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G.R. No.

79684 February 19, 1991

DIRECTOR OF LANDS and SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES (formerly


Ministry of Natural Resources), petitioners,
vs.
THE COURT OF APPEALS (Third Division) and B.A. GONZALES SURVEYING CO., INC., respondents.

Ramon A. Gonzales for private respondent.

SARMIENTO, J.:

This is a petition for review on certiorari assailing the decision dated April 3, 1987 of the respondent
court, 1 as well as its resolution dated August 27, 1987 denying the petitioners' motion for
reconsideration, the dispositive portion of which decision reads as follows:

WHEREFORE, the instant Petition is hereby GRANTED. The restraining order promulgated by this Court
on November 3, 1986 restraining the public respondents from issuing any award to the private
respondents as the winning bidders in that public bidding held on October 24, 1986 or in any manner
implementing by the public and private respondents the results thereof, is hereby converted into a
preliminary injunction and upon the filing by the petitioner and approval by this Court of an injunction
bond in the amount of P30,000.00, the preliminary injunction shall remain permanent until the Minister
of Natural Resources shall have acted, as he is hereby directed to act, on the appeals of the petitioner
from the Orders of respondent Director of Lands dated June 20, 1977 (Numancia project) and April 14,
1983 (Valderama project). With costs against private respondents.

SO ORDERED.

The facts are undisputed.

The petitioners Director of Lands and the Secretary of Environment and Natural Resources entered into
a contract on June 30,1973 with the private respondent B.A. Gonzalez Surveying Company for which the
latter was bound to execute a public land subdivision mapping (Plsm) of the alienable and disposable
lands in the Municipality of Valderama, Antique, Blk. I-IIII, L.C. No. 819, for and in consideration of the
amount of P183,818.00. 2

On January 28, 1974, the private respondent was likewise contracted by the petitioners to do the photo-
cadastral mapping (Pcadm) of Project PCADM-493-D in Numancia, Aklan, for the sum of P130,000.00. 3

However, despite written demands from the Bureau of Lands to the private respondent to commence
the Numancia, Aklan Pcadm project, the latter failed to do so; consequently, in an order dated February
7, 1977, the former cancelled the contract with regard to the said project and declared the performance
bond No. BCICI-3323 as forfeited. 4
On a motion for reconsideration filed by the private respondent, the Director of Lands reinstated the
said contract on June 20, 1977 without however granting the company's request for a price adjustment,
which denial the private respondent seasonably appealed to the Secretary of Environment and Natural
Resources. This appeal is pending.

On April 14, 1983, the Director of Lands likewise scrapped the Valderama Plsm contract because of the
non-completion of the project despite the grant of repeated extensions totalling 1,200 days. 5

Similarly, the private respondent appealed the cancellation of the said contract to the Secretary of
Environment and Natural Resources, where the appeal also still remains pending.

Meanwhile, without both appeals being resolved, the Director of Lands conducted a public bidding for
the cadastral survey of several municipalities including the Municipality of Numancia, Aklan and the
Municipality of Valderama, Antique. In the said bidding, Armando Villamayor and Cristina Matuod were
declared as the successful bidders for the Numancia and Valderama projects, respectively.

Thereupon, the private respondent filed a petition for prohibition and mandamus with a prayer for a
temporary restraining order with the Court of Appeals docketed as CA-G.R. No. 10421, alleging that the
Director of Lands acted without or in excess of jurisdiction in awarding the said cadastral survey projects
to other persons while the appeals of the private respondent remain pending.

As adverted to at the outset, the respondent Court of Appeals in its decision dated April 3, 1 987 granted
the said petition and denied in a resolution dated August 27, 1987 the petitioners' motion for
reconsideration.

Hence, this petition.

The petitioners assign the following errors 6 allegedly committed by the Court of Appeals:

RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT PUBLIC LAND SUBDIVISION MAPPING
(PLSM) AND PHOTO-CADASTRAL MAPPING (PCADM), ON ONE HAND, AND A REGULAR CADASTRAL
SURVEY, ON THE OTHER, "HAVE THE SAME PURPOSE OF REGISTERING TITLES AND AS SUCH, ONE MAY
SUBSTITUTE FOR THE OTHER (Decision, p. 4, Annex "C").

II

RESPONDENT COURT OF APPEALS ERRED IN DISREGARDING THE OPINION OF THE DIRECTOR OF LANDS
ON A MATTER WITHIN HIS EXCLUSIVE COMPETENCE AND TECHNICAL EXPERTISE AS WELL AS NLRC
RULES AND REGULATIONS, TO THE EFFECT THAT GRAPHICAL TECHNICAL DESCRIPTIONS, AS THOSE
PRODUCED FROM A PLSM OR PCADM, CANNOT BE THE BASIS OF LAND REGISTRATION.

III
RESPONDENT COURT OF APPEALS ERRED IN ENJOINING THE AWARD OF THE CADASTRAL SURVEY OF
THE MUNICIPALITIES OF VALDERAMA AND NUMANCIA TO THE WINNING BIDDERS WHICH IS A SURVEY
ENTIRELY DIFFERENT FROM THE MAPPING SURVEY CONTRACTS OF THE COMPANY WITH THE
GOVERNMENT.

IV

RESPONDENT COURT OF APPEALS ERRED IN HOLDING, IN EFFECT, THAT THE COMPANY'S MAPPING
SURVEY CONTRACTS, WHICH HAD ALREADY BEEN CANCELLED, CONSTITUTE A BAR TO THE CADASTRAL
SURVEY OF THE MUNICIPALITIES OF VALDERAMA AND NUMANCIA, THEREBY PRE-EMPTING THE
SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES IN DETERMINING THE MERITS OF THE
COMPANY'S APPEALS.

The petition is impressed with merit.

The four errors assigned by the Solicitor General appearing for the public officials-petitioners may be
integrated into the sole issue as to whether or not the respondent court erred in holding that the
Director of Lands acted without or in excess of his jurisdiction or with grave abuse of discretion in
allowing the award of the cadastral survey projects to new contractors involving lands subject to prior
mapping projects with another contractor (the private respondent) whose contracts are involved in a
pending appeal to the Secretary of Environment and Natural Resources.

The respondent court, in sustaining the private respondent, asseverated that while cadastral survey on
one hand, and the Pcadm and the Plsm projects on the other, are classified differently, i.e., the former
being numerical cadastre and the latter as graphical, both projects nonetheless "have the same purpose
of registering titles and as such, one may substitute for the other. Accordingly, allowing the award of the
cadastral survey projects to other contractors will render unnecessary the pending mapping survey
contracts of the government with the petitioner (private respondent herein), as if the same were
already awarded to others." 7

We do not think so. Given the premises that both projects, mapping and cadastral survey, have the
same purpose of registering titles and that one may substitute for the other, do not justify the sweeping
conclusion that the undertaking of one would render the other unnecessary.

The question on the necessity of either or both projects must be better addressed to the sound
discretion of the proper administrative officials who admittedly have the competence and technical
expertise on the matters. In the case at bar, the petitioner Director of Lands is "the official vested with
direct and executive control of the disposition of the lands of the public domain." 8 Specifically, Section 4
of Commonwealth Act No. 141 provides that . . . [T]he Director of Lands shall have direct executive
control of the survey, classification, lease, sale, or any form of concession or disposition and
management of the public domain, and his decisions as to questions of fact shall be conclusive when
approved by the Secretary of Agriculture and Commerce (now the Secretary of Environment and Natural
Resources)."
We likewise take cognizance of the wealth of jurisprudence on this doctrine of primary administrative
jurisdiction and exhaustion of administrative remedies. The Court has consistently held that "acts of an
administrative agency must not casually be over-turned by a court, and a court should as a rule not
substitute its judgment for that of the administrative agency acting within the parameters of its own
competence," 9 unless "there be a clear showing of arbitrary action or palpable and serious error." 10 In
similar vein, we reiterated recently the rule that the findings of fact of quasi-judicial agencies which have
acquired expertise because their jurisdiction is confined to specific matters, in the present case cadastral
surveys and mappings and land registration, are accorded not only respect but more often than not
even finality. 11

On the other hand, the private respondent claims that his case is an exception and invokes Leongson vs.
Court of Appeals12 which states that "once the actuation of an administrative official or administrative
board or agency is tainted by a failure to abide by the command of the law, then, it is incumbent on the
court's of justice to set matters right, with the Tribunal having the last say on the matter."

But ironically, it is precisely the "command of the law" that the Director of Lands sought to implement
when the respondent court enjoined the former from pushing through with the award of the cadastral
survey projects. We have quoted earlier the provisions of Section 4 of Commonwealth Act No. 141 [The
Public Land Law], which explicitly empower and command the Director of Lands to have the direct
executive control of the survey and classification, inter alia, of lands of the public domain. Moreover, in
the same law, in Section 6 thereof, "[T]he Director of Lands, with the approval of the Secretary of
Agriculture and Commerce (now Secretary of Environment and Natural Resources) shall prepare and
issue such forms, instructions, rules, and regulations consistent with this Act, as may be necessary and
proper to carry into effect the provisions thereof and for the conduct of proceedings arising under such
provisions."

Aside from these "command(s) of the law" giving to the Director of Lands the "direct executive control"
of the subject matter of the controversy in this case, the Land Registration Commission (LRC) requires in
its Circulars 13Nos. 371 (1980), 394 (1981), and 32 (1983) the full and complete technical description of
lands prior to their registration. The said requirement can only be accomplished through the conduct of
a regular cadastral survey which, as aforesaid, is under the direct executive control of the Director of
Lands.

Moreover, the respondent court admits that mapping projects and cadastral surveys are classified
differently. That is correct because indeed there exists real distinctions between these mapping and
cadastral survey projects. Due to these distinctions, the mapping or graphical survey would apply more
to pre-cadastral operations and the numerical one to the regular cadastral survey proper. These
distinctions may be more easily appreciated by a scrutiny of the respective program of activities in each
of these three technical endeavors.

I. Photo-Cadastral Mapping Project (Pcadm)

1. sub-lot identification and delineation of tenanted private agricultural lands primarily devoted to rice
and/or corn (photo-sketching for land reform);
2. project controls of secondary precision only;

3. establishment of photo control points for every photograph by tertiary traverse from control stations;

4. monumenting of lots claimed as private or public lands and sketching on photo-maps;

5. numerical survey of the residential, commercial and industrial lots in the poblacion and barrios,
preparation of cadastral maps from sketches on maps, and mapping by ground method of covered
areas;

6. establishment of political boundary monuments of secondary survey controls;

7. preparation of the complete mapping returns.

I-A. Public Land Subdivision Mapping Project (Plsm)

1. sub-lot identification and delineation and tenanted private agricultural lands primarily devoted to rice
and/or corn (sketching for land reform) and sketching of lots claimed as private or public lands;

2. project controls of tertiary precision only;

3. Monumenting of corners of lots claimed as private or public lands;

4. Numerical survey of the residential lots in the poblacion and barrios;

5. Establishment of political boundary monuments by tertiary survey controls;

6. The preparation of the complete mapping returns.

II. Scope of Work Cadastral Survey Project

1. Sketching by transit and stadia or any acceptable method of lots claimed as private or public lands;

2. Project controls shall be of primary precision;

3. Monumenting of corners of lots claimed as private, government or public land;

4. Numerical survey of all lots including parcels covered by Operation Land Transfer (OLT) whether or
not previously subjected to PMS;

5. Survey of foreshore areas as a strip indicating on the cadastral map areas covered by existing lease
applications;

6. Establishment of political boundary monuments and survey thereof by secondary control;

7. Accomplishment of land use maps, questionnaire for land use inventory and land use summary
report;
8. Preparation and submittal of the complete survey returns of the cases submitted for verification and
approval;

9. Preparation of overlays on drafting film of CMs containing OLT areas and list of claimants thereof.

An analysis of above list depicts that the greater bulk of the activities in Plsm and Pcadm projects
is sketching; whereas, in a regular cadastral survey, the entire area of the municipality is subjected to
a numerical survey. While Plsm and Pcadm projects lead to the preparation of mere
graphical sketches or maps, a cadastral surveyresults in the preparation of complete survey returns and
technical descriptions of individual lots necessary for registration purposes. 14

But even granting arguendo that the Plsm and Pcadm projects on the one hand, and the cadastral
survey on the other, are similar activities, there is no legal bar for the private respondent, assuming that
the Secretary of Environment and Natural Resources resolves the appeals in its favor, to finish the
mapping projects and then demand the corresponding remuneration from the Director of Lands. In the
same way, compensation would be due to the winning bidders in question once their own cadastral
survey projects would have been accomplished. In case the Director of Lands fails to pay upon
fulfillment of the said contracts, then any contractor may validly resort to judicial action to enforce its
legitimate demands.

Meanwhile, the proper remedy of the private respondent would be to pursue promptly its appeals with
the Secretary of Environment and Natural Resources as regards its cancelled and questioned contracts
rather than seek judicial imprimatur to its improper interference with administrative prerogatives and
thus provide a convenient cover-up for its breaches of its own contractual obligations.

Notwithstanding the private respondent's dubious attitude in not participating in the bidding in
question, he could have also appealed the conduct of the said bidding to the Secretary of Environment
and Natural Resources as was the case in his Plsm and Pcadm contracts with the government and
asserted therein that the same would be prejudicial to his interests.

In sum, the respondent court committed a reversible error in stopping the implementation of the results
of the bidding for the cadastral survey projects conducted by the Director of Lands. The said injunction
issued by the respondent court constitutes a violation of the doctrine of primary administrative
jurisdiction and defeats the very purpose thereof, which is, "not only to give the administrative agency
the opportunity to decide the controversy by itself correctly, but also to prevent unnecessary and
premature resort to the courts." 15

WHEREFORE, the petition is GRANTED and the injunction issued is hereby lifted; the Decision of the
Court of Appeals dated April 3, 1987, as well as its Resolution dated August 27, 1987, is hereby
ANNULLED and SET ASIDE. With costs against the private respondent.

SO ORDERED.

Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.


G.R. No. 111107 January 10, 1997

LOEONARDO A. PAAT, in his capacity as Officer-in-Charge (OIC), Regional Executive Director (RED),
Region 2 and JOVITO LAYUGAN, JR., in his capacity as Community Environment and Natural Resources
Officer (CENRO), both of the Department of Environment and Natural Resources (DENR), petitioners,
vs.
COURT OF APPEALS, HON. RICARDO A. BACULI in his capacity as Presiding Judge of Branch 2, Regional
Trial Court at Tuguegarao, Cagayan, and SPOUSES BIENVENIDO and VICTORIA DE
GUZMAN,respondents.

TORRES, JR., J.:

Without violating the principle of exhaustion of administrative remedies, may an action


for replevin prosper to recover a movable property which is the subject matter of an administrative
forfeiture proceeding in the Department of Environment and Natural Resources pursuant to Section 68-
A of P.D. 705, as amended, entitled The Revised Forestry Code of the Philippines?

Are the Secretary of DENR and his representatives empowered to confiscate and forfeit conveyances
used in transporting illegal forest products in favor of the government?

These are two fundamental questions presented before us for our resolution.

The controversy on hand had its incipiency on May 19, 1989 when the truck of private respondent
Victoria de Guzman while on its way to Bulacan from San Jose, Baggao, Cagayan, was seized by the
Department of Environment and Natural Resources (DENR, for brevity) personnel in Aritao, Nueva
Vizcaya because the driver could not produce the required documents for the forest products found
concealed in the truck. Petitioner Jovito Layugan, the Community Environment and Natural Resources
Officer (CENRO) in Aritao, Cagayan, issued on May 23, 1989 an order of confiscation of the truck and
gave the owner thereof fifteen (15) days within which to submit an explanation why the truck should
not be forfeited. Private respondents, however, failed to submit the required explanation. On June 22,
1989, 1 Regional Executive Director Rogelio Baggayan of DENR sustained petitioner Layugan's action of
confiscation and ordered the forfeiture of the truck invoking Section 68-A of Presidential Decree No. 705
as amended by Executive Order No. 277. Private respondents filed a letter of reconsideration dated June
28, 1989 of the June 22, 1989 order of Executive Director Baggayan, which was, however, denied in a
subsequent order of July 12, 1989. 2Subsequently, the case was brought by the petitioners to the
Secretary of DENR pursuant to private respondents' statement in their letter dated June 28, 1989 that in
case their letter for reconsideration would be denied then "this letter should be considered as an appeal
to the Secretary." 3 Pending resolution however of the appeal, a suit for replevin, docketed as Civil Case
4031, was filed by the private respondents against petitioner Layugan and Executive Director
Baggayan 4 with the Regional Trial Court, Branch 2 of Cagayan, 5 which issued a writ ordering the return
of the truck to private respondents. 6Petitioner Layugan and Executive Director Baggayan filed a motion
to dismiss with the trial court contending, inter alia, that private respondents had no cause of action for
their failure to exhaust administrative remedies. The trial court denied the motion to dismiss in an order
dated December 28, 1989. 7 Their motion for reconsideration having been likewise denied, a petition
for certiorari was filed by the petitioners with the respondent Court of Appeals which sustained the trial
court's order ruling that the question involved is purely a legal question. 8 Hence, this present
petition, 9 with prayer for temporary restraining order and/or preliminary injunction, seeking to reverse
the decision of the respondent Court of Appeals was filed by the petitioners on September 9, 1993. By
virtue of the Resolution dated September 27, 1993, 10 the prayer for the issuance of temporary
restraining order of petitioners was granted by this Court.

Invoking the doctrine of exhaustion of administrative remedies, petitioners aver that the trial court
could not legally entertain the suit for replevin because the truck was under administrative seizure
proceedings pursuant to Section 68-A of P.D. 705, as amended by E.O. 277. Private respondents, on the
other hand, would seek to avoid the operation of this principle asserting that the instant case falls within
the exception of the doctrine upon the justification that (1) due process was violated because they were
not given the chance to be heard, and (2) the seizure and forfeiture was unlawful on the grounds: (a)
that the Secretary of DENR and his representatives have no authority to confiscate and forfeit
conveyances utilized in transporting illegal forest products, and (b) that the truck as admitted by
petitioners was not used in the commission of the crime.

Upon a thorough and delicate scrutiny of the records and relevant jurisprudence on the matter, we are
of the opinion that the plea of petitioners for reversal is in order.

This Court in a long line of cases has consistently held that before a party is allowed to seek the
intervention of the court, it is a pre-condition that he should have availed of all the means of
administrative processes afforded him. Hence, if a remedy within the administrative machinery can still
be resorted to by giving the administrative officer concerned every opportunity to decide on a matter
that comes within his jurisdiction then such remedy should be exhausted first before court's judicial
power can be sought, The premature invocation of court's intervention is fatal to one's cause of
action. 11 Accordingly, absent any finding of waiver or estoppel the case is susceptible of dismissal for
lack of cause of
action. 12 This doctrine of exhaustion of administrative remedies was not without its practical and legal
reasons, for one thing, availment of administrative remedy entails lesser expenses and provides for a
speedier disposition of controversies. It is no less true to state that the courts of justice for reasons of
comity and convenience will shy away from a dispute until the system of administrative redress has
been completed and complied with so as to give the administrative agency concerned every opportunity
to correct its error and to dispose of the case. However, we are not amiss to reiterate that the principle
of exhaustion of administrative remedies as tested by a battery of cases is not an ironclad rule. This
doctrine is a relative one and its flexibility is called upon by the peculiarity and uniqueness of the factual
and circumstantial settings of a case. Hence, it is disregarded (1) when there is a violation of due
process, 13 (2) when the issue involved is purely a legal question, 14 (3) when the administrative action is
patently illegal amounting to lack or excess of jurisdiction, 15 (4) when there is estoppel on the part of
the administrative agency concerned, 16 (5) when there is irreparable injury, 17 (6) when the respondent
is a department secretary whose acts as an alter ego of the President bears the implied and assumed
approval of the latter, 18 (7) when to require exhaustion of administrative remedies would be
unreasonable, 19 (8) when it would amount to a nullification of a claim, 20 (9) when the subject matter is a
private land in land case proceedings, 21 (10) when the rule does not provide a plain, speedy and
adequate remedy, and (11) when there are circumstances indicating the urgency of judicial
intervention. 22

In the case at bar, there is no question that the controversy was pending before the Secretary of DENR
when it was forwarded to him following the denial by the petitioners of the motion for reconsideration
of private respondents through the order of July 12, 1989. In their letter of reconsideration dated June
28, 1989, 23 private respondents clearly recognize the presence of an administrative forum to which they
seek to avail, as they did avail, in the resolution of their case. The letter, reads, thus:

xxx xxx xxx

If this motion for reconsideration does not merit your favorable action, then this letter should be
considered as an appeal to the
Secretary. 24

It was easy to perceive then that the private respondents looked up to the Secretary for the review and
disposition of their case. By appealing to him, they acknowledged the existence of an adequate and
plain remedy still available and open to them in the ordinary course of the law. Thus, they cannot now,
without violating the principle of exhaustion of administrative remedies, seek court's intervention by
filing an action for replevin for the grant of their relief during the pendency of an administrative
proceedings.

Moreover, it is important to point out that the enforcement of forestry laws, rules and regulations and
the protection, development and management of forest lands fall within the primary and special
responsibilities of the Department of Environment and Natural Resources. By the very nature of its
function, the DENR should be given a free hand unperturbed by judicial intrusion to determine a
controversy which is well within its jurisdiction. The assumption by the trial court, therefore, of the
replevin suit filed by private respondents constitutes an unjustified encroachment into the domain of
the administrative agency's prerogative. The doctrine of primary jurisdiction does not warrant a court to
arrogate unto itself the authority to resolve a controversy the jurisdiction over which is initially lodged
with an administrative body of special competence. 25 In Felipe Ismael, Jr. and Co. vs. Deputy Executive
Secretary, 26 which was reiterated in the recent case of Concerned Officials of MWSS vs. Vasquez, 27 this
Court held:

Thus, while the administration grapples with the complex and multifarious problems caused by
unbriddled exploitation of these resources, the judiciary will stand clear. A long line of cases establish
the basic rule that the courts will not interfere in matters which are addressed to the sound discretion of
government agencies entrusted with the regulation of activities coming under the special technical
knowledge and training of such agencies.
To sustain the claim of private respondents would in effect bring the instant controversy beyond the
pale of the principle of exhaustion of administrative remedies and fall within the ambit of excepted
cases heretofore stated. However, considering the circumstances prevailing in this case, we can not but
rule out these assertions of private respondents to be without merit. First, they argued that there was
violation of due process because they did not receive the May 23, 1989 order of confiscation of
petitioner Layugan. This contention has no leg to stand on. Due process does not necessarily mean or
require a hearing, but simply an opportunity or right to be heard. 28 One may be heard, not solely by
verbal presentation but also, and perhaps many times more creditably and practicable than oral
argument, through pleadings. 29 In administrative proceedings moreover, technical rules of procedure
and evidence are not strictly applied; administrative process cannot be fully equated with due process in
its strict judicial sense. 30 Indeed, deprivation of due process cannot be successfully invoked where a
party was given the chance to be heard on his motion for reconsideration, 31 as in the instant case, when
private respondents were undisputedly given the opportunity to present their side when they filed a
letter of reconsideration dated June 28, 1989 which was, however, denied in an order of July 12, 1989 of
Executive Director Baggayan, In Navarro III vs. Damasco, 32 we ruled that :

The essence of due process is simply an opportunity to be heard, or as applied to administrative


proceedings, an opportunity to explain one's side or an opportunity to seek a reconsideration of the
action or ruling complained of. A formal or trial type hearing is not at all times and in all instances
essential. The requirements are satisfied when the parties are afforded fair and reasonable opportunity
to explain their side of the controversy at hand. What is frowned upon is the absolute lack of notice or
hearing.

Second, private respondents imputed the patent illegality of seizure and forfeiture of the truck because
the administrative officers of the DENR allegedly have no power to perform these acts under the law.
They insisted that only the court is authorized to confiscate and forfeit conveyances used in transporting
illegal forest products as can be gleaned from the second paragraph of Section 68 of P.D. 705, as
amended by E.O. 277. The pertinent provision reads as follows:

Sec. 68. . . .

xxx xxx xxx

The court shall further order the confiscation in favor of the government of the timber or any forest
products cut, gathered, collected, removed, or possessed, as well as
the machinery, equipments,implements and tools illegaly [sic] used in the area where the timber or
forest products are found. (Emphasis ours)

A reading, however, of the law persuades us not to go along with private respondents' thinking not only
because the aforequoted provision apparently does not mention nor include "conveyances" that can be
the subject of confiscation by the courts, but to a large extent, due to the fact that private respondents'
interpretation of the subject provision unduly restricts the clear intention of the law and inevitably
reduces the other provision of Section 68-A, which is quoted herein below:
Sec. 68-A. Administrative Authority of the Department or His Duly Authorized Representative To Order
Confiscation. In all cases of violation of this Code or other forest laws, rules and regulations,
the Department Head or his duly authorized representative, may order the confiscation of any forest
products illegally cut, gathered, removed, or possessed or abandoned, and all conveyances used either
by land, water or air in the commission of the offense and to dispose of the same in accordance with
pertinent laws, regulations and policies on the matter. (Emphasis ours)

It is, thus, clear from the foregoing provision that the Secretary and his duly authorized representatives
are given the authority to confiscate and forfeit any conveyances utilized in violating the Code or other
forest laws, rules and regulations. The phrase "to dispose of the same" is broad enough to cover the act
of forfeiting conveyances in favor of the government. The only limitation is that it should be made "in
accordance with pertinent laws, regulations or policies on the matter." In the construction of statutes, it
must be read in such a way as to give effect to the purpose projected in the statute. 33 Statutes should
be construed in the light of the object to be achieved and the evil or mischief to be suppressed, and they
should be given such construction as will advance the object, suppress the mischief, and secure the
benefits intended. 34 In this wise, the observation of the Solicitor General is significant, thus:

But precisely because of the need to make forestry laws "more responsive to present situations and
realities" and in view of the "urgency to conserve the remaining resources of the country," that the
government opted to add Section 68-A. This amendatory provision is an administrative remedy totally
separate and distinct from criminal proceedings. More than anything else, it is intended to supplant the
inadequacies that characterize enforcement of forestry laws through criminal actions. The preamble of
EO 277-the law that added Section 68-A to PD 705-is most revealing:

"WHEREAS, there is an urgency to conserve the remaining forest resources of the country for the benefit
and welfare of the present and future generations of Filipinos;

WHEREAS, our forest resources may be effectively conserved and protected through the vigilant
enforcement and implementation of our forestry laws, rules and regulations;

WHEREAS, the implementation of our forestry laws suffers from technical difficulties, due to certain
inadequacies in the penal provisions of the Revised Forestry Code of the Philippines; and

WHEREAS, to overcome this difficulties, there is a need to penalize certain acts more responsive to
present situations and realities;"

It is interesting to note that Section 68-A is a new provision authorizing the DENR to confiscate, not only
"conveyances," but forest products as well. On the other hand, confiscation of forest products by the
"court" in a criminal action has long been provided for in Section 68. If as private respondents insist, the
power on confiscation cannot be exercised except only through the court under Section 68, then Section
68-A would have no Purpose at all. Simply put, Section 68-A would not have provided any solution to the
problem perceived in EO 277, supra. 35
Private respondents, likewise, contend that the seizure was illegal because the petitioners themselves
admitted in the Order dated July 12, 1989 of Executive Director Baggayan that the truck of private
respondents was not used in the commission of the crime. This order, a copy of which was given to and
received by the counsel of private respondents, reads in part, viz.:

. . . while it is true that the truck of your client was not used by her in the commission of the crime, we
uphold your claim that the truck owner is not liable for the crime and in no case could a criminal case be
filed against her as provided under Article 309 and 310 of the Revised Penal Code. . . 36

We observed that private respondents misread the content of the aforestated order and obviously
misinterpreted the intention of petitioners. What is contemplated by the petitioners when they stated
that the truck "was not used in the commission of the crime" is that it was not used in the commission
of the crime of theft, hence, in no case can a criminal action be filed against the owner thereof for
violation of Article 309 and 310 of the Revised Penal Code. Petitioners did not eliminate the possibility
that the truck was being used in the commission of another crime, that is, the breach of Section 68 of
P.D. 705 as amended by E.O. 277. In the same order of July 12, 1989, petitioners pointed out:

. . . However, under Section 68 of P.D. 705 as amended and further amended by Executive Order No.
277 specifically provides for the confiscation of the conveyance used in the transport of forest products
not covered by the required legal documents. She may not have been involved in the cutting and
gathering of the product in question but the fact that she accepted the goods for a fee or fare the same
is therefor liable. . . 37

Private respondents, however, contended that there is no crime defined and punishable under Section
68 other than qualified theft, so that, when petitioners admitted in the July 12, 1989 order that private
respondents could not be charged for theft as provided for under Articles 309 and 310 of the Revised
Penal Code, then necessarily private respondents could not have committed an act constituting a crime
under Section 68. We disagree. For clarity, the provision of Section 68 of P.D. 705 before its amendment
by E.O. 277 and the provision of Section 1 of E.O. No. 277 amending the aforementioned Section 68 are
reproduced herein, thus:

Sec. 68. Cutting, gathering and/or collecting timber or other products without license. Any person
who shall cut, gather, collect, or remove timber or other forest products from any forest land, or timber
from alienable and disposable public lands, or from private lands, without any authority under a license
agreement, lease, license or permit, shall be guilty of qualified theft as defined and punished under
Articles 309 and 310 of the Revised Penal Code . . . (Emphasis ours; Section 68, P.D. 705 before its
amendment by E.O. 277)

Sec. 1. Section 68 of Presidential Decree No. 705, as amended, is hereby amended to read as follows:

Sec. 68. Cutting, gathering and/or collecting timber or other forest products without license. Any
person who shall cut, gather, collect, remove timber or other forest 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 without the legal documents as required under existing forest
laws and regulations, shall bepunished with the penalties imposed under Articles 309 and 310 of the
Revised Penal Code . . . (Emphasis ours; Section 1, E.O. No. 277 amending Section 68, P.D. 705 as
amended)

With the introduction of Executive Order No. 277 amending Section 68 of P.D. 705, the act of cutting,
gathering, collecting, removing, or possessing forest products without authority constitutes a distinct
offense independent now from the crime of theft under Articles 309 and 310 of the Revised Penal Code,
but the penalty to be imposed is that provided for under Article 309 and 310 of the Revised Penal Code.
This is clear from the language of Executive Order No. 277 when it eliminated the phrase "shall be guilty
of qualified theft as defined and punished under Articles 309 and 310 of the Revised Penal Code" and
inserted the words "shall be punished with the penalties imposed under Article 309 and 310 of the
Revised Penal Code". When the statute is clear and explicit, there is hardly room for any extended court
ratiocination or rationalization of the law. 38

From the foregoing disquisition, it is clear that a suit for replevin can not be sustained against the
petitioners for the subject truck taken and retained by them for administrative forfeiture proceedings in
pursuant to Section 68-A of the P.D. 705, as amended. Dismissal of the replevin suit for lack of cause of
action in view of the private respondents' failure to exhaust administrative remedies should have been
the proper course of action by the lower court instead of assuming jurisdiction over the case and
consequently issuing the writ ordering the return of the truck. Exhaustion of the remedies in the
administrative forum, being a condition precedent prior to one's recourse to the courts and more
importantly, being an element of private respondents' right of action, is too significant to be waylaid by
the lower court.

It is worth stressing at this point, that a suit for replevin is founded solely on the claim that the
defendant wrongfully withholds the property sought to be recovered. It lies to recover possession of
personal chattels that are unlawfully detained. 39 "To detain" is defined as to mean "to hold or keep in
custody," 40 and it has been held that there is tortious taking whenever there is an unlawful meddling
with the property, or an exercise or claim of dominion over it, without any pretense of authority or
right; this, without manual seizing of the property is sufficient. 41 Under the Rules of Court, it is
indispensable in replevin proceeding that the plaintiff must show by his own affidavit that he is entitled
to the possession of property, that the property is wrongfully detained by the defendant, alleging the
cause of detention, that the same has not been taken for tax assessment, or seized under execution, or
attachment, or if so seized, that it is exempt from such seizure, and the actual value of the
property. 42 Private respondents miserably failed to convince this Court that a wrongful detention of the
subject truck obtains in the instant case. It should be noted that the truck was seized by the petitioners
because it was transporting forest products without the required permit of the DENR in manifest
contravention of Section 68 of P.D. 705 as amended by E.O 277. Section 68-A of P.D. 705, as amended,
unquestionably warrants the confiscation as well as the disposition by the Secretary of DENR or his duly
authorized representatives of the conveyances used in violating the provision of forestry laws. Evidently,
the continued possession or detention of the truck by the petitioners for administrative forfeiture
proceeding is legally permissible, hence, no wrongful detention exists in the case at bar.
Moreover, the suit for replevin is never intended as a procedural tool to question the orders of
confiscation and forfeiture issued by the DENR in pursuance to the authority given under P.D. 705, as
amended. Section 8 of the said law is explicit that actions taken by the Director of the Bureau of Forest
Development concerning the enforcement of the provisions of the said law are subject to review by the
Secretary of DENR and that courts may not review the decisions of the Secretary except through a
special civil action for certiorari or prohibition. It reads:

Sec. 8. REVIEW All actions and decisions of the Director are subject to review, motu propio or upon
appeal of any person aggrieved thereby, by the Department Head whose decision shall be final and
executory after the lapse of thirty (30) days from the receipt of the aggrieved party of said decision,
unless appealed to the President in accordance with Executive Order No. 19, Series of 1966. The
Decision of the Department Head may not be reviewed by the courts except through a special civil
action for certiorari or prohibition.

WHEREFORE, the Petition is GRANTED; the Decision of the respondent Court of Appeals dated October
16, 1991 and its Resolution dated July 14, 1992 are hereby SET ASIDE AND REVERSED; the Restraining
Order promulgated on September 27, 1993 is hereby made permanent; and the Secretary of DENR is
directed to resolve the controversy with utmost dispatch.

SO ORDERED.

Regalado, Romero, Puno and Mendoza, JJ., concur.

G.R. No. 115634 April 27, 2000

FELIPE CALUB and RICARDO VALENCIA, DEPARTMENT of ENVIRONMENT and NATURAL RESOURCES
(DENR), CATBALOGAN, SAMAR, petitioners,
vs.
COURT OF APPEALS, MANUELA T. BABALCON, and CONSTANCIO ABUGANDA, respondents.

QUISUMBING, J.:

For review is the decision1 dated May 27, 1994, of the Court of Appeals in CA-G.R. SP No. 29191, denying
the petition filed by herein petitioners for certiorari, prohibition and mandamus, in order to annul the
Order dated May 27, 1992, by the Regional Trial Court of Catbalogan, Samar. Said Order had denied
petitioners' (a) Motion to Dismiss the replevin case filed by herein private respondents, as well as (b)
petitioners Motion for Reconsideration of the Order of said trial court dated April 24, 1992, granting an
application for a Writ of replevin.2

The pertinent facts of the case, borne by the records, are as follows:
On January 28, 1992, the Forest Protection and Law Enforcement Team of the Community Environment
and Natural Resources Office (CENRO) of the DENR apprehended two (2) motor vehicles, described as
follows:

1. Motor Vehicle with Plate No. HAK-733 loaded with one thousand and twenty six (1,026) board feet of
illegally sourced lumber valued at P8,544.75, being driven by one Pio Gabon and owned by [a certain]
Jose Vargas.

2. Motor Vehicle with Plate No. FCN-143 loaded with one thousand two hundred twenty four and ninety
seven (1,224.97) board feet of illegally-sourced lumber valued at P9,187.27, being driven by one
Constancio Abuganda and owned by [a certain] Manuela Babalcon. . . .3

Constancio Abuganda and Pio Gabon, the drivers of the vehicles, failed to present proper documents
and/or licenses. Thus, the apprehending team seized and impounded the vehicles and its load of lumber
at the DENR-PENR (Department of Environment and Natural Resources-Provincial Environment and
Natural Resources) Office in Catbalogan.4 Seizure receipts were issued but the drivers refused to accept
the receipts.5 Felipe Calub, Provincial Environment and Natural Resources Officer, then filed before the
Provincial Prosecutor's Office in Samar, a criminal complaint against Abuganda, in Criminal Case No.
3795, for violation of Section 68 [78], Presidential Decree 705 as amended by Executive Order 277,
otherwise known as the Revised Forestry Code.6

On January 31, 1992, the impounded vehicles were forcibly taken by Gabon and Abuganda from the
custody of the DENR, prompting DENR Officer Calub this time to file a criminal complaint for grave
coercion against Gabon and Abuganda. The complaint was, however, dismissed by the Public
Prosecutor.7

On February 11, 1992, one of the two vehicles, with plate number FCN 143, was again apprehended by a
composite team of DENR-CENR in Catbalogan and Philippine Army elements of the 802nd Infantry
Brigade at Barangay Buray, Paranas, Samar. It was again loaded with forest products with an equivalent
volume of 1,005.47 board feet, valued at P10,054.70. Calub duly filed a criminal complaint against
Constancio Abuganda, a certain Abegonia, and several John Does, in Criminal Case No. 3625, for
violation of Section 68 [78], Presidential Decree 705 as amended by Executive Order 277, otherwise
known as the Revised Forestry Code.8

In Criminal Cases Nos. 3795 and 3625, however, Abegonia and Abuganda were acquitted on the ground
of reasonable doubt. But note the trial court ordered that a copy of the decision be furnished the
Secretary of Justice, in order that the necessary criminal action may be filed against Noe Pagarao and all
other persons responsible for violation of the Revised Forestry Code. For it appeared that it was Pagarao
who chartered the subject vehicle and ordered that cut timber be loaded on it.9

Subsequently, herein private respondents Manuela Babalcon, the vehicle owner, and Constancio
Abuganda, the driver, filed a complaint for the recovery of possession of the two (2) impounded vehicles
with an application for replevin against herein petitioners before the RTC of Catbalogan. The trial court
granted the application for replevin and issued the corresponding writ in an Order dated April 24,
1992. 10 Petitioners filed a motion to dismiss which was denied by the trial court. 11

Thus, on June 15, 1992, petitioners filed with the Supreme Court the present Petition for Certiorari,
Prohibition and Mandamus with application for Preliminary Injunction and/or a Temporary Restraining
Order. The Court issued a TRO, enjoining respondent RTC judge from conducting further proceedings in
the civil case for replevin; and enjoining private respondents from taking or attempting to take the
motor vehicles and forest products seized from the custody of the petitioners. The Court further
instructed the petitioners to see to it that the motor vehicles and other forest products seized are kept
in a secured place and protected from deterioration, said property being in custodia legis and subject to
the direct order of the Supreme Court. 12 In a Resolution issued on September 28, 1992, the Court
referred said petition to respondent appellate court for appropriate disposition. 13

On May 27, 1994, the Court of Appeals denied said petition for lack of merit. It ruled that the mere
seizure of a motor vehicle pursuant to the authority granted by Section 68 [78] of P.D. No. 705 as
amended by E.O. No. 277 does not automatically place said conveyance in custodia legis. According to
the appellate court, such authority of the Department Head of the DENR or his duly authorized
representative to order the confiscation and disposition of illegally obtained forest products and the
conveyance used for that purpose is not absolute and unqualified. It is subject to pertinent laws,
regulations, or policies on that matter, added the appellate court. The DENR Administrative Order No.
59, series of 1990, is one such regulation, the appellate court said. For it prescribes the guidelines in the
confiscation, forfeiture and disposition of conveyances used in the commission of offenses penalized
under Section 68 [78] of P.D. No. 705 as amended by E.O. No. 277. 14

Additionally, respondent Court of Appeals noted that the petitioners failed to observe the procedure
outlined in DENR Administrative Order No. 59, series of 1990. They were unable to submit a report of
the seizure to the DENR Secretary, to give a written notice to the owner of the vehicle, and to render a
report of their findings and recommendations to the Secretary. Moreover, petitioners' failure to comply
with the procedure laid down by DENR Administrative Order No. 59, series of 1990, was confirmed by
the admission of petitioners' counsel that no confiscation order has been issued prior to the seizure of
the vehicle and the filing of the replevin suit. Therefore, in failing to follow such procedure, according to
the appellate court, the subject vehicles could not be considered in custodia legis. 15

Respondent Court of Appeals also found no merit in petitioners' claim that private respondents'
complaint for replevin is a suit against the State. Accordingly, petitioners could not shield themselves
under the principle of state immunity as the property sought to be recovered in the instant suit had not
yet been lawfully adjudged forfeited in favor of the government. Moreover, according to respondent
appellate court, there could be no pecuniary liability nor loss of property that could ensue against the
government. It reasoned that a suit against a public officer who acted illegally or beyond the scope of his
authority could not be considered a suit against the State; and that a public officer might be sued for
illegally seizing or withholding the possession of the property of another. 16
Respondent court brushed aside other grounds raised by petitioners based on the claim that the subject
vehicles were validly seized and held in custody because they were contradicted by its own
findings. 17 Their petition was found without merit. 18

Now, before us, the petitioners assign the following errors: 19

(1) THE COURT OF APPEALS ERRED IN HOLDING THAT MERE SEIZURE OF A CONVEYANCE PURSUANT TO
SECTION 68-A [78-A] OF P.D. NO. 705 AS AMENDED BY EXECUTIVE ORDER 277 DOES NOT PLACE SAID
CONVEYANCE IN CUSTODIA LEGIS;

(2) THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE OPERATIVE ACT GIVING RISE FOR THE
SUBJECT CONVEYANCE TO BE IN CUSTODIA LEGIS IS ITS LAWFUL SEIZURE BY THE DENR PURSUANT TO
SECTION 68-A [78-A] OF P.D. NO. 705, AS AMENDED BY E.O. NO. 277; AND

(3) THE COURT OF APPEALS ERRED IN HOLDING THAT THE COMPLAINT FOR REPLEVIN AGAINST THE
PETITIONERS IS NOT A SUIT AGAINST THE STATE.

