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Natural Resources and Environmental Law

JD4203 | Atty. Ron Gutierrez

DEFORESTATION IN SM CITY BAGUIO: WHO IS THE REAL THIEF?


Change is permanent. Up to what extent of our natural environment are we willing
to trade off for these changes?
Introduction
Baguio City, popularly known as the City of Pines, is among the many areas of the
Philippines rich in natural forest. Below is an aerial view of Baguio City:

However, over the course of the 20th century the forest cover of the Philippines dropped
from 70 percent down to 20 percent, as a result of deforestation.
Deforestation is the action or process of clearing of forests. It is also defined as the
state of having been cleared of forests. 1 It is the permanent destruction of forests in
order to make the land available for other uses. 2 Deforestation has been so prevalent in
the Philippines that in total, 46 species are endangered, and four were already
eradicated completely. Only 3.2 percent of total rainforest has been left. Based on an
1 Available at http://www.merriam-webster.com/dictionary/deforestation. Last accessed October 3, 2015.)

Kaycelle Anne M. Castillo | Niezel Kathryn R. Fernando

Natural Resources and Environmental Law


JD4203 | Atty. Ron Gutierrez
analysis of land use pattern maps and a road map, an estimated 9.8 million hectares of
forests were lost in the Philippines from 1934 to 1988.
Pinning down from Philippines to Baguio City, deforestation has been put on spotlight
when groups of concerned residents of Baguio manifested petitions to stop the
uprooting and balling of 43 Alnus japonica trees, 97 pine trees, and 42 saplings to pave
way for SM City Baguios redevelopment or expansion project. The redevelopment is
set to create another building in Luneta Hill. According to SM, the expansion is certified
by the US Green Building Councils Leadership in Energy and Environmental Design
(LEED).
In January 2015, when the nation is preoccupied with the Papal visit in Metro Manila,
the giant real estate company was tagged as like a thief in the night when it proceeded
to earth-ball 60 of the 182 trees in the questioned area, following the favorable decision
of the Court of Appeals, which upheld the trial court decision dismissing the said
complaints of the groups of concerned residents of Baguio and setting aside the
previously issued Temporary Environment Protection Order (TEPO) that restrained the
implementation of the project expansion.
The removal of the trees in Baguio City was done through earthballing. Earthballing,
according to retired DENR Direcotr Rosalio Goze, is the method of transplanting trees.
In the Ecosystems Research and Development Service (ERDS) Research Digest, they
defined earthballing as the process in which seedlings or saplings are lifted with earth
around the root system.
After such earthballing of trees done by Baguios thief in the night, the concerned
residents of Baguio did not rest their case and continued to appeal their case to the
High Court. In March 2015, the Supreme Court issued a Temporary Restraining Order
(TRO) enjoining the respondent real estate company from enforcing the Court of
Appeals decision, implementing the expansion project, and performing any cutting and
balling of trees in Luneta Hill.3
The Case The Environmentalist Cry
The groups of concerned citizens of Baguio City and the SM Group are now in the battle
as to the validity of the implementation of SMs project expansion stemming from the
issued Tree Cutting and Earthballing Permit to SM, which was favored upon by the RTC
and Court of Appeals Decision.

2 Available at http://www.livescience.com/27692-deforestation.html. Last accessed October 3, 2015.


3Available at http://baguioheraldexpress.com/news/city/sc-stops-baguio-mall-expansionproject. Last accessed October 15, 2015.

Kaycelle Anne M. Castillo | Niezel Kathryn R. Fernando

Natural Resources and Environmental Law


JD4203 | Atty. Ron Gutierrez
The complainants said that in general, the issue raised awareness among the people of
Baguio on the ill effects of corporate greed on the environment.
Each side has their own version of contentions:
The Complainants Concerned residents

Adverse effect on the environment and irreparable damage.


Exacerbation of the aerial situation in Session Road that will be detrimental to the
health of the residents of the City of Baguio.
Regularity of the issuance of the Tree Cutting and Earth-Balling Permit.
Violation of the Zoning Ordinance of Baguio City
Violation of the Local Government Code Section 27, in relation to Section 26.

