology transfer provisions contained in Part XI. maritime zones; and reaffirms sovereign immunity of warships, auxiliaries anJ
In a remarkable, multilateral effort to induce U.S. membership, the bulk of UNCLOS government aircraft.
member states cooperated over the succeeding decade to revise the objection.able
provisions. The revisions satisfied the Clinton administration, which signed the revised x x x x
Part XI implementing agreement in 1994. In the fall of 1994, President Clinton
transmitted UNCLOS and the Part XI implementing agreement to the Senate requesting Economically, accession to the Convention would support our national interests by
its advice and consent. Despite consistent support from President Clinton, each of his enhancing the ability of the US to assert its sovereign rights over the resources of one of
successors, and an ideologically diverse array of stakeholders, the Senate has since the largest continental shelves in the world. Further, it is the Law of the Sea Convention
withheld the consent required for the President to internationally bind the United States that first established the concept of a maritime Exclusive Economic Zone out to 200
to UNCLOS. nautical miles, and recognized the rights of coastal states to conserve and manage the
natural resources in this Zone.35
While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the 108th
and 110th Congresses, its progress continues to be hamstrung by significant pockets of We fully concur with Justice Carpio's view that non-membership in the UNCLOS does not
political ambivalence over U.S. participation in international institutions. Most recently, mean that the US will disregard the rights of the Philippines as a Coastal State over its
111 th Congress SFRC Chairman Senator John Kerry included "voting out" UNCLOS for internal waters and territorial sea. We thus expect the US to bear "international
full Senate consideration among his highest priorities. This did not occur, and no Senate responsibility" under Art. 31 in connection with the USS Guardian grounding which
action has been taken on UNCLOS by the 112th Congress.34 adversely affected the Tubbataha reefs. Indeed, it is difficult to imagine that our long-
time ally and trading partner, which has been actively supporting the country's efforts
Justice Carpio invited our attention to the policy statement given by President Reagan to preserve our vital marine resources, would shirk from its obligation to compensate
on March 10, 1983 that the US will "recognize the rights of the other , states in the waters the damage caused by its warship while transiting our internal waters. Much less can we
off their coasts, as reflected in the convention [UNCLOS], so long as the rights and comprehend a Government exercising leadership in international affairs, unwilling to
freedom of the United States and others under international law are recognized by such comply with the UNCLOS directive for all nations to cooperate in the global task to
coastal states", and President Clinton's reiteration of the US policy "to act in a manner protect and preserve the marine environment as provided in Article 197, viz:
consistent with its [UNCLOS] provisions relating to traditional uses of the oceans and to

19
Article 197 In any case, it is our considered view that a ruling on the application or non-application
Cooperation on a global or regional basis of criminal jurisdiction provisions of the VF A to US personnel who may be found
responsible for the grounding of the USS Guardian, would be premature and beyond the
States shall cooperate on a global basis and, as appropriate, on a regional basis, directly province of a petition for a writ of Kalikasan. We also find it unnecessary at this point to
or through competent international organizations, in formulating and elaborating determine whether such waiver of State immunity is indeed absolute. In the same vein,
international rules, standards and recommended practices and procedures consistent we cannot grant damages which have resulted from the violation of environmental laws.
with this Convention, for the protection and preservation of the marine environment, The Rules allows the recovery of damages, including the collection of administrative
taking into account characteristic regional features. fines under R.A. No. 10067, in a separate civil suit or that deemed instituted with the
criminal action charging the same violation of an environmental law.37
In fine, the relevance of UNCLOS provisions to the present controversy is beyond
dispute. Although the said treaty upholds the immunity of warships from the jurisdiction Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for issuance
of Coastal States while navigating the.latter's territorial sea, the flag States shall be of a writ of Kalikasan, to wit:
required to leave the territorial '::;ea immediately if they flout the laws and regulations
of the Coastal State, and they will be liable for damages caused by their warships or any SEC. 15. Judgment.-Within sixty (60) days from the time the petition is submitted for
other government vessel operated for non-commercial purposes under Article 31. decision, the court shall render judgment granting or denying the privilege of the writ of
kalikasan.
Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise,
they invoke federal statutes in the US under which agencies of the US have statutorily The reliefs that may be granted under the writ are the following:
waived their immunity to any action. Even under the common law tort claims,
petitioners asseverate that the US respondents are liable for negligence, trespass and (a) Directing respondent to permanently cease and desist from committing acts or
nuisance. neglecting the performance of a duty in violation of environmental laws resulting in
environmental destruction or damage;
We are not persuaded.
(b) Directing the respondent public official, govemment agency, private person or entity
The VFA is an agreement which defines the treatment of United States troops and to protect, preserve, rehabilitate or restore the environment;
personnel visiting the Philippines to promote "common security interests" between the
US and the Philippines in the region. It provides for the guidelines to govern such visits (c) Directing the respondent public official, government agency, private person or entity
of military personnel, and further defines the rights of the United States and the to monitor strict compliance with the decision and orders of the court;
Philippine government in the matter of criminal jurisdiction, movement of vessel and
aircraft, importation and exportation of equipment, materials and supplies.36 The (d) Directing the respondent public official, government agency, or private person or
invocation of US federal tort laws and even common law is thus improper considering entity to make periodic reports on the execution of the final judgment; and
that it is the VF A which governs disputes involving US military ships and crew navigating
Philippine waters in pursuance of the objectives of the agreement. (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
As it is, the waiver of State immunity under the VF A pertains only to criminal jurisdiction environment, except the award of damages to individual petitioners. (Emphasis
and not to special civil actions such as the present petition for issuance of a writ of supplied.)
Kalikasan. In fact, it can be inferred from Section 17, Rule 7 of the Rules that a criminal
case against a person charged with a violation of an environmental law is to be filed We agree with respondents (Philippine officials) in asserting that this petition has
separately: become moot in the sense that the salvage operation sought to be enjoined or
restrained had already been accomplished when petitioners sought recourse from this
SEC. 17. Institution of separate actions.-The filing of a petition for the issuance of the Court. But insofar as the directives to Philippine respondents to protect and rehabilitate
writ of kalikasan shall not preclude the filing of separate civil, criminal or administrative the coral reef stn icture and marine habitat adversely affected by the grounding incident
actions. are concerned, petitioners are entitled to these reliefs notwithstanding the completion
of the removal of the USS Guardian from the coral reef. However, we are mindful of the

20
fact that the US and Philippine governments both expressed readiness to negotiate and
discuss the matter of compensation for the damage caused by the USS Guardian. The US SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to agree to
Embassy has also declared it is closely coordinating with local scientists and experts in compromise or settle in accordance with law at any stage of the proceedings before
assessing the extent of the damage and appropriate methods of rehabilitation. rendition of judgment. (Underscoring supplied.)

Exploring avenues for settlement of environmental cases is not proscribed by the Rules.
As can be gleaned from the following provisions, mediation and settlement are available
for the consideration of the parties, and which dispute resolution methods are
encouraged by the court, to wit:
RULE3
xxxx
SEC. 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.
The Court takes judicial notice of a similar incident in 2009 when a guided-missile cruiser,
the USS Port Royal, ran aground about half a mile off the Honolulu Airport Reef Runway
and remained stuck for four days. After spending $6.5 million restoring the coral reef,
the US government was reported to have paid the State of Hawaii $8.5 million in
settlement over coral reef damage caused by the grounding.38
To underscore that the US government is prepared to pay appropriate compensation for
the damage caused by the USS Guardian grounding, the US Embassy in the Philippines
has announced the formation of a US interdisciplinary scientific team which will "initiate
discussions with the Government of the Philippines to review coral reef rehabilitation
options in Tubbataha, based on assessments by Philippine-based marine scientists." The
US team intends to "help assess damage and remediation options, in coordination with
the Tubbataha Management Office, appropriate Philippine government entities, non-
governmental organizations, and scientific experts from Philippine universities."39

Mediation must be conducted within a non-extendible period of thirty (30) days from A rehabilitation or restoration program to be implemented at the cost of the violator is
receipt of notice of referral to mediation. also a major relief that may be obtained under a judgment rendered in a citizens' suit
under the Rules, viz:
The mediation report must be submitted within ten (10) days from the expiration of the
30-day period. RULES

SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the plaintiff
continuance of the pre-trial. Before the scheduled date of continuance, the court may proper reliefs which shall include the protection, preservation or rehabilitation of the
refer the case to the branch clerk of court for a preliminary conference for the following environment and the payment of attorney's fees, costs of suit and other litigation
purposes: 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
(a) To assist the parties in reaching a settlement; contribute to a special trust fund for that purpose subject to the control of the
court.1âwphi1
xxxx
In the light of the foregoing, the Court defers to the Executive Branch on the matter of
SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties and their compensation and rehabilitation measures through diplomatic channels. Resolution of
counsels under oath, and they shall remain under oath in all pre-trial conferences. these issues impinges on our relations with another State in the context of common
security interests under the VFA. It is settled that "[t]he conduct of the foreign relations
The judge shall exert best efforts to persuade the parties to arrive at a settlement of the of our government is committed by the Constitution to the executive and legislative-"the
dispute. The judge may issue a consent decree approving the agreement between the political" --departments of the government, and the propriety of what may be done in
parties in accordance with law, morals, public order and public policy to protect the right the exercise of this political power is not subject to judicial inquiry or decision."40
of the people to a balanced and healthful ecology.
On the other hand, we cannot grant the additional reliefs prayed for in the petition to
xxxx order a review of the VFA and to nullify certain immunity provisions thereof.

21

As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora,41 the VFA was
duly concurred in by the Philippine Senate and has been recognized as a treaty by the
United States as attested and certified by the duly authorized representative of the
United States government. The VF A being a valid and binding agreement, the parties
are required as a matter of international law to abide by its terms and provisions.42 The
present petition under the Rules is not the proper remedy to assail the constitutionality
of its provisions. WHEREFORE, the petition for the issuance of the privilege of the Writ
of Kalikasan is hereby DENIED.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 180771, April 21, 2015
RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TANON STRAIT, E.G.,
TOOTHED WHALES, DOLPHINS, PORPOISES, AND OTHER CETACEAN SPECIES, JOINED
IN AND REPRESENTED HEREIN BY HUMAN BEINGS GLORIA ESTENZO RAMOS AND
ROSE-LIZA EISMA-OSORIO, IN THEIR CAPACITY AS LEGAL GUARDIANS OF THE LESSER
LIFE-FORMS AND AS RESPONSIBLE STEWARDS OF GOD'S CREATIONS, Petitioners, v.
SECRETARY ANGELO REYES, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF
ENERGY (DOE), SECRETARY JOSE L. ATIENZA, IN HIS CAPACITY AS SECRETARY OF THE
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES (DENR), LEONARDO R.
SIBBALUCA, DENR REGIONAL DIRECTOR-REGION VII AND IN HIS CAPACITY AS
CHAIRPERSON OF THE TANON STRAIT PROTECTED SEASCAPE MANAGEMENT BOARD,
BUREAU OF FISHERIES AND AQUATIC RESOURCES (BFAR), DIRECTOR MALCOLM I.
SARMIENTO, JR., BFAR REGIONAL DIRECTOR FOR REGION VII ANDRES M. BOJOS,
JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), AS REPRESENTED BY ITS
PHILIPPINE AGENT, SUPPLY OILFIELD SERVICES, INC., Respondents.
G.R. No. 181527
CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC), CERILO D.
ENGARCIAL, RAMON YANONG, FRANCISCO LABID, IN THEIR PERSONAL CAPACITY
AND AS REPRESENTATIVES OF THE SUBSISTENCE FISHERFOLKS OF THE
MUNICIPALITIES OF ALOGUINSAN AND PINAMUNGAJAN, CEBU, AND THEIR
FAMILIES, AND THE PRESENT AND FUTURE GENERATIONS OF FILIPINOS WHOSE
RIGHTS ARE SIMILARLY AFFECTED, Petitioners, v. SECRETARY ANGELO REYES, IN HIS
CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENERGY (DOE), JOSE L. ATIENZA,
IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES (DENR), LEONARDO R. SIBBALUCA, IN HIS CAPACITY AS DENR
REGIONAL DIRECTOR-REGION VII AND AS CHAIRPERSON OF THE TAÑON STRAIT
PROTECTED SEASCAPE MANAGEMENT BOARD, ALAN ARRANGUEZ, IN HIS CAPACITY
AS DIRECTOR ENVIRONMENTAL MANAGEMENT BUREAU-REGION VII, DOE REGIONAL
DIRECTOR FOR REGION VIII1 ANTONIO LABIOS, JAPAN PETROLEUM EXPLORATION
CO., LTD. (JAPEX), AS REPRESENTED BY ITS PHILIPPINE AGENT, SUPPLY OILFIELD
SERVICES, INC., Respondent.
DECISION
LEONARDO-DE CASTRO, J.:
Before Us are two consolidated Petitions filed under Rule 65 of the 1997 Rules of Court,
concerning Service Contract No. 46 (SC-46), which allowed the exploration,
development, and exploitation of petroleum resources within Tañon Strait, a narrow
passage of water situated between the islands of Negros and Cebu.2
22
The Petition docketed as G.R. No. 180771 is an original Petition for Certiorari, On June 13, 2002, the Government of the Philippines, acting through the DOE, entered
Mandamus, and Injunction, which seeks to enjoin respondents from implementing SC- into a Geophysical Survey and Exploration Contract-102 (GSEC-102) with JAPEX. This
46 and to have it nullified for willful and gross violation of the 1987 Constitution and contract involved geological and geophysical studies of the Tañon Strait. The studies
certain international and municipal laws.3 included surface geology, sample analysis, and reprocessing of seismic and magnetic
data. JAPEX, assisted by DOE, also conducted geophysical and satellite surveys, as well
Likewise, the Petition docketed as G.R. No. 181527 is an original Petition for Certiorari, as oil and gas sampling in Tañon Strait.7
Prohibition, and Mandamus, which seeks to nullify the Environmental Compliance
Certificate (ECC) issued by the Environmental Management Bureau (EMB) of the On December 21, 2004, DOE and JAPEX formally converted GSEC-102 into SC-46 for the
Department of Environment and Natural Resources (DENR), Region VII in connection exploration, development, and production of petroleum resources in a block covering
with SC-46; to prohibit respondents from implementing SC-46; and to compel public approximately 2,850 square kilometers offshore the Tañon Strait.8
respondents to provide petitioners access to the pertinent documents involving the
Tañon Strait Oil Exploration Project.4 From May 9 to 18, 2005, JAPEX conducted seismic surveys in and around the Tañon
Strait. A multi-channel sub-bottom profiling covering approximately 751 kilometers was
ANTECEDENT FACTS AND PROCEEDINGS also done to determine the area's underwater composition.9

Petitioners in G.R. No. 180771, collectively referred to as the "Resident Marine JAPEX committed to drill one exploration well during the second sub-phase of the
Mammals" in the petition, are the toothed whales, dolphins, porpoises, and other project. Since the well was to be drilled in the marine waters of Aloguinsan and
cetacean species, which inhabit the waters in and around the Tañon Strait. They are Pinamungajan, where the Tañon Strait was declared a protected seascape in 1988,10
joined by Gloria Estenzo Ramos (Ramos) and Rose-Liza Eisma-Osorio (Eisma-Osorio) as JAPEX agreed to comply with the Environmental Impact Assessment requirements
their legal guardians and as friends (to be collectively known as "the Stewards") who pursuant to Presidential Decree No. 1586, entitled "Establishing An Environmental
allegedly empathize with, and seek the protection of, the aforementioned marine Impact Statement System, Including Other Environmental Management Related
species. Also impleaded as an unwilling co-petitioner is former President Gloria Measures And For Other Purposes."11
Macapagal-Arroyo, for her express declaration and undertaking in the ASEAN Charter to
protect the Tañon Strait, among others.5 On January 31, 2007, the Protected Area Management Board12 of the Tañon Strait
(PAMB-Tañon Strait) issued Resolution No. 2007-001,13 wherein it adopted the Initial
Petitioners in G.R. No. 181527 are the Central Visayas Fisherfolk Development Center Environmental Examination (IEE) commissioned by JAPEX, and favorably recommended
(FIDEC), a non-stock, non-profit, non-governmental organization, established for the the approval of JAPEX's application for an ECC.
welfare of the marginal fisherfolk in Region VII; and Cerilo D. Engarcial (Engarcial),
Ramon Yanong (Yanong) and Francisco Labid (Labid), in their personal capacities and as On March 6, 2007, the EMB of DENR Region VII granted an ECC to the DOE and JAPEX for
representatives of the subsistence fisherfolk of the municipalities of Aloguinsan and the offshore oil and gas exploration project in Tañon Strait.14 Months later, on
Pinamungajan, Cebu. November 16, 2007, JAPEX began to drill an exploratory well, with a depth of 3,150
meters, near Pinamungajan town in the western Cebu Province.15 This drilling lasted
Named as respondents in both petitions are the late Angelo T. Reyes, as then Secretary until February 8, 2008.16
of the Department of Energy (DOE); Jose L. Atienza, as then Secretary of the DENR;
Leonardo R. Sibbaluca, as then DENR-Regional Director for Region VII and Chairman of It was in view of the foregoing state of affairs that petitioners applied to this Court for
the Tañon Strait Protected Seascape Management Board; Japan Petroleum Exploration redress, via two separate original petitions both dated December 17, 2007, wherein they
Co., Ltd. (JAPEX), a company organized and existing under the laws of Japan with a commonly seek that respondents be enjoined from implementing SC-46 for, among
Philippine branch office; and Supply Oilfield Services, Inc. (SOS), as the alleged Philippine others, violation of the 1987 Constitution.
agent of JAPEX.
On March 31, 2008, SOS filed a Motion to Strike17 its name as a respondent on the
In G.R. No. 181527, the following were impleaded as additional public respondents: Alan ground that it is not the Philippine agent of JAPEX. In support of its motion, it submitted
C. Arranguez (Arranguez) and Antonio Labios (Labios), in their capacities as then Director the branch office application of JAPEX,18 wherein the latter's resident agent was clearly
of the EMB, Region VII and then Regional Director of the DOE, Region VII, respectively.6 identified. SOS claimed that it had acted as a mere logistics contractor for JAPEX in its oil
and gas exploration activities in the Philippines.

23
 JAPEX Philippines Ltd. 19th Floor Pearlbank Centre
Petitioners Resident Marine Mammals and Stewards opposed SOS's motion on the c/o Atty. Maria Farah Z.G. 146 Valero Street
ground that it was premature, it was pro-forma, and it was patently dilatory. They Nicolas-Suchianco Salcedo Village, Makati City
claimed that SOS admitted that "it is in law a (sic) privy to JAPEX" since it did the drilling
and other exploration activities in Tañon Strait under the instructions of its principal, Atty. Maria Farah Z.G. Suite 2404 Discovery Centre
JAPEX. They argued that it would be premature to drop SOS as a party as JAPEX had not Nicolas-Suchianco 25 ADB Avenue
yet been joined in the case; and that it was "convenient" for SOS to ask the Court to Resident Agent of JAPEX Ortigas Center, Pasig City
simply drop its name from the parties when what it should have done was to either Philippines Ltd.
notify or ask JAPEX to join it in its motion to enable proper substitution. At this juncture,
This Resolution was personally served to the above parties, at the above addresses on
petitioners Resident Marine Mammals and Stewards also asked the Court to implead February 23, 2012. On March 20, 2012, JAPEX Philippines, Ltd. (JAPEX PH), by way of
JAPEX Philippines as a co-respondent or as a substitute for its parent company, JAPEX.19 special appearance, filed a Motion to Admit23 its Motion for Clarification,24 wherein
JAPEX PH requested to be clarified as to whether or not it should deem the February 7,
On April 8, 2008, the Court resolved to consolidate G.R. No. 180771 and G.R. No. 181527. 2012 Resolution as this Court's Order of its inclusion in the case, as it has not been
impleaded. It also alleged that JAPEX PH had already stopped exploration activities in
On May 26, 2008, the FIDEC manifested20 that they were adopting in toto the the Tañon Strait way back in 2008, rendering this case moot.
Opposition to Strike with Motion to Implead filed by petitioners Resident Marine
Mammals and Stewards in G.R. No. 180771. On March 22, 2012, JAPEX PH, also by special appearance, filed a Motion for Extension
of Time25 to file its Memorandum. It stated that since it received the February 7, 2012
On June 19, 2008, public respondents filed their Manifestation21 that they were not Resolution on February 23, 2012, it had until March 22, 2012 to file its Memorandum.
objecting to SOS's Motion to Strike as it was not JAPEX's resident agent. JAPEX during all JAPEX PH then asked for an additional thirty days, supposedly to give this Court some
this time, did not file any comment at all. time to consider its Motion for Clarification.

Thus, on February 7, 2012, this Court, in an effort to ensure that all the parties were On April 24, 2012, this Court issued a Resolution26 granting JAPEX PH's Motion to Admit
given ample chance and opportunity to answer the issues herein, issued a Resolution its Motion for Clarification. This Court, addressing JAPEX PH's Motion for Clarification,
directing the Court's process servicing unit to again serve the parties with a copy of the held:chanroblesvirtuallawlibrary
September 23, 2008 Resolution of the Court, which gave due course to the petitions in With regard to its Motion for Clarification (By Special Appearance) dated March 19,
G.R. Nos. 180771 and 181527, and which required the parties to submit their respective 2012, this Court considers JAPEX Philippines. Ltd. as a real party-in-interest in these
memoranda. The February 7, 2012 Resolution22 reads as cases. Under Section 2, Rule 3 of the 1997 Rules of Court, a real party-in-interest is the
follows:chanroblesvirtuallawlibrary party who stands to be benefited or injured by the judgment in the suit, or the party
G.R. No. 180771 (Resident Marine Mammals of the Protected Seascape Tañon Strait, entitled to the avails of the suit. Contrary to JAPEX Philippines, Ltd.'s allegation that it is
e.g., Toothed Whales, Dolphins, Porpoises and Other Cetacean Species, et al. vs. Hon. a completely distinct corporation, which should not be confused with JAPEX Company,
Angelo Reyes, in his capacity as Secretary of the Department of Energy, et al.) and G.R. Ltd., JAPEX Philippines, Ltd. is a mere branch office, established by JAPEX Company, Ltd.
No. 181527 (Central Visayas Fisherfolk Development Center, et al. vs. Hon. Angelo Reyes, for the purpose of carrying out the latter's business transactions here in the Philippines.
et al.). - The Court Resolved to direct the Process Servicing Unit to RE-SEND the Thus, JAPEX Philippines, Ltd., has no separate personality from its mother foreign
resolution dated September 23, 2008 to the following parties and counsel, together with corporation, the party impleaded in this case.
this resolution:chanroblesvirtuallawlibrary
Atty. Aristeo O. Cariño 20th Floor Pearlbank Centre Moreover, Section 128 of the Corporation Code provides for the responsibilities and
Counsel for Respondent Supply 146 Valero Street duties of a resident agent of a foreign corporation:chanroblesvirtuallawlibrary
Oilfield Services, Inc. Salcedo Village, Makati City SECTION 128. Resident agent; service of process. — The Securities and Exchange
Commission shall require as a condition precedent to the issuance of the license to
JAPEX Philippines Ltd. 20th Floor Pearlbank Centre transact business in the Philippines by any foreign corporation that such corporation file
146 Valero Street with the Securities and Exchange Commission a written power of attorney designating
Salcedo Village, Makati City some person who must be a resident of the Philippines, on whom any summons and
other legal processes may be served in all actions or other legal proceedings against such

24
corporation, and consenting that service upon such resident agent shall be admitted and
held as valid as if served upon the duly authorized officers of the foreign corporation at
its home office. Any such foreign corporation shall likewise execute and file with the
Securities and Exchange Commission an agreement or stipulation, executed by the
proper authorities of said corporation, in form and substance as follows:
Since petitioners had already filed their respective memoranda,29 and public
respondents had earlier filed a Manifestation30 that they were adopting their Comment
dated March 31, 2008 as their memorandum, this Court submitted the case for
decision.chanRoblesvirtualLawlibrary

"The (name of foreign corporation) does hereby stipulate and agree, in consideration of Petitioners' Allegations
its being granted by the Securities and Exchange Commission a license to transact
business in the Philippines, that if at any time said corporation shall cease to transact Protesting the adverse ecological impact of JAPEX's oil exploration activities in the Tañon
business in the Philippines, or shall be without any resident agent in the Philippines on Strait, petitioners Resident Marine Mammals and Stewards aver that a study made after
whom any summons or other legal processes may be served, then in any action or the seismic survey showed that the fish catch was reduced drastically by 50 to 70
proceeding arising out of any business or transaction which occurred in the Philippines, percent. They claim that before the seismic survey, the average harvest per day would
service of any summons or other legal process may be made upon the Securities and be from 15 to 20 kilos; but after the activity, the fisherfolk could only catch an average
Exchange Commission and that such service shall have the same force and effect as if of 1 to 2 kilos a day. They attribute this "reduced fish catch" to the destruction of the
made upon the duly-authorized officers of the corporation at its home office." "payao" also known as the "fish aggregating device" or "artificial reef."31 Petitioners
Resident Marine Mammals and Stewards also impute the incidences of "fish kill"32
Whenever such service of summons or other process shall be made upon the Securities observed by some of the local fisherfolk to the seismic survey. And they further allege
and Exchange Commission, the Commission shall, within ten (10) days thereafter, that the ECC obtained by private respondent JAPEX is invalid because public
transmit by mail a copy of such summons or other legal process to the corporation at its consultations and discussions with the affected stakeholders, a pre-requisite to the
home or principal office. The sending of such copy by the Commission shall be a issuance of the ECC, were not held prior to the ECC's issuance.
necessary part of and shall complete such service. All expenses incurred by the
Commission for such service shall be paid in advance by the party at whose instance the In its separate petition, petitioner FIDEC confirms petitioners Resident Marine Mammals
service is made. and Stewards' allegations of reduced fish catch and lack of public consultations or
discussions with the fisherfolk and other stakeholders prior to the issuance of the ECC.
In case of a change of address of the resident agent, it shall be his or its duty to Moreover, it alleges that during the seismic surveys and drilling, it was barred from
immediately notify in writing the Securities and Exchange Commission of the new entering and fishing within a 7-kilometer radius from the point where the oilrig was
address. located, an area greater than the 1.5-kilometer radius "exclusion zone" stated in the
It is clear from the foregoing provision that the function of a resident agent is to receive IEE.33 It also agrees in the allegation that public respondents DENR and EMB abused
summons or legal processes that may be served in all actions or other legal proceedings their discretion when they issued an ECC to public respondent DOE and private
against the foreign corporation. These cases have been prosecuted in the name of JAPEX respondent JAPEX without ensuring the strict compliance with the procedural and
Company, Ltd., and JAPEX Philippines Ltd., as its branch office and resident agent, had substantive requirements under the Environmental Impact Assessment system, the
been receiving the various resolutions from this Court, as evidenced by Registry Return Fisheries Code, and their implementing rules and regulations.34 It further claims that
Cards signed by its representatives. despite several requests for copies of all the documents pertaining to the project in
And in the interest of justice, this Court resolved to grant JAPEX PH's motion for Taflon Strait, only copies of the PAMB-Tañon Strait Resolution and the ECC were given
extension of time to file its memorandum, and was given until April 21, 2012, as prayed to the fisherfolk.35
for, within which to comply with the submission.27
Public Respondents' Counter-Allegations
Without filing its Memorandum, JAPEX PH, on May 14, 2012, filed a motion, asking this
Court for an additional thirty days to file its Memorandum, to be counted from May 8, Public respondents, through the Solicitor General, contend that petitioners Resident
2012. It justified its request by claiming that this Court's April 24, 2012 Resolution was Marine Mammals and Stewards have no legal standing to file the present petition; that
issued past its requested deadline for filing, which was on April 21, 2012.28 SC-46 does not violate the 1987 Constitution and the various laws cited in the petitions;
that the ECC was issued in accordance with existing laws and regulations; that public
On June 19, 2012, this Court denied JAPEX PH's second request for additional time to file respondents may not be compelled by mandamus to furnish petitioners copies of all
its Memorandum and dispensed with such filing. documents relating to SC-46; and that all the petitioners failed to show that they are

25
entitled to injunctive relief. They further contend that the issues raised in these petitions In these consolidated petitions, this Court has determined that the various issues raised
have been rendered moot and academic by the fact that SC-46 had been mutually by the petitioners may be condensed into two primary issues:
terminated by the parties thereto effective June 21, 2008.36 Procedural Issue: Locus Standi of the Resident Marine Mammals and Stewards,
petitioners in G.R. No. 180771; and
ISSUES
Main Issue: Legality of Sendee Contract No. 46.
The following are the issues posited by petitioners Resident Marine Mammals and DISCUSSION
Stewards in G.R. No. 180771:chanroblesvirtuallawlibrary
WHETHER OR NOT PETITIONERS HAVE LOCUS STANDI TO FILE THE INSTANT PETITION; At the outset, this Court makes clear that the '"moot and academic principle' is not a
magical formula that can automatically dissuade the courts in resolving a case." Courts
WHETHER OR NOT SERVICE CONTRACT NO. 46 IS VIOLAT[IVE] OF THE 1987 PHILIPPINE have decided cases otherwise moot and academic under the following exceptions:
CONSTITUTION AND STATUTES;
1) There is a grave violation of the Constitution;
WHETHER OR NOT THE ON-GOING EXPLORATION AND PROPOSED EXPLOITATION FOR
OIL AND NATURAL GAS AT, AROUND, AND UNDERNEATH THE MARINE WATERS OF THE 2) The exceptional character of the situation and the paramount public interest is
TANON STRAIT PROTECTED SEASCAPE IS INCONSISTENT WITH THE PHILIPPINE involved;
COMMITMENTS TO INTERNATIONAL ENVIRONMENTAL LAWS AND INSTRUMENTS; AND
3) The constitutional issue raised requires formulation of controlling principles to guide
WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL COMPLIANCE CERTIFICATE the bench, the bar, and the public; and
(ECC) IN ENVIRONMENTALLY CRITICAL AREAS AND HABITATS OF MARINE WILDLIFE AND
ENDANGERED SPECIES IS LEGAL AND PROPER.37 4) The case is capable of repetition yet evading review.39
Meanwhile, in G.R. No. 181527, petitioner FIDEC presented the following issues for our
consideration:chanroblesvirtuallawlibrary In this case, despite the termination of SC-46, this Court deems it necessary to resolve
WHETHER OR NOT SERVICE CONTRACT NO. 46 EXECUTED BETWEEN RESPONDENTS DOE these consolidated petitions as almost all of the foregoing exceptions are present in this
AND JAPEX SHOULD BE NULLIFIED AND SET ASIDE FOR BEING IN DIRECT VIOLATION OF case. Both petitioners allege that SC-46 is violative of the Constitution, the
SPECIFIC PROVISIONS OF THE 1987 PHILIPPINE CONSTITUTION AND APPLICABLE LAWS; environmental and livelihood issues raised undoubtedly affect the public's interest, and
the respondents' contested actions are capable of
WHETHER OR NOT THE OFF-SHORE OIL EXPLORATION CONTEMPLATED UNDER SERVICE repetition.chanRoblesvirtualLawlibrary
CONTRACT NO. 46 IS LEGALLY PERMISSIBLE WITHOUT A LAW BEING DULY PASSED
EXPRESSLY FOR THE PURPOSE; Procedural Issues

WHETHER OR NOT THE OIL EXPLORATION BEING CONDUCTED WITHIN THE TANON Locus Standi of Petitioners Resident Marine Mammals and Stewards
STRAIT PROTECTED SEASCAPE VIOLATES THE RIGHTS AND LEGAL PROTECTION GRANTED
TO PETITIONERS UNDER THE CONSTITUTION AND APPLICABLE LAWS. The Resident Marine Mammals, through the Stewards, "claim" that they have the legal
standing to file this action since they stand to be benefited or injured by the judgment
WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL COMPLIANCE CERTIFICATE in this suit.40 Citing Oposa v. Factoran, Jr.,41 they also assert their right to sue for the
(ECC) FOR SUCH AN ENVIRONMENTALLY CRITICAL PROJECT INSIDE AN faithful performance of international and municipal environmental laws created in their
ENVIRONMENTALLY CRITICAL AREA SUCH AS THE TANON STRAIT PROTECTED SEASCAPE favor and for their benefit. In this regard, they propound that they have the right to
CONFORMED TO LAW AND EXISTING RULES AND REGULATIONS ON THE MATTER. demand that they be accorded the benefits granted to them in multilateral international
instruments that the Philippine Government had signed, under the concept of
WHETHER OR NOT THE RESPONDENTS MAY BE COMPELLED BY MANDAMUS TO stipulation pour autrui.42
FURNISH PETITIONERS WITH COPIES OF THE DOCUMENTS PERTAINING TO THE TANON
STRAIT OIL EXPLORATION PROJECT.38 For their part, the Stewards contend that there should be no question of their right to
represent the Resident Marine Mammals as they have stakes in the case as forerunners

26
of a campaign to build awareness among the affected residents of Tañon Strait and as
stewards of the environment since the primary steward, the Government, had failed in Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a
its duty to protect the environment pursuant to the public trust doctrine.43 fiction found useful for maritime purposes. The corporation sole - a creature of
ecclesiastical law - is an acceptable adversary and large fortunes ride on its cases. The
Petitioners Resident Marine Mammals and Stewards also aver that this Court may lower ordinary corporation is a "person" for purposes of the adjudicatory processes, whether
the benchmark in locus standi as an exercise of epistolary jurisdiction.44 it represents proprietary, spiritual, aesthetic, or charitable causes.

In opposition, public respondents argue that the Resident Marine Mammals have no So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches,
standing because Section 1, Rule 3 of the Rules of Court requires parties to an action to ridges, groves of trees, swampland, or even air that feels the destructive pressures of
be either natural or juridical persons, viz.:chanroblesvirtuallawlibrary modern technology and modem life. The river, for example, is the living symbol of all the
Section 1. Who may be parties; plaintiff and defendant. - Only natural or juridical life it sustains or nourishes—fish, aquatic insects, water ouzels, otter, fisher, deer, elk,
persons, or entities authorized by law may be parties in a civil action. The term "plaintiff bear, and all other animals, including man, who are dependent on it or who enjoy it for
may refer to the claiming party, the counter-claimant, the cross-claimant, or the third its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life
(fourth, etc.)-party plaintiff. The term "defendant" may refer to the original defending that is part of it. Those people who have a meaningful relation to that body of water—
party, the defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.)- whether it be a fisherman, a canoeist, a zoologist, or a logger—must be able to speak for
party defendant. the values which the river represents and which are threatened with destruction.50
The public respondents also contest the applicability of Oposa, pointing out that the (Citations omitted.)
petitioners therein were all natural persons, albeit some of them were still unborn.45 The primary reason animal rights advocates and environmentalists seek to give animals
and inanimate objects standing is due to the need to comply with the strict requirements
As regards the Stewards, the public respondents likewise challenge their claim of legal in bringing a suit to court. Our own 1997 Rules of Court demand that parties to a suit be
standing on the ground that they are representing animals, which cannot be parties to either natural or juridical persons, or entities authorized by law. It further necessitates
an action. Moreover, the public respondents argue that the Stewards are not the real the action to be brought in the name of the real party-in-interest, even if filed by a
parties-in-interest for their failure to show how they stand to be benefited or injured by representative, viz.:chanroblesvirtuallawlibrary
the decision in this case.46 Rule 3
Parties to Civil Actions
Invoking the alter ego principle in political law, the public respondents claim that absent
any proof that former President Arroyo had disapproved of their acts in entering into Section 1. Who may be parties; plaintiff and defendant. - Only natural or juridical
and implementing SC-46, such acts remain to be her own.47 persons, or entities authorized by law may be parties in a civil action. The term "plaintiff
may refer to the claiming party, the counter-claimant, the cross-claimant, or the third
The public respondents contend that since petitioners Resident Marine Mammals and (fourth, etc.)-party plaintiff. The term "defendant" may refer to the original defending
Stewards' petition was not brought in the name of a real party-in-interest, it should be party, the defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.)-
dismissed for failure to state a cause of action.48 party defendant.