In brief, the pertinent issues for our consideration are:

(1) Whether or not the DENR-seized motor vehicle, with plate number FCN 143, is in custodia legis.

(2) Whether or not the complaint for the recovery of possession of impounded vehicles, with an
application for replevin, is a suit against the State.

We will now resolve both issues.

The Revised Forestry Code authorizes the DENR to seize all conveyances used in the commission of an
offense in violation of Section 78. Section 78 states:

Sec. 78. Cutting, Gathering, and/or Collecting Timber, or Other Forest Products without License. Any
person who shall cut, gather, collect, remove timber or other forest products from any forestland, or
timber from alienable or disposable public land, or from private land, without any authority, or possess
timber or other forest products without the legal documents as required under existing forest laws and
regulations, shall be punished with the penalties imposed under Articles 309 and 310 of the Revised
Penal Code. . .

The Court shall further order the confiscation in favor of the government of the timber or any forest
products cut, gathered, collected, removed, or possessed, as well as the machinery, equipment,
implements and tools illegally used in the area where the timber or forest products are found.

This provision makes mere possession of timber or other forest products without the accompanying
legal documents unlawful and punishable with the penalties imposed for the crime of theft, as
prescribed in Articles 309-310 of the Revised Penal Code. In the present case, the subject vehicles were
loaded with forest products at the time of the seizure. But admittedly no permit evidencing authority to
possess and transport said load of forest products was duly presented. These products, in turn, were
deemed illegally sourced. Thus there was a prima facie violation of Section 68 [78] of the Revised
Forestry Code, although as found by the trial court, the persons responsible for said violation were not
the ones charged by the public prosecutor.

The corresponding authority of the DENR to seize all conveyances used in the commission of an offense
in violation of Section 78 of the Revised Forestry Code is pursuant to Sections 78-A and 89 of the same
Code. They read as follows:

Sec. 78-A. Administrative Authority of the Department Head or His Duly Authorized Representative to
Order Confiscation. In all cases of violation of this Code or other forest laws, rules and regulations, the
Department Head or his duly authorized representative, may order the confiscation of any forest
products illegally cut, gathered, removed, or possessed or abandoned, and all conveyances used either
by land, water or air in the commission of the offense and to dispose of the same in accordance with
pertinent laws, regulations or policies on the matter.

Sec. 89. Arrest; Institution of criminal actions. A forest officer or employee of the Bureau
[Department] or any personnel of the Philippine Constabulary/Philippine National Police shall arrest
even without warrant any person who has committed or is committing in his presence any of the
offenses defined in this Chapter. He shall also seize and confiscate, in favor of the Government, the tools
and equipment used in committing the offense. . . [Emphasis supplied.]

Note that DENR Administrative Order No. 59, series of 1990, implements Sections 78-A and 89 of the
Forestry Code, as follows:

Sec. 2. Conveyances Subject to Confiscation and Forfeiture. All conveyances used in the transport of
any forest product obtained or gathered illegally whether or not covered with transport documents,
found spurious or irregular in accordance with Sec. 68-A [78-A] of P.D. No. 705, shall be confiscated in
favor of the government or disposed of in accordance with pertinent laws, regulations or policies on the
matter.

Sec. 4. Who are Authorized to Seize Conveyance. The Secretary or his duly authorized representative
such as the forest officers and/or natural resources officers, or deputized officers of the DENR
areauthorized to seize said conveyances subject to policies and guidelines pertinent thereto. Deputized
military personnel and officials of other agencies apprehending illegal logs and other forest products and
their conveyances shall notify the nearest DENR field offices, and turn oversaid forest products and
conveyances for proper action and disposition. In case where the apprehension is made by DENR field
officer, the conveyance shall be deposited with the nearest CENRO/PENRO/RED Office as the case may
be, for safekeeping wherever it is most convenient and secured. [Emphasis supplied.]

Upon apprehension of the illegally-cut timber while being transported without pertinent documents
that could evidence title to or right to possession of said timber, a warrantless seizure of the involved
vehicles and their load was allowed under Section 78 and 89 of the Revised Forestry Code.

Note further that petitioners' failure to observe the procedure outlined in DENR Administrative Order
No. 59, series of 1990 was justifiably explained. Petitioners did not submit a report of the seizure to the
Secretary nor give a written notice to the owner of the vehicle because on the 3rd day following the
seizure, Gabon and Abuganda, drivers of the seized vehicles, forcibly took the impounded vehicles from
the custody of the DENR. Then again, when one of the motor vehicles was apprehended and impounded
for the second time, the petitioners, again were not able to report the seizure to the DENR Secretary nor
give a written notice to the owner of the vehicle because private respondents immediately went to
court and applied for a writ of replevin. The seizure of the vehicles and their load was done upon their
apprehension for a violation of the Revised Forestry Code. It would be absurd to require a confiscation
order or notice and hearing before said seizure could be effected under the circumstances.

Since there was a violation of the Revised Forestry Code and the seizure was in accordance with law, in
our view the subject vehicles were validly deemed in custodia legis. It could not be subject to an action
for replevin. For it is property lawfully taken by virtue of legal process and considered in the custody of
the law, and not otherwise. 20

In Mamanteo, et. al. v. Deputy Sheriff Magumun, A.M. No. P-98-1264, promulgated on July 28, 1999, the
case involves property to be seized by a Deputy Sheriff in a replevin suit. But said property were already
impounded by the DENR due to violation of forestry laws and, in fact, already forfeited in favor of the
government by order of the DENR. We said that such property was deemed in custodia legis. The sheriff
could not insist on seizing the property already subject of a prior warrant of seizure. The appropriate
action should be for the sheriff to inform the trial court of the situation by way of partial Sheriff's
Return, and wait for the judge's instructions on the proper procedure to be observed.

Note that property that is validly deposited in custodia legis cannot be the subject of a replevin suit.
In Mamanteo v. Deputy Sheriff Magumun, we elucidated further:

. . . the writ of replevin has been repeatedly used by unscrupulous plaintiffs to retrieve their chattel
earlier taken for violation of the Tariff and Customs Code, tax assessment, attachment or execution.
Officers of the court, from the presiding judge to the sheriff, are implored to be vigilant in their
execution of the law otherwise, as in this case, valid seizure and forfeiture proceedings could easily be
undermined by the simple devise of a writ of replevin. . . 21

On the second issue, is the complaint for the recovery of possession of the two impounded vehicles,
with an application for replevin, a suit against the State?

Well established is the doctrine that the State may not be sued without its consent. 22 And a suit against
a public officer for his official acts is, in effect, a suit against the State if its purpose is to hold the State
ultimately liable. 23However, the protection afforded to public officers by this doctrine generally applies
only to activities within the scope of their authority in good faith and without willfulness, malice or
corruption. 24 In the present case, the acts for which the petitioners are being called to account were
performed by them in the discharge of their official duties. The acts in question are clearly official in
nature. 25 In implementing and enforcing Sections 78-A and 89 of the Forestry Code through the seizure
carried out, petitioners were performing their duties and functions as officers of the DENR, and did so
within the limits of their authority. There was no malice nor bad faith on their part. Hence, a suit against
the petitioners who represent the DENR is a suit against the State. It cannot prosper without the State's
consent.

Given the circumstances in this case, we need not pursue the Office of the Solicitor General's line for the
defense of petitioners concerning exhaustion of administrative remedies. We ought only to recall that
exhaustion must be raised at the earliest time possible, even before filing the answer to the complaint
or pleading asserting a claim, by a motion to dismiss. 26 If not invoked at the proper time, this ground for
dismissal could be deemed waived and the court could take cognizance of the case and try it. 27

ACCORDINGLY, the Petition is GRANTED, and the assailed Decision of the Court of Appeals in CA-G.R. SP
No. 29191 is SET ASIDE.1wphi1 Consequently, the Order issued by the Regional Trial Court of
Catbalogan, dated May 27, 1992, and the Writ of replevin issued in the Order dated April 24, 1992, are
ANNULLED. The Sheriff of the Regional Trial Court of Catbalogan, Branch 29, is directed to take
possession of the subject motor vehicle, with plate number FCN 143, for delivery to the custody of and
appropriate disposition by petitioners. Let a copy of this decision be provided the Honorable Secretary
of Justice for his appropriate action, against any and all persons responsible for the abovecited violation
of the Revised Forestry Code.

Costs against private respondents.1wphi1.nt

SO ORDERED.

Bellosillo, Mendoza, Buena and De Leon, Jr., JJ., concur.

G.R. No. 137174 July 10, 2000

REPUBLIC OF THE PHILIPPINES, Represented by the POLLUTION ADJUDICATION BOARD


(DENR),petitioner,
vs.
MARCOPPER MINING CORPORATION, respondent.

DECISION

GONZAGA-REYES, J.:

In this petition for review on certiorari, petitioner REPUBLIC OF THE PHILIPPINES through the Pollution
Adjudication Board of the Department of Environment and Natural Resources seeks to annul the
Decision1 of the Court of Appeals2 in CA-G.R. SP No. 44656 setting aside the Order3 of the Pollution
Adjudication Board4 in DENR-PAB Case No. 04-00597-96; as well as the Resolution5 denying
reconsideration of said Decision.

The following antecedent facts are undisputed:


Respondent Marcopper Mining Corporation (MMC) was issued a temporary permit to operate a
tailings6 sea disposal system under TPO No. POW-85-454-EJ for the period October 31, 1985 to October
21, 1986. Before it expired, MMC filed an application for the renewal thereof with the National Pollution
Control Commission (NPCC). On September 20, 1986, MMC received a telegraphic order from the NPCC
directing the former to "(i)mmediately cease and desist from discharging mine tailings into Calancan
Bay." The directive was brought about through the efforts of certain religious groups which had been
protesting MMCs tailings sea disposal system. MMC requested the NPCC to refrain from implementing
the aforesaid directive until its adoption of an alternative tailings disposal system. The NPCC granted
MMCs request and called a conference to discuss possible alternative disposal systems. Consequently,
an Environmental Technical Committee, composed of representatives from the NPCC, the Bureau of
Mines and Geo-Sciences, and MMC was created to study the feasibility of various tailings disposal
systems that may be appropriate for utilization by MMC and to submit its findings and
recommendations thereon.

Meanwhile, after the expiration of MMCs TPO No. POW-85-454-EJ on October 21, 1986, the NPCC
issued to MMC a new temporary permit, TPO No. POW-86-454-EJ dated November 11, 1986, to expire
on February 10, 1987, with the condition that "[t]he tailings disposal system shall be transferred to San
Antonio Pond within two (2) months from the date of this permit." MMC moved for the deletion of the
condition stating that it needed to develop and mine the ore deposits underneath the San Antonio pond
for it to continue its mining operations. In a letter-manifestation dated February 5, 1987, MMC
requested the NPCC for an extension of TPO No. POW-86-454-EJ and the indefinite suspension of the
condition in said permit until such time that the NPCC shall have finally resolved the NPCC case entitled
"Msgr. Rolly Oliverio, et al. vs. Marcopper Mining Corporation."

In the meantime, the NPCC was abolished by Executive Order No. 1927 dated June 10, 1987, and its
powers and functions were integrated into the Environmental Management Bureau and into the
Pollution Adjudication Board (PAB).8

On April 11, 1988, the Secretary of Environment and Natural Resources, in his capacity as Chairman of
the PAB, issued an Order directing MMC to "cease and desist from discharging mine tailings into
Calancan Bay." The order reads:

The Temporary Permit to Operate issued to Marcopper Mining Corporation expired on February 10,
1987.

Section 96 of the National Pollution Control Commission (NPCC) Rules and Regulations, which were
adopted by the Board, provides that in no case can a permit be valid for more than one (1) year.

Records show that Marcopper Mining Corporation has not filed any application for renewal of the
permit.

Marcopper Mining Corporation is hereby ordered to cease and desist from discharging mine tailings into
Calancan Bay immediately upon receipt of this Order.
SO ORDERED."9

Immediately thereafter, the DENR Undersecretary for Environment and Research issued a telegraphic
order dated April 15, 1988, enjoining immediate compliance by MMC of the cease and desist order of
April 11, 1988.

MMC appealed the above orders of April 11, 1988 and April 15, 1988 to the Office of the President,
docketed as O.P. Case No. 3802. In an Order dated May 2, 1988, the Office of the President denied
MMCs requests for issuance of restraining orders against the orders of the PAB. Consequently, MMC
filed an "Urgent Ex-Parte Partial Motion for Reconsideration" dated May 6, 1988, seeking the
reconsideration of the above Order. In an Order dated May 13, 1988, the Office of the President granted
the above partial motion for reconsideration, thus:

"WHEREFORE, the instant "Urgent Ex-Parte Motion for Reconsideration" is hereby GRANTED, and the
Order of this Office, dated May 2, 1988, is hereby set aside insofar as it denies respondent-appellants
requests for issuance of restraining orders.

Accordingly, the Pollution Adjudication Board, its agents, deputies or representatives are hereby
enjoined from enforcing its cease and desist order of April 15, 1988 pending resolution by this Office of
respondent-appellants appeal from said orders.

It is further directed that the status quo obtaining prior to the issuance of said cease and desist order be
maintained until further orders from this Office.

It is understood, however, that during the efficacy of this restraining order, respondent-appellant shall
immediately undertake, at a cost of not less than P30,000.00 a day, the building of artificial reefs and
planting of sea grass, mangroves and vegetation on the causeway of Calancan Bay under the supervision
of the Pollution Adjudication Board and subject to such guidelines as the Board may impose.

SO ORDERED."10

In line with the directive from the Office of the President, the Calancan Bay Rehabilitation Project (CBRP)
was created, and MMC remitted the amount of P30,000.00 a day, starting from May 13, 1988 to the
Ecology Trust Fund (ETF) thereof. However, on June 30, 1991, MMC stopped discharging its tailings in
the Bay, hence, it likewise ceased from making further deposits to the ETF.

From the issuance of the Order on May 13, 1988 until the cessation of the tailings disposal on June 30,
1991, MMC made its contribution to the ETF in the total amount of Thirty-Two Million Nine Hundred
and Seventy-Five Thousand Pesos (P32,975,000.00). Thereafter, MMC filed a Motion dated July 9, 1991
manifesting that it would discontinue its contributions/deposits to the ETF since it had stopped dumping
tailings in the Bay. MMC prayed that the Order issued by the Office of the President on May 13, 1988 be
lifted.
On February 5, 1993, the Office of the President rendered a decision in O.P. Case No. 3802 dismissing
the appeal; affirming the cease and desist Order issued by the PAB; and lifting the TRO dated May 13,
1988. The Office of the President resolved the appeal in this wise:

"This brings to the fore the primordial issue of whether or not the Secretary of Environment and Natural
Resources gravely erred in declaring the TPO No. POW-86-454-EJ issued to respondent-appellant MMC
expired on February 10, 1987, and in ordering the latter to cease and desist from discharging mine
tailings into Calancan Bay.

Respondent-appellant argues that the cease and desist orders were issued by the PAB ex-parte, in
violation of its procedural and substantive rights provided for under Section 7 (a) of P.D. No. 984
requiring a public hearing before any order or decision for the discontinuance of discharge of a sewage
or industrial wastes into the water, air or land could be issued by the PAB.

We are not persuaded.

Section 7(a) of P.D. No. 984, reads in part:

"Sec. 7(a) Public Hearing. Public hearing shall be conducted by the Commissioner, Deputy
Commissioner or any senior official duly designated by the Commissioner prior to issuance or
promulgation of any order or decision by the Commissioner requiring the discontinuance of discharge of
sewage, industrial wastes and other wastes into the water, air or land resources of the Philippines as
provided in the Decree: provided, that whenever the Commission finds a prima facie evidence that the
discharged sewage or wastes are of immediate threat to life, public health, safety or welfare, or to
animal or plant life, or exceeds the allowable standards set by the Commission, the Commissioner may
issue an ex-parte order directing the discontinuance of the same or the temporary suspension or
cessation of operation of the establishment or person generating such sewage or wastes without the
necessity of a prior public hearing. x x x . (underscoring supplied).

Clearly then, it is self-indulgent nonsense to assume that the DENR Secretary, acting as PAB Chairman, is
absolutely without authority to issue an ex-parte order requiring the discontinuance of discharge of
sewage or other industrial wastes without public hearing. As can be gleaned from the afroequoted
proviso, this authority to issue an ex-parte order suspending the discharge of industrial wastes is
postulated upon his finding of prima-facieevidence of an imminent "threat to life, public health, safety
or welfare, to animal or plant life or exceeds the allowable standards set by the Commission."11

In a letter dated January 22, 199712 , Municipal Mayor Wilfredo A. Red of Sta. Cruz, Marinduque
informed the PAB that MMC stopped remitting the amount of 30,000.00 per day as of July 1, 1991 to
the ETF of the CBRP. This letter-complaint of Mayor Red was docketed as DENR-PAB Case No. 04-00597-
96, for violation of P.D. 98413 and its implementing Rules and Regulations.

In an order dated April 23, 1997, the PAB ruled that the obligation of MMC to deposit P30,000.00 per
day to the ETF of the CBRP subsists, as provided for in the Order of the Office of the President dated
May 13, 1988, during the "efficacy of said order restraining the PAB from enforcing its cease and desist
order against MMC". Since the Order was lifted only on February 5, 1993, the obligation of MMC to
remit was likewise extinguished only on said date and not earlier as contended by MMC from the time it
ceased dumping tailings into the Bay on July 1, 1991. We quote in part:

"The issue before this Board is whether Marcopper Mining Corporation is still obliged to remit the
amount of P30,000.00 to the CBRP. The answer by the Order from the Office of the President dated 13
May 1988, which states that the obligation on the part of Marcopper Mining to pay the amount of
P30,000.00 per day for the rehabilitation of Calancan Bay is binding only during the efficacy of the said
Order.

The record further shows that on 05 February 1993, the Office of the President lifted its Order dated 13
May 1988. This means that as of the date of the lifting, Marcopper Mining Corporation no longer had
any obligation to remit the amount of P30,000.00 to the CBRP. Thus, Marcoppers obligation only runs
from 13 May 1988 to 05 February 1993. Beyond the cut-off date of 05 February 1993, Marcopper is no
longer obligated to remit the amount of P30,000.00 per day to the CBRP.

It does not matter whether Marcopper was no longer dumping its tail minings into the sea even before
the cut-off date of 05 February 1993. The obligation of Marcopper to pay the amount of P30,000.00 to
the CBRP arises from the Office of the President Order dated 13 May 1988, not from it dumping of mine
tailings.

WHEREFORE, Marcopper Mining Corporation is hereby ordered to pay the CBRP the amount of
P30,000.00 per day, computed from the date Marcopper Mining Corporation stopped paying on 01 July
1991, up to the formal lifting of the subject Order from the Office of the President on 05 February 1993.

SO ORDERED."14

MMC assailed the aforequoted Order dated April 23, 1997 of the PAB as null and void for having been
issued without jurisdiction or with grave abuse of discretion in a petition for Certiorari and Prohibition
(with prayer for temporary restraining order and preliminary injunction) before the Court of Appeals
which was docketed as CA-G.R. No. SP-44656. In a Resolution dated July 15, 1997, the Court of Appeals
required the PAB and its members to comment on said petition.

On November 19, 1997, the Office of the Solicitor General, on behalf of the PAB and its members, filed
with the Court of Appeals the required comment.

On September 15, 1997, for purposes of determining whether or not to grant MMCs prayer for a
temporary restraining order and preliminary injunction, the Court of Appeals conducted a hearing where
counsel for the parties were heard on oral arguments.

In a Resolution dated September 19, 1997, the Court of Appeals issued a writ of preliminary injunction,
conditioned upon the filing of a bond by MMC in the amount of P500,000.00 enjoining the PAB and its
members to cease and desist from enforcing the assailed Order dated April 23, 1997, until it had made a
full determination on the merits of the case.
On January 7, 1998, the Court of Appeals promulgated a Decision in CA-G.R. SP No. 44656, the
dispositive portion of which reads:

"In view of the foregoing, the instant petition is hereby GRANTED and, accordingly, the questioned
Order of respondent Pollution Adjudication Board dated 23 April 1997 is hereby SET ASIDE. Respondents
are ordered to REFRAIN and DESIST from enforcing aforesaid Order. The injunctive bond filed by the
petitioner in the amount of Five Hundred Thousand (P500,000.00) is hereby RELEASED."

The motion for reconsideration of the above decision was denied in a Resolution dated January 13, 1999
of the Court of Appeals.

Hence, the instant petition on the following grounds:

The Court of Appeals erred in ruling that Republic Act No. 7942 (otherwise known as the Philippine
Mining Act of 1995) repealed the provisions of Republic Act No. 3931, as amended by Presidential
Decree No. 984, (otherwise known as the National Pollution Control Decree of 1976), with respect to the
power and function of petitioner Pollution Adjudication Board to issue, renew or deny permits for the
discharge of the mine tailings.

II

Respondent Marcopper Mining Corporation bound itself to pay the amount of P30,000.00 a day for the
duration of the period starting May 13, 1988 up to February 5, 1993.

III

Respondent Marcopper Mining Corporation was not deprived of due process of law when petitioner
Pollution Adjudication Board directed it to comply with its long-existing P30,000.00 per day obligation
under the Order of the Office of the President dated May 13, 1988.15

In setting aside the Order of the PAB dated April 23, 1997, requiring MMC to pay its arrears in deposits,
the Court of Appeals ruled that the PAB exceeded its power and authority in issuing the subject Order
for the following reasons:

"The applicable and governing law in this petition is Republic Act No. 7942 otherwise known as the
Philippine Mining Act of 1995 ("Mining Act", approved on March 3, 1995).

Chapter XI of the Mining Act contains a series of provisions relating to safety and environmental
protection on mining and quarrying operations. More specifically, Section 67 of the Mining Act in
essence, grants the mines regional director the power to issue orders or to take appropriate measures
to remedy any practice connected with mining or quarrying operations which is not in accordance with
safety and anti-pollution laws and regulations.
From a reading of that provision, it would appear therefore that prior to the passage of the Mining Act,
the Pollution Adjudication Board had jurisdiction to act on pollution-related matters in the mining
business. With the effectivity of the Mining Act and in congruence with its Sec. 115 (i.e., Repealing and
Amending Clause), the power to impose measures against violations of environmental policies by mining
operators is now vested on the mines regional director. Be that as it may, we are constrained to
enunciate that the PAB had no authority to issue the challenged Order dated 23 April 1997. More so,
respondent PAB as petitioner argued and We note, had remained perplexingly silent on the matter for
almost six (6) years from July 1991 when MMC ceased to make its deposits up to April 1997 when
respondent PAB precipitately issued the Order requiring MMC to pay its arrears in deposits to the ETF.
And PAB, apparently oblivious to MMCs economic quandary had issued said Order ex-partewithout
hearing or notice.

xxx

As a general rule, the adjudication of pollution cases pertains to the Pollution Adjudication Board (PAB),
except in cases where the special law, expressly or impliedly, provides for another forum, as in the
instant petition.

Thus under Republic Act No. 7942 and its implementing rules and regulations, the mines regional
director, in consultation with the Environmental Management Bureau (italics ours), is specifically
mandated to carry out and make effective the declared national policy that the State shall promote the
rational exploration, development, utilization and conservation of all mineral resources in public and
private lands within the territory and exclusive economic zone of the Republic of the Philippines,
through the combined efforts of government and the private sector in order to enhance national growth
and protect the rights of affected communities. (Sec. 2, R.A. 7942).

Under this expansive authority, the Mines Regional Director, by virtue of this special law, has the
primary responsibility to protect the communities surrounding a mining site from the deleterious effects
of pollutants emanating from the dumping of tailing wastes from the surrounding areas. Thus, in the
exercise of its express powers under this special law, the authority of the Mines Regional Director to
impose appropriate protective and/or preventive measures with respect to pollution cases within
mining operations is perforce, implied. Otherwise, the special law granting this authority may well be
relegated to a mere paper tiger talking protection but allowing pollution.

It bears mention that the Pollution Adjudication Board has the power to issue an ex-parte order when
there is prima facie evidence of an establishment exceeding the allowable standards set by the anti-
pollution laws of the country. (Pollution Adjudication Board v. Court of Appeals, et al., 195 SCRA 112).
However, with the passage of R.A. 7942, insofar as the regulation, monitoring and enforcement of anti-
pollution laws are concerned with respect to mining establishments, the Mines Regional Director has a
broad grant of power and authority. Clearly, pollution-related issues in mining operations are addressed
to the Mines Regional Director, not the Pollution Adjudication Board.

This being the case, the questioned Order dated 23 April 1997 requiring MMC to pay its arrears in
deposits was beyond the power and authority of the Pollution Adjudication Board to issue and as such,
petitioner may seek appropriate injunctive relief from the court. Thus, certiorari lies against public
respondent PAB."16

The Court of Appeals likewise ruled that the obligation of MMC to contribute to the ETF of the CBRP
ceased inasmuch as the latter discontinued dumping tailings into the Bay and the actual funds in the ETF
are sufficient to rehabilitate the Bay. It ratiocinated thus:

"In the instant case, it is of record that petitioner MMC undertakes its obligation to provide for the
rehabilitation of the Bay waters. This obligation, through its monetary contribution to the ETF, is
however anchored on its continuing disposal of the mines tailings waste into the Bay. Hence, since it
ceased its mining operations in the affected area as of July 1991 and had not been discharging any
tailings wastes since then, its consequent duty to rehabilitate the polluted waters, if any, no longer
exists.

xxx

Be that as it may, this Court observes that out of the approximate sum of thirty-two (32) million pesos
contributed by the petitioner to the ETF there is admittedly an existing estimated balance of fourteen
(14) million pesos in the Fund. For its part, petitioner does not renege on its obligation to rehabilitate
and in fact undertakes to continue the rehabilitation process until its completion within two (2) years
time and which would only cost six (6) million pesos. Thus, as petitioner convincingly argued and which
respondent unsatisfactorily rebuked, the existing fourteen (14) million pesos in the ETF is more than
enough to complete the rehabilitation project. (TSN, Hearing dated 15 September 1997, at pp. 56 to 62,
Rollo).

xxx. Without much ado, the Court concurs with the finding that to demand a daily deposit of thirty
thousand (P30, 000.00) pesos even if the root of the obligation, that is, the dumping of tailings waste,
had ceased to exist, is indubitably of a herculean and onerous burden on the part of petitioner
amounting to a deprivation of its property and a denial of its right to due process."17

Unsatisfied, the OSG argues that the Philippine Mining Act of 1995 did not amend or repeal the
provisions of Republic Act No. 3931, as amended by Presidential Decree No. 984 (otherwise known as
the National Pollution Control Decree of 1976); that the Mines Regional Director has no power over
areas outside mining installations and over areas which are not part of the mining or quarrying
operations such as Calancan Bay; that the powers of the Mines Regional Director cannot be exercised to
the exclusion of other government agencies; that the jurisdiction of a Mines Regional Director with
respect to anti-pollution laws is limited to practices committed within the confines of a mining or
quarrying installation; that the dumping of mine tailings into Calancan Bay occurred long before the
effectivity of the Philippine Mining Act and that MMC cannot hide under cover of this new law. The OSG
further argues that the portion of the Order of May 13, 1988, setting the period of time within which
MMC shall pay P30,000.00 per day, which is during the efficacy of the restraining order was never
questioned or appealed by MMC. Finally, the OSG argues that PAB did not violate MMCs right to due
process by the issuance of the Order dated April 23, 1988 without notice and hearing as it was simply
requiring MMC to comply with an obligation in an Order which has long become final and executory.
In the context of the established facts, the issue that actually emerges is: Has the PAB under RA 3931 as
amended by PD 984 (National Pollution Control Decree of 1976) been divested of its authority to try and
hear pollution cases connected with mining operations by virtue of the subsequent enactment of RA
7942 (Philippine Mining Act of 1995)? As mentioned earlier, the PAB took cognizance and ruled on the
letter-complaint (for violation of PD 984 and its implementing rules and regulations) filed against MMC
by Marinduque Mayor Wilfredo Red. In the subject Order dated April 23, 1997, the PAB ruled that MMC
should pay its arrears in deposits to the ETF of the CBRP computed from the day it stopped dumping and
paying on July 1, 1991 up to the lifting of the Order of the Office of the President dated May 13, 1988 on
February 5, 1993.

The answer is in the negative. We agree with the Solicitor General that the Court of Appeals committed
reversible error in ruling that the PAB had no authority to issue the Order dated April 23, 1997.

Republic Act No. 3931 (An Act Creating The National Water And Air Pollution Control Commission) was
passed in June 18, 1964 to maintain reasonable standards of purity for the waters and air of the country
with their utilization for domestic, agricultural, industrial and other legitimate purposes. Said law was
revised in 1976 by Presidential Decree No. 984 (Providing For The Revision Of Republic Act No. 3931,
Commonly Known As The Pollution Control Law, And For Other Purposes) to strengthen the National
Pollution Control Commission to best protect the people from the growing menace of environmental
pollution. Subsequently, Executive Order No. 192, s. 1987 (The Reorganization Act of the DENR) was
passed. The internal structure, organization and description of the functions of the new DENR,
particularly the Mines and Geosciences Bureau, reveals no provision pertaining to the resolution of
cases involving violations of the pollution laws.18 The Mines and Geo-Sciences Bureau was created under
the said EO 192 to absorb the functions of the abolished Bureau of Mines and Geo-Sciences, Mineral
Reservations Development Board and the Gold Mining Industry Development Board to, among others,
recommend policies, regulations and programs pertaining to mineral resources development; assist in
the monitoring and evaluation of the Bureaus programs and projects; and to develop and promulgate
standards and operating procedures on mineral resources development.19

On the other hand, the PAB was created and granted under the same EO 192 broad powers to
adjudicate pollution cases in general. Thus,

SEC. 19. Pollution Adjudication Board. There is hereby created a Pollution Adjudication Board under
the Office of the Secretary. The Board shall be composed of the Secretary as Chairman, two (2)
Undersecretaries as may be designated by the Secretary, the Director of Environmental management,
and three (3) others to be designated by the Secretary as members. The Board shall assume the powers
and functions of the Commission/Commissioners of the National Pollution Control Commission with
respect to the adjudication of pollution cases under Republic Act 3931 and Presidential Decree 984,
particularly with respect to Section 6 letters e, f, g, j, k, and p of P.D. 984. The Environmental
Management Bureau shall serve as the Secretariat of the Board. These powers and functions may be
delegated to the regional offices of the Department in accordance with rules and regulations to be
promulgated by the Board.20
Section 6 letters e, f, g, j, k, and p of PD 984 referred to above are quoted as follows:

SEC. 6. Powers and Functions. The Commission shall have the following powers and functions:

(e) Issue orders or decision to compel compliance with the provisions of this Decree and its
implementing rules and regulations only after proper notice and hearing.

(f) Make, alter or modify orders requiring the discontinuance of pollution specifying the conditions and
the time within which such discontinuance must be accomplished.

(g) Issue, renew, or deny permits, under such conditions as it may determine to be reasonable, for the
prevention and abatement of pollution, for the discharge of sewage, industrial waste, or for the
installation or operation of sewage works and industrial disposal system or parts thereof: Provided,
however, That the Commission, by rules and regulations, may require subdivisions, condominium,
hospitals, public buildings and other similar human settlements to put up appropriate central sewerage
system and sewage treatment works, except that no permits shall be required to any sewage works or
changes to or extensions of existing works that discharge only domestic or sanitary wastes from a
singles residential building provided with septic tanks or their equivalent. The Commission may impose
reasonable fees and charges for the issuance or renewal of all permits required herein.

(h)

(i)

(j) Serve as arbitrator for the determination of reparations, or restitution of the damages and losses
resulting from pollution.

(k) Deputize in writing or request assistance of appropriate government agencies or instrumentalities for
the purpose of enforcing this Decree and its implementing rules and regulations and the orders and
decisions of the Commission.

(l)

(m)

(n)

(o)

(p) Exercise such powers and perform such other functions as may be necessary to carry out its duties
and responsibilities under this Decree.

Section 7(a) of P.D. No. 984 further provides in part:

"Sec. 7(a) Public Hearing. Public hearing shall be conducted by the Commissioner, Deputy
Commissioner or any senior official duly designated by the Commissioner prior to issuance or
promulgation of any order or decision by the Commissioner requiring the discontinuance of discharge of
sewage, industrial wastes and other wastes into the water, air or land resources of the Philippines as
provided in the Decree: provided, that whenever the Commission finds a prima facie evidence that the
discharged sewage or wastes are of immediate threat to life, public health, safety or Welfare, or to
animal or plant life, or exceeds the allowable standards set by the Commission, the Commissioner may
issue and ex-parte order directing the discontinuance of the same or the temporary suspension or
cessation of operation of the establishment or person generating such sewage or wastes without the
necessity of a prior public hearing. x x x . (underscoring supplied).

The ruling of the Court of Appeals that the PAB has been divested of authority to act on pollution-
related matters in mining operations is anchored on the following provisions of RA 7942 (Philippine
Mining Act of 1995):

SEC. 67. Power to Issue Orders. The mines regional director shall, in consultation with the
Environmental Management Bureau, forthwith or within such time as specified in his order, require the
contractor to remedy any practice connected with mining or quarrying operations, which is not in
accordance with safety and anti-pollution laws and regulations. In case of imminent danger to life or
property, the mines regional director may summarily suspend the mining or quarrying operations until
the danger is removed, or appropriate measures are taken by the contractor or permittee.

And

SEC. 115. Repealing and Amending Clause. All laws, executive orders, presidential decrees, rules and
regulations, or parts thereof which are inconsistent with any of the provisions of this Act are hereby
repealed or amended accordingly.

The other provisions in Chapter XI on Safety and Environmental Protection found in RA 7942 promote
the safe and sanitary upkeep of mining areas to achieve waste-free and efficient mine development with
particular concern for the physical and social rehabilitation of areas and communities affected by mining
activities21 , without however, arrogating unto the mines regional director any adjudicative
responsibility.

From a careful reading of the foregoing provisions of law, we hold that the provisions of RA 7942 do not
necessarily repeal RA 3931, as amended by PD 984 and EO 192. RA 7942 does not contain any provision
which categorically and expressly repeals the provisions of the Pollution Control Law. Neither could
there be an implied repeal. It is well-settled that repeals of laws by implication are not favored and that
courts must generally assume their congruent application. Thus, it has been held:

"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 aas 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."22
There is no irreconcilable conflict between the two laws. Section 19 of EO 192 vested the PAB with the
specific power to adjudicate pollution cases in general. Sec. 2, par. (a) of PD 984 defines the term
"pollution" as referring to any alteration of the physical, chemical and biological properties of any water,
air and/or land resources of the Philippines , or any discharge thereto of any liquid, gaseous or solid
wastes as will or is likely to create or to render such water, air and land resources harmful, detrimental
or injurious to public health, safety or welfare or which will adversely affect their utilization for
domestic, commercial, industrial, agricultural, recreational or other legitimate purposes.

On the other hand, the authority of the mines regional director is complementary to that of the PAB.
Section 66 of RA 7942 gives the mines regional director exclusive jurisdiction over the safety inspection
of all installations, surface or underground in mining operations. Section 67 thereof vests upon the
regional director power to issue orders requiring a contractor to remedy any practice connected with
mining or quarrying operations which is not in accordance with safety and anti-pollution laws and
regulations; and to summarily suspend mining or quarrying operations in case of imminent danger to life
or property. The law likewise requires every contractor to undertake an environmental protection and
enhancement program which shall be incorporated in the work program which the contractor shall
submit as an accompanying document to the application for a mineral agreement or permit. In addition,
an environmental clearance certificate is required based on an environment impact assessment. The law
also requires contractors and permittees to rehabilitate the mined-out areas, and set up a mine
rehabilitation fund. Significantly, the law allows and encourages peoples organizations and non-
governmental organizations to participate in ensuring that contractors/permittees shall observe all the
requirements of environmental protection.

From the foregoing, it readily appears that the power of the mines regional director does not foreclose
PABs authority to determine and act on complaints filed before it. The power granted to the mines
regional director to issue orders requiring the contractor to remedy any practice connected with mining
or quarrying operations or to summarily suspend the same in cases of violation of pollution laws is for
purposes of effectively regulating and monitoring activities within mining operations and installations
pursuant to the environmental protection and enhancement program undertaken by contractors and
permittees in procuring their mining permit. While the mines regional director has express
administrative and regulatory powers over mining operations and installations, it has no adjudicative
powers over complaints for violation of pollution control statutes and regulations.

True, in Laguna Lake Development Authority vs. Court of Appeals,23 this Court held that adjudication of
pollution cases generally pertains to the Pollution Adjudication Board (PAB) except where the special
law provides for another forum. However, contrary to the ruling of the Court of Appeals, RA 7942 does
not provide for another forum inasmuch as RA 7942 does not vest quasi-judicial powers in the Mines
Regional Director. The authority is vested and remains with the PAB.

Neither was such authority conferred upon the Panel of Arbitrators and the Mines Adjudication Board
which were created by the said law. The provisions creating the Panel of Arbitrators for the settlement
of conflicts refers to disputes involving rights to mining areas, mineral agreements or permits and those
involving surface owners, occupants and claim-holders/concessionaires.24 The scope of authority of the
Panel of Arbitrators and the Mines Adjudication Board conferred by RA 7942 clearly exclude adjudicative
responsibility over pollution cases. Nowhere is there vested any authority to adjudicate cases involving
violations of pollution laws and regulations in general.

Thus, there is no genuine conflict between RA 7942 and RA 3931 as amended by PD 984 that precludes
their co-existence. Moreover, it has to be conceded that there was no intent on the part of the
legislature to repeal the said law. There is nothing in the sponsorship speech25 of the laws proponent,
Representative Renato Yap, and the deliberations that followed thereafter, to indicate a legislative
intent to repeal the pollution law. Instead, it appears that the legislature intended to maximize the
exploration, development and utilization of the countrys mineral resources to contribute to the
achievement of national economic and social development with due regard to the social and
environmental cost implications relative thereto. The law intends to increase the productivity of the
countrys mineral resources while at the same time assuring its sustainability through judicious use and
systematic rehabilitation. Henceforth, the Department of Environment and Natural Resources as the
primary government agency responsible for the conservation, management, development, and proper
use of the States mineral resources, through its Secretary, has the authority to enter into mineral
agreements on behalf of the Government upon the recommendation of the Director, and to promulgate
such rules and regulations as may be necessary to carry out the provisions of RA 7942.26 The PAB and
the Mines Regional Director, with their complementary functions and through their combined efforts,
serve to accomplish the mandate of RA 3931 (National Pollution Control Decree of 1976) as amended by
PD 984 and EO 192 and that of RA 7942 (Philippine Mining Act of 1995).

That matter settled, we now go to the issue of whether the appellate court erred in ruling that there is
no basis for further payments by MMC to the Ecology Trust Fund of the Calancan Bay Rehabilitation
Project considering that MMC "convincingly argued and which respondent unsatisfactorily rebuked, the
existing fourteen (14) million pesos in the ETF is more than enough to complete the rehabilitation
project." Indeed, the records reveal that witness for PAB, Mr. Edel Genato, who is the Technical
Resource person of the PAB for the project admitted that the funds in the ETF amounting to about
Fourteen Million Pesos are more than sufficient to cover the costs of rehabilitation. Hereunder are
excerpts from the transcript of stenographic notes taken during the hearing held on September 15,
1997:

ATTY. HERNANDEZ:27

I would like your Honor, if the court will allow, our witness from the EBRB Your Honor would attest to
that . . .

JUSTICE JACINTO:

Is it not being taken from the 14 million?

ATTY. HERNANDEZ:

Yes, Your Honor.


JUSTICE RASUL:

What is his role?

ATTY. HERNANDEZ:

He is our Technical Resource person Your Honor, of the project.

JUSTICE RASUL:

In other words, he has participated in the . . (inaudible)?

ATTY. HERNANDEZ:

Yes, Your Honor.

JUSTICE RASUL:

Do you agree with him?

MR. EDEL GENATO:

Yes, Your Honor, that the Calancan rehabilitation program is being funded by Marcopper through the
Ecology Trust Fund.

JUSTICE RASUL:

Will the construction be finished in two years time?

MR. EDEL GENATO:

Presently, under the Steering Committee of the Calancan Bay Rehabilitation, there is another phase that
is being proposed. Actually the two years time will definitely cover the other phase of the . . (inaudible)

JUSTICE RASUL:

Never mind that. Will the amount be sufficient to the end of the construction?

MR. EDEL GENATO:

Yes, Sir.

JUSTICE RASUL:

Enough?

MR. EDEL GENATO:

Yes, Sir.
JUSTICE RASUL:

There is no more need for collecting the 30 thousand a day? . . . Do not . . . I will hold you for contempt .
..

ATTY. HERNANDEZ:

Im sorry Your Honor.

JUSTICE RASUL:

Again.

MR. EDEL GENATO:

Well Your Honor, I cannot comment on the amount Your Honor.

JUSTICE RASUL:

You have already made your comment, but you received some signal from your lawyer.

ATTY. HERNANDEZ:

Your Honor . . .

MR. EDEL GENATO:

No, no Your Honor. . .

JUSTICE RASUL:

My question is, do you agree with him that the 14 million fund will be enough to sustain the
construction up to the end?

MR. EDEL GENATO:

Two years?

JUSTICE RASUL:

Yes.

MR. EDEL GENATO:

Your Honor. . .

JUSTICE AMIN:

Categorical answer.
JUSTICE RASUL:

You just answer, is it enough, in your own honest way, on your honor?