The Defendants SM Group

Permits were issued based on strict compliance with applicable rules and
regulations.
Compliance with the Tree Cutting and Earth-balling permit by conducting public
consultations.
Various measures to mitigate any probable impact of the removal of the affected
trees, like reforestation efforts within SM City Baguio premises and even in other
parts of the country.
The benefits of the Expansion project far outweigh any likely impact that the
removal of the affected trees will bring to the environment in line with their
advocacy for environmental protection and sustainable development.

Applicable Laws
The 1987 Constitution
Section 15. The State shall protect and promote the right to health of the people and
instill health consciousness among them.4
Section 16. The State shall protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature. 5

Executive Order No. 23, s. 2011


4 Article II, Section 15, 1987 Consitution of the Philippines.
5 Article II, Section 15, 1987 Consitution of the Philippines.

Kaycelle Anne M. Castillo | Niezel Kathryn R. Fernando

Natural Resources and Environmental Law


JD4203 | Atty. Ron Gutierrez

Section 2.2. The DENR is likewise prohibited from issuing/renewing tree cutting permits
in all natural and residual forests nationwide, except for clearing of road right of way by
the DPWH, site preparation for tree plantations, silvicultural treatment and similar
activities, provided that all logs derived from the said cutting permits shall be turned
over to the DENR for proper disposal. Tree cutting associated with cultural practices
pursuant to the indigenous Peoples Right Act (IPRA Law) may be allowed only subject
to strict compliance with existing guidelines of the DENR.
Republic Act No. 3571
The law that prohibits and punishes the cutting, destroying or injuring of planted or
growing trees, flowering plants and shrubs or plants of scenic values along public roads,
in plazas, parks, school premises or in any other public ground.
Republic Act No. 7160 The Local Government Code of the Philippines
Section 26. Duty of National Government Agencies in the Maintenance of Ecological
Balance. - It shall be the duty of every national agency or government-owned or
controlled corporation authorizing or involved in the planning and implementation of any
project or program that may cause pollution, climatic change, depletion of nonrenewable resources, loss of crop land, rangeland, or forest cover, and extinction of
animal or plant species, to consult with the local government units, nongovernmental
organizations, and other sectors concerned and explain the goals and objectives of the
project or program, its impact upon the people and the community in terms of
environmental or ecological balance, and the measures that will be undertaken to
prevent or minimize the adverse effects thereof.
Section 27. Prior Consultations Required. - No project or program shall be implemented
by government authorities unless the consultations mentioned in Sections 2 (c) and 26
hereof are complied with, and prior approval of the sanggunian concerned is obtained:
Provided, That occupants in areas where such projects are to be implemented shall not
be evicted unless appropriate relocation sites have been provided, in accordance with
the provisions of the Constitution.
DENR Administrative Order No. 2003-30
The administrative issuance that provides for the rules and regulations to implement the
Philippine Environmental and Impact System (EIS). This provides for the process of
application for Environment Compliance Certificate (ECC) for Environmentally Critical
Areas (ECA).
Section 6. Appeal
Any party aggrieved by the final decision on the ECC / CNC applications may, within 15
days from receipt of such decision, file an appeal on the following grounds:

Kaycelle Anne M. Castillo | Niezel Kathryn R. Fernando

Natural Resources and Environmental Law


JD4203 | Atty. Ron Gutierrez

a. Grave abuse of discretion on the part of the deciding authority, or


b. Serious errors in the review findings.
The DENR may adopt alternative conflict/dispute resolution procedures as a means to
settle grievances between proponents and aggrieved parties to avert unnecessary legal
action. Frivolous appeals shall not be countenanced. The proponent or any stakeholder
may file an appeal to the following:
Deciding Authority
EMB Regional Office Director
EMB Central Office Director
DENR Secretary