The issue of whether or not animals or even inanimate objects should be given legal
standing in actions before courts of law is not new in the field of animal rights and
environmental law. Petitioners Resident Marine Mammals and Stewards cited the 1972
United States case Sierra Club v. Rogers C.B. Morton,49 wherein Justice William O.
Douglas, dissenting to the conventional thought on legal standing,
opined:chanroblesvirtuallawlibrary
The critical question of "standing" would be simplified and also put neatly in focus if we
fashioned a federal rule that allowed environmental issues to be litigated before federal
agencies or federal courts in the name of the inanimate object about to be despoiled,
defaced, or invaded by roads and bulldozers and where injury is the subject of public
outrage, x x x.
Sec. 2. Parties in interest. - 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.
Unless otherwise authorized by law or these Rules, every action must be prosecuted or
defended in the name of the real party in interest.
Sec. 3. Representatives as parties. - Where the action is allowed to be prosecuted or
defended by a representative or someone acting in a fiduciary capacity, the beneficiary
shall be included in the title of the case and shall be deemed to be the real party in
interest. A representative may be a trustee of an express trust, a guardian, an executor
or administrator, or a party authorized by law or these Rules. An agent acting in his own

27
name and for the benefit of an undisclosed principal may sue or be sued without joining Elucidating on this doctrine, the Court, in Systems Factors Corporation v. National Labor
the principal except when the contract involves things belonging to the principal. Relations Commission55 held that:chanroblesvirtuallawlibrary
It had been suggested by animal rights advocates and environmentalists that not only Remedial statutes or statutes relating to remedies or modes of procedure, which do not
natural and juridical persons should be given legal standing because of the difficulty for create new or take away vested rights, but only operate in furtherance of the remedy or
persons, who cannot show that they by themselves are real parties-in-interests, to bring confirmation of rights already existing, do not come within the legal conception of a
actions in representation of these animals or inanimate objects. For this reason, many retroactive law, or the general rule against retroactive operation of statutes. Statutes
environmental cases have been dismissed for failure of the petitioner to show that regulating the procedure of the courts will be construed as applicable to actions pending
he/she would be directly injured or affected by the outcome of the case. However, in and undetermined at the time of their passage. Procedural laws are retroactive in that
our jurisdiction, locus standi in environmental cases has been given a more liberalized sense and to that extent, x x x.
approach. While developments in Philippine legal theory and jurisprudence have not Moreover, even before the Rules of Procedure for Environmental Cases became
progressed as far as Justice Douglas's paradigm of legal standing for inanimate objects, effective, this Court had already taken a permissive position on the issue of locus standi
the current trend moves towards simplification of procedures and facilitating court in environmental cases. In Oposa, we allowed the suit to be brought in the name of
access in environmental cases. generations yet unborn "based on the concept of intergenerational responsibility insofar
as the right to a balanced and healthful ecology is concerned."56 Furthermore, we said
Recently, the Court passed the landmark Rules of Procedure for Environmental Cases,51 that the right to a balanced and healthful ecology, a right that does not even need to be
which allow for a "citizen suit," and permit any Filipino citizen to file an action before our stated in our Constitution as it is assumed to exist from the inception of humankind,
courts for violations of our environmental laws:chanroblesvirtuallawlibrary carries with it the correlative duty to refrain from impairing the environment.57
SEC. 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 In light of the foregoing, the need to give the Resident Marine Mammals legal standing
environmental laws. Upon the filing of a citizen suit, the court shall issue an order which has been eliminated by our Rules, which allow any Filipino citizen, as a steward of nature,
shall contain a brief description of the cause of action and the reliefs prayed for, to bring a suit to enforce our environmental laws. It is worth noting here that the
requiring all interested parties to manifest their interest to intervene in the case within Stewards are joined as real parties in the Petition and not just in representation of the
fifteen (15) days from notice thereof. The plaintiff may publish the order once in a named cetacean species. The Stewards, Ramos and Eisma-Osorio, having shown in their
newspaper of a general circulation in the Philippines or furnish all affected barangays petition that there may be possible violations of laws concerning the habitat of the
copies of said order. Resident Marine Mammals, are therefore declared to possess the legal standing to file
this petition.chanRoblesvirtualLawlibrary
Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall be governed by their
respective provisions.52 (Emphasis ours.) Impleading Former President Gloria Macapagal-Arroyo as an Unwilling Co-Petitioner
Explaining the rationale for this rule, the Court, in the Annotations to the Rules of
Procedure for Environmental Cases, commented:chanroblesvirtuallawlibrary Petitioners Stewards in G.R. No. 180771 impleaded as an unwilling co-petitioner former
Citizen suit. To further encourage the protection of the environment, the Rules enable President Gloria Macapagal-Arroyo for the following reasons, which we
litigants enforcing environmental rights to file their cases as citizen suits. This provision quote:chanroblesvirtuallawlibrary
liberalizes standing for all cases filed enforcing environmental laws and collapses the Her Excellency Gloria Macapagal-Arroyo, also of legal age, Filipino and resident of
traditional rule on personal and direct interest, on the principle that humans are Malacañang Palace, Manila Philippines. Steward Gloria Macapagal-Arroyo happens to be
stewards of nature. The terminology of the text reflects the doctrine first enunciated in the incumbent President of the Philippine Islands. She is personally impleaded in this
Oposa v. Factoran, insofar as it refers to minors and generations yet unborn.53 suit as an unwilling co-petitioner by reason of her express declaration and undertaking
(Emphasis supplied, citation omitted.) under the recently signed ASEAN Charter to protect Your Petitioners' habitat, among
Although this petition was filed in 2007, years before the effectivity of the Rules of others. She is meantime dominated as an unwilling co-petitioner due to lack of material
Procedure for Environmental Cases, it has been consistently held that rules of procedure time in seeking her signature and imprimatur hereof and due to possible legal
"may be retroactively applied to actions pending and undetermined at the time of their complications that may hereafter arise by reason of her official relations with public
passage and will not violate any right of a person who may feel that he is adversely respondents under the alter ego principle in political law.58cralawlawlibrary
affected, inasmuch as there is no vested rights in rules of procedure."54 This is incorrect.

Section 10, Rule 3 of the Rules of Court provides:chanroblesvirtuallawlibrary

28
Sec. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as of 1972 cannot legally justify SC-46 as it is deemed to have been repealed by the 1987
plaintiff can not be obtained, he may be made a defendant and the reason therefor shall Constitution and subsequent laws, which enunciate new policies concerning the
be stated in the complaint. environment.64 In addition, petitioners in G.R. No. 180771 claim that paragraphs 2 and
Under the foregoing rule, when the consent of a party who should be joined as a plaintiff 3 of Section 2, Article XII of the 1987 Constitution mandate the exclusive use and
cannot be obtained, he or she may be made a party defendant to the case. This will put enjoyment by the Filipinos of our natural resources,65 and paragraph 4 does not speak
the unwilling party under the jurisdiction of the Court, which can properly implead him of service contracts but of FTAAs or Financial Technical Assistance Agreements.66
or her through its processes. The unwilling party's name cannot be simply included in a
petition, without his or her knowledge and consent, as such would be a denial of due The public respondents again controvert the petitioners' claims and asseverate that SC-
process. 46 does not violate Section 2, Article XII of the 1987 Constitution. They hold that SC-46
does not fall under the coverage of paragraph 1 but instead, under paragraph 4 of
Moreover, the reason cited by the petitioners Stewards for including former President Section 2, Article XII of the 1987 Constitution on FTAAs. They also insist that paragraphs
Macapagal-Arroyo in their petition, is not sufficient to implead her as an unwilling co- 2 and 3, which refer to the grant of exclusive fishing right to Filipinos, are not applicable
petitioner. Impleading the former President as an unwilling co-petitioner, for an act she to SC-46 as the contract does not grant exclusive fishing rights to JAPEX nor does it
made in the performance of the functions of her office, is contrary to the public policy otherwise impinge on the FIDEC's right to preferential use of communal marine and
against embroiling the President in suits, "to assure the exercise of Presidential duties fishing resources.67
and functions free from any hindrance or distraction, considering that being the Chief
Executive of the Government is a job that, aside from requiring all of the office holder's Ruling of the Court
time, also demands undivided attention."59 On the legality of Service Contract No. 46
vis-a-vis Section 2, Article XII of the 1987 Constitution
Therefore, former President Macapagal-Arroyo cannot be impleaded as one of the
petitioners in this suit. Thus, her name is stricken off the title of this The petitioners insist that SC-46 is null and void for having violated Section 2, Article XII
case.chanRoblesvirtualLawlibrary of the 1987 Constitution, which reads as follows:chanroblesvirtuallawlibrary
Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other
Main Issue: mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
Legality of Service Contract No. 46 fauna, and other natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated. The exploration,
Service Contract No. 46 vis-a-vis development, and utilization of natural resources shall be under the full control and
Section 2, Article XII of the supervision of the State. The State may directly undertake such activities, or it may enter
1987 Constitution into co-production, joint venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per centum of whose capital is
Petitioners maintain that SC-46 transgresses the Jura Regalia Provision or paragraph 1, owned by such citizens. Such agreements may be for a period not exceeding twenty-five
Section 2, Article XII of the 1987 Constitution because JAPEX is 100% Japanese-owned.60 years, renewable for not more than twenty-five years, and under such terms and
Furthermore, the FIDEC asserts that SC-46 cannot be considered as a technical and conditions as may be provided by law. In cases of water rights for irrigation, water
financial assistance agreement validly executed under paragraph 4 of the same supply, fisheries, or industrial uses other than the development of water power,
provision.61 The petitioners claim that La Bugal-B'laan Tribal Association, Inc. v. beneficial use may be the measure and limit of the grant.
Ramos62 laid down the guidelines for a valid service contract, one of which is that there
must exist a general law for oil exploration before a service contract may be entered into The State shall protect the nation's marine wealth in its archipelagic waters, territorial
by the Government. The petitioners posit that the service contract in La Bugal is sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to
presumed to have complied with the requisites of (a) legislative enactment of a general Filipino citizens.
law after the effectivity of the 1987 Constitution (such as Republic Act No. 7942, or the
Philippine Mining Law of 1995, governing mining contracts) and (b) presidential The Congress may, by law, allow small-scale utilization of natural resources by Filipino
notification. The petitioners thus allege that the ruling in La Bugal, which involved mining citizens, as well as cooperative fish farming, with priority to subsistence fishermen and
contracts under Republic Act No. 7942, does not apply in this case.63 The petitioners fishworkers in rivers, lakes, bays, and lagoons.
also argue that Presidential Decree No. 87 or the Oil Exploration and Development Act

29
The President may enter into agreements with foreign-owned corporations involving
either technical or financial assistance for large-scale exploration, development, and
utilization of minerals, petroleum, and other mineral oils according to the general terms
and conditions provided by law, based on real contributions to the economic growth and
general welfare of the country. In such agreements, the State shall promote the
development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with
this provision, within thirty days from its execution. (Emphases ours.)
This Court has previously settled the issue of whether service contracts are still allowed
under the 1987 Constitution. In La Bugal, we held that the deletion of the words "service
contracts" in the 1987 Constitution did not amount to a ban on them per se. In fact, in
that decision, we quoted in length, portions of the deliberations of the members of the
Constitutional Commission (ConCom) to show that in deliberating on paragraph 4,
Section 2, Article XII, they were actually referring to service contracts as understood in
the 1973 Constitution, albeit with safety measures to eliminate or minimize the abuses
prevalent during the martial law regime, to wit:chanroblesvirtuallawlibrary
Summation of the ConCom Deliberations
At this point, we sum up the matters established, based on a careful reading of the
ConCom deliberations, as follows:
In their deliberations on what was to become paragraph 4, the framers used the term
service contracts in referring to agreements x x x involving either technical or financial
assistance.
They spoke of service contracts as the concept was understood in the 1973 Constitution.
It was obvious from their discussions that they were not about to ban or eradicate
service contracts.
Instead, they were plainly crafting provisions to put in place safeguards that would
eliminate or minimize the abuses prevalent during the marital law regime. In brief, they
were going to permit service contracts with foreign corporations as contractors, but with
safety measures to prevent abuses, as an exception to the general norm established in
the first paragraph of Section 2 of Article XII. This provision reserves or limits to Filipino
citizens and corporations at least 60 percent of which is owned by such citizens — the
exploration, development and utilization of natural resources.
(2) The President shall be the signatory for the government because, supposedly before
This provision was prompted by the perceived insufficiency of Filipino capital and the an agreement is presented to the President for signature, it will have been vetted several
felt need for foreign investments in the EDU of minerals and petroleum resources. times over at different levels to ensure that it conforms to law and can withstand public
scrutiny.
The framers for the most part debated about the sort of safeguards that would be
considered adequate and reasonable. But some of them, having more "radical" leanings,
wanted to ban service contracts altogether; for them, the provision would permit aliens
to exploit and benefit from the nation's natural resources, which they felt should be
reserved only for Filipinos.
In the explanation of their votes, the individual commissioners were heard by the entire
body. They sounded off their individual opinions, openly enunciated their philosophies,
and supported or attacked the provisions with fervor. Everyone's viewpoint was heard.
In the final voting, the Article on the National Economy and Patrimony — including
paragraph 4 allowing service contracts with foreign corporations as an exception to the
general norm in paragraph 1 of Section 2 of the same article — was resoundingly
approved by a vote of 32 to 7, with 2 abstentions.
Agreements Involving Technical Or Financial Assistance Are Service Contracts with
Safeguards
From the foregoing, we are impelled to conclude that the phrase agreements involving
either technical or financial assistance, referred to in paragraph 4, are in fact service
contracts. But unlike those of the 1973 variety, the new ones are between foreign
corporations acting as contractors on the one hand; and on the other, the government
as principal or "owner" of the works. In the new service contracts, the foreign
contractors provide capital, technology and technical know-how, and managerial
expertise in the creation and operation of large-scale mining/extractive enterprises; and
the government, through its agencies (DENR, MGB), actively exercises control and
supervision over the entire operation.68cralawlawlibrary
In summarizing the matters discussed in the ConCom, we established that paragraph 4,
with the safeguards in place, is the exception to paragraph 1, Section 2 of Article XII. The
following are the safeguards this Court enumerated in La
Bugal:chanroblesvirtuallawlibrary
Such service contracts may be entered into only with respect to minerals, petroleum and
other mineral oils. The grant thereof is subject to several safeguards, among which are
these requirements:
(1) The service contract shall be crafted in accordance with a general law that will set
standard or uniform terms, conditions and requirements, presumably to attain a certain
uniformity in provisions and avoid the possible insertion of terms disadvantageous to
the country.
30
(3) Within thirty days of the executed agreement, the President shall report it to
Congress to give that branch of government an opportunity to look over the agreement
and interpose timely objections, if any.69cralawlawlibrary
Adhering to the aforementioned guidelines, this Court finds that SC-46 is indeed null and
void for noncompliance with the requirements of the 1987 Constitution.
1. The General Law on Oil Exploration
The disposition, exploration, development, exploitation, and utilization of indigenous
petroleum in the Philippines are governed by Presidential Decree No. 87 or the Oil
Exploration and Development Act of 1972. This was enacted by then President Ferdinand
Marcos to promote the discovery and production of indigenous petroleum through the
utilization of government and/or local or foreign private resources to yield the maximum
benefit to the Filipino people and the revenues to the Philippine Government.70
Contrary to the petitioners' argument, Presidential Decree No. 87, although enacted in
1972, before the adoption of the 1987 Constitution, remains to be a valid law unless
otherwise repealed, to wit:chanroblesvirtuallawlibrary
ARTICLE XVIII - TRANSITORY PROVISIONS
Section 3. All existing laws, decrees, executive orders, proclamations, letters of
instructions, and other executive issuances not inconsistent with this Constitution shall
remain operative until amended, repealed, or revoked.
If there were any intention to repeal Presidential Decree No. 87, it would have been
done expressly by Congress. For instance, Republic Act No. 7160, more popularly known
as the Local Government Code of 1991, expressly repealed a number of laws, including
a specific provision in Presidential Decree No. 87, viz.:chanroblesvirtuallawlibrary
SECTION 534. Repealing Clause. — (a) Batas Pambansa Blg. 337, otherwise known as the
"Local Government Code," Executive Order No. 112 (1987), and Executive Order No. 319
(1988) are hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders,
instructions, memoranda and issuances related to or concerning the barangay are
hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital
fund; Section 3, a (3) and b (2) of Republic Act No. 5447 regarding the Special Education
Fund; Presidential Decree No. 144 as amended by Presidential Decree Nos. 559 and
1741; Presidential Decree No. 231 as amended; Presidential Decree No. 436 as amended But note must be made at this point that while Presidential Decree No. 87 may serve as
by Presidential Decree No. 558; and Presidential Decree Nos. 381, 436, 464, 477, 526, the general law upon which a service contract for petroleum exploration and extraction
632, 752, and 1136 are hereby repealed and rendered of no force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded Congress, since the Tañon Strait is a NIPAS75 area.
projects.
(e) The following provisions are hereby repealed or amended insofar as they are
inconsistent with the provisions of this Code: Sections 2, 16 and 29 of Presidential Decree
No. 704; Section 12 of Presidential Decree No. 87, as amended; Sections 52, 53, 66, 67,
68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463, as amended; and Section
16 of Presidential Decree No. 972, as amended, and
(f) All general and special laws, acts, city charters, decrees, executive orders,
proclamations and administrative regulations, or part or parts thereof which are
inconsistent with any of the provisions of this Code are hereby repealed or modified
accordingly. (Emphasis supplied.)
This Court could not simply assume that while Presidential Decree No. 87 had not yet
been expressly repealed, it had been impliedly repealed. As we held in Villareña v. The
Commission on Audit,71 "[i]mplied repeals are not lightly presumed." It is a settled rule
that when laws are in conflict with one another, every effort must be exerted to
reconcile them. In Republic of the Philippines v. Marcopper Mining Corporation,72 we
said:chanroblesvirtuallawlibrary
The two laws must be absolutely incompatible, and a clear finding thereof must surface,
before the inference of implied repeal may be drawn. The rule is expressed in the maxim,
interpretare et concordare leqibus est optimus interpretendi, i.e., every statute must be
so interpreted and brought into accord with other laws as to form a uniform system of
jurisprudence. The fundament is that the legislature should be presumed to have known
the existing laws on the subject and not have enacted conflicting statutes. Hence, all
doubts must be resolved against any implied repeal, and all efforts should be exerted in
order to harmonize and give effect to all laws on the subject. (Citation omitted.)
Moreover, in cases where the statute seems to be in conflict with the Constitution, but
a construction that it is in harmony with the Constitution is also possible, that
construction should be preferred.73 This Court, in Pangandaman v. Commission on
Elections74 expounding on this point, pronounced:chanroblesvirtuallawlibrary
It is a basic precept in statutory construction that a statute should be interpreted in
harmony with the Constitution and that the spirit, rather than the letter of the law
determines its construction; for that reason, a statute must be read according to its spirit
and intent, x x x. (Citation omitted.)
Consequently, we find no merit in petitioners' contention that SC-46 is prohibited on the
ground that there is no general law prescribing the standard or uniform terms,
conditions, and requirements for service contracts involving oil exploration and
extraction.
may be authorized, as will be discussed below, the exploitation and utilization of this
energy resource in the present case may be allowed only through a law passed by
31
2. President was not the signatory to SC-46 and the same was not submitted to Congress martial law regime."78 Thus, they are not just mere formalities, which will only render a
contract unenforceable but not void, if not complied with. They are requirements
While the Court finds that Presidential Decree No. 87 is sufficient to satisfy the placed, not just in an ordinary statute, but in the fundamental law, the non-observance
requirement of a general law, the absence of the two other conditions, that the of which will nullify the contract. Elucidating on the concept of a "constitution," this
President be a signatory to SC-46, and that Congress be notified of such contract, renders Court, in Manila Prince Hotel v. Government Service Insurance System,79
it null and void. held:chanroblesvirtuallawlibrary
A constitution is a system of fundamental laws for the governance and administration of
As SC-46 was executed in 2004, its terms should have conformed not only to the a nation. It is supreme, imperious, absolute and unalterable except by the authority from
provisions of Presidential Decree No. 87, but also to those of the 1987 Constitution. The which it emanates. It has been defined as the fundamental and paramount law of the
Civil Code provides:chanroblesvirtuallawlibrary nation. It prescribes the permanent framework of a system of government, assigns to
ARTICLE 1306. The contracting parties may establish such stipulations, clauses, terms the different departments their respective powers and duties, and establishes certain
and conditions as they may deem convenient, provided they are not contrary to law, fixed principles on which government is founded. The fundamental conception in other
morals, good customs, public order, or public policy. (Italics ours.) words is that it is a supreme law to which all other laws must conform and in accordance
In Heirs of San Miguel v. Court of Appeals,76 this Court held with which all private rights must be determined and all public authority administered.
that:chanroblesvirtuallawlibrary Under the doctrine of constitutional supremacy, if a law or contract violates any norm
It is basic that the law is deemed written into every contract. Although a contract is the of the constitution that law or contract whether promulgated by the legislative or by the
law between the parties, the provisions of positive law which regulate contracts are executive branch or entered into by private persons for private purposes is null and void
deemed written therein and shall limit and govern the relations between the parties, x and without any force and effect. Thus, since the Constitution is the fundamental,
x x. (Citations omitted.) paramount and supreme law of the nation, it is deemed written in every statute and
Paragraph 4, Section 2, Article XII of the 1987 Constitution requires that the President contract. (Emphasis ours.)
himself enter into any service contract for the exploration of petroleum. SC-46 appeared As this Court has held in La Bugal, our Constitution requires that the President himself
to have been entered into and signed only by the DOE through its then Secretary, Vicente be the signatory of service agreements with foreign-owned corporations involving the
S. Perez, Jr., contrary to the said constitutional requirement. Moreover, public exploration, development, and utilization of our minerals, petroleum, and other mineral
respondents have neither shown nor alleged that Congress was subsequently notified of oils. This power cannot be taken lightly.
the execution of such contract.
In this case, the public respondents have failed to show that the President had any
Public respondents' implied argument that based on the "alter ego principle," their acts participation in SC-46. Their argument that their acts are actually the acts of then
are also that of then President Macapagal-Arroyo's, cannot apply in this case. In Joson v. President Macapagal-Arroyo, absent proof of her disapproval, must fail as the
Torres,77 we explained the concept of the alter ego principle or the doctrine of qualified requirement that the President herself enter into these kinds of contracts is embodied
political agency and its limit in this wise:chanroblesvirtuallawlibrary not just in any ordinary statute, but in the Constitution itself. These service contracts
Under this doctrine, which recognizes the establishment of a single executive, all involving the exploitation, development, and utilization of our natural resources are of
executive and administrative organizations are adjuncts of the Executive Department, paramount interest to the present and future generations. Hence, safeguards were put
the heads of the various executive departments are assistants and agents of the Chief in place to insure that the guidelines set by law are meticulously observed and likewise
Executive, and, except in cases where the Chief Executive is required by the Constitution to eradicate the corruption that may easily penetrate departments and agencies by
or law to act in person or the exigencies of the situation demand that he act personally, ensuring that the President has authorized or approved of these service contracts
the multifarious executive and administrative functions of the Chief Executive are herself.
performed by and through the executive departments, and the acts of the Secretaries of
such departments, performed and promulgated in the regular course of business, are, Even under the provisions of Presidential Decree No. 87, it is required that the Petroleum
unless disapproved or reprobated by the Chief Executive presumptively the acts of the Board, now the DOE, obtain the President's approval for the execution of any contract
Chief Executive. (Emphasis ours, citation omitted.) under said statute, as shown in the following provision:chanroblesvirtuallawlibrary
While the requirements in executing service contracts in paragraph 4, Section 2 of Article SECTION 5. Execution of contract authorized in this Act. - Every contract herein
XII of the 1987 Constitution seem like mere formalities, they, in reality, take on a much authorized shall, subject to the approval of the President, be executed by the Petroleum
bigger role. As we have explained in La Bugal, they are the safeguards put in place by the Board created in this Act, after due public notice pre-qualification and public bidding or
framers of the Constitution to "eliminate or minimize the abuses prevalent during the concluded through negotiations. In case bids are requested or if requested no bid is

32
submitted or the bids submitted are rejected by the Petroleum Board for being repealed by the more general prohibition in Section 27 of Republic Act No. 9147. They
disadvantageous to the Government, the contract may be concluded through aver that Section 14, under which SC-46 falls, should instead be regarded as an
negotiation. exemption to Section 27.84

In opening contract areas and in selecting the best offer for petroleum operations, any Addressing the claim of petitioners in G.R. No. 180771 that there was a violation of
of the following alternative procedures may be resorted to by the Petroleum Board, Section 27 of Republic Act No. 9147, the public respondents assert that what the section
subject to prior approval of the President [.] prohibits is the exploration of minerals, which as defined in the Philippine Mining Act of
Even if we were inclined to relax the requirement in La Bugal to harmonize the 1987 1995, exclude energy materials such as coal, petroleum, natural gas, radioactive
Constitution with the aforementioned provision of Presidential Decree No. 87, it must materials and geothermal energy. Thus, since SC-46 involves oil and gas exploration,
be shown that the government agency or subordinate official has been authorized by Section 27 does not apply.85
the President to enter into such service contract for the government. Otherwise, it
should be at least shown that the President subsequently approved of such contract The public respondents defend the validity of SC-46 and insist that it does not grant
explicitly. None of these circumstances is evident in the case at exclusive fishing rights to JAPEX; hence, it does not violate the rule on preferential use
bar.chanRoblesvirtualLawlibrary of municipal waters. Moreover, they allege that JAPEX has not banned fishing in the
project area, contrary to the FIDEC's claim. The public respondents also contest the
Service Contract No. 46 vis-a-vis Other Laws attribution of the declining fish catch to the seismic surveys and aver that the allegation
is unfounded. They claim that according to the Bureau of Fisheries and Aquatic
Petitioners in G.R. No. 180771 claim that SC-46 violates Section 27 of Republic Act. No. Resources' fish catch data, the reduced fish catch started in the 1970s due to destructive
9147 or the Wildlife Resources Conservation and Protection Act, which bans all marine fishing practices.86
exploration and exploitation of oil and gas deposits. They also aver that Section 14 of
Republic Act No. 7586 or the National Integrated Protected Areas System Act of 1992 Ruling of the Court
(NIPAS Act), which allows the exploration of protected areas for the purpose of On the legality of Service Contract No. 46 vis-a-vis Other Laws
information-gathering, has been repealed by Section 27 of Republic Act No. 9147. The
said petitioners further claim that SC-46 is anathema to Republic Act No. 8550 or the Although we have already established above that SC-46 is null and void for being
Philippine Fisheries Code of 1998, which protects the rights of the fisherfolk in the violative of the 1987 Constitution, it is our duty to still rule on the legality of SC-46 vis-a-
preferential use of municipal waters, with the exception being limited only to research vis other pertinent laws, to serve as a guide for the Government when executing service
and survey activities.80 contracts involving not only the Tañon Strait, but also other similar areas. While the
petitioners allege that SC-46 is in violation of several laws, including international ones,
The FIDEC, for its part, argues that to avail of the exceptions under Section 14 of the their arguments focus primarily on the protected status of the Tañon Strait, thus this
NIPAS Act, the gathering of information must be in accordance with a DENR-approved Court will concentrate on those laws that pertain particularly to the Tañon Strait as a
program, and the exploitation and utilization of energy resources must be pursuant to a protected seascape.
general law passed by Congress expressly for that purpose. Since there is neither a DENR-
approved program nor a general law passed by Congress, the seismic surveys and oil The Tañon Strait is a narrow passage of water bounded by the islands of Cebu in the East
drilling operations were all done illegally.81 The FIDEC likewise contends that SC-46 and Negros in the West. It harbors a rich biodiversity of marine life, including endangered
infringes on its right to the preferential use of the communal fishing waters as it is denied species of dolphins and whales. For this reason, former President Fidel V. Ramos
free access within the prohibited zone, in violation not only of the Fisheries Code but declared the Tañon Strait as a protected seascape in 1998 by virtue of Proclamation No.
also of the 1987 Constitutional provisions on subsistence fisherfolk and social justice.82 1234 - Declaring the Tañon Strait situated in the Provinces of Cebu, Negros Occidental
Furthermore, the FIDEC believes that the provisions in Presidential Decree No. 87, which and Negros Oriental as a Protected Area pursuant to the NIP AS Act and shall be known
allow offshore drilling even in municipal waters, should be deemed to have been as Tañon Strait Protected Seascape. During former President Joseph E. Estrada's time,
rendered inoperative by the provisions of Republic Act No. 8550 and Republic Act No. he also constituted the Tañon Strait Commission via Executive Order No. 76 to ensure
7160, which reiterate the social justice provisions of the Constitution.83 the optimum and sustained use of the resources in that area without threatening its
marine life. He followed this with Executive Order No. 177,87 wherein he included the
The public respondents invoke the rules on statutory construction and argue that Section mayor of Negros Occidental Municipality/City as a member of the Tañon Strait
14 of the NIPAS Act is a more particular provision and cannot be deemed to have been Commission, to represent the LGUs concerned. This Commission, however, was

33
subsequently abolished in 2002 by then President Gloria Macapagal-Arroyo, via with this endeavor is the requirement that an Environmental Impact Assessment (EIA)
Executive Order No. 72.88 be made prior to undertaking any activity outside the scope of the management plan.
Unless an ECC under the EIA system is obtained, no activity inconsistent with the goals
True to the constitutional policy that the "State shall protect and advance the right of of the NIPAS Act shall be implemented.95
the people to a balanced and healthful ecology in accord with the rhythm and harmony
of nature,"89 Congress enacted the NIPAS Act to secure the perpetual existence of all The Environmental Impact Statement System (EISS) was established in 1978 under
native plants and animals through the establishment of a comprehensive system of Presidential Decree No. 1586. It prohibits any person, partnership or corporation from
integrated protected areas. These areas possess common ecological values that were undertaking or operating any declared environmentally critical project or areas without
incorporated into a holistic plan representative of our natural heritage. The system first securing an ECC issued by the President or his duly authorized representative.96
encompasses outstandingly remarkable areas and biologically important public lands Pursuant to the EISS, which called for the proper management of environmentally critical
that are habitats of rare and endangered species of plants and animals, biogeographic areas,97 Proclamation No. 214698 was enacted, identifying the areas and types of
zones and related ecosystems, whether terrestrial, wetland, or marine.90 It classifies projects to be considered as environmentally critical and within the scope of the EISS,
and administers all the designated protected areas to maintain essential ecological while DENR Administrative Order No. 2003-30 provided for its Implementing Rules and
processes and life-support systems, to preserve genetic diversity, to ensure sustainable Regulations (IRR).
use of resources found therein, and to maintain their natural conditions to the greatest
extent possible.91 The following categories of protected areas were established under DENR Administrative Order No. 2003-30 defines an environmentally critical area as "an
the NIPAS Act:chanroblesvirtuallawlibrary area delineated as environmentally sensitive such that significant environmental
Strict nature reserve; impacts are expected if certain types of proposed projects or programs are located,
developed, or implemented in it";99 thus, before a project, which is "any activity,
Natural park; regardless of scale or magnitude, which may have significant impact on the
environment,"100 is undertaken in it, such project must undergo an EIA to evaluate and
Natural monument; predict the likely impacts of all its stages on the environment.101 An EIA is described in
detail as follows:chanroblesvirtuallawlibrary
Wildlife sanctuary; h.
Environmental Impact Assessment (EIA) - process that involves evaluating and predicting
Protected landscapes and seascapes; the likely impacts of a project (including cumulative impacts) on the environment during
construction, commissioning, operation and abandonment. It also includes designing
Resource reserve; appropriate preventive, mitigating and enhancement measures addressing these
consequences to protect the environment and the community's welfare. The process is
Natural biotic areas; and undertaken by, among others, the project proponent and/or EIA Consultant, EMB, a
Review Committee, affected communities and other stakeholders.102
Other categories established by law, conventions or international agreements which the Under Proclamation No. 2146, the Tañon Strait is an environmentally critical area, having
Philippine Government is a signatory.92 been declared as a protected area in 1998; therefore, any activity outside the scope of
Under Section 4 of the NIPAS Act, a protected area refers to portions of land and water, its management plan may only be implemented pursuant to an ECC secured after
set aside due to their unique physical and biological significance, managed to enhance undergoing an EIA to determine the effects of such activity on its ecological system.
biological diversity and protected against human exploitation.
The public respondents argue that they had complied with the procedures in obtaining
The Tañon Strait, pursuant to Proclamation No. 1234, was set aside and declared a an ECC103 and that SC-46 falls under the exceptions in Section 14 of the NIPAS Act, due
protected area under the category of Protected Seascape. The NIPAS Act defines a to the following reasons:
Protected Seascape to be an area of national significance characterized by the
harmonious interaction of man and land while providing opportunities for public 1) The Tañon Strait is not a strict nature reserve or natural park;
enjoyment through recreation and tourism within the normal lifestyle and economic
activity of this areas;93 thus a management plan for each area must be designed to 2) Exploration is only for the purpose of gathering information on possible energy
protect and enhance the permanent preservation of its natural conditions.94 Consistent resources; and

34
 intention of the parties who executed the contract, or of the body which enacted or
3) Measures are undertaken to ensure that the exploration is being done with the least framed the statute or constitution, x x x.
damage to surrounding areas.104 Surveying for energy resources under Section 14 is not an exemption from complying
with the EIA requirement in Section 12; instead, Section 14 provides for additional
We do not agree with the arguments raised by the public respondents. requisites before any exploration for energy resources may be done in protected areas.

Sections 12 and 14 of the NIPAS Act read:chanroblesvirtuallawlibrary
SECTION 12. Environmental Impact Assessment. - Proposals for activities which are
outside the scope of the management plan for protected areas shall be subject to an
environmental impact assessment as required by law before they are adopted, and the
results thereof shall be taken into consideration in the decision-making process.
No actual implementation of such activities shall be allowed without the required
Environmental Compliance Certificate (ECC) under the Philippine Environmental Impact
Assessment (EIA) system. In instances where such activities are allowed to be
undertaken, the proponent shall plan and carry them out in such manner as will minimize
any adverse effects and take preventive and remedial action when appropriate. The
proponent shall be liable for any damage due to lack of caution or indiscretion.
The rationale for such additional requirements are incorporated in Section 2 of the NIPAS
Act, to wit:chanroblesvirtuallawlibrary
SECTION 2. Declaration of Policy - Cognizant of the profound impact of man's activities
on all components of the natural environment particularly the effect of increasing
population, resource exploitation and industrial advancement amd recognizing the
critical importance of protecting and maintaining the natural biological and physical
diversities of the environment notably on areas with biologically unique features to
sustain human life and development, as well as plant and animal life, it is hereby
declared the policy of the State to secure for the Filipino people of present and future
generations the perpetual existence of all native plants and animals through the
establishment of a comprehensive system of integrated protected areas within the
classification of national park as provided for in the Constitution.