MR. EDEL GENATO:

I think so Your Honor.28

We must sustain the appellate court on this point on account of the testimony of Mr. Edel
Genato.1wphi1 Further, we note that the Office of the President never objected nor ruled on the
manifestation dated July 9, 1991 filed by MMC that it would stop paying since it already ceased dumping
mine tailings into the bay. Still further, the order of the OP directing MMC to rehabilitate at a cost of
P30,000.00 a day "during the efficacy of the restraining order" had become functus officio since MMC
voluntarily stopped dumping mine tailings into the bay.

To sum up, PAB has jurisdiction to act and rule on the letter-complaint of Mayor Wilfredo Red of
Marinduque for violation of PD 984 and its implementing rules and regulations which jurisdiction was
not lost upon the passage of RA 7942 (the Philippine Mining Act of 1995). Nevertheless, MMC must be
declared not to have arrears in deposits as admittedly, the ETF already has more than sufficient funds to
undertake the rehabilitation of Calancan Bay.

WHEREFORE, the petition is hereby partially GRANTED. The assailed Decision is REVERSED insofar as the
jurisdiction of the PAB to act on the complaint is concerned; but AFFIRMED insofar as Marcopper Mining
Corporation has no arrears in deposits with the Ecology Trust Fund of the Calancan Bay Rehabilitation
Project.

SO ORDERED.

Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.

G.R. No. 179918 September 8, 2010

SHELL PHILIPPINES EXPLORATION B.V., represented by its Managing Director, Jeremy Cliff, Petitioner,
vs.
EFREN JALOS, JOVEN CAMPANG, ARNALDO MIJARES, CARLITO TRIVINO, LUCIANO ASERON, CHARLITO
ALDOVINO, ROBERTO FADERA, RENATO MANTALA, GERTRUDES MENESES, NORBERTO HERNANDEZ,
JOSE CABASE, DANILO VITTO, EDWIN MARIN, SAMUEL MARIN, ARMANDO MADERA, EDGARDO
MARINO, HERMINO RELOX, ROLANDO TARROBACO, ERNESTO RELOX, ROSALITO RUGAS, ELDIE
DIMALIBOT, PLARIDEL MUJE, REYMUNDO CARMONA, RONILO RIOFLORIDO, LEONIDES MANCIA,
JONAR GERANCE, RODEL CASAPAO, CARMENCITA MENDOZA, SEVERINO MEDRANO, EDWIN
MENDOZA, DOMINEZ SANTIAGO, ROGER MUJE, REYNALDO MORALES, WILLIAM MENDOZA, NELSON
SOLIS, ALBERTO MATRE, MARGARITO GADO, BONIFACIO LEOTERIO, NEMESIO PEREZ, JR., ARIEL
MENDOZA, PEPITO MENDOZA, SALVADOR FALCULAN, JR., CEASAR ROBLEDO, SUZIMO CERNA,
VIRGILIO VATAL, JIMMY ALBAO, CRISANTO SABIDA, LAUDRINO MIRANDA, LEOPOLDO MISANA,
JIMMY DELACION, FREJEDO MAGPILI, ROLANDO DIMALIBOT, PEDRO MAPALAD, FAUSTINO
BALITOSTOS, LEONARDO DIMALIBOT, MARIANO MAGYAYA, RAUL MIRANO, ERNESTO MATRE,
ROMEO ROBLEDO, GILBERT SADICON, ROMEO SIENA, NESTOR SADICON, NOEL SIENA, REDENTER
CAMPANG, ARNEL HERNENDEZ, RESTITUTO BAUTISTA, JOSE MUJE, DANILO BILARMINO, ADRIAN
MAGANGO, VALERIANO SIGUE, BERNIE MORALES, JOSEPH SALAZAR, PABLITO MENDOZA, JR., ERWIN
BAUTISTA, RUBEN BAUTISTA, ALEXANDER ROVERO, EDUARDO QUARTO, RUBEN RIOFLORIDO, NESTOR
DELACION, SEVERINO MEDRANO, JOEY FAJECULAY, NICOLAS MEDRANO, FELIX MEDRANO, RODELIO
CASAPAO, FELIPE LOLONG, MARCELINO LOLONG, ELDY DIMALIBOT, ROBERTO CASAPAO, SIMEON
CASAPAO, HENRY DIMALIBOT, RONALDO MORALES, PEPING CASAPAO, JOEL GERANCE, JAYREE
DIMALIBOT, MARIO DIMALIBOT, SANTO DIMALIBOT, ZERAPIN DIMALIBOT, FLORENCIO
ROVERO, Respondents.

DECISION

ABAD, J.:

This case is about a question of jurisdiction over an action against a petroleum contractor, whose
pipeline operation has allegedly driven the fish away from coastal areas, inflicting loss of earnings
among fishermen.

The Facts and the Case

On December 11, 1990 petitioner Shell Philippines Exploration B.V. (Shell) and the Republic of the
Philippines entered into Service Contract 38 for the exploration and extraction of petroleum in
northwestern Palawan. Two years later, Shell discovered natural gas in the Camago-Malampaya area
and pursued its development of the well under the Malampaya Natural Gas Project. This entailed the
construction and installation of a pipeline from Shells production platform to its gas processing plant in
Batangas. The pipeline spanned 504 kilometers and crossed the Oriental Mindoro Sea.

On May 19, 2003, respondents Efren Jalos, Joven Campang, Arnaldo Mijares, and 75 other individuals
(Jalos, et al) filed a complaint for damages1 against Shell before the Regional Trial Court (RTC), Branch
41, Pinamalayan, Oriental Mindoro. Jalos, et al claimed that they were all subsistence fishermen from
the coastal barangay of Bansud, Oriental Mindoro whose livelihood was adversely affected by the
construction and operation of Shells natural gas pipeline.

Jalos, et al claimed that their fish catch became few after the construction of the pipeline. As a result,
their average net income per month fell from a high of P4,848.00 to only P573.00. They said that "the
pipeline greatly affected biogenically hard-structured communities such as coral reefs and led [to] stress
to the marine life in the Mindoro Sea." They now have to stay longer and farther out at sea to catch fish,
as the pipelines operation has driven the fish population out of coastal waters.2

Instead of filing an answer, Shell moved for dismissal of the complaint. It alleged that the trial court had
no jurisdiction over the action, as it is a "pollution case" under Republic Act (R.A.) 3931, as amended by
Presidential Decree (P.D.) 984 or the Pollution Control Law. Under these statutes, the Pollution
Adjudication Board (PAB) has primary jurisdiction over pollution cases and actions for related damages.3

Shell also claimed that it could not be sued pursuant to the doctrine of state immunity without the
States consent. Shell said that under Service Contract 38, it served merely as an agent of the Philippine
government in the development of the Malampaya gas reserves.

Moreover, said Shell, the complaint failed to state a cause of action since it did not specify any
actionable wrong or particular act or omission on Shells part that could have caused the alleged injury
to Jalos, et al. The complaint likewise failed to comply with requirements of a valid class suit, verification
and certification against forum shopping, and the requisites for a suit brought by pauper litigants.4

On March 24, 2004 the RTC dismissed the complaint. It ruled that the action was actually pollution-
related, although denominated as one for damages. The complaint should thus be brought first before
the PAB, the government agency vested with jurisdiction over pollution-related cases.5

Jalos, et al assailed the RTCs order through a petition for certiorari6 before the Court of Appeals (CA). In
due course, the latter court reversed such order and upheld the jurisdiction of the RTC over the action. It
said that Shell was not being sued for committing pollution, but for constructing and operating a natural
gas pipeline that caused fish decline and considerable reduction in the fishermens income. The claim for
damages was thus based on a quasi-delict over which the regular courts have jurisdiction.

The CA also rejected Shells assertion that the suit was actually against the State. It observed that the
government was not even impleaded as party defendant. It gave short shrift to Shells insistence that,
under the service contract, the government was solidarily liable with Shell for damages caused to third
persons. Besides, the State should be deemed to have given its consent to be sued when it entered into
the contract with Shell.

The CA also held that the complaint sufficiently alleged an actionable wrong. Jalos, et al invoked their
right to fish the sea and earn a living, which Shell had the correlative obligation to respect. Failure to
observe such obligation resulted in a violation of the fishermens rights and thus gave rise to a cause of
action for damages.7

Finally, the CA held that Jalos, et al substantially complied with the technical requirements for filing the
action. But since they failed to prove the requisites of a class suit, only those who have verified the
complaint should be deemed party plaintiffs.8

Shell moved for reconsideration of the CAs decision but the same was denied.9 Hence, it filed this
petition for review under Rule 45.

The Issues Presented

The case presents the following issues:

1. Whether or not the complaint is a pollution case that falls within the primary jurisdiction of the PAB;
2. Whether or not the complaint sufficiently alleges a cause of action against Shell; and

3. Whether or not the suit is actually against the State and is barred under the doctrine of state
immunity.

The Courts Rulings

First. Although the complaint of Jalos, et al does not use the word "pollution" in describing the cause of
the alleged fish decline in the Mindoro Sea, it is unmistakable based on their allegations that Shells
pipeline produced some kind of poison or emission that drove the fish away from the coastal areas.
While the complaint did not specifically attribute to Shell any specific act of "pollution," it alleged that
"the pipeline greatly affected biogenically hard-structured communities such as coral reefs and led [to]
stress to the marine life in the Mindoro Sea."10 This constitutes "pollution" as defined by law.

Section 2(a) of P.D. 984 defines "pollution" as "any alteration of the physical, chemical and biological
properties of any water x x x as will or is likely to create or render such water x x x harmful, detrimental
or injurious to public health, safety or welfare or which will adversely affect their utilization for
domestic, commercial, industrial, agricultural, recreational or other legitimate purposes."

It is clear from this definition that the stress to marine life claimed by Jalos, et al is caused by some kind
of pollution emanating from Shells natural gas pipeline. The pipeline, they said, "greatly affected" or
altered the natural habitat of fish and affected the coastal waters natural function as fishing grounds.
Inevitably, in resolving Jalos, et als claim for damages, the proper tribunal must determine whether or
not the operation of the pipeline adversely altered the coastal waters properties and negatively
affected its life sustaining function. The power and expertise needed to determine such issue lies with
the PAB.

Executive Order 192 (1987) transferred to the PAB the powers and functions of the National Pollution
and Control Commission provided in R.A. 3931, as amended by P.D. 984.11 These empowered the PAB to
"[d]etermine the location, magnitude, extent, severity, causes and effects" of water pollution.12 Among
its functions is to "[s]erve as arbitrator for the determination of reparation, or restitution of the
damages and losses resulting from pollution." In this regard, the PAB has the power to conduct
hearings,13 impose penalties for violation of P.D. 984,14 and issue writs of execution to enforce its orders
and decisions.15 The PABs final decisions may be reviewed by the CA under Rule 43 of the Rules of
Court.16

Jalos, et al had, therefore, an administrative recourse before filing their complaint with the regular
courts.17 The laws creating the PAB and vesting it with powers are wise. The definition of the term
"pollution" itself connotes the need for specialized knowledge and skills, technical and scientific, in
determining the presence, the cause, and the effects of pollution. These knowledge and skills are not
within the competence of ordinary courts.18Consequently, resort must first be made to the PAB, which is
the agency possessed of expertise in determining pollution-related matters.1avvphil
To this extent, the failure of Jalos, et al to allege in their complaint that they had first taken resort to
PAB before going to court means that they failed to state a cause of action that the RTC could act on.
This warranted the dismissal of their action.19

Second. Still, Shell points out that the complaint also states no cause of action because it failed to
specify any actionable wrong or particular act or omission on Shells part. The Court cannot agree.

As mentioned above, the complaint said that the natural gas pipelines construction and operation
"greatly affected" the marine environment, drove away the fish, and resulted in reduced income for
Jalos, et al. True, the complaint did not contain some scientific explanation regarding how the
construction and operation of the pipeline disturbed the waters and drove away the fish from their
usual habitat as the fishermen claimed. But lack of particulars is not a ground for dismissing the
complaint.

A cause of action is the wrongful act or omission committed by the defendant in violation of the primary
rights of the plaintiff.20 Its elements consist of: (1) a right existing in favor of the plaintiff, (2) a duty on
the part of the defendant to respect the plaintiffs right, and (3) an act or omission of the defendant in
violation of such right.21 To sustain a motion to dismiss for lack of cause of action, however, the
complaint must show that the claim for relief does not exist and not only that the claim was defectively
stated or is ambiguous, indefinite or uncertain.22

Here, all the elements of a cause of action are present. First, Jalos, et al undoubtedly had the right to the
preferential use of marine and fishing resources which is guaranteed by no less than the
Constitution.23 Second, Shell had the correlative duty to refrain from acts or omissions that could impair
Jalos, et als use and enjoyment of the bounties of the seas. Lastly, Shells construction and operation of
the pipeline, which is an act of physical intrusion into the marine environment, is said to have disrupted
and impaired the natural habitat of fish and resulted in considerable reduction of fish catch and income
for Jalos, et al.

Thus, the construction and operation of the pipeline may, in itself, be a wrongful act that could be the
basis of Jalos, et als cause of action. The rules do not require that the complaint establish in detail the
causal link between the construction and operation of the pipeline, on the one hand, and the fish
decline and loss of income, on the other hand, it being sufficient that the complaint states the ultimate
facts on which it bases its claim for relief. The test for determining the sufficiency of a cause of action
rests on whether the complaint alleges facts which, if true, would justify the relief demanded.24 In this
case, a valid judgment for damages can be made in favor of Jalos, et al, if the construction and operation
of the pipeline indeed caused fish decline and eventually led to the fishermens loss of income, as
alleged in the complaint.

Third. Shell claims that it cannot be sued without the States consent under the doctrine of state
immunity from suit. But, to begin with, Shell is not an agent of the Republic of the Philippines. It is but a
service contractor for the exploration and development of one of the countrys natural gas reserves.
While the Republic appointed Shell as the exclusive party to conduct petroleum operations in the
Camago-Malampayo area under the States full control and supervision,25 it does not follow that Shell
has become the States "agent" within the meaning of the law.

An agent is a person who binds himself to render some service or to do something in representation or
on behalf of another, with the consent or authority of the latter.26 The essence of an agency is the
agents ability to represent his principal and bring about business relations between the latter and third
persons.27 An agents ultimate undertaking is to execute juridical acts that would create, modify or
extinguish relations between his principal and third persons.28 It is this power to affect the principals
contractual relations with third persons that differentiates the agent from a service contractor.

Shells main undertaking under Service Contract 38 is to "[p]erform all petroleum operations and
provide all necessary technology and finance" as well as other connected services29 to the Philippine
government. As defined under the contract, petroleum operation means the "searching for and
obtaining Petroleum within the Philippines", including the "transportation, storage, handling and sale"
of petroleum whether for export or domestic consumption.30 Shells primary obligation under the
contract is not to represent the Philippine government for the purpose of transacting business with third
persons. Rather, its contractual commitment is to develop and manage petroleum operations on behalf
of the State.

Consequently, Shell is not an agent of the Philippine government, but a provider of services, technology
and financing31 for the Malampaya Natural Gas Project. It is not immune from suit and may be sued for
claims even without the States consent. Notably, the Philippine government itself recognized that Shell
could be sued in relation to the project. This is evident in the stipulations agreed upon by the parties
under Service Contract 38.

Article II, paragraph 8, Annex "B" of Service Contract 3832 states that legal expenses, including
"judgments obtained against the Parties or any of them on account of the Petroleum Operations", can
be recovered by Shell as part of operating expenses to be deducted from gross proceeds. Article II,
paragraph 9B of the same document allows a similar recovery for "[a]ll actual expenditures incurred and
paid by CONTRACTOR [Shell] in settlement of any and all losses, claims, damages, judgments, and any
other expenses not covered by insurance, including legal services." This signifies that the State itself
acknowledged the suability of Shell. Since payment of claims and damages pursuant to a judgment
against Shell can be deducted from gross proceeds, the State will not be required to perform any
additional affirmative act to satisfy such a judgment.

In sum, while the complaint in this case sufficiently alleges a cause of action, the same must be filed with
the PAB, which is the government agency tasked to adjudicate pollution-related cases. Shell is not an
agent of the State and may thus be sued before that body for any damages caused by its operations. The
parties may appeal the PABs decision to the CA. But pending prior determination by the PAB, courts
cannot take cognizance of the complaint.

WHEREFORE, the Court GRANTS the petition and REVERSES the decision of the Court of Appeals in CA-
G.R. CV 82404 dated November 20, 2006. Respondent Efren Jalos, et als complaint for damages against
Shell Philippines Exploration B.V. in Civil Case P-1818-03 of the Regional Trial Court, Branch 41,
Pinamalayan, Oriental Mindoro is ordered DISMISSED without prejudice to its refiling with the Pollution
Adjudication Board or PAB.

SO ORDERED.

ROBERTO A. ABAD
Associate Justice

G.R. No. 165299 December 18, 2009

PACIFIC STEAM LAUNDRY, INC., Petitioner,


vs.
LAGUNA LAKE DEVELOPMENT AUTHORITY, Respondent.

DECISION

CARPIO, J.:

The Case

This is a petition for review1 of the Decision2 dated 30 June 2004 and the Resolution dated 8 September
2004 of the Court of Appeals in CA-G.R. SP No. 75238.

The Facts

Petitioner Pacific Steam Laundry, Inc. (petitioner) is a company engaged in the business of laundry
services. On 6 June 2001, the Environmental Management Bureau of the Department of Environment
and Natural Resources (DENR) endorsed to respondent Laguna Lake Development Authority (LLDA) the
inspection report on the complaint of black smoke emission from petitioners plant located at 114
Roosevelt Avenue, Quezon City.3 On 22 June 2001, LLDA conducted an investigation and found that
untreated wastewater generated from petitioners laundry washing activities was discharged directly to
the San Francisco Del Monte River. Furthermore, the Investigation Report4 stated that petitioners plant
was operating without LLDA clearance, AC/PO-ESI, and Discharge Permit from LLDA. On 5 September
2001, the Environmental Quality Management Division of LLDA conducted wastewater sampling of
petitioners effluent.5 The result of the laboratory analysis showed non-compliance with effluent
standards particularly Total Suspended Solids (TSS), Biochemical Oxygen Demand (BOD), Oil/Grease
Concentration and Color Units.6 Consequently, LLDA issued to petitioner a Notice of Violation7dated 30
October 2001 which states:

THE GENERAL MANAGER


PACIFIC STEAM LAUNDRY, INC.
114 Roosevelt Avenue, Brgy. Paraiso
Quezon City
Subject: Notice of Violation
PH-01-10-303

Gentlemen:

This refers to the findings of the inspection and result of laboratory analysis of the wastewater collected
from your firm last 5 September 2001. Evaluation of the results of laboratory analysis showed that your
plants effluent failed to conform with the 1990 Revised Effluent Standard for Inland Water Class "C"
specifically in terms of TSS, BOD, Oil/Grease and Color. (Please see attached laboratory analysis)

In view thereof, you are hereby directed to submit corrective measures to abate/control the water
pollution caused by your firm, within fifteen (15) days from receipt of this letter.

Furthermore, pursuant to Section 9 of Presidential Decree No. 984, PACIFIC STEAM LAUNDRY, INC. is
hereby ordered to pay a penalty of One Thousand Pesos (P1,000.00) per day of discharging pollutive
wastewater to be computed from 5 September 2001, the date of inspection until full cessation of
discharging pollutive wastewater and a fine of Five Thousand Pesos (P5,000.00) per year for operating
without the necessary clearance/permits from the Authority.

Very truly yours,

(signed)
CALIXTO R. CATAQUIZ
General Manager

Petitioner submitted its application for LLDA Clearance and Discharge Permit and informed LLDA that it
would undertake the necessary measures to abate the water pollution.8 On 1 March 2002, a compliance
monitoring was conducted and the result of the laboratory analysis9 still showed non-compliance with
effluent standards in terms of TSS, BOD, Chemical Oxygen Demand (COD), and Oil/Grease
Concentration. It was reported that petitioners wastewater treatment facility was under construction.
Subsequently, another wastewater sampling was conducted on 25 April 2002 but the results10 still failed
to conform with the effluent standards in terms of Oil/Grease Concentration.

Meanwhile, on 15 April 2002, a Pollution Control and Abatement case was filed against petitioner before
the LLDA. During the public hearing on 30 April 2002, LLDA informed petitioner of its continuous non-
compliance with the effluent standards. Petitioner requested for another wastewater sampling which
was conducted on 5 June 2002. The laboratory results11 of the wastewater sampling finally showed
compliance with the effluent standard in all parameters. On 9 August 2002, another public hearing was
held to discuss the dismissal of the water pollution case and the payment of the accumulated daily
penalty. According to LLDA, the penalty should be reckoned from 5 September 2001, the date of initial
sampling, to 17 May 2002, the date LLDA received the request for re-sampling. Petitioner manifested
that its wastewater discharge was not on a daily basis. In its position paper12dated 25 August 2002,
petitioner prayed that the Notice of Violation dated 30 October 2001 be set aside and the penalty and
fine imposed be reckoned from the date of actual hearing on 15 April 2002.1avvphil
On 16 September 2002, LLDA issued an Order to Pay,13 the pertinent portion of which reads:

Respondent prayed that the Notice of Violation issued on 30 October 2001 and its corresponding daily
penalty be set aside and that the imposable penalty be reckoned from the date of actual hearing and
not on 5 September 2001. It is respondents position that the Notice of Violation and the imposition of
the penalty had no legal and factual basis because it had already installed the necessary wastewater
treatment to abate the water pollution.

This Public Hearing Committee finds respondents arguments devoid of merit. Presidential Decree No.
984 prohibits the discharge of pollutive wastewater and any person found in violation thereof shall pay a
fine not exceeding five thousand pesos (PhP5,000.00) [sic] for every day during which such violation
continues. The mere discharge of wastewater not conforming with the effluent standard is the violation
referred to in PD No. 984. Sample of respondents effluent was collected on 5 September 2001 and the
results of laboratory analysis confirmed the quality thereof. Thus, a notice of violation was issued
against the respondent after it was established that its discharge was pollutive. The fact that the
subsequent re-sampling reported compliance with the effluent standard does not negate the 5
September 2001 initial sampling. Respondent passed the standard because it already implemented
remedial measures to abate the water pollution. It is therefore but just and proper that the penalty
should be imposed from the date of initial sampling, 5 September 2001, to 17 May 2002, the date the
request for re-sampling was received by the Authority. The 5 June 2002 sampling confirmed that
respondents effluent already complied with the standard showing that its water pollution has ceased.
Respondent did not submit any proof of its actual operation hence, the penalty shall be computed for
five (5) working days per week, excluding Saturdays and Sundays as well as legal holidays from 5
September 2001 to 17 May 2002, for a total of one hundred seventy-two (172) days.

WHEREFORE, premises considered, respondent Pacific steam Laundry, Inc. is hereby ordered to pay the
accumulated daily penalty amounting to ONE HUNDRED SEVENTY-TWO THOUSAND (PhP172,000.00)
PESOS within fifteen(15) days from receipt hereof as a condition sine qua non for the dismissal of the
above-captioned case.

SO ORDERED.14

Petitioner filed a motion for reconsideration, which the LLDA denied in its Order15 dated 27 November
2002.

Petitioner then filed with the Court of Appeals a petition for review under Rule 43 of the Rules of Court.
The Court of Appeals denied the petition, as well as the motion for reconsideration filed by petitioner.
Hence, this petition.

The Court of Appeals Ruling

The Court of Appeals held that LLDA has the power to impose fines, thus:
Concededly, the power to impose administrative fines in pollution abatement cases was expressly
granted under Section 9 of P.D. 984 to the now defunct National Pollution Control Commission (NPCC),
thus:

"Section 9. Penalties. - (a) Any person found violating or failing to comply with any order, decision or
regulation of the Commission for the control or abatement of pollution shall pay a fine not exceeding
five thousand pesos per day for every day during which such violation or default continues; and the
Commission is hereby authorized and empowered to impose the fine after due notice and hearing."

Nonetheless, it may be well to recall that the LLDA was created under R.A. 4850 with the end view of
promoting and accelerating the development and balanced growth of the Laguna Lake area and the
surrounding provinces, and carrying out the development of the Laguna Lake Region with due regard
and adequate provisions for environmental management and control, preservation of the quality of
human life and ecological systems, and the preservation of undue ecological disturbances, deterioration
and pollution. To correct deficiencies and clarify ambiguities that "impede the accomplishment of the
Authorities goal," Former President Ferdinand E. Marcos promulgated P.D. 813. Finally, to enable the
LLDA to effectively perform its role, Former President Marcos further issued E.O. 927, which granted the
LLDA additional powers and functions, viz:

"Section 4. Additional Powers and Functions. - The authority shall have the following powers and
functions:

xxx

(d) Make, alter or modify orders requiring the discontinuance of pollution specifying the conditions and
time within which such continuance must be accomplished.

xxx

(i) Exercise such powers and perform such other functions as may be necessary to carry out its duties
and responsibilities under this Executive order."

Indeed, the express grant of power to impose administrative fines as couched in the language of P.D.
984 was not reproduced in E.O. 927, however, it can be logically implied from LLDAs authority to
exercise the power to "make, alter or modify orders requiring the discontinuance of pollution." In
addition, the clear intendment of E.O. 927 to clothe LLDA not only with the express powers granted to it,
but also those implied, incidental and necessary for the exercise of its express powers can be easily
discerned from the grant of the general power to "exercise (such) powers and perform such other
functions as may be necessary to carry out its duties and responsibilities."

This finds support in the wealth of authorities in American Jurisprudence, citing adherence of other
courts to the principle that the authority given to an agency should be liberally construed in order to
permit the agency to carry out its statutory responsibilities. This is especially true where the agency is
concerned with protecting the public health and welfare, the delegation of authority to the agency is
liberally construed.
The LLDA, as an agency implementing pollution laws, rules and regulations, should be given some
measures of flexibility in its operations in order not to hamper it unduly in the fulfillment of its
objectives. How could it effectively perform its role if in every act of violation, it must resort to other
venue for the appropriate remedy, because it is impotent by itself to punish or deal with it?16 (Emphasis
in the original)

The Issues

Petitioner raises two issues:

1. Does the respondent LLDA have the implied power to impose fines as set forth in PD 984?

2. Does the grant of implied power to LLDA to impose penalties violate the rule on non-delegation of
legislative powers?17

The Ruling of the Court

We find the petition without merit.

Power of LLDA to Impose Fines

Petitioner asserts that LLDA has no power to impose fines since such power to impose penal sanctions,
which was once lodged with the National Pollution Control Commission (NPCC), is now assumed by the
Pollution Adjudication Board pursuant to Executive Order No. 192 (EO 192).18

We disagree with petitioner.

Presidential Decree No. 984 (PD 984)19 created and established the NPCC under the Office of the
President. EO 192, which reorganized the DENR, created the Pollution Adjudication Board under the
Office of the DENR Secretary which assumed the powers and functions of the NPCC with respect to
adjudication of pollution cases.

Section 19 of EO 192 provides:

SEC. 19. Pollution Adjudication Board. There is hereby created a Pollution Adjudication Board under
the Office of the Secretary. The Board shall be composed of the Secretary as Chairman, two (2)
Undersecretaries as may be designated by the Secretary, the Director of Environmental Management,
and three (3) others to be designated by the Secretary as members. The Board shall assume the powers
and functions of the Commission/Commissioners of the National Pollution Control Commission with
respect to the adjudication of pollution cases under Republic Act 3931 and Presidential Decree 984,
particularly with respect to Section 6 letters e, f, g, j, k, and p of P.D. 984. The Environmental
Management Bureau shall serve as the Secretariat of the Board. These powers and functions may be
delegated to the regional officers of the Department in accordance with rules and regulations to be
promulgated by the Board. (Emphasis supplied)

Section 6, paragraphs (e), (f), (g), (j), (k), and (p) of PD 984 referred to above states:
SEC. 6. Powers and Functions. The Commission shall have the following powers and functions:

xxx

(e) Issue orders or decisions to compel compliance with the provisions of this Decree and its
implementing rules and regulations only after proper notice and hearing.

(f) Make, alter or modify orders requiring the discontinuance of pollution specifying the conditions and
the time within which such discontinuance must be accomplished.

(g) Issue, renew, or deny permits, under such conditions as it may determine to be reasonable, for the
prevention and abatement of pollution, for the discharge of sewage, industrial waste, or for the
installation or operation of sewage works and industrial disposal system or parts thereof: Provided,
however, the Commission, by rules and regulations, may require subdivisions, condominium, hospitals,
public buildings and other similar human settlements to put up appropriate central sewerage system
and sewage treatment works, except that no permits shall be required of any new sewage works or
changes to or extensions of existing works that discharge only domestic or sanitary wastes from a single
residential building provided with septic tanks or their equivalent. The Commission may impose
reasonable fees and charges for the issuance or renewal of all permits herein required.

xxx

(j) Serve as arbitrator for the determination of reparations, or restitution of the damages and losses
resulting from pollution.

(k) Deputize in writing or request assistance of appropriate government agencies or instrumentalities for
the purpose of enforcing this Decree and its implementing rules and regulations and the orders and
decisions of the Commission.

xxx

(p) Exercise such powers and perform such other functions as may be necessary to carry out its duties
and responsibilities under this Decree.

On the other hand, LLDA is a special agency created under Republic Act No. 4850 (RA 4850)20 to manage
and develop the Laguna Lake region, comprising of the provinces of Rizal and Laguna and the cities of
San Pablo, Manila, Pasay, Quezon and Caloocan. RA 4850, as amended by Presidential Decree No. 813
(PD 813),21mandates LLDA to carry out the development of the Laguna Lake region, with due regard and
adequate provisions for environmental management and control, preservation of the quality of human
life and ecological systems, and the prevention of undue ecological disturbances, deterioration and
pollution.22

Under Executive Order No. 927 (EO 927),23 LLDA is granted additional powers and functions to
effectively perform its role and to enlarge its prerogatives of monitoring, licensing and enforcement,
thus:
SECTION 4. Additional Powers and Functions. The Authority [LLDA] shall have the following powers and
functions:

a) Issue standards, rules and regulations to govern the approval of plans and specifications for sewage
works and industrial waste disposal systems and the issuance of permits in accordance with the
provisions of this Executive Order; inspect the construction and maintenance of sewage works and
industrial waste disposal systems for compliance to plans.

b) Adopt, prescribe, and promulgate rules and regulations governing the Procedures of the Authority
with respect to hearings, plans, specifications, designs, and other data for sewage works and industrial
waste disposal system, the filing of reports, the issuance of permits, and other rules and regulations for
the proper implementation and enforcement of this Executive Order.

c) Issue orders or decisions to compel compliance with the provisions of this Executive Order and its
implementing rules and regulations only after proper notice and hearing.

d) Make, alter or modify orders requiring the discontinuance of pollution specifying the conditions and
the time within which such discontinuance must be accomplished.

e) Issue, renew or deny permits, under such conditions as it may determine to be reasonable, for the
prevention and abatement of pollution, for the discharge of sewage, industrial waste, or for the
installation or operation of sewage works and industrial disposal system or parts thereof: Provided,
however, that the Authority, by rules and regulations, may require subdivisions, condominiums,
hospitals, public buildings and other similar human settlements to put up appropriate central sewerage
system and sewage treatment works, except that no permits shall be required of any new sewage works
or changes to or extensions of existing works that discharge only domestic or sanitary wastes from a
single residential building provided with septic tanks or their equivalent. The Authority may impose
reasonable fees and charges for the issuance or renewal of all permits herein required.

f) After due notice and hearing, the Authority may also revoke, suspend or modify any permit issued
under this Order whenever the same is necessary to prevent or abate pollution.

g) Deputize in writing or request assistance of appropriate government agencies or instrumentalities for


the purpose of enforcing this executive Order and its implementing rules and regulations and the orders
and decision of the Authority.

h) Authorize its representative to enter at all reasonable times any property of the public dominion and
private property devoted to industrial, manufacturing processing or commercial use without doing
damage, for the purpose of inspecting and investigating conditions relating to pollution or possible or
imminent pollution.

i) Exercise such powers and perform such other functions as may be necessary to carry out its duties and
responsibilities under this Executive Order. (Emphasis supplied)
A comparison of the powers and functions of the Pollution Adjudication Board and the LLDA reveals
substantial similarity. Both the Pollution Adjudication Board and the LLDA are empowered, among
others, to: (1) make, alter or modify orders requiring the discontinuance of pollution; (2) issue, renew, or
deny permits for the prevention and abatement of pollution, for the discharge of sewage, industrial
waste, or for the installation or operation of sewage works and industrial disposal system; and (3)
exercise such powers and perform such other functions necessary to carry out their duties and
responsibilities. The difference is that while Section 19 of EO 192 vested the Pollution Adjudication
Board with the specific power to adjudicate pollution cases in general,24 the scope of authority of LLDA
to adjudicate pollution cases is limited to the Laguna Lake region as defined by RA 4850, as amended.

Thus, in Laguna Lake Development Authority v. Court of Appeals,25 the Court held that the adjudication
of pollution cases generally pertains to the Pollution Adjudication Board, except where a special law,
such as the LLDA Charter, provides for another forum. Indeed, even PD 984 authorizes the LLDA to
undertake pollution control activities within LLDAs development area. Section 10 of PD 984 provides:

SEC. 10. Jurisdiction. The Commission [NPCC] shall have no jurisdiction over waterworks or sewage
system operated by the Metropolitan Waterworks Sewerage System, but the rules and regulations
issued by the Commission for the protection and prevention of pollution under the authority herein
granted shall supersede and prevail over any rules or regulations as may heretofore have been issued by
other government agencies or instrumentalities on the same subject.

In case of development projects involving specific human settlement sites or integrated regional or
subregional projects, such as the Tondo Foreshore Development Authority and the Laguna Lake
Development Authority, the Commission shall consult with the authorities charged with the planning
and execution of such projects to ensure that their pollution control standards comply with those of the
Commission. Once minimum pollution standards are established and agreed upon, the development
authorities concerned may, by mutual agreement and prior consultation with the Commission,
undertake the pollution control activities themselves. (Boldfacing and underscoring supplied)1avvphi1

In this case, the DENRs Environmental Management Bureau endorsed to LLDA the pollution complaint
against petitioner. Under Section 16 of EO 192, the Environmental Management Bureau assumed the
powers and functions of the NPCC except with respect to adjudication of pollution cases, thus:

SEC. 16. Environmental Management Bureau. There is hereby created an Environmental Management
Bureau. The National Environmental Protection Council (NEPC), the National Pollution Control
Commission (NPCC) and the Environmental Center of the Philippines (ECP), are hereby abolished and
their powers and functions are hereby integrated into the Environmental Management Bureau in
accordance with Section 24(c) hereof, subject to Section 19 hereof. x x x (Emphasis supplied)

The Environmental Management Bureau also serves as the Secretariat of the Pollution Adjudication
Board, and its Director is one of the members of the Pollution Adjudication Board. Clearly, by endorsing
to LLDA the pollution complaint against petitioner, the Environmental Management Bureau deferred to
LLDAs jurisdiction over the pollution complaint against petitioner.
Although the Pollution Adjudication Board assumed the powers and functions of the NPCC with respect
to adjudication of pollution cases, this does not preclude LLDA from assuming jurisdiction of pollution
cases within its area of responsibility and to impose fines as penalty.

Thus, in the recent case of The Alexandra Condominium Corporation v. Laguna Lake Development
Authority,26the Court affirmed the ruling of the Court of Appeals which sustained LLDAs Order,
requiring petitioner therein to pay a fine of P1,062,000 representing penalty for pollutive wastewater
discharge. Although petitioner in that case did not challenge LLDAs authority to impose fine, the Court
acknowledged the power of LLDA to impose fines, holding that under Section 4-A of RA 4850, as
amended, LLDA is entitled to compensation for damages resulting from failure to meet established
water and effluent standards. Section 4-A of RA 4850, as amended, reads:

SEC. 4-A. Compensation for damages to the water and aquatic resources of Laguna de Bay and its
tributaries resulting from failure to meet established water and effluent quality standards or from such
other wrongful act or omission of a person, private or public, juridical or otherwise, punishable under
the law shall be awarded to the Authority to be earmarked for water quality control and management.

Under Section 4(h) of EO 927, LLDA may "exercise such powers and perform such other functions as may
be necessary to carry out its duties and responsibilities." In Laguna Lake Development Authority v. Court
of Appeals,27 the Court upheld the power of LLDA to issue an ex-parte cease and desist order even if
such power is not expressly conferred by law, holding that an administrative agency has also such
powers as are necessarily implied in the exercise of its express powers. The Court ruled that LLDA, in the
exercise of its express powers under its charter, as a regulatory and quasi-judicial body with respect to
pollution cases in the Laguna Lake region, has the implied authority to issue a "cease and desist order."
In the same manner, we hold that the LLDA has the power to impose fines in the exercise of its function
as a regulatory and quasi-judicial body with respect to pollution cases in the Laguna Lake region.

No Undue Delegation of Legislative Power

Petitioner contends that if LLDA is deemed to have implied power to impose penalties, then LLDA will
have unfettered discretion to determine for itself the penalties it may impose, which will amount to
undue delegation of legislative power.

We do not agree. Contrary to petitioners contention, LLDAs power to impose fines is not unrestricted.
In this case, LLDA investigated the pollution complaint against petitioner and conducted wastewater
sampling of petitioners effluent. It was only after the investigation result showing petitioners failure to
meet the established water and effluent quality standards that LLDA imposed a fine against petitioner.
LLDA then imposed upon petitioner a penalty of P1,000 per day of discharging pollutive wastewater.
The P1,000 penalty per day is in accordance with the amount of penalty prescribed under PD 984:

SEC. 8. Prohibitions. No person shall throw, run, drain, or otherwise dispose into any of the water, air
and/or land resources of the Philippines, or cause, permit, suffer to be thrown, run, drain, allow to seep
or otherwise dispose thereto any organic or inorganic matter or any substance in gaseous or liquid form
that shall cause pollution thereof.
xxx

SEC 9. Penalties. x x x

(b) Any person who shall violate any of the previous provisions of Section Eight of this Decree or its
implementing rules and regulations, or any Order or Decision of the Commission, shall be liable to a
penalty of not to exceed one thousand pesos each day during which the violation continues, or by
imprisonment of from two years to six years, or by both fine and imprisonment, and in addition such
person may be required or enjoined from continuing such violation as hereinafter provided.

x x x (Emphasis supplied)

Clearly, there are adequate statutory limitations on LLDAs power to impose fines which obviates
unbridled discretion in the exercise of such power.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 30 June 2004 and the Resolution
dated 8 September 2004 of the Court of Appeals in CA-G.R. SP No. 75238.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

G.R. No. 94759 January 21, 1991

TECHNOLOGY DEVELOPERS, INC., petitioner,


vs.
COURT OF APPEALS, HON. NARCISO T. ATIENZA as Presiding Judge, Bulacan, RTC, and HON. VICENTE
CRUZ, Acting Mayor and the MUNICIPALITY OF STA. MARIA, BULACAN, respondents.

Diosdado P. Peralta for petitioner.

GANCAYCO, J.:

The authority of the local executive to protect the community from pollution is the center of this
controversy.

The antecedent facts are related in the appealed decision of the Court of Appeals as follows:

Petitioner, a domestic private corporation engaged in the manufacture and export of charcoal briquette,
received a letter dated February 16, 1989 from private respondent acting mayor Pablo N. Cruz, ordering
the full cessation of the operation of the petitioner's plant located at Guyong, Sta. Maria, Bulacan, until
further order. The letter likewise requested Plant Manager Mr. Armando Manese to bring with him to
the office of the mayor on February 20, 1989 the following: a) Building permit; b) Mayor's permit; c)
Region III-Pollution of Environment and Natural Resources Anti-Pollution Permit; and of other
document.

At the requested conference on February 20, 1989, petitioner, through its representative, undertook to
comply with respondent's request for the production of the required documents. In compliance with
said undertaking, petitioner commenced to secure "Region III-Department of Environmental and Natural
Resources Anti-Pollution Permit," although among the permits previously secured prior to the operation
of petitioner's plant was a "Temporary Permit to Operate Air Pollution Installation" issued by the then
National Pollution Control Commission (now Environmental Management Bureau) and is now at a stage
where the Environmental Management Bureau is trying to determine the correct kind of anti-pollution
devise to be installed as part of petitioner's request for the renewal of its permit.

Petitioner's attention having been called to its lack of mayor's permit, it sent its representatives to the
office of the mayor to secure the same but were not entertained.

On April 6, 1989, without previous and reasonable notice upon petitioner, respondent acting mayor
ordered the Municipality's station commander to padlock the premises of petitioner's plant, thus
effectively causing the stoppage of its operation.

Left with no recourse, petitioner instituted an action for certiorari, prohibition, mandamus with
preliminary injunction against private respondent with the court a quo which is presided by the
respondent judge. In its prayer for the issuance of a writ of preliminary mandatory injunction, it alleged
therein that the closure order was issued in grave abuse of discretion.

During the hearing of the application for the issuance of a writ of preliminary injunction on April 14,
1989, herein parties adduced their respective evidences. The respondent judge, April 19, 1989, found
that petitioner is entitled to the issuance of the writ of preliminary mandatory injunction, hence, it
ordered as follows:

In view of the foregoing, upon petitioner's posting of a bond in the amount of P50,000.00 to answer for
such damages that respondents may sustain should petitioner eventually be found not entitled to the
injunctive relief hereby issued, let a PRELIMINARY MANDATORY INJUNCTION issue ordering the
respondent Hon. Pablo N. Cruz, and other person acting in his behalf and stead to immediately revoke
his closure order dated April 6, 1989, and allow petitioner to resume its normal business operations until
after the instant case shall have been adjudicated on the merits without prejudice to the inherent power
of the court to alter, modify or even revoke this order at any given time.

SO ORDERED.