Where to file the appeal


Office of the EMB Director
Office of the DENR Secretary
Office of the President

Baguio Local Government Polcy


Process in securing Tree-cutting Permit
Letter request addressed to the City Mayor for tree-cutting (4 copies)
Whole picture of the affected tree/s and related structures.
Document as to the status of land holdings on the location of the affected tree/s.
( ) Survey plan of the lot (2 copies)
( ) Original/Transfer Certificate of Title (3 copies) or
( ) Tax Declaration (3 copies) or
( ) Townsite Application
( ) Authorization of owner of property
( ) Certificate from Barangay Captain as to the status of the land and the affected
tree/s.
Documents in case of BUILDING CONSTRUCTION/EXCAVATION and/or other
EXPANSION/IMPROVEMENTS.
( ) Approved Building Permit
( ) Approved excavation/expansion/fencing permit (3 copies)
( ) Approved Site development Plan indicating the relative location of the affected
tree/s (Blue/White Print)
( ) Environmental Compliance Certificate
Document in case of SUBDIVISION/CONDOMINIUM and/or other large related
development.
( ) Approved Subdivision Development Plan (3 copies)
( ) Approved Subdivision Road Development Permit (3 copies)
( ) Approved Site Development Plan indicating the relative location of the affected
tree/s (Blue/White Print)
( ) Environmental Compliance Certificate
Note:
The applicant or his/her representative should be available during the inspection
for the identification/scaling of the affected tree/s.

Kaycelle Anne M. Castillo | Niezel Kathryn R. Fernando

Natural Resources and Environmental Law


JD4203 | Atty. Ron Gutierrez
The applicant or his/her representative should also follow up his/her request
personally or through telephone numbers - CENRO: 442 - 7316, CEPMO: 442 8907.

Kaycelle Anne M. Castillo | Niezel Kathryn R. Fernando

Natural Resources and Environmental Law


JD4203 | Atty. Ron Gutierrez

Why The Petition Must Fail


While there is no issue as to the legal standing of the complainants since the
questioned deforestation done by SM is of transcendental importance and have
intergenerational implications, being an environmental case, this case is still likely to fail.
It appears that the complaint filed by is a premature cause of action.
The complainants did not question the issuance itself of the of the Amended
Environment Compliance Certificate through an appeal with the Secretary of the DENR
in accordance with the provisions as stated under Section 6 of DAO 2003-30.
It is to be stressed that a case filed without the exhaustion of available administrative
remedies renders a cause without the exhaustion of action premature. Consequently,
resort to the courts prior to the availing of this administrative remedy makes the cases
dismissible. Undoubtedly, this pronouncement applies to these Environmental Cases.
There was clearly no invocation of any exception to the exhaustion rule by the
complainants at any state of the proceedings. Further, they have not shown any
administrative act to show that the issuance of the Permits was patently illegal. No
correspondence whatsoever was shown to prove that the complainants had given the
government agencies a chance to remedy whatever was alleged to be improperly
performed by them. There was no showing of any impracticability or oppressiveness in
applying the doctrine.6
As to the authority of the local government, Mayor Domogan stressed that they have no
authority to stop SMs mall expansion project because it complied with all the requisites
of its project. If they order the stoppage of their project, it will open the floodgates to the
filing of administrative and criminal charges against them.
The Mayor further explained that private property owners have rights over their private
properties that must be protected and upheld pursuant to the Civil Code of the
Philippines that it is very difficult to stop the mall expansion project considering that SM
was able to secure all the necessary permits for their project
Aside from requiring SM management to post the P6 million cash bond, the DENR also
mandated SM to plant 100 assorted tree seedlings for every tree that will be cut or a
total of 6,000 tree seedlings three months after the commencement of its mall
expansion project to serve as its compensatory requirement for the trees that will be cut.
Furthermore, the Mayor said that the rights of private owners over their properties was
underscored by the CA decision which stated that public consultations are no longer

6 Available at http://getrealphilippines.com/blog/2012/12/court-dismisses-save-182s-caseagainst-sm-baguio/. Last accessed October 15, 2015.