SECTION 14. Survey for Energy Resources. - Consistent with the policies declared in
Section 2 hereof, protected areas, except strict nature reserves and natural parks, may
be subjected to exploration only for the purpose of gathering information on energy
resources and only if such activity is carried out with the least damage to surrounding
areas. Surveys shall be conducted only in accordance with a program approved by the
DENR, and the result of such surveys shall be made available to the public and submitted
to the President for recommendation to Congress. Any exploitation and utilization of
energy resources found within NIPAS areas shall be allowed only through a law passed
by Congress.
It is true that the restrictions found under the NIPAS Act are not without exceptions.
However, while an exploration done for the purpose of surveying for energy resources
is allowed under Section 14 of the NIPAS Act, this does not mean that it is exempt from
the requirement to undergo an EIA under Section 12. In Sotto v. Sotto,105 this Court
explained why a statute should be construed as a whole:chanroblesvirtuallawlibrary
A statute is passed as a whole and not in parts or sections and is animated by one general
purpose and intent. Consequently each part or section should be construed in
connection with every other part or section and so as to produce a harmonious whole.
It is not proper to confine the attention to the one section to be construed. It is always
an unsafe way of construing a statute or contract to divide it by a process of etymological
dissection, into separate words, and then apply to each, thus separated from its context,
some particular definition given by lexicographers, and then reconstruct the instrument
upon the basis of these definitions. An instrument must always be construed as a whole,
and the particular meaning to be attached to any word or phrase is usually to be
ascertained from the context, the nature of the subject treated of and the purpose or
It is hereby recognized that these areas, although distinct in features, possess common
ecological values that may be incorporated into a holistic plan representative of our
natural heritage; that effective administration of this area is possible only through
cooperation among national government, local government and concerned private
organizations; that the use and enjoyment of these protected areas must be consistent
with the principles of biological diversity and sustainable development.
To this end, there is hereby established a National Integrated Protected Areas System
(NIPAS), which shall encompass outstandingly remarkable areas and biologically
important public lands that are habitats of rare and endangered species of plants and
animals, biogeographic zones and related ecosystems, whether terrestrial, wetland or
marine, all of which shall be designated as "protected areas."
The public respondents themselves admitted that JAPEX only started to secure an ECC
prior to the second sub-phase of SC-46, which required the drilling of an oil exploration
well. This means that when the seismic surveys were done in the Tañon Strait, no such
environmental impact evaluation was done. Unless seismic surveys are part of the
management plan of the Tañon Strait, such surveys were dona in violation of Section 12
of the NIPAS Act and Section 4 of Presidential Decree No. 1586, which
provides:chanroblesvirtuallawlibrary
Section 4. Presidential Proclamation of Environmentally Critical Areas and Projects. - The
President of the Philippines may, on his own initiative or upon recommendation of the
National Environmental Protection Council, by proclamation declare certain projects,
undertakings or areas in the country as environmentally critical. 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

35
the President or his duly authorized representative. For the proper management of said Moreover, SC-46 was not executed for the mere purpose of gathering information on
critical project or area, the President may by his proclamation reorganize such the possible energy resources in the Tañon Strait as it also provides for the parties' rights
government offices, agencies, institutions, corporations or instrumentalities including and obligations relating to extraction and petroleum production should oil in commercial
the re-alignment of government personnel, and their specific functions and quantities be found to exist in the area. While Presidential Decree No. 87 may serve as
responsibilities. the general law upon which a service contract for petroleum exploration and extraction
may be authorized, the exploitation and utilization of this energy resource in the present
For the same purpose as above, the Ministry of Human Settlements shall: (a) prepare case may be allowed only through a law passed by Congress, since the Tañon Strait is a
the proper land or water use pattern for said critical project(s) or area(s); (b) establish
NIPAS area.106Since there is no such law specifically allowing oil exploration and/or
ambient environmental quality standards; (c) develop a program of environmental extraction in the Tañon Strait, no energy resource exploitation and utilization may be
enhancement or protective measures against calamitous factors such as earthquakes, done in said protected seascape.
floods, water erosion and others, and (d) perform such other functions as may be
directed by the President from time to time. In view of the foregoing premises and conclusions, it is no longer necessary to discuss
The respondents' subsequent compliance with the EISS for the second sub-phase of SC- the other issues raised in these consolidated petitions.cralawred
46 cannot and will not cure this violation. The following penalties are provided for under
Presidential Decree No. 1586 and the NIPAS Act. WHEREFORE, the Petitions in G.R. Nos. 180771 and 181527 are GRANTED, Service
Contract No. 46 is hereby declared NULL AND VOID for violating the 1987 Constitution,
Section 9 of Presidential Decree No. 1586 provides for the penalty involving violations of Republic Act No. 7586, and Presidential Decree No. 1586.
the ECC requirement:chanroblesvirtuallawlibrary
Section 9. Penalty for Violation. - Any person, corporation or partnership found violating SO ORDERED.
Section 4 of this Decree, or the terms and conditions in the issuance of the
Environmental Compliance Certificate, or of the standards, rules and regulations issued
by the National Environmental Protection Council pursuant to this Decree shall be
punished by the suspension or cancellation of his/its certificates and/or a fine in an
amount not to exceed Fifty Thousand Pesos (P50,000.00) for every violation thereof, at
the discretion of the National Environmental Protection Council. (Emphasis supplied.)
Violations of the NIPAS Act entails the following fines and/or imprisonment under
Section 21:chanroblesvirtuallawlibrary
SECTION 21. Penalties. - Whoever violates this Act or any rules and regulations issued by
the Department pursuant to this Act or whoever is found guilty by a competent court of
justice of any of the offenses in the preceding section shall be fined in the amount of not
less than Five thousand pesos (P5,000) nor more than Five hundred thousand pesos
(P500,000), exclusive of the value of the thing damaged or imprisonment for not less
than one (1) year but not more than six (6) years, or both, as determined by the court:
Provided, that, if the area requires rehabilitation or restoration as determined by the
court, the offender shall be required to restore or compensate for the restoration to the
damages: Provided, further, that court shall order the eviction of the offender from the
land and the forfeiture in favor of the Government of all minerals, timber or any species
collected or removed including all equipment, devices and firearms used in connection
therewith, and any construction or improvement made thereon by the offender. If the
offender is an association or corporation, the president or manager shall be directly
responsible for the act of his employees and laborers: Provided, finally, that the DENR
may impose administrative fines and penalties consistent with this Act. (Emphases
supplied.)

36
 G.R. No. 209165 Diversified Metals Corporation; Zambales Chromite Mining Corporation, Inc.;
BenguetCorp Nickel Mines, Inc., supported the port project of LAMI and issued Letters11
LNL ARCHIPELAGO MINERALS, INC., Petitioner, of Intent to use the port facilities of LAMI upon completion.
vs.
AGHAM PARTY LIST (represented by its President Rep. Angelo B. Palmones), The Bolitoc community – the barangay, its officials and residents – gave several
Respondent. endorsements12 supporting the project. Even the Sangguniang Bayan of Sta. Cruz gave
its consent to the construction of the port.13
DECISION
However, LAMI allegedly encountered problems from the local government of Sta. Cruz,
CARPIO, J.: headed by Mayor Luisito E. Marty (Mayor Marty). LAMI stated that Mayor Marty unduly
favored some mining companies in the municipality and allegedly refused to issue
The Case business and mayor’s permits and to receive payment of occupation fees from other
mining companies despite the necessary national permits and licenses secured by the
This is a petition for review on certiorari 1 assailing the Amended Decision dated 13 other mining companies.
September 20132 of the Court of Appeals in CA-G.R. SP No. 00012.
On 24 April 2012, Mayor Marty issued an order14 directing LAMI to refrain from
The Facts continuing with its clearing works and directed the Sta. Cruz Municipal Police Chief
Generico Biñan to implement his order. On 26 April 2012, LAMI responded through a
Petitioner LNL Archipelago Minerals, Inc. (LAMI) is the operator of a mining claim located letter15 explaining that Mayor Marty’s order was illegal and baseless. Chief Biñan,
in Sta. Cruz, Zambales. LAMI’s mining area is covered by Mineral Production Sharing together with two of his deputies, went to LAMI’s port site to demand that LAMI cease
Agreement3 No. 268-2008-III dated 26 August 2008 by virtue of an Operating its clearing works. LAMI’s supervisor showed Chief Biñan all of LAMI’s permits. In a
Agreement4 dated 5 June 2007 with Filipinas Mining Corporation. Memorandum dated 3 May 2012, Chief Biñan made a report to his supervisor, S/Supt.
Francisco DB Santiago, Jr. (S/Supt. Santiago), Zambales Police Provincial Director, that
LAMI embarked on a project to build a private, non-commercial port in Brgy. Bolitoc, Sta. there was no leveling of a mountain on the port site. On 6 May 2012, S/Supt. Santiago
Cruz, Zambales. A port is a vital infrastructure to the operations of a mining company to made a Special Report re: Police Assistance16 to the Philippine National Police (PNP)
ship out ores and other minerals extracted from the mines and make the venture Regional Director citing the findings of Chief Biñan.
economically feasible. Brgy. Bolitoc, about 25 kilometers away from the mine site, makes
it an ideal location to build a port facility. In the area of Sta. Cruz, Shangfil Mining and Thereafter, Rep. Dan Fernandez, a member of the Committee on Ecology of the House
Trading Corporation (Shangfil)/A3Una Mining Corporation (A3Una) and DMCI Mining of Representatives, passed House Resolution No. 117 (HR 117) entitled "Resolution
Corporation, have been operating their own ports since 2007. Directing the Committee on Ecology to Conduct an Inquiry, in Aid of Legislation, on the
Implementation of Republic Act No. 7942, Otherwise Known as the Philippine Mining Act
LAMI secured the following permits and compliance certificates for the port project: (1) of 1995, Particularly on the Adverse Effects of Mining on the Environment." HR 117 was
Department of Environment and Natural Resources (DENR) Environmental Compliance issued in order to conduct an alleged ocular inspection of the port site in aid of
Certificate5 (ECC) R03-1104-182 dated 2 May 2011 covering the development of legislation. On 21 May 2012, the Committee on Ecology conducted an ocular inspection
causeway, stockpile and related facilities on LAMI’s property with an area of 18,142 of the LAMI port site, as well as the other ports adjacent to LAMI’s – those of
sq.m.; (2) DENR provisional foreshore lease agreement with LAMI;6 (3) Philippine Shangfil/A3Una and D.M. Consunji, Inc. The Committee allegedly never visited any
mining site in the area of Sta. Cruz.
Ports Authority (PPA) Clearance to Develop a Port;7 (4) PPA Permit to Construct a Port;8
(5) PPA Special Permit to Operate a Beaching Facility;9 and (6) Tree Cutting Meanwhile, on 30 April 2012, the DENR Environmental Management Bureau in Region
Permit/Certification10 from the Community Environment and Natural Resources Office III (DENR-EMB R3) received a letter dated 27 April 2012 from Mayor Marty inquiring if
(CENRO) of the DENR. the ECC the DENR issued in favor of LAMI allowed LAMI to cut trees and level a mountain.

The Zambales Alliance, a group of other mining companies operating in Sta. Cruz, On 25 May 2012, representatives from the DENR Provincial Environment and Natural
Zambales which do not have their own port, namely Eramen Minerals, Inc.; Zambales Resources Office (PENRO) in Zambales and the local government of Sta. Cruz conducted

37
an ECC compliance monitoring of LAMI’s property. The DENR PENRO team found that Petition21 for the issuance of a Writ22 of Kalikasan against LAMI, DENR, PPA, and the
LAMI violated some of its conditions under the ECC. Accordingly, a Notice of Violation Zambales Police Provincial Office (ZPPO).
(NOV) dated 1 June 2012 was issued against LAMI for violation of certain conditions of
the ECC with a cease and desist order from further constructing and developing until Agham alleged that LAMI violated: (1) Section 6823 of PD No. 705,24 as amended by
such time that the ECC conditions were fully complied. Executive Order No. 277,25 or the Revised Forestry Code; and (2) Sections 5726 and 6927
of Republic Act No. 7942,28 or the Philippine Mining Act of 1995 (Philippine Mining Act).
On 8 June 2012, a technical conference was held where LAMI presented its reply to the Agham added that LAMI cut mountain trees and flattened a mountain which serves as a
NOV. The DENR-EMB R3 ascertained that LAMI’s violations of the four conditions of its natural protective barrier from typhoons and floods not only of the residents of
ECC constitute minor violations since they only pertain to non-submission of documents. Zambales but also the residents of some nearby towns located in Pangasinan.
However, the leveling of the elevated portion of the area was a major violation. A penalty
was consequently imposed on LAMI, and the DENREMB R3 directed LAMI to (1) On 13 June 2012, this Court remanded the petition29 to the Court of Appeals for hearing,
immediately cause the installation of mitigating measures to prevent soil erosion and reception of evidence and rendition of judgment.
siltation of the waterbody, and (2) submit a rehabilitation plan.
On 25 June 2012, LAMI filed its Verified Return dated 21 June 2012, controverting
On 11 June 2012, LAMI wrote a letter17 to the DENR-EMB R3 regarding the Agham’s allegations. LAMI stated that it did not and was not violating any environmental
commitments agreed upon during the technical conference. LAMI signified compliance law, rule or regulation. LAMI argued that:
with the conditions of DENR-EMB R3. Attached to the letter were: (1) Official Receipt of
payment of penalties under Presidential Decree (PD) No. 1586, (2) Matrix of Mitigation (1) LAMI had the necessary permits and authorization to cut trees in the port site; (2)
and Rehabilitation Plan, (3) Designation of Pollution Control Officer dated 6 May 2011, LAMI had the necessary permits to construct its port; (3) LAMI consulted with and
and (4) Tree Cutting Permit dated 17 April 2012 issued by DENR R3 CENRO.18 obtained the support of the Sangguniang Barangay and residents of Barangay Bolitoc;
(4) LAMI’s port site is located on private and alienable land; (5) there is no mountain on
On 20-21 June 2012, the DENR composite team, composed of DENR-EMB R3, Mines and the port site; (6) the Philippine Mining Act is irrelevant and inapplicable to the present
Geosciences Bureau (MGB) R3 and PENRO Zambales, conducted an investigation to case; and (7) the other allegations of Agham that LAMI violated environmental laws,
determine whether mitigating measures done by LAMI were sufficient. The composite rules or regulations are likewise baseless, irrelevant and false. LAMI stated further that
team found that LAMI’s activities in its property would not result to any environmental there is no environmental damage of such magnitude as to prejudice the life, health, or
damage to its surrounding communities. property of inhabitants in two or more cities and provinces.

Thereafter, the DENR-EMB R3 lifted the cease and desist order after LAMI was found to Public respondents DENR, PPA and ZPPO, filed with the Court of Appeals their Pre-Trial
have complied with the requirements. In a Letter19 dated 24 October 2012, Lormelyn E. Brief dated 1 August 2012. In the Pre-Trial Brief, public respondents stated that they will
Claudio (Dir. Claudio), the Regional Director of DENR-EMB R3 wrote: present the following witnesses: (1) Dir. Claudio, Regional Director, DENR-EMB R3; two
from the PPA – (2) Engineer Marieta G. Odicta (Engr. Odicta), Division Manager,
xxxx Engineering Services Division, Port District Office, Manila, Northern Luzon; and (3) Emma
L. Susara (Ms. Susara), Department Manager, Commercial Services of the PPA (NCR); and
The violated ECC conditions have been rectified and clarified while the penalty (4) S/Supt. Santiago, Provincial Director of the ZPPO.
corresponding to such violation was fully paid and the required rehabilitation and
mitigating measures were already implemented as committed. As such, the matter The witnesses of public respondents submitted their Judicial Affidavits dated 6 August
leading to the issuance of the NOV is now resolved. 2012. The testimonies of the witnesses were offered to prove the facts and allegations
in the petition:
As ECC holder, you are enjoined to ensure the effective carrying out of your
Environmental Management and Monitoring Plan.20 (1) Dir. Claudio30 –

Meanwhile, earlier, or on 6 June 2012, respondent Agham Party List (Agham), through a) That the issues presented by Agham were already subject of the complaint filed by
its President, former Representative Angelo B. Palmones (Rep. Palmones), filed a Mayor Marty with the DENR-EMB R3;

38
b) That the DENR-EMB R3 issued an ECC to LAMI;
b) That the members and officials of the ZPPO did not cover-up any alleged illegal activity
c) That the DENR-EMB R3 acted on the complaint of Mayor Marty with regard to of LAMI; and
construction by LAMI of its port facility;
c) The contents of the Memorandum (Special Report re: Police Assistance) dated 6 May
d) That the DENR-EMB R3 issued a NOV dated 1 June 2012 to LAMI; 2012 submitted by S/Supt. Santiago to the PNP Regional Director.

e) That the DENR-CENRO issued a tree cutting permit to LAMI; On 10 September 2012, Agham presented its first and only witness, former Rep. Angelo
B. Palmones. Rep. Palmones was cross-examined by counsel for LAMI and counsel for
f) That there is no mountain within or inside the property of LAMI in Brgy. Bolitoc, Sta. public respondents DENR, PPA, and ZPPO.34
Cruz, Zambales;
On 26 September 2012, public respondents presented their witnesses.35
g) That the cutting of the trees and the partial leveling of a landform (which is
determined to be an "elongated mound" but is alleged to be a "mountain" by the On 28 September 2012, LAMI manifested that it was adopting the testimonies of the
petitioner) conducted by LAMI in its property in Brgy. Bolitoc, Sta. Cruz, Zambales do not witnesses of the public respondents. On the same hearing, LAMI presented its witness,
pose adverse environmental impact on the adjoining communities more so to the larger Felipe E. Floria, LAMI’s Vice-President and General Manager.36
areas or the entire provinces of Zambales and Pangasinan.
In a Decision37 dated 23 November 2012, the Court of Appeals decided the case in favor
(2) Eng. Odicta31 – of petitioner. The appellate court found that the government, through the CENRO,
authorized LAMI to cut trees and LAMI strictly followed the proper guidelines stated in
a) That the PPA issued a permit to construct to LAMI only after due application and the permit. The appellate court also stated that there can be no flattening of a mountain
submission of the required documents; when there is no mountain to speak of. Thus, for failing to comply with the requisites
necessary for the issuance of a Writ of Kalikasan, the Court of Appeals resolved to deny
b) That other private companies, namely: DMCI Mining Corporation and Shangfil/A3Una the petition. The dispositive portion of the Decision states:
constructed port facilities along the Brgy. Bolitoc coastline and contiguous to where the
port facility of LAMI is located. WHEREFORE, premises considered, the petition is hereby DENIED.

(3) Ms. Susara32 – SO ORDERED.38

a) That the PPA issued a clearance to develop and a permit to operate to LAMI only after Agham filed a Motion for Reconsideration with the Court of Appeals. In its Motion for
due application and submission of the required documents; Reconsideration, Agham argued that the alleged leveling of the subject hill by LAMI: (1)
was not sanctioned by the DENR since LAMI allegedly had no ECC from the DENR; (2)
b) That other private port facilities, namely: DMCI Mining Corporation, Shangfil/A3Una affected the ecological balance of the affected towns and provinces since such leveling
are operating along the Brgy. Bolitoc coastline and contiguous to where the port facility was done without the concurrence of its residents; and (3) instigated the gradual
of LAMI is located; and eradication of the strip of land mass in Sta. Cruz, Zambales that serves as protective
barrier from floods brought about by the swelling or surging of the coastal water moving
c) That since the 1970’s, the coastline along Brgy. Bolitoc, Municipality of Sta. Cruz, inward reaching other towns of Zambales and Pangasinan.39
Zambales, has been the location of port facilities necessary for mining operations in the
province of Zambales. On 4 February 2013, LAMI filed its Comment/Opposition to the Motion for
Reconsideration. Agham then filed its Reply dated 21 February 2013.
(4) S/Supt. Santiago33 –
In a Resolution dated 6 March 2013, the Court of Appeals declared that Agham’s Motion
a) That the members and officials of the ZPPO did not violate, or threaten with violation, for Reconsideration was submitted for resolution. Subsequently, Agham filed a
petitioner’s right to a balanced and healthful ecology; Supplemental Reply dated 29 April 2013 reiterating the same arguments.

39
 The Court’s Ruling
In a Resolution40 dated 31 May 2013, the Court of Appeals set Agham’s Motion for
Reconsideration for hearing on 13 June 2013. At the hearing, all parties were given time Petitioner contends that it has the necessary permits and authorization to cut trees on
to argue their case. Thereafter, the Motion for Reconsideration was submitted for the port site, controverting the allegation of Agham that it violated Section 68 of the
resolution. Revised Forestry Code, as amended. Petitioner also insists that it did not violate nor is it
violating the Mining Act as alleged by Agham. Petitioner argues that it is not conducting
Agham then filed a Manifestation dated 17 June 2013 summarizing its arguments. On 4 any mining activity on the port site since the mine site is about 25 kilometers away from
July 2013, LAMI filed a Motion to Expunge with Ad Cautelam Comment/Opposition. On the port site. Further, petitioner adds that after filing its Verified Return dated 21 June
11 July 2013, the Court of Appeals, for the last and third time, submitted the Motion for 2012, Agham never mentioned again the alleged violation of the Revised Forestry Code,
Reconsideration for resolution. as amended, and the Philippine Mining Act. Instead, Agham changed its position and
later claimed that LAMI was flattening a mountain on the port site which was allegedly
In an Amended Decision dated 13 September 2013, the Court of Appeals reversed and illegal per se. Petitioner insists that Agham did not even present evidence to establish
set aside its original Decision dated 23 November 2012. The dispositive portion of the any environmental damage which is required for the issuance of the privilege of the Writ
Decision states: of Kalikasan.

WHEREFORE, in view of the foregoing, the Decision dated November 23, 2012 is hereby Respondents, on the other hand, assert that even if the subject land formation is not a
RECONSIDERED and SET ASIDE and, in lieu thereof, another judgment is rendered mound, hill or mountain, the fact remains that the scraping and leveling done by
GRANTING the petition for WRIT OF KALIKASAN as follows, to wit: petitioner caused serious environmental damage which affects not only the municipality
of Sta. Cruz, Zambales but also the nearby towns of Zambales and Pangasinan.
(1) respondent LNL Archipelago Minerals, Inc. (LAMI) is directed to PERMANENTLY CEASE
and [DESIST] from scraping off the land formation in question or from performing any The present case involves the extraordinary remedy of a Writ of Kalikasan which is under
activity/ies in violation of environmental laws resulting in environmental destruction or the Rules of Procedure for Environmental Cases.42 Section 1, Rule 7, Part III of the said
damage; Rules provides:

(2) the respondent LAMI as well as the Secretary of Department of Environment and Section 1. Nature of the writ. – The writ is a remedy available to a natural or juridical
Natural Resources and/or their representatives are directed to PROTECT, PRESERVE, person, entity authorized by law, people’s organization, non-governmental organization,
REHABILITATE and/or RESTORE the subject land formation including the plants and trees
or any public interest group accredited by or registered with any government agency, on
therein; 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
(3) the Secretary of DENR and/or his representative is directed to MONITOR strict or employee, or private individual or entity, involving environmental damage of such
compliance with the Decision and Orders of the Court; and make PERIODIC REPORTS on magnitude as to prejudice the life, health or property of inhabitants in two or more cities
a monthly basis on the execution of the final judgment. or provinces.

SO ORDERED.41 The Writ of Kalikasan, categorized as a special civil action and conceptualized as an
extraordinary remedy,43 covers environmental damage of such magnitude that will
Hence, the instant petition. prejudice the life, health or property of inhabitants in two or more cities or provinces.
The writ is available against an unlawful act or omission of a public official or employee,
The Issues or private individual or entity.

The issues for our resolution are (1) whether LAMI violated the environmental laws as The following requisites must be present to avail of this remedy: (1) there is an actual or
alleged by Agham, and (2) whether LAMI flattened any mountain and caused threatened violation of the constitutional right to a balanced and healthful ecology; (2)
environmental damage of such magnitude as to prejudice the life, health or property of the actual or threatened violation arises from an unlawful act or omission of a public
inhabitants in two or more cities or provinces. official or employee, or private individual or entity; and (3) the actual or threatened

40
violation involves or will lead to an environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants in two or more cities or provinces. 2. It was found that the thirty seven (37) trees of various lesser-known species and fruit
bearing trees with a total volume of 7.64 cubic meters as specified in the permit were
In the present case, Agham, in its Petition for a Writ of Kalikasan, cited two laws which cut as subject trees are located within the directly affected areas of the port facility
LAMI allegedly violated: (1) Section 68 of the Revised Forestry Code, as amended; and project of the company;
(2) Sections 57 and 69 of the Philippine Mining Act.
3. The other trees previously inventoried and are not directly affected by the project
Section 68 of the Revised Forestry Code, as amended, states: within the same lot are spared; and

Sec. 68. Cutting, Gathering and/or collecting Timber, or Other Forest Products Without 4. There are forty four (44) various species of miscellaneous trees counted and left with
License. Any person who shall cut, gather, collect, remove timber or other forest a computed volume of 6.04 cubic meters.
products from any forest land, or timber from alienable or disposable public land, or
from private land, without any authority, or possess timber or other forest products Relative the above findings and in compliance with the terms and conditions of the
without the legal documents as required under existing forest laws and regulations, shall permit issued, the company should be reminded to replace the trees cut therein as
be punished with the penalties imposed under Articles 309 and 310 of the Revised Penal specified in support with the environmental enhancement program of the DENR.
Code: Provided, That in the case of partnerships, associations, or corporations, the
officers who ordered the cutting, gathering, collection or possession shall be liable, and xxxx
if such officers are aliens, they shall, in addition to the penalty, be deported without
further proceedings on the part of the Commission on Immigration and Deportation. Since LAMI strictly followed the permit issued by the CENRO and even passed the
evaluation conducted after the issuance of the permit, then clearly LAMI had the
xxxx authority to cut trees and did not violate Section 68 of the Revised Forestry Code, as
amended.
There are two distinct and separate offenses punished under Section 68 of PD 705:
Next, Agham submitted that LAMI allegedly violated Sections 57 and 69 of the Philippine
(1) Cutting, gathering, collecting and removing timber or other forest products from any Mining Act.
forest land, or timber from alienable or disposable public land, or from private land
without any authorization; and Sections 57 and 69 of the Philippine Mining Act state:

(2) Possession of timber or other forest products without the legal documents required Section 57. Expenditure for Community Development and Science and Mining
under existing forest laws and regulations.44 Technology – A contractor shall assist in the development of its mining community, the
promotion of the general welfare of its inhabitants, and the development of science and
In the present case, LAMI was given a Tree Cutting Permit45 by the CENRO dated 17 April mining technology.
2012. In the permit, LAMI was allowed to cut 37 trees with a total volume of 7.64 cubic
meters within the port site, subject to the condition that the trees cut shall be replaced Section 69. Environmental Protection – Every contractor shall undertake an
with a ratio of 1-30 fruit and non-bearing fruit trees. Thereafter, the Forest Management environmental protection and enhancement program covering the period of the mineral
Service and Forest Utilization Unit, both under the DENR, issued a Post Evaluation agreement or permit. Such environmental program shall be incorporated in the work
Report46 dated 3 May 2012 stating that LAMI properly followed the conditions laid program which the contractor or permittee shall submit as an accompanying document
down in the permit. The relevant portions of the Post Evaluation Report state: to the application for a mineral agreement or permit. The work program shall include
not only plans relative to mining operations but also to rehabilitation, regeneration,
x x x the following findings and observations are noted: revegetation and reforestation of mineralized areas, slope stabilization of mined-out and
tailings covered areas, aquaculture, watershed development and water conservation;
1. That the tree cutting implemented/conducted by the company was confined inside and socioeconomic development.
Lot No. 2999, Cad 316-D situated at Barangay Bolitoc, Sta. Cruz, Zambales and within the
area previously granted for tree cutting;

41
These two provisions are inapplicable to this case. First, LAMI is not conducting any
mining activity on the port site. LAMI’s mine site is about 25 kilometers away from the
port site. Second, LAMI secured all the necessary permits and licenses for the
construction of a port and LAMI’s activity was limited to preparatory works for the port’s
construction. The Philippine Mining Act deals with mining operations and other mining
activities. Sections 57 and 69 deal with the development of a mining community and
environmental protection covering a mineral agreement or permit.
Here, Agham reasoned that LAMI was destroying the environment by cutting mountain
trees and leveling a mountain to the damage and detriment of the residents of Zambales
and the nearby towns of Pangasinan. Agham simply submitted a picture taken on 4 June
2012 where allegedly the backhoes owned by LAMI were pushing the remnants of the
mountain to the sea.
The mountain, according to Agham, serves as a natural protective barrier from typhoons
and floods to the residents of Zambales and nearby towns of Pangasinan. Thus, Agham
argues that once such natural resources are damaged, the residents of these two
provinces will be defenseless and their life, health and properties will be at constant risk
of being lost.
However, Agham, in accusing that LAMI allegedly flattened a mountain, did not cite any
law allegedly violated by LAMI in relation to this claim. Agham did not present any proof
to demonstrate that the local residents in Zambales, and even the nearby towns of
Pangasinan, complained of any great danger or harm on the alleged leveling of the land
formation which may affect their lives, health or properties. Neither was there any
evidence showing of a grave and real environmental damage to the barangay and the
surrounding vicinity.

This explanation, absent any concrete proof, is untenable.
Clearly, Agham did not give proper justifications for citing Sections 57 and 69 of the
Philippine Mining Act. Agham did not even present any evidence that LAMI violated the
mining law or any mining undertakings in relation to LAMI’s construction of a port
facility. Agham only alleged in very general terms that LAMI was destroying the
environment and leveling a mountain without conducting any scientific studies or
submitting expert testimonies that would corroborate such allegations.
Section 2(c), Rule 7, Part III of the Rules of Procedure for Environmental Cases provides: Zambales. Is there really a mountain in the property of LAMI in the said place?
To belie Agham’s contentions, the records, from the testimonies of those experts in their
fields, show that there is in fact no mountain in Brgy. Bolitoc, Sta. Cruz, Zambales.
First, in the Judicial Affidavit047 dated 6 August 2012, the Regional Director of DENR
EMB R3, Dir. Claudio, categorically declared that there is no mountain on LAMI’s
property. The relevant portions state:
32. Q: One of the complaints of Mayor Marty in his letter dated 27 April 2012, x x x, is
that LAMI is "leveling a mountain" in its property in Barangay Bolitoc, Sta. Cruz,

Section 2. Contents of the petition. - The verified petition shall contain the following: A: None, sir. The subject landform is not considered as a mountain based on commonly
accepted description of a mountain as having 300 meters to 2,500 meters height over
(c) The environmental law, rule or regulation violated or threatened to be violated, the base. The highest elevation of the project area is 23 meters.
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. 33. Q: Do you have any proof that the landform in LAMI’s property is not a mountain?

The Rules are clear that in a Writ of Kalikasan petitioner has the burden to prove the (1) A: Yes, sir. The Mines and Geosciences Bureau (MGB), Regional Office No. III, through
environmental law, rule or regulation violated or threatened to be violated; (2) act or the OIC of the Geosciences Division, issued a Memorandum dated June 26, 2012 proving
omission complained of; and (3) the environmental damage of such magnitude as to that there is no mountain in LAMI’s property. The proper description of the landform,
prejudice the life, health or property of inhabitants in two or more cities or provinces. according to the said memorandum, is an "elongated mound"48

Even the Annotation to the Rules of Procedure for Environmental Cases states that the Second, LAMI, through the Judicial Affidavit49 dated 3 August 2012 of Felipe E. Floria,
magnitude of environmental damage is a condition sine qua non in a petition for the LAMI’s Vice-President and General Manager, was able m to establish that Brgy. Bolitoc,
issuance of a Writ of Kalikasan and must be contained in the verified petition. Sta. Cruz had no mountain. The relevant portions provide:

Agham, in failing to prove any violation of the Revised Forestry Code, as amended, and 126. Q: Why do you say that this elevated portion is not a "mountain"?
the Philippine Mining Act, shifted its focus and then claimed that LAMI allegedly
flattened or leveled a mountain. A: The port site where the alleged mountain is located is only 1.8 hectares of alienable
and disposable land. It is private property, lawfully possessed by LAMI, with the latter

42
exercising rights based on its occupation thereof. The mound and/or ridge within the
private property is only about 23 meters high. The base or footing of the mound therein
which the Petitioner insists is a mountain is only 1.5 hectares, and the height is
approximately 23 meters. I have been advised that a mountain, as described by the
United Nations Environment Programme – World Conservation Monitoring Centre
("UNEP-WCMC"), must be, at least, of a height greater than 300 meters or 984 feet in
addition to other requirements on slope and local elevation range. In other countries,
the United Kingdom for example, the minimum height requirement is 2,000 ft or 609.6
meters.50
From the LAMI area, the landform continues eastwards to the DMCI and the Shangfil
Port facilities and also westwards to the vicinity of Brgy. Bolitoc proper.
3. The area is underlain by interbedded calcareous sandstone, shale, and siltstone of the
Cabaluan Formation (formerly Zambales Formation), x x x. Rock outcrops show the
sedimentary sequence displaying almost horizontal to gently dipping beds cut by a minor
fault. These rocks weather into a 1-2 meter silty clay.
DISCUSSION

Third, several government entities and officials have declared that there is no mountain
on the port site: (1) in a Letter51 to LAMI signed by the Sangguniang Bayan members of
Sta. Cruz dated 4 June 2012, the Sangguniang Bayan members stated that there is no
mountain in the area; (2) in a Memorandum52 dated 4 June 2012, the CENRO concluded
that the "mountain" is a "hill falling under Block I, Alienable and Disposable land per LC
Map 635"; and (3) in a Special Report53 re: Police Assistance dated 6 May 2012, the
Provincial Director of PNP Zambales reported to the PNP Regional Director, citing the
findings of the local chief of police, that no leveling of a mountain transpired in the area.
Considering elevated landform of interest measures 164 meters in length and about 94
meters in width disposed in an elongate manner with a maximum elevation of 26 meters
more or less above mean sea level and is about 16 meters higher than the barangay road
and nearby houses and using the Glossary of Landforms and Geologic Terms x x x by
Hawley and Parsons, 1980 above that the elevated landform is neither a mountain or
hill, but instead it is considered elongated landmass/or elongated mound.
CONCLUSION

Last, in an Inspection Report54 dated 26 June 2012, the Mines and Geosciences Bureau, Based on the above geological and landform (geomorphic) classification, considering its
Geosciences Division of the DENR concluded that the "mountain" is only an elongated elevation of 23 to 26 meters above mean sea level and which is 16 meters above the
mound. The findings and conclusion of the report provide: barangay road and vicinity, the elevated landform present in the LAMI port facility is
neither a hill or mountain. Its elevation of 16 meters above its vicinity is lower than a hill
FINDINGS (30 meters). Its height above its vicinity can be possibly categorized as a mound which is
defined by the Dictionary of Geological terms (1976) prepared by the American
1. The Bolitoc LAMI Port Facility is approximately centered at the intersection of Geological Institute as which defines a mound as "a low hill of earth, natural or artificial."
geographic coordinates 15°45’00.4" north latitude and 119°53’19.9" east longitude, x x In the United Kingdom, mounds are also called hillocks or knolls. The term elongated is
x. It is bounded on the north by the West Philippine Sea (Bolitoc Bay), on the west and prefixed as a modifier to describe its east-west disposition. Hence, the elevated landform
east by the continuation of the elevated landform, and to the south by an unnamed of interest is considered as elongated mound.55 (Emphasis supplied)
creek and a concrete barangay road connecting the Brgy. Bolitoc to the Zambales
National Highway. On the other hand, the lone witness of Agham, former Rep. Palmones, admitted in the
10 September 2012 hearing conducted by the Court of Appeals that he was incompetent
Brgy. Bolitoc also hosts the port facilities of the DMCI and the Shangfil Corporation both to prove that the elevated ground located in Brgy. Bolitoc is a mountain. The relevant
of which occupy the former loading site of the defunct Acoje Mining Corporation. portions56 of Rep. Palmones’ testimony provide:

2. The landform of interest is characterized by a roughly east-west trending elevated and Atty. Gallos: Mr. Congressman, you conducted an ocular inspection in Brgy. Bolitoc in
elongated landmass. Within the LAMI site, the elevated landform measures 164 meters Sta. Cruz, Zambales on May 21?
in length and about 94 meters in width and is almost parallel to the coastline. It has a
maximum elevation located at its eastern end of 26 meters above mean sea level more Cong. Palmones: Yes.
or less. Its western end has an elevation of 23 meters above mean sea level more or less
x x x. The landform is about 16 meters higher than the barangay road and nearby houses xxxx
x x x.
Atty. Gallos: That was the first time you were in Brgy. Bolitoc?