The writ of preliminary mandatory injunction was issued on April 28, 1989, upon petitioner's posting a
bond in the amount of P50,000.00.
Private respondent filed his motion for reconsideration dated May 3, 1989. Said motion for
reconsideration was heard on May 30, 1989. Petitioner's counsel failed to appear and the hearing
proceeded with the Provincial Prosecutor presenting his evidence. The following documents were
submitted:

a) Exhibit "A", Investigation report on the Technology Developers Inc., prepared by one Marivic Guina,
and her conclusion and recommendation read:

Due to the manufacturing process and nature of raw materials used, the fumes coming from the factory
may contain particulate matters which are hazardous to the health of the people. As such, the company
should cease operating until such a time that the proper air pollution device is installed and operational.

b) Exhibits "B", "B-1", "B-2", three (3) sheets of coupon bond containing signatures of residents of
Barangay Guyong, Sta. Maria, Bulacan;

c) Exhibit "B-3", a letter addressed to Hon. Roberto Pagdanganan Governor of the Province of Bulacan,
dated November 22, 1988, complaining about the smoke coming out of the chimney of the company
while in operation.

Reassessing all the evidence adduced, the lower court, on June 14, 1989, issued an order (a) setting
aside the order dated April 28, 1989, which granted a Writ of Preliminary Mandatory Injunction, and (b)
dissolving the writ consequently issued.

A motion for reconsideration dated July 6, 1989 was filed by petitioner. Said motion drew an opposition
dated July 19, 1989 from private respondent.

Resolving the petitioner's motion for reconsideration, the respondent judge issued an order dated
August 9, 1989, denying said motion for reconsideration.1

Hence a petition for certiorari and prohibition with preliminary injunction was filed by petitioner in the
Court of Appeals seeking to annul and set aside (a) the order issued by the trial court on June 14, 1989,
setting aside the order dated April 28, 1989, and (b) the order of August 9, 1989, denying petitioner's
motion for reconsideration of the order of June 14, 1989. In due course the petition was denied for lack
of merit by the appellate court in a decision dated January 26, 1990. 2 A motion for reconsideration
thereof filed by petitioner was denied on August 10, 1990.

Thus, the herein petition for review on certiorari filed with this Court. Six errors are alleged to have been
committed by the appellate court which may be synthesized into the singular issue of whether or not
the appellate court committed a grave abuse of discretion in rendering its question decision and
resolution.

The petition is devoid of merit.

The well-known rule is that the matter of issuance of a writ of preliminary injunction is addressed to the
sound judicial discretion of the trial court and its action shall not be disturbed on appeal unless it is
demonstrated that it acted without jurisdiction or in excess of jurisdiction or otherwise, in grave abuse
of its discretion. By the same token the court that issued such a preliminary relief may recall or dissolve
the writ as the circumstances may warrant.

To the mind of the Court the following circumstances militate against the maintenance of the writ of
preliminary injunction sought by petitioner:

1. No mayor's permit had been secured. While it is true that the matter of determining whether there is
a pollution of the environment that requires control if not prohibition of the operation of a business is
essentially addressed to the then National Pollution Control Commission of the Ministry of Human
Settlements, now the Environmental Management Bureau of the Department of Environment and
Natural Resources, it must be recognized that the mayor of a town has as much responsibility to protect
its inhabitants from pollution, and by virture of his police power, he may deny the application for a
permit to operate a business or otherwise close the same unless appropriate measures are taken to
control and/or avoid injury to the health of the residents of the community from the emissions in the
operation of the business.

2. The Acting Mayor, in a letter of February 16, 1989, called the attention of petitioner to the pollution
emitted by the fumes of its plant whose offensive odor "not only pollute the air in the locality but also
affect the health of the residents in the area," so that petitioner was ordered to stop its operation until
further orders and it was required to bring the following:

(1) Building permit;

(2) Mayor's permit; and

(3) Region III-Department of Environment and Natural Resources Anti-Pollution permit. 3

3. This action of the Acting Mayor was in response to the complaint of the residents of Barangay
Guyong, Sta. Maria, Bulacan, directed to the Provincial Governor through channels.4 The alleged NBI
finding that some of the signatures in the four-page petition were written by one person, 5 appears to
be true in some instances, (particularly as among members of the same family), but on the whole the
many signatures appear to be written by different persons. The certification of the barrio captain of said
barrio that he has not received any complaint on the matter 6 must be because the complaint was sent
directly to the Governor through the Acting Mayor.

4. The closure order of the Acting Mayor was issued only after an investigation was made by Marivic
Guina who in her report of December 8, 1988 observed that the fumes emitted by the plant of
petitioner goes directly to the surrounding houses and that no proper air pollution device has been
installed.7

5. Petitioner failed to produce a building permit from the municipality of Sta. Maria, but instead
presented a building permit issued by an official of Makati on March 6,1987.8
6. While petitioner was able to present a temporary permit to operate by the then National Pollution
Control Commission on December 15, 1987, the permit was good only up to May 25, 1988.9 Petitioner
had not exerted any effort to extend or validate its permit much less to install any device to control the
pollution and prevent any hazard to the health of the residents of the community.

All these factors justify the dissolution of the writ of preliminary injunction by the trial court and the
appellate court correctly upheld the action of the lower court.

Petitioner takes note of the plea of petitioner focusing on its huge investment in this dollar-earning
industry.1wphi1 It must be stressed however, that concomitant with the need to promote investment
and contribute to the growth of the economy is the equally essential imperative of protecting the
health, nay the very lives of the people, from the deleterious effect of the pollution of the environment.

WHEREFORE, the petition is DENIED, with costs against petitioner.

SO ORDERED.

Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.

G.R. No. 110120 March 16, 1994

LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,


vs.
COURT OF APPEALS, HON. MANUEL JN. SERAPIO, Presiding Judge RTC, Branch 127, Caloocan City,
HON. MACARIO A. ASISTIO, JR., City Mayor of Caloocan and/or THE CITY GOVERNMENT OF
CALOOCAN,respondents.

Alberto N. Hidalgo and Ma. Teresa T. Oledan for petitioner.

The City Legal Officer & Chief, Law Department for Mayor Macario A. Asistio, Jr. and the City
Government of Caloocan.

ROMERO, J.:

The clash between the responsibility of the City Government of Caloocan to dispose off the 350 tons of
garbage it collects daily and the growing concern and sensitivity to a pollution-free environment of the
residents of Barangay Camarin, Tala Estate, Caloocan City where these tons of garbage are dumped
everyday is the hub of this controversy elevated by the protagonists to the Laguna Lake Development
Authority (LLDA) for adjudication.

The instant case stemmed from an earlier petition filed with this Court by Laguna Lake Development
Authority (LLDA for short) docketed as G.R.
No. 107542 against the City Government of Caloocan, et al. In the Resolution of November 10, 1992, this
Court referred G.R. No. 107542 to the Court of Appeals for appropriate disposition. Docketed therein as
CA-G.R. SP
No. 29449, the Court of Appeals, in a decision 1 promulgated on January 29, 1993 ruled that the LLDA
has no power and authority to issue a cease and desist order enjoining the dumping of garbage in
Barangay Camarin, Tala Estate, Caloocan City. The LLDA now seeks, in this petition, a review of the
decision of the Court of Appeals.

The facts, as disclosed in the records, are undisputed.

On March 8, 1991, the Task Force Camarin Dumpsite of Our Lady of Lourdes Parish, Barangay Camarin,
Caloocan City, filed a letter-complaint 2 with the Laguna Lake Development Authority seeking to stop the
operation of the 8.6-hectare open garbage dumpsite in Tala Estate, Barangay Camarin, Caloocan City
due to its harmful effects on the health of the residents and the possibility of pollution of the water
content of the surrounding area.

On November 15, 1991, the LLDA conducted an on-site investigation, monitoring and test sampling of
the leachate 3 that seeps from said dumpsite to the nearby creek which is a tributary of the Marilao
River. The LLDA Legal and Technical personnel found that the City Government of Caloocan was
maintaining an open dumpsite at the Camarin area without first securing an Environmental Compliance
Certificate (ECC) from the Environmental Management Bureau (EMB) of the Department of Environment
and Natural Resources, as required under Presidential Decree No. 1586, 4 and clearance from LLDA as
required under Republic Act No. 4850, 5 as amended by Presidential Decree No. 813 and Executive Order
No. 927, series of 1983. 6

After a public hearing conducted on December 4, 1991, the LLDA, acting on the complaint of Task Force
Camarin Dumpsite, found that the water collected from the leachate and the receiving streams could
considerably affect the quality, in turn, of the receiving waters since it indicates the presence of
bacteria, other than coliform, which may have contaminated the sample during collection or
handling. 7 On December 5, 1991, the LLDA issued a Cease and Desist Order 8 ordering the City
Government of Caloocan, Metropolitan Manila Authority, their contractors, and other entities, to
completely halt, stop and desist from dumping any form or kind of garbage and other waste matter at
the Camarin dumpsite.

The dumping operation was forthwith stopped by the City Government of Caloocan. However,
sometime in August 1992 the dumping operation was resumed after a meeting held in July 1992 among
the City Government of Caloocan, the representatives of Task Force Camarin Dumpsite and LLDA at the
Office of Environmental Management Bureau Director Rodrigo U. Fuentes failed to settle the problem.

After an investigation by its team of legal and technical personnel on August 14, 1992, the LLDA issued
another order reiterating the December 5, 1991, order and issued an Alias Cease and Desist Order
enjoining the City Government of Caloocan from continuing its dumping operations at the Camarin area.
On September 25, 1992, the LLDA, with the assistance of the Philippine National Police, enforced its
Alias Cease and Desist Order by prohibiting the entry of all garbage dump trucks into the Tala Estate,
Camarin area being utilized as a dumpsite.

Pending resolution of its motion for reconsideration earlier filed on September 17, 1992 with the LLDA,
the City Government of Caloocan filed with the Regional Trial Court of Caloocan City an action for the
declaration of nullity of the cease and desist order with prayer for the issuance of writ of injunction,
docketed as Civil Case No. C-15598. In its complaint, the City Government of Caloocan sought to be
declared as the sole authority empowered to promote the health and safety and enhance the right of
the people in Caloocan City to a balanced ecology within its territorial jurisdiction. 9

On September 25, 1992, the Executive Judge of the Regional Trial Court of Caloocan City issued a
temporary restraining order enjoining the LLDA from enforcing its cease and desist order. Subsequently,
the case was raffled to the Regional Trial Court, Branch 126 of Caloocan which, at the time, was presided
over by Judge Manuel Jn. Serapio of the Regional Trial Court, Branch 127, the pairing judge of the
recently-retired presiding judge.

The LLDA, for its part, filed on October 2, 1992 a motion to dismiss on the ground, among others, that
under Republic Act No. 3931, as amended by Presidential Decree No. 984, otherwise known as the
Pollution Control Law, the cease and desist order issued by it which is the subject matter of the
complaint is reviewable both upon the law and the facts of the case by the Court of Appeals and not by
the Regional Trial Court. 10

On October 12, 1992 Judge Manuel Jn. Serapio issued an order consolidating Civil Case No. C-15598 with
Civil Case No. C-15580, an earlier case filed by the Task Force Camarin Dumpsite entitled "Fr. John
Moran, et al. vs. Hon. Macario Asistio." The LLDA, however, maintained during the trial that the
foregoing cases, being independent of each other, should have been treated separately.

On October 16, 1992, Judge Manuel Jn. Serapio, after hearing the motion to dismiss, issued in the
consolidated cases an order 11 denying LLDA's motion to dismiss and granting the issuance of a writ of
preliminary injunction enjoining the LLDA, its agent and all persons acting for and on its behalf, from
enforcing or implementing its cease and desist order which prevents plaintiff City of Caloocan from
dumping garbage at the Camarin dumpsite during the pendency of this case and/or until further orders
of the court.

On November 5, 1992, the LLDA filed a petition for certiorari, prohibition and injunction with prayer for
restraining order with the Supreme Court, docketed as G.R. No. 107542, seeking to nullify the aforesaid
order dated October 16, 1992 issued by the Regional Trial Court, Branch 127 of Caloocan City denying its
motion to dismiss.

The Court, acting on the petition, issued a Resolution 12 on November 10, 1992 referring the case to the
Court of Appeals for proper disposition and at the same time, without giving due course to the petition,
required the respondents to comment on the petition and file the same with the Court of Appeals within
ten (10) days from notice. In the meantime, the Court issued a temporary restraining order, effective
immediately and continuing until further orders from it, ordering the respondents: (1) Judge Manuel Jn.
Serapio, Presiding Judge, Regional Trial Court, Branch 127, Caloocan City to cease and desist from
exercising jurisdiction over the case for declaration of nullity of the cease and desist order issued by the
Laguna Lake Development Authority (LLDA); and (2) City Mayor of Caloocan and/or the City Government
of Caloocan to cease and desist from dumping its garbage at the Tala Estate, Barangay Camarin,
Caloocan City.

Respondents City Government of Caloocan and Mayor Macario A. Asistio, Jr. filed on November 12,
1992 a motion for reconsideration and/or to quash/recall the temporary restraining order and an urgent
motion for reconsideration alleging that ". . . in view of the calamitous situation that would arise if the
respondent city government fails to collect 350 tons of garbage daily for lack of dumpsite (i)t is
therefore, imperative that the issue be resolved with dispatch or with sufficient leeway to allow the
respondents to find alternative solutions to this garbage problem."

On November 17, 1992, the Court issued a Resolution 13 directing the Court of Appeals to immediately
set the case for hearing for the purpose of determining whether or not the temporary restraining order
issued by the Court should be lifted and what conditions, if any, may be required if it is to be so lifted or
whether the restraining order should be maintained or converted into a preliminary injunction.

The Court of Appeals set the case for hearing on November 27, 1992, at 10:00 in the morning at the
Hearing Room, 3rd Floor, New Building, Court of Appeals. 14 After the oral argument, a conference was
set on December 8, 1992 at 10:00 o'clock in the morning where the Mayor of Caloocan City, the General
Manager of LLDA, the Secretary of DENR or his duly authorized representative and the Secretary of DILG
or his duly authorized representative were required to appear.

It was agreed at the conference that the LLDA had until December 15, 1992 to finish its study and review
of respondent's technical plan with respect to the dumping of its garbage and in the event of a rejection
of respondent's technical plan or a failure of settlement, the parties will submit within 10 days from
notice their respective memoranda on the merits of the case, after which the petition shall be deemed
submitted for resolution. 15 Notwithstanding such efforts, the parties failed to settle the dispute.

On April 30, 1993, the Court of Appeals promulgated its decision holding that: (1) the Regional Trial
Court has no jurisdiction on appeal to try, hear and decide the action for annulment of LLDA's cease and
desist order, including the issuance of a temporary restraining order and preliminary injunction in
relation thereto, since appeal therefrom is within the exclusive and appellate jurisdiction of the Court of
Appeals under Section 9, par. (3), of Batas Pambansa Blg. 129; and (2) the Laguna Lake Development
Authority has no power and authority to issue a cease and desist order under its enabling law, Republic
Act No. 4850, as amended by P.D. No. 813 and Executive Order
No. 927, series of 1983.

The Court of Appeals thus dismissed Civil Case No. 15598 and the preliminary injunction issued in the
said case was set aside; the cease and desist order of LLDA was likewise set aside and the temporary
restraining order enjoining the City Mayor of Caloocan and/or the City Government of Caloocan to cease
and desist from dumping its garbage at the Tala Estate, Barangay Camarin, Caloocan City was lifted,
subject, however, to the condition that any future dumping of garbage in said area, shall be in
conformity with the procedure and protective works contained in the proposal attached to the records
of this case and found on pages 152-160 of the Rollo, which was thereby adopted by reference and
made an integral part of the decision, until the corresponding restraining and/or injunctive relief is
granted by the proper Court upon LLDA's institution of the necessary legal proceedings.

Hence, the Laguna Lake Development Authority filed the instant petition for review on certiorari, now
docketed as G.R. No. 110120, with prayer that the temporary restraining order lifted by the Court of
Appeals be re-issued until after final determination by this Court of the issue on the proper
interpretation of the powers and authority of the LLDA under its enabling law.

On July, 19, 1993, the Court issued a temporary restraining order 16 enjoining the City Mayor of Caloocan
and/or the City Government of Caloocan to cease and desist from dumping its garbage at the Tala
Estate, Barangay Camarin, Caloocan City, effective as of this date and containing until otherwise ordered
by the Court.

It is significant to note that while both parties in this case agree on the need to protect the environment
and to maintain the ecological balance of the surrounding areas of the Camarin open dumpsite, the
question as to which agency can lawfully exercise jurisdiction over the matter remains highly open to
question.

The City Government of Caloocan claims that it is within its power, as a local government unit, pursuant
to the general welfare provision of the Local Government Code, 17 to determine the effects of the
operation of the dumpsite on the ecological balance and to see that such balance is maintained. On the
basis of said contention, it questioned, from the inception of the dispute before the Regional Trial Court
of Caloocan City, the power and authority of the LLDA to issue a cease and desist order enjoining the
dumping of garbage in the Barangay Camarin over which the City Government of Caloocan has territorial
jurisdiction.

The Court of Appeals sustained the position of the City of Caloocan on the theory that Section 7 of
Presidential Decree No. 984, otherwise known as the Pollution Control law, authorizing the defunct
National Pollution Control Commission to issue an ex-parte cease and desist order was not incorporated
in Presidential Decree No. 813 nor in Executive Order No. 927, series of
1983. The Court of Appeals ruled that under Section 4, par. (d), of Republic Act No. 4850, as amended,
the LLDA is instead required "to institute the necessary legal proceeding against any person who shall
commence to implement or continue implementation of any project, plan or program within the Laguna
de Bay region without previous clearance from the Authority."

The LLDA now assails, in this partition for review, the abovementioned ruling of the Court of Appeals,
contending that, as an administrative agency which was granted regulatory and adjudicatory powers
and functions by Republic Act No. 4850 and its amendatory laws, Presidential Decree No. 813 and
Executive Order No. 927, series of 1983, it is invested with the power and authority to issue a cease and
desist order pursuant to Section 4 par. (c), (d), (e), (f) and (g) of Executive Order No. 927 series of 1983
which provides, thus:
Sec. 4. Additional Powers and Functions. The authority shall have the following powers and functions:

xxx xxx xxx

(c) Issue orders or decisions to compel compliance with the provisions of this Executive Order and its
implementing rules and regulations only after proper notice and hearing.

(d) Make, alter or modify orders requiring the discontinuance of pollution specifying the conditions and
the time within which such discontinuance must be accomplished.

(e) Issue, renew, or deny permits, under such conditions as it may determine to be reasonable, for the
prevention and abatement of pollution, for the discharge of sewage, industrial waste, or for the
installation or operation of sewage works and industrial disposal system or parts thereof.

(f) After due notice and hearing, the Authority may also revoke, suspend or modify any permit issued
under this Order whenever the same is necessary to prevent or abate pollution.

(g) Deputize in writing or request assistance of appropriate government agencies or instrumentalities for
the purpose of enforcing this Executive Order and its implementing rules and regulations and the orders
and decisions of the Authority.

The LLDA claims that the appellate court deliberately suppressed and totally disregarded the above
provisions of Executive Order No. 927, series of 1983, which granted administrative quasi-judicial
functions to LLDA on pollution abatement cases.

In light of the relevant environmental protection laws cited which are applicable in this case, and the
corresponding overlapping jurisdiction of government agencies implementing these laws, the resolution
of the issue of whether or not the LLDA has the authority and power to issue an order which, in its
nature and effect was injunctive, necessarily requires a determination of the threshold question: Does
the Laguna Lake Development Authority, under its Charter and its amendatory laws, have the authority
to entertain the complaint against the dumping of garbage in the open dumpsite in Barangay Camarin
authorized by the City Government of Caloocan which is allegedly endangering the health, safety, and
welfare of the residents therein and the sanitation and quality of the water in the area brought about by
exposure to pollution caused by such open garbage dumpsite?

The matter of determining whether there is such pollution of the environment that requires control, if
not prohibition, of the operation of a business establishment is essentially addressed to the
Environmental Management Bureau (EMB) of the DENR which, by virtue of Section 16 of Executive
Order No. 192, series of 1987, 18 has assumed the powers and functions of the defunct National
Pollution Control Commission created under Republic Act No. 3931. Under said Executive Order, a
Pollution Adjudication Board (PAB) under the Office of the DENR Secretary now assumes the powers and
functions of the National Pollution Control Commission with respect to adjudication of pollution cases. 19

As a general rule, the adjudication of pollution cases generally pertains to the Pollution Adjudication
Board (PAB), except in cases where the special law provides for another forum. It must be recognized in
this regard that the LLDA, as a specialized administrative agency, is specifically mandated under Republic
Act No. 4850 and its amendatory laws to carry out and make effective the declared national policy 20 of
promoting and accelerating the development and balanced growth of the Laguna Lake area and the
surrounding provinces of Rizal and Laguna and the cities of San Pablo, Manila, Pasay, Quezon and
Caloocan 21 with due regard and adequate provisions for environmental management and control,
preservation of the quality of human life and ecological systems, and the prevention of undue ecological
disturbances, deterioration and pollution. Under such a broad grant and power and authority, the LLDA,
by virtue of its special charter, obviously has the responsibility to protect the inhabitants of the Laguna
Lake region from the deleterious effects of pollutants emanating from the discharge of wastes from the
surrounding areas. In carrying out the aforementioned declared policy, the LLDA is mandated, among
others, to pass upon and approve or disapprove all plans, programs, and projects proposed by local
government offices/agencies within the region, public corporations, and private persons or enterprises
where such plans, programs and/or projects are related to those of the LLDA for the development of the
region. 22

In the instant case, when the complainant Task Force Camarin Dumpsite of Our Lady of Lourdes Parish,
Barangay Camarin, Caloocan City, filed its letter-complaint before the LLDA, the latter's jurisdiction
under its charter was validly invoked by complainant on the basis of its allegation that the open
dumpsite project of the City Government of Caloocan in Barangay Camarin was undertaken without a
clearance from the LLDA, as required under Section 4, par. (d), of Republic Act. No. 4850, as amended by
P.D. No. 813 and Executive Order No. 927. While there is also an allegation that the said project was
without an Environmental Compliance Certificate from the Environmental Management Bureau (EMB)
of the DENR, the primary jurisdiction of the LLDA over this case was recognized by the Environmental
Management Bureau of the DENR when the latter acted as intermediary at the meeting among the
representatives of the City Government of Caloocan, Task Force Camarin Dumpsite and LLDA sometime
in July 1992 to discuss the possibility of
re-opening the open dumpsite.

Having thus resolved the threshold question, the inquiry then narrows down to the following issue: Does
the LLDA have the power and authority to issue a "cease and desist" order under Republic Act No. 4850
and its amendatory laws, on the basis of the facts presented in this case, enjoining the dumping of
garbage in Tala Estate, Barangay Camarin, Caloocan City.

The irresistible answer is in the affirmative.

The cease and desist order issued by the LLDA requiring the City Government of Caloocan to stop
dumping its garbage in the Camarin open dumpsite found by the LLDA to have been done in violation of
Republic Act No. 4850, as amended, and other relevant environment laws, 23 cannot be stamped as an
unauthorized exercise by the LLDA of injunctive powers. By its express terms, Republic Act No. 4850, as
amended by P.D. No. 813 and Executive Order No. 927, series of 1983, authorizes the LLDA to "make,
alter or modify order requiring the discontinuance or pollution." 24(Emphasis supplied) Section 4, par. (d)
explicitly authorizes the LLDA to make whatever order may be necessary in the exercise of its
jurisdiction.
To be sure, the LLDA was not expressly conferred the power "to issue and ex-parte cease and desist
order" in a language, as suggested by the City Government of Caloocan, similar to the express grant to
the defunct National Pollution Control Commission under Section 7 of P.D. No. 984 which, admittedly
was not reproduced in P.D. No. 813 and E.O. No. 927, series of 1983. However, it would be a mistake to
draw therefrom the conclusion that there is a denial of the power to issue the order in question when
the power "to make, alter or modify orders requiring the discontinuance of pollution" is expressly and
clearly bestowed upon the LLDA by Executive Order No. 927, series of 1983.

Assuming arguendo that the authority to issue a "cease and desist order" were not expressly conferred
by law, there is jurisprudence enough to the effect that the rule granting such authority need not
necessarily be express.25 While it is a fundamental rule that an administrative agency has only such
powers as are expressly granted to it by law, it is likewise a settled rule that an administrative agency
has also such powers as are necessarily implied in the exercise of its express powers. 26 In the exercise,
therefore, of its express powers under its charter as a regulatory and quasi-judicial body with respect to
pollution cases in the Laguna Lake region, the authority of the LLDA to issue a "cease and desist order"
is, perforce, implied. Otherwise, it may well be reduced to a "toothless" paper agency.

In this connection, it must be noted that in Pollution Adjudication Board v. Court of Appeals, et al., 27 the
Court ruled that the Pollution Adjudication Board (PAB) has the power to issue an ex-parte cease and
desist order when there is prima facie evidence of an establishment exceeding the allowable standards
set by the anti-pollution laws of the country. Theponente, Associate Justice Florentino P. Feliciano,
declared:

Ex parte cease and desist orders are permitted by law and regulations in situations like that here
presented precisely because stopping the continuous discharge of pollutive and untreated effluents into
the rivers and other inland waters of the Philippines cannot be made to wait until protracted litigation
over the ultimate correctness or propriety of such orders has run its full course, including multiple and
sequential appeals such as those which Solar has taken, which of course may take several years. The
relevant pollution control statute and implementing regulations were enacted and promulgated in the
exercise of that pervasive, sovereign power to protect the safety, health, and general welfare and
comfort of the public, as well as the protection of plant and animal life, commonly designated as the
police power. It is a constitutional commonplace that the ordinary requirements of procedural due
process yield to the necessities of protecting vital public interests like those here involved, through the
exercise of police power. . . .

The immediate response to the demands of "the necessities of protecting vital public interests" gives
vitality to the statement on ecology embodied in the Declaration of Principles and State Policies or the
1987 Constitution. Article II, Section 16 which provides:

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.

As a constitutionally guaranteed right of every person, it carries the correlative duty of non-impairment.
This is but in consonance with the declared policy of the state "to protect and promote the right to
health of the people and instill health consciousness among them." 28 It is to be borne in mind that the
Philippines is party to the Universal Declaration of Human Rights and the Alma Conference Declaration
of 1978 which recognize health as a fundamental human right. 29

The issuance, therefore, of the cease and desist order by the LLDA, as a practical matter of procedure
under the circumstances of the case, is a proper exercise of its power and authority under its charter
and its amendatory laws. Had the cease and desist order issued by the LLDA been complied with by the
City Government of Caloocan as it did in the first instance, no further legal steps would have been
necessary.

The charter of LLDA, Republic Act No. 4850, as amended, instead of conferring upon the LLDA the means
of directly enforcing such orders, has provided under its Section 4 (d) the power to institute "necessary
legal proceeding against any person who shall commence to implement or continue implementation of
any project, plan or program within the Laguna de Bay region without previous clearance from the
LLDA."

Clearly, said provision was designed to invest the LLDA with sufficiently broad powers in the regulation
of all projects initiated in the Laguna Lake region, whether by the government or the private sector,
insofar as the implementation of these projects is concerned. It was meant to deal with cases which
might possibly arise where decisions or orders issued pursuant to the exercise of such broad powers
may not be obeyed, resulting in the thwarting of its laudabe objective. To meet such contingencies, then
the writs of mandamus and injunction which are beyond the power of the LLDA to issue, may be sought
from the proper courts.

Insofar as the implementation of relevant anti-pollution laws in the Laguna Lake region and its
surrounding provinces, cities and towns are concerned, the Court will not dwell further on the related
issues raised which are more appropriately addressed to an administrative agency with the special
knowledge and expertise of the LLDA.

WHEREFORE, the petition is GRANTED. The temporary restraining order issued by the Court on July 19,
1993 enjoining the City Mayor of Caloocan and/or the City Government of Caloocan from dumping their
garbage at the Tala Estate, Barangay Camarin, Caloocan City is hereby made permanent.

SO ORDERED.

Feliciano, Bidin, Melo and Vitug, JJ., concur.

G.R. Nos. 186739-960 April 17, 2013

LEOVEGILDO R. RUZOL, Petitioner,


vs.
THE HON. SANDIGANBAYAN and the PEOPLE OF THE PHILIPPINES, Respondents.
DECISION

VELASCO, JR., J.:

This is an appeal seeking to nullify the December 19, 2008 Decision1 of the First Division of the
Sandiganbayan in Criminal Case Nos. SB-08-CRIM-0039 to 0259, which convicted Leovegildo R. Ruzol
(Ruzol), then Mayor of General Nakar, Quezon, of Usurpation of Official Functions penalized under
Article 177 of the Revised Penal Code (RPC).

The Facts

Ruzol was the mayor of General Nakar, Quezon from 2001 to 2004. Earlier in his term, he organized a
Multi-Sectoral Consultative Assembly composed of civil society groups, public officials and concerned
stakeholders with the end in view of regulating and monitoring the transportation of salvaged forest
products within the vicinity of General Nakar. Among those present in the organizational meeting were
Provincial Environment and Natural Resources Officer (PENRO) Rogelio Delgado Sr. and Bishop Julio
Xavier Labayen, the OCD-DD of the Prelature of Infanta Emeritus of the Catholic Church and Chairperson
of TIPAN, an environmental non-government organization that operates in the municipalities of General
Nakar, Infanta and Real in Quezon province. During the said assembly, the participants agreed that to
regulate the salvaged forests products, the Office of the Mayor, through Ruzol, shall issue a permit to
transport after payment of the corresponding fees to the municipal treasurer.2

Consequently, from 2001 to 2004, two hundred twenty-one (221) permits to transport salvaged forest
products were issued to various recipients, of which forty-three (43) bore the signature of Ruzol while
the remaining one hundred seventy-eight (178) were signed by his co-accused Guillermo T. Sabiduria
(Sabiduria), then municipal administrator of General Nakar.3

On June 2006, on the basis of the issued Permits to Transport, 221 Informations for violation of Art. 177
of the RPC or for Usurpation of Authority or Official Functions were filed against Ruzol and Sabiduria,
docketed as Criminal Case Nos. SB-08-CRIM-0039 to 0259.

Except for the date of commission, the description of forest product, person given the permit, and
official receipt number, the said Informations uniformly read:

That, on (date of commission) or sometime prior or subsequent thereto, in General Nakar, Quezon, and
within the jurisdiction of this Honorable Court, the above-named accused Leovegildo R. Ruzol and
Guillermo M. Sabiduria, both public officers, being then the Municipal Mayor and Municipal
Administrator, respectively, of General Nakar, Quezon, taking advantage of their official position and
committing the offense in relation to their office, conspiring and confederating with each other did then
and there willfully, unlawfully and criminally, issue permit to transport (description of forest product) to
(person given the permit) under O.R. No. (official receipt number) under the pretense of official position
and without being lawfully entitled to do so, such authority properly belonging to the Department of
Environment and Natural Resources, to the damage and prejudice of the of the government.

CONTRARY TO LAW.4
The details for each Information are as follows:5

Criminal Date of Description of Forest Person Given the Official


Case Commission Product Permit Receipt
No. No.

0039 20 Jan. 2004 1,000 board ft malaruhat/ David Villareal Jr. 1623446
marang

0040 16 Jan. 2004 600 board ft lawaan Pepito Aumentado 1623463

0041 15 Jan. 2004 100 pcs. malaruhat Francisco Mendoza 1708352


(assorted sizes)

0042 15 Jan. 2004 300 cubic m or 3,000 board Edmundo dela Vega 1708353
ft good lumber

0043 15 Jan. 2004 600 board ft good lumber David Villareal, Jr. 1708321

0044 15 Jan. 2004 1,050 board ft good lumber Romeo Sabiduria 1708322

0045 12 Jan. 2004 1,000 board ft malaruhat Nestor Astejada 1625521

0046 09 Jan. 2004 4,000 board ft good lumber Naty Orozco 1623421
(assorted sizes)

0047 08 Jan. 2004 700 board ft lauan Winnie Aceboque 1623415

0048 05 Jan. 2004 500 board ft lauan Edmundo dela Vega 1623041

0049 07 Jan. 2004 4 x 5 haligi Mercy Vargas 1623314

0050 06 Jan. 2004 good lumber Mario Pujeda 1623310

0051 21 Oct. 2002 1,000 board ft sliced Conchita Odi 0830825


lumber

0052 21 Oct. 2002 400 board ft sliced lumber Lita Crisostomo 0830826
0053 28 Oct. 2002 450 board ft marang Agosto Astoveza 0830829
lumber

0054 08 Jan. 2003 300 board ft sliced lumber Edna E. Moises 0943941
(assorted sizes)

0055 13 Jan. 2003 1,500 board ft sliced Dante Z. Medina 0943964


lumber (assorted sizes)

0056 16 Jan. 2003 400 board ft sliced lumber Johnny A. Astoveza 0943975
(assorted sizes)

0057 27 Jan. 2003 7 pcs sliced lumber & 1 Sonny Leynes 1181827
piece 18 roda

0058 14 Feb. 2003 2,000 pcs trophy (wood Flordeliza Espiritu 1182033
carvings)

0059 17 Feb. 2003 700 board ft sliced lumber Nestor Astejada 1181917
(assorted sizes)

0060 18 Feb. 2003 1,632 board ft hard wood, Arthur/ Lanie 1182207
kisame & sanipa Occea

0061 20 Feb. 2004 126 pcs lumber Lamberto 1708810


Aumentado

0062 3 March 2003 450 board ft hard wood Nestor Astoveza 1182413
(assorted sizes)

0063 6 March 2003 160 pcs sliced lumber Remedios Orozco 1182366
(assorted sizes)

0064 10 March 1,500 board ft malaruhat Nestor Astejada 1181996


2003 (assorted sizes)

0065 11 March 900 board ft sliced lumber Fernando Calzado 1182233


2003 (assorted sizes)
0066 13 March 1,408 board ft hard wood Nestor Astejada 1182553
2003 (assorted sizes)

0067 20 March 90 pcs. sliced lumber Remy Orozco 1182157


2003 (assorted sizes)

0068 21 March 90 pcs. sliced lumber Rene Francia 1182168


2003 (assorted sizes)

0069 25 March 500 board ft lumber Thelma Ramia 1182179


2003 (assorted sizes)

0070 26 March 1 pc. 60 x 75 bed (narra) Roy Justo 1182246


2003 finished product

0071 14 April 2004 95 pcs. kalap (9 ft.); 6 pcs. Anita Solloza 3651059
post (10 ft.) & 500 pcs.
Anahaw

0072 08 April 2004 460 board ft lumber Remy Orozco 3651101


(assorted sizes)

0073 14 April 2004 69 pcs. sliced lumber Dindo America 3651101


(assorted sizes)

0074 23 April 2003 870 board ft hard lumber Amado Pradillada 3651268
(assorted sizes)

0075 24 April 2003 400 board ft lumber Romy Buendicho 3651237


(assorted sizes)

0076 24 April 2003 400 board ft rattan Emmanuel 3651324


Buendicho

0077 30 April 2004 1,000 board ft good lumber Mylene Moises 3651335-C
(assorted sizes)

0078 30 April 2004 500 board ft sliced lumber Carlito Vargas 3651336
(assorted sizes)
0079 08 May 2003 72 x 78 bed (narra); 3 pcs. Fely Justo 3651519
60 x 75 bed (ling manok)
& 1 pc. 48 x 75 ed (kuling
manok) finished product

0080 12 May 2003 294 board ft lumber Virgilio Cuerdo 3650927

0081 13 May 2003 43 pcs. sliced lumber Amando Lareza 3651783


(assorted sizes)

0082 14 May 2003 750 board ft good lumber Wilma Cuerdo 3651529

0083 15 May 2003 440 board ft lumber Marte Cuballes 3651532

0084 15 May 2003 214 pcs. 2x6x7 or 1,500 Anneliza Vargas 3651531
board ft finished product

0085 26 May 2003 57 pcs. sliced lumber Danny Sanchez 3651585


(assorted sizes)

0086 27 May 2003 400 board ft cut woods Emy Francia 3651394

0087 30 May 2003 300 board ft lumber Daisy Cuerdo 3650943

0088 30 May 2003 1,000 board ft lumber Lea Astoveza 3651161


(assorted sizes)

0089 05 June 2003 130 pcs. or 1,500 board ft Jose Noly Moises 3651809
lumber cut woods

0090 06 June 2003 300 board ft lumber Mercy Escaraga 3651169

0091 18 June 2003 800 board ft good lumber Dante Medena 3651749

0092 24 June 2003 28 pcs. good lumber Virgilio Cuerdo 1247102


(assorted sizes)

0093 25 June 2003 190 pcs. good lumber Dante Medina 1247205
(assorted sizes)

0094 02 July 2003 800 board ft. good lumber Dante Medina 1247221

0095 02 July 2003 105 pcs. fresh cut lumber Emmanuel Lusang 1247167
(assorted sizes)

0096 04 July 2003 Assorted sizes of good Alberto dela Cruz 1247172
Lumber

0097 07 July 2003 Bulukan woods Conchita Ligaya 1247175

0098 07 July 2003 6 pcs. Haligi Jane Bulagay 1247173

0099 11 July 2003 700 board ft. cut woods Dominador Aveno 1247452

0100 14 July 200 800 board ft. cut wood/ Dante Medina 1247180
lumber

0101 16 July 2003 600 board ft. cut lumber Rachelle Solana 1247182

0102 23 July 2003 1,200 board ft. hard lumber Necito Crisostomo 1247188

0103 23 July 2003 700 board ft. good lumber Nestor Astejada 1247129

0104 28 July 2003 959 board ft. cut lumber Necito Crisostomo 1247428

0105 29 July 2003 600 board ft. lumber Marilou Astejada 1247191

0106 01 Aug. 2003 1,000 board Malaruhat Ruel Ruzol 1247198

0107 05 Aug. 2003 800 board ft. lumber Virgilio Aumentado 1322853

0108 08 Aug. 2003 4.8 cubic ft. Amlang Rosa Turgo 1322862
woods

0109 12 Aug. 2003 788 Board ft. cut woods Maria Teresa 1322865
Adornado
0110 25 Aug. 2003 500 board ft. assorted Romy Buendicho 1322929
lumber

0111 28 Aug. 2003 2 sala sets Roy Justo 1322879

0112 29 Aug. 2003 456 pieces good lumber Marilou Astejada 1323056
(assorted sizes)

0113 03 Sept. 2003 5 cubic ft softwoods Rosa Turgo 1322834


(assorted sizes)

0114 05 Sept. 2003 1,000 board ft. good Agustin Vargas 1323064
lumber (assorted sizes)

0115 08 Sept. 2003 80 pcs. wood post Peter Banton 1323124

0116 09 Sept. 2003 1 forward load (soft wood) Efifania V. Astrega 1323023

0117 11 Sept. 2003 1 forward load (assorted Noling Multi 1323072


species) Purpose Corp.