Kaycelle Anne M. Castillo | Niezel Kathryn R. Fernando

Natural Resources and Environmental Law


JD4203 | Atty. Ron Gutierrez
required for the mall expansion project because it is being undertaken by a private entity
over its private property.
The mayor also cited that while areas in the city are to be developed for various
purposes, there are also areas that will be preserved for greenbelt purposes in order to
sustain the citys state of the environment beneficial to the present and future
generations.7
As to the violation of the Local Government Code, it is clear that Section 27 does not
apply to the case at bar because SM is a private juridical person. It is not the National
Government that pursues the project or development. As such, DENR does not
necessarily have to consult local government. DENR only assesses and grants the
Environmental Compliance Certificate (ECC) pursuant to DAO 2003-30.
As to the legality of the permit and the adverse effect to the environment, the RTC and
Court of Appeals decision stated that the complainants lacked proof to support their
claim that SM failed to comply with requirements for its expansion and also lacked proof
of damage of the planned expansion to the environment.
The Court of Appeals had ruled 8 that while while admitting that the cutting or
earthballing of said trees will indeed have a negative effect on the environment, the
evidence adduced by the SM Group would show that it will not result to irreparable
injury to the environment and detrimental to the residents of Baguio City.
It is worth to note that parts of testimony of the complainants witness, Dr. Palijon, were
substantially lifted from scientific literatures. In fact, he studied the actual health of the
subject trees, and assessed the mitigating measures based on the EPRMP as approved
by the proper regulatory agency (TSN-28 March 2011). The witness was consulted by
SMPH to study the Benguet pine and alnus trees in Luneta Hill and has examined 82 of
the subject trees around two months prior March 28, 2012 (TSN, March 28, 2012, p.
11). The witness, a duly qualified tree expert (TSN, March 28, 2012, p. 5), admitted that
there will, indeed be a reduction in the trees beneficial contributions to the environment,
if removed. He qualified, however that it is not substantial and that the environment
(TSN, March 28, 2012, p. 55). He testified that there will be no hazardous effect on the
health of the people of Baguio if the subject trees are taken out of the particular area
where SM City Baguio is located. This is because the removal will be compensated by
the green building that will be constructed, the 2.000 trees already planted in Busol
Watershed and 30,000 more trees that will be planted within the next three years (TSN,
March 28, 2012, pp. 14-15). Based on an article written by Nowak and Crane on oxygen
production by urban trees in the United States published in the Arboriculture and Urban

7 Id.
8 CA-G.R. CV No. 100245

Kaycelle Anne M. Castillo | Niezel Kathryn R. Fernando

Natural Resources and Environmental Law


JD4203 | Atty. Ron Gutierrez
Forestry Journal (Exhibit 2), the witness testified that the diminution of Oxygen will not
be substantial because of the removal of the 182 trees (TSN, March 28, 2012, p. 18.). 9
Furthermore, with regard to the legality of the permit, the Court of Appeals appreciated
the presumption of regularity.
The presumption of regularity of official acts may be rebutted by affirmative
evidence of irregularity or failure to perform a duty. The presumption,
however, prevails until it is overcome by no less than clear and convincing
evidence to the contrary. Thus, unless the presumption is rebutted, it
becomes conclusive. Every reasonable intendment will be made in support
of the presumption and in case of doubt as to an officers act being lawful or
unlawful, construction should be in favor of its lawfulness.
In this case, the presumption remains unrebutted. Appellants failed to
present clear and convincing evidence to the contrary, to show that
issuance of the Amended ECC, the Building Permit and the Tree-Cutting
and Earth-Balling Permit were tainted with irregularity. 10
What We Will Do: We Are Missing The Bigger Picture
The damage has been done. The 60 trees cut down by the thief in the night cannot be
undone anymore. The thrust now is to weigh between economic development and
environmental protection.
The following may be done:

If the laws will permit correction, the law should be clearcut as to the non-permission
of earthballing of full-grown trees.
Appreciate good faith of SM as to its commitment:
o To plant pine seedlings as replacement of the 60 pine trees it cut.
o Several environment-friendly features of the mall expansion
Improved sewage treatment plant
Underground rainwater collection system/catchment tank (to help
compensate for the tree cutting needed to clear space to build the
establishment)
Sky garden
Design to prevent topsoil erosion.
Green walls with live plants
Sewage treatment plant

9 Id.
10 CA-G.R. CV No. 100245

Kaycelle Anne M. Castillo | Niezel Kathryn R. Fernando

Natural Resources and Environmental Law


JD4203 | Atty. Ron Gutierrez

Excess space of the catchment tank that will provide additional parking
that will help decongest traffic along Upper Session Road

It should be noted that people need to learn to define the issues or problems to
accurately come up with the right position and consequently, the right solutions. While it
is not ignorable, the 60 trees cut down might only be a small portion of our bigger
problem. People, if really concerned, should be more guarded and wise in choosing the
solutions to appreciate, especially that our environmental laws and regulations appear
to be drafted with so much open room to be circumvented.

Kaycelle Anne M. Castillo | Niezel Kathryn R. Fernando