43
Cong. Palmones: Yes.
Atty. Gallos: That was also the first and the last ocular inspection that you did so far in the scraping off or the cutting of the subject land formation by LAMI would instigate the
Brgy. Bolitoc?
Cong. Palmones: Yes.
xxxx
Atty. Gallos: What is the name of this mountain?
Cong. Palmones: I really don’t know the name of the mountain, Your Honor.
Atty. Gallos: What is the elevation or height of this mountain?
Cong. Palmones: I really don’t know the elevation of that mountain, Your Honors.
Atty. Gallos: What is the base of this mountain?
Cong. Palmones: I really don’t know, Your Honors.
thereafter, reclaim a portion of the adjacent waters with the earth it took therefrom,
making out of the soil gathered to construct a seaport. The Court of Appeals stated that
gradual eradication of the strip of land mass in Brgy. Bolitoc which serves as protective
barrier to floods brought about by the swelling or surging of the coastal water moving
inward reaching other towns of Zambales and Pangasinan. The Court of Appeals added
that the port site is prone to frequent visits of tropical depression and that the coastal
portions of the "Sta. Cruz Quadrangle – Zambales and Pangasinan province" are touted
to be highly susceptible to landslide and flooding.
We do not subscribe to the appellate court’s view.
First, the Court of Appeals did not provide any basis, in fact and in law, to support the
reversal of its original decision. Agham, in its Motion for Reconsideration, did not present
new evidence to refute its claim that LAMI leveled a "mountain" or that there was an
environmental damage of considerable significance that will harm the life, health and
properties of the residents of the municipality of Sta. Cruz and its neighboring towns or
cities, or even the provinces of Zambales and Pangasinan. The pleadings and documents
submitted by Agham were just a reiteration of its original position before the original
Court of Appeals’ decision was promulgated on 23 November 2012.

Atty. Tolentino: Your Honor, the witness is incompetent to answer the questions. It is well-settled that a party claiming the privilege for the issuance of a Writ of Kalikasan
has to show that a law, rule or regulation was violated or would be violated. In the
Cong. Palmones: I’m not competent to answer that question. present case, the allegation by Agham that two laws – the Revised Forestry Code, as
amended, and the Philippine Mining Act – were violated by LAMI was not adequately
Atty. Gallos: Your Honor, that’s exactly our point. He is claiming that there is a mountain substantiated by Agham. Even the facts submitted by Agham to establish environmental
but he cannot tell us the height, the slope, the elevation, the base, Your Honor. So you damage were mere general allegations.
admit now that you do not know, you do not have the competence to state whether or
not there is a mountain? Second, Agham’s allegation that there was a "mountain" in LAMI’s port site was earlier
established as false as the "mountain" was non-existent as proven by the testimonies of
Cong. Palmones: I really don’t know what is the technical description of a mountain but the witnesses and reports made by environmental experts and persons who have been
based on the information that we got from the community during the consultation it’s educated and trained in their respective fields.
full of vegetation before it was leveled down by the operation, Your Honors. (Emphasis
supplied) Third, contrary to Agham’s claim that LAMI had no ECC from the DENR, the DENR
restored LAMI’s ECC. After LAMI was issued a Notice of Violation of its ECC dated 1 June
Agham, in its Motion for Reconsideration with the Court of Appeals, then asserted that 2012 by the DENR-EMB R3, LAMI complied with all the requirements and its ECC had
even if the subject land formation is not a mound, hill or mountain, the fact remains that been reinstated. In the Letter57 dated 24 October 2012, Dir. Claudio wrote:
the scraping and leveling done by petitioner caused serious environmental damage
which affects not only Sta. Cruz, Zambales but also the nearby towns of Zambales and x x x x
Pangasinan.
Regarding the alleged cutting of trees and leveling of the mountain, we have verified
The Court of Appeals, in granting the Motion for Reconsideration embodied in its that:
Amended Decision dated 13 September 2013, held that what LAMI did was not to simply
level the subject land formation but scrape and remove a small mountain and,

44
1. There is no illegal cutting of trees since a Tree Cutting Permit was issued by the
Community Environment and Natural Resources Office (CENRO). Monitoring of the Dir. Claudio testified at the hearing conducted by the Court of Appeals on 26 September
compliance with the conditions of the said Permit was also undertaken by the CENRO; 2012 that the cut and fill operations of LAMI only affected the port site but not the
and surrounding area and that the environmental effect was only minimal and insignificant.
The relevant portions of Dir. Claudio’s testimony provide:
2. There is no leveling of a mountain. As certified by the Mines and Geosciences Bureau
Region 3, the landform in the area is an elongated mound which is 164 meters in length A/Sol. Chua Cheng: Madam Witness, you made mention that the cut and fill operations
and 94 meters in width and its maximum elevation is 26 meters above mean sea level. involved the... or the causeway created during the cut and fill operation is 82 meters in
length and 8 meters in width. What is the overall environment effect of this cut and fill
Further, we recognize your efforts in revegetating the exposed side slopes of the cut operation in Barangay Bolitoc?
portion of the mound and the construction of drainage system and silt traps to prevent
the siltation of the bay. Dir. Claudio.: It is minimal, insignificant and temporary in nature, Sir, because as I
mentioned, only 11,580 cubic meters had been stripped off and the tree cutting which
The violated ECC conditions have been rectified and clarified while the penalty had been issued with a permit is only less than about 37 trees based on the Post
corresponding to such violation was fully paid and the required rehabilitation and Evaluation Report done by the CENRO, Sir.
mitigating measures were already implemented as committed. As such, the matter
leading to the issuance of the NOV is now resolved. A/Sol. Chua Cheng: What about the effect of such cut and fill operations as regards the
two provinces, Pangasinan and Zambales, does it have any effect or what is the extent
As ECC holder, you are enjoined to ensure the effective carrying out of your of the effect?
Environmental Management and Monitoring Plan.
Dir. Claudio: It is just localized; it is just confined within the project area because we
Even Rep. Dan S. Fernandez, the Chairman of the Committee on Ecology of the House of required them to put up the drainage system, the drainage, the canals and the siltation
Representatives, acknowledged that LAMI had fully complied with its ECC conditions. In ponds and the laying of armour rocks for the sea wall and the construction of causeway,
a Letter58 dated 26 February 2013 addressed to the DENR Secretary, Rep. Fernandez Sir, to avoid erosion and sedimentation. We also required them to rehabilitate the
wrote: exposed slopes which they already did.

xxxx xxxx

On 21 February 2013, the Committee on Ecology received a letter from Director A/Sol. Chua Cheng: Only in the project area specifically located only in Brgy. Bolitoc?
Lormelyn E. Claudio, the Regional Director for Region III of the Environment
Management Bureau of the DENR. The letter ascertains that, among other things, based Dir. Claudio: Brgy. Bolitoc, Sta. Cruz, Zambales, Sir. It does not in any way affect or cannot
on the investigation and monitoring conducted led by Dir. Claudio, LAMI is, to date, in affect the Province of Pangasinan as alleged, Sir.59 (Emphasis supplied)
compliance with its environmental commitments as required under the ECC and said
Order. Even the Geoscience Foundation, Inc., which conducted a scientific study on the port site
regarding the possible damage to the environment from the construction of the port
In view thereof, the Committee would like to express its appreciation for the apt and facility, found that the landform was too small to protect against typhoons, monsoons
prompt action on the matter. We expect that the subject company’s conformity to and floods due to heavy rains and storm surges. Its Report60 on the Topographical,
environmental laws, as well as its activities’ impact on the environment, will remain Geomorphological and Climatological Characterization of the LAMI Port undertaken in
closely monitored and evaluated. September 2012 stated:

xxxx 6.0 Findings in Relation to the Petition for Writ of Kalikasan

Last, the alleged scraping off or leveling of land at LAMI’s port site is deemed insignificant x x x x
to pose a detrimental impact on the environment.

45
1. The LAMI Port is partly situated in a hill and not a mountain. The topographic and
geologic maps of NAMRIA and the MGB do not show the presence of a mountain where
the port is partly located. The detailed topographic survey moreover indicates that this
hill had an original elevation of 23 m.MSL in the portion where it was excavated to
0accommodate the access road leading to the wharf.
6. The hill is too small to protect against floods due to storm surges. Storm surges appear
as large waves that are caused by the pushing of the wind on the surface of the sea or
ocean during storm events. Since the hill has a present length of only 420 meters, it is
too small to prevent flooding due to storm surges.1âwphi1 The large waves will just skirt
the hill and sweep through the low-lying coastland to the west and east of the hill.

Mountains attain much higher elevations than 23 m.MSL. Kendall et al. (1967), defines The hill shields against the direct impact of large, south-moving waves to several homes
a mountain as having a height of at least 900 meters and are usually characterized by a located immediately south of the hill. Since the V-cut of the access road is small
vertical zonation of landscape and vegetation due to increasing elevations. compared to the rest of the hill and terminates at a relatively high 7.5 m.MSL, this
protection offered by the hill is not significantly diminished.61
2. No leveling of a mountain was done. The construction of the access road required a
V-cut through the hill that lowered it from 23 m.MSL to 7.5 m.MSL. This elevation is still Further, the DENR composite team, in its Report of Investigation62 conducted on 20-21
much higher than the flat land surrounding the hill. The hill had an original length of 600 June 2012 on LAMI’s port site to ensure that LAMI undertook mitigating measures in its
meters through which the V-cut, which has an average width of 26.5 meters, was property, found that LAMI’s activities posed only a minimal or insignificant impact to the
excavated. Only a small portion of the hill was therefore altered. environment. The relevant portions of the Report state:

The topographic survey further reveals that the total volume of earth material removed Findings and Observations:
is 24,569 cubic meters, which would fit a room that has a length, width and height of 29
meters. This amount of earth material does not constitute the volume of a mountain. The composite team gathered data and the following are the initial observations:

3. The hill is too small and not in the right location to protect against typhoons. The hill
cannot serve as a natural protective barrier against typhoons in Zambales and some
towns of Pangasinan because it is too small compared to the magnitude of typhoons.
Typhoons approach the country from east and move in a west to northwest direction
through Zambales Province as clarified in Figure 7. They are even able to cross the Sierra
Madre Range and the Zambales Range before reaching Zambales Province. Since the
port is situated at the western coastline of Zambales, it would be the last thing a typhoon
would pass by as it moves through Zambales.
4. The hill is too small to protect against the Southwest Monsoon. The hill does not shield
any area from the heavy rains that batter the country during the Southwest Monsoon.
It is too small to alter the effect of the Southwest Monsoon in the way that the Sierra
Madre Range forces the Northwest Monsoon to rise over it and release much of its
moisture as orographic precipitation on the windward side of the range such that the
leeward side is drier.
5. The hill is not in the right location to protect against flooding due to heavy rains. The
hill does not protect against the floods that occur from heavy rains. Since Zambales
regionally slopes down to the west, flood water during heavy rains will move from east
to west following the flow direction of rivers in the area. Flood water from the Zambales
Range will inundate the coastal plain first before reaching the coastline where the hill is
situated. Figure 11 depicts the flow direction of flood water in the municipality.
1. Site preparation which includes site grading/surface stripping, low ridge cut and fill
and reclamation works were observed to have been undertaken within the project area;
2. A total volume of approximately 11,580 cubic meters of soil cut/stripped from low
ridge was noted being used for causeway construction. Part of the discarded soil with a
volume of 5,843 cubic meters was already used for causeway preparation while the
remaining 5,735 cubic meters was noted still on stockpile area;
3. Discarded soil generated from ridge cut and fill consists of clay with sandstone and
shale;
4. The partial low ridge cut and fill poses minimal or insignificant impact to the
environment due to threats of storm surges, strong winds and flooding because the
protective natural barriers against northeast monsoon are the mountain ranges in the
eastern part of Zambales and Pangasinan which are geologically and historically effective
as in the case of the adjoining and operational ports of the DMCI and Shang Fil.
5. The height of the low ridge is still maintained at an elevation of 23.144 meters above
sea level while the constructed access road to the causeway has an elevation of 7.46
meters with a width of 8 meters and length of 80-100 meters only.
Remarks and Recommendation:

46
The construction of the access road on the low ridge does not pose adverse
environmental impact to the adjoining communities more so to the larger areas or the In sum, contrary to the findings of the appellate court in its Amended Decision dated 13
entire province of Zambales and Pangasinan. September 2013, we find that LAMI did not cause any environmental damage that
prejudiced the life, health or property of the inhabitants residing in the municipality of
It was determined as a result of our verification and based on the above findings Sta. Cruz, the province of Zambales or in the neighboring province of Pangasinan.
supported with field GPS reading that there had been no leveling of the mountain Agham, as the party that has the burden to prove the requirements for the issuance of
undertaken in the project site as there is no mountain existing inside the area covered the privilege of the Writ ofKalikasan, failed to prove (1) the environmental laws allegedly
by the ECC issued by EMB-Region 3. The landform claimed by Mayor Marty to be a violated by LAMI; and (2) the magnitude of the environmental damage allegedly caused
mountain is actually an elongated low ridge with a peak of approximately 23 meters by LAMI in the construction of LAMI' s port facility in Brgy. Bolitoc, Sta. Cruz, Zambales
above sea level which is located in a private land falling under Block 1, Alienable and and its surrounding area. Thus, the petition for the issuance of the privilege of the Writ
Disposable Land per LC Map 635 with Lot No. 2999 originally owned by Mr. Severo of Kalikasan must be denied.
Monsalud which was transferred to Sta. Cruz Mineral Port Corporation with a Contract
of Lease with LAMI (data provided by CENRO Masinloc through a Memorandum dated WHEREFORE, we GRANT the petition. We REVERSE and SET ASIDE the Amended Decision
June 4, 2012). The proponent (LAMI) only implemented road cutting of low ridge in the dated 13 September 2013 of the Court of Appeals and REINSTATE AND AFFIRM the
middle to make an access way to the proposed marine loading facility. More so, tree original Decision dated 23 November 2012 of the Court of Appeals in CA-G.R. SP No.
cutting done by LAMI is covered by a Permit to Cut issued by DENR-Region 3-CENRO, 00012 which DENIED the petition for the issuance of the privilege of the Writ of
Masinloc which is responsible for the inventory and monitoring of cut trees. Kalikasan.

x x x x63 (Emphasis supplied) SO ORDERED.

Thus, from all the foregoing, we agree with the appellate court, in its original Decision
dated 23 November 2012, when it denied the petition for a Writ of Kalikasan:

As between the too general and very hypothetical allegation of large-scale

environmental damage at one hand, and the remarks of government experts on the
other, We are inclined to give more credit to the latter. Below is the further articulation
of our stance:

Presumption of regularity

It is a legal presumption, born of wisdom and experience, that official duty has been
regularly performed. Therefore, the fact that the "remarks and recommendation" of the
composite team from EMB R3, MGB R3, and PENRO Zambales were made in the exercise
of their government function, the presumption of regularity in the performance of such
official duty stands. It is incumbent upon petitioner to prove otherwise, a task which it
failed to do here.

Expert findings are afforded great weight

The findings of facts of administrative bodies charged with their specific field of
expertise, are afforded great weight by the courts, and in the absence of substantial
showing that such findings are made from an erroneous estimation of the evidence
presented, they are conclusive, and in the interest of stability of the governmental
structure, should not be disturbed. x x x.64

47
 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 PEÑA, 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.
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);

This case turns on government agencies and their officers who, by the nature of their (6) The Illegal Disposal of Wastes Decree (PD 825);
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 (7) The Marine Pollution Law (PD 979);
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 (8) Executive Order No. 192;
be the norm. Their cavalier attitude towards solving, if not mitigating, the environmental
pollution problem, is a sad commentary on bureaucratic efficiency and commitment. (9) The Toxic and Hazardous Wastes Law (Republic Act No. 6969);

At the core of the case is the Manila Bay, a place with a proud historic past, once (10) Civil Code provisions on nuisance and human relations;
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 (11) The Trust Doctrine and the Principle of Guardianship; and
of the abject official indifference of people and institutions that could have otherwise
made a difference. (12) International Law

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

48
Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be ordered to clean Defendant DENR, which is the lead agency in cleaning up Manila Bay, to install, operate
the Manila Bay and submit to the RTC a concerted concrete plan of action for the and maintain waste facilities to rid the bay of toxic and hazardous substances.
purpose.
Defendant PPA, to prevent and also to treat the discharge not only of ship-generated
The trial of the case started off with a hearing at the Manila Yacht Club followed by an wastes but also of other solid and liquid wastes from docking vessels that contribute to
ocular inspection of the Manila Bay. Renato T. Cruz, the Chief of the Water Quality the pollution of the bay.
Management Section, Environmental Management Bureau, Department of Environment
and Natural Resources (DENR), testifying for petitioners, stated that water samples Defendant MMDA, to establish, operate and maintain an adequate and appropriate
collected from different beaches around the Manila Bay showed that the amount of fecal sanitary landfill and/or adequate solid waste and liquid disposal as well as other
coliform content ranged from 50,000 to 80,000 most probable number (MPN)/ml when alternative garbage disposal system such as re-use or recycling of wastes.
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 Defendant DA, through the Bureau of Fisheries and Aquatic Resources, to revitalize the
MPN/100 ml.4 marine life in Manila Bay and restock its waters with indigenous fish and other aquatic
animals.
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 Defendant DBM, to provide and set aside an adequate budget solely for the purpose of
the Manila Bay through the Manila Second Sewerage Project. For its part, the Philippine cleaning up and rehabilitation of Manila Bay.
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 Defendant DPWH, to remove and demolish structures and other nuisances that obstruct
Dagat (Clean the Ocean) project for the cleaning of wastes accumulated or washed to the free flow of waters to the bay. These nuisances discharge solid and liquid wastes
shore. 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
The RTC Ordered Petitioners to Clean Up and Rehabilitate Manila Bay of sunken vessels, and other non-biodegradable garbage in the bay.

On September 13, 2002, the RTC rendered a Decision5 in favor of respondents. The Defendant DOH, to closely supervise and monitor the operations of septic and sludge
dispositive portion reads: companies and require them to have proper facilities for the treatment and disposal of
fecal sludge and sewage coming from septic tanks.
WHEREFORE, finding merit in the complaint, judgment is hereby rendered ordering the
abovenamed defendant-government agencies, jointly and solidarily, to clean up and Defendant DECS, to inculcate in the minds and hearts of the people through education
rehabilitate Manila Bay and restore its waters to SB classification to make it fit for the importance of preserving and protecting the environment.
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 Defendant Philippine Coast Guard and the PNP Maritime Group, to protect at all costs
from receipt hereof, to act and perform their respective duties by devising a the Manila Bay from all forms of illegal fishing.
consolidated, coordinated and concerted scheme of action for the rehabilitation and
restoration of the bay. No pronouncement as to damages and costs.

In particular: SO ORDERED.

Defendant MWSS is directed to install, operate and maintain adequate [sewerage] The MWSS, Local Water Utilities Administration (LWUA), and PPA filed before the Court
treatment facilities in strategic places under its jurisdiction and increase their capacities. of Appeals (CA) individual Notices of Appeal which were eventually consolidated and
docketed as CA-G.R. CV No. 76528.
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. On the other hand, the DENR, Department of Public Works and Highways (DPWH),
Metropolitan Manila Development Authority (MMDA), Philippine Coast Guard (PCG),

49
Philippine National Police (PNP) Maritime Group, and five other executive departments On August 12, 2008, the Court conducted and heard the parties on oral arguments.
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 Our Ruling
with the consolidated appeals of MWSS, LWUA, and PPA, docketed as CA-G.R. SP No.
74944. We shall first dwell on the propriety of the issuance of mandamus under the premises.

Petitioners, before the CA, were one in arguing in the main that the pertinent provisions The Cleaning or Rehabilitation of Manila Bay
of the Environment Code (PD 1152) relate only to the cleaning of specific pollution Can be Compelled by Mandamus
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 Generally, the writ of mandamus lies to require the execution of a ministerial duty.8 A
cleaning of the Manila Bay is not a ministerial act which can be compelled by mandamus. 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
The CA Sustained the RTC 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,
By a Decision6 of September 28, 2005, the CA denied petitioners’ appeal and affirmed on matters involving discretion, but not to direct the exercise of judgment or discretion
the Decision of the RTC in toto, stressing that the trial court’s decision did not require one way or the other.
petitioners to do tasks outside of their usual basic functions under existing laws.7
Petitioners maintain that the MMDA’s duty to take measures and maintain adequate
Petitioners are now before this Court praying for the allowance of their Rule 45 petition solid waste and liquid disposal systems necessarily involves policy evaluation and the
on the following ground and supporting arguments: 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
THE [CA] DECIDED A QUESTION OF SUBSTANCE NOT HERETOFORE PASSED UPON BY THE should be located by undertaking feasibility studies and cost estimates, all of which
HONORABLE COURT, I.E., IT AFFIRMED THE TRIAL COURT’S DECISION DECLARING THAT entail the exercise of discretion.
SECTION 20 OF [PD] 1152 REQUIRES CONCERNED GOVERNMENT AGENCIES TO REMOVE
ALL POLLUTANTS SPILLED AND DISCHARGED IN THE WATER SUCH AS FECAL COLIFORMS. 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
ARGUMENTS 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
I 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
[SECTIONS] 17 AND 20 OF [PD] 1152 RELATE ONLY TO THE CLEANING OF SPECIFIC alleviate the problem of solid and liquid waste disposal; in other words, it is the MMDA’s
POLLUTION INCIDENTS AND [DO] NOT COVER CLEANING IN GENERAL ministerial duty to attend to such services.

II We agree with respondents.

THE CLEANING OR REHABILITATION OF THE MANILA BAY IS NOT A MINISTERIAL ACT OF First off, we wish to state that petitioners’ obligation to perform their duties as defined
PETITIONERS THAT CAN BE COMPELLED BY MANDAMUS. 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 MMDA’s mandated tasks may
The issues before us are two-fold. First, do Sections 17 and 20 of PD 1152 under the entail a decision-making process, the enforcement of the law or the very act of doing
headings, Upgrading of Water Quality and Clean-up Operations, envisage a cleanup in what the law exacts to be done is ministerial in nature and may be compelled by
general or are they limited only to the cleanup of specific pollution incidents? And mandamus. We said so in Social Justice Society v. Atienza11 in which the Court directed
second, can petitioners be compelled by mandamus to clean up and rehabilitate the the City of Manila to enforce, as a matter of ministerial duty, its Ordinance No. 8027
Manila Bay? 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

50
ordinance. But to illustrate with respect to the instant case, the MMDA’s duty to put up exercises jurisdiction "over all aspects of water pollution, determine[s] its location,
an adequate and appropriate sanitary landfill and solid waste and liquid disposal as well magnitude, extent, severity, causes and effects and other pertinent information on
as other alternative garbage disposal systems is ministerial, its duty being a statutory pollution, and [takes] measures, using available methods and technologies, to prevent
imposition. The MMDA’s duty in this regard is spelled out in Sec. 3(c) of Republic Act No. and abate such pollution."
(RA) 7924 creating the MMDA. This section defines and delineates the scope of the
MMDA’s waste disposal services to include: 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
Solid waste disposal and management which include formulation and implementation Quality Management Area Action Plan which is nationwide in scope covering the Manila
of policies, standards, programs and projects for proper and sanitary waste disposal. It Bay and adjoining areas. Sec. 19 of RA 9275 provides:
shall likewise include the establishment and operation of sanitary land fill and related
facilities and the implementation of other alternative programs intended to reduce, Sec. 19 Lead Agency.––The [DENR] shall be the primary government agency responsible
reuse and recycle solid waste. (Emphasis added.) 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:
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 a) Prepare a National Water Quality Status report within twenty-four (24) months from
of sanitary landfills and Sec. 42 which provides the minimum operating requirements the effectivity of this Act: Provided, That the Department shall thereafter review or
that each site operator shall maintain in the operation of a sanitary landfill. revise and publish annually, or as the need arises, said report;
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, b) Prepare an Integrated Water Quality Management Framework within twelve (12)
from using and operating open dumps for solid waste and disallowing, five years after months following the completion of the status report;
such effectivity, the use of controlled dumps.
c) Prepare a ten (10) year Water Quality Management Area Action Plan within 12 months
The MMDA’s duty in the area of solid waste disposal, as may be noted, is set forth not following the completion of the framework for each designated water management
only in the Environment Code (PD 1152) and RA 9003, but in its charter as well. This duty area. Such action plan shall be reviewed by the water quality management area
of putting up a proper waste disposal system cannot be characterized as discretionary, governing board every five (5) years or as need arises.
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 The DENR has prepared the status report for the period 2001 to 2005 and is in the
discretionary duty is one that "allows a person to exercise judgment and choose to process of completing the preparation of the Integrated Water Quality Management
perform or not to perform."14 Any suggestion that the MMDA has the option whether Framework.16 Within twelve (12) months thereafter, it has to submit a final Water
or not to perform its solid waste disposal-related duties ought to be dismissed for want Quality Management Area Action Plan.17 Again, like the MMDA, the DENR should be
of legal basis. made to accomplish the tasks assigned to it under RA 9275.

A perusal of other petitioners’ respective charters or like enabling statutes and pertinent Parenthetically, during the oral arguments, the DENR Secretary manifested that the
laws would yield this conclusion: these government agencies are enjoined, as a matter DENR, with the assistance of and in partnership with various government agencies and
of statutory obligation, to perform certain functions relating directly or indirectly to the non-government organizations, has completed, as of December 2005, the final draft of
cleanup, rehabilitation, protection, and preservation of the Manila Bay. They are a comprehensive action plan with estimated budget and time frame, denominated as
precluded from choosing not to perform these duties. Consider: Operation Plan for the Manila Bay Coastal Strategy, for the rehabilitation, restoration,
and rehabilitation of the Manila Bay.
(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 country’s The completion of the said action plan and even the implementation of some of its
environment and natural resources. Sec. 19 of the Philippine Clean Water Act of 2004 phases should more than ever prod the concerned agencies to fast track what are
(RA 9275), on the other hand, designates the DENR as the primary government agency assigned them under existing laws.
responsible for its enforcement and implementation, more particularly over all aspects
of water quality management. On water pollution, the DENR, under the Act’s Sec. 19(k),

51
(2) The MWSS, under Sec. 3 of RA 6234,18 is vested with jurisdiction, supervision, and the formulation and implementation of policies, standards, programs and projects for
control over all waterworks and sewerage systems in the territory comprising what is an integrated flood control, drainage and sewerage system."
now the cities of Metro Manila and several towns of the provinces of Rizal and Cavite,
and charged with the duty: 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
(g) To construct, maintain, and operate such sanitary sewerages as may be necessary for control in Metro Manila. For the rest of the country, DPWH shall remain as the
the proper sanitation and other uses of the cities and towns comprising the System; x x implementing agency for flood control services. The mandate of the MMDA and DPWH
x on flood control and drainage services shall include the removal of structures,
constructions, and encroachments built along rivers, waterways, and esteros (drainages)
(3) The LWUA under PD 198 has the power of supervision and control over local water in violation of RA 7279, PD 1067, and other pertinent laws.
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 (6) The PCG, in accordance with Sec. 5(p) of PD 601, or the Revised Coast Guard Law of
direct these districts to construct, operate, and furnish facilities and services for the 1974, and Sec. 6 of PD 979,24 or the Marine Pollution Decree of 1976, shall have the
collection, treatment, and disposal of sewerage, waste, and storm water. Additionally, primary responsibility of enforcing laws, rules, and regulations governing marine
under RA 9275, the LWUA, as attached agency of the DPWH, is tasked with providing pollution within the territorial waters of the Philippines. It shall promulgate its own rules
sewerage and sanitation facilities, inclusive of the setting up of efficient and safe and regulations in accordance with the national rules and policies set by the National
collection, treatment, and sewage disposal system in the different parts of the Pollution Control Commission upon consultation with the latter for the effective
country.19 In relation to the instant petition, the LWUA is mandated to provide implementation and enforcement of PD 979. It shall, under Sec. 4 of the law, apprehend
sewerage and sanitation facilities in Laguna, Cavite, Bulacan, Pampanga, and Bataan to violators who:
prevent pollution in the Manila Bay.
a. discharge, dump x x x harmful substances from or out of any ship, vessel, barge, or
(4) The Department of Agriculture (DA), pursuant to the Administrative Code of 1987 any other floating craft, or other man-made structures at sea, by any method, means or
(EO 292),20 is designated as the agency tasked to promulgate and enforce all laws and manner, into or upon the territorial and inland navigable waters of the Philippines;
issuances respecting the conservation and proper utilization of agricultural and fishery
resources. Furthermore, the DA, under the Philippine Fisheries Code of 1998 (RA 8550), b. throw, discharge or deposit, dump, or cause, suffer or procure to be thrown,
is, in coordination with local government units (LGUs) and other concerned sectors, in discharged, or deposited either from or out of any ship, barge, or other floating craft or
charge of establishing a monitoring, control, and surveillance system to ensure that vessel of any kind, or from the shore, wharf, manufacturing establishment, or mill of any
fisheries and aquatic resources in Philippine waters are judiciously utilized and managed kind, any refuse matter of any kind or description whatever other than that flowing from
on a sustainable basis.21 Likewise under RA 9275, the DA is charged with coordinating streets and sewers and passing therefrom in a liquid state into tributary of any navigable
with the PCG and DENR for the enforcement of water quality standards in marine water from which the same shall float or be washed into such navigable water; and
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 c. deposit x x x material of any kind in any place on the bank of any navigable water or
water pollution for the development, management, and conservation of the fisheries on the bank of any tributary of any navigable water, where the same shall be liable to be
and aquatic resources. 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
(5) The DPWH, as the engineering and construction arm of the national government, is increase the level of pollution of such water.
tasked under EO 29223 to provide integrated planning, design, and construction services
for, among others, flood control and water resource development systems in accordance (7) When RA 6975 or the Department of the Interior and Local Government (DILG) Act
with national development objectives and approved government plans and of 1990 was signed into law on December 13, 1990, the PNP Maritime Group was tasked
specifications. 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
In Metro Manila, however, the MMDA is authorized by Sec. 3(d), RA 7924 to perform the latter acquires the capability to perform such functions. Since the PNP Maritime
metro-wide services relating to "flood control and sewerage management which include 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

52
regard to the enforcement of laws, rules, and regulations governing marine pollution esteros, railroad tracks, garbage dumps, riverbanks, shorelines, waterways, and other
within the territorial waters of the Philippines. This was made clear in Sec. 124, RA 8550 public places such as sidewalks, roads, parks and playgrounds." The MMDA, as lead
or the Philippine Fisheries Code of 1998, in which both the PCG and PNP Maritime Group agency, in coordination with the DPWH, LGUs, and concerned agencies, can dismantle
were authorized to enforce said law and other fishery laws, rules, and regulations.25 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.
(8) In accordance with Sec. 2 of EO 513, the PPA is mandated "to establish, develop, With respect to rivers, waterways, and esteros in Bulacan, Bataan, Pampanga, Cavite,
regulate, manage and operate a rationalized national port system in support of trade and Laguna that discharge wastewater directly or eventually into the Manila Bay, the
and national development."26 Moreover, Sec. 6-c of EO 513 states that the PPA has DILG shall direct the concerned LGUs to implement the demolition and removal of such
police authority within the ports administered by it as may be necessary to carry out its structures, constructions, and other encroachments built in violation of RA 7279 and
powers and functions and attain its purposes and objectives, without prejudice to the other applicable laws in coordination with the DPWH and concerned agencies.
exercise of the functions of the Bureau of Customs and other law enforcement bodies
within the area. Such police authority shall include the following: (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
xxxx 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
b) To regulate the entry to, exit from, and movement within the port, of persons and concerned agencies, shall formulate guidelines and standards for the collection,
vehicles, as well as movement within the port of watercraft.27 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
Lastly, as a member of the International Marine Organization and a signatory to the a mix sewerage-septage management system shall be employed.
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 In accordance with Sec. 7230 of PD 856, the Code of Sanitation of the Philippines, and
adequate reception facilities at ports and terminals for the reception of sewage from the Sec. 5.1.131 of Chapter XVII of its implementing rules, the DOH is also ordered to ensure
ships docking in Philippine ports. Thus, the PPA is tasked to adopt such measures as are the regulation and monitoring of the proper disposal of wastes by private sludge
necessary to prevent the discharge and dumping of solid and liquid wastes and other companies through the strict enforcement of the requirement to obtain an
ship-generated wastes into the Manila Bay waters from vessels docked at ports and environmental sanitation clearance of sludge collection treatment and disposal before
apprehend the violators. When the vessels are not docked at ports but within Philippine these companies are issued their environmental sanitation permit.
territorial waters, it is the PCG and PNP Maritime Group that have jurisdiction over said
vessels. (11) The Department of Education (DepEd), under the Philippine Environment Code (PD
1152), is mandated to integrate subjects on environmental education in its school
(9) The MMDA, as earlier indicated, is duty-bound to put up and maintain adequate curricula at all levels.32 Under Sec. 118 of RA 8550, the DepEd, in collaboration with the
sanitary landfill and solid waste and liquid disposal system as well as other alternative DA, Commission on Higher Education, and Philippine Information Agency, shall launch
garbage disposal systems. It is primarily responsible for the implementation and and pursue a nationwide educational campaign to promote the development,
enforcement of the provisions of RA 9003, which would necessary include its penal management, conservation, and proper use of the environment. Under the Ecological
provisions, within its area of jurisdiction.29 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
Among the prohibited acts under Sec. 48, Chapter VI of RA 9003 that are frequently emphasis on waste management principles.33
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, (12) The Department of Budget and Management (DBM) is tasked under Sec. 2, Title XVII
burying of biodegradable or non- biodegradable materials in flood-prone areas, of the Administrative Code of 1987 to ensure the efficient and sound utilization of
establishment or operation of open dumps as enjoined in RA 9003, and operation of government funds and revenues so as to effectively achieve the country’s development
waste management facilities without an environmental compliance certificate. objectives.34

Under Sec. 28 of the Urban Development and Housing Act of 1992 (RA 7279), eviction or One of the country’s development objectives is enshrined in RA 9275 or the Philippine
demolition may be allowed "when persons or entities occupy danger areas such as Clean Water Act of 2004. This law stresses that the State shall pursue a policy of

53
economic growth in a manner consistent with the protection, preservation, and revival The amendatory Sec. 16 of RA 9275 reads:
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
SEC. 16. Cleanup Operations.––Notwithstanding the provisions of Sections 15 and 26
prevention, control, and abatement of pollution mechanisms for the protection of water
hereof, any person who causes pollution in or pollutes water bodies in excess of the
resources; to promote environmental strategies and use of appropriate economic applicable and prevailing standards shall be responsible to contain, remove and clean up
instruments and of control mechanisms for the protection of water resources; to any pollution incident at his own expense to the extent that the same water bodies have
formulate a holistic national program of water quality management that recognizes that
been rendered unfit for utilization and beneficial use: Provided, That in the event
issues related to this management cannot be separated from concerns about water emergency cleanup operations are necessary and the polluter fails to immediately
sources and ecological protection, water supply, public health, and quality of life; and to
undertake the same, the [DENR] in coordination with other government agencies
provide a comprehensive management program for water pollution focusing on concerned, shall undertake containment, removal and cleanup operations. Expenses
pollution prevention. 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
Thus, the DBM shall then endeavor to provide an adequate budget to attain the noble cost incurred shall be made to the Water Quality Management Fund or to such other
objectives of RA 9275 in line with the country’s development objectives. funds where said disbursements were sourced.