0118 11 Sept. 2003 500 board ft. good lumber Agustin Vargas 1323071

0119 12 Sept. 2003 900 board ft. good lumber Nestor Astejada 1323073
(assorted sizes)

0120 15 Sept. 2003 950 board ft. Malaruhat Edna Moises 1323128

0121 16 Sept. 2003 14 pcs. Panel door Roy Justo 1323041

0122 17 Sept. 2003 546 board ft. soft woods Mr. Marquez 1322951

0123 19 Sept. 2003 1,600 board ft. good Decembrano 1323085


lumber (assorted sizes) Sabiduria

0124 22 Sept. 2003 900 board ft. good lumber Jeffrey dela Vega 1323095

0125 22 Sept. 2003 1 Jeep load hard wood Federico Marquez 1323100
0126 25 Sept. 2003 750 board ft. Malaruhat/ Virgilio Villareal 1323252
Marang

0127 03 Oct. 2003 750 board ft. Malaruhat/ Virgilio Villareal 1323252
Marang

0128 02 Oct. 2003 60 pcs. good lumber Nestor Astorza 1482662


(assorted sizes)

0129 03 Oct. 2003 1,600 board ft. good Virgilio Villareal 1482666
lumber (assorted sizes)

0130 03 Oct. 2003 400 board ft. Malaruhat Amado Pradillada 1482815
(assorted sizes)

0131 03 Oct. 2003 1 full load (soft wood) Flordeliza Espiritu 1482867

0132 03 Oct. 2003 6,342 board ft sticks Joel Pacaiqui 1482716

0133 03 Oct. 2003 6,090 board ft sticks Joel Pacaiqui 1482717

0134 07 Oct. 2003 900 board ft. good lumber Mylene Moises 1482670
(assorted sizes)

0135 13 Oct. 2003 600 board ft. Lawaan Winnie Acebaque 1482734
(assorted sizes)

0136 13 Oct. 2003 1,700 board ft. Malaruhat Nestor Bautista 1482740
(assorted sizes)

0137 13 Oct. 2003 300 board ft. Lawaan Trinidad Guerero 1482774
(assorted sizes)

0138 16 Oct. 2003 700 board ft. Lawaan Federico Marquez 1482782

0139 17 Oct. 2003 4,602 board ft. good Nenita Juntreal 1482787
lumber (assorted sizes)
0140 20 Oct. 2003 1,700 board ft. Malaruhat Belen Ordinado 1482793
(assorted sizes)

0141 23 Oct. 2003 66 pcs. good lumber Nestor Astejada 1482847


(assorted sizes)

0142 25 Oct. 2003 1,700 board ft. good Dante Medina 1323277
lumber

0143 27 Oct. 2003 1,800 board ft. good Dante Medina 1482951
lumber (assorted sizes)

0144 28 Oct. 2003 1,254 board ft. good Jonathan Supremo 1323281
lumber (assorted sizes)

0145 28 Oct. 2003 2,500 board ft. lumber Ramir Sanchez 1483001
(assorted sizes)

0146 28 Oct. 2003 500 board ft. good lumber Rolando Franela 1323280
(assorted sizes)

0147 03 Nov. 2003 850 finished products Naty Orozco 1483020


(cabinet component,
balusters, door jambs)

0148 03 Nov. 2003 400 board ft. good lumber Elizabeth Junio 1483022
(assorted sizes) & 6
bundles of sticks

0149 10 Nov. 2003 1,770 board ft. good Dante Medina 1483032
lumber (assorted sizes)

0150 10 Nov. 2003 1,000 board ft. lumber Nestor Astejada 1483033

0151 12 Nov. 2003 900 board ft. lumber Federico Marquez 1483041
(assorted sizes)

0152 12 Nov. 2003 Mini dump truck good Rizalito Francia 1483042
lumber (assorted sizes)
0153 14 Nov. 2003 500 components, 100 pcs Annie Gonzales 1483070
balusters (assorted sizes of
stringers, tassels)

0154 14 Nov. 2003 700 board ft. good lumber Winnie Aceboque 1323287

0155 17 Nov. 2003 1,600 board ft. Malaruhat Federico Marquez 1483072
lumber (assorted sizes)

0156 05 Nov. 2003 400 board ft. Tapil & 7 Belen Ordinado 1483023
pcs. 1x10x14

0157 05 Nov. 2003 1,000 board ft. lumber Leonardo Aveno 1623003
(assorted sizes)

0158 05 Nov. 2003 150 board ft. good lumber Francisco Mendoza 1483027

0159 07 Nov. 2003 433 bundles of semi-finished Naty Orozco 1483031


products

0160 08 Nov. 2003 800 board ft. lumber Armando Pradillada 1483134
(assorted sizes)

0161 25 Nov. 2003 30 pcs. sliced lumber Ariel Molina 1632059

0162 19 Nov. 2003 1,000 board ft. good Dante Medina 1623053
lumber (assorted sizes)

0163 20 Nov. 2003 500 board ft. good lumber Maria Teresa 1323288
(assorted sizes) Adornado

0164 20 Nov. 2003 1,500 board ft. good Romeo Sabiduria 1483080
lumber (assorted sizes)

0165 21 Nov. 2003 1,000 board ft. Malaruhat Dante Medina 1623057
lumber (assorted sizes)

0166 25 Oct. 2003 2,000 board ft. lumber Federico Marquez 1322982
(assorted sizes)
0167 25 Nov. 2003 500 board ft. Malaruhat Federico Marquez 1483090

0168 25 Nov. 2003 70 bundles of Rattan Manuel Buendicho 1483095


(assorted sizes)

0169 28 Nov. 2003 6,542 board ft. finished Nenita Juntareal 1623019
products (cabinet and
components)

0170 01 Dec. 2003 400 board ft. Malaruhat Federico Marquez 1623061

0171 01 Dec. 2003 500 board ft. good lumber Nestor Astejada 1483123

0172 01 Dec. 2003 1,500 board ft. lumber Belen Ordinado 1623063
(assorted sizes)

0173 03 Dec. 2003 500 board ft. Laniti Rosa Turgo 1483125

0174 04 Dec. 2003 1,000 board ft. lumber Dante Medina 1483127

0175 04 Dec. 2003 26 pcs. lumber (assorted Nenita Juntareal 1483128


sizes) & 2 bundles of sticks

0176 05 Dec. 2003 800 board ft. lumber Nestor Astejada 1483131

0177 08 Dec. 2003 678 board ft. good lumber Elenor Rutaquio 1623082
(assorted sizes)

0178 08 Dec. 2003 200 board ft. lumber William Rutaquio 1623010
(assorted sizes)

0179 09 Dec. 2003 1,800 board ft. lumber Nestor Astejada 1623090

0180 12 Dec. 2003 One jeep load of good Angelo Avellano 1623099
lumber (assorted sizes)

0181 12 Dec. 2003 One jeep load of good Angelo Avellano 1623099
lumber (assorted sizes)
0182 12 Dec. 2003 800 board ft. lumber Pepito Aumentado 1483147

0183 16 Dec. 2003 600 board ft. Malaruhat Jonathan Marcial 1623033

0184 16 Dec. 2003 650 board ft. lumber Pepito Aumentado 1482987

0185 16 Dec. 2003 1,000 board ft. Malaruhat Dante Medina 1482986

0186 18 Dec. 2003 100 board ft. lumber Aladin Aveno 1322992

0187 19 Dec. 2003 780 board ft. lumber Pepito Aumentado 1323000

0188 19 Dec. 2003 1,500 board ft. coco Felecita Marquez 1322998
lumber

0189 22 Dec. 2003 600 board ft. lumber Belen C. Ordinado 1623209

0190 29 Dec. 2003 600 board ft. Lawaan Winnie Aciboque 1623211

0191 29 Dec. 2003 300 board ft. lumber Yolanda Crisostomo 1623210

0192 30 Dec. 2003 800 board ft. Lawaan Pepito Aumentado 1623215

0193 20 Nov. 2003 150 board ft. good lumber Francisco Mendoza 1483086
(assorted sizes)

0194 30 June 2003 450 board ft. fresh cut Mylene Moises 1247126
lumber

0195 13 July 2001 1 L-300 load of finished Evangeline Moises 9894843-Q


and semi-finished products

0196 02 July 2001 96 pcs. good lumber Rollie L. Velasco 9894996-Q


(assorted sizes)

0197 07 May 2004 1,500 board ft. babayahin Nemia Molina 200647
lumber
0198 19 April 2004 107 pcs. sliced lumber Carlo Gudmalin 1868050
(assorted sizes)

0199 5 March 2004 10 pcs. Deadwood Elizabeth Junio 1708899


(Bulakan)

0200 2 March 2004 600 board ft. Amalang Roda Turgo 1867608
wood

0201 1 March 2004 149 sliced lumber (assorted Necito Crisostomo 1708891
sizes)

0202 1 March 2004 80 bundles of rattan Manuel Buendicho 1708890

0203 23 Feb. 2004 30 pcs. sliced lumber Leonardo Aveno 1708863


(assorted sizes)

0204 13 Feb. 2004 50 pcs. sliced sliced lumber Federico Marquez 1708698
(assorted sizes)

0205 12 Feb. 2004 69 pcs. sliced sliced lumber Florencio Borreo 1708694
(assorted sizes)

0206 17 Feb. 2004 50 pcs. sliced sliced lumber Ronnie Astejada 1708774
(assorted sizes)

0207 04 Feb. 2004 600 board ft. sliced lumber Pepito Aumentado 1708486
(assorted sizes)

0208 1 March 2004 21 pcs. Lawaan (assorted Atan Marquez 1708878


sizes)

0209 4 Feb. 2004 563 board ft. sliced lumber Decembrano 1708487
(assorted sizes) Sabiduria

0210 06 Feb. 2004 80 pcs. Buukan (Ugat) Maila S. Orozco 1708547

0211 30 Jan. 2004 1,000 board ft. good Pepito Aumentado 1708534
lumber (assorted sizes)
0212 29 Jan. 2004 950 board ft. good lumber Leonardo Moises 1708528
(assorted sizes)

0213 28 Jan. 2004 1,000 board ft. good Pepito Aumentado 1708518
lumber (assorted sizes)

0214 28 Jan. 2004 5, 000 board ft. good Carmelita Lorenzo 1708521
lumber (assorted sizes)

0215 28 Jan. 2004 350 board ft. good lumber Amando Pradillada 1708368
(assorted sizes)

0216 23 Jan. 2004 800 board ft. lumber Pepito Aumentado 1708517
(assorted sizes)

0217 21 Jan. 2004 1,050 board ft. good Romeo Sabiduria 1708508
lumber (assorted sizes)

0218 06 April 2004 800 board ft. sliced lumber Mylene Moises 1868025
(assorted sizes)

0219 11 March 300 pieces or 1, 200 board Ernesto Aumentado 1708975


2004 ft. sliced lumber (assorted
sizes)

0220 02 Feb. 2004 7,000 board ft. good Carmelita Lorenzo 1708376
lumber

0221 08 Jan. 2004 600 board ft. Malaruhat Nestor Astejada 1623451

0222 10 Dec. 2003 300 pieces good lumber Francisco Mendoza 1623096

0223 18 Nov. 2003 6,432 board ft. assorted Naty Orozco 1483048
species

0224 30 Oct. 2003 8,000 board ft. Malauban Ma. Teresa 1483019
Adornado

0225 21 Oct. 2003 1,770 board ft. good Dante Medina 1482796
lumber (assorted sizes)

0226 21 Oct. 2003 300 board ft. Malaruhat Leonardo S. Aveno 1323271
(assorted sizes)

0227 21 Oct. 2003 10,875 board ft. lumber Annie Gonzales 1323273
(assorted sizes)

0228 20 Oct. 2003 300 board ft. sliced lumber Bernardo Gonzalvo 1482835

0229 17 Oct. 2003 6,090 board ft. lumber Naty Orozco 1482834

0230 17 Oct. 2003 16 pcs. panel door Roy Justo 1482743


(finished product)

0231 01 Oct. 2003 300 board ft. good lumber Analiza Vargas 1482710
(assorted sizes)

0232 01 Oct. 2003 700 board ft. Malaruhat Engr. Mercado 1482760
(assorted sizes)

0233 30 Sept. 2003 500 board ft. sliced lumber Mylene Moises 1482810
(assorted sizes)

0234 29 Sept. 2003 800 board ft. good lumber Wennie Acebuque 1482703
(assorted sizes)

0235 15 Sept. 2003 1,500 board ft. malaruhat Decembrano 1323076


lumber (assorted sizes) Sabiduria

0236 10 Sept. 2003 200 board ft. good lumber Junier Franquia 1323027
(assorted sizes)

0237 29 Aug. 2003 600 board ft. good lumber Annaliza Vargas 1322830

0238 07 Aug. 2003 2,000 board ft. lumber Abilardo dela Cruz 1247200
(assorted sizes)
0239 06 Aug. 2003 1,000 board ft. hardwood Jennifer Nudalo 1322802

0240 25 June 2003 600 board ft. good lumber Roy Justo 1247024

0241 26 May 2003 800 board ft. lumber Adelino Lareza 3651096

0242 26 May 2003 Assorted sizes good lumber Rollie Velasco 3651587

0243 23 May 2003 342 sliced lumber (assorted Dolores S. Gloria 3651499
sizes)

0244 20 May 2003 500 board ft. lumber Marylyn de Loreto/ 3651574
Melita Masilang

0245 02 May 2003 123 pieces sliced lumber Armando Lariza 3651656
(assorted sizes)

0246 17 Feb. 2003 70 pieces sliced lumber Efren Tena/ Romeo 1182204
(assorted sizes) Serafines

0247 07 Feb. 2003 1 piece narra bed; 1 piece Roy D. Justo 1182060
narra panel door; 6 pcs.
Refrigerator stand & 1 pc.
Narra cabinet (finished
product)

0248 05 Dec. 2002 140 pcs. round poles Lamberto R. Ruzol 0943647

0249 20 Nov. 2002 500 board ft. lumber Luz Astoveza 0943618
(assorted sizes)

0250 30 Oct. 2002 1,200 board ft. sliced Arceli Fortunado 0830698
lumber (assorted sizes)

0251 04 Oct. 2002 500 board ft. Huling Roy Justo 0830646
Manok

0252 27 Sept. 2002 300 board ft. sliced lumber Roy Justo 0830625
(assorted sizes)
0253 24 Sept. 2002 1,000 board ft. sliced Inna L. 0830771
lumber (assorted sizes) Customerado

0254 23 Sept. 2002 1,000 board ft. sliced Normelita L. 0830610


lumber (assorted sizes) Curioso

0255 03 Sept. 2002 2,000 pcs. trophy (wood Floredeliza D. 686642


carvings) Espiritu

0256 7 March 2002 2,000 sets trophy (wood Floredeliza D. 090549


carvings) Espiritu

0257 03 Dec. 2001 10,000 sets trophy (wood Floredeliza D. 090769


carvings) Espiritu

0258 12 Sept. 2001 1,075 board ft of sticks & Lea A. Rivera 7786333
1,450 board ft. Bollilo
(assorted sizes)

0259 07 Oct. 2003 Assorted lumber Roy D. Justo 1482765

Considering that the facts are undisputed, the parties during Pre-Trial agreed to dispense with the
presentation of testimonial evidence and submit the case for decision based on the documentary
evidence and joint stipulation of facts contained in the Pre-Trial Order. Thereafter, the accused and the
prosecution submitted their respective memoranda.6

Ruzol's Defense

As summarized by the Sandiganbayan, Ruzol professes his innocence based on following arguments:

(1) As Chief Executive of the municipality of General Nakar, Quezon, he is authorized to issue permits to
transport forest products pursuant to RA 7160 which give the LGU not only express powers but also
those powers that are necessarily implied from the powers expressly granted as well as those that are
necessary, appropriate or incidental to the LGUs efficient and effective governance. The LGU is likewise
given powers that are essential to the promotion of the general welfare of the inhabitants. The general
welfare clause provided in Section 16, Chapter 2, Title One, Book I of R.A. 7160 is a massive grant of
authority that enables LGUs to perform or exercise just about any power that will benefit their local
constituencies.

(2) In addition to the foregoing, R.A. 7160 has devolved certain functions and responsibilities of the
DENR to the LGU. And the permits to transport were issued pursuant to the devolved function to
manage and control communal forests with an area not exceeding fifty (50) square kilometers.
(3) The Permits to Transport were issued as an incident to the payment of Transport Fees levied by the
municipality for the use of local public roads for the transport of salvaged forest products. Under (a)
Section 5, Article X of the Constitution, (b) Section 129, Chapter I, Title One Book II of R.A. 7160, and (c)
Section 186, Article Five, Chapter 5, Tile One, Book II of R.A. 7160, the municipality is granted the power
to create its own sources of revenue and to levy fees in accordance therewith.

(4) The only kind of document the DENR issues relating to log, timber or lumber is denominated
"Certificate of Timber Origin" or CTO for logs and "Certificate of Lumber Origin" or CLO for lumber;
hence, even if accused issued the Transport Permits on his side, a person wanting to transport the said
forest products would have to apply and obtain a CTO or CLO from the DENR. The Transport Permits
issued by the accused were never taken as a substitute for the CTO or CLO, and this is the reason why
said permits contain the annotation "Subject to DENR rules, laws and regulations."

(5) There is no proof of conspiracy between the accused. The Transport Permits were issued by accused
Sabiduria in his capacity as Municipal Administrator and his mere issuance is not enough to impute upon
the accused Ruzol any transgression or wrongdoing that may have been committed in the issuance
thereof following the ruling in Arias v. Sandiganbayan (180 SCRA 309).

(6) The DENR directly sanctioned and expressly authorized the issuance of the 221 Transport permits
through the Provincial Environment and natural Resources officer Rogelio Delgado Sr., in a Multi-
Sectoral Consultative Assembly.

(7) The accused cannot be convicted of Usurpation of Authority since they did not act "under the
pretense of official position," accused Ruzol having issued the permits in his capacity as Mayor and there
was no pretense or misrepresentation on his part that he was an officer of DENR.7

Ruling of the Sandiganbayan

After due consideration, the Sandiganbayan rendered on December 19, 2008 a Decision, acquitting
Sabiduria but finding Ruzol guilty as charged, to wit:

WHEREFORE, premises considered, the Court resolves these cases as follows:

1. Against the accused LEOVEGILDO R. RUZOL, judgment is hereby rendered finding him GUILTY beyond
reasonable doubt of Two Hundred Twenty One (221) counts of the offense of Usurpation of Official
Functions as defined and penalized under Article 177 of the Revised Penal Code and hereby sentences
him to suffer for each case a straight penalty of SIX (6) MONTHS and ONE (1) DAY.

However, in the service of his sentences, accused Ruzol shall be entitled to the benefit of the three-fold
rule as provided in Article 70 of the Revised Penal Code, as amended.

2. On the ground of reasonable doubt, accused GUILLERMO M. SABIDURIA is ACQUITTED of all 221
charges. The cash bond posted by him for his provisional liberty may now be withdrawn by said accused
upon presentation of the original receipt evidencing payment thereof subject to the usual accounting
and auditing procedures. The hold departure procedure issued by this Court dated 16 April 2008 is set
aside and the Order issued by the Bureau of Immigration dated 29 April 2008 including the name of
Sabiduria in the Hold Departure List is ordered recalled and cancelled.

SO ORDERED.8

The Sandiganbayan predicated its ruling on the postulate that the authority to issue transport permits
with respect to salvaged forest products lies with the Department of Environment and Natural
Resources (DENR) and that such authority had not been devolved to the local government of General
Nakar.9 To the graft court, Ruzols issuance of the subject permits constitutes usurpation of the official
functions of the DENR.

The Issue

The critical issue having a determinative bearing on the guilt or innocence of Ruzol for usurpation
revolves around the validity of the subject permits to transport, which in turn resolves itself into the
question of whether the authority to monitor and regulate the transportation of salvaged forest product
is solely with the DENR, and no one else.

The Ruling of this Court

The petition is partly meritorious.

Subsidiary Issue:

Whether the Permits to Transport Issued by Ruzol Are Valid

In ruling that the DENR, and not the local government units (LGUs), has the authority to issue
transportation permits of salvaged forest products, the Sandiganbayan invoked Presidential Decree No.
705 (PD 705), otherwise known as the Revised Forestry Code of the Philippines and in relation to
Executive Order No. 192, Series of 1987 (EO 192), or the Reorganization Act of the Department of
Environment and Natural Resources.

Section 5 of PD 705 provides:

Section 5. Jurisdiction of Bureau. The Bureau of Forest Management shall have jurisdiction and authority
over all forest land, grazing lands, and all forest reservations including watershed reservations presently
administered by other government agencies or instrumentalities.

It shall be responsible for the protection, development, management, regeneration, and reforestation of
forest lands; the regulation and supervision of the operation of licensees, lessees and permittees for the
taking or use of forest products therefrom or the occupancy or use thereof; the implementation of
multiple use and sustained yield management in forest lands; the protection, development and
preservation of national parks, marine parks, game refuges and wildlife; the implementation of
measures and programs to prevent kaingin and managed occupancy of forest and grazing lands; in
collaboration with other bureaus, the effective, efficient and economic classification of lands of the
public domain; and the enforcement of forestry, reforestation, parks, game and wildlife laws, rules, and
regulations.

The Bureau shall regulate the establishment and operation of sawmills, veneer and plywood mills and
other wood processing plants and conduct studies of domestic and world markets of forest products.
(Emphasis Ours.)

On the other hand, the pertinent provisions of EO 192 state:

SECTION 4. Mandate. The Department shall be the primary government agency responsible for the
conservation, management, development, and proper use of the countrys environment and natural
resources, specifically forest and grazing lands of the public domain, as well as the licensing and
regulation of all natural resources as maybe provided for by law in order to ensure equitable sharing of
the benefits derived therefrom for the welfare of the present and future generations of Filipinos.

xxxx

SECTION 5. Powers and Functions. To accomplish its mandate, the Department shall have the following
functions:

xxxx

(d) Exercise supervision and control over forest lands, alienable and disposal lands, and mineral
resources and in the process of exercising such control the Department shall impose appropriate
payments, fees, charges, rentals and any such revenues for the exploration, development, utilization or
gathering of such resources.

xxxx

(j) Regulate the development, disposition, extraction, exploration and use of the countrys forest, land
and mineral resources;

(k) Assume responsibility for the assessment, development, protection, conservation, licensing and
regulation as provided for by law, where applicable, of all natural resources; the regulation and
monitoring of service contractors, licensees, lessees, and permittees for the extraction, exploration,
development and utilization of natural resources products; the implementation of programs and
measures with the end in view of promoting close collaboration between the government and the
private sector; the effective and efficient classification and sub-classification of lands of the public
domain; and the enforcement of natural resources laws, rules and regulations;

(l) Promulgate rules, regulations and guidelines on the issuance of co-production, joint venture or
production sharing agreements, licenses, permits, concessions, leases and such other privileges and
arrangement concerning the development, exploration and utilization of the countrys natural resources
and shall continue to oversee, supervise and police our natural resources; to cancel or cause to cancel
such privileges and arrangement upon failure, non-compliance or violations of any regulations, orders,
and for all other causes which are furtherance of the conservation of natural resources and supportive
of the national interests;

xxxx

(n) Implement measures for the regulation and supervision of the processing of forest products, grading
and inspection of lumber and other forest products and monitoring of the movement of timber and
other forest products. (Emphasis Ours.)

Invoked too is DENR Administrative Order No. 2000-78 (DAO 2000-78) which mandates that the
permittee should secure the necessary transport and other related documents before the retrieved
wood materials are sold to the buyers/users and/or wood processing plants.10 DAO 2000-78 obliges the
entity or person concerned to secure a Wood Recovery Permita "permit issued by the DENR to
gather/retrieve and dispose abandoned logs, drifted logs, sunken logs, uprooted, and fire and typhoon
damaged tress, tree stumps, tops and branches."11 It prescribes that the permittee shall only be allowed
to gather or recover logs or timber which had already been marked and inventoried by the Community
Environment and Natural Resources Officer.12 To the Sandiganbayan, this mandatory requirement for
Wood Recovery Permit illustrates that DENR is the sole agency vested with the authority to regulate the
transportation of salvaged forest products.1wphi1

The Sandiganbayan further reasoned that the "monitoring and regulating salvaged forest products" is
not one of the DENRs functions which had been devolved upon LGUs. It cited Sec. 17 of Republic Act
No. 7160 (RA 7160) or the Local Government Code (LGC) of 1991 which provides:

Section 17. Basic Services and Facilities. -

(a) Local government units shall endeavor to be self-reliant and shall continue exercising the powers and
discharging the duties and functions currently vested upon them. They shall also discharge the functions
and responsibilities of national agencies and offices devolved to them pursuant to this Code. Local
government units shall likewise exercise such other powers and discharge such other functions and
responsibilities as are necessary, appropriate, or incidental to efficient and effective provisions of the
basic services and facilities enumerated herein.

xxxx

(2) For a Municipality:

xxxx

(ii) Pursuant to national policies and subject to supervision, control and review of the DENR,
implementation of community-based forestry projects which include integrated social forestry programs
and similar projects; management and control of communal forests with an area not exceeding fifty (50)
square kilometers; establishment of tree parks, greenbelts, and similar forest development projects.
(Emphasis Ours.)
According to the Sandiganbayan, Sec. 17 of the LGC has limited the devolved functions of the DENR to
the LGUs to the following: (1) the implementation of community-based forestry products; (2)
management and control of communal forests with an area not exceeding fifty (50) square kilometers;
and (3) establishment of tree parks, greenbelts and similar forest development projects.13 It also
referred to DENR Administrative Order No. 30, Series of 1992 (DAO 1992-30), which enumerates the
forest management functions, programs and projects of the DENR which had been devolved to the
LGUs, as follows:14

Section 3.1 Forest Management

a. Implementation of the following community-based forestry projects:

i. Integrated Social Forestry Projects, currently funded out of regular appropriations, except at least one
project per province that shall serve as research and training laboratory, as identified by the DENR, and
those areas located in protected areas and critical watersheds;

ii. Establishment of new regular reforestation projects, except those areas located in protected areas
and critical watersheds;

iii. Completed family and community-based contract reforestation projects, subject to policies and
procedures prescribed by the DENR;

iv. Forest Land Management Agreements in accordance with DENR Administrative Order No. 71, Series
of 1990 and other guidelines that the DENR may adopt; and

v. Community Forestry Projects, subject to concurrence of financing institution(s), if foreign assisted.

b. Management and control of communal forests with an area not exceeding fifty (50) square kilometers
or five thousand (5,000) hectares, as defined in Section 2, above. Provided, that the concerned LGUs
shall endeavor to convert said areas into community forestry projects;

c. Management, protection, rehabilitation and maintenance of small watershed areas which are sources
of local water supply as identified or to be identified by the DENR; and

d. Enforcement of forest laws in community-based forestry project areas, small watershed areas and
communal forests, as defined in Section 2 above, such as but not limited to:

i. Prevention of forest fire, illegal cutting and kaingin;

ii. Apprehension of violators of forest laws, rules and regulations;

iii. Confiscation of illegally extracted forest products on site;

iv. Imposition of appropriate penalties for illegal logging, smuggling of natural resources products and of
endangered species of flora and fauna, slash and burn farming and other unlawful activities; and
v. Confiscation, forfeiture and disposition of conveyances, equipment and other implements used in the
commission of offenses penalized under P.D. 705 as amended by E.O. 277, series of 1987 and other
forestry laws, rules and regulations.

Provided, that the implementation of the foregoing activities outside the devolved areas above
mentioned, shall remain with the DENR.

The Sandiganbayan ruled that since the authority relative to salvaged forest products was not included
in the above enumeration of devolved functions, the correlative authority to issue transport permits
remains with the DENR15 and, thus, cannot be exercised by the LGUs.

We disagree and refuse to subscribe to this postulate suggesting exclusivity. As shall be discussed
shortly, the LGU also has, under the LGC of 1991, ample authority to promulgate rules, regulations and
ordinances to monitor and regulate salvaged forest products, provided that the parameters set forth by
law for their enactment have been faithfully complied with.

While the DENR is, indeed, the primary government instrumentality charged with the mandate of
promulgating rules and regulations for the protection of the environment and conservation of natural
resources, it is not the only government instrumentality clothed with such authority. While the law has
designated DENR as the primary agency tasked to protect the environment, it was not the intention of
the law to arrogate unto the DENR the exclusive prerogative of exercising this function. Whether in
ordinary or in legal parlance, the word "primary" can never be taken to be synonymous with "sole" or
"exclusive." In fact, neither the pertinent provisions of PD 705 nor EO 192 suggest that the DENR, or any
of its bureaus, shall exercise such authority to the exclusion of all other government instrumentalities,
i.e., LGUs.

On the contrary, the claim of DENRs supposedly exclusive mandate is easily negated by the principle of
local autonomy enshrined in the 1987 Constitution16 in relation to the general welfare clause under Sec.
16 of the LGC of 1991, which provides:

Section 16. General Welfare. - Every local government unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its
efficient and effective governance, and those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local government units shall ensure and support,
among other things, the preservation and enrichment of culture, promote health and safety, enhance
the right of the people to a balanced ecology, encourage and support the development of appropriate
and self-reliant scientific and technological capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment among their residents, maintain peace and
order, and preserve the comfort and convenience of their inhabitants. (Emphasis Ours.)

Pursuant to the aforequoted provision, municipal governments are clothed with authority to enact such
ordinances and issue such regulations as may be necessary to carry out and discharge the
responsibilities conferred upon them by law, and such as shall be necessary and proper to provide for
the health, safety, comfort and convenience, maintain peace and order, improve public morals, promote
the prosperity and general welfare of the municipality and its inhabitants, and ensure the protection of
property in the municipality.17

As held in Oposa v. Factoran, Jr.,18 the right of the people "to a balanced and healthful ecology carries
with it the correlative duty to refrain from impairing the environment." In ensuring that this duty is
upheld and maintained, a local government unit may, if it deems necessary, promulgate ordinances
aimed at enhancing the right of the people to a balanced ecology and, accordingly, provide adequate
measures in the proper utility and conservation of natural resources within its territorial jurisdiction. As
can be deduced from Ruzols memoranda, as affirmed by the parties in their Joint Stipulation of Facts, it
was in the pursuit of this objective that the subject permits to transport were issued by Ruzolto
regulate the salvaged forest products found within the municipality of General Nakar and, hence,
prevent abuse and occurrence of any untoward illegal logging in the area.19

In the same vein, there is a clear merit to the view that the monitoring and regulation of salvaged forest
products through the issuance of appropriate permits is a shared responsibility which may be done
either by DENR or by the LGUs or by both. DAO 1992-30, in fact, says as much, thus: the "LGUs shall
share with the national government, particularly the DENR, the responsibility in the sustainable
management and development of the environment and natural resources within their territorial
jurisdiction."20 The significant role of the LGUs in environment protection is further echoed in Joint
Memorandum Circular No. 98-01(JMC 1998-01) or the Manual of Procedures for DENR-DILG-LGU
Partnership on Devolved and other Forest Management Functions, which was promulgated jointly by
the DILG and the DENR in 1998, and provides as follows:

Section 1. Basic Policies

Subject to the general policies on devolution as contained in RA 7160 and DENR Administrative Order
No. 30, Series of 1992, the following basic policies shall govern the implementation of DENR-DILG-LGU
partnership on devolved and other forest management functions:

1.1. The Department of Environment and Natural Resources (DENR) shall be the primary government
agency responsible for the conservation, management, protection, proper use and sustainable
development of the countrys environment and natural resources.

1.2. The LGUs shall share with DENR the responsibility in the sustainable management and development
of the forest resources within their territorial jurisdiction. Toward this end, the DENR and the LGUs shall
endeavor to strengthen their collaboration and partnership in forest management.

1.3. Comprehensive land use and forest land use plans are important tools in the holistic and efficient
management of forest resources. Toward this end, the DENR and the LGUs together with other
government agencies shall undertake forest land use planning as an integral activity of comprehensive
land use planning to determine the optimum and balanced use of natural resources to support local,
regional and national growth and development.
1.4. To fully prepare the LGUs to undertake their shared responsibilities in the sustainable management
of forest land resources, the DENR, in coordination with DILG, shall enhance the capacities of the LGUs
in the various aspects of forest management. Initially, the DENR shall coordinate, guide and train the
LGUs in the management of the devolved functions. As the LGUs capacity in forest management is
enhanced, the primary tasks in the management of devolved functions shall be performed by the LGUs
and the role of the DENR becomes assistive and coordinative.

1.5. To further the ends of local autonomy, the DENR in consultation with the LGUs shall devolved [sic]
additional functions and responsibilities to the local government units, or enter into agreements with
them for enlarged forest management and other ENR-related functions.

1.6. To seek advocacy, popular support and ultimately help achieve community empowerment, DENR
and DILG shall forge the partnership and cooperation of the LGUs and other concerned sectors in
seeking and strengthening the participation of local communities for forest management including
enforcement of forestry laws, rules and regulations. (Emphasis Ours.)

To our mind, the requirement of permits to transport salvaged forest products is not a manifestation of
usurpation of DENRs authority but rather an additional measure which was meant to complement
DENRs duty to regulate and monitor forest resources within the LGUs territorial jurisdiction.

This is consistent with the "canon of legal hermeneutics that instead of pitting one statute against
another in an inevitably destructive confrontation, courts must exert every effort to reconcile them,
remembering that both laws deserve respect as the handiwork of coordinate branches of the
government."21 Hence, if there appears to be an apparent conflict between promulgated statutes, rules
or regulations issued by different government instrumentalities, the proper action is not to immediately
uphold one and annul the other, but rather give effect to both by harmonizing them if
possible.22 Accordingly, although the DENR requires a Wood Recovery Permit, an LGU is not necessarily
precluded from promulgating, pursuant to its power under the general welfare clause, complementary
orders, rules or ordinances to monitor and regulate the transportation of salvaged forest products.

Notwithstanding, We still find that the Permits to Transport issued by Ruzol are invalid for his failure to
comply with the procedural requirements set forth by law for its enforcement.

Then and now, Ruzol insists that the Permit to Transport partakes the nature of transport fees levied by
the municipality for the use of public roads.23 In this regard, he argues that he has been conferred by law
the right to issue subject permits as an incident to the LGUs power to create its own sources of revenue
pursuant to the following provisions of the LGC:

Section 153. Service Fees and Charges. Local government units may impose and collect such
reasonable fees and charges for services rendered.

xxxx

Section 186. Power to Levy Other Taxes, Fees or Charges. Local government units may exercise the
power to levy taxes, fees or charges on any base or subject not otherwise specifically enumerated
herein or taxed under the provisions of the National Internal Revenue Code, as amended, or other
applicable laws: Provided, That the taxes, fees, or charges shall not be unjust, excessive, oppressive,
confiscatory or contrary to declared national policy: Provided, further, That the ordinance levying such
taxes, fees or charges shall not be enacted without any prior public hearing conducted for the purpose.
(Emphasis Ours.)

Ruzol further argued that the permits to transport were issued under his power and authority as
Municipal Mayor under Sec. 444 of the same law:

(iv) Issue licenses and permits and suspend or revoke the same for any violation of the conditions upon
which said licenses or permits had been issued, pursuant to law or ordinance;

xxxx

vii) Adopt adequate measures to safeguard and conserve land, mineral, marine, forest, and other
resources of the municipality; provide efficient and effective property and supply management in the
municipality; and protect the funds, credits, rights and other properties of the municipality. (Emphasis
Ours.)

Ruzol is correct to a point. Nevertheless, We find that an enabling ordinance is necessary to confer the
subject permits with validity. As correctly held by the Sandiganbayan, the power to levy fees or charges
under the LGC is exercised by the Sangguniang Bayan through the enactment of an appropriate
ordinance wherein the terms, conditions and rates of the fees are prescribed.24 Needless to say, one of
the fundamental principles of local fiscal administration is that "local revenue is generated only from
sources expressly authorized by law or ordinance."25

It is likewise expressly stated in Sec. 444(b)(3)(iv) of the LGC that the authority of the municipal mayor to
issue licenses and permits should be "pursuant to a law or ordinance." It is the Sangguniang Bayan, as
the legislative body of the municipality, which is mandated by law to enact ordinances against acts
which endanger the environment, i.e., illegal logging, and smuggling of logs and other natural
resources.26

In this case, an examination of the pertinent provisions of General Nakars Revised Municipal Revenue
Code27and Municipal Environment Code28 reveals that there is no provision unto which the issuance of
the permits to transport may be grounded. Thus, in the absence of an ordinance for the regulation and
transportation of salvaged products, the permits to transport issued by Ruzol are infirm.

Ruzols insistence that his actions are pursuant to the LGUs devolved function to "manage and control
communal forests" under Sec. 17 of the LGC and DAO 1992-3029 is specious. Although We recognize the
LGUs authority in the management and control of communal forests within its territorial jurisdiction,
We reiterate that this authority should be exercised and enforced in accordance with the procedural
parameters established by law for its effective and efficient execution. As can be gleaned from the same
Sec. 17 of the LGC, the LGUs authority to manage and control communal forests should be "pursuant to
national policies and is subject to supervision, control and review of DENR."
As correctly held by the Sandiganbayan, the term "communal forest"30 has a well-defined and technical
meaning.31 Consequently, as an entity endowed with specialized competence and knowledge on forest
resources, the DENR cannot be discounted in the establishment of communal forest. The DILG, on
behalf of the LGUs, and the DENR promulgated JMC 1998-01 which outlined the following procedure:

Section 8.4 Communal Forest

8.4.1 Existing Communal Forest

The devolution to and management of the communal forest by the city and municipal governments shall
be governed by the following general procedures:

(a) DENR, through its CENRO, and the concerned LGU shall undertake the actual identification and
assessment of existing communal forests. The assessment shall determine the suitability of the existing
communal forests. If these are no longer suitable, then these communal forests may be disestablished.
The Approval for disestablishment shall be by the RED upon recommendation of the DENR-LGU
assessment Team through the PENRO and the RTD for Forestry;

(b) Existing communal forest which are found and recommended by the DENR-LGU Assessment Team as
still suitable to achieve their purpose shall be maintained as such. Thereafter, the Sangguniang
Panglungsod or Sangguniang Bayan where the communal forest is located shall pass resolution
requesting the DENR Secretary for the turnover of said communal forest to the city or municipality.
Upon receipt of said resolution, the DENR Secretary shall issue an Administrative Order officially
transferring said communal forest to the concerned LGU. The DENR RED shall effect the official transfer
to the concerned LGU within fifteen (15) days from the issuance of the administrative order;

(c) Within twelve months from the issuance of the Administrative Order and turnover of said communal
forest to the city or municipality, the LGU to which the communal forest was transferred shall formulate
and submit to the Provincial ENR Council for approval a management plan governing the sustainable
development of the communal forest.

For the purpose of formulating the communal forest management plan, DENR shall, in coordination with
the concerned LGU, undertake a forest resource inventory and determine the sustainable level of forest
resource utilization and provide the LGU technical assistance in all facets of forest management planning
to ensure sustainable development. The management plan should include provision for replanting by
the communities and the LGUs of the communal forests to ensure sustainability.

8.4.2 Establishment of New Communal Forest

The establishment of new communal forests shall be governed by the following guidelines:

(a) DENR, through its CENRO, together with the concerned city/municipal LGU shall jointly identify
potential communal forest areas within the geographic jurisdiction of the concerned city/municipality.
(b) Communal forests to be established shall be identified through a forest land use planning to be
undertaken jointly between the DENR and the concerned LGU. The ensuing forest land use plan shall
indicate, among others, the site and location of the communal forests within the production forest
categorized as such in the forest land use plan;

(c) Once the forest land use plan has been affirmed, the local chief executive shall initiate the passage by
the LGUs sanggunian of a resolution requesting the DENR Secretary to issue an Administrative Order
declaring the identified area as a communal forest. The required administrative order shall be issued
within sixty (60) days after receipt of the resolution;

(d) Upon acceptance of the responsibility for the communal forest, the city/municipal LGU shall
formulate the management plan and submit the same to its ENR Council. The management plan shall
include provision for replanting by the communities and the LGUs of the communal forests to ensure
sustainability.

The communal forests of each municipality shall in no case exceed a total of 5,000 hectares. (Emphasis
Ours.)

It is clear, therefore, that before an area may be considered a communal forest, the following
requirements must be accomplished: (1) an identification of potential communal forest areas within the
geographic jurisdiction of the concerned city/municipality; (2) a forest land use plan which shall indicate,
among other things, the site and location of the communal forests; (3) a request to the DENR Secretary
through a resolution passed by the Sangguniang Bayan concerned; and (4) an administrative order
issued by DENR Secretary declaring the identified area as a communal forest.

In the present case, the records are bereft of any showing that these requirements were complied with.
Thus, in the absence of an established communal forest within the Municipality of General Nakar, there
was no way that the subject permits to transport were issued as an incident to the management and
control of a communal forest.

This is not to say, however, that compliance with abovementioned statutory requirements for the
issuance of permits to transport foregoes the necessity of obtaining the Wood Recovery Permit from the
DENR. As earlier discussed, the permits to transport may be issued to complement, and not substitute,
the Wood Recovery Permit, and may be used only as an additional measure in the regulation of salvaged
forest products. To elucidate, a person seeking to transport salvaged forest products still has to acquire
a Wood Recovery Permit from the DENR as a prerequisite before obtaining the corresponding permit to
transport issued by the LGU.

Main Issue:

Whether Ruzol Is Guilty of Usurpation of Official Functions

The foregoing notwithstanding, Ruzol cannot be held guilty of Usurpation of Official Functions as
defined and penalized under Art. 177 of the RPC, to wit:
Art. 177. Usurpation of authority or official functions. Any person who shall knowingly and falsely
represent himself to be an officer, agent or representative of any department or agency of the
Philippine Government or of any foreign government, or who, under pretense of official position, shall
perform any act pertaining to any person in authority or public officer of the Philippine Government or
any foreign government, or any agency thereof, without being lawfully entitled to do so, shall suffer the
penalty of prision correccional in its minimum and medium periods. (Emphasis Ours.)

As the aforementioned provision is formulated, there are two ways of committing this crime: first, by
knowingly and falsely representing himself to be an officer, agent or representative of any department
or agency of the Philippine Government or of any foreign government; or second, under pretense of
official position, shall perform any act pertaining to any person in authority or public officer of the
Philippine Government or any foreign government, or any agency thereof, without being lawfully
entitled to do so.32 The former constitutes the crime of usurpation of authority, while the latter act
constitutes the crime of usurpation of official functions.33

In the present case, Ruzol stands accused of usurpation of official functions for issuing 221 permits to
transport salvaged forest products under the alleged "pretense of official position and without being
lawfully entitled to do so, such authority properly belonging to the Department of Environment and
Natural Resources."34 The Sandiganbayan ruled that all the elements of the crime were attendant in the
present case because the authority to issue the subject permits belongs solely to the DENR.35

We rule otherwise.

First, it is settled that an accused in a criminal case is presumed innocent until the contrary is proved and
that to overcome the presumption, nothing but proof beyond reasonable doubt must be established by
the prosecution.36 As held by this Court in People v. Sitco:37

The imperative of proof beyond reasonable doubt has a vital role in our criminal justice system, the
accused, during a criminal prosecution, having a stake interest of immense importance, both because of
the possibility that he may lose his freedom if convicted and because of the certainty that his conviction
will leave a permanent stain on his reputation and name. (Emphasis supplied.)

Citing Rabanal v. People,38 the Court further explained:

Law and jurisprudence demand proof beyond reasonable doubt before any person may be deprived of
his life, liberty, or even property. Enshrined in the Bill of Rights is the right of the petitioner to be
presumed innocent until the contrary is proved, and to overcome the presumption, nothing but proof
beyond reasonable doubt must be established by the prosecution. The constitutional presumption of
innocence requires courts to take "a more than casual consideration" of every circumstance of doubt
proving the innocence of petitioner. (Emphasis added.)

Verily, an accused is entitled to an acquittal unless his or her guilt is shown beyond reasonable doubt
and it is the primordial duty of the prosecution to present its side with clarity and persuasion, so that
conviction becomes the only logical and inevitable conclusion, with moral certainty.39 As explained by
this Court in People v. Berroya:40

The necessity for proof beyond reasonable doubt lies in the fact that "(i)n a criminal prosecution, the
State is arrayed against the subject; it enters the contest with a prior inculpatory finding in its hands;
with unlimited means of command; with counsel usually of authority and capacity, who are regarded as
public officers, and therefore as speaking semi-judicially, and with an attitude of tranquil majesty often
in striking contrast to that of defendant engaged in a perturbed and distracting struggle for liberty if not
for life. These inequalities of position, the law strives to meet by the rule that there is to be no
conviction when there is a reasonable doubt of guilt."