All told, the aforementioned enabling laws and issuances are in themselves clear, As may be noted, the amendment to Sec. 20 of the Environment Code is more apparent
categorical, and complete as to what are the obligations and mandate of each than real since the amendment, insofar as it is relevant to this case, merely consists in
agency/petitioner under the law. We need not belabor the issue that their tasks include the designation of the DENR as lead agency in the cleanup operations.
the cleanup of the Manila Bay.
Petitioners contend at every turn that Secs. 17 and 20 of the Environment Code concern
Now, as to the crux of the petition. Do Secs. 17 and 20 of the Environment Code themselves only with the matter of cleaning up in specific pollution incidents, as opposed
encompass the cleanup of water pollution in general, not just specific pollution to cleanup in general. They aver that the twin provisions would have to be read alongside
incidents? the succeeding Sec. 62(g) and (h), which defines the terms "cleanup operations" and
"accidental spills," as follows:
Secs. 17 and 20 of the Environment Code
Include Cleaning in General g. Clean-up Operations [refer] to activities conducted in removing the pollutants
discharged or spilled in water to restore it to pre-spill condition.
The disputed sections are quoted as follows:
h. Accidental Spills [refer] to spills of oil or other hazardous substances in water that
Section 17. Upgrading of Water Quality.––Where the quality of water has deteriorated result from accidents such as collisions and groundings.
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 Petitioners proffer the argument that Secs. 17 and 20 of PD 1152 merely direct the
water to meet the prescribed water quality standards. government agencies concerned to undertake containment, removal, and cleaning
operations of a specific polluted portion or portions of the body of water concerned.
Section 20. Clean-up Operations.––It shall be the responsibility of the polluter to contain, They maintain that the application of said Sec. 20 is limited only to "water pollution
remove and clean-up water pollution incidents at his own expense. In case of his failure incidents," which are situations that presuppose the occurrence of specific, isolated
to do so, the government agencies concerned shall undertake containment, removal and pollution events requiring the corresponding containment, removal, and cleaning
clean-up operations and expenses incurred in said operations shall be charged against operations. Pushing the point further, they argue that the aforequoted Sec. 62(g)
the persons and/or entities responsible for such pollution. 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
When the Clean Water Act (RA 9275) took effect, its Sec. 16 on the subject, o, amended spillage of oil or other hazardous substances, as mentioned in Sec. 62(h).
the counterpart provision (Sec. 20) of the Environment Code (PD 1152). Sec. 17 of PD
1152 continues, however, to be operational. 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

54
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 Granting arguendo that petitioners’ position thus described vis-à-vis the implementation
without its Sec. 62(g), PD 1152 may have indeed covered only pollution accumulating of Sec. 20 is correct, they seem to have overlooked the fact that the pollution of the
from the day-to-day operations of businesses around the Manila Bay and other sources Manila Bay is of such magnitude and scope that it is well-nigh impossible to draw the
of pollution that slowly accumulated in the bay. Respondents, however, emphasize that line between a specific and a general pollution incident. And such impossibility extends
Sec. 62(g), far from being a delimiting provision, in fact even enlarged the operational to pinpointing with reasonable certainty who the polluters are. We note that Sec. 20 of
scope of Sec. 20, by including accidental spills as among the water pollution incidents PD 1152 mentions "water pollution incidents" which may be caused by polluters in the
contemplated in Sec. 17 in relation to Sec. 20 of PD 1152. 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
To respondents, petitioners’ parochial view on environmental issues, coupled with their adverts to "any person who causes pollution in or pollutes water bodies," which may
narrow reading of their respective mandated roles, has contributed to the worsening refer to an individual or an establishment that pollutes the land mass near the Manila
water quality of the Manila Bay. Assuming, respondents assert, that petitioners are Bay or the waterways, such that the contaminants eventually end up in the bay. In this
correct in saying that the cleanup coverage of Sec. 20 of PD 1152 is constricted by the situation, the water pollution incidents are so numerous and involve nameless and
definition of the phrase "cleanup operations" embodied in Sec. 62(g), Sec. 17 is not faceless polluters that they can validly be categorized as beyond the specific pollution
hobbled by such limiting definition. As pointed out, the phrases "cleanup operations" incident level.
and "accidental spills" do not appear in said Sec. 17, not even in the chapter where said
section is found. 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
Respondents are correct. For one thing, said Sec. 17 does not in any way state that the polluters of the Manila Bay. It may perhaps not be amiss to say that the apprehension,
government agencies concerned ought to confine themselves to the containment, if any, of the Manila Bay polluters has been few and far between. Hence, practically
removal, and cleaning operations when a specific pollution incident occurs. On the nobody has been required to contain, remove, or clean up a given water pollution
contrary, Sec. 17 requires them to act even in the absence of a specific pollution incident, incident. In this kind of setting, it behooves the Government to step in and undertake
as long as water quality "has deteriorated to a degree where its state will adversely affect cleanup operations. Thus, Sec. 16 of RA 9275, previously Sec. 20 of PD 1152, covers for
its best usage." This section, to stress, commands concerned government agencies, all intents and purposes a general cleanup situation.
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 The cleanup and/or restoration of the Manila Bay is only an aspect and the initial stage
not conditional on the occurrence of any pollution incident. 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
For another, a perusal of Sec. 20 of the Environment Code, as couched, indicates that it the wastes and contaminants found in the rivers, inland bays, and other bodies of water
is properly applicable to a specific situation in which the pollution is caused by polluters be stopped from reaching the Manila Bay. Otherwise, any cleanup effort would just be
who fail to clean up the mess they left behind. In such instance, the concerned a futile, cosmetic exercise, for, in no time at all, the Manila Bay water quality would again
government agencies shall undertake the cleanup work for the polluters’ account. deteriorate below the ideal minimum standards set by PD 1152, RA 9275, and other
Petitioners’ assertion, that they have to perform cleanup operations in the Manila Bay relevant laws. It thus behooves the Court to put the heads of the petitioner-department-
only when there is a water pollution incident and the erring polluters do not undertake agencies and the bureaus and offices under them on continuing notice about, and to
the containment, removal, and cleanup operations, is quite off mark. As earlier enjoin them to perform, their mandates and duties towards cleaning up the Manila Bay
discussed, the complementary Sec. 17 of the Environment Code comes into play and the and preserving the quality of its water to the ideal level. Under what other judicial
specific duties of the agencies to clean up come in even if there are no pollution incidents discipline describes as "continuing mandamus,"36 the Court may, under extraordinary
staring at them. Petitioners, thus, cannot plausibly invoke and hide behind Sec. 20 of PD circumstances, issue directives with the end in view of ensuring that its decision would
1152 or Sec. 16 of RA 9275 on the pretext that their cleanup mandate depends on the not be set to naught by administrative inaction or indifference. In India, the doctrine of
happening of a specific pollution incident. In this regard, what the CA said with respect continuing mandamus was used to enforce directives of the court to clean up the length
to the impasse over Secs. 17 and 20 of PD 1152 is at once valid as it is practical. The of the Ganges River from industrial and municipal pollution.37
appellate court wrote: "PD 1152 aims to introduce a comprehensive program of
environmental protection and management. This is better served by making Secs. 17 & The Court can take judicial notice of the presence of shanties and other unauthorized
20 of general application rather than limiting them to specific pollution incidents."35 structures which do not have septic tanks along the Pasig-Marikina-San Juan Rivers, the

55
National Capital Region (NCR) (Parañaque-Zapote, Las Piñas) Rivers, the Navotas- and poison the surface and groundwater that are used for drinking, aquatic life, and the
Malabon-Tullahan-Tenejeros Rivers, the Meycuayan-Marilao-Obando (Bulacan) Rivers, environment.
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, 2. The high level of fecal coliform confirms the presence of a large amount of human
with all the accompanying filth, dirt, and garbage, into the major rivers and eventually waste in the dump sites and surrounding areas, which is presumably generated by
the Manila Bay. If there is one factor responsible for the pollution of the major river households that lack alternatives to sanitation. To say that Manila Bay needs
systems and the Manila Bay, these unauthorized structures would be on top of the list. rehabilitation is an understatement.
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 3. Most of the deadly leachate, lead and other dangerous contaminants and possibly
would be for naught. The DENR Secretary said as much.38 strains of pathogens seeps untreated into ground water and runs into the Marikina and
Pasig River systems and Manila Bay.40
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 Given the above perspective, sufficient sanitary landfills should now more than ever be
length along banks of rivers and other waterways. Art. 51 reads: 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
The banks of rivers and streams and the shores of the seas and lakes throughout their MMDA of Sec. 37, reproduced below:
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 Sec. 37. Prohibition against the Use of Open Dumps for Solid Waste.––No open dumps
to the easement of public use in the interest of recreation, navigation, floatage, fishing shall be established and operated, nor any practice or disposal of solid waste by any
and salvage. No person shall be allowed to stay in this zone longer than what is necessary person, including LGUs which [constitute] the use of open dumps for solid waste, be
for recreation, navigation, floatage, fishing or salvage or to build structures of any kind. allowed after the effectivity of this Act: Provided, further that no controlled dumps shall
(Emphasis added.) be allowed (5) years following the effectivity of this Act. (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 In the light of the ongoing environmental degradation, the Court wishes to emphasize
the extreme necessity for all concerned executive departments and agencies to
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."

56
immediately act and discharge their respective official duties and obligations. Indeed, WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-
time is of the essence; hence, there is a need to set timetables for the performance and government agencies to clean up, rehabilitate, and preserve Manila Bay, and restore and
completion of the tasks, some of them as defined for them by law and the nature of their maintain its waters to SB level (Class B sea waters per Water Classification Tables under
respective offices and mandates. DENR Administrative Order No. 34 [1990]) to make them fit for swimming, skin-diving,
and other forms of contact recreation.
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 In particular:
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 (1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency responsible
accomplished if those mandated, with the help and cooperation of all civic-minded for the conservation, management, development, and proper use of the country’s
individuals, would put their minds to these tasks and take responsibility. This means that environment and natural resources, and Sec. 19 of RA 9275, designating the DENR as the
the State, through petitioners, has to take the lead in the preservation and protection of primary government agency responsible for its enforcement and implementation, the
the Manila Bay. 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
The era of delays, procrastination, and ad hoc measures is over. Petitioners must earliest possible time. It is ordered to call regular coordination meetings with concerned
transcend their limitations, real or imaginary, and buckle down to work before the government departments and agencies to ensure the successful implementation of the
problem at hand becomes unmanageable. Thus, we must reiterate that different aforesaid plan of action in accordance with its indicated completion schedules.
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 (2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec.
disturbed by petitioners’ hiding behind two untenable claims: (1) that there ought to be 25 of the Local Government Code of 1991,42 the DILG, in exercising the President’s
a specific pollution incident before they are required to act; and (2) that the cleanup of power of general supervision and its duty to promulgate guidelines in establishing waste
the bay is a discretionary duty. 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
RA 9003 is a sweeping piece of legislation enacted to radically transform and improve Bataan to inspect all factories, commercial establishments, and private homes along the
waste management. It implements Sec. 16, Art. II of the 1987 Constitution, which banks of the major river systems in their respective areas of jurisdiction, such as but not
explicitly provides that the State shall protect and advance the right of the people to a limited to the Pasig-Marikina-San Juan Rivers, the NCR (Parañaque-Zapote, Las Piñas)
balanced and healthful ecology in accord with the rhythm and harmony of nature. Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-
Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna
So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a balanced and De Bay, and other minor rivers and waterways that eventually discharge water into the
healthful ecology need not even be written in the Constitution for it is assumed, like Manila Bay; and the lands abutting the bay, to determine whether they have wastewater
other civil and political rights guaranteed in the Bill of Rights, to exist from the inception treatment facilities or hygienic septic tanks as prescribed by existing laws, ordinances,
of mankind and it is an issue of transcendental importance with intergenerational and rules and regulations. If none be found, these LGUs shall be ordered to require non-
implications.41 Even assuming the absence of a categorical legal provision specifically complying establishments and homes to set up said facilities or septic tanks within a
prodding petitioners to clean up the bay, they and the men and women representing reasonable time to prevent industrial wastes, sewage water, and human wastes from
them cannot escape their obligation to future generations of Filipinos to keep the waters flowing into these rivers, waterways, esteros, and the Manila Bay, under pain of closure
of the Manila Bay clean and clear as humanly as possible. Anything less would be a or imposition of fines and other sanctions.
betrayal of the trust reposed in them.
(3) As mandated by Sec. 8 of RA 9275,43 the MWSS is directed to provide, install,
WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA in CA- operate, and maintain the necessary adequate waste water treatment facilities in Metro
G.R. CV No. 76528 and SP No. 74944 and the September 13, 2002 Decision of the RTC in Manila, Rizal, and Cavite where needed at the earliest possible time.
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 (4) Pursuant to RA 9275,44 the LWUA, through the local water districts and in
read: coordination with the DENR, is ordered to provide, install, operate, and maintain
sewerage and sanitation facilities and the efficient and safe collection, treatment, and

57
disposal of sewage in the provinces of Laguna, Cavite, Bulacan, Pampanga, and Bataan (9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275, within one
where needed at the earliest possible time. (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
(5) Pursuant to Sec. 65 of RA 8550,45 the DA, through the BFAR, is ordered to improve sewage coming from septic tanks. The DOH shall give the companies, if found to be non-
and restore the marine life of the Manila Bay. It is also directed to assist the LGUs in complying, a reasonable time within which to set up the necessary facilities under pain
Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga, and Bataan in developing, using of cancellation of its environmental sanitation clearance.
recognized methods, the fisheries and aquatic resources in the Manila Bay.
(10) Pursuant to Sec. 53 of PD 1152,48 Sec. 118 of RA 8550, and Sec. 56 of RA 9003,49
(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group, in the DepEd shall integrate lessons on pollution prevention, waste management,
accordance with Sec. 124 of RA 8550, in coordination with each other, shall apprehend environmental protection, and like subjects in the school curricula of all levels to
violators of PD 979, RA 8550, and other existing laws and regulations designed to prevent inculcate in the minds and hearts of students and, through them, their parents and
marine pollution in the Manila Bay. friends, the importance of their duty toward achieving and maintaining a balanced and
healthful ecosystem in the Manila Bay and the entire Philippine archipelago.
(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 (11) The DBM shall consider incorporating an adequate budget in the General
measures to prevent the discharge and dumping of solid and liquid wastes and other Appropriations Act of 2010 and succeeding years to cover the expenses relating to the
ship-generated wastes into the Manila Bay waters from vessels docked at ports and cleanup, restoration, and preservation of the water quality of the Manila Bay, in line with
apprehend the violators. the country’s development objective to attain economic growth in a manner consistent
with the protection, preservation, and revival of our marine waters.
(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, (12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM,
DILG, affected LGUs, PNP Maritime Group, Housing and Urban Development PCG, PNP Maritime Group, DILG, and also of MWSS, LWUA, and PPA, in line with the
Coordinating Council (HUDCC), and other agencies, shall dismantle and remove all principle of "continuing mandamus," shall, from finality of this Decision, each submit to
structures, constructions, and other encroachments established or built in violation of the Court a quarterly progressive report of the activities undertaken in accordance with
RA 7279, and other applicable laws along the Pasig-Marikina-San Juan Rivers, the NCR this Decision.
(Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers,
and connecting waterways and esteros in Metro Manila. The DPWH, as the principal No costs.
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 SO ORDERED.
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.

58
 G.R. Nos. 171947-48 February 15, 2011 government departments and agencies to ensure the successful implementation of the
aforesaid plan of action in accordance with its indicated completion schedules.
METROPOLITAN MANILA DEVELOPMENT AUTHORITY, DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES, DEPARTMENT OF EDUCATION, CULTURE (2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec.
AND SPORTS,1 DEPARTMENT OF HEALTH, DEPARTMENT OF AGRICULTURE, 25 of the Local Government Code of 1991, the DILG, in exercising the President’s power
DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, DEPARTMENT OF BUDGET AND of general supervision and its duty to promulgate guidelines in establishing waste
MANAGEMENT, PHILIPPINE COAST GUARD, PHILIPPINE NATIONAL POLICE MARITIME management programs under Sec. 43 of the Philippine Environment Code (PD 1152),
GROUP, and DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, Petitioners, shall direct all LGUs in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga, and
vs. Bataan to inspect all factories, commercial establishments, and private homes along the
CONCERNED RESIDENTS OF MANILA BAY, represented and joined by DIVINA V. ILAS, banks of the major river systems in their respective areas of jurisdiction, such as but not
SABINIANO ALBARRACIN, MANUEL SANTOS, JR., DINAH DELA PEÑA, PAUL DENNIS limited to the Pasig-Marikina-San Juan Rivers, the NCR (Parañaque-Zapote, Las Piñas)
QUINTERO, MA. VICTORIA LLENOS, DONNA CALOZA, FATIMA QUITAIN, VENICE Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-
SEGARRA, FRITZIE TANGKIA, SARAH JOELLE LINTAG, HANNIBAL AUGUSTUS BOBIS, Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna
FELIMON SANTIAGUEL, and JAIME AGUSTIN R. OPOSA, Respondents. 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
RESOLUTION 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-
VELASCO, JR., J.: 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
On December 18, 2008, this Court rendered a Decision in G.R. Nos. 171947-48 ordering flowing into these rivers, waterways, esteros, and the Manila Bay, under pain of closure
petitioners to clean up, rehabilitate and preserve Manila Bay in their different capacities. or imposition of fines and other sanctions.
The fallo reads:
(3) As mandated by Sec. 8 of RA 9275, the MWSS is directed to provide, install, operate,
WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA in CA- and maintain the necessary adequate waste water treatment facilities in Metro Manila,
G.R. CV No. 76528 and SP No. 74944 and the September 13, 2002 Decision of the RTC in Rizal, and Cavite where needed at the earliest possible time.
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 (4) Pursuant to RA 9275, the LWUA, through the local water districts and in coordination
read: 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
WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant- sewage in the provinces of Laguna, Cavite, Bulacan, Pampanga, and Bataan where
government agencies to clean up, rehabilitate, and preserve Manila Bay, and restore and needed at the earliest possible time.
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, (5) Pursuant to Sec. 65 of RA 8550, the DA, through the BFAR, is ordered to improve and
and other forms of contact recreation. 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
In particular: recognized methods, the fisheries and aquatic resources in the Manila Bay.

(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 country’s
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
(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

59
measures to prevent the discharge and dumping of solid and liquid wastes and other (11) The DBM shall consider incorporating an adequate budget in the General
ship-generated wastes into the Manila Bay waters from vessels docked at ports and Appropriations Act of 2010 and succeeding years to cover the expenses relating to the
apprehend the violators. cleanup, restoration, and preservation of the water quality of the Manila Bay, in line with
the country’s development objective to attain economic growth in a manner consistent
(8) The MMDA, as the lead agency and implementor of programs and projects for flood with the protection, preservation, and revival of our marine waters.
control projects and drainage services in Metro Manila, in coordination with the DPWH,
DILG, affected LGUs, PNP Maritime Group, Housing and Urban Development (12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM,
Coordinating Council (HUDCC), and other agencies, shall dismantle and remove all PCG, PNP Maritime Group, DILG, and also of MWSS, LWUA, and PPA, in line with the
structures, constructions, and other encroachments established or built in violation of principle of "continuing mandamus," shall, from finality of this Decision, each submit to
RA 7279, and other applicable laws along the Pasig-Marikina-San Juan Rivers, the NCR the Court a quarterly progressive report of the activities undertaken in accordance with
(Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, this Decision.
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 SO ORDERED.
country more particularly in Bulacan, Bataan, Pampanga, Cavite, and Laguna, in
coordination with the DILG, affected LGUs, PNP Maritime Group, HUDCC, and other The government agencies did not file any motion for reconsideration and the Decision
concerned government agencies, shall remove and demolish all structures, became final in January 2009.
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 case is now in the execution phase of the final and executory December 18, 2008
the Imus (Cavite) River, the Laguna De Bay, and other rivers, connecting waterways, and Decision. The Manila Bay Advisory Committee was created to receive and evaluate the
esteros that discharge wastewater into the Manila Bay. quarterly progressive reports on the activities undertaken by the agencies in accordance
with said decision and to monitor the execution phase.
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. In the absence of specific completion periods, the Committee recommended that time
On matters within its territorial jurisdiction and in connection with the discharge of its frames be set for the agencies to perform their assigned tasks. This may be viewed as an
duties on the maintenance of sanitary landfills and like undertakings, it is also ordered encroachment over the powers and functions of the Executive Branch headed by the
to cause the apprehension and filing of the appropriate criminal cases against violators President of the Philippines.
of the respective penal provisions of RA 9003, Sec. 27 of RA 9275 (the Clean Water Act),
and other existing laws on pollution. This view is misplaced.

(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.
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

60
 been a change in leadership in both the national and local levels; and (5) some agencies
(c) In any other litigation between the same parties of their successors in interest, that have encountered difficulties in complying with the Court’s directives.
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 In order to implement the afore-quoted Decision, certain directives have to be issued by
therein or necessary thereto. (Emphasis supplied.) the Court to address the said concerns.

It is clear that the final judgment includes not only what appears upon its face to have Acting on the recommendation of the Manila Bay Advisory Committee, the Court hereby
been so adjudged but also those matters "actually and necessarily included therein or resolves to ORDER the following:
necessary thereto." Certainly, any activity that is needed to fully implement a final
judgment is necessarily encompassed by said judgment. (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
Moreover, the submission of periodic reports is sanctioned by Secs. 7 and 8, Rule 8 of the updated Operational Plan for the Manila Bay Coastal Strategy.
the Rules of Procedure for Environmental cases:
The DENR is ordered to submit summarized data on the overall quality of Manila Bay
Sec. 7. Judgment.––If warranted, the court shall grant the privilege of the writ of waters for all four quarters of 2010 on or before June 30, 2011.
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 The DENR is further ordered to submit the names and addresses of persons and
from the wrongful or illegal acts of the respondent. The court shall require the companies in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga and Bataan that
respondent to submit periodic reports detailing the progress and execution of the generate toxic and hazardous waste on or before September 30, 2011.
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 (2) On or before June 30, 2011, the Department of the Interior and Local Government
comments or observations on the execution of the judgment. (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
Sec. 8. Return of the writ.––The periodic reports submitted by the respondent detailing towns in said provinces to inspect all factories, commercial establishments and private
compliance with the judgment shall be contained in partial returns of the writ. Upon full homes along the banks of the major river systems––such as but not limited to the Pasig-
satisfaction of the judgment, a final return of the writ shall be made to the court by the Marikina-San Juan Rivers, the National Capital Region (Paranaque-Zapote, Las Pinas)
respondent. If the court finds that the judgment has been fully implemented, the Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-
satisfaction of judgment shall be entered in the court docket. (Emphasis supplied.) Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, and the
Laguna De Bay––and other minor rivers and waterways within their jurisdiction that
With the final and executory judgment in MMDA, the writ of continuing mandamus eventually discharge water into the Manila Bay and the lands abutting it, to determine
issued in MMDA means that until petitioner-agencies have shown full compliance with if they have wastewater treatment facilities and/or hygienic septic tanks, as prescribed
the Court’s orders, the Court exercises continuing jurisdiction over them until full by existing laws, ordinances, rules and regulations. Said local government unit (LGU)
execution of the judgment. officials are given up to September 30, 2011 to finish the inspection of said
establishments and houses.
There being no encroachment over executive functions to speak of, We shall now
proceed to the recommendation of the Manila Bay Advisory Committee. In case of non-compliance, the LGU officials shall take appropriate action to ensure
compliance by non-complying factories, commercial establishments and private homes
Several problems were encountered by the Manila Bay Advisory Committee.2 An with said law, rules and regulations requiring the construction or installment of
evaluation of the quarterly progressive reports has shown that (1) there are voluminous wastewater treatment facilities or hygienic septic tanks.
quarterly progressive reports that are being submitted; (2) petitioner-agencies do not
have a uniform manner of reporting their cleanup, rehabilitation and preservation The aforementioned governors and mayors shall submit to the DILG on or before
activities; (3) as yet no definite deadlines have been set by petitioner DENR as to December 31, 2011 their respective compliance reports which will contain the names
petitioner-agencies’ timeframe for their respective duties; (4) as of June 2010 there has and addresses or offices of the owners of all the non-complying factories, commercial

61
establishments and private homes, copy furnished the concerned environmental to include in its report the names, make and capacity of the ships that dock in PPA ports.
agency, be it the local DENR office or the Laguna Lake Development Authority. 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 DILG is required to submit a five-year plan of action that will contain measures the MMDA Decision and the completion dates of such measures.
intended to ensure compliance of all non-complying factories, commercial
establishments, and private homes. 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
On or before June 30, 2011, the DILG and the mayors of all cities in Metro Manila shall state the names, make and capacity of the ships serviced by it since August 2003 up to
consider providing land for the wastewater facilities of the Metropolitan Waterworks the present date, the dates the ships docked at PPA ports, the number of days the ship
and Sewerage System (MWSS) or its concessionaires (Maynilad and Manila Water, Inc.) was at sea with the corresponding number of passengers and crew per trip, the volume
within their respective jurisdictions. of solid, liquid and other wastes collected from said ships, the treatment undertaken and
the disposal site for said wastes.
(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 (7) The Philippine National Police (PNP) Maritime Group shall submit on or before June
facilities. Within the same period, the concessionaires of the MWSS shall submit their 30, 2011 its five-year plan of action on the measures and activities it intends to
plans and projects for the construction of wastewater treatment facilities in all the undertake to apprehend the violators of Republic Act No. (RA) 8550 or the Philippine
aforesaid areas and the completion period for said facilities, which shall not go beyond Fisheries Code of 1998 and other pertinent laws, ordinances and regulations to prevent
2037. marine pollution in Manila Bay and to ensure the successful prosecution of violators.

On or before June 30, 2011, the MWSS is further required to have its two concessionaires The Philippine Coast Guard shall likewise submit on or before June 30, 2011 its five-year
submit a report on the amount collected as sewerage fees in their respective areas of plan of action on the measures and activities they intend to undertake to apprehend the
operation as of December 31, 2010. 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
(4) The Local Water Utilities Administration is ordered to submit on or before September to prevent marine pollution in Manila Bay and to ensure the successful prosecution of
30, 2011 its plan to provide, install, operate and maintain sewerage and sanitation violators.
facilities in said cities and towns and the completion period for said works, which shall
be fully implemented by December 31, 2020. (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
(5) The Department of Agriculture (DA), through the Bureau of Fisheries and Aquatic Manila who, as of December 31, 2010, own and occupy houses, structures, constructions
Resources, shall submit to the Court on or before June 30, 2011 a report on areas in and other encroachments established or built along the Pasig-Marikina-San Juan Rivers,
Manila Bay where marine life has to be restored or improved and the assistance it has the NCR (Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros
extended to the LGUs in Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga and Rivers, and connecting waterways and esteros, in violation of RA 7279 and other
Bataan in developing the fisheries and aquatic resources in Manila Bay. The report shall applicable laws. On or before June 30, 2011, the MMDA shall submit its plan for the
contain monitoring data on the marine life in said areas. Within the same period, it shall removal of said informal settlers and the demolition of the aforesaid houses, structures,
submit its five-year plan to restore and improve the marine life in Manila Bay, its future constructions and encroachments, as well as the completion dates for said activities,
activities to assist the aforementioned LGUs for that purpose, and the completion period which shall be fully implemented not later than December 31, 2015.
for said undertakings.
The MMDA is ordered to submit a status report, within thirty (30) days from receipt of
The DA shall submit to the Court on or before September 30, 2011 the baseline data as this Resolution, on the establishment of a sanitary landfill facility for Metro Manila in
of September 30, 2010 on the pollution loading into the Manila Bay system from compliance with the standards under RA 9003 or the Ecological Solid Waste
agricultural and livestock sources. Management Act.

(6) The Philippine Ports Authority (PPA) shall incorporate in its quarterly reports the list On or before June 30, 2011, the MMDA shall submit a report of the location of open and
of violators it has apprehended and the status of their cases. The PPA is further ordered controlled dumps in Metro Manila whose operations are illegal after February 21, 2006,3

62
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.
monthly per district in all the cities in Metro Manila from January 2009 up to December
31, 2010 vis-à-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 DENR Secretary, in his capacity as NSWMC Chairperson, On or before June 30, 2011, the DPWH and the LGUs in Rizal, Laguna, Cavite, Bulacan,
shall submit a report on whether or not the following landfills strictly comply with Secs. Pampanga, and Bataan shall submit the names and addresses of the informal settlers in
41 and 42 of RA 9003 on the establishment and operation of sanitary landfills, to wit: their respective areas who, as of September 30, 2010, own or occupy houses, structures,
constructions, and other encroachments built along the Meycauayan-Marilao-Obando
National Capital Region (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
1. Navotas SLF (PhilEco), Brgy. Tanza (New Site), Navotas City 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
2. Payatas Controlled Dumpsite, Barangay Payatas, Quezon City informal settlers and the demolition of the aforesaid structures, constructions and
encroachments, as well as the completion dates for such activities which shall be
Region III implemented not later than December 31, 2012.

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
(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.

7. Sub-zone Kalangitan, Clark Capas, Tarlac Special Economic Zone The DOH and DENR-Environmental Management Bureau shall develop a toxic and
hazardous waste management system by June 30, 2011 which will implement
Region IV-A segregation of hospital/toxic/hazardous wastes and prevent mixing with municipal solid
waste.
8. Kalayaan (Longos), Laguna
On or before June 30, 2011, the DOH shall submit a plan of action to ensure that the said
9. Brgy. Sto. Nino, San Pablo City, Laguna companies have proper disposal facilities and the completion dates of
compliance.1avvphi1
10. Brgy. San Antonio (Pilotage SLF), San Pedro, Laguna
(10) The Department of Education (DepEd) shall submit to the Court on or before May
11. Morong, Rizal 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
12. Sitio Lukutan, Brgy. San Isidro, Rodriguez (Montalban), Rizal (ISWIMS) the school curricula in all levels for the school year 2011-2012.

13. Brgy. Pintong Bukawe, San Mateo, Rizal (SMSLFDC) 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
On or before June 30, 2011, the MMDA and the seventeen (17) LGUs in Metro Manila aforementioned subjects in the school curricula which shall be fully implemented by
are ordered to jointly submit a report on the average amount of garbage collected June 30, 2012.

63
 G.R. No. 196870 June 26, 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 BORACAY FOUNDATION, INC., Petitioner,
identified. vs.
THE PROVINCE OF AKLAN, REPRESENTED BY GOVERNOR CARLITO S. MARQUEZ, THE
SO ORDERED. 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.

64
1084,3 which states that one of the purposes for which respondent PRA was created was and preservation of Boracay Island" and "to develop an action plan that [would allow]
to reclaim land, including foreshore and submerged areas. PEA eventually became the all sectors to work in concert among and with each other for the long term benefit and
lead agency primarily responsible for all reclamation projects in the country under sustainability of the island and the community."10 The Summit yielded a Terminal
Executive Order No. 525, series of 1979. In June 2006, the President of the Philippines Report11 stating that the participants had shared their dream of having world-class land,
issued Executive Order No. 543, delegating the power "to approve reclamation projects water and air infrastructure, as well as given their observations that government support
to PRA through its governing Board, subject to compliance with existing laws and rules was lacking, infrastructure was poor, and, more importantly, the influx of tourists to
and further subject to the condition that reclamation contracts to be executed with any Boracay was increasing. The Report showed that there was a need to expand the port
person or entity (must) go through public bidding."4 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
Respondent Department of Environment and Natural Resources – Environmental going to the island.12
Management Bureau (DENR-EMB), Regional Office VI (respondent DENR-EMB RVI), is the
government agency in the Western Visayas Region authorized to issue environmental Respondent Province claimed that tourist arrivals to Boracay reached approximately
compliance certificates regarding projects that require the environment’s protection 649,559 in 2009 and 779,666 in 2010, and this was expected to reach a record of 1 million
and management in the region.5 tourist arrivals in the years to come. Thus, respondent Province conceptualized the
expansion of the port facilities at Barangay Caticlan.13
Summary of Antecedent Facts
The Sangguniang Barangay of Caticlan, Malay Municipality, issued Resolution No. 13, s.
Boracay Island (Boracay), a tropical paradise located in the Western Visayas region of 200814 on April 25, 2008 stating that it had learned that respondent Province had filed
the Philippines and one of the country’s most popular tourist destinations, was declared an application with the DENR for a foreshore lease of areas along the shorelines of
a tourist zone and marine reserve in 1973 under Presidential Proclamation No. 1801.6 Barangay Caticlan, and manifesting its strong opposition to said application, as the
The island comprises the barangays of Manoc-manoc, Balabag, and Yapak, all within the proposed foreshore lease practically covered almost all the coastlines of said barangay,
municipality of Malay, in the province of Aklan.7 thereby technically diminishing its territorial jurisdiction, once granted, and depriving its
constituents of their statutory right of preference in the development and utilization of
Petitioner describes Boracay as follows: the natural resources within its jurisdiction. The resolution further stated that
respondent Province did not conduct any consultations with the Sangguniang Barangay
Boracay is well-known for its distinctive powdery white-sand beaches which are the of Caticlan regarding the proposed foreshore lease, which failure the Sanggunian
product of the unique ecosystem dynamics of the area. The island itself is known to come considered as an act of bad faith on the part of respondent Province.15
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 On November 20, 2008, the Sangguniang Panlalawigan of respondent Province approved
primary draw for domestic and international tourists for its color, texture and other Resolution No. 2008-369,16 formally authorizing Governor Marquez to enter into
unique characteristics. Needless to state, it is the premier domestic and international negotiations towards the possibility of effecting self-liquidating and income-producing
tourist destination in the Philippines.8 development and livelihood projects to be financed through bonds, debentures,
securities, collaterals, notes or other obligations as provided under Section 299 of the
More than a decade ago, respondent Province built the Caticlan Jetty Port and Passenger Local Government Code, with the following priority projects: (a)
Terminal at Barangay Caticlan to be the main gateway to Boracay. It also built the renovation/rehabilitation of the Caticlan/Cagban Passenger Terminal Buildings and Jetty
corresponding Cagban Jetty Port and Passenger Terminal to be the receiving end for Ports; and (b) reclamation of a portion of Caticlan foreshore for commercial purposes.17
tourists in Boracay. Respondent Province operates both ports "to provide structural This step was taken as respondent Province’s existing jetty port and passenger terminal
facilities suited for locals, tourists and guests and to provide safety and security was funded through bond flotation, which was successfully redeemed and paid ahead of
measures."9 the target date. This was allegedly cited as one of the LGU’s Best Practices wherein
respondent Province was given the appropriate commendation.18
In 2005, Boracay 2010 Summit was held and participated in by representatives from
national government agencies, local government units (LGUs), and the private sector. Respondent Province included the proposed expansion of the port facilities at Barangay
Petitioner was one of the organizers and participants thereto. The Summit aimed "to re- Caticlan in its 2009 Annual Investment Plan,19 envisioned as its project site the area
establish a common vision of all stakeholders to ensure the conservation, restoration,

65
adjacent to the existing jetty port, and identified additional areas along the coastline of With the project expected to start its construction implementation next month, the
Barangay Caticlan as the site for future project expansion.20 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
Governor Marquez sent a letter to respondent PRA on March 12, 200921 expressing the added.)
interest of respondent Province to reclaim about 2.64 hectares of land along the
foreshores of Barangay Caticlan, Municipality of Malay, Province of Aklan. 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
Sometime in April 2009, respondent Province entered into an agreement with the Building, and the reclamation of a portion of the foreshore lease area for commercial
Financial Advisor/Consultant that won in the bidding process held a month before, to purposes in Malay, Aklan through Provincial Ordinance No. 2009-013, approved on
conduct the necessary feasibility study of the proposed project for the September 10, 2009. The said ordinance authorized Governor Marquez to negotiate,
Renovation/Rehabilitation of the Caticlan Passenger Terminal Building and Jetty Port, sign and execute agreements in relation to the issuance of the Caticlan Super Marina
Enhancement and Recovery of Old Caticlan Coastline, and Reclamation of a Portion of Bonds in the amount not exceeding P260,000,000.00.31
Foreshore for Commercial Purposes (the Marina Project), in Malay, Aklan.22
Subsequently, the Sangguniang Panlalawigan of the Province of Aklan issued Provincial
Subsequently, on May 7, 2009, the Sangguniang Panlalawigan of respondent Province Ordinance No. 2009-01532 on October 1, 2009, amending Provincial Ordinance No.
issued Resolution No. 2009–110,23 which authorized Governor Marquez to file an 2009-013, authorizing the bond flotation of the Province of Aklan through Governor
application to reclaim the 2.64 hectares of foreshore area in Caticlan, Malay, Aklan with Marquez to fund the Marina Project and appropriate the entire proceeds of said bonds
respondent PRA. for the project, and further authorizing Governor Marquez to negotiate, sign and
execute contracts or agreements pertinent to the transaction.33
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 Within the same month of October 2009, respondent Province deliberated on the
and recovery of the old Caticlan coastline for the rehabilitation and expansion of the possible expansion from its original proposed reclamation area of 2.64 hectares to forty
existing jetty port, and for its future plans – the construction of commercial building and (40) hectares in order to maximize the utilization of its resources and as a response to
wellness center. The financial component of the said study was Two Hundred Sixty the findings of the Preliminary Geohazard Assessment study which showed that the
Million Pesos (P260,000,000.00). Its suggested financing scheme was bond flotation.24 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
Meanwhile, the Sangguniang Bayan of the Municipality of Malay expressed its strong indicated the vulnerability of the coastal zone within the proposed project site and the
opposition to the intended foreshore lease application, through Resolution No. 044,25 nearby coastal area due to the effects of sea level rise and climate change which will
approved on July 22, 2009, manifesting therein that respondent Province’s foreshore greatly affect the social, economic, and environmental situation of Caticlan and nearby
lease application was for business enterprise purposes for its benefit, at the expense of Malay coastal communities.34
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 In his letter dated October 22, 2009 addressed to respondent PRA, Governor Marquez
jurisdiction."26 wrote:

In August 2009, a Preliminary Geohazard Assessment27 for the enhancement/expansion With our substantial compliance with the requirements under Administrative Order No.
of the existing Caticlan Jetty Port and Passenger Terminal through beach zone 2007-2 relative to our request to PRA for approval of the reclamation of the [proposed
restoration and Protective Marina Developments in Caticlan, Malay, Aklan was Beach Zone Restoration and Protection Marine Development in Barangays Caticlan and
completed. 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
Thereafter, Governor Marquez submitted an Environmental Performance Report and Description embodying certain revisions/changes in the size and location of the areas to
Monitoring Program (EPRMP)28 to DENR-EMB RVI, which he had attached to his letter29 be reclaimed. x x x.
dated September 19, 2009, as an initial step for securing an Environmental Compliance
Certificate (ECC). The letter reads in part: 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

66
finally approved last October 14, 2009. This will pave the way for the implementation of The land use development of the reclamation project shall be for commercial,
said project. Briefly, the Province has been recognized by the Bureau of Local recreational and institutional and other applicable uses.42 (Emphases supplied.)
Government Finance (BLGF) for its capability to meet its loan obligations. x x x.
It was at this point that respondent Province deemed it necessary to conduct a series of
With the continued increase of tourists coming to Boracay through Caticlan, the Province what it calls "information-education campaigns," which provided the venue for
is venturing into such development project with the end in view of protection and/or interaction and dialogue with the public, particularly the Barangay and Municipal
restoring certain segments of the shoreline in Barangays Caticlan (Caticlan side) and officials of the Municipality of Malay, the residents of Barangay Caticlan and Boracay,
Manoc-manoc (Boracay side) which, as reported by experts, has been experiencing the stakeholders, and the non-governmental organizations (NGOs). The details of the
tremendous coastal erosion. campaign are summarized as follows43 :

For the project to be self-liquidating, however, we will be developing the reclaimed land a. June 17, 2010 at Casa Pilar Beach Resort, Boracay Island, Malay, Aklan;44
for commercial and tourism-related facilities and for other complementary uses.35
(Emphasis ours.) b. July 28, 2010 at Caticlan Jetty Port and Passenger Terminal;45

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
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

Respondent Province gave an initial presentation of the project with consultation to the Petitioner claims that during the "public consultation meeting" belatedly called by
Sangguniang Bayan of Malay38 on December 9, 2009. respondent Province on June 17, 2010, respondent Province presented the Reclamation
Project and only then detailed the actions that it had already undertaken, particularly:
Respondent PRA approved the reclamation project on April 20, 2010 in its Resolution the issuance of the Caticlan Super Marina Bonds; the execution of the MOA with
No. 4094 and authorized its General Manager/Chief Executive Officer (CEO) to enter into respondent PRA; the alleged conduct of an Environmental Impact Assessment (EIA)
a MOA with respondent Province for the implementation of the reclamation project.39 study for the reclamation project; and the expansion of the project to forty (40) hectares
from 2.64 hectares.50
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 In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the Malay Municipality
hectares to be done along the Caticlan side beside the existing jetty port.40 reiterated its strong opposition to respondent Province’s project and denied its request
for a favorable endorsement of the Marina Project.51
On May 17, 2010, respondent Province entered into a MOA41 with respondent PRA.
Under Article III, the Project was described therein as follows: 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
The proposed Aklan Beach Zone Restoration and Protection Marina Development notice to proceed to the Marina Project of the [respondent] Provincial Government of
Project involves the reclamation and development of approximately forty (40) hectares Aklan located at Caticlan, Malay, Aklan."52
of foreshore and offshore areas of the Municipality of Malay x x x.
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

67
opinion of Dr. Porfirio M. Aliño, an expert from the University of the Philippines Marine supported the implementation of the project. Said resolution stated that the
Science Institute (UPMSI), which he rendered based on the documents submitted by apprehensions of petitioner with regard to the economic, social and political negative
respondent Province to obtain the ECC, a full EIA study is required to assess the impacts of the projects were mere perceptions and generalities and were not anchored
reclamation project’s likelihood of rendering critical and lasting effect on Boracay on definite scientific, social and political studies.
considering the proximity in distance, geographical location, current and wind direction,
and many other environmental considerations in the area. Petitioner noted that said In the meantime, a study was commissioned by the Philippine Chamber of Commerce
documents had failed to deal with coastal erosion concerns in Boracay. It also noted thatand Industry-Boracay (PCCI-Boracay), funded by the Department of Tourism (DOT) with
respondent Province failed to comply with certain mandatory provisions of the Local the assistance of, among others, petitioner. The study was conducted in November 2010
Government Code, particularly, those requiring the project proponent to conduct by several marine biologists/experts from the Marine Environmental Resources
consultations with stakeholders. 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
Petitioner likewise transmitted its Resolution No. 001, Series of 2010, registering its erosion patterns in the southern coast of Boracay Island and along the coast of
opposition to the reclamation project to respondent Province, respondent PRA, Caticlan.60
respondent DENR-EMB, the National Economic Development Authority Region VI, the
Malay Municipality, and other concerned entities.54 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
Petitioner alleges that despite the Malay Municipality’s denial of respondent Province’s December 1, 2010 to commence with the construction of the project.61
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 On April 4, 2011, the Sangguniang Panlalawigan of Aklan, through its Committee on
the implementation of the Reclamation Project.55 Cooperatives, Food, Agriculture, and Environmental Protection and the Committee on
Tourism, Trade, Industry and Commerce, conducted a joint committee hearing wherein
On July 26, 2010, the Sangguniang Panlalawigan of respondent Province set aside the study undertaken by the MERF-UPMSI was discussed.62 In attendance were Mr.
Resolution No. 046, s. 2010, of the Municipality of Malay and manifested its support for Ariel Abriam, President of PCCI-Boracay, representatives from the Provincial
the implementation of the aforesaid project through its Resolution No. 2010-022.56 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
On July 27, 2010, the MOA was confirmed by respondent PRA Board of Directors under the hydrodynamics of the strait traversing the coastline of Barangay Caticlan and
its Resolution No. 4130. Respondent PRA wrote to respondent Province on October 19, Boracay, hence, there was a distant possibility that it would affect the Boracay coastline,
2010, informing the latter to proceed with the reclamation and development of phase 1 which includes the famous white-sand beach of the island.63
of site 1 of its proposed project. Respondent PRA attached to said letter its Evaluation
Report dated October 18, 2010.57 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
Petitioner likewise received a copy of respondent PRA’s letter dated October 19, 2010, Boracay conducted by the UPMSI in relation to the effects of the ongoing reclamation to
which authorized respondent Province to proceed with phase 1 of the reclamation Boracay beaches, and stating that Dr. Villanoy had admitted that nowhere in their study
project, subject to compliance with the requirements of its Evaluation Report. The was it pointed out that there would be an adverse effect on the white-sand beach of
reclamation project was described as: Boracay.

"[A] seafront development involving reclamation of an aggregate area of more or less, During the First Quarter Regular Meeting of the Regional Development Council, Region
forty (40) hectares in two (2) separate sites both in Malay Municipality, Aklan Province. VI (RDC-VI) on April 16, 2011, it approved and supported the subject project (covering
Site 1 is in Brgy. Caticlan with a total area of 36.82 hectares and Site 2 in Brgy. Manoc- 2.64 hectares) through RDC-VI Resolution No. VI-26, series of 2011.65
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.)
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-
The Sangguniang Panlalawigan of Aklan, through Resolution No. 2010-034,59 addressed Boracay channel is primarily tide-driven, therefore, the marine scientists believe that the
the apprehensions of petitioner embodied in its Resolution No. 001, s. 2010, and 2.64-hectare project of respondent Province would not significantly affect the flow in

68
the channel and would unlikely impact the Boracay beaches. Based on this, PCCI-Boracay 36.82 hectares – Site 1, in Bgy. Caticlan
stated that it was not opposing the 2.64-hectare Caticlan reclamation project on 3.18 hectares – Site 2, in Manoc-manoc, Boracay Island69
environmental grounds.66 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.
On June 1, 2011, petitioner filed the instant Petition for Environmental Protection In the implementation of the project, respondent Province obtained only an ECC to
Order/Issuance of the Writ of Continuing Mandamus. On June 7, 2011, this Court issued conduct Phase 1, instead of an ECC on the entire 40 hectares. Thus, petitioner argues
a Temporary Environmental Protection Order (TEPO) and ordered the respondents to that respondent Province abused and exploited the Revised Procedural Manual for DENR
file their respective comments to the petition.67 Administrative Order No. 30, Series of 2003 (DENR DAO 2003-30)71 relating to the
acquisition of an ECC by:
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 1. Declaring the reclamation project under "Group II Projects-Non-ECP (environmentally
cease and desist from conducting any construction activities until further orders from critical project) in ECA (environmentally critical area) based on the type and size of the
this Court. area," and

The petition is premised on the following grounds: 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
I. Statement (PEIS)72 or Programmatic Environmental [Performance] Report Management
Plan (PE[P]RMP).73 (Emphases ours.)
The respondent Province, proponent of the reclamation project, failed to comply with
relevant rules and regulations in the acquisition of an ECC. Petitioner further alleges that the Revised Procedural Manual (on which the
classification above is based, which merely requires an Environmental Impact Statement
A. The reclamation project is co-located within environmentally critical areas requiring [EIS] for Group II projects) is patently ultra vires, and respondent DENR-EMB RVI
the performance of a full, or programmatic, environmental impact assessment. 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
B. Respondent Province failed to obtain the favorable endorsement of the LGU indicate that projects in environmentally critical areas are to be immediately considered
concerned. environmentally critical. Petitioner complains that respondent Province applied for an
ECC only for Phase 1; hence, unlawfully
C. Respondent Province failed to conduct the required consultation procedures as
required by the Local Government Code. evading the requirement that co-located projects74 within Environmentally Critical
Areas (ECAs) must submit a PEIS and/or a PEPRMP.
D. Respondent Province failed to perform a full environmental impact assessment as
required by law and relevant regulations. 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.
II. The impact assessment allegedly performed gives a patently erroneous and wrongly-
premised appraisal of the possible environmental impact of the reclamation project.
The reclamation of land bordering the strait between Caticlan and Boracay shall Petitioner contends that respondent Province’s choice of classification was designed to
adversely affect the frail ecological balance of the area.68 avoid a comprehensive impact assessment of the reclamation project.

Petitioner objects to respondent Province’s 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):
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

69
ECC issued in 1999 for the first jetty port. Thus, petitioner alleges that respondent DENR- part of Boracay, whereas the characteristic coast of the Caticlan side of the strait indicate
EMB RVI ignored the environmental impact to Boracay, which involves changes in the stronger sediment transport.77 The white-sand beaches of Boracay and its surrounding
structure of the coastline that could contribute to the changes in the characteristics of marine environment depend upon the natural flow of the adjacent waters.
the sand in the beaches of both Caticlan and Boracay.
Regarding its claim that the reclamation of land bordering the strait between Caticlan
Petitioner insists that reclamation of land at the Caticlan side will unavoidably adversely and Boracay shall adversely affect the frail ecological balance of the area, petitioner
affect the Boracay side and notes that the declared objective of the reclamation project submits that while the study conducted by the MERF-UPMSI only considers the impact
is for the exploitation of Boracay’s tourist trade, since the project is intended to enhance of the reclamation project on the land, it is undeniable that it will also adversely affect
support services thereto. But, petitioner argues, the primary reason for Boracay’s the already frail ecological balance of the area. The effect of the project would have been
popularity is its white-sand beaches which will be negatively affected by the project. properly assessed if the proper EIA had been performed prior to any implementation of
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 According to petitioner, respondent Province’s intended purposes do not prevail over its
pursuant to the consultation procedures as required by the Local Government Code.75 duty and obligation to protect the environment. Petitioner believes that rehabilitation
Petitioner asserts that the reclamation project is in violation not only of laws on EIS but of the Jetty Port may be done through other means.
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 In its Comment78 dated June 21, 2011, respondent Province claimed that application for
also expressed strong opposition against the project.76 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
Petitioner cites Sections 26 and 27 of the Local Government Code, which require the minimum fee as prescribed under Section 4.2 of Administrative Order No. 2007-2.79
consultations if the project or program may cause pollution, climactic change, depletion
of non-renewable resources, etc. According to petitioner, respondent Province ignored Respondent Province considers the instant petition to be premature; thus, it must
the LGUs’ opposition expressed as early as 2008. Not only that, respondent Province necessarily fail for lack of cause of action due to the failure of petitioner to fully exhaust
belatedly called for public "consultation meetings" on June 17 and July 28, 2010, after the available administrative remedies even before seeking judicial relief. According to
an ECC had already been issued and the MOA between respondents PRA and Province respondent Province, the petition primarily assailed the decision of respondent DENR-
had already been executed. As the petitioner saw it, these were not consultations but EMB RVI in granting the ECC for the subject project consisting of 2.64 hectares and
mere "project presentations." 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 claims that respondent Province, aided and abetted by respondents PRA and petitioner can be addressed within the confines of administrative processes provided by
DENR-EMB, ignored the spirit and letter of the Revised Procedural Manual, intended to law.
implement the various regulations governing the Environmental Impact Assessments
(EIAs) to ensure that developmental projects are in line with sustainable development Respondent Province believes that under Section 5.4.3 of DENR Administrative Order
of natural resources. The project was conceptualized without considering alternatives. 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
Further, as to its allegation that respondent Province failed to perform a full EIA, 2003-30, which provides for a remedy available to the party aggrieved by the final
petitioner argues that while it is true that as of now, only the Caticlan side has been decision on the proponent’s ECC applications.
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 Respondent Province argues that the instant petition is anchored on a wrong premise
requires a full EIA since it is an ECA. Phase 1 of the project will affect Boracay and Caticlan that results to petitioner’s unfounded fears and baseless apprehensions. It is respondent
as they are separated only by a narrow strait; thus, it should be considered an ECP. Province’s contention that its 2.64-hectare reclamation project is considered as a "stand
Therefore, the ECC and permit issued must be invalidated and cancelled. alone project," separate and independent from the approved area of 40 hectares. Thus,
petitioner should have observed the difference between the "future development plan"
Petitioner contends that a study shows that the flow of the water through a narrower of respondent Province from its "actual project" being undertaken.83
channel due to the reclamation project will likely divert sand transport off the southwest

70
Respondent Province clearly does not dispute the fact that it revised its original performance of a full or programmatic EIA, respondent Province reiterates that the idea
application to respondent PRA from 2.64 hectares to 40 hectares. However, it claims of expanding the area to 40 hectares is only a future plan. It only secured an ECC for 2.64
that such revision is part of its future plan, and implementation thereof is "still subjecthectares, based on the limits of its funding and authority. From the beginning, its
to availability of funds, independent scientific environmental study, separate application intention was to rehabilitate and expand the existing jetty port terminal to
of ECC and notice to proceed to be issued by respondent PRA."84 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
Respondent Province goes on to claim that "[p]etitioner’s version of the Caticlan jetty Type considered as Minor Reclamation Projects falling under Group II – Non ECP in an
port expansion project is a bigger project which is still at the conceptualization stage. ECA. Whether 2.64 or 40 hectares in area, the subject project falls within this
Although this project was described in the Notice to Proceed issued by respondent PRA classification.
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 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 says that the Accomplishment Report86 of its Engineering Office
would attest that the actual project consists of 2.64 hectares only, as originally planned Respondent Province, likewise argues that the 2.64-hectare project is not a component
and conceptualized, which was even reduced to 2.2 hectares due to some construction of the approved 40-hectare area as it is originally planned for the expansion site of the
and design modifications. 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
Thus, respondent Province alleges that from its standpoint, its capability to reclaim is said Boracay portion.
limited to 2.64 hectares only, based on respondent PRA’s Evaluation Report87 dated
October 18, 2010, which was in turn the basis of the issuance of the Notice to Proceed Furthermore, respondent Province contends that the present project is located in
dated October 19, 2010, because the project’s financial component is P260,000,000.00 Caticlan while the alleged component that falls within an ECA is in Boracay. Considering
only. Said Evaluation Report indicates that the implementation of the other phases of its geographical location, the two sites cannot be considered as a contiguous area for
the project including site 2, which consists of the other portions of the 40-hectare area the reason that it is separated by a body of water – a strait that traverses between the
that includes a portion in Boracay, is still within the 10-year period and will depend mainland Panay wherein Caticlan is located and Boracay. Hence, it is erroneous to
largely on the availability of funds of respondent Province.88 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
So, even if respondent PRA approved an area that would total up to 40 hectares, it was required respondent Province to perform an EPRMP to secure an ECC as sanctioned by
divided into phases in order to determine the period of its implementation. Each phase Item No. 8(b), page 7 of DENR DAO 2003-30.
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 Respondent Province contends that even if, granting for the sake of argument, it had
approved area of 40 hectares could be implemented within a period of 10 years but this erroneously categorized its project as Non-ECP in an ECA, this was not a final
would depend solely on the availability of funds.89 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
As far as respondent Province understands it, additional reclamations not covered by for ECC, even for a Category B2 project where an EPRMP is conducted, shall be subjected
the ECC, which only approved 2.64 hectares, should undergo another EIA. If respondent to a review process. Respondent DENR-EMB RVI had the authority to deny said
Province intends to commence the construction on the other component of the 40 application. Its Regional Director could either issue an ECC for the project or deny the
hectares, then it agrees that it is mandated to secure a new ECC.90 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
Respondent Province admits that it dreamt of a 40-hectare project, even if it had same went through the EIA review process.
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 Thus, respondent Province concludes that petitioner’s allegation of this being a "co-
located project" is premature if not baseless as the bigger reclamation project is still on
Respondent Province claims that it has complied with all the necessary requirements for the conceptualization stage. Both respondents PRA and Province are yet to complete
securing an ECC. On the issue that the reclamation project is within an ECA requiring the studies and feasibility studies to embark on another project.

71
 x x x [T]here is no coral cover at the existing Caticlan jetty port. [From] the deepest point
Respondent Province claims that an ocular survey of the reclamation project revealed of jetty to the shallowest point, there was no more coral patch and the substrate is
that it had worked within the limits of the ECC.92 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
With regard to petitioner’s allegation that respondent Province failed to get the be no possibility of any coral development therein because of its continuous utilization.
favorable endorsement of the concerned LGUs in violation of the Local Government Likewise, the activity of the strait that traverses between the main land Caticlan and
Code, respondent Province contends that consultation vis-à-vis the favorable Boracay Island would also be a factor of the coral development. Corals [may] only be
endorsement from the concerned LGUs as contemplated under the Local Government formed within the area if there is scientific human intervention, which is absent up to
Code are merely tools to seek advice and not a power clothed upon the LGUs to the present.
unilaterally approve or disapprove any government projects. Furthermore, such
endorsement is not necessary for projects falling under Category B2 unless required by In light of the foregoing premise, it casts serious doubt on petitioner’s allegations
the DENR-EMB RVI, under Section 5.3 of DENR DAO 2003-30. pertaining to the environmental effects of Respondent-LGU’s 2.64 hectares reclamation
project. The alleged environmental impact of the subject project to the beaches of
Moreover, DENR Memorandum Circular No. 08-2007 no longer requires the issuance of Boracay Island remains unconfirmed. Petitioner had unsuccessfully proven that the
permits and certifications as a pre-requisite for the issuance of an ECC. Respondent project would cause imminent, grave and irreparable injury to the community.95
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 Respondent Province prayed for the dissolution of the TEPO, claiming that the rules
of both the Sangguniang Barangay of Caticlan and the Sangguniang Bayan of Malay, provide that the TEPO may be dissolved if it appears after hearing that its issuance or
according to respondent Province, were not rooted on its perceived impact upon the continuance would cause irreparable damage to the party or person enjoined, while the
people and the community in terms of environmental or ecological balance, but due to applicant may be fully compensated for such damages as he may suffer and subject to
an alleged conflict with their "principal position to develop, utilize and reap benefits the posting of a sufficient bond by the party or person enjoined. Respondent Province
from the natural resources found within its jurisdiction."93 Respondent Province argues contends that the TEPO would cause irreparable damage in two aspects:
that these concerns are not within the purview of the Local Government Code.
Furthermore, the Preliminary Geohazard Assessment Report and EPRMP as well as a. Financial dislocation and probable bankruptcy; and
Sangguniang Panlalawigan Resolution Nos. 2010-022 and 2010-034 should address any
environmental issue they may raise. 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
Respondent Province posits that the spirit and intent of Sections 26 and 27 of the Local cessation of development works.
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 As regards financial dislocation, the arguments of respondent Province are summarized
project. The duty to consult does not automatically require adherence to the opinions below:
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 1. This project is financed by bonds which the respondent Province had issued to its
guise of requiring the proponent of securing its favorable endorsement. In this case, creditors as the financing scheme in funding the present project is by way of credit
petitioner is calling a halt to the project without providing an alternative resolution to financing through bond flotation.
harmonize its position and that of respondent Province.
2. The funds are financed by a Guarantee Bank – getting payment from bonds, being sold
Respondent Province claims that the EPRMP94 would reveal that: to investors, which in turn would be paid by the income that the project would realize
or incur upon its completion.
[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 3. While the project is under construction, respondent Province is appropriating a
scarce due to the absence of marine support systems like the sea grass beds and coral portion of its Internal Revenue Allotment (IRA) budget from the 20% development fund
reefs. to defray the interest and principal amortization due to the Guarantee Bank.

72
4. The respondent Province’s 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 Section 4 of respondent PRA’s Administrative Order No. 2007-2 provides for the
used for the project’s construction. approval process and procedures for various reclamation projects to be undertaken.
Respondent PRA prepared an Evaluation Report on November 5, 200999 regarding
5. The inability of the subject project to earn revenues as projected upon completion will Aklan’s proposal to increase its project to 40 hectares.
compel the Province to shoulder the full amount of the obligation, starting from year
2012. 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,
6. Respondent province is mandated to assign its IRA, regular income and/or such other approved the proposed project under its Board Resolution No. 4094.100 In the same
revenues or funds as permitted by law; if project is stopped, detriment of the public Resolution, respondent PRA Board authorized the General Manager/CEO to execute a
welfare and its constituents.96 MOA with the Aklan provincial government to implement the reclamation project under
certain conditions.
As to the second ground for the dissolution of the TEPO, respondent Province argues:
The issue for respondent PRA was whether or not it approved the respondent Province’s
1. Non-compliance with the guidelines of the ECC may result to environmental hazards 2.64-hectare reclamation project proposal in willful disregard of alleged "numerous
most especially that reclaimed land if not properly secured may be eroded into the sea. irregularities" as claimed by petitioner.101

2. The construction has accomplished 65.26 percent of the project. The embankment Respondent PRA claims that its approval of the Aklan Reclamation Project was in
that was deposited on the project has no proper concrete wave protection that might accordance with law and its rules. Indeed, it issued the notice to proceed only after Aklan
be washed out in the event that a strong typhoon or big waves may occur affecting the had complied with all the requirements imposed by existing laws and regulations. It
strait and the properties along the project site. It is already the rainy season and there isfurther contends that the 40 hectares involved in this project remains a plan insofar as
a big possibility of typhoon occurrence. 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
3. If said incident occurs, the aggregates of the embankment that had been washed out that it approved this reclamation project after extensively reviewing the legal, technical,
might be transferred to the adjoining properties which could affect its natural financial, environmental, and operational aspects of the proposed reclamation.102
environmental state.
One of the conditions that respondent PRA Board imposed before approving the Aklan
4. It might result to the total alteration of the physical landscape of the area attributing project was that no reclamation work could be started until respondent PRA has
to environmental disturbance. approved the detailed engineering plans/methodology, design and specifications of the
reclamation. Part of the required submissions to respondent PRA includes the drainage
5. The lack of proper concrete wave protection or revetment would cause the total design as approved by the Public Works Department and the ECC as issued by the DENR,
erosion of the embankment that has been dumped on the accomplished area.97 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
Respondent Province claims that petitioner will not stand to suffer immediate, grave and Aklan, the latter is required to submit, apart from the ECC, the following requirements
irreparable injury or damage from the ongoing project. The petitioner’s perceived fear for respondent PRA’s review and approval, as basis for the issuance of a Notice to
of environmental destruction brought about by its erroneous appreciation of available Proceed (NTP) for Reclamation Works:
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. (a) Land-form plan with technical description of the metes and bounds of the same land-
form;
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 (b) Final master development and land use plan for the project;
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."

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(c) Detailed engineering studies, detailed engineering design, plans and specification for (a) Land-Form Plan (with technical description);
reclamation works, reclamation plans and methodology, plans for the sources of fill
materials; (b) Site Development Plan/Land Use Plan including,

(d) Drainage plan vis-a-vis the land-form approved by DPWH Regional Office to include (i) sewer and drainage systems and
a cost effective and efficient drainage system as may be required based on the results of
the studies; (ii) waste water treatment;

(e) Detailed project cost estimates and quantity take-off per items of work of the (c) Engineering Studies and Engineering Design;
rawland reclamation components, e.g. reclamation containment structures and soil
consolidation; (d) Reclamation Methodology;

(f) Organizational chart of the construction arm, manning table, equipment schedule for (e) Sources of Fill Materials, and,
the project; and,
(f) The ECC.109
(g) Project timetable (PERT/CPM) for the entire project construction period.104
Respondent PRA claims that it was only after the evaluation of the above submissions
In fact, respondent PRA further required respondent Province under Article IV (B)(24) of that it issued to respondent Province the NTP, limited to the 2.64-hectare reclamation
the MOA to strictly comply with all conditions of the DENR-EMB-issued ECC "and/or project. Respondent PRA even emphasized in its evaluation report that should
comply with pertinent local and international commitments of the Republic of the respondent Province pursue the other phases of its project, it would still require the
Philippines to ensure environmental protection."105 submission of an ECC for each succeeding phases before the start of any reclamation
works.110
In its August 11, 2010 letter,106 respondent PRA referred for respondent Province’s
appropriate action petitioner’s Resolution 001, series of 2010 and Resolution 46, series Respondent PRA, being the national government’s arm in regulating and coordinating all
of 2010, of the Sangguniang Bayan of Malay. Governor Marquez wrote respondent reclamation projects in the Philippines – a mandate conferred by law – manifests that it
PRA107 on September 16, 2010 informing it that respondent Province had already met is incumbent upon it, in the exercise of its regulatory functions, to diligently evaluate,
with the different officials of Malay, furnishing respondent PRA with the copies of the based on its technical competencies, all reclamation projects submitted to it for
minutes of such meetings/presentations. Governor Marquez also assured respondent approval. Once the reclamation project’s requirements set forth by law and related rules
PRA that it had complied with the consultation requirements as far as Malay was have been complied with, respondent PRA is mandated to approve the same.
concerned. Respondent PRA claims, "[w]ith all the foregoing rigorous and detailed requirements
submitted and complied with by Aklan, and the attendant careful and meticulous
Respondent PRA claims that in evaluating respondent Province’s project and in issuing technical and legal evaluation by respondent PRA, it cannot be argued that the
the necessary NTP for Phase 1 of Site 1 (2.64 hectares) of the Caticlan Jetty Port reclamation permit it issued to Aklan is ‘founded upon numerous irregularities;’ as
expansion and modernization, respondent PRA gave considerable weight to all pertinent recklessly and baselessly imputed by BFI."111
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, In its Comment112 dated July 1, 2011, respondent DENR-EMB RVI asserts that its act of
series of 2010, still requires a second level of compliance requirements from the issuing the ECC certifies that the project had undergone the proper EIA process by
proponent. Respondent Province could not possibly begin its reclamation works since assessing, among others, the direct and indirect impact of the project on the biophysical
respondent PRA had yet to issue an NTP in its favor. and human environment and ensuring that these impacts are addressed by appropriate
environmental protection and enhancement measures, pursuant to Presidential Decree
Respondent PRA alleges that prior to the issuance of the NTP to respondent Province for No. 1586, the Revised Procedural Manual for DENR DAO 2003-30, and the existing rules
Phase 1 of Site 1, it required the submission of the following pre-construction and regulations.113
documents:

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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.
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

Although petitioner insists that the project involves 40 hectares in two sites, respondent Respondent DENR-EMB RVI concludes that in filing this case, petitioner had bypassed
DENR-EMB RVI looked at the documents submitted by respondent Province and saw that and deprived the DENR Secretary of the opportunity to review and/or reverse the
the subject area covered by the ECC application and subsequently granted with ECC-R6- decision of his subordinate office, EMB RVI pursuant to the Revised Procedural Manual
1003-096-7100 consists only of 2.64 hectares; hence, respondent DENR-EMB RVI could for DENR DAO 2003-30. There is no "extreme urgency that necessitates the granting of
not comment on the excess area.118 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
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 After receiving the above Comments from all the respondents, the Court set the case for
co-located project because the subject project is merely an expansion of the old Caticlan oral arguments on September 13, 2011.
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 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
Respondent Province submitted to respondent DENR-EMB RVI the following documents pursuing the implementation of the succeeding phases of the project due to its inability
contained in the EPRMP: to comply with Article IV B.2(3) of the MOA; hence, the issues and fears expressed by

75
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
Province’s 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."
2. it had substantially complied with the requirements provided under PRA
Administrative Order 2007-2, which compliance caused respondent PRA’s 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

In his reply-letter dated August 22, 2011,127 [respondent] PRA General Manager Respondent Province claims that its compliance with the requirements of respondents
informed Governor Marquez that the [respondent] PRA Board of Directors has given DENR-EMB RVI and PRA that led to the approval of the reclamation project by the said
[respondent] PRA the authority to confirm the position of the Province of Aklan that the government agencies, as well as the recent enactments of the Barangay Council of
"Aklan Beach Zone Restoration and Protection Marine Development Project will now be Caticlan and the Sangguniang Bayan of the Municipality of Malay favorably endorsing
confined to the reclamation and development of the 2.64 hectares, more or less. 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:
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 WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court
correspondence between respondents Province of Aklan and [respondent] PRA further that after due proceedings, the following be rendered:
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 1. The Temporary Environmental Protection Order (TEPO) it issued on June 7, 2011 be
the extent of the Project and, consequently, moots the issues and fears expressed by the lifted/dissolved.
petitioner.128 (Emphasis supplied.)
2. The instant petition be dismissed for being moot and academic.
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 3. Respondent Province of Aklan prays for such other reliefs that are just and equitable
Boracay Island’s ecology had become academic all together.129 under the premises. (Emphases in the original.)