Indeed, proof beyond reasonable doubt does not mean such a degree of proof, excluding possibility of
error, produces absolute certainty; moral certainly only is required, or that degree of proof which
produces conviction in an unprejudiced mind.41 However, contrary to the ruling of the Sandiganbayan,
We find that a careful scrutiny of the events surrounding this case failed to prove that Ruzol is guilty
beyond reasonable doubt of committing the crime of usurpation of official functions of the DENR.

We note that this case of usurpation against Ruzol rests principally on the prosecutions theory that the
DENR is the only government instrumentality that can issue the permits to transport salvaged forest
products. The prosecution asserted that Ruzol usurped the official functions that properly belong to the
DENR.

But erstwhile discussed at length, the DENR is not the sole government agency vested with the authority
to issue permits relevant to the transportation of salvaged forest products, considering that, pursuant to
the general welfare clause, LGUs may also exercise such authority. Also, as can be gleaned from the
records, the permits to transport were meant to complement and not to replace the Wood Recovery
Permit issued by the DENR. In effect, Ruzol required the issuance of the subject permits under his
authority as municipal mayor and independently of the official functions granted to the DENR. The
records are likewise bereft of any showing that Ruzol made representations or false pretenses that said
permits could be used in lieu of, or at the least as an excuse not to obtain, the Wood Recovery Permit
from the DENR.

Second, contrary to the findings of the Sandiganbayan, Ruzol acted in good faith.

It bears stressing at this point that in People v. Hilvano,42 this Court enunciated that good faith is a
defense in criminal prosecutions for usurpation of official functions.43 The term "good faith" is ordinarily
used to describe that state of mind denoting "honesty of intention, and freedom from knowledge of
circumstances which ought to put the holder upon inquiry; an honest intention to abstain from taking
any unconscientious advantage of another, even though technicalities of law, together with absence of
all information, notice, or benefit or belief of facts which render transaction unconscientious."44 Good
faith is actually a question of intention and although something internal, it can be ascertained by relying
not on ones self-serving protestations of good faith but on evidence of his conduct and outward acts.45

In dismissing Ruzols claim of good faith, the Sandiganbayan reasoned as follows:


If it is really true that Ruzol believed himself to be authorized under R.A. 7160 to issue the subject
permits, why did he have to secure the approval of the various NGOs, Peoples Organizations and
religious organizations before issuing the said permits? He could very well have issued subject permits
even without the approval of these various organizations if he truly believed that he was legally
empowered to do so considering that the endorsement of these organizations is not required by law.
That Ruzol had to arm himself with their endorsement could only mean that he actually knew that he
had no legal basis for issuing the said permits; thus he had to look elsewhere for support and back-
up.46 (Emphasis Ours.)

We, however, cannot subscribe to this posture as there is neither legal basis nor established doctrine to
draw a conclusion that good faith is negated when an accused sought another persons approval.
Neither is there any doctrine in law which provides that bad faith is present when one seeks the opinion
or affirmation of others.

Contrary to the conclusions made by the Sandiganbayan, We find that the conduct of the public
consultation was not a badge of bad faith, but a sign supporting Ruzols good intentions to regulate and
monitor the movement of salvaged forest products to prevent abuse and occurrence of untoward illegal
logging. In fact, the records will bear that the requirement of permits to transport was not Ruzols
decision alone; it was, as earlier narrated, a result of the collective decision of the participants during
the Multi-Sectoral Consultative Assembly. As attested to by Bishop Julio Xavier Labayen, it was the
participants who agreed that the subject permits be issued by the Office of the Mayor of General Nakar,
through Ruzol, in the exercise of the latters authority as local chief executive.47

The Sandiganbayan also posits the view that Ruzols good faith is negated by the fact that if he truly
believed he was authorized to issue the subject permits, Ruzol did not have to request the presence and
obtain the permission of PENRO Rogelio Delgado Sr. during the Multi-Sectoral Assembly.48

The graft courts above posture, however, does not commend itself for concurrence. If, indeed, Ruzol
willfully and deliberately intended to usurp the official functions of the DENR as averred by the
prosecution, he would not have asked the presence of a DENR official who has the authority and
credibility to publicly object against Ruzols allegedly intended usurpation. Thus, the presence of PENRO
Delgado during the Multi-Sectoral Assembly does not negate, but strengthens Ruzols claim of good
faith.

As a final note, We emphasize that the burden of protecting the environment is placed not on the
shoulders of DENR aloneeach and every one of us, whether in an official or private capacity, has his or
her significant role to play. Indeed, protecting the environment is not only a responsibility but also a
right for which a citizen could and should freely exercise. Considering the rampant forest denudation,
environmental degradation and plaguing scarcity of natural resources, each of us is now obligated to
contribute and share in the responsibility of protecting and conserving our treasured natural resources.

Ruzol chose to exercise this right and to share in this responsibility by exercising his authority as
municipal mayoran act which was executed with the concurrence and cooperation of non-
governmental organizations, industry stakeholders, and the concerned citizens of General Nakar.
Admittedly, We consider his acts as invalid but it does necessarily mean that such mistakes
automatically demand Us to rule a conviction. This is in consonance with the settled principle that "all
reasonable doubt intended to demonstrate error and not crime should be indulged in for the benefit of
the accused."49

Under our criminal judicial system, "evil intent must unite with the unlawful act for a crime to exist," as
"there can be no crime when the criminal mind is wanting."50 Actus non facit reum, nisi mens sit rea.

In the present case, the prosecution has failed to prove beyond reasonable doubt that Ruzol possessed
that "criminal mind" when he issued the subject permits. What is clear from the records is that Ruzol, as
municipal mayor, intended to regulate and monitor salvaged forest products within General Nakar in
order to avert the occurrence of illegal logging in the area. We find that to hold him criminally liable for
these seemingly noble intentions would be a step backward and would run contrary to the standing
advocacy of encouraging people to take a pro-active stance in the protection of the environment and
conservation of our natural resources.

Incidentally, considering the peculiar circumstances of the present case and considering further that this
case demands only the determination of Ruzol's guilt or innocence for usurpation of official functions
under the RPC, for which the issue on the validity of the subject Permits to Transport is only subsidiary,
We hereby resolve this case only for this purpose and only in this instance, pro hac vice, and, in the
interest of justice, rule in favor of Ruzol' s acquittal.

IN VIEW OF THE FOREGOING, the December 19, 2008 Decision of the Sandiganbayan First Division in
Criminal Case Nos. SB-08-CRIM-0039 to 0259, finding Leovegildo R. Ruzol guilty of violating Art. 177 of
the Revised Penal Code, is hereby REVERSED and SET ASIDE.

Accused Leovegildo R. Ruzol is, thus, ACQUITTED on the basis of reasonable doubt of the crimes as
charged.

SO ORDERED.

PRESBITERO J. VELASCO, JR.


Associate Justice

G.R. No. 158290 October 23, 2006

HILARION M. HENARES, JR., VICTOR C. AGUSTIN, ALFREDO L. HENARES, DANIEL L. HENARES, ENRIQUE
BELO HENARES, and CRISTINA BELO HENARES, petitioners,
vs.
LAND TRANSPORTATION FRANCHISING AND REGULATORY BOARD and DEPARTMENT OF
TRANSPORTATION AND COMMUNICATIONS, respondents.
RESOLUTION

QUISUMBING, J.:

Petitioners challenge this Court to issue a writ of mandamus commanding respondents Land
Transportation Franchising and Regulatory Board (LTFRB) and the Department of Transportation and
Communications (DOTC) to require public utility vehicles (PUVs) to use compressed natural gas (CNG) as
alternative fuel.

Citing statistics from the Metro Manila Transportation and Traffic Situation Study of 1996,1 the
Environmental Management Bureau (EMB) of the National Capital Region,2 a study of the Asian
Development Bank,3 the Manila Observatory4 and the Department of Environment and Natural
Resources5 (DENR) on the high growth and low turnover in vehicle ownership in the Philippines,
including diesel-powered vehicles, two-stroke engine powered motorcycles and their concomitant
emission of air pollutants, petitioners attempt to present a compelling case for judicial action against the
bane of air pollution and related environmental hazards.

Petitioners allege that the particulate matters (PM) complex mixtures of dust, dirt, smoke, and liquid
droplets, varying in sizes and compositions emitted into the air from various engine combustions have
caused detrimental effects on health, productivity, infrastructure and the overall quality of life.
Petitioners particularly cite the effects of certain fuel emissions from engine combustion when these
react to other pollutants. For instance, petitioners aver, with hydrocarbons, oxide of nitrogen (NOx)
creates smog; with sulfur dioxide, it creates acid rain; and with ammonia, moisture and other
compounds, it reacts to form nitric acid and harmful nitrates. Fuel emissions also cause retardation and
leaf bleaching in plants. According to petitioner, another emission, carbon monoxide (CO), when not
completely burned but emitted into the atmosphere and then inhaled can disrupt the necessary oxygen
in blood. With prolonged exposure, CO affects the nervous system and can be lethal to people with
weak hearts.6

Petitioners add that although much of the new power generated in the country will use natural gas
while a number of oil and coal-fired fuel stations are being phased-out, still with the projected doubling
of power generation over the next 10 years, and with the continuing high demand for motor vehicles,
the energy and transport sectors are likely to remain the major sources of harmful emissions. Petitioners
refer us to the study of the Philippine Environment Monitor 20027, stating that in four of the country's
major cities, Metro Manila, Davao, Cebu and Baguio, the exposure to PM10, a finer PM which can
penetrate deep into the lungs causing serious health problems, is estimated at over US$430
million.8 The study also reports that the emissions of PMs have caused the following:
Over 2,000 people die prematurely. This loss is valued at about US$140 million.

Over 9,000 people suffer from chronic bronchitis, which is valued at about US$120 million.

Nearly 51 million cases of respiratory symptom days in Metro Manila (averaging twice a year in Davao
and Cebu, and five to six times in Metro Manila and Baguio), costs about US$170 million. This is a 70
percent increase, over a decade, when compared with the findings of a similar study done in 1992 for
Metro Manila, which reported 33 million cases.9

Petitioners likewise cite the University of the Philippines' studies in 1990-91 and 1994 showing that
vehicular emissions in Metro Manila have resulted to the prevalence of chronic obstructive pulmonary
diseases (COPD); that pulmonary tuberculosis is highest among jeepney drivers; and there is a 4.8 to
27.5 percent prevalence of respiratory symptoms among school children and 15.8 to 40.6 percent
among child vendors. The studies also revealed that the children in Metro Manila showed more
compromised pulmonary function than their rural counterparts. Petitioners infer that these are mostly
due to the emissions of PUVs.

To counter the aforementioned detrimental effects of emissions from PUVs, petitioners propose the use
of CNG. According to petitioners, CNG is a natural gas comprised mostly of methane which although
containing small amounts of propane and butane,10 is colorless and odorless and considered the
cleanest fossil fuel because it produces much less pollutants than coal and petroleum; produces up to 90
percent less CO compared to gasoline and diesel fuel; reduces NOx emissions by 50 percent and cuts
hydrocarbon emissions by half; emits 60 percent less PMs; and releases virtually no sulfur dioxide.
Although, according to petitioners, the only drawback of CNG is that it produces more methane, one of
the gases blamed for global warming.11

Asserting their right to clean air, petitioners contend that the bases for their petition for a writ of
mandamus to order the LTFRB to require PUVs to use CNG as an alternative fuel, lie in Section
16,12 Article II of the 1987 Constitution, our ruling in Oposa v. Factoran, Jr.,13 and Section 414 of Republic
Act No. 8749 otherwise known as the "Philippine Clean Air Act of 1999."

Meantime, following a subsequent motion, the Court granted petitioners' motion to implead the
Department of Transportation and Communications (DOTC) as additional respondent.

In his Comment for respondents LTFRB and DOTC, the Solicitor General, cites Section 3, Rule 65 of the
Revised Rules of Court and explains that the writ of mandamus is not the correct remedy since the writ
may be issued only to command a tribunal, corporation, board or person to do an act that is required to
be done, when he or it unlawfully neglects the performance of an act which the law specifically enjoins
as a duty resulting from an office, trust or station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled, there being no other plain, speedy and
adequate remedy in the ordinary course of law.15 Further citing existing jurisprudence, the Solicitor
General explains that in contrast to a discretionary act, a ministerial act, which a mandamus is, is one in
which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to a
mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety or
impropriety of an act done.

The Solicitor General also notes that nothing in Rep. Act No. 8749 that petitioners invoke, prohibits the
use of gasoline and diesel by owners of motor vehicles. Sadly too, according to the Solicitor General,
Rep. Act No. 8749 does not even mention the existence of CNG as alternative fuel and avers that unless
this law is amended to provide CNG as alternative fuel for PUVs, the respondents cannot propose that
PUVs use CNG as alternative fuel.

The Solicitor General also adds that it is the DENR that is tasked to implement Rep. Act No. 8749 and not
the LTFRB nor the DOTC. Moreover, he says, it is the Department of Energy (DOE), under Section 2616 of
Rep. Act No. 8749, that is required to set the specifications for all types of fuel and fuel-related products
to improve fuel compositions for improved efficiency and reduced emissions. He adds that under
Section 2117 of the cited Republic Act, the DOTC is limited to implementing the emission standards for
motor vehicles, and the herein respondents cannot alter, change or modify the emission standards. The
Solicitor General opines that the Court should declare the instant petition for mandamus without merit.

Petitioners, in their Reply, insist that the respondents possess the administrative and regulatory powers
to implement measures in accordance with the policies and principles mandated by Rep. Act No. 8749,
specifically Section 218 and Section 21.19 Petitioners state that under these laws and with all the available
information provided by the DOE on the benefits of CNG, respondents cannot ignore the existence of
CNG, and their failure to recognize CNG and compel its use by PUVs as alternative fuel while air pollution
brought about by the emissions of gasoline and diesel endanger the environment and the people, is
tantamount to neglect in the performance of a duty which the law enjoins.

Lastly, petitioners aver that other than the writ applied for, they have no other plain, speedy and
adequate remedy in the ordinary course of law. Petitioners insist that the writ in fact should be issued
pursuant to the very same Section 3, Rule 65 of the Revised Rules of Court that the Solicitor General
invokes.

In their Memorandum, petitioners phrase the issues before us as follows:

I. WHETHER OR NOT THE PETITIONERS HAVE THE PERSONALITY TO BRING THE PRESENT ACTION

II. WHETHER OR NOT THE PRESENT ACTION IS SUPPORTED BY LAW

III. WHETHER OR NOT THE RESPONDENT IS THE AGENCY RESPONSIBLE TO IMPLEMENT THE SUGGESTED
ALTERNATIVE OF REQUIRING PUBLIC UTILITY VEHICLES TO USE COMPRESSED NATURAL GAS (CNG)

IV. WHETHER OR NOT THE RESPONDENT CAN BE COMPELLED TO REQUIRE PUBLIC UTILITY VEHICLES TO
USE COMPRESSED NATURAL GAS THROUGH A WRIT OF MANDAMUS20

Briefly put, the issues are two-fold. First, Do petitioners have legal personality to bring this petition
before us? Second, Should mandamus issue against respondents to compel PUVs to use CNG as
alternative fuel?
According to petitioners, Section 16,21 Article II of the 1987 Constitution is the policy statement that
bestows on the people the right to breathe clean air in a healthy environment. This policy is enunciated
in Oposa.22 The implementation of this policy is articulated in Rep. Act No. 8749. These, according to
petitioners, are the bases for their standing to file the instant petition. They aver that when there is an
omission by the government to safeguard a right, in this case their right to clean air, then, the citizens
can resort to and exhaust all remedies to challenge this omission by the government. This, they say, is
embodied in Section 423 of Rep. Act No. 8749.

Petitioners insist that since it is the LTFRB and the DOTC that are the government agencies clothed with
power to regulate and control motor vehicles, particularly PUVs, and with the same agencies' awareness
and knowledge that the PUVs emit dangerous levels of air pollutants, then, the responsibility to see that
these are curbed falls under respondents' functions and a writ of mandamus should issue against them.

The Solicitor General, for his part, reiterates his position that the respondent government agencies, the
DOTC and the LTFRB, are not in a position to compel the PUVs to use CNG as alternative fuel. The
Solicitor General explains that the function of the DOTC is limited to implementing the emission
standards set forth in Rep. Act No. 8749 and the said law only goes as far as setting the maximum limit
for the emission of vehicles, but it does not recognize CNG as alternative engine fuel. The Solicitor
General avers that the petition should be addressed to Congress for it to come up with a policy that
would compel the use of CNG as alternative fuel.

Patently, this Court is being asked to resolve issues that are not only procedural. Petitioners challenge
this Court to decide if what petitioners propose could be done through a less circuitous, speedy and
unchartered course in an issue that Chief Justice Hilario G. Davide, Jr. in his ponencia in
the Oposa case,24 describes as "inter-generational responsibility" and "inter-generational justice."

Now, as to petitioners' standing. There is no dispute that petitioners have standing to bring their case
before this Court. Even respondents do not question their standing. This petition focuses on one
fundamental legal right of petitioners, their right to clean air. Moreover, as held previously, a party's
standing before this Court is a procedural technicality which may, in the exercise of the Court's
discretion, be set aside in view of the importance of the issue raised. We brush aside this issue of
technicality under the principle of the transcendental importance to the public, especially so if these
cases demand that they be settled promptly.

Undeniably, the right to clean air not only is an issue of paramount importance to petitioners for it
concerns the air they breathe, but it is also impressed with public interest. The consequences of the
counter-productive and retrogressive effects of a neglected environment due to emissions of motor
vehicles immeasurably affect the well-being of petitioners. On these considerations, the legal standing
of the petitioners deserves recognition.

Our next concern is whether the writ of mandamus is the proper remedy, and if the writ could issue
against respondents.
Under Section 3, Rule 65 of the Rules of Court, mandamus lies under any of the following cases: (1)
against any tribunal which unlawfully neglects the performance of an act which the law specifically
enjoins as a duty; (2) in case any corporation, board or person unlawfully neglects the performance of
an act which the law enjoins as a duty resulting from an office, trust, or station; and (3) in case any
tribunal, corporation, board or person unlawfully excludes another from the use and enjoyment of a
right or office to which such other is legally entitled; and there is no other plain, speedy, and adequate
remedy in the ordinary course of law.

In University of San Agustin, Inc. v. Court of Appeals,25 we said,

It is settled that mandamus is employed to compel the performance, when refused, of a ministerial
duty, this being its main objective. It does not lie to require anyone to fulfill contractual obligations or to
compel a course of conduct, nor to control or review the exercise of discretion. On the part of the
petitioner, it is essential to the issuance of a writ of mandamus that he should have a clear legal rightto
the thing demanded and it must be the imperative duty of the respondent to perform the act required.
It never issues in doubtful cases. While it may not be necessary that the duty be absolutely expressed, it
must however, be clear. The writ will not issue to compel an official to do anything which is not his duty
to do or which is his duty not to do, or give to the applicant anything to which he is not entitled by
law. The writ neither confers powers nor imposes duties. It is simply a command to exercise a power
already possessed and to perform a duty already imposed. (Emphasis supplied.)

In this petition the legal right which is sought to be recognized and enforced hinges on a constitutional
and a statutory policy already articulated in operational terms, e.g. in Rep. Act No. 8749, the Philippine
Clean Air Act of 1999. Paragraph (a), Section 21 of the Act specifically provides that when PUVs are
concerned, the responsibility of implementing the policy falls on respondent DOTC. It provides as
follows:

SEC 21. Pollution from Motor Vehicles. - a) The DOTC shall implement the emission standards for motor
vehicles set pursuant to and as provided in this Act. To further improve the emission standards, the
Department [DENR] shall review, revise and publish the standards every two (2) years, or as the need
arises. It shall consider the maximum limits for all major pollutants to ensure substantial improvement in
air quality for the health, safety and welfare of the general public.

Paragraph (b) states:

b) The Department [DENR] in collaboration with the DOTC, DTI and LGUs, shall develop an action plan
for the control and management of air pollution from motor vehicles consistent with the Integrated Air
Quality Framework . . . . (Emphasis supplied.)

There is no dispute that under the Clean Air Act it is the DENR that is tasked to set the emission
standards for fuel use and the task of developing an action plan. As far as motor vehicles are concerned,
it devolves upon the DOTC and the line agency whose mandate is to oversee that motor vehicles
prepare an action plan and implement the emission standards for motor vehicles, namely the LTFRB.
In Oposa26 we said, the right to a balanced and healthful ecology carries with it the correlative duty to
refrain from impairing the environment. We also said, it is clearly the duty of the responsible
government agencies to advance the said right.

Petitioners invoke the provisions of the Constitution and the Clean Air Act in their prayer for issuance of
a writ of mandamus commanding the respondents to require PUVs to use CNG as an alternative fuel.
Although both are general mandates that do not specifically enjoin the use of any kind of fuel,
particularly the use of CNG, there is an executive order implementing a program on the use of CNG by
public vehicles. Executive Order No. 290, entitled Implementing the Natural Gas Vehicle Program for
Public Transport (NGVPPT), took effect on February 24, 2004. The program recognized, among others,
natural gas as a clean burning alternative fuel for vehicle which has the potential to produce
substantially lower pollutants; and the Malampaya Gas-to-Power Project as representing the beginning
of the natural gas industry of the Philippines. Paragraph 1.2, Section 1 of E.O. No. 290 cites as one of its
objectives, the use of CNG as a clean alternative fuel for transport. Furthermore, one of the components
of the program is the development of CNG refueling stations and all related facilities in strategic
locations in the country to serve the needs of CNG-powered PUVs. Section 3 of E.O. No. 290, consistent
with E.O. No. 66, series of 2002, designated the DOE as the lead agency (a) in developing the natural gas
industry of the country with the DENR, through the EMB and (b) in formulating emission standards for
CNG. Most significantly, par. 4.5, Section 4 tasks the DOTC, working with the DOE, to develop an
implementation plan for "a gradual shift to CNG fuel utilization in PUVs and promote NGVs [natural gas
vehicles] in Metro Manila and Luzon through the issuance of directives/orders providing preferential
franchises in present day major routes and exclusive franchises to NGVs in newly opened routes" A
thorough reading of the executive order assures us that implementation for a cleaner environment is
being addressed. To a certain extent, the instant petition had been mooted by the issuance of E.O. No.
290.

Regrettably, however, the plain, speedy and adequate remedy herein sought by petitioners, i.e., a writ
of mandamus commanding the respondents to require PUVs to use CNG, is unavailing. Mandamus is
available only to compel the doing of an act specifically enjoined by law as a duty. Here, there is no law
that mandates the respondents LTFRB and the DOTC to order owners of motor vehicles to use CNG. At
most the LTFRB has been tasked by E.O. No. 290 in par. 4.5 (ii), Section 4 "to grant preferential and
exclusive Certificates of Public Convenience (CPC) or franchises to operators of NGVs based on the
results of the DOTC surveys."

Further, mandamus will not generally lie from one branch of government to a coordinate branch, for the
obvious reason that neither is inferior to the other.27 The need for future changes in both legislation and
its implementation cannot be preempted by orders from this Court, especially when what is prayed for
is procedurally infirm. Besides, comity with and courtesy to a coequal branch dictate that we give
sufficient time and leeway for the coequal branches to address by themselves the environmental
problems raised in this petition.

In the same manner that we have associated the fundamental right to a balanced and healthful ecology
with the twin concepts of "inter-generational responsibility" and "inter-generational justice"
in Oposa,28 where we upheld the right of future Filipinos to prevent the destruction of the rainforests, so
do we recognize, in this petition, the right of petitioners and the future generation to clean air.
In Oposa we said that if the right to a balanced and healthful ecology is now explicitly found in the
Constitution even if the right is "assumed to exist from the inception of humankind, it is because of the
well-founded fear of its framers [of the Constitution] that unless the rights to a balanced and healthful
ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their
continuing importance and imposing upon the state a solemn obligation to preserve the first and
protect and advance the second, the day would not be too far when all else would be lost not only for
the present generation, but also for those to come. . ."29

It is the firm belief of this Court that in this case, it is timely to reaffirm the premium we have placed on
the protection of the environment in the landmark case of Oposa. Yet, as serious as the statistics are on
air pollution, with the present fuels deemed toxic as they are to the environment, as fatal as these
pollutants are to the health of the citizens, and urgently requiring resort to drastic measures to reduce
air pollutants emitted by motor vehicles, we must admit in particular that petitioners are unable to
pinpoint the law that imposes an indubitable legal duty on respondents that will justify a grant of the
writ of mandamus compelling the use of CNG for public utility vehicles. It appears to us that more
properly, the legislature should provide first the specific statutory remedy to the complex environmental
problems bared by herein petitioners before any judicial recourse by mandamus is taken.

WHEREFORE, the petition for the issuance of a writ of mandamus is DISMISSED for lack of merit.

SO ORDERED.

Carpio, Morales, Tinga, and Velasco, Jr., JJ., concur.

G.R. No. 175368 April 11, 2013

LEAGUE OF PROVINCES OF THE PHILIPPINES, Petitioner,


vs.
DEPARTMENT OF ENVIRONMENT and NATURAL RESOURCES and HON. ANGELO T. REYES, in his
capacity as Secretary of DENR, Respondents.

DECISION

PERALTA, J.:

This is a petition for certiorari, prohibition and mandamus,1 praying that this Court order the following: (
1) declare as unconstitutional Section 17(b)(3)(iii) of Republic Act (R.A.) No. 7160, otherwise known as
The Local Government Code of 1991 and Section 24 of Republic Act (R.A.) No. 7076, otherwise known as
the People's Small-Scale Mining Act of 1991; (2) prohibit and bar respondents from exercising control
over provinces; and (3) declare as illegal the respondent Secretary of the Department of Energy and
Natural Resources' (DENR) nullification, voiding and cancellation of the Small-Scale Mining permits
issued by the Provincial Governor of Bulacan.

The Facts are as follows:

On March 28, 1996, Golden Falcon Mineral Exploration Corporation (Golden Falcon) filed with the DENR
Mines and Geosciences Bureau Regional Office No. III (MGB R-III) an Application for Financial and
Technical Assistance Agreement (FTAA) covering an area of 61,136 hectares situated in the
Municipalities of San Miguel, San Ildefonso, Norzagaray and San Jose del Monte, Bulacan.2

On April 29, 1998, the MGB R-III issued an Order denying Golden Falcon's Application for Financial and
Technical Assistance Agreement for failure to secure area clearances from the Forest Management
Sector and Lands Management Sector of the DENR Regional Office No. III.3

On November 11, 1998, Golden Falcon filed an appeal with the DENR Mines and Geosciences Bureau
Central Office (MGB-Central Office), and sought reconsideration of the Order dated April 29, 1998.4

On February 10, 2004, while Golden Falcon's appeal was pending, Eduardo D. Mercado, Benedicto S.
Cruz, Gerardo R. Cruz and Liberato Sembrano filed with the Provincial Environment and Natural
Resources Office (PENRO) of Bulacan their respective Applications for Quarry Permit (AQP), which
covered the same area subject of Golden Falcon's Application for Financial and Technical Assistance
Agreement.5

On July 16, 2004, the MGB-Central Office issued an Order denying Golden Falcon's appeal and affirming
the MGB R-III's Order dated April 29, 1998.

On September 13, 2004, Atlantic Mines and Trading Corporation (AMTC) filed with the PENRO of
Bulacan an Application for Exploration Permit (AEP) covering 5,281 hectares of the area covered by
Golden Falcon's Application for Financial and Technical Assistance Agreement.6

On October 19, 2004, DENR-MGB Director Horacio C. Ramos, in response to MGB R-III Director Arnulfo
V. Cabantog's memorandum query dated September 8, 2004, categorically stated that the MGB-Central
Office's Order dated July 16, 2004 became final on August 11, 2004, fifteen (15) days after Golden
Falcon received the said Order, per the Certification dated October 8, 2004 issued by the Postmaster II
of the Philippine Postal Corporation of Cainta, Rizal.7

Through letters dated May 5 and May 10, 2005, AMTC notified the PENRO of Bulacan and the MGB R-III
Director, respectively, that the subject Applications for Quarry Permit fell within its (AMTC's) existing
valid and prior Application for Exploration Permit, and the the former area of Golden Falcon was open to
mining location only on August 11, 2004 per the Memorandum dated October 19, 2004 of the MGB
Director, Central Office.8

On June 24, 2005, Ricardo Medina, Jr., PENRO of Bulacan, indorsed AMTC's letter to the Provincial Legal
Officer, Atty. Eugenio F. Resurreccion, for his legal opinion on which date of denial of Golden Falcon's
application/appeal April 29, 1998 or July 16, 2004 is to be considered in the deliberation of the
Provincial Mining Regulatory Board (PMRB) for the purpose of determining when the land subject of the
Applications for Quarry Permit could be considered open for application.

On June 28, 2005, Provincial Legal Officer Eugenio Resurreccion issued a legal opinion stating that the
Order dated July 16, 2004 of the MGB-Central Office was a mere reaffirmation of the Order dated April
29, 1998 of the MGB R-III; hence, the Order dated April 29, 1998 should be the reckoning period of the
denial of the application of Golden Falcon.

On July 22, 2005, AMTC filed with the PMRB of Bulacan a formal protest against the aforesaid
Applications for Quarry Permit on the ground that the subject area was already covered by its
Application for Exploration Permit.9

On August 8, 2005, MGB R-III Director Cabantog, who was the concurrent Chairman of the PMRB,
endorsed to the Provincial Governor of Bulacan, Governor Josefina M. dela Cruz, the aforesaid
Applications for Quarry Permit that had apparently been converted to Applications for Small-Scale
Mining Permit of Eduardo D. Mercado, Benedicto S. Cruz, Gerardo R. Cruz and Lucila S. Valdez (formerly
Liberato Sembrano).10

On August 9, 2005, the PENRO of Bulacan issued four memoranda recommending to Governor Dela Cruz
the approval of the aforesaid Applications for Small-Scale Mining Permit.11

On August 10, 2005, Governor Dela Cruz issued the corresponding Small-Scale Mining Permits in favor of
Eduardo D. Mercado, Benedicto S. Cruz, Gerardo R. Cruz and Lucila S. Valdez.12

Subsequently, AMTC appealed to respondent DENR Secretary the grant of the aforesaid Small-Scale
Mining Permits, arguing that: (1) The PMRB of Bulacan erred in giving due course to the Applications for
Small-Scale Mining Permit without first resolving its formal protest; (2) The areas covered by the Small-
Scale Mining Permits fall within the area covered by AMTC's valid prior Application for Exploration
Permit; (3) The Applications for Quarry Permit were illegally converted to Applications for Small-Scale
Mining Permit; (4) DENR-MGB Director Horacio C. Ramos' ruling that the subject areas became open for
mining location only on August 11, 2004 was controlling; (5) The Small-Scale Mining Permits were null
and void because they covered areas that were never declared People's Small-Scale Mining Program
sites as mandated by Section 4 of the People's Small-Scale Mining Act of 1991; and (6) Iron ore is not
considered as one of the quarry resources, as defined by Section 43 of the Philippine Mining Act of 1995,
which could be subjects of an Application for Quarry Permit.13

On August 8, 2006, respondent DENR Secretary rendered a Decision14 in favor of AMTC. The DENR
Secretary agreed with MGB Director Horacio C. Ramos that the area was open to mining location only
on August 11, 2004, fifteen (15) days after the receipt by Golden Falcon on July 27, 2004 of a copy of the
MGB-Central Office's Order dated July 16, 2004, which Order denied Golden Falcon's appeal. According
to the DENR Secretary, the filing by Golden Falcon of the letter-appeal suspended the finality of the
Order of denial issued on April 29, 1998 by the Regional Director until the resolution of the appeal on
July 16, 2004 by the MGB-Central Office. He stated that the Applications for Quarry Permit were filed on
February 10, 2004 when the area was still closed to mining location; hence, the Small-Scale Mining
Permits granted by the PMRB and the Governor were null and void. On the other hand, the DENR
Secretary declared that AMTC filed its Application for Exploration Permit when the area was already
open to other mining applicants; thus, AMTCs Application for Exploration Permit was valid. Moreover,
the DENR Secretary held that the questioned Small-Scale Mining Permits were issued in violation of
Section 4 of R.A. No. 7076 and beyond the authority of the Provincial Governor pursuant to Section 43
of R.A. No. 7942, because the area was never proclaimed to be under the People's Small-Scale Mining
Program. Further, the DENR Secretary stated that iron ore mineral is not considered among the quarry
resources.

The dispositive portion of the DENR Secretarys Decision reads:

WHEREFORE, the Application for Exploration Permit, AEP-III-02-04 of Atlantic Mines and Trading Corp. is
declared valid and may now be given due course. The Small-Scale Mining Permits, SSMP-B-002-05 of
Gerardo Cruz, SSMP-B-003-05 of Eduardo D. Mercado, SSMP-B-004-05 of Benedicto S. Cruz and SSMP-B-
005-05 of Lucila S. Valdez are declared NULL AND VOID. Consequently, the said permits are hereby
CANCELLED.15

Hence, petitioner League of Provinces filed this petition.

Petitioner is a duly organized league of local governments incorporated under R.A. No. 7160. Petitioner
declares that it is composed of 81 provincial governments, including the Province of Bulacan. It states
that this is not an action of one province alone, but the collective action of all provinces through the
League, as a favorable ruling will not only benefit one province, but all provinces and all local
governments.

Petitioner raises these issues:

WHETHER OR NOT SECTION 17(B)(3)(III) OF THE, 1991 LOCAL GOVERNMENT CODE AND SECTION 24 OF
THE PEOPLE'S SMALL-SCALE MINING ACT OF 1991 ARE UNCONSTITUTIONAL FOR PROVIDING FOR
EXECUTIVE CONTROL AND INFRINGING UPON THE LOCAL AUTONOMY OF PROVINCES.

II

WHETHER OR NOT THE ACT OF RESPONDENT [DENR] IN NULLIFYING, VOIDING AND CANCELLING THE
SMALL-SCALE MINING PERMITS AMOUNTS TO EXECUTIVE CONTROL, NOT MERELY SUPERVISION AND
USURPS THE DEVOLVED POWERS OF ALL PROVINCES.16

To start, the Court finds that petitioner has legal standing to file this petition because it is tasked under
Section 504 of the Local Government Code of 1991 to promote local autonomy at the provincial
level;17 adopt measures for the promotion of the welfare of all provinces and its officials and
employees;18 and exercise such other powers and perform such other duties and functions as the league
may prescribe for the welfare of the provinces.19
Before this Court determines the validity of an act of a co-equal and coordinate branch of the
Government, it bears emphasis that ingrained in our jurisprudence is the time-honored principle that a
statute is presumed to be valid.20 This presumption is rooted in the doctrine of separation of powers
which enjoins upon the three coordinate departments of the Government a becoming courtesy for each
other's acts.21 This Court, however, may declare a law, or portions thereof, unconstitutional where a
petitioner has shown a clear and unequivocal breach of the Constitution,22 leaving no doubt or
hesitation in the mind of the Court.23

In this case, petitioner admits that respondent DENR Secretary had the authority to nullify the Small-
Scale Mining Permits issued by the Provincial Governor of Bulacan, as the DENR Secretary has control
over the PMRB, and the implementation of the Small-Scale Mining Program is subject to control by
respondent DENR.

Control of the DENR/DENR Secretary over small-scale mining in the provinces is granted by three
statutes: (1) R.A. No. 7061 or The Local Government Code of 1991; (2) R.A. No. 7076 or the People's
Small Scale Mining Act of 1991; and (3) R.A. No. 7942, otherwise known as the Philippine Mining Act of
1995.24 The pertinent provisions of law sought to be declared as unconstitutional by petitioner are as
follows:

R.A. No. 7061 (The Local Government Code of 1991)

SEC. 17. Basic Services and Facilities. - (a) Local government units shall endeavor to be self-reliant and
shall continue exercising the powers and discharging the duties and functions currently vested upon
them. They shall also discharge the functions and responsibilities of national agencies and offices
devolved to them pursuant to this Code. Local government units shall likewise exercise such other
powers and discharge such other functions and responsibilities as are necessary, appropriate, or
incidental to efficient and effective provision of the basic services and facilities enumerated herein.

(b) Such basic services and facilities include, but are not limited to, the following:

xxxx

(3) For a Province:c

xxxx

(iii) Pursuant to national policies and subject to supervision, control and review of the DENR,
enforcement of forestry laws limited to community-based forestry projects, pollution control law, small-
scale mining law, and other laws on the protection of the environment; and mini-hydro electric projects
for local purposes; x x x25

R.A. No. 7076 (People's Small-Scale Mining Act of 1991)

Sec. 24. Provincial/City Mining Regulatory Board. - There is hereby created under the direct supervision
and control of the Secretary a provincial/city mining regulatory board, herein called the Board, which
shall be the implementing agency of the Department, and shall exercise the following powers and
functions, subject to review by the Secretary:

(a) Declare and segregate existing gold-rush areas for small-scale mining;

(b) Reserve future gold and other mining areas for small-scale mining;

(c) Award contracts to small-scale miners;

(d) Formulate and implement rules and regulations related to small-scale mining;

(e) Settle disputes, conflicts or litigations over conflicting claims within a peoples small-scale mining
area, an area that is declared a small-mining; and

(f) Perform such other functions as may be necessary to achieve the goals and objectives of this Act.26

Petitioner contends that the aforecited laws and DENR Administrative Order No. 9640 (the
Implementing Rules and Regulations of the Philippine Mining Act of 1995) did not explicitly confer upon
respondents DENR and the DENR Secretary the power to reverse, abrogate, nullify, void, or cancel the
permits issued by the Provincial Governor or small-scale mining contracts entered into by the PMRB. The
statutes are also silent as to the power of respondent DENR Secretary to substitute his own judgment
over that of the Provincial Governor and the PMRB.

Moreover, petitioner contends that Section 17 (b)(3)(iii) of the Local Government Code of 1991 and
Section 24 of R.A. No. 7076, which confer upon respondents DENR and the DENR Secretary the power of
control are unconstitutional, as the Constitution states that the President (and Executive Departments
and her alter-egos) has the power of supervision only, not control, over acts of the local government
units, and grants the local government units autonomy, thus:

The 1987 Constitution:

Article X, Section 4. The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities, and cities and
municipalities with respect to component barangays, shall ensure that the acts of their component units
are within the scope of their prescribed powers and functions.27

Petitioner contends that the policy in the above-cited constitutional provision is mirrored in the Local
Government Code, which states:

SEC. 25. National Supervision over Local Government Units. - (a) Consistent with the basic policy on local
autonomy, the President shall exercise general supervision over local government units to ensure that
their acts are within the scope of their prescribed powers and functions.

The President shall exercise supervisory authority directly over provinces, highly urbanized cities, and
independent component cities; through the province with respect to component cities and
municipalities; and through the city and municipality with respect to barangays.28
Petitioner contends that the foregoing provisions of the Constitution and the Local Government Code of
1991 show that the relationship between the President and the Provinces or respondent DENR, as the
alter ego of the President, and the Province of Bulacan is one of executive supervision, not one of
executive control. The term "control" has been defined as the power of an officer to alter or modify or
set aside what a subordinate officer had done in the performance of his/her duties and to substitute the
judgment of the former for the latter, while the term "supervision" is the power of a superior officer to
see to it that lower officers perform their function in accordance with law.29

Petitioner argues that respondent DENR Secretary went beyond mere executive supervision and
exercised control when he nullified the small-scale mining permits granted by the Provincial Governor of
Bulacan, as the former substituted the judgment of the latter.

Petitioner asserts that what is involved here is a devolved power.

Under the Local Government Code of 1991, the power to regulate small-scale mining has been devolved
to all provinces. In the exercise of devolved powers, departmental approval is not necessary.30

Petitioner contends that if the provisions in Section 24 of R.A. No. 7076 and Section 17 (b)(3)(iii) of the
Local Government Code of 1991 granting the power of control to the DENR/DENR Secretary are not
nullified, nothing would stop the DENR Secretary from nullifying, voiding and canceling the small-scale
mining permits that have been issued by a Provincial Governor.

Petitioner submits that the statutory grant of power of control to respondents is unconstitutional, as the
Constitution only allows supervision over local governments and proscribes control by the executive
departments.

In its Comment, respondents, represented by the Office of the Solicitor General, stated that contrary to
the assertion of petitioner, the power to implement the small-scale mining law is expressly limited in
Section 17 (b)(3)(iii) of the Local Government Code, which provides that it must be carried out "pursuant
to national policies and subject to supervision, control and review of the DENR." Moreover, the fact that
the power to implement the small-scale mining law has not been fully devolved to provinces is further
amplified by Section 4 of the People's Small-Scale Mining Act of 1991, which provides, among others,
that the People's Small-Scale Mining Program shall be implemented by the DENR Secretary.

The petition lacks merit.

Paragraph 1 of Section 2, Article XII (National Economy and Patrimony) of the Constitution31 provides
that "the exploration, development and utilization of natural resources shall be under the full control
and supervision of the State."

Moreover, paragraph 3 of Section 2, Article XII of the Constitution provides that "the Congress may, by
law, allow small-scale utilization of natural resources by Filipino citizens x x x."
Pursuant to Section 2, Article XII of the Constitution, R.A. No. 7076 or the People's Small-Scale Mining
Act of 1991, was enacted, establishing under Section 4 thereof a People's Small-Scale Mining Program to
be implemented by the DENR Secretary in coordination with other concerned government agencies.