The Court heard the parties’ oral arguments on September 13, 2011 and gave the latter ISSUES
twenty (20) days thereafter to file their respective memoranda.
The Court will now resolve the following issues:
Respondent Province filed another Manifestation and Motion,130 which the Court
received on April 2, 2012 stating that: I. Whether or not the petition should be dismissed for having been rendered moot and
academic
1. it had submitted the required documents and studies to respondent DENR-EMB RVI
before an ECC was issued in its favor; II. Whether or not the petition is premature because petitioner failed to exhaust
administrative remedies before filing this case

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III. Whether or not respondent Province failed to perform a full EIA as required by laws hearings with concerned departments and the private sector specifically Boracay
and regulations based on the scope and classification of the project 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
IV. Whether or not respondent Province complied with all the requirements under the have been observed and that paramount consideration have been given to the
pertinent laws and regulations environment lest we disturb the balance of nature to the end that progress will be
brought to naught;
V. Whether or not there was proper, timely, and sufficient public consultation for the
project WHEREAS, time and again, to ensure a healthy intergovernmental relations, this August
Body requires no less than transparency and faithful commitment from the Provincial
DISCUSSION 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;
On the issue of whether or not the Petition should be dismissed for having been
rendered moot and academic 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
Respondent Province claims in its Manifestation and Motion filed on April 2, 2012 that Government of Aklan to the end 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 1. To allocate an office space to LGU-Malay within the building in the reclaimed area;
issues raised by petitioner had already been addressed, and this petition should be
dismissed for being moot and academic. 2. To convene the Cagban and Caticlan Jetty Port Management Board before the
resumption of the reclamation project;
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 3. That the reclamation project shall be limited only to 2.6 hectares in Barangay Caticlan
explicit conditions imposed that must be complied with by respondent Province. In and not beyond;
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 4. That the local transportation operators/cooperatives will not be displaced; and
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 5. The Provincial Government of Aklan conduct a simultaneous comprehensive study on
wellness center, and other tourism-related facilities. Petitioner’s objections, as may be the environmental impact of the reclamation project especially during Habagat and
recalled, pertain not only to the reclamation per se, but also to the building to be Amihan seasons and put in place as early as possible mitigating measures on the effect
constructed and the entire project’s perceived ill effects to the surrounding of the project to the environment.
environment.
WHEREAS, having presented these stipulations, failure to comply herewith will leave this
Resolution No. 020, series of 2012, of the Sangguniang Bayan of Malay134 is even more August Body no choice but to revoke this endorsement, hence faithful compliance of the
specific. It reads in part: commitment of the Provincial Government is highly appealed for[.]135 (Emphases
added.)
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 The Sangguniang Bayan of Malay obviously imposed explicit conditions for respondent
employment for its constituents, but the fact cannot be denied that the project will take Province to comply with on pain of revocation of its endorsement of the project,
its toll on the environment especially on the nearby fragile island of Boracay and the fact including the need to conduct a comprehensive study on the environmental impact of
also remains that the project will eventually displace the local transportation the reclamation project, which is the heart of the petition before us. Therefore, the
operators/cooperatives; contents of the two resolutions submitted by respondent Province do not support its
conclusion that the subsequent favorable endorsement of the LGUs had already
WHEREAS, considering the sensitivity of the project, this Honorable Body through the addressed all the issues raised and rendered the instant petition moot and academic.
Committee where this matter was referred conducted several consultations/committee

77
On the issue of failure to exhaust administrative remedies 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
Respondents, in essence, argue that the present petition should be dismissed for actually disapproved by him, or (4) where there are circumstances indicating the urgency
petitioner’s failure to exhaust administrative remedies and even to observe the of judicial intervention, - Gonzales vs. Hechanova, L-21897, October 22, 1963, 9 SCRA
hierarchy of courts. Furthermore, as the petition questions the issuance of the ECC and 230; Abaya vs. Villegas, L-25641, December 17, 1966, 18 SCRA; Mitra vs. Subido, L-21691,
the NTP, this involves factual and technical verification, which are more properly within September 15, 1967, 21 SCRA 127.
the expertise of the concerned government agencies.
Said principle may also be disregarded when it does not provide a plain, speedy and
Respondents anchor their argument on Section 6, Article II of DENR DAO 2003-30, which adequate remedy, (Cipriano vs. Marcelino, 43 SCRA 291), when there is no due process
provides: 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.)
Section 6. Appeal
As petitioner correctly pointed out, the appeal provided for under Section 6 of DENR
Any party aggrieved by the final decision on the ECC / CNC applications may, within 15 DAO 2003-30 is only applicable, based on the first sentence thereof, if the person or
days from receipt of such decision, file an appeal on the following grounds: 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
a. Grave abuse of discretion on the part of the deciding authority, or 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
b. Serious errors in the review findings. 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
The DENR may adopt alternative conflict/dispute resolution procedures as a means to proceedings, it does not appear that petitioner was officially furnished a copy of the
settle grievances between proponents and aggrieved parties to avert unnecessary legal decision, from which the 15-day period to appeal should be reckoned, and which would
action. Frivolous appeals shall not be countenanced. warrant the application of Section 6, Article II of DENR DAO 2003-30.

The proponent or any stakeholder may file an appeal to the following: 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
Deciding Authority Where to file the appeal the reclamation of land on the Caticlan side would unavoidably adversely affect the
EMB Regional Office Director Office of the EMB Director Boracay side, where petitioner’s members own establishments engaged in the tourism
EMB Central Office Director Office of the DENR Secretary trade. As noted earlier, petitioner contends that the declared objective of the
DENR Secretary Office of the President reclamation project is to exploit Boracay’s tourism trade because the project is intended
(Emphases supplied.) 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
Respondents argue that since there is an administrative appeal provided for, then by the project. Petitioner’s conclusion is that respondent Province, aided and abetted by
petitioner is duty bound to observe the same and may not be granted recourse to the respondents PRA and DENR-EMB RVI, ignored the spirit and letter of our environmental
regular courts for its failure to do so. laws, and should thus be compelled to perform their duties under said laws.

We do not agree with respondents’ appreciation of the applicability of the rule on The new Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, provides a
exhaustion of administrative remedies in this case. We are reminded of our ruling in relief for petitioner under the writ of continuing mandamus, which is a special civil action
Pagara v. Court of Appeals,136 which summarized our earlier decisions on the that may be availed of "to compel the performance of an act specifically enjoined by
procedural requirement of exhaustion of administrative remedies, to wit: 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
The rule regarding exhaustion of administrative remedies is not a hard and fast rule. It is this wise:
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

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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 Petitioner had three options where to file this case under the rule: the Regional Trial
government agencies. Court exercising jurisdiction over the territory where the actionable neglect or omission
occurred, the Court of Appeals, or this Court.
Thus, a government agency’s inaction, if any, has serious implications on the future of
environmental law enforcement. Private individuals, to the extent that they seek to Petitioner had no other plain, speedy, or adequate remedy in the ordinary course of law
change the scope of the regulatory process, will have to rely on such agencies to take to determine the questions of unique national and local importance raised here that
the initial incentives, which may require a judicial component. Accordingly, questions pertain to laws and rules for environmental protection, thus it was justified in coming to
regarding the propriety of an agency’s action or inaction will need to be analyzed. this Court.

This point is emphasized in the availability of the remedy of the writ of mandamus, which Having resolved the procedural issue, we now move to the substantive issues.
allows for the enforcement of the conduct of the tasks to which the writ pertains: the
performance of a legal duty.142 (Emphases added.) 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 writ of continuing mandamus "permits the court to retain jurisdiction after the requirements under the pertinent laws and regulations
judgment in order to ensure the successful implementation of the reliefs mandated
under the court’s decision" and, in order to do this, "the court may compel the Petitioner’s arguments on this issue hinges upon its claim that the reclamation project is
submission of compliance reports from the respondent government agencies as well as misclassified as a single project when in fact it is co-located. Petitioner also questions
avail of other means to monitor compliance with its decision."143 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
According to petitioner, respondent Province acted pursuant to a MOA with respondent different documents filed by respondent Province describe commercial establishments
PRA that was conditioned upon, among others, a properly-secured ECC from respondent to be built, among others, to raise revenues for the LGU; thus, it should have been
DENR-EMB RVI. For this reason, petitioner seeks to compel respondent Province to classified as a new project. Petitioner likewise cries foul to the manner by which
comply with certain environmental laws, rules, and procedures that it claims were either respondent Province allegedly circumvented the documentary requirements of the
circumvented or ignored. Hence, we find that the petition was appropriately filed with DENR-EMB RVI by the act of connecting the reclamation project with its previous project
this Court under Rule 8, Section 1, A.M. No. 09-6-8-SC, which reads: in 1999 and claiming that the new project is a mere expansion of the previous one.

SECTION 1. Petition for continuing mandamus.—When any agency or instrumentality of As previously discussed, respondent Province filed a Manifestation and Motion stating
the government or officer thereof unlawfully neglects the performance of an act which that the ECC issued by respondent DENR-EMB RVI covered an area of 2,691 square
the law specifically enjoins as a duty resulting from an office, trust or station in meters in Caticlan, and its application for reclamation of 40 hectares with respondent
connection with the enforcement or violation of an environmental law rule or regulation PRA was conditioned on its submission of specific documents within 120 days.
or a right therein, or unlawfully excludes another from the use or enjoyment of such Respondent Province claims that its failure to comply with said condition indicated its
right and there is no other plain, speedy and adequate remedy in the ordinary course of waiver to pursue the succeeding phases of the reclamation project and that the subject
law, the person aggrieved thereby may file a verified petition in the proper court, matter of this case had thus been limited to 2.64 hectares. Respondent PRA, for its part,
alleging the facts with certainty, attaching thereto supporting evidence, specifying that declared through its General Manager that the "Aklan Beach Zone Restoration and
the petition concerns an environmental law, rule or regulation, and praying that Protection Marine Development Project will now be confined to the reclamation and
judgment be rendered commanding the respondent to do an act or series of acts until development of the 2.64 hectares, more or less."144
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 The Court notes such manifestation of respondent Province. Assuming, however, that
regulations. The petition shall also contain a sworn certification of non-forum shopping. 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
SECTION 2. Where to file the petition.—The petition shall be filed with the Regional Trial Court still has to check whether respondents had complied with all applicable
Court exercising jurisdiction over the territory where the actionable neglect or omission environmental laws, rules, and regulations pertaining to the actual reclamation project.
occurred or with the Court of Appeals or the Supreme Court.

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We recognize at this point that the DENR is the government agency vested with economic unit of area. Since the location or threshold of specific projects within the
delegated powers to review and evaluate all EIA reports, and to grant or deny ECCs to contiguous area will yet be derived from the EIA process based on the carrying capacity
project proponents.145 It is the DENR that has the duty to implement the EIS system. It of the project environment, the nature of the project is called "programmatic."
appears, however, that respondent DENR-EMB RVI’s evaluation of this reclamation (Emphasis added.)
project was problematic, based on the valid questions raised by petitioner.
Respondent DENR-EMB RVI should conduct a thorough and detailed evaluation of the
Being the administrator of the EIS System, respondent DENR-EMB RVI’s submissions project to address the question of whether this could be deemed as a group of single
bear great weight in this case. However, the following are the issues that put in question projects (transport terminal facility, building, etc.) in a contiguous area managed by
the wisdom of respondent DENR-EMB RVI in issuing the ECC: respondent Province, or as a single project.

1. Its approval of respondent Province’s classification of the project as a mere expansion The third item in the above enumeration will be discussed as a separate issue.
of the existing jetty port in Caticlan, instead of classifying it as a new project;
The answer to the fourth question depends on the final classification of the project
2. Its classification of the reclamation project as a single instead of a co-located project; under items 1 and 3 above because the type of EIA study required under the Revised
Procedural Manual depends on such classification.
3. The lack of prior public consultations and approval of local government agencies; and
The very definition of an EIA points to what was most likely neglected by respondent
4. The lack of comprehensive studies regarding the impact of the reclamation project to Province as project proponent, and what was in turn overlooked by respondent DENR-
the environment. EMB RVI, for it is defined as follows:

The above issues as raised put in question the sufficiency of the evaluation of the project An [EIA] is a ‘process that involves predicting and evaluating the likely impacts of a
by respondent DENR-EMB RVI. project (including cumulative impacts) on the environment during construction,
commissioning, operation and abandonment. It also includes designing appropriate
Nature of the project preventive, mitigating and enhancement measures addressing these consequences to
protect the environment and the community’s welfare.146 (Emphases supplied.)
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 Thus, the EIA process must have been able to predict the likely impact of the reclamation
rigorous environmental impact study requested by petitioner, or it is a mere expansion project to the environment and to prevent any harm that may otherwise be caused.
of the existing jetty port facility.
The project now before us involves reclamation of land that is more than five times the
The second issue refers to the classification of the project by respondent Province, size of the original reclaimed land. Furthermore, the area prior to construction merely
approved by respondent DENR-EMB RVI, as single instead of co-located. Under the contained a jetty port, whereas the proposed expansion, as described in the EPRMP
Revised Procedural Manual, the "Summary List of Additional Non-Environmentally- submitted by respondent Province to respondent DENR-EMB RVI involves so much more,
Critical Project (NECP) Types in ECAs Classified under Group II" (Table I-2) lists "buildings, and we quote:
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 The expansion project will be constructed at the north side of the existing jetty port and
consisting of more than one type of activity, and should more properly be classified as terminal that will have a total area of 2.64 hectares, more or less, after reclamation. The
"co-located," under the following definition from the same Manual, which reads: Phase 1 of the project construction costing around P260 million includes the following:

f) Group IV (Co-located Projects in either ECA or NECA): A co-located project is a group 1. Reclamation - 3,000 sq m (expansion of jetty port)
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 2. Reclamation - 13,500 sq m (buildable area)
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 3. Terminal annex building - 250 sq m

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 governmental and proprietary. Governmental functions are those that concern the
4. 2-storey commercial building – 2,500 sq m (1,750 sq m of leasable space) 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
5. Health and wellness center or earn pecuniary profit and intended for private advantage and benefit. When
exercising governmental powers and performing governmental duties, an LGU is an
6. Access road - 12 m (wide) agency of the national government. When engaged in corporate activities, it acts as an
agent of the community in the administration of local affairs.
7. Parking, perimeter fences, lighting and water treatment sewerage system
Found in Section 16 of the Local Government Code is the duty of the LGUs to promote
8. Rehabilitation of existing jetty port and terminal the people’s 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
xxxx governmental functions, an LGU has the duty to ensure the quality of the environment,
which is the very same objective of PD 1586.
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, x x x x
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 Section 4 of PD 1586 clearly states that "no person, partnership or corporation shall
added.) 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
As may be gleaned from the breakdown of the 2.64 hectares as described by respondent authorized representative." The Civil Code defines a person as either natural or juridical.
Province above, a significant portion of the reclaimed area would be devoted to the The state and its political subdivisions, i.e., the local government units are juridical
construction of a commercial building, and the area to be utilized for the expansion of persons. Undoubtedly therefore, local government units are not excluded from the
the jetty port consists of a mere 3,000 square meters (sq. m). To be true to its definition, coverage of PD 1586.
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 Lastly, very clear in Section 1 of PD 1586 that said law intends to implement the policy
the surrounding environment. These new constructions and their environmental effects of the state to achieve a balance between socio-economic development and
were not covered by the old studies that respondent Province previously submitted for environmental protection, which are the twin goals of sustainable development. The
the construction of the original jetty port in 1999, and which it re-submitted in its above-quoted first paragraph of the Whereas clause stresses that this can only be
application for ECC in this alleged expansion, instead of conducting updated and more possible if we adopt a comprehensive and integrated environmental protection program
comprehensive studies. 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,
Any impact on the Boracay side cannot be totally ignored, as Caticlan and Boracay are cannot therefore be deemed as outside the scope of the EIS system.149 (Emphases
separated only by a narrow strait. This becomes more imperative because of the supplied.)
significant contributions of Boracay’s white-sand beach to the country’s tourism trade,
which requires respondent Province to proceed with utmost caution in implementing The Court chooses to remand these matters to respondent DENR-EMB RVI for it to make
projects within its vicinity. 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
We had occasion to emphasize the duty of local government units to ensure the quality required by the project’s specifications. The Court requires respondent DENR-EMB RVI
of the environment under Presidential Decree No. 1586 in Republic of the Philippines v. to complete its study and submit a report within a non-extendible period of three
The City of Davao,148 wherein we held: 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.
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 Lack of prior public consultation
to be exercised by it in conformity with law. As such, it performs dual functions,

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The Local Government Code establishes the duties of national government agencies in cause the depletion of non-renewable resources; (4) may result in loss of crop land,
the maintenance of ecological balance, and requires them to secure prior public range-land, or forest cover; (5) may eradicate certain animal or plant species from the
consultation and approval of local government units for the projects described therein. 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.
In the case before us, the national agency involved is respondent PRA. Even if the project Obviously, none of these effects will be produced by the introduction of lotto in the
proponent is the local government of Aklan, it is respondent PRA which authorized the province of Laguna.152 (Emphasis added.)
reclamation, being the exclusive agency of the government to undertake reclamation
nationwide. Hence, it was necessary for respondent Province to go through respondent During the oral arguments held on September 13, 2011, it was established that this
PRA and to execute a MOA, wherein respondent PRA’s authority to reclaim was project as described above falls under Section 26 because the commercial
delegated to respondent Province. Respondent DENR-EMB RVI, regional office of the establishments to be built on phase 1, as described in the EPRMP quoted above, could
DENR, is also a national government institution which is tasked with the issuance of the cause pollution as it could generate garbage, sewage, and possible toxic fuel
ECC that is a prerequisite to projects covered by environmental laws such as the one at discharge.153
bar.
Our ruling in Province of Rizal v. Executive Secretary154 is instructive:
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 We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v. Lanzanas, where
the Local Government Code provisions that are quoted below: 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
Section 26. Duty of National Government Agencies in the Maintenance of Ecological inapplicable to projects which are not environmentally critical.
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 Moreover, Section 447, which enumerates the powers, duties and functions of the
any project or program that may cause pollution, climatic change, depletion of non- municipality, grants the sangguniang bayan the power to, among other things, "enact
renewable resources, loss of crop land, rangeland, or forest cover, and extinction of ordinances, approve resolutions and appropriate funds for the general welfare of the
animal or plant species, to consult with the local government units, nongovernmental municipality and its inhabitants pursuant to Section 16 of th(e) Code." These include:
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 (1) Approving ordinances and passing resolutions to protect the environment and
environmental or ecological balance, and the measures that will be undertaken to impose appropriate penalties for acts which endanger the environment, such as
prevent or minimize the adverse effects thereof. 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
Section 27. Prior Consultations Required. - No project or program shall be implemented fauna, slash and burn farming, and such other activities which result in pollution,
by government authorities unless the consultations mentioned in Sections 2 (c) and 26 acceleration of eutrophication of rivers and lakes, or of ecological imbalance; [Section
hereof are complied with, and prior approval of the sanggunian concerned is obtained: 447 (1)(vi)]
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 (2) Prescribing reasonable limits and restraints on the use of property within the
the provisions of the Constitution. 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
In Lina, Jr. v. Paño,150 we held that Section 27 of the Local Government Code applies provisions of this Code, enacting integrated zoning ordinances in consonance with the
only to "national programs and/or projects which are to be implemented in a particular approved comprehensive land use plan, subject to existing laws, rules and regulations;
local community"151 and that it should be read in conjunction with Section 26. We held establishing fire limits or zones, particularly in populous centers; and regulating the
further in this manner: 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)]
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, (3) Approving ordinances which shall ensure the efficient and effective delivery of the
to wit, those that: (1) may cause pollution; (2) may bring about climatic change; (3) may basic services and facilities as provided for under Section 17 of this Code, and in addition

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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)]
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.

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 project’s 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
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
petitioner’s and the respondents’ respective pleadings and memoranda.

For projects under Category A-1, the conduct of public hearing as part of the EIS review The parties are evidently in accord in seeking to uphold the mandate found in Article II,
is mandatory unless otherwise determined by EMB. For all other undertakings, a public Declaration of Principles and State Policies, of the 1987 Constitution, which we quote
hearing is not mandatory unless specifically required by EMB. below:

Proponents should initiate public consultations early in order to ensure that SECTION 16. The State shall protect and advance the right of the people to a balanced
environmentally relevant concerns of stakeholders are taken into consideration in the and healthful ecology in accord with the rhythm and harmony of nature.
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 x x x x
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.)

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SECTION 20. The State recognizes the indispensable role of the private sector, 1. Respondent Department of Environment and Natural Resources-Environmental
encourages private enterprise, and provides incentives to needed investments. Management Bureau Regional Office VI shall revisit and review the following matters:

The protection of the environment in accordance with the aforesaid constitutional a. its classification of the reclamation project as a single instead of a co-located project;
mandate is the aim, among others, of Presidential Decree No. 1586, "Establishing an
Environmental Impact Statement System, Including Other Environmental Management b. its approval of respondent Province’s classification of the project as a mere expansion
Related Measures and For Other Purposes," which declared in its first Section that it is of the existing jetty port in Caticlan, instead of classifying it as a new project; and
"the policy of the State to attain and maintain a rational and orderly balance between
socio-economic growth and environmental protection." 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
The parties undoubtedly too agree as to the importance of promoting tourism, pursuant RVI.
to Section 2 of Republic Act No. 9593, or "The Tourism Act of 2009," which reads:
2. Respondent Province of Aklan shall perform the following:
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, a. fully cooperate with respondent DENR-EMB RVI in its review of the reclamation
which must be harnessed as an engine of socioeconomic growth and cultural affirmation project proposal and submit to the latter the appropriate report and study; and
to generate investment, foreign exchange and employment, and to continue to mold an
enhanced sense of national pride for all Filipinos. (Emphasis ours.) b. secure approvals from local government units and hold proper consultations with non-
governmental organizations and other stakeholders and sectors concerned as required
The primordial role of local government units under the Constitution and the Local by Section 27 in relation to Section 26 of the Local Government Code.
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: 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
Section 2. Declaration of Policy. - (a) It is hereby declared the policy of the State that the connection to the environmental concerns raised by petitioner, and shall coordinate
territorial and political subdivisions of the State shall enjoy genuine and meaningful local with respondent Province in modifying the MOA, if necessary, based on the findings of
autonomy to enable them to attain their fullest development as self-reliant communities respondent DENR-EMB RVI.
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 4. The petitioner Boracay Foundation, Inc. and the respondents The Province of Aklan,
structure instituted through a system of decentralization whereby local government represented by Governor Carlito S. Marquez, The Philippine Reclamation Authority, and
units shall be given more powers, authority, responsibilities, and resources. The process The DENR-EMB (Region VI) are mandated to submit their respective reports to this Court
of decentralization shall proceed from the national government to the local government regarding their compliance with the requirements set forth in this Decision no later than
units.156 (Emphases ours.) three (3) months from the date of promulgation of this Decision.

As shown by the above provisions of our laws and rules, the speedy and smooth 5. In the meantime, the respondents, their concerned contractor/s, and/or their agents,
resolution of these issues would benefit all the parties. Thus, respondent Province’s representatives or persons acting in their place or stead, shall immediately cease and
cooperation with respondent DENR-EMB RVI in the Court-mandated review of the desist from continuing the implementation of the project covered by ECC-R6-1003-096-
proper classification and environmental impact of the reclamation project is of utmost 7100 until further orders from this Court. For this purpose, the respondents shall report
importance. within five (5) days to this Court the status of the project as of their receipt of this
Decision, copy furnished the petitioner.
WHEREFORE, premises considered, the petition is hereby PARTIALLY GRANTED.1âwphi1
The TEPO issued by this Court is hereby converted into a writ of continuing mandamus This Decision is immediately executory.
specifically as follows:
SO ORDERED.

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G.R. No. 199199 August 27, 2013 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
MARICRIS D. DOLOT, CHAIRMAN OF THE BAGONG ALYANSANG MAKABAYAN- protection order or TEPO; (3) the creation of an inter-agency group to undertake the
SORSOGON, PETITIONER rehabilitation of the mining site; (4) award of damages; and (5) return of the iron ore,
vs. among others.7
HON. RAMON PAJE, IN HIS CAPACITY AS THE SECRETARY OF THE DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES, REYNULFO A. JUAN, REGIONAL DIRECTOR, The case was referred by the Executive Judge to the RTC of Sorsogon, Branch 53 being
MINES AND GEOSCIENCES BUREAU, DENR, HON. RAUL R. LEE, GOVERNOR, PROVINCE OF the designated environmental court.8 In the Order9 dated September 16, 2011, the case
SORSOGON, ANTONIO C. OCAMPO, JR., VICTORIA A. AJERO, ALFREDO M. AGUILAR, AND was summarily dismissed for lack of jurisdiction.
JUAN M. AGUILAR, ANTONES ENTERPRISES, GLOBAL SUMMIT MINES DEV'T CORP., AND
TR ORE, RESPONDENTS. 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
DECISION 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
REYES, J.: 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
This is a petition for review on certiorari1 under Rule 45 of the Rules of Court assailing failed to attach judicial affidavits and furnish a copy of the complaint to the government
the Order2 dated September 16, 2011 and Resolution3 dated October 18, 2011 issued or appropriate agency, as required by the rules.12
by the Regional Trial Court (RTC) of Sorsogon, Branch 53. The assailed issuances
dismissed Civil Case No. 2011-8338 for Continuing Mandamus, Damages and Attorney’s Petitioner Dolot went straight to this Court on pure questions of law.
Fees with Prayer for the Issuance of a Temporary Environment Protection Order.
Issues
Antecedent Facts
The main issue in this case is whether the RTC-Branch 53 has jurisdiction to resolve Civil
On September 15, 2011, petitioner Maricris D. Dolot (Dolot), together with the parish Case No. 2011-8338. The other issue is whether the petition is dismissible on the grounds
priest of the Holy Infant Jesus Parish and the officers of Alyansa Laban sa Mina sa Matnog that: (1) there is no final court decree, order or decision that the public officials allegedly
(petitioners), filed a petition for continuing mandamus, damages and attorney’s fees failed to act on; (2) the case was prematurely filed for failure to exhaust administrative
with the RTC of Sorsogon, docketed as Civil Case No. 2011-8338.4 The petition contained remedies; and (3) the petitioners failed to attach judicial affidavits and furnish a copy of
the following pertinent allegations: (1) sometime in 2009, they protested the iron ore the complaint to the government or appropriate agency.
mining operations being conducted by Antones Enterprises, Global Summit Mines
Development Corporation and TR Ore in Barangays Balocawe and Bon-ot Daco, located Ruling of the Court
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 Jurisdiction and Venue
of the municipality; (3) Matnog is susceptible to flooding and landslides, and confronted
with the environmental dangers of flood hazard, liquefaction, ground settlement, In dismissing the petition for lack of jurisdiction, the RTC, in its Order dated September
ground subsidence and landslide hazard; (4) after investigation, they learned that the 16, 2011, apparently relied on SC Administrative Order (A.O.) No. 7 defining the
mining operators did not have the required permit to operate; (5) Sorsogon Governor territorial areas of the Regional Trial Courts in Regions 1 to 12, and Administrative
Raul Lee and his predecessor Sally Lee issued to the operators a small-scale mining Circular (Admin. Circular) No. 23-2008,13 designating the environmental courts "to try
permit, which they did not have authority to issue; (6) the representatives of the and decide violations of environmental laws x x x committed within their respective
Presidential Management Staff and the Department of Environment and Natural territorial jurisdictions."14 Thus, it ruled that its territorial jurisdiction was limited within
Resources (DENR), despite knowledge, did not do anything to protect the interest of the the boundaries of Sorsogon City and the neighboring municipalities of Donsol, Pilar,
people of Matnog;5 and (7) the respondents violated Republic Act (R.A.) No. 7076 or the Castilla, Casiguran and Juban and that it was "bereft of jurisdiction to entertain, hear and
People’s Small-Scale Mining Act of 1991, R.A. No. 7942 or the Philippine Mining Act of decide [the] case, as such authority rests before another co-equal court."15
1995, and the Local Government Code.6 Thus, they prayed for the following reliefs: (1)

85
Such reasoning is plainly erroneous. The RTC cannot solely rely on SC A.O. No. 7 and Environmental Cases (Rules) specifically states that a special civil action for continuing
Admin. Circular No. 23-2008 and confine itself within its four corners in determining mandamus shall be filed with the "[RTC] exercising jurisdiction over the territory where
whether it had jurisdiction over the action filed by the petitioners. 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
None is more well-settled than the rule that jurisdiction, which is the power and such, the petition should have been filed in the RTC of Irosin.24 But even then, it does
authority of the court to hear, try and decide a case, is conferred by law.16 It may either not warrant the outright dismissal of the petition by the RTC as venue may be waived.25
be over the nature of the action, over the subject matter, over the person of the Moreover, the action filed by the petitioners is not criminal in nature where venue is an
defendants or over the issues framed in the pleadings.17 By virtue of Batas Pambansa essential element of jurisdiction.26 In Gomez-Castillo v. Commission on Elections,27 the
(B.P.) Blg. 129 or the Judiciary Reorganization Act of 1980, jurisdiction over special civil Court even expressed that what the RTC should have done under the circumstances was
actions for certiorari, prohibition and mandamus is vested in the RTC. Particularly, to transfer the case (an election protest) to the proper branch. Similarly, it would serve
Section 21(1) thereof provides that the RTCs shall exercise original jurisdiction – 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
in the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas Rules in its disposition of the case.
corpus and injunction which may be enforced in any part of their respective regions.
(Emphasis ours) 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
A.O. No. 7 and Admin. Circular No. 23-2008 was issued pursuant to Section 18 of B.P. administrative guidelines in the raffle and disposition of environmental cases. While the
Blg. 129, which gave the Court authority to define the territory over which a branch of designation and guidelines were made in 2008, the same should operate in conjunction
the RTC shall exercise its authority. These administrative orders and circulars issued by with the Rules.
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 A.M. No. 09-6-8-SC: Rules of Procedure for Environmental Cases
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 In its Resolution dated October 18, 2011, which resolved the petitioners’ motion for
the territory thus defined shall be deemed to be the territorial area of the branch reconsideration of the order of dismissal, the RTC further ruled that the petition was
concerned for purposes of determining the venue of all suits, proceedings or actions. It dismissible on the following grounds: (1) there is no final court decree, order or decision
was also clarified in Office of the Court Administrator v. Judge Matas20 that – 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
Administrative Order No. 3 [defining the territorial jurisdiction of the Regional Trial affidavits and furnish a copy of the complaint to the government or appropriate
Courts in the National Capital Judicial Region] and, in like manner, Circular Nos. 13 and agency.29 The respondents, and even the Office of the Solicitor General, in behalf of the
19, did not per se confer jurisdiction on the covered regional trial courts or its branches, public respondents, all concur with the view of the RTC.
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 The concept of continuing mandamus was first introduced in Metropolitan Manila
court may exercise its authority pursuant to the jurisdiction conferred by Batas Development Authority v. Concerned Residents of Manila Bay.30 Now cast in stone
Pambansa Blg. 129.21 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,
The RTC need not be reminded that venue relates only to the place of trial or the which are covered by Part II (Civil Procedure). Similar to the procedure under Rule 65 of
geographical location in which an action or proceeding should be brought and does not the Rules of Court for special civil actions for certiorari, prohibition and mandamus,
equate to the jurisdiction of the court. It is intended to accord convenience to the Section 4, Rule 8 of the Rules requires that the petition filed should be sufficient in form
parties, as it relates to the place of trial, and does not restrict their access to the and substance before a court may take further action; otherwise, the court may dismiss
courts.22 Consequently, the RTC’s motu proprio dismissal of Civil Case No. 2011-8338 the petition outright. Courts must be cautioned, however, that the determination to give
on the ground of lack of jurisdiction is patently incorrect. 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
At most, the error committed by the petitioners in filing the case with the RTC of the view in mind of seeing to it that justice is served.31
Sorsogon was that of improper venue. A.M. No. 09-6-8-SC or the Rules of Procedure for

86
Sufficiency in form and substance refers to the contents of the petition filed under Rule The final court decree, order or decision erroneously alluded to by the RTC actually
8, Section 1: 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
When any agency or instrumentality of the government or officer thereof unlawfully subsequently become final.
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 Under the Rules, after the court has rendered a judgment in conformity with Rule 8,
environmental law rule or regulation or a right therein, or unlawfully excludes another Section 7 and such judgment has become final, the issuing court still retains jurisdiction
from the use or enjoyment of such right and there is no other plain, speedy and adequate over the case to ensure that the government agency concerned is performing its tasks
remedy in the ordinary course of law, the person aggrieved thereby may file a verified as mandated by law and to monitor the effective performance of said tasks. It is only
petition in the proper court, alleging the facts with certainty, attaching thereto upon full satisfaction of the final judgment, order or decision that a final return of the
supporting evidence, specifying that the petition concerns an environmental law, rule or writ shall be made to the court and if the court finds that the judgment has been fully
regulation, and praying that judgment be rendered commanding the respondent to do implemented, the satisfaction of judgment shall be entered in the court docket.34 A writ
an act or series of acts until the judgment is fully satisfied, and to pay damages sustained of continuing mandamus is, in essence, a command of continuing compliance with a final
by the petitioner by reason of the malicious neglect to perform the duties of the judgment as it "permits the court to retain jurisdiction after judgment in order to ensure
respondent, under the law, rules or regulations. The petition shall also contain a sworn the successful implementation of the reliefs mandated under the court’s decision."35
certification of non-forum shopping.1âwphi1
The Court, likewise, cannot sustain the argument that the petitioners should have first
On matters of form, the petition must be verified and must contain supporting evidence filed a case with the Panel of Arbitrators (Panel), which has jurisdiction over mining
as well as a sworn certification of non-forum shopping. It is also necessary that the disputes under R.A. No. 7942.
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 Indeed, as pointed out by the respondents, the Panel has jurisdiction over mining
hand, necessitates that the petition must contain substantive allegations specifically disputes.36 But the petition filed below does not involve a mining dispute. What was
constituting an actionable neglect or omission and must establish, at the very least, a being protested are the alleged negative environmental impact of the small-scale mining
prima facie basis for the issuance of the writ, viz: (1) an agency or instrumentality of operation being conducted by Antones Enterprises, Global Summit Mines Development
government or its officer unlawfully neglects the performance of an act or unlawfully Corporation and TR Ore in the Municipality of Matnog; the authority of the Governor of
excludes another from the use or enjoyment of a right; (2) the act to be performed by Sorsogon to issue mining permits in favor of these entities; and the perceived
the government agency, instrumentality or its officer is specifically enjoined by law as a indifference of the DENR and local government officials over the issue. Resolution of
duty; (3) such duty results from an office, trust or station in connection with the these matters does not entail the technical knowledge and expertise of the members of
enforcement or violation of an environmental law, rule or regulation or a right therein; the Panel but requires an exercise of judicial function. Thus, in Olympic Mines and
and (4) there is no other plain, speedy and adequate remedy in the course of law.32 Development Corp. v. Platinum Group Metals Corporation,37 the Court stated –

The writ of continuing mandamus is a special civil action that may be availed of "to Arbitration before the Panel of Arbitrators is proper only when there is a disagreement
compel the performance of an act specifically enjoined by law."33 The petition should between the parties as to some provisions of the contract between them, which needs
mainly involve an environmental and other related law, rule or regulation or a right the interpretation and the application of that particular knowledge and expertise
therein. The RTC’s mistaken notion on the need for a final judgment, decree or order is possessed by members of that Panel. It is not proper when one of the parties repudiates
apparently based on the definition of the writ of continuing mandamus under Section 4, the existence or validity of such contract or agreement on the ground of fraud or
Rule 1 of the Rules, to wit: 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
(c) Continuing mandamus is a writ issued by a court in an environmental case directing within the jurisdiction of the ordinary courts of law. These questions are legal in nature
any agency or instrumentality of the government or officer thereof to perform an act or and require the application and interpretation of laws and jurisprudence which is
series of acts decreed by final judgment which shall remain effective until judgment is necessarily a judicial function.38 (Emphasis supplied in the former and ours in the latter)
fully satisfied. (Emphasis ours)
Consequently, resort to the Panel would be completely useless and unnecessary.

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The Court also finds that the RTC erred in ruling that the petition is infirm for failure to G.R. No. 194239 June 16, 2015
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 WEST TOWER CONDOMINIUM CORPORATION, on behalf of the Residents of West
certification of non-forum shopping. There is nothing in Rule 8 that compels the inclusion Tower Condominium and in representation of Barangay Bangkal, and others,
of judicial affidavits, albeit not prohibited. It is only if the evidence of the petitioner including minors and generations yet unborn, Petitioners,
would consist of testimony of witnesses that it would be the time that judicial affidavits vs.
(affidavits of witnesses in the question and answer form) must be attached to the FIRST PHILIPPINE INDUSTRIAL CORPORATION, FIRST GEN CORPORATION and their
petition/complaint.39 RESPECTIVE BOARD OF DIRECTORS AND OFFICERS, JOHN DOES, and RICHARD DOES,
Respondents.
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 D E C I S I O N
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 VELASCO, JR., J.:
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 Nature of the Case
to an opportunity to be heard."40
Before the Court is the Petition for the Issuance of a Writ of Kalikasan filed following the
WHEREFORE, the petition is GRANTED. The Order dated September 16, 2011 and leak in the oil pipeline owned by First Philippine Industrial Corporation (FPIC) in Makati
Resolution dated October 18, 2011 issued by the Regional Trial Court of Sorsogon, City. The Facts
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 Respondent FPI C operates two pipelines since 1969, viz: ( 1) the White Oil Pipeline
to the Regional Trial Court of Irosin, Branch 55, for further proceedings with dispatch. (WOPL) System, which covers a 117-kilometer stretch from Batangas to the Pandacan
Petitioner Maricris D. Dolot is also ORDERED to furnish the respondents with a copy of Terminal in Manila and transports diesel, gasoline, jet fuel and kerosene; and (b) the
the petition and its annexes within ten (10) days from receipt of this Decision and to Black Oil Pipeline (BOPL) System which extends 105 kilometers and transports bunker
submit its Compliance with the RTC of Irosin. fuel from Batangas to a depot in Sucat, Parañaque. These systems transport nearly 60%
of the petroleum requirements of Metro Manila and parts of the provinces of Bulacan,
SO ORDERED. 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

88
Barangay Bangkal. Eventually, the fumes compelled the residents of West Tower to On November 19, 2010, the Court issued the Writ of Kalikasan2 with a Temporary
abandon their respective units on July 23, 2010 and the condo's power was shut down. Environmental Protection Order (TEPO) requiring respondents FPIC, FGC, and the
members of their Boards of Directors to file their respective verified returns. The TEPO
Petitioner FPIC initially disowned any leak from its oil pipeline. Thus, the residents of enjoined FPIC and FGC to: (a) cease and desist from operating the WOPL until further
West Tower shouldered the expenses of hauling the waste water from its basement, orders; (b) check the structural integrity of the whole span of the 11 7-kilometer WOPL
which eventually required the setting up of a treatment plant in the area to separate fuel while implementing sufficient measures to prevent and avert any untoward incident that
from the waste water. On October 28, 2010, the University of the Philippines-National may result from any leak of the pipeline; and ( c) make a report thereon within 60 days
Institute of Geological Sciences (UP-NIGS), which the City of Makati invited to determine from receipt thereof.
the source of the fuel, found a leak in FPIC's WOPL about 86 meters from West Tower.
In compliance with the writ, FPIC directors Edgar Chua, Dennis Javier, Dennis Gamab and
A day after, or on October 29, 2010, FPIC admitted that indeed the source of the fuel Willie Sarmiento submitted a Joint Return3 praying for the dismissal of the petition and
leak is the WOPL, which was already closed since October 24, 2010, but denied liability the denial of the privilege of the Writ of Kalikasan. They alleged that: petitioners had no
by placing blame on the construction activities on the roads surrounding West Tower. 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
On November 15, 2010, West Tower Condominium Corporation (West Tower Corp.) continued operation of the pipeline should be allowed in the interest of maintaining
interposed the present Petition for the Issuance of a Writ of Kalikasan on behalf of the adequate petroleum supply to the public.
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 Respondents FPIC and its directors and officers, other than the aforementioned four ( 4)
society and several people's organizations, non-governmental organizations and public directors, also filed a Verified Return4 claiming that not all requirements for the issuance
interest groups who have expressed their intent to join the suit because of the of the Writ of Kalikasan are present and there is no showing that West Tower Corp. was
magnitude of the environmental issues involved.1 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
In their petition, petitioners prayed that respondents FPIC and its board of directors and manner as to allow the piercing of the corporate veil.
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 Meanwhile, on January 18, 201-1, FGC and the members of its Board of Directors and
performance of their functions as a common carrier; (2) continue to check the structural Officers filed a Joint Compliance5 submitting the report required by the Writ of
integrity of the whole 117-kilometer pipeline and to replace the same; (3) make periodic Kalikasan/TEPO. They contended that they neither own nor operate the pipelines,
reports on their findings with regard to the 117-kilometer pipeline and their replacement adding that it is impossible for them to report on the structural integrity of the pipelines,
of the same; (4) rehabilitate and restore the environment, especially Barangay Bangkal much less to cease and desist from operating them as they have no capability, power,
and West Tower, at least to what it was before the signs of the leak became manifest; control or responsibility over the pipelines. They, thus, prayed that the directives of the
and (5) to open a special trust fund to answer for similar and future contingencies in the Writ of Kalikasan/TEPO be considered as sufficiently performed, as to them.
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 On January 21, 2011, FPIC, in compliance with the writ, submitted its 4-page "Report on
replaced, and be temporarily restrained from operating the pipeline until the final Pipeline Integrity Check and Preventive Maintenance Program."6 In gist, FPIC reported
resolution of the case. 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
To bolster their petition, petitioners argued that FPIC's omission or failure to timely of the WQPL in eight cities and municipalities-all the boreholes showed negative
replace. its pipelines and to observe extraordinary diligence caused the petroleum spill presence of petroleum vapors; (b) pressure tests were conducted after the repair of the
in the City of Makati. Thus, for petitioners, the continued use of the now 4 7-year old leak and results showed negative leaks and the DOE's pipeline expert, Societe General
pipeline would not only be a hazard or a threat to the lives, health, and property of those de Surveillance, New Zealand, has developed a pressure test protocol requiring a 24-
who live or sojourn in all the municipalities in which the pipeline is laid, but would also hour operation of running a scraper pig through the pipeline to eliminate air gap; (c) In-
affect the rights of the generations yet unborn to live in a balanced and "healthful Line Inspection Test, was conducted by NDT through MFL and ultrasonic. The NDT later
ecology," guaranteed under Section 16, Article II of the 1987 Constitution. cleared the WOPL from any damage or corrosion.

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(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 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 February 9, 2011, petitioners filed, and the Court eventually granted, their Motion to On March 21, 2012, the preliminary conference was continued before the CA wherein
Set the Case for Preliminary Conference and Hearing7 pursuant to Sec. 11, Rule 7 of the the parties made admissions and stipulations of facts and defined the issues for
Rules of Procedure for Environmental Cases. 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 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 On December 26, 2012, the CA Former 11th Division submitted to the Court its well-
leaks on FPIC's pipeline. Results of the ocular inspection belied the claim. crafted and exhaustive 156-page Report and Recommendation18 dated December 21,
2012 (CA Report). Some highlights of the Report:
In the meantime, petitioners also filed civil and criminal complaints against respondents
arising from the same incident or leakage from the WOPL.8 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
Since after the Court's issuance of the Writ of Kalikasan and the TEPO on November 19, the DOE as to the safe commercial operation of the BOPL; otherwise, the operation of
2010, FPIC has ceased operations on both the WOPL and the BOPL. On May 31, 2011, the BOPL must also be enjoined.
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 2. On petitioners' September 9, 2011 Manifestation (Re: Current Developments) with
can resume operation of its BOPL System.9 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.
On July 7, 2011, petitioners filed an Omnibus Motion10 assailing the Court's May 31, Further, the appellate court directed FPIC to strictly comply with the stipulations
2011 Resolution, praying for the conduct of oral argument on the issue of reopening the contained in the permits issued by the Department of Environment and Natural
BOPL System. This was followed, on September 9, 2011, by a Manifestation (Re: Current Resources (DENR) for its remediation activities in Barangay Bangkal, Makati City. The
Developments) with Omnibus Motion11 wherein petitioners invoked the precautionary DENR was in turn directed by the CA to:
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 (a) monitor compliance by respondent FPIC with applicable environmental laws and
operation. They likewise alleged that the entities contracted by FPIC to clean and regulations and conditions set forth in the permits issued;
remediate the environment are illegally discharging waste water, which had not
undergone proper treatment, into the Parañaque River. Petitioners, thus, prayed that (b) conduct independent analysis of end-products of the Multi-Phase Extraction System;
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 (c) conduct regular consultative meetings with the City of Makati, residents of Barangay
reports on the progress thereof. To these omnibus motions, respondents were directed Bangkal and other stakeholders concerning the remediation activities; and,
to file their respective comments.

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(d) evaluate the viability of the recommendation of amicus Dr. Benjamin R. De Jesus, Jr. On January 11, 2013, petitioners filed their Motion for Partial Reconsideration19 of the
to include the use of surfactants and oxygen-releasing compounds (ORCs) in the middle CA's Report praying that (a) instead of the DOE, the required certification should be
and terminal portions of the remediation plan. 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
3. Respondent's September 27, 2011 Urgent Motion for Leave (To Undertake "Bangkal and FGC be held accountable.
Realignment" Project) was denied.
On January 25, 2013, FPIC filed its Compliance (Re: Department of Energy Certification
4. With regard to the March 29, 2012 Supplemental Manifestation (Re: List of Amici on the Black Oil Pipeline)20 and submitted the required DOE Certification21 issued on
Curiae and Recent Possible Leak in the Pipeline) filed by petitioners, the CA found that January 22, 2013 by DOE Secretary Carlos Jericho L. Petilla (Secretary Petilla). On March
the existence of another possible leak alleged by petitioners was not established. 14, 2013, petitioners countered with a Manifestation with Motion22 asserting that
Nonetheless, to prevent such event, the CA ordered FPIC to: (i) review, adopt and strictly FPIC's certification is not compliant with the CA's requirement. Hence, petitioners moved
observe appropriate safety and precautionary measures; (ii) closely monitor the conduct that the certification should be disregarded, the 30-day period be deemed to have
of its maintenance and repair works; and (iii) submit to the DOE regular monthly reports lapsed, and FPIC be permanently enjoined from operating the BOPL.
on the structural integrity and safe commercial operation of the pipeline.
On July 30, 2013, the Court issued a Resolution adopting the recommendation of the CA
5. As to the merits of the case, the CA submitted the following recommendations: 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
(a) That the people's organizations, non-governmental organizations, and public interest of said Resolution reads:
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 [FPIC] is hereby ORDERED to submit a certification from the DOE Secretary that the
Makabansang Ekonomiya, Inc.; Women's Business Council of the Philippines, Inc.; Junior pipeline is already safe for commercial operation. The certification should take into
Chambers International Philippines, Inc. - San Juan Chapter; Zonta Club of Makati Ayala consideration the adoption by FPIC of the appropriate leak detection system to be used
Foundations; and the Consolidated Mansions Condominium Corporation) be allowed to in monitoring the entire pipeline's mass input versus mass output. The certification must
be formally impleaded as petitioners. also consider the necessity of replacing the pipes with existing patches and sleeves x x
x.23
(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 The DOE Secretary is DIRECTED to consult the [DOST] regarding the adoption of the
into consideration the adoption by FPIC of the appropriate leak detection system to be appropriate leak detection system and the necessity of replacing the pipes with existing
used in monitoring the entire pipeline's mass input versus mass output. The certification patches and sleeves.
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 On October 2, 2013, petitioners, in a Motion for Reconsideration with Motion for
Secretary within sixty (60) days from notice of the Honorable Supreme Court's approval Clarification, emphasized that the CA found FPIC's tests and maintenance program to be
of this recommendation, the TEPO must be made permanent. 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
(c) That petitioners' prayer for the creation of a special trust fund to answer for similar incapable of determining the WOPL's structural integrity.
contingencies in the future be denied for lack of sufficient basis.
Respondents, for their part, maintain that the DOE has the technical competence and
d) That respondent FGC be not held solidarily liable under the TEPO. 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
(e) That without prejudice to the outcome of the civil and criminal cases filed against empowered to regulate the transportation and distribution of petroleum products, and
respondents, the individual directors and officers of FPIC and FGC be not held liable in to regulate and monitor downstream oil industry activities, including "product
their individual capacities. distribution" through pipelines.26

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In compliance with the Court's July 30, 2013 Resolution, the DOE Secretary issued on 299 more. Further, 23 ,600, 2,268 and 6,000 households were left without gas, power
October 25, 2013 a Certification,27 attesting that the WOPL is safe to resume and water, respectively, in the 2-3 square kilometer blast area.29
commercial operations, subject to monitoring or inspection requirements, and imposing
several conditions that FPIC must comply with. The Certification, in its entirety, reads: (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
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 (3) On September 14, 2011, a fuel pipeline exploded in Kenya's capital city, Nairobi,
operations. This certification is being issued after consultation with the [DOST] and on reducing bodies to dust and flattening homes. At least 7 5 people died in the explosion,
the basis of the following considerations, to wit: while more than a hundred people were injured.31

1. DOE noted the adoption by FPIC of the appropriate leak detection system to be used (4) In September 2010, a natural gas pipeline ruptured and set off a fireball, killing eight
in monitoring the pipeline's mass input versus mass output, as well as the other (8) people and leveling 3 8 homes in San Bruno, California in the United States.32
measures of leak detection and prevention adopted by the latter;
(5) On July 30, 2004, a rupture of an underground natural gas pipeline buried six (6)
2. DOE further noted that FPIC has already undertaken realignment and reinforcement meters in Ghislenghien, Belgium resulted in 24 deaths and over 120 injuries.33
works on the current pipeline to remove majority of the patches. FPIC has likewise
presented substantial and adequate documentation showing that the remaining patches On April 29 and 30, 2014, the DOE organized a dialogue between said government
and sleeves are safe, and that the use of such is recognized by the industry and complies agencies and the FPIC. There it was stated that during the dialogue, "the division heads
with existing standards; and a high profile team from FPIC, both from operation and management made
presentations and answered questions on pipeline pumping operation and product
3. DOE finally noted the results of various tests and inspections done on the pipeline as delivery, and a detailed explanation of the FPIC PIMS' control measures, condition
indicated in the Manifestation submitted by ,the DOE on March 31, 2012, in the civil case monitoring measures, and emergency measures, as well as its various activities and
docketed as CA GR SP No. 00008 and entitled West Tower Condominium, et al. [v.] First projects implemented since 2010 such as pipeline replacement and realignment in
Philippine Industrial Corporation, et al. 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
This certification is being issued subject to the condition that FPIC will submit itself to successful leak tests, and installation of boreholes that are gas-tested on a weekly basis,
regular monitoring and validation by the Oil Industry Management Bureau (OIMB) of the and the safety systems that go with the daily pipeline operation and maintenance and
implementation of its PIMS, particularly on the following: (a) mass or volume input project execution."34
versus mass or volume output loss/gain accounting; (b) results of borehole monitoring,
(c) inspection of the pipeline cathodic protection and (d) pressure test. 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
Further, FPIC shall submit itself to any test or inspection that the DOE and DOST may wit:
deem appropriate for purposes of monitoring the operations of the WOPL facility.
A. Preparatory to the Test Run
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 I. FPIC Tasks:
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 a. Continue submission of monitoring charts, data/reading, accomplishment reports,
to the surrounding population and to the environment.28 A cursory review of the most and project status for all related activities/works. Respond to comments and prepare for
recent oil pipeline tragedies around the world will readily show that extreme caution site inspection.
should be exercised in the monitoring and operation of these common carriers:
b. Continue gas testing along the right-of-way using the monitoring wells or boreholes.
(1) On August 1, 2014, a series of powerful explosions from underground pipeline Prepare for inspection of right-of-way and observation of gas testing activities on
systems ripped up the streets of Kaohsiung, Taiwan, killing at least 28 people and injuring monitoring wells and boreholes.

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c. Expound on the selection of borehole location. For example, identify those located in b. Continue monthly reporting of operations and maintenance activities with DOE.
pipeline bends, bodies of water, residential areas, repaired portions of the pipelines,
dents and welded joints. c. Continue reporting and coordination with DOE and other government agencies for
implementation of projects.36
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 Secretary Petilla also recounted to the Court in his August 5, 2014 letter that the DOE,
of MMDA in the vicinity of Mojica St. and Pres. Osmeña Highway in Makati City). Prepare together with the DPWH and the Metropolitan Manila Development Authority (MMDA),
for site inspection. 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
II. Inter-agency undertaking: laid was coated with corrosion protection prior to the backfilling of the excavated
portion.
a. Conduct onsite inspection of right-of-way
b. Review/check remaining 22 patches that were already inspected and reinforced with On February 3, 2015, the Court required the parties to submit their comment on Sec.
Clockspring sleeves. Petilla's letter within ten (10) days from receipt of the Resolution. On various dates,
i. Determine location of sleeves. respondents First Gen Corporation, FPIC, and petitioner West Tower filed their
ii. Review of procedures on repair of sleeves. respective comments37 in compliance with the Court's resolution. The intervenors were
iii. Random visual inspection of areas easily accessible. unable to comply with the Court's directive; hence, they are deemed to have waived
c. Cathodic protection's onsite inspection on rectifier to check readings their right to file their respective comments. The Issues
i. Old readings
ii. Current Readings Having received the October 25, 2013 Certification and the August 5, 2014 Letter from
iii. Segment covered the DOE on the state of the WOPL, as well as the parties' comments thereon, the
iv. Criteria for prioritization for corrective action following issues defined by the parties during the March 21, 2012 preliminary
d. Observe and witness the running/operation of the cleaning pig. conference are now ripe for adjudication:
e. Check and validate all calibration certificate of instruments
i. Instrument verification and calibration. 1. Whether petitioner West Tower Corp. has the legal capacity to represent the other
B. Actual Test Run (to be undertaken both by FPIC and inter-agency) petitioners and whether the other petitioners, apart from the residents of West Tower
a. Perform Cleaning Pig Run and Barangay Bangkal, are real parties-in-interest;
i. Witness launching and receiving of the cleaning pig.
ii. Handling of the residuals after cleaning. 2. Whether a Permanent Environmental Protection Order should be issued to direct the
b. Demonstrate Various Pressure Tests (already being conducted by FPIC) respondents to perform or to desist from performing acts in order to protect, preserve,
i. Blocked-in pressure test (Leak Test, not in operation) and rehabilitate the affected environment;
ii. In-operation (hourly reading)
c. Continue Current Gas Monitoring (boreholes) 3. Whether a special trust fund should be opened by respondents to answer for future
i. Ocular inspection of selected areas similar contingencies; and
d. Demonstrate mass or volume balance computation during WOPL test run (already
being implemented in the BOPL) 4. Whether FGC and the directors and officers of respondents FPIC and FGC may be held
i. 30 days baseline data generation liable under the environmental protection order.38
ii. 30 days computational analysis and monitoring
C. Commissioning or Return to Commercial Operation The Court's Ruling

I. FPIC Tasks: We adopt, with modifications, the recommendations of the CA and discuss the foregoing
issues in seriatim.
a. Continue implementation of the PIMS. Review recommendations from DOE.

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I. membership of West Tower Corp. issued during their November 9, 2010 meeting with
Petitioners as Real Parties-in-Interest 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
On the procedural aspect, We agree with the CA that petitioners who are affected corporation itself.
residents of West Tower and Barangay Bangkal have the requisite concern to be real
parties-in-interest to pursue the instant petition. 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
Residents of West Tower and Barangay Bangkal they so wish to join the petitioners.

As defined, a real party-in-interest is the party who stands to be benefited or injured by Organizations that indicated their intention to join the petition
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 and submitted proof of juridical personality
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 Anent the propriety of including the Catholic Bishops' Conference of the Philippines,
interest to protect cannot invoke the jurisdiction of the court as party-plaintiff-in-actionKilusang Makabansang Ekonomiya, Inc., Women's Business Council of the Philippines,
for it is jurisprudentially ordained that every action must be prosecuted or defended in Inc., Junior Chambers International Philippines, Inc. - San Juan Chapter, Zonta Club of
the name of the real party-in-interest.42 Makati Ayala Foundations, and the Consolidated Mansions Condominium Corporation,
as petitioners in the case, the Court already granted their intervention in the present
In the case at bar, there can be no quibble that the oil leak from the WOPL affected all controversy in the adverted July 30, 2013 Resolution.
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 This is so considering that the filing of a petition for the issuance of a writ of kalikasan
condominium's electrical power was shut down. Until now, the unit owners and under Sec. 1, Rule 745 of the Rules of Procedure for Environmental Cases does not
residents of West Tower could still not return to their condominium units. Thus, there is require that a petitioner be directly affected by an environmental disaster. The rule
no gainsaying that the residents of West Tower are real parties-in-interest. 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
There can also be no denying that West Tower Corp. represents the common interest of violation.
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, Thus, as parties to the case, they are entitled to be furnished copies of all the submissions
otherwise known as The Condominium Act,43 it is empowered to pursue actions in to the Court, including the periodic reports of FPIC and the results of the evaluations and
behalf of its members. In the instant case, the condominium corporation .is the tests conducted on the WOPL.
management body of West Tower and deals with everything that may affect some or all
of the condominium unit owners or users. 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
It is of no moment that only five residents of West Tower signed their acquiescence to presented, the Court, likewise, concurs with the other recommendations of the CA, with
the filing of the petition for the issuance of the Writ of Kalikasan, as the merits of such a few modifications.
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 II.
environmental disaster. Propriety of Converting the TEPO to PEPO or its Lifting in light of the

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
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

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asserts that regular testing, as well as the measures that are already in place, will condition is irremediable, or that it already exceeded its serviceable life, among others,
sufficiently address any concern of oil leaks from the WOPL. the closure of the WOPL may be ordered.

With respect to leak detection, FPIC claims that it has in place the following systems: (a) The DOE is specially equipped to consider FPIC's proper implementation and compliance
regular cleaning scraper runs, which are done quarterly; (b) pipeline integrity gauge (PIG) with its PIMS and to evaluate the result of the various tests conducted on the pipeline.
tests/Intelligent PIG, now known as in-line inspections (ILI), which is done every five The DOE is empowered by Sec. 12(b)(l), RA 7638 to formulate and implement policies
years; (c) pressure monitoring valves; and ( d) 24-hour patrols. Additionally, FPIC for the efficient and economical "distribution, transportation, and storage of petroleum,
asserted that it also undertook the following: (a) monitoring of wells and borehole coal, natural gas."48 Thus, it cannot be gainsaid that the DOE possesses technical
testing/vapor tests; (b) leak tightness test, also known as segment pressure test; (c) knowledge and special expertise with respect to practices in the transportation of oil
pressure-controlled test; (d) inspection and reinforcement of patches; (e) inspection and through pipelines.
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 Moreover, it is notable that the DOE did not only limit itself to the knowledge and
(NDT) to conduct ILI inspections through magnetic flux leakage (MFL) and ultrasonic tests proficiency available within its offices, it has also rallied around the assistance of
to, respectively, detect wall thinning of the pipeline and check it for cracks. pertinent bureaus of the other administrative agencies: the ITDI49 of the DOST, which is
mandated to undertake technical services including standards, analytical and calibration
The CA, however, observed that all of these tests and measures are inconclusive and services; the MIRDC,50 also of the DOST, which is the sole government entity directly
insufficient for purposes of leak detection and pipeline integrity maintenance. Hence, supporting the metals and engineering industry;51 the EMB52 of the DENR, the agency
considering the necessary caution and level of assurance required to ensure that the mandated to implement, among others, RA 6969 (Toxic Substances and Hazardous and
WOPL system is free from leaks and is safe for commercial operation, the CA Nuclear Waste Control Act of 1990) and RA 9275 (Philippine Clean Water Act of 2004);
recommended that FPIC obtain from the DOE a certification that the WOPL is already and the BOD of the DPWH, which is mandated to conduct, supervise, and review the
safe for commercial operation. This certification, according to the CA, was to be issued technical design aspects of projects of government agencies.53
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 The specialized knowledge and expertise of the foregoing agencies must, therefore, be
with existing patches and sleeves. Sans the required certification, use of the WOPL shall availed of to arrive at a judicious decision on the propriety of allowing the immediate
remain abated. 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
The Court found this recommendation of the appellate court proper. Hence, We administrative body, such issues must be investigated and resolved by the administrative
required FPIC to obtain the adverted DOE Certification in Our July 30, 2013 Resolution. body equipped with the specialized knowledge and the technical expertise.54 Hence,
We deemed it proper to require said certification from the DOE considering that the core the courts, although they may have jurisdiction and power to decide cases, can utilize
issue of this case requires the specialized knowledge and special expertise of the DOE the findings and recommendations of the administrative agency on questions that
and various other administrative agencies. On October 25, 2013, the DOE submitted the demand "the exercise of sound administrative discretion requiring the special
certification pursuant to the July 30, 2013 Resolution of the Court. Later, however, on knowledge, experience, and services of the administrative tribunal to determine
August 5, 2014, DOE Secretary Carlos Jericho I. Petilla submitted a letter recommending technical and intricate matters of fact."55
certain activities and the timetable for the resumption of the WOPL operations after
conducting a dialogue between the concerned government agencies and FPIC. 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
After a perusal of the recommendations of the DOE and the submissions of the parties, safety of the WOPL for continued commercial operations, thereby rendering the instant
the Court adopts the activities and measures prescribed in the DOE letter dated August petition moot and academic, seeking, as it does, the checking of the pipeline's structural
5, 2014 to be complied with by FPIC as conditions for the resumption of the commercial integrity. According to his dissent, the writ of kalikasan issued by the Court has already
operations of the WOPL. The DOE should, therefore, proceed with the implementation served its functions and, therefore, is functus officio. Moreover, he argues that directing
of the tests proposed in the said August 5, 2014 letter. Thereafter, if it is satisfied that the DOE and FPIC to repeat their previous procedures is tantamount to doubting the
the results warrant the immediate reopening of the WOPL, the DOE shall issue an order agency's performance of its statutorily-mandated tasks, over which they have the
allowing FPIC to resume the operation of the WOPL. On the other hand, should the probe necessary expertise, and implies that said DOE certification is improper, a breach,
result in a finding that the pipeline is no longer safe for continued use and that its allegedly, of the principle of separation of powers.

95
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.
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.

The dissent's contentions that the case is already moot and academic, that the writ of
Consider also the fact that it is the DOE itself that imposed several conditions upon FPIC
kalikasan has already served its function, and that the delay in the lifting of the TEPO
for the resumption of the operations of the WOPL. This, coupled with the submission by
may do more harm than good are anchored on the mistaken premise that the the DOE of its proposed activities and timetable, is a clear and unequivocal message
precautionary principle was applied in order to justify the order to the DOE and the FPIC
coming from the DOE that the WOPL's soundness for resumption of and continued
for the conduct of the various tests anew. The following reasons easily debunk thesecommercial operations is not yet fully determined. And it is only after an extensive
arguments: 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
1. The precautionary principle is not applicable to the instant case; 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
2. The DOE certification is not an absolute attestation as to the WOPL's structural resolution. Consequently, We cannot say that the DOE's issuance of the certification
integrity and in fact imposes several conditions for FPIC's compliance; adverted to equates to the writ of kalikasan being functus officio at this point.

3. The DOE itself, in consultation with FPIC and the other concerned agencies, proposed The dissent is correct in emphasizing that We defer to the findings of fact of
the activities to be conducted preparatory to the reopening of the pipeline; and 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
4 . There are no conclusive findings yet on the WOPL's structural integrity. 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
Section 1, Rule 20 of A.M. No. 09-6-8-SC or the Rules of Procedure for Environmental activities enumerated in said Letter, to determine the pipeline's reliability, and to order
Cases, on the Precautionary Principle, provides that "[ w ]hen there is lack of full scientific its reopening should the DOE find that such is proper.
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 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
According to the dissent, the directive for the repetition of the tests is based on by the leak, the creation of a special trust fund, the imposition of liability upon the
speculations, justified by the application of said principle. This, however, is not the case. directors of FPIC, among others. These issues, undoubtedly, are matters that are not
Nowhere did We apply the precautionary principle in deciding the issue on the WOPL's addressed by the DOE certification alone. Furthermore, these are issues that no longer
structural integrity. 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
The precautionary principle only applies when the link between the cause, that is the on the basis solely of the alleged resolution of only one of several issues, which
human activity sought to be inhibited, and the effect, that is the damage to the purportedly renders the issue on the WOPL' s soundness moot, without disposing of the
environment, cannot be established with full scientific certainty. Here, however, such other issues presented.
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 Lastly, any delay in the reopening of the WOPL, if said delay is for the purpose of making
whether the spillage of hazardous materials into the surroundings will cause sure that the pipeline is commercially viable, is better than hastily allowing its reopening
environmental damage or will harm human health or that of other organisms. As a without an extensive check on its structural integrity when experience shows that there
matter of fact, the petroleum leak and the harm that it caused to the environment and were and may still be flaws in the pipeline. Even the DOE, the agency tasked to oversee
to the residents of the affected areas is not even questioned by FPIC. the supply and distribution of petroleum in the country, is well aware of this and even

96
recommended the checking of the patched portions of the pipeline, among others. In view that the creation of a special trust fund is misplaced. The present ruling on
this regard, the Court deems it best to take the necessary safeguards, which are not petitioners' prayer for the creation of a special trust fund in the instant recourse,
similar to applying the precautionary principle as previously explained, in order to however, is without prejudice to the judgment/s that may be rendered in the civil and/or
prevent a similar incident from happening in the future. criminal cases filed by petitioners arising from the same incident if the payment of
damages is found warranted.
III.
Propriety of the Creation of a Special Trust Fund IV.
Liability of FPIC, FGC and their respective Directors and Officers
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 On the last issue of the liability of FPIC, FGC and their respective directors and officers,
solely for the purpose of rehabilitating or restoring the environment. Said proviso the CA found FGC not liable under the TEPO and, without prejudice to the outcome of
pertinently provides: 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
SEC. 1. Reliefs in a citizen suit. - If warranted, the court may grant to the plaintiff proper Prosecutor of Makati City) filed against them, the individual directors and officers of FPIC
reliefs which shall include the protection, preservation or rehabilitation of the and FGC are not liable in their individual capacities.
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 The Court will refrain from ruling on the finding of the CA that the individual directors
restoration of the environment, the costs of which shall be borne by the violator, or to and officers of FPIC and FGC are not liable due to the explicit rule in the Rules of
contribute to a special trust fund for that purpose subject to the control of the court. Procedure for Environmental cases that in a petition for a writ of kalikasan, the Court
(emphasis supplied) 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
Furthermore, Sec. 15( e ), Rule 7 of the Rules of Procedure for Environmental Cases and criminal complaint filed by petitioners against respondents are the proper
expressly prohibits the grant of damages to petitioners in a petition for the issuance of proceedings to ventilate and determine the individual liability of respondents, if any, on
a writ of kalikasan, viz: 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
Section 15. Judgment. - Within sixty (60) days from the time the petition is submitted for the WOPL in Barangay Bangkal, Makati City.
decision, the court shall render judgment granting or denying the privilege of the writ of
kalikasan. 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
The reliefs that may be granted under the writ are the following: pending against them.

xxxx Other Matters

(e) Such other reliefs which relate to the right of the people to a balanced and healthful The CA's resolution on petitioners' September 9, 2011 Manifestation (Re: Current
ecology or to the protection, preservation, rehabilitation or restoration of the Developments) with Omnibus Motion on the remediation plan in Barangay Bangkal by
environment, except the award of damages to individual petitioners. 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
A reading of the petition and the motion for partial reconsideration readily reveals that stipulations embodied in the permits issued by the DENR, and to get a certification from
the prayer is for the creation of a trust fund for similar future contingencies. This is the DENR of its compliance thereto is well taken. DENR is the government agency tasked
clearly outside the limited purpose of a special trust fund under the Rules of Procedure to implement the state policy of "maintaining a sound ecological balance and protecting
for Environmental Cases, which is to rehabilitate or restore the environment that has and enhancing the quality of the environment"57 and to "promulgate rules and
presumably already suffered. Hence, the Court affirms with concurrence the observation regulations for the control of water, air, and land pollution."58 It is indubitable that the
of the appellate court that the prayer is but a claim for damages, which is prohibited by DENR has jurisdiction in overseeing and supervising the environmental remediation of
the Rules of Procedure for Environmental Cases. As such, the Court is of the considered Barangay Bangkal, which is adversely affected by the leak in the WOPL in 2010.

97
 cover the entire stretch of the WOPL, the number and location of which shall be
With regard to petitioners' March 29, 2012 Supplemental Manifestation about a recent determined by the DOE.
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, e. Continue submitting status report to the concerned government agency/ies relating
the Court finds it fitting that the pipeline be closely and regularly monitored to obviate to "Project Mojica," or the on-going pipeline segment realignment activity being
another catastrophic event which will prejudice the health of the affected people, and undertaken by FPIC to give way to a flood control project of the MMDA in the vicinity of
to preserve and protect the environment not only for the present but also for the future Mojica St. and Pres. Osmeña Highway, and prepare for site inspection.
generations to come.
2) The DOE shall perform the following undertakings:
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 a. Conduct onsite inspection of the pipeline right-of-way, the area around the WOPL and
appellate court's recommendation on how the issues should be resolved, and not the the equipment installed underground or aboveground.
adjudication by this Court, there is nothing for the appellate court to reconsider.
b. Review and check the condition of the 22 patches reinforced with Clockspring sleeves
As to petitioner's October 2, 2013 Motion for Reconsideration with Motion for by performing the following:
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 i. Determine the location of the sleeves
other arguments raised by the parties.
ii. Review the procedure for the repair of the sleeves
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 iii. Inspect the areas where the affected portions of the WOPL are located and which are
Court of Appeals' recommendations, embodied in its December 21, 2012 Report and easily accessible.
Recommendation, are hereby ADOPTED with the following MODIFICATIONS:
c. Inspect onsite the cathodic protection rectifier to check the following:
I. The Department of Energy (DOE) is hereby ORDERED to oversee the strict
implementation of the following activities: i. old and current readings

A. Preparatory to the Test Run of the entire stretch of the WOPL: ii. the segment/s covered by the cathodic protection system

1) FPIC shall perform the following: iii. review the criteria for prioritization of corrective action.

a. Continue submission of monitoring charts, data/reading, accomplishment reports, d. Observe and witness the running/operation of the intelligent and cleaning pigs.
and project status for all related activities/works. Respond to comments and prepare for
site inspection. 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. 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 B. During the Actual Test Run:
monitoring wells and boreholes.
1) FPIC shall perform the following:
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 a. Perform Cleaning Pig run and witness the launching and receiving of the intelligent
pipelines, dents and welded joints, as well other notable factors, circumstances, or and cleaning pigs.
exposure to stresses. d. Set up additional boreholes and monitoring wells sufficient to

98
b. Demonstrate and observe the various pressure and leakage tests, including the and the Metals Industry Research and Development Center (MIRDC), both under the
following: Department of Science and Technology (DOST), the Environmental Management Bureau
(EMB) of the Department of Environment and Natural Resources (DENR), the Bureau of
i. "Blocked-in pressure test" or the pressure test conducted while all the WOPL's Design (BOD) of the Department of Public Works and Highways (DPWH), the University
openings are blocked or closed off; and 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
ii. "In-operation test" or the hourly monitoring of pressure rating after the pipeline is this Court shall likewise be furnished by FPIC with the monthly reports. This shall include,
filled with dyed water and pressurized at a specified rate. but shall not be limited to: realignment, repairs, and maintenance works; and

c. Continue, inspect, and oversee the current gas monitoring system, or the monitoring c. continue coordination with the concerned government agencies for the
of gas flow from the boreholes and monitoring wells of the WOPL. implementation of its projects.1âwphi1

d. Check the mass or volume balance computation during WOPL test run by conducting: IV. Respondent FPIC is also DIRECTED to undertake and continue the remediation,
rehabilitation and restoration of the affected Barangay Bangkal environment until full
i. 30 days baseline data generation 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
ii. Computational analysis and monitoring of the data generated. 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
II. After FPIC has undertaken the activities prescribed in the preceding paragraph 1, the has the authority to oversee and supervise the aforesaid activities on said affected
DOE shall determine if the activities and the results of the test run warrant the re- barangay.
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 V. The Inter-Agency Committee on Environmental Health under the City Government of
operations of the pipeline. 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.
III. Once the WOPL is re-opened, the DOE shall see to it that FPIC strictly complies with
the following directives: VI. Petitioners' prayer for the creation of a special trust fund to answer for similar
contingencies in the future is DENIED.
a. Continue implementation of its Pipeline Integrity Management System (PIMS), as
reviewed by the DOE, which shall include, but shall not be limited to: SO ORDERED.

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)

99