The People's Small-Scale Mining Act of 1991 defines "small-scale mining" as "refer[ring] to mining
activities, which rely heavily on manual labor using simple implement and methods and do not use
explosives or heavy mining equipment."32

It should be pointed out that the Administrative Code of 198733 provides that the DENR is, subject to
law and higher authority, in charge of carrying out the State's constitutional mandate, under Section 2,
Article XII of the Constitution, to control and supervise the exploration, development, utilization and
conservation of the country's natural resources. Hence, the enforcement of small-scale mining law in
the provinces is made subject to the supervision, control and review of the DENR under the Local
Government Code of 1991, while the Peoples Small-Scale Mining Act of 1991 provides that the Peoples
Small-Scale Mining Program is to be implemented by the DENR Secretary in coordination with other
concerned local government agencies.

Indeed, Section 4, Article X (Local Government) of the Constitution states that "[t]he President of the
Philippines shall exercise general supervision over local governments," and Section 25 of the Local
Government Code reiterates the same. General supervision by the President means no more than
seeing to it that laws are faithfully executed or that subordinate officers act within the law.34

The Court has clarified that the constitutional guarantee of local autonomy in the Constitution Art. X,
Sec. 2 refers to the administrative autonomy of local government units or, cast in more technical
language, the decentralization of government authority.35 It does not make local governments sovereign
within the State.36 Administrative autonomy may involve devolution of powers, but subject to
limitations like following national policies or standards,37 and those provided by the Local Government
Code, as the structuring of local governments and the allocation of powers, responsibilities, and
resources among the different local government units and local officials have been placed by the
Constitution in the hands of Congress38 under Section 3, Article X of the Constitution.

Section 3, Article X of the Constitution mandated Congress to "enact a local government code which
shall provide for a more responsive and accountable local government structure instituted through a
system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate
among the different local government units their powers, responsibilities, and resources, and provide
for the qualifications, election, appointment and removal, term, salaries, powers and functions and
duties of local officials, and all other matters relating to the organization and operation of the local
units."

In connection with the enforcement of the small-scale mining law in the province, Section 17 of the
Local Government Code provides:

SEC. 17. Basic Services and Facilities. - (a) Local government units shall endeavor to be self-reliant and
shall continue exercising the powers and discharging the duties and functions currently vested upon
them. They shall also discharge the functions and responsibilities of national agencies and offices
devolved to them pursuant to this Code. Local government units shall likewise exercise such other
powers and discharge such other functions and responsibilities as are necessary, appropriate, or
incidental to efficient and effective provision of the basic services and facilities enumerated herein.

(b) Such basic services and facilities include, but are not limited to, the following:

xxxx

(3) For a Province:c

xxxx

(iii) Pursuant to national policies and subject to supervision, control and review of the DENR,
enforcement of forestry laws limited to community-based forestry projects, pollution control law, small-
scale mining law, and other laws on the protection of the environment; and mini-hydro electric projects
for local purposes;39

Clearly, the Local Government Code did not fully devolve the enforcement of the small-scale mining law
to the provincial government, as its enforcement is subject to the supervision, control and review of the
DENR, which is in charge, subject to law and higher authority, of carrying out the State's constitutional
mandate to control and supervise the exploration, development, utilization of the country's natural
resources.40

Section 17 (b)(3)(iii) of the Local Government Code of 1991 is in harmony with R.A. No. 7076 or the
People's Small-Scale Mining Act of 1991,41 which established a People's Small-Scale Mining Program to
be implemented by the Secretary of the DENR, thus:

Sec. 2. Declaration of Policy. It is hereby declared of the State to promote, develop, protect and
rationalize viable small-scale mining activities in order to generate more employment opportunities and
provide an equitable sharing of the nation's wealth and natural resources, giving due regard to existing
rights as herein provided.

xxxx

Sec. 4. People's Small-Scale Mining Program. - For the purpose of carrying out the declared policy
provided in Section 2 hereof, there is hereby established a People's Small-Scale Mining Program to be
implemented by the Secretary of the Department of Environment and Natural Resources, hereinafter
called the Department, in coordination with other concerned government agencies, designed to achieve
an orderly, systematic and rational scheme for the small-scale development and utilization of mineral
resources in certain mineral areas in order to address the social, economic, technical, and environmental
problems connected with small-scale mining activities.

xxxx
Sec. 24. Provincial/City Mining Regulatory Board. There is hereby created under the direct supervision
and control of the Secretary a provincial/city mining regulatory board, herein called the Board, which
shall be the implementing agency of the Department, and shall exercise the following powers and
functions, subject to review by the Secretary:

(a) Declare and segregate existing gold-rush areas for small-scale mining;

(b) Reserve future gold and other mining areas for small-scale mining;

(c) Award contracts to small-scale miners;

(d) Formulate and implement rules and regulations related to small-scale mining;

(e) Settle disputes, conflicts or litigations over conflicting claims within a peoples small-scale mining
area, an area that is declared a small-mining; and

(f) Perform such other functions as may be necessary to achieve the goals and objectives of this Act.42

DENR Administrative Order No. 34, series of 1992, containing the Rules and Regulations to implement
R.A. No. 7076, provides:

SEC. 21. Administrative Supervision over the People's Small-Scale Mining Program. The following DENR
officials shall exercise the following supervisory functions in the implementation of the Program:

21.1 DENR Secretrary direct supervision and control over the program and activities of the small-scale
miners within the people's small-scale mining area;

21.2 Director the Director shall:

a. Recommend the depth or length of the tunnel or adit taking into account the: (1) size of membership
and capitalization of the cooperative; (2) size of mineralized areas; (3) quantity of mineral deposits; (4)
safety of miners; and (5) environmental impact and other considerations;

b. Determine the right of small-scale miners to existing facilities in consultation with the operator,
claimowner, landowner or lessor of an affected area upon declaration of a small-scale mining area;

c. Recommend to the Secretary the withdrawal of the status of the people's small-scale mining area
when it can no longer be feasibly operated on a small-scale basis; and

d. See to it that the small-scale mining contractors abide by small-scale mines safety rules and
regulations.

xxxx

SEC. 22. Provincial/City Mining Regulatory Board. The Provincial/City Mining Regulatory Board created
under R.A. 7076 shall exercise the following powers and functions, subject to review by the Secretary:

22.1 Declares and segregates existing gold rush area for small-scale mining;
22.2 Reserves for the future, mineralized areas/mineral lands for people's small-scale mining;

22.3 Awards contracts to small-scale miners cooperative;

22.4 Formulates and implements rules and regulations related to R.A. 7076;

22.5 Settles disputes, conflicts or litigations over conflicting claims within ninety (90) days upon filing of
protests or complaints; Provided, That any aggrieved party may appeal within five (5) days from the
Board's decision to the Secretary for final resolution otherwise the same is considered final and
executory; and

22.6 Performs such other functions as may be necessary to achieve the goals and objectives of R.A.
7076.

SEC. 6. Declaration of People's Small-Scale Mining Areas. The Board created under R.A. 7076 shall have
the authority to declare and set aside People's Small-Scale Mining Areas in sites onshore suitable for
small-scale mining operations subject to review by the DENR Secretary thru the Director.43

DENR Administrative Order No. 23, otherwise known as the Implementing Rules and Regulations of R.A.
No. 7942, otherwise known as the Philippine Mining Act of 1995, adopted on August 15, 1995, provides
under Section 12344 thereof that small-scale mining applications should be filed with the PMRB45 and the
corresponding permits shall be issued by the Provincial Governor, except small-scale mining applications
within the mineral reservations.

Thereafter, DENR Administrative Order No. 96-40, otherwise known as the Revised Implementing Rules
and Regulations of R.A. No. 7942, otherwise known as the Philippine Mining Act of 1995, adopted on
December 19, 1996, provides that applications for Small-Scale Mining Permits shall be filed with the
Provincial Governor/City Mayor through the concerned Provincial/City Mining Regulatory Board for
areas outside the Mineral Reservations and with the Director though the Bureau for areas within the
Mineral Reservations.46 Moreover, it provides that Local Government Units shall, in coordination with
the Bureau/ Regional Offices and subject to valid and existing mining rights, "approve applications for
small-scale mining, sand and gravel, quarry x x x and gravel permits not exceeding five (5) hectares."47

Petitioner contends that the Local Government Code of 1991, R.A. No. 7076, DENR Administrative
Orders Nos. 95-23 and 96-40 granted the DENR Secretary the broad statutory power of control, but did
not confer upon the respondents DENR and DENR Secretary the power to reverse, abrogate, nullify,
void, cancel the permits issued by the Provincial Governor or small-scale mining contracts entered into
by the Board.

The contention does not persuade.

The settlement of disputes over conflicting claims in small-scale mining is provided for in Section 24 of
R.A. No. 7076, thus:
Sec. 24. Provincial/City Mining Regulatory Board. There is hereby created under the direct supervision
and control of the Secretary a provincial/city mining regulatory board, herein called the Board, which
shall be the implementing agency of the Department, and shall exercise the following powers and
functions, subject to review by the Secretary:

xxxx

(e) Settle disputes, conflicts or litigations over conflicting claims within a people's small-scale mining
area, an area that is declared a small mining area; x x x

Section 24, paragraph (e) of R.A. No. 7076 cited above is reflected in Section 22, paragraph 22.5 of the
Implementing Rules and Regulations of R.A. No. 7076, to wit:

SEC. 22. Provincial/City Mining Regulatory Board. The Provincial/City Mining Regulatory Board created
under R.A. No. 7076 shall exercise the following powers and functions, subject to review by the
Secretary:

xxxx

22.5 Settles disputes, conflicts or litigations over conflicting claims within ninety (90) days upon filing of
protests or complaints; Provided, That any aggrieved party may appeal within five (5) days from the
Board's decision to the Secretary for final resolution otherwise the same is considered final and
executory; x x x

In this case, in accordance with Section 22, paragraph 22.5 of the Implementing Rules and Regulations of
R.A. No. 7076, the AMTC filed on July 22, 2005 with the PMRB of Bulacan a formal protest against the
Applications for Quarry Permits of Eduardo Mercado, Benedicto Cruz, Liberato Sembrano (replaced by
Lucila Valdez) and Gerardo Cruz on the ground that the subject area was already covered by its
Application for Exploration Permit.48However, on August 8, 2005, the PMRB issued Resolution Nos. 05-8,
05-9, 05-10 and 05-11, resolving to submit to the Provincial Governor of Bulacan the Applications for
Small-Scale Mining Permits of Eduardo Mercado, Benedicto Cruz, Lucila Valdez and Gerardo Cruz for the
granting/issuance of the said permits.49 On August 10, 2005, the Provincial Governor of Bulacan issued
the Small-Scale Mining Permits to Eduardo Mercado, Benedicto Cruz, Lucila Valdez and Gerardo Cruz
based on the legal opinion of the Provincial Legal Officer and the Resolutions of the PMRB of Bulacan.

Hence, AMTC filed an appeal with respondent DENR Secretary, appealing from Letter-Resolution No. 05-
1317 and Resolution Nos. 05-08, 05-09, 05-10 and 05-11, all dated August 8, 2005, of the PMRB of
Bulacan, which resolutions gave due course and granted, on August 10, 2005, Small-Scale Mining
Permits to Eduardo D. Mercado, Benedicto S. Cruz, Lucila Valdez and Gerardo Cruz involving parcels of
mineral land situated at Camachin, Doa Remedios Trinidad, Bulacan.

The PMRB of Bulacan filed its Answer, stating that it is an administrative body, created under R.A. No.
7076, which cannot be equated with the court wherein a full-blown hearing could be conducted, but it is
enough that the parties were given the opportunity to present evidence. It asserted that the questioned
resolutions it issued were in accordance with the mining laws and that the Small-Scale Mining Permits
granted were registered ahead of AMTC's Application for Exploration Permit. Further, the Board stated
that the Governor of Bulacan had the power to approve the Small-Scale Mining Permits under R.A. No.
7160.

The DENR Secretary found the appeal meritorious, and resolved these pivotal issues: (1) when is the
subject mining area open for mining location by other applicants; and (2) who among the applicants
have valid applications.1wphi1 The pertinent portion of the decision of the DENR Secretary reads:

We agree with the ruling of the MGB Director that the area is open only to mining location on August
11, 2004, fifteen (15) days after the receipt by Golden Falcon on July 27, 2004 of a copy of the subject
Order of July 16, 2004.1wphi1 The filing by Golden Falcon of the letter-appeal suspended the finality of
the Order of Denial issued on April 29, 1998 by the Regional Director until the Resolution thereof on July
16, 2004.

Although the subject AQPs/SSMPs were processed in accordance with the procedures of the PMRB,
however, the AQPs were filed on February 10, 2004 when the area is still closed to mining location.
Consequently, the SSMPs granted by the PMRB and the Governor are null and void making thereby AEP
No. III-02-04 of the AMTC valid, it having been filed when the area is already open to other mining
applicants.

Records also show that the AQPs were converted into SSMPs. These are two (2) different applications.
The questioned SSMPs were issued in violation of Section 4 of RA 7076 and beyond the authority of the
Provincial Governor pursuant to Section 43 of RA 7942 because the area was never proclaimed as
"People's Small-Scale Mining Program." Moreover, iron ore mineral is not considered among the quarry
resources.

xxxx

WHEREFORE, the Application for Exploration Permit, AEP-III-02-04 of Atlantic Mines and Trading Corp. is
declared valid and may now be given due course. The Small-Scale Mining Permits, SSMP-B-002-05 of
Gerardo Cruz, SSMP-B-003-05 of Eduardo D. Mercado, SSMP-B-004-05 of Benedicto S. Cruz and SSMP-B-
005-05 of Lucila S. Valdez are declared NULL AND VOID. Consequently, the said permits are hereby
CANCELLED.50

The Court finds that the decision of the DENR Secretary was rendered in accordance with the power of
review granted to the DENR Secretary in the resolution of disputes, which is provided for in Section 24 of
R.A. No. 707651 and Section 22 of its Implementing Rules and Regulations.52 It is noted that although
AMTC filed a protest with the PMRB regarding its superior and prior Application for Exploration Permit
over the Applications for Quarry Permit, which were converted to Small-Scale Mining Permits, the PMRB
did not resolve the same, but issued Resolution Nos. 05-08 to 05-11 on August 8, 2005, resolving to
submit to the Provincial Governor of Bulacan the Applications for Small-Scale Mining Permits of Eduardo
Mercado, Benedicto Cruz, Lucila Valdez and Gerardo Cruz for the granting of the said permits. After the
Provincial Governor of Bulacan issued the Small-Scale Mining Permits on August 10, 2005, AMTC
appealed the Resolutions of the PMRB giving due course to the granting of the Small-Scale Mining
Permits by the Provincial Governor.

Hence, the decision of the DENR Secretary, declaring that the Application for Exploration Permit of
AMTC was valid and may be given due course, and canceling the Small-Scale Mining Permits issued by
the Provincial Governor, emanated from the power of review granted to the DENR Secretary under R.A.
No. 7076 and its Implementing Rules and Regulations. The DENR Secretary's power to review and,
therefore, decide, in this case, the issue on the validity of the issuance of the Small-Scale Mining Permits
by the Provincial Governor as recommended by the PMRB, is a quasi-judicial function, which involves
the determination of what the law is, and what the legal rights of the contending parties are, with
respect to the matter in controversy and, on the basis thereof and the facts obtaining, the adjudication
of their respective rights.53 The DENR Secretary exercises quasi-judicial function under R.A. No. 7076 and
its Implementing Rules and Regulations to the extent necessary in settling disputes, conflicts or
litigations over conflicting claims. This quasi-judicial function of the DENR Secretary can neither be
equated with "substitution of judgment" of the Provincial Governor in issuing Small-Scale Mining
Permits nor "control" over the said act of the Provincial Governor as it is a determination of the rights of
AMTC over conflicting claims based on the law.

In determining whether Section 17 (b)(3)(iii) of the Local Government Code of 1991 and Section 24 of
R.A. No. 7076 are unconstitutional, the Court has been guided by Beltran v. The Secretary of
Health, 54 which held:

The fundamental criterion is that all reasonable doubts should be resolved in favor of the
constitutionality of a statute. Every law has in its favor the presumption of constitutionality. For a law to
be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution. The
ground for nullity must be clear and beyond reasonable doubt. Those who petition this Court to declare
a law, or parts thereof, unconstitutional must clearly establish the basis therefor. Otherwise, the
petition must fail. 55

In this case, the Court finds that the grounds raised by petitioner to challenge the constitutionality of
Section 17 (b )(3)(iii) of the Local Government Code of 1991 and Section 24 'of R.A. No.7076 failed to
overcome the constitutionality of the said provisions of law.

WHEREFORE, the petition is DISMISSED for lack of merit.

No costs.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

G.R. No. 196870 June 26, 2012


BORACAY FOUNDATION, INC., Petitioner,
vs.
THE PROVINCE OF AKLAN, REPRESENTED BY GOVERNOR CARLITO S. MARQUEZ, THE PHILIPPINE
RECLAMATION AUTHORITY, AND THE DENR-EMB (REGION VI), Respondents.

DECISION

LEONARDO-DE CASTRO, J.:

In resolving this controversy, the Court took into consideration that all the parties involved share
common goals in pursuit of certain primordial State policies and principles that are enshrined in the
Constitution and pertinent laws, such as the protection of the environment, the empowerment of the
local government units, the promotion of tourism, and the encouragement of the participation of the
private sector. The Court seeks to reconcile the respective roles, duties and responsibilities of the
petitioner and respondents in achieving these shared goals within the context of our Constitution, laws
and regulations.

Nature of the Case

This is an original petition for the issuance of an Environmental Protection Order in the nature of a
continuing mandamus under A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure for
Environmental Cases, promulgated on April 29, 2010.

The Parties

Petitioner Boracay Foundation, Inc. (petitioner) is a duly registered, non-stock domestic corporation. Its
primary purpose is "to foster a united, concerted and environment-conscious development of Boracay
Island, thereby preserving and maintaining its culture, natural beauty and ecological balance, marking
the island as the crown jewel of Philippine tourism, a prime tourist destination in Asia and the whole
world."1 It counts among its members at least sixty (60) owners and representatives of resorts, hotels,
restaurants, and similar institutions; at least five community organizations; and several environmentally-
conscious residents and advocates.2

Respondent Province of Aklan (respondent Province) is a political subdivision of the government created
pursuant to Republic Act No. 1414, represented by Honorable Carlito S. Marquez, the Provincial
Governor (Governor Marquez).

Respondent Philippine Reclamation Authority (respondent PRA), formerly called the Public Estates
Authority (PEA), is a government entity created by Presidential Decree No. 1084,3 which states that one
of the purposes for which respondent PRA was created was to reclaim land, including foreshore and
submerged areas. PEA eventually became the lead agency primarily responsible for all reclamation
projects in the country under Executive Order No. 525, series of 1979. In June 2006, the President of the
Philippines issued Executive Order No. 543, delegating the power "to approve reclamation projects to
PRA through its governing Board, subject to compliance with existing laws and rules and further subject
to the condition that reclamation contracts to be executed with any person or entity (must) go through
public bidding."4

Respondent Department of Environment and Natural Resources Environmental Management Bureau


(DENR-EMB), Regional Office VI (respondent DENR-EMB RVI), is the government agency in the Western
Visayas Region authorized to issue environmental compliance certificates regarding projects that require
the environments protection and management in the region.5

Summary of Antecedent Facts

Boracay Island (Boracay), a tropical paradise located in the Western Visayas region of the Philippines
and one of the countrys most popular tourist destinations, was declared a tourist zone and marine
reserve in 1973 under Presidential Proclamation No. 1801.6 The island comprises the barangays of
Manoc-manoc, Balabag, and Yapak, all within the municipality of Malay, in the province of Aklan.7

Petitioner describes Boracay as follows:

Boracay is well-known for its distinctive powdery white-sand beaches which are the product of the
unique ecosystem dynamics of the area. The island itself is known to come from the uplifted remnants
of an ancient reef platform. Its beaches, the sandy land strip between the water and the area currently
occupied by numerous establishments, is the primary draw for domestic and international tourists for its
color, texture and other unique characteristics. Needless to state, it is the premier domestic and
international tourist destination in the Philippines.8

More than a decade ago, respondent Province built the Caticlan Jetty Port and Passenger Terminal at
Barangay Caticlan to be the main gateway to Boracay. It also built the corresponding Cagban Jetty Port
and Passenger Terminal to be the receiving end for tourists in Boracay. Respondent Province operates
both ports "to provide structural facilities suited for locals, tourists and guests and to provide safety and
security measures."9

In 2005, Boracay 2010 Summit was held and participated in by representatives from national
government agencies, local government units (LGUs), and the private sector. Petitioner was one of the
organizers and participants thereto. The Summit aimed "to re-establish a common vision of all
stakeholders to ensure the conservation, restoration, and preservation of Boracay Island" and "to
develop an action plan that [would allow] all sectors to work in concert among and with each other for
the long term benefit and sustainability of the island and the community."10 The Summit yielded a
Terminal Report11 stating that the participants had shared their dream of having world-class land, water
and air infrastructure, as well as given their observations that government support was lacking,
infrastructure was poor, and, more importantly, the influx of tourists to Boracay was increasing. The
Report showed that there was a need to expand the port facilities at Caticlan due to congestion in the
holding area of the existing port, caused by inadequate facilities, thus tourists suffered long queues
while waiting for the boat ride going to the island.12
Respondent Province claimed that tourist arrivals to Boracay reached approximately 649,559 in 2009
and 779,666 in 2010, and this was expected to reach a record of 1 million tourist arrivals in the years to
come. Thus, respondent Province conceptualized the expansion of the port facilities at Barangay
Caticlan.13

The Sangguniang Barangay of Caticlan, Malay Municipality, issued Resolution No. 13, s. 200814 on April
25, 2008 stating that it had learned that respondent Province had filed an application with the DENR for
a foreshore lease of areas along the shorelines of Barangay Caticlan, and manifesting its strong
opposition to said application, as the proposed foreshore lease practically covered almost all the
coastlines of said barangay, thereby technically diminishing its territorial jurisdiction, once granted, and
depriving its constituents of their statutory right of preference in the development and utilization of the
natural resources within its jurisdiction. The resolution further stated that respondent Province did not
conduct any consultations with the Sangguniang Barangay of Caticlan regarding the proposed foreshore
lease, which failure the Sanggunian considered as an act of bad faith on the part of respondent
Province.15

On November 20, 2008, the Sangguniang Panlalawigan of respondent Province approved Resolution No.
2008-369,16 formally authorizing Governor Marquez to enter into negotiations towards the possibility of
effecting self-liquidating and income-producing development and livelihood projects to be financed
through bonds, debentures, securities, collaterals, notes or other obligations as provided under Section
299 of the Local Government Code, with the following priority projects: (a) renovation/rehabilitation of
the Caticlan/Cagban Passenger Terminal Buildings and Jetty Ports; and (b) reclamation of a portion of
Caticlan foreshore for commercial purposes.17 This step was taken as respondent Provinces existing
jetty port and passenger terminal was funded through bond flotation, which was successfully redeemed
and paid ahead of the target date. This was allegedly cited as one of the LGUs Best Practices wherein
respondent Province was given the appropriate commendation.18

Respondent Province included the proposed expansion of the port facilities at Barangay Caticlan in its
2009 Annual Investment Plan,19 envisioned as its project site the area adjacent to the existing jetty port,
and identified additional areas along the coastline of Barangay Caticlan as the site for future project
expansion.20

Governor Marquez sent a letter to respondent PRA on March 12, 200921 expressing the interest of
respondent Province to reclaim about 2.64 hectares of land along the foreshores of Barangay Caticlan,
Municipality of Malay, Province of Aklan.

Sometime in April 2009, respondent Province entered into an agreement with the Financial
Advisor/Consultant that won in the bidding process held a month before, to conduct the necessary
feasibility study of the proposed project for the Renovation/Rehabilitation of the Caticlan Passenger
Terminal Building and Jetty Port, Enhancement and Recovery of Old Caticlan Coastline, and Reclamation
of a Portion of Foreshore for Commercial Purposes (the Marina Project), in Malay, Aklan.22
Subsequently, on May 7, 2009, the Sangguniang Panlalawigan of respondent Province issued Resolution
No. 2009110,23 which authorized Governor Marquez to file an application to reclaim the 2.64 hectares
of foreshore area in Caticlan, Malay, Aklan with respondent PRA.

Sometime in July 2009, the Financial Advisor/Consultant came up with a feasibility study which focused
on the land reclamation of 2.64 hectares by way of beach enhancement and recovery of the old Caticlan
coastline for the rehabilitation and expansion of the existing jetty port, and for its future plans the
construction of commercial building and wellness center. The financial component of the said study was
Two Hundred Sixty Million Pesos (P260,000,000.00). Its suggested financing scheme was bond
flotation.24

Meanwhile, the Sangguniang Bayan of the Municipality of Malay expressed its strong opposition to the
intended foreshore lease application, through Resolution No. 044,25 approved on July 22, 2009,
manifesting therein that respondent Provinces foreshore lease application was for business enterprise
purposes for its benefit, at the expense of the local government of Malay, which by statutory provisions
was the rightful entity "to develop, utilize and reap benefits from the natural resources found within its
jurisdiction."26

In August 2009, a Preliminary Geohazard Assessment27 for the enhancement/expansion of the existing
Caticlan Jetty Port and Passenger Terminal through beach zone restoration and Protective Marina
Developments in Caticlan, Malay, Aklan was completed.

Thereafter, Governor Marquez submitted an Environmental Performance Report and Monitoring


Program (EPRMP)28 to DENR-EMB RVI, which he had attached to his letter29 dated September 19, 2009,
as an initial step for securing an Environmental Compliance Certificate (ECC). The letter reads in part:

With the project expected to start its construction implementation next month, the province hereby
assures your good office that it will give preferential attention to and shall comply with whatever
comments that you may have on this EPRMP.30 (Emphasis added.)

Respondent Province was then authorized to issue "Caticlan Super Marina Bonds" for the purpose of
funding the renovation of the Caticlan Jetty Port and Passenger Terminal Building, and the reclamation
of a portion of the foreshore lease area for commercial purposes in Malay, Aklan through Provincial
Ordinance No. 2009-013, approved on September 10, 2009. The said ordinance authorized Governor
Marquez to negotiate, sign and execute agreements in relation to the issuance of the Caticlan Super
Marina Bonds in the amount not exceedingP260,000,000.00.31

Subsequently, the Sangguniang Panlalawigan of the Province of Aklan issued Provincial Ordinance No.
2009-01532 on October 1, 2009, amending Provincial Ordinance No. 2009-013, authorizing the bond
flotation of the Province of Aklan through Governor Marquez to fund the Marina Project and
appropriate the entire proceeds of said bonds for the project, and further authorizing Governor
Marquez to negotiate, sign and execute contracts or agreements pertinent to the transaction.33
Within the same month of October 2009, respondent Province deliberated on the possible expansion
from its original proposed reclamation area of 2.64 hectares to forty (40) hectares in order to maximize
the utilization of its resources and as a response to the findings of the Preliminary Geohazard
Assessment study which showed that the recession and retreat of the shoreline caused by coastal
erosion and scouring should be the first major concern in the project site and nearby coastal area. The
study likewise indicated the vulnerability of the coastal zone within the proposed project site and the
nearby coastal area due to the effects of sea level rise and climate change which will greatly affect the
social, economic, and environmental situation of Caticlan and nearby Malay coastal communities.34

In his letter dated October 22, 2009 addressed to respondent PRA, Governor Marquez wrote:

With our substantial compliance with the requirements under Administrative Order No. 2007-2 relative
to our request to PRA for approval of the reclamation of the [proposed Beach Zone Restoration and
Protection Marine Development in Barangays Caticlan and Manoc-Manoc] and as a result of our
discussion during the [meeting with the respondent PRA on October 12, 2009], may we respectfully
submit a revised Reclamation Project Description embodying certain revisions/changes in the size and
location of the areas to be reclaimed. x x x.

On another note, we are pleased to inform your Office that the bond flotation we have secured with the
Local Government Unit Guarantee Corporation (LGUGC) has been finally approved last October 14,
2009. This will pave the way for the implementation of said project. Briefly, the Province has been
recognized by the Bureau of Local Government Finance (BLGF) for its capability to meet its loan
obligations. x x x.

With the continued increase of tourists coming to Boracay through Caticlan, the Province is venturing
into such development project with the end in view of protection and/or restoring certain segments of
the shoreline in Barangays Caticlan (Caticlan side) and Manoc-manoc (Boracay side) which, as reported
by experts, has been experiencing tremendous coastal erosion.

For the project to be self-liquidating, however, we will be developing the reclaimed land for commercial
and tourism-related facilities and for other complementary uses.35 (Emphasis ours.)

Then, on November 19, 2009, the Sangguniang Panlalawigan enacted Resolution No. 2009-
29936 authorizing Governor Marquez to enter into a Memorandum of Agreement (MOA) with
respondent PRA in the implementation of the Beach Zone Restoration and Protection Marina
Development Project, which shall reclaim a total of 40 hectares in the areas adjacent to the jetty ports
at Barangay Caticlan and Barangay Manoc-manoc. The Sangguniang Panlalawigan approved the terms
and conditions of the necessary agreements for the implementation of the bond flotation of respondent
Province to fund the renovation/rehabilitation of the existing jetty port by way of enhancement and
recovery of the Old Caticlan shoreline through reclamation of an area of 2.64 hectares in the amount
of P260,000,000.00 on December 1, 2009.37

Respondent Province gave an initial presentation of the project with consultation to the Sangguniang
Bayan of Malay38 on December 9, 2009.
Respondent PRA approved the reclamation project on April 20, 2010 in its Resolution No. 4094 and
authorized its General Manager/Chief Executive Officer (CEO) to enter into a MOA with respondent
Province for the implementation of the reclamation project.39

On April 27, 2010, DENR-EMB RVI issued to respondent Province ECC-R6-1003-096-7100 (the questioned
ECC) for Phase 1 of the Reclamation Project to the extent of 2.64 hectares to be done along the Caticlan
side beside the existing jetty port.40

On May 17, 2010, respondent Province entered into a MOA41 with respondent PRA. Under Article III, the
Project was described therein as follows:

The proposed Aklan Beach Zone Restoration and Protection Marina Development Project involves the
reclamation and development of approximately forty (40) hectares of foreshore and offshore areas of
the Municipality of Malay x x x.

The land use development of the reclamation project shall be for commercial, recreational and
institutional and other applicable uses.42 (Emphases supplied.)

It was at this point that respondent Province deemed it necessary to conduct a series of what it calls
"information-education campaigns," which provided the venue for interaction and dialogue with the
public, particularly the Barangay and Municipal officials of the Municipality of Malay, the residents of
Barangay Caticlan and Boracay, the stakeholders, and the non-governmental organizations (NGOs). The
details of the campaign are summarized as follows43 :

a. June 17, 2010 at Casa Pilar Beach Resort, Boracay Island, Malay, Aklan;44

b. July 28, 2010 at Caticlan Jetty Port and Passenger Terminal;45

c. July 31, 2010 at Barangay Caticlan Plaza;46

d. September 15, 2010 at the Office of the Provincial Governor with Municipal Mayor of Malay Mayor
John P. Yap;47

e. October 12, 2010 at the Office of the Provincial Governor with the Provincial Development Council
Executive Committee;48 and

f. October 29, 2010 at the Office of the Provincial Governor with Officials of LGU-Malay and Petitioner.49

Petitioner claims that during the "public consultation meeting" belatedly called by respondent Province
on June 17, 2010, respondent Province presented the Reclamation Project and only then detailed the
actions that it had already undertaken, particularly: the issuance of the Caticlan Super Marina Bonds;
the execution of the MOA with respondent PRA; the alleged conduct of an Environmental Impact
Assessment (EIA) study for the reclamation project; and the expansion of the project to forty (40)
hectares from 2.64 hectares.50
In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the Malay Municipality reiterated its
strong opposition to respondent Provinces project and denied its request for a favorable endorsement
of the Marina Project.51

The Malay Municipality subsequently issued Resolution No. 016, Series of 2010, adopted on August 3,
2010, to request respondent PRA "not to grant reclamation permit and notice to proceed to the Marina
Project of the [respondent] Provincial Government of Aklan located at Caticlan, Malay, Aklan."52

In a letter53 dated October 12, 2010, petitioner informed respondent PRA of its opposition to the
reclamation project, primarily for the reason that, based on the opinion of Dr. Porfirio M. Alio, an
expert from the University of the Philippines Marine Science Institute (UPMSI), which he rendered based
on the documents submitted by respondent Province to obtain the ECC, a full EIA study is required to
assess the reclamation projects likelihood of rendering critical and lasting effect on Boracay considering
the proximity in distance, geographical location, current and wind direction, and many other
environmental considerations in the area. Petitioner noted that said documents had failed to deal with
coastal erosion concerns in Boracay. It also noted that respondent Province failed to comply with certain
mandatory provisions of the Local Government Code, particularly, those requiring the project proponent
to conduct consultations with stakeholders.

Petitioner likewise transmitted its Resolution No. 001, Series of 2010, registering its opposition to the
reclamation project to respondent Province, respondent PRA, respondent DENR-EMB, the National
Economic Development Authority Region VI, the Malay Municipality, and other concerned entities.54

Petitioner alleges that despite the Malay Municipalitys denial of respondent Provinces request for a
favorable endorsement, as well as the strong opposition manifested both by Barangay Caticlan and
petitioner as an NGO, respondent Province still continued with the implementation of the Reclamation
Project.55

On July 26, 2010, the Sangguniang Panlalawigan of respondent Province set aside Resolution No. 046, s.
2010, of the Municipality of Malay and manifested its support for the implementation of the aforesaid
project through its Resolution No. 2010-022.56

On July 27, 2010, the MOA was confirmed by respondent PRA Board of Directors under its Resolution
No. 4130. Respondent PRA wrote to respondent Province on October 19, 2010, informing the latter to
proceed with the reclamation and development of phase 1 of site 1 of its proposed project. Respondent
PRA attached to said letter its Evaluation Report dated October 18, 2010.57

Petitioner likewise received a copy of respondent PRAs letter dated October 19, 2010, which authorized
respondent Province to proceed with phase 1 of the reclamation project, subject to compliance with the
requirements of its Evaluation Report. The reclamation project was described as:

"[A] seafront development involving reclamation of an aggregate area of more or less, forty (40)
hectares in two (2) separate sites both in Malay Municipality, Aklan Province. Site 1 is in Brgy. Caticlan
with a total area of 36.82 hectares and Site 2 in Brgy. Manoc-Manoc, Boracay Island with a total area of
3.18 hectares. Sites 1 and 2 are on the opposite sides of Tabon Strait, about 1,200 meters apart. x x
x." 58 (Emphases added.)

The Sangguniang Panlalawigan of Aklan, through Resolution No. 2010-034,59 addressed the
apprehensions of petitioner embodied in its Resolution No. 001, s. 2010, and supported the
implementation of the project. Said resolution stated that the apprehensions of petitioner with regard
to the economic, social and political negative impacts of the projects were mere perceptions and
generalities and were not anchored on definite scientific, social and political studies.

In the meantime, a study was commissioned by the Philippine Chamber of Commerce and Industry-
Boracay (PCCI-Boracay), funded by the Department of Tourism (DOT) with the assistance of, among
others, petitioner. The study was conducted in November 2010 by several marine biologists/experts
from the Marine Environmental Resources Foundation (MERF) of the UPMSI. The study was intended to
determine the potential impact of a reclamation project in the hydrodynamics of the strait and on the
coastal erosion patterns in the southern coast of Boracay Island and along the coast of Caticlan.60

After noting the objections of the respective LGUs of Caticlan and Malay, as well as the apprehensions of
petitioner, respondent Province issued a notice to the contractor on December 1, 2010 to commence
with the construction of the project.61

On April 4, 2011, the Sangguniang Panlalawigan of Aklan, through its Committee on Cooperatives, Food,
Agriculture, and Environmental Protection and the Committee on Tourism, Trade, Industry and
Commerce, conducted a joint committee hearing wherein the study undertaken by the MERF-UPMSI
was discussed.62 In attendance were Mr. Ariel Abriam, President of PCCI-Boracay, representatives from
the Provincial Government, and Dr. Cesar Villanoy, a professor from the UPMSI. Dr. Villanoy said that
the subject project, consisting of 2.64 hectares, would only have insignificant effect on the
hydrodynamics of the strait traversing the coastline of Barangay Caticlan and Boracay, hence, there was
a distant possibility that it would affect the Boracay coastline, which includes the famous white-sand
beach of the island.63

Thus, on April 6, 2011, the Sangguniang Panlalawigan of Aklan enacted Resolution No. 2011-06564 noting
the report on the survey of the channel between Caticlan and Boracay conducted by the UPMSI in
relation to the effects of the ongoing reclamation to Boracay beaches, and stating that Dr. Villanoy had
admitted that nowhere in their study was it pointed out that there would be an adverse effect on the
white-sand beach of Boracay.

During the First Quarter Regular Meeting of the Regional Development Council, Region VI (RDC-VI) on
April 16, 2011, it approved and supported the subject project (covering 2.64 hectares) through RDC-VI
Resolution No. VI-26, series of 2011.65

Subsequently, Mr. Abriam sent a letter to Governor Marquez dated April 25, 2011 stating that the study
conducted by the UPMSI confirms that the water flow across the Caticlan-Boracay channel is primarily
tide-driven, therefore, the marine scientists believe that the 2.64-hectare project of respondent
Province would not significantly affect the flow in the channel and would unlikely impact the Boracay
beaches. Based on this, PCCI-Boracay stated that it was not opposing the 2.64-hectare Caticlan
reclamation project on environmental grounds.66

On June 1, 2011, petitioner filed the instant Petition for Environmental Protection Order/Issuance of the
Writ of Continuing Mandamus. On June 7, 2011, this Court issued a Temporary Environmental
Protection Order (TEPO) and ordered the respondents to file their respective comments to the
petition.67

After receiving a copy of the TEPO on June 9, 2011, respondent Province immediately issued an order to
the Provincial Engineering Office and the concerned contractor to cease and desist from conducting any
construction activities until further orders from this Court.

The petition is premised on the following grounds:

I.

The respondent Province, proponent of the reclamation project, failed to comply with relevant rules and
regulations in the acquisition of an ECC.

A. The reclamation project is co-located within environmentally critical areas requiring the performance
of a full, or programmatic, environmental impact assessment.

B. Respondent Province failed to obtain the favorable endorsement of the LGU concerned.

C. Respondent Province failed to conduct the required consultation procedures as required by the Local
Government Code.

D. Respondent Province failed to perform a full environmental impact assessment as required by law
and relevant regulations.

II.

The reclamation of land bordering the strait between Caticlan and Boracay shall adversely affect the frail
ecological balance of the area.68

Petitioner objects to respondent Provinces classification of the reclamation project as single instead of
co-located, as "non-environmentally critical," and as a mere "rehabilitation" of the existing jetty port.
Petitioner points out that the reclamation project is on two sites (which are situated on the opposite
sides of Tabon Strait, about 1,200 meters apart):

36.82 hectares Site 1, in Bgy. Caticlan

3.18 hectares Site 2, in Manoc-manoc, Boracay Island69

Phase 1, which was started in December 2010 without the necessary permits,70 is located on the Caticlan
side of a narrow strait separating mainland Aklan from Boracay. In the implementation of the project,
respondent Province obtained only an ECC to conduct Phase 1, instead of an ECC on the entire 40
hectares. Thus, petitioner argues that respondent Province abused and exploited the Revised Procedural
Manual for DENR Administrative Order No. 30, Series of 2003 (DENR DAO 2003-30)71 relating to the
acquisition of an ECC by:

1. Declaring the reclamation project under "Group II Projects-Non-ECP (environmentally critical project)
in ECA (environmentally critical area) based on the type and size of the area," and

2. Failing to declare the reclamation project as a co-located project application which would have
required the Province to submit a Programmatic Environmental Impact Statement (PEIS)72 or
Programmatic Environmental [Performance] Report Management Plan (PE[P]RMP).73 (Emphases ours.)

Petitioner further alleges that the Revised Procedural Manual (on which the classification above is
based, which merely requires an Environmental Impact Statement [EIS] for Group II projects) is patently
ultra vires, and respondent DENR-EMB RVI committed grave abuse of discretion because the laws on
EIS, namely, Presidential Decree Nos. 1151 and 1586, as well as Presidential Proclamation No. 2146,
clearly indicate that projects in environmentally critical areas are to be immediately considered
environmentally critical. Petitioner complains that respondent Province applied for an ECC only for
Phase 1; hence, unlawfully

evading the requirement that co-located projects74 within Environmentally Critical Areas (ECAs) must
submit a PEIS and/or a PEPRMP.

Petitioner argues that respondent Province fraudulently classified and misrepresented the project as a
Non-ECP in an ECA, and as a single project instead of a co-located one. The impact assessment allegedly
performed gives a patently erroneous and wrongly-premised appraisal of the possible environmental
impact of the reclamation project. Petitioner contends that respondent Provinces choice of
classification was designed to avoid a comprehensive impact assessment of the reclamation project.

Petitioner further contends that respondent DENR-EMB RVI willfully and deliberately disregarded its
duty to ensure that the environment is protected from harmful developmental projects because it
allegedly performed only a cursory and superficial review of the documents submitted by the
respondent Province for an ECC, failing to note that all the information and data used by respondent
Province in its application for the ECC were all dated and not current, as data was gathered in the late
1990s for the ECC issued in 1999 for the first jetty port. Thus, petitioner alleges that respondent DENR-
EMB RVI ignored the environmental impact to Boracay, which involves changes in the structure of the
coastline that could contribute to the changes in the characteristics of the sand in the beaches of both
Caticlan and Boracay.

Petitioner insists that reclamation of land at the Caticlan side will unavoidably adversely affect the
Boracay side and notes that the declared objective of the reclamation project is for the exploitation of
Boracays tourist trade, since the project is intended to enhance support services thereto. But,
petitioner argues, the primary reason for Boracays popularity is its white-sand beaches which will be
negatively affected by the project.
Petitioner alleges that respondent PRA had required respondent Province to obtain the favorable
endorsement of the LGUs of Barangay Caticlan and Malay Municipality pursuant to the consultation
procedures as required by the Local Government Code.75 Petitioner asserts that the reclamation project
is in violation not only of laws on EIS but also of the Local Government Code as respondent Province
failed to enter into proper consultations with the concerned LGUs. In fact, the Liga ng mga Barangay-
Malay Chapter also expressed strong opposition against the project.76

Petitioner cites Sections 26 and 27 of the Local Government Code, which require consultations if the
project or program may cause pollution, climactic change, depletion of non-renewable resources, etc.
According to petitioner, respondent Province ignored the LGUs opposition expressed as early as 2008.
Not only that, respondent Province belatedly called for public "consultation meetings" on June 17 and
July 28, 2010, after an ECC had already been issued and the MOA between respondents PRA and
Province had already been executed. As the petitioner saw it, these were not consultations but mere
"project presentations."

Petitioner claims that respondent Province, aided and abetted by respondents PRA and DENR-EMB,
ignored the spirit and letter of the Revised Procedural Manual, intended to implement the various
regulations governing the Environmental Impact Assessments (EIAs) to ensure that developmental
projects are in line with sustainable development of natural resources. The project was conceptualized
without considering alternatives.

Further, as to its allegation that respondent Province failed to perform a full EIA, petitioner argues that
while it is true that as of now, only the Caticlan side has been issued an ECC, the entire project involves
the Boracay side, which should have been considered a co-located project. Petitioner claims that any
project involving Boracay requires a full EIA since it is an ECA. Phase 1 of the project will affect Boracay
and Caticlan as they are separated only by a narrow strait; thus, it should be considered an ECP.
Therefore, the ECC and permit issued must be invalidated and cancelled.

Petitioner contends that a study shows that the flow of the water through a narrower channel due to
the reclamation project will likely divert sand transport off the southwest part of Boracay, whereas the
characteristic coast of the Caticlan side of the strait indicate stronger sediment transport.77 The white-
sand beaches of Boracay and its surrounding marine environment depend upon the natural flow of the
adjacent waters.

Regarding its claim that the reclamation of land bordering the strait between Caticlan and Boracay shall
adversely affect the frail ecological balance of the area, petitioner submits that while the study
conducted by the MERF-UPMSI only considers the impact of the reclamation project on the land, it is
undeniable that it will also adversely affect the already frail ecological balance of the area. The effect of
the project would have been properly assessed if the proper EIA had been performed prior to any
implementation of the project.

According to petitioner, respondent Provinces intended purposes do not prevail over its duty and
obligation to protect the environment. Petitioner believes that rehabilitation of the Jetty Port may be
done through other means.
In its Comment78 dated June 21, 2011, respondent Province claimed that application for reclamation of
40 hectares is advantageous to the Provincial Government considering that its filing fee would only cost
Php20,000.00 plus Value Added Tax (VAT) which is also the minimum fee as prescribed under Section
4.2 of Administrative Order No. 2007-2.79

Respondent Province considers the instant petition to be premature; thus, it must necessarily fail for
lack of cause of action due to the failure of petitioner to fully exhaust the available administrative
remedies even before seeking judicial relief. According to respondent Province, the petition primarily
assailed the decision of respondent DENR-EMB RVI in granting the ECC for the subject project consisting
of 2.64 hectares and sought the cancellation of the ECC for alleged failure of respondent Province to
submit proper documentation as required for its issuance. Hence, the grounds relied upon by petitioner
can be addressed within the confines of administrative processes provided by law.

Respondent Province believes that under Section 5.4.3 of DENR Administrative Order No. 2003-30 (DAO
2003-30),80 the issuance of an ECC81 is an official decision of DENR-EMB RVI on the application of a
project proponent.82 It cites Section 6 of DENR DAO 2003-30, which provides for a remedy available to
the party aggrieved by the final decision on the proponents ECC applications.

Respondent Province argues that the instant petition is anchored on a wrong premise that results to
petitioners unfounded fears and baseless apprehensions. It is respondent Provinces contention that its
2.64-hectare reclamation project is considered as a "stand alone project," separate and independent
from the approved area of 40 hectares. Thus, petitioner should have observed the difference between
the "future development plan" of respondent Province from its "actual project" being undertaken.83

Respondent Province clearly does not dispute the fact that it revised its original application to
respondent PRA from 2.64 hectares to 40 hectares. However, it claims that such revision is part of its
future plan, and implementation thereof is "still subject to availability of funds, independent scientific
environmental study, separate application of ECC and notice to proceed to be issued by respondent
PRA."84

Respondent Province goes on to claim that "[p]etitioners version of the Caticlan jetty port expansion
project is a bigger project which is still at the conceptualization stage. Although this project was
described in the Notice to Proceed issued by respondent PRA to have two phases, 36.82 hectares in
Caticlan and 3.18 hectares in Boracay [Island,] it is totally different from the [ongoing] Caticlan jetty port
expansion project."85

Respondent Province says that the Accomplishment Report86 of its Engineering Office would attest that
the actual project consists of 2.64 hectares only, as originally planned and conceptualized, which was
even reduced to 2.2 hectares due to some construction and design modifications.

Thus, respondent Province alleges that from its standpoint, its capability to reclaim is limited to 2.64
hectares only, based on respondent PRAs Evaluation Report87 dated October 18, 2010, which was in
turn the basis of the issuance of the Notice to Proceed dated October 19, 2010, because the projects
financial component isP260,000,000.00 only. Said Evaluation Report indicates that the implementation
of the other phases of the project including site 2, which consists of the other portions of the 40-hectare
area that includes a portion in Boracay, is still within the 10-year period and will depend largely on the
availability of funds of respondent Province.88

So, even if respondent PRA approved an area that would total up to 40 hectares, it was divided into
phases in order to determine the period of its implementation. Each phase was separate and
independent because the source of funds was also separate. The required documents and requirements
were also specific for each phase. The entire approved area of 40 hectares could be implemented within
a period of 10 years but this would depend solely on the availability of funds.89

As far as respondent Province understands it, additional reclamations not covered by the ECC, which
only approved 2.64 hectares, should undergo another EIA. If respondent Province intends to commence
the construction on the other component of the 40 hectares, then it agrees that it is mandated to secure
a new ECC.90

Respondent Province admits that it dreamt of a 40-hectare project, even if it had originally planned and
was at present only financially equipped and legally compliant to undertake 2.64 hectares of the project,
and only as an expansion of its old jetty port.91

Respondent Province claims that it has complied with all the necessary requirements for securing an
ECC. On the issue that the reclamation project is within an ECA requiring the performance of a full or
programmatic EIA, respondent Province reiterates that the idea of expanding the area to 40 hectares is
only a future plan. It only secured an ECC for 2.64 hectares, based on the limits of its funding and
authority. From the beginning, its intention was to rehabilitate and expand the existing jetty port
terminal to accommodate an increasing projected traffic. The subject project is specifically classified
under DENR DAO 2003-30 on its Project Grouping Matrix for Determination of EIA Report Type
considered as Minor Reclamation Projects falling under Group II Non ECP in an ECA. Whether 2.64 or
40 hectares in area, the subject project falls within this classification.

Consequently, respondent Province claims that petitioner erred in considering the ongoing reclamation
project at Caticlan, Malay, Aklan, as co-located within an ECA.

Respondent Province, likewise argues that the 2.64-hectare project is not a component of the approved
40-hectare area as it is originally planned for the expansion site of the existing Caticlan jetty port. At
present, it has no definite conceptual construction plan of the said portion in Boracay and it has no
financial allocation to initiate any project on the said Boracay portion.

Furthermore, respondent Province contends that the present project is located in Caticlan while the
alleged component that falls within an ECA is in Boracay. Considering its geographical location, the two
sites cannot be considered as a contiguous area for the reason that it is separated by a body of water a
strait that traverses between the mainland Panay wherein Caticlan is located and Boracay. Hence, it is
erroneous to consider the two sites as a co-located project within an ECA. Being a "stand alone project"
and an expansion of the existing jetty port, respondent DENR-EMB RVI had required respondent
Province to perform an EPRMP to secure an ECC as sanctioned by Item No. 8(b), page 7 of DENR DAO
2003-30.

Respondent Province contends that even if, granting for the sake of argument, it had erroneously
categorized its project as Non-ECP in an ECA, this was not a final determination. Respondent DENR-EMB
RVI, which was the administrator of the EIS system, had the final decision on this matter. Under DENR
DAO 2003-30, an application for ECC, even for a Category B2 project where an EPRMP is conducted,
shall be subjected to a review process. Respondent DENR-EMB RVI had the authority to deny said
application. Its Regional Director could either issue an ECC for the project or deny the application. He
may also require a more comprehensive EIA study. The Regional Director issued the ECC based on the
EPRMP submitted by respondent Province and after the same went through the EIA review process.

Thus, respondent Province concludes that petitioners allegation of this being a "co-located project" is
premature if not baseless as the bigger reclamation project is still on the conceptualization stage. Both
respondents PRA and Province are yet to complete studies and feasibility studies to embark on another
project.

Respondent Province claims that an ocular survey of the reclamation project revealed that it had
worked within the limits of the ECC.92

With regard to petitioners allegation that respondent Province failed to get the favorable endorsement
of the concerned LGUs in violation of the Local Government Code, respondent Province contends that
consultation vis--vis the favorable endorsement from the concerned LGUs as contemplated under the
Local Government Code are merely tools to seek advice and not a power clothed upon the LGUs to
unilaterally approve or disapprove any government projects. Furthermore, such endorsement is not
necessary for projects falling under Category B2 unless required by the DENR-EMB RVI, under Section
5.3 of DENR DAO 2003-30.

Moreover, DENR Memorandum Circular No. 08-2007 no longer requires the issuance of permits and
certifications as a pre-requisite for the issuance of an ECC. Respondent Province claims to have
conducted consultative activities with LGUs in connection with Sections 26 and 27 of the Local
Government Code. The vehement and staunch objections of both the Sangguniang Barangay of Caticlan
and the Sangguniang Bayan of Malay, according to respondent Province, were not rooted on its
perceived impact upon the people and the community in terms of environmental or ecological balance,
but due to an alleged conflict with their "principal position to develop, utilize and reap benefits from the
natural resources found within its jurisdiction."93 Respondent Province argues that these concerns are
not within the purview of the Local Government Code. Furthermore, the Preliminary Geohazard
Assessment Report and EPRMP as well as Sangguniang Panlalawigan Resolution Nos. 2010-022 and
2010-034 should address any environmental issue they may raise.

Respondent Province posits that the spirit and intent of Sections 26 and 27 of the Local Government
Code is to create an avenue for parties, the proponent and the LGU concerned, to come up with a tool in
harmonizing its views and concerns about the project. The duty to consult does not automatically
require adherence to the opinions during the consultation process. It is allegedly not within the
provisions to give the full authority to the LGU concerned to unilaterally approve or disapprove the
project in the guise of requiring the proponent of securing its favorable endorsement. In this case,
petitioner is calling a halt to the project without providing an alternative resolution to harmonize its
position and that of respondent Province.

Respondent Province claims that the EPRMP94 would reveal that:

[T]he area fronting the project site is practically composed of sand. Dead coral communities may be
found along the vicinity. Thus, fish life at the project site is quite scarce due to the absence of marine
support systems like the sea grass beds and coral reefs.

x x x [T]here is no coral cover at the existing Caticlan jetty port. [From] the deepest point of jetty to the
shallowest point, there was no more coral patch and the substrate is sandy. It is of public knowledge
that the said foreshore area is being utilized by the residents ever since as berthing or anchorage site of
their motorized banca. There will be no possibility of any coral development therein because of its
continuous utilization. Likewise, the activity of the strait that traverses between the main land Caticlan
and Boracay Island would also be a factor of the coral development. Corals [may] only be formed within
the area if there is scientific human intervention, which is absent up to the present.

In light of the foregoing premise, it casts serious doubt on petitioners allegations pertaining to the
environmental effects of Respondent-LGUs 2.64 hectares reclamation project. The alleged
environmental impact of the subject project to the beaches of Boracay Island remains unconfirmed.
Petitioner had unsuccessfully proven that the project would cause imminent, grave and irreparable
injury to the community.95

Respondent Province prayed for the dissolution of the TEPO, claiming that the rules provide that the
TEPO may be dissolved if it appears after hearing that its issuance or continuance would cause
irreparable damage to the party or person enjoined, while the applicant may be fully compensated for
such damages as he may suffer and subject to the posting of a sufficient bond by the party or person
enjoined. Respondent Province contends that the TEPO would cause irreparable damage in two aspects:

a. Financial dislocation and probable bankruptcy; and

b. Grave and imminent danger to safety and health of inhabitants of immediate area, including tourists
and passengers serviced by the jetty port, brought about by the abrupt cessation of development works.

As regards financial dislocation, the arguments of respondent Province are summarized below:

1. This project is financed by bonds which the respondent Province had issued to its creditors as the
financing scheme in funding the present project is by way of credit financing through bond flotation.

2. The funds are financed by a Guarantee Bank getting payment from bonds, being sold to investors,
which in turn would be paid by the income that the project would realize or incur upon its completion.
3. While the project is under construction, respondent Province is appropriating a portion of its Internal
Revenue Allotment (IRA) budget from the 20% development fund to defray the interest and principal
amortization due to the Guarantee Bank.

4. The respondent Provinces IRA, regular income, and/or such other revenues or funds, as may be
permitted by law, are being used as security for the payment of the said loan used for the projects
construction.

5. The inability of the subject project to earn revenues as projected upon completion will compel the
Province to shoulder the full amount of the obligation, starting from year 2012.

6. Respondent province is mandated to assign its IRA, regular income and/or such other revenues or
funds as permitted by law; if project is stopped, detriment of the public welfare and its constituents.96

As to the second ground for the dissolution of the TEPO, respondent Province argues:

1. Non-compliance with the guidelines of the ECC may result to environmental hazards most especially
that reclaimed land if not properly secured may be eroded into the sea.

2. The construction has accomplished 65.26 percent of the project. The embankment that was
deposited on the project has no proper concrete wave protection that might be washed out in the event
that a strong typhoon or big waves may occur affecting the strait and the properties along the project
site. It is already the rainy season and there is a big possibility of typhoon occurrence.

3. If said incident occurs, the aggregates of the embankment that had been washed out might be
transferred to the adjoining properties which could affect its natural environmental state.

4. It might result to the total alteration of the physical landscape of the area attributing to
environmental disturbance.

5. The lack of proper concrete wave protection or revetment would cause the total erosion of the
embankment that has been dumped on the accomplished area.97

Respondent Province claims that petitioner will not stand to suffer immediate, grave and irreparable
injury or damage from the ongoing project. The petitioners perceived fear of environmental destruction
brought about by its erroneous appreciation of available data is unfounded and does not translate into a
matter of extreme urgency. Thus, under the Rules of Procedure on Environmental Cases, the TEPO may
be dissolved.

Respondent PRA filed its Comment98 on June 22, 2011. It alleges that on June 24, 2006, Executive Order
No. 543 delegated the power "to approve reclamation projects to respondent PRA through its governing
Board, subject to compliance with existing laws and rules and further subject to the condition that
reclamation contracts to be executed with any person or entity (must) go through public bidding."
Section 4 of respondent PRAs Administrative Order No. 2007-2 provides for the approval process and
procedures for various reclamation projects to be undertaken. Respondent PRA prepared an Evaluation
Report on November 5, 200999 regarding Aklans proposal to increase its project to 40 hectares.

Respondent PRA contends that it was only after respondent Province had complied with the
requirements under the law that respondent PRA, through its Board of Directors, approved the
proposed project under its Board Resolution No. 4094.100 In the same Resolution, respondent PRA Board
authorized the General Manager/CEO to execute a MOA with the Aklan provincial government to
implement the reclamation project under certain conditions.

The issue for respondent PRA was whether or not it approved the respondent Provinces 2.64-hectare
reclamation project proposal in willful disregard of alleged "numerous irregularities" as claimed by
petitioner.101

Respondent PRA claims that its approval of the Aklan Reclamation Project was in accordance with law
and its rules. Indeed, it issued the notice to proceed only after Aklan had complied with all the
requirements imposed by existing laws and regulations. It further contends that the 40 hectares
involved in this project remains a plan insofar as respondent PRA is concerned. What has been approved
for reclamation by respondent PRA thus far is only the 2.64-hectare reclamation project. Respondent
PRA reiterates that it approved this reclamation project after extensively reviewing the legal, technical,
financial, environmental, and operational aspects of the proposed reclamation.102

One of the conditions that respondent PRA Board imposed before approving the Aklan project was that
no reclamation work could be started until respondent PRA has approved the detailed engineering
plans/methodology, design and specifications of the reclamation. Part of the required submissions to
respondent PRA includes the drainage design as approved by the Public Works Department and the ECC
as issued by the DENR, all of which the Aklan government must submit to respondent PRA before
starting any reclamation works.103 Under Article IV(B)(3) of the MOA between respondent PRA and
Aklan, the latter is required to submit, apart from the ECC, the following requirements for respondent
PRAs review and approval, as basis for the issuance of a Notice to Proceed (NTP) for Reclamation
Works:

(a) Land-form plan with technical description of the metes and bounds of the same land-form;

(b) Final master development and land use plan for the project;

(c) Detailed engineering studies, detailed engineering design, plans and specification for reclamation
works, reclamation plans and methodology, plans for the sources of fill materials;

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

(e) Detailed project cost estimates and quantity take-off per items of work of the rawland reclamation
components, e.g. reclamation containment structures and soil consolidation;
(f) Organizational chart of the construction arm, manning table, equipment schedule for the project;
and,

(g) Project timetable (PERT/CPM) for the entire project construction period.104

In fact, respondent PRA further required respondent Province under Article IV (B)(24) of the MOA to
strictly comply with all conditions of the DENR-EMB-issued ECC "and/or comply with pertinent local and
international commitments of the Republic of the Philippines to ensure environmental protection."105

In its August 11, 2010 letter,106 respondent PRA referred for respondent Provinces appropriate action
petitioners Resolution 001, series of 2010 and Resolution 46, series of 2010, of the Sangguniang Bayan
of Malay. Governor Marquez wrote respondent PRA107 on September 16, 2010 informing it that
respondent Province had already met with the different officials of Malay, furnishing respondent PRA
with the copies of the minutes of such meetings/presentations. Governor Marquez also assured
respondent PRA that it had complied with the consultation requirements as far as Malay was concerned.

Respondent PRA claims that in evaluating respondent Provinces project and in issuing the necessary
NTP for Phase 1 of Site 1 (2.64 hectares) of the Caticlan Jetty Port expansion and modernization,
respondent PRA gave considerable weight to all pertinent issuances, especially the ECC issued by DENR-
EMB RVI.108 Respondent PRA stresses that its earlier approval of the 40-hectare reclamation project
under its Resolution No. 4094, series of 2010, still requires a second level of compliance requirements
from the proponent. Respondent Province could not possibly begin its reclamation works since
respondent PRA had yet to issue an NTP in its favor.

Respondent PRA alleges that prior to the issuance of the NTP to respondent Province for Phase 1 of Site
1, it required the submission of the following pre-construction documents:

(a) Land-Form Plan (with technical description);

(b) Site Development Plan/Land Use Plan including,

(i) sewer and drainage systems and

(ii) waste water treatment;

(c) Engineering Studies and Engineering Design;

(d) Reclamation Methodology;

(e) Sources of Fill Materials, and,

(f) The ECC.109

Respondent PRA claims that it was only after the evaluation of the above submissions that it issued to
respondent Province the NTP, limited to the 2.64-hectare reclamation project. Respondent PRA even
emphasized in its evaluation report that should respondent Province pursue the other phases of its
project, it would still require the submission of an ECC for each succeeding phases before the start of
any reclamation works.110

Respondent PRA, being the national governments arm in regulating and coordinating all reclamation
projects in the Philippines a mandate conferred by law manifests that it is incumbent upon it, in the
exercise of its regulatory functions, to diligently evaluate, based on its technical competencies, all
reclamation projects submitted to it for approval. Once the reclamation projects requirements set forth
by law and related rules have been complied with, respondent PRA is mandated to approve the same.
Respondent PRA claims, "[w]ith all the foregoing rigorous and detailed requirements submitted and
complied with by Aklan, and the attendant careful and meticulous technical and legal evaluation by
respondent PRA, it cannot be argued that the reclamation permit it issued to Aklan is founded upon
numerous irregularities; as recklessly and baselessly imputed by BFI."111

In its Comment112 dated July 1, 2011, respondent DENR-EMB RVI asserts that its act of issuing the ECC
certifies that the project had undergone the proper EIA process by assessing, among others, the direct
and indirect impact of the project on the biophysical and human environment and ensuring that these
impacts are addressed by appropriate environmental protection and enhancement measures, pursuant
to Presidential Decree No. 1586, the Revised Procedural Manual for DENR DAO 2003-30, and the
existing rules and regulations.113

Respondent DENR-EMB RVI stresses that the declaration in 1978 of several islands, which includes
Boracay as tourist zone and marine reserve under Proclamation No. 1801, has no relevance to the
expansion project of Caticlan Jetty Port and Passenger Terminal for the very reason that the project is
not located in the Island of Boracay, being located in Barangay Caticlan, Malay, which is not a part of
mainland Panay. It admits that the site of the subject jetty port falls within the ECA under Proclamation
No. 2146 (1981), being within the category of a water body. This was why respondent Province had
faithfully secured an ECC pursuant to the Revised Procedural Manual for DENR DAO 2003-30 by
submitting the necessary documents as contained in the EPRMP on March 19, 2010, which were the
bases in granting ECC No. R6-1003-096-7100 (amended) on April 27, 2010 for the expansion of Caticlan
Jetty Port and Passenger Terminal, covering 2.64 hectares.114

Respondent DENR-EMB RVI claims that the issues raised by the LGUs of Caticlan and Malay had been
considered by the DENR-Provincial Environment and Natural Resources Office (PENRO), Aklan in the
issuance of the Order115 dated January 26, 2010, disregarding the claim of the Municipality of Malay,
Aklan of a portion of the foreshore land in Caticlan covered by the application of the Province of Aklan;
and another Order of Rejection dated February 5, 2010 of the two foreshore applications, namely FLA
No. 060412-43A and FLA No. 060412-43B, of the Province of Aklan.116

Respondent DENR-EMB RVI contends that the supporting documents attached to the EPRMP for the
issuance of an ECC were merely for the expansion and modernization of the old jetty port in Barangay
Caticlan covering 2.64 hectares, and not the 40-hectare reclamation project in Barangay Caticlan and
Boracay. The previous letter of respondent Province dated October 14, 2009 addressed to DENR-EMB
RVI Regional Executive Director, would show that the reclamation project will cover approximately 2.6
hectares.117 This application for ECC was not officially accepted due to lack of requirements or
documents.

Although petitioner insists that the project involves 40 hectares in two sites, respondent DENR-EMB RVI
looked at the documents submitted by respondent Province and saw that the subject area covered by
the ECC application and subsequently granted with ECC-R6-1003-096-7100 consists only of 2.64
hectares; hence, respondent DENR-EMB RVI could not comment on the excess area.118

Respondent DENR-EMB RVI admits that as regards the classification of the 2.64-hectare reclamation
project under "Non ECP in ECA," this does not fall within the definition of a co-located project because
the subject project is merely an expansion of the old Caticlan Jetty Port, which had a previously issued
ECC (ECC No. 0699-1012-171 on October 12, 1999). Thus, only an EPRMP, not a PEIS or PEPRMP, is
required.119

Respondent Province submitted to respondent DENR-EMB RVI the following documents contained in the
EPRMP:

a. The Observations on the Floor Bottom and its Marine Resources at the Proposed Jetty Ports at
Caticlan and Manok-manok, Boracay, Aklan, conducted in 1999 by the Bureau of Fisheries Aquatic
Resources (BFAR) Central Office, particularly in Caticlan site, and

b. The Study conducted by Dr. Ricarte S. Javelosa, Ph. D, Mines and Geosciences Bureau (MGB), Central
Office and Engr. Roger Esto, Provincial Planning and Development Office (PPDO), Aklan in 2009 entitled
"Preliminary Geo-hazard Assessment for the Enhancement of the Existing Caticlan Jetty Port Terminal
through Beach Zone Restoration and Protective Marina Development in Malay, Aklan."

Respondent DENR-EMB RVI claims that the above two scientific studies were enough for it to arrive at a
best professional judgment to issue an amended ECC for the Aklan Marina Project covering 2.64
hectares.120Furthermore, to confirm that the 2.64-hectare reclamation has no significant negative
impact with the surrounding environment particularly in Boracay, a more recent study was conducted,
and respondent DENR-EMB RVI alleges that "[i]t is very important to highlight that the input data in the
[MERF- UPMSI] study utilized the [40-hectare] reclamation and [200-meter] width seaward using the
tidal and wave modelling."121 The study showed that the reclamation of 2.64 hectares had no effect to
the hydrodynamics of the strait between Barangay Caticlan and Boracay.

Respondent DENR-EMB RVI affirms that no permits and/or clearances from National Government
Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum Circular No. 2007-08,
entitled "Simplifying the Requirements of ECC or CNC Applications;" that the EPRMP was evaluated and
processed based on the Revised Procedural Manual for DENR DAO 2003-30 which resulted to the
issuance of ECC-R6-1003-096-7100; and that the ECC is not a permit per se but a planning tool for LGUs
to consider in its decision whether or not to issue a local permit.122

Respondent DENR-EMB RVI concludes that in filing this case, petitioner had bypassed and deprived the
DENR Secretary of the opportunity to review and/or reverse the decision of his subordinate office, EMB
RVI pursuant to the Revised Procedural Manual for DENR DAO 2003-30. There is no "extreme urgency
that necessitates the granting of Mandamus or issuance of TEPO that put to balance between the life
and death of the petitioner or present grave or irreparable damage to environment."123

After receiving the above Comments from all the respondents, the Court set the case for oral arguments
on September 13, 2011.

Meanwhile, on September 8, 2011, respondent Province filed a Manifestation and Motion124 praying for
the dismissal of the petition, as the province was no longer pursuing the implementation of the
succeeding phases of the project due to its inability to comply with Article IV B.2(3) of the MOA; hence,
the issues and fears expressed by petitioner had become moot. Respondent Province alleges that the
petition is "premised on a serious misappreciation of the real extent of the contested reclamation
project" as certainly the ECC covered only a total of 2,691 square meters located in Barangay Caticlan,
Malay, Aklan; and although the MOA spoke of 40 hectares, respondent Provinces submission of
documents to respondent PRA pertaining to said area was but the first of a two-step process of
approval. Respondent Province claims that its failure to comply with the documentary requirements of
respondent PRA within the period provided, or 120 working days from the effectivity of the MOA,
indicated its waiver to pursue the remainder of the project.125 Respondent Province further manifested:

Confirming this in a letter dated 12 August 2011,126 Governor Marquez informed respondent PRA that
the Province of Aklan is no longer "pursuing the implementation of the succeeding phases of the project
with a total area of 37.4 hectares for our inability to comply with Article IV B.2 (3) of the MOA; hence,
the existing MOA will cover only the project area of 2.64 hectares."

In his reply-letter dated August 22, 2011,127 [respondent] PRA General Manager informed Governor
Marquez that the [respondent] PRA Board of Directors has given [respondent] PRA the authority to
confirm the position of the Province of Aklan that the "Aklan Beach Zone Restoration and Protection
Marine Development Project will now be confined to the reclamation and development of the 2.64
hectares, more or less.

It is undisputed from the start that the coverage of the Project is in fact limited to 2.64 hectares, as
evidenced by the NTP issued by respondent PRA. The recent exchange of correspondence between
respondents Province of Aklan and [respondent] PRA further confirms the intent of the parties all along.
Hence, the Project subject of the petition, without doubt, covers only 2.64 and not 40 hectares as
feared. This completely changes the extent of the Project and, consequently, moots the issues and fears
expressed by the petitioner.128 (Emphasis supplied.)

Based on the above contentions, respondent Province prays that the petition be dismissed as no further
justiciable controversy exists since the feared adverse effect to Boracay Islands ecology had become
academic all together.129

The Court heard the parties oral arguments on September 13, 2011 and gave the latter twenty (20) days
thereafter to file their respective memoranda.
Respondent Province filed another Manifestation and Motion,130 which the Court received on April 2,
2012 stating that:

1. it had submitted the required documents and studies to respondent DENR-EMB RVI before an ECC
was issued in its favor;

2. it had substantially complied with the requirements provided under PRA Administrative Order 2007-2,
which compliance caused respondent PRAs Board to approve the reclamation project; and

3. it had conducted a series of "consultative [presentations]" relative to the reclamation project before
the LGU of Malay Municipality, the Barangay Officials of Caticlan, and stakeholders of Boracay Island.

Respondent Province further manifested that the Barangay Council of Caticlan, Malay, Aklan enacted on
February 13, 2012 Resolution No. 003, series of 2012, entitled "Resolution Favorably Endorsing the 2.6
Hectares Reclamation/MARINA Project of the Aklan Provincial Government at Caticlan Coastline"131 and
that the Sangguniang Bayan of the Municipality of Malay, Aklan enacted Resolution No. 020, series of
2012, entitled "Resolution Endorsing the 2.6 Hectares Reclamation Project of the Provincial Government
of Aklan Located at Barangay Caticlan, Malay, Aklan."132

Respondent Province claims that its compliance with the requirements of respondents DENR-EMB RVI
and PRA that led to the approval of the reclamation project by the said government agencies, as well as
the recent enactments of the Barangay Council of Caticlan and the Sangguniang Bayan of the
Municipality of Malay favorably endorsing the said project, had "categorically addressed all the issues
raised by the Petitioner in its Petition dated June 1, 2011." Respondent Province prays as follows:

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that after due
proceedings, the following be rendered:

1. The Temporary Environmental Protection Order (TEPO) it issued on June 7, 2011 be lifted/dissolved.

2. The instant petition be dismissed for being moot and academic.

3. Respondent Province of Aklan prays for such other reliefs that are just and equitable under the
premises. (Emphases in the original.)

ISSUES

The Court will now resolve the following issues:

I. Whether or not the petition should be dismissed for having been rendered moot and academic

II. Whether or not the petition is premature because petitioner failed to exhaust administrative
remedies before filing this case

III. Whether or not respondent Province failed to perform a full EIA as required by laws and regulations
based on the scope and classification of the project
IV. Whether or not respondent Province complied with all the requirements under the pertinent laws
and regulations

V. Whether or not there was proper, timely, and sufficient public consultation for the project

DISCUSSION

On the issue of whether or not the Petition should be dismissed for having been rendered moot and
academic

Respondent Province claims in its Manifestation and Motion filed on April 2, 2012 that with the alleged
favorable endorsement of the reclamation project by the Sangguniang Barangay of Caticlan and the
Sangguniang Bayan of the Municipality of Malay, all the issues raised by petitioner had already been
addressed, and this petition should be dismissed for being moot and academic.

On the contrary, a close reading of the two LGUs respective resolutions would reveal that they are not
sufficient to render the petition moot and academic, as there are explicit conditions imposed that must
be complied with by respondent Province. In Resolution No. 003, series of 2012, of the Sangguniang
Barangay of Caticlan it is stated that "any vertical structures to be constructed shall be subject for
barangay endorsement."133 Clearly, what the barangay endorsed was the reclamation only, and not the
entire project that includes the construction of a commercial building and wellness center, and other
tourism-related facilities. Petitioners objections, as may be recalled, pertain not only to the reclamation
per se, but also to the building to be constructed and the entire projects perceived ill effects to the
surrounding environment.

Resolution No. 020, series of 2012, of the Sangguniang Bayan of Malay134 is even more specific. It reads
in part:

WHEREAS, noble it seems the reclamation project to the effect that it will generate scores of benefits for
the Local Government of Malay in terms of income and employment for its constituents, but the fact
cannot be denied that the project will take its toll on the environment especially on the nearby fragile
island of Boracay and the fact also remains that the project will eventually displace the local
transportation operators/cooperatives;

WHEREAS, considering the sensitivity of the project, this Honorable Body through the Committee where
this matter was referred conducted several consultations/committee hearings with concerned
departments and the private sector specifically Boracay Foundation, Inc. and they are one in its belief
that this Local Government Unit has never been against development so long as compliance with the
law and proper procedures have been observed and that paramount consideration have been given to
the environment lest we disturb the balance of nature to the end that progress will be brought to
naught;

WHEREAS, time and again, to ensure a healthy intergovernmental relations, this August Body requires
no less than transparency and faithful commitment from the Provincial Government of Aklan in the
process of going through these improvements in the Municipality because it once fell prey to infidelities
in matters of governance;

WHEREAS, as a condition for the grant of this endorsement and to address all issues and concerns, this
Honorable Council necessitates a sincere commitment from the Provincial Government of Aklan to the
end that:

1. To allocate an office space to LGU-Malay within the building in the reclaimed area;

2. To convene the Cagban and Caticlan Jetty Port Management Board before the resumption of the
reclamation project;

3. That the reclamation project shall be limited only to 2.6 hectares in Barangay Caticlan and not
beyond;

4. That the local transportation operators/cooperatives will not be displaced; and

5. The Provincial Government of Aklan conduct a simultaneous comprehensive study on the


environmental impact of the reclamation project especially during Habagat and Amihan seasons and put
in place as early as possible mitigating measures on the effect of the project to the environment.

WHEREAS, having presented these stipulations, failure to comply herewith will leave this August Body
no choice but to revoke this endorsement, hence faithful compliance of the commitment of the
Provincial Government is highly appealed for[.]135 (Emphases added.)

The Sangguniang Bayan of Malay obviously imposed explicit conditions for respondent Province to
comply with on pain of revocation of its endorsement of the project, including the need to conduct a
comprehensive study on the environmental impact of the reclamation project, which is the heart of the
petition before us. Therefore, the contents of the two resolutions submitted by respondent Province do
not support its conclusion that the subsequent favorable endorsement of the LGUs had already
addressed all the issues raised and rendered the instant petition moot and academic.

On the issue of failure to exhaust administrative remedies

Respondents, in essence, argue that the present petition should be dismissed for petitioners failure to
exhaust administrative remedies and even to observe the hierarchy of courts. Furthermore, as the
petition questions the issuance of the ECC and the NTP, this involves factual and technical verification,
which are more properly within the expertise of the concerned government agencies.

Respondents anchor their argument on Section 6, Article II of DENR DAO 2003-30, which provides:

Section 6. Appeal

Any party aggrieved by the final decision on the ECC / CNC applications may, within 15 days from receipt
of such decision, file an appeal on the following grounds:

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


b. Serious errors in the review findings.

The DENR may adopt alternative conflict/dispute resolution procedures as a means to settle grievances
between proponents and aggrieved parties to avert unnecessary legal action. Frivolous appeals shall not
be countenanced.

The proponent or any stakeholder may file an appeal to the following:

Deciding Authority Where to file the appeal

EMB Regional Office Director Office of the EMB Director

EMB Central Office Director Office of the DENR Secretary

DENR Secretary Office of the President

(Emphases supplied.)

Respondents argue that since there is an administrative appeal provided for, then petitioner is duty
bound to observe the same and may not be granted recourse to the regular courts for its failure to do
so.

We do not agree with respondents appreciation of the applicability of the rule on exhaustion of
administrative remedies in this case. We are reminded of our ruling in Pagara v. Court of
Appeals,136 which summarized our earlier decisions on the procedural requirement of exhaustion of
administrative remedies, to wit:

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

Said principle may also be disregarded when it does not provide a plain, speedy and adequate remedy,
(Cipriano vs. Marcelino, 43 SCRA 291), when there is no due process observed (Villanos vs. Subido, 45
SCRA 299), or where the protestant has no other recourse (Sta. Maria vs. Lopez, 31 SCRA
637).137 (Emphases supplied.)

As petitioner correctly pointed out, the appeal provided for under Section 6 of DENR DAO 2003-30 is
only applicable, based on the first sentence thereof, if the person or entity charged with the duty to
exhaust the administrative remedy of appeal to the appropriate government agency has been a party or
has been made a party in the proceedings wherein the decision to be appealed was rendered. It has
been established by the facts that petitioner was never made a party to the proceedings before
respondent DENR-EMB RVI. Petitioner was only informed that the project had already been approved
after the ECC was already granted.138 Not being a party to the said proceedings, it does not appear that
petitioner was officially furnished a copy of the decision, from which the 15-day period to appeal should
be reckoned, and which would warrant the application of Section 6, Article II of DENR DAO 2003-30.

Although petitioner was not a party to the proceedings where the decision to issue an ECC was
rendered, it stands to be aggrieved by the decision,139 because it claims that the reclamation of land on
the Caticlan side would unavoidably adversely affect the Boracay side, where petitioners members own
establishments engaged in the tourism trade. As noted earlier, petitioner contends that the declared
objective of the reclamation project is to exploit Boracays tourism trade because the project is intended
to enhance support services thereto; however, this objective would not be achieved since the white-
sand beaches for which Boracay is famous might be negatively affected by the project. Petitioners
conclusion is that respondent Province, aided and abetted by respondents PRA and DENR-EMB RVI,
ignored the spirit and letter of our environmental laws, and should thus be compelled to perform their
duties under said laws.

The new Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, provides a relief for petitioner
under the writ of continuing mandamus, which is a special civil action that may be availed of "to compel
the performance of an act specifically enjoined by law"140 and which provides for the issuance of a TEPO
"as an auxiliary remedy prior to the issuance of the writ itself."141 The Rationale of the said Rules
explains the writ in this wise:

Environmental law highlights the shift in the focal-point from the initiation of regulation by Congress to
the implementation of regulatory programs by the appropriate government agencies.

Thus, a government agencys inaction, if any, has serious implications on the future of environmental
law enforcement. Private individuals, to the extent that they seek to change the scope of the regulatory
process, will have to rely on such agencies to take the initial incentives, which may require a judicial
component. Accordingly, questions regarding the propriety of an agencys action or inaction will need to
be analyzed.

This point is emphasized in the availability of the remedy of the writ of mandamus, which allows for the
enforcement of the conduct of the tasks to which the writ pertains: the performance of a legal
duty.142 (Emphases added.)

The writ of continuing mandamus "permits the court to retain jurisdiction after judgment in order to
ensure the successful implementation of the reliefs mandated under the courts decision" and, in order
to do this, "the court may compel the submission of compliance reports from the respondent
government agencies as well as avail of other means to monitor compliance with its decision."143

According to petitioner, respondent Province acted pursuant to a MOA with respondent PRA that was
conditioned upon, among others, a properly-secured ECC from respondent DENR-EMB RVI. For this
reason, petitioner seeks to compel respondent Province to comply with certain environmental laws,
rules, and procedures that it claims were either circumvented or ignored. Hence, we find that the
petition was appropriately filed with this Court under Rule 8, Section 1, A.M. No. 09-6-8-SC, which reads:

SECTION 1. Petition for continuing mandamus.When any agency or instrumentality of the government
or officer thereof unlawfully neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust or station in connection with the enforcement or violation of an
environmental law rule or regulation or a right therein, or unlawfully excludes another from the use or
enjoyment of such right and there is no other plain, speedy and adequate remedy in the ordinary course
of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts
with certainty, attaching thereto supporting evidence, specifying that the petition concerns an
environmental law, rule or regulation, and praying that judgment be rendered commanding the
respondent to do an act or series of acts until the judgment is fully satisfied, and to pay damages
sustained by the petitioner by reason of the malicious neglect to perform the duties of the respondent,
under the law, rules or regulations. The petition shall also contain a sworn certification of non-forum
shopping.

SECTION 2. Where to file the petition.The petition shall be filed with the Regional Trial Court exercising
jurisdiction over the territory where the actionable neglect or omission occurred or with the Court of
Appeals or the Supreme Court.

Petitioner had three options where to file this case under the rule: the Regional Trial Court exercising
jurisdiction over the territory where the actionable neglect or omission occurred, the Court of Appeals,
or this Court.

Petitioner had no other plain, speedy, or adequate remedy in the ordinary course of law to determine
the questions of unique national and local importance raised here that pertain to laws and rules for
environmental protection, thus it was justified in coming to this Court.

Having resolved the procedural issue, we now move to the substantive issues.

On the issues of whether, based on the scope and classification of the project, a full EIA is required by
laws and regulations, and whether respondent Province complied with all the requirements under the
pertinent laws and regulations

Petitioners arguments on this issue hinges upon its claim that the reclamation project is misclassified as
a single project when in fact it is co-located. Petitioner also questions the classification made by
respondent Province that the reclamation project is merely an expansion of the existing jetty port, when
the project descriptions embodied in the different documents filed by respondent Province describe
commercial establishments to be built, among others, to raise revenues for the LGU; thus, it should have
been classified as a new project. Petitioner likewise cries foul to the manner by which respondent
Province allegedly circumvented the documentary requirements of the DENR-EMB RVI by the act of
connecting the reclamation project with its previous project in 1999 and claiming that the new project is
a mere expansion of the previous one.
As previously discussed, respondent Province filed a Manifestation and Motion stating that the ECC
issued by respondent DENR-EMB RVI covered an area of 2,691 square meters in Caticlan, and its
application for reclamation of 40 hectares with respondent PRA was conditioned on its submission of
specific documents within 120 days. Respondent Province claims that its failure to comply with said
condition indicated its waiver to pursue the succeeding phases of the reclamation project and that the
subject matter of this case had thus been limited to 2.64 hectares. Respondent PRA, for its part,
declared through its General Manager that the "Aklan Beach Zone Restoration and Protection Marine
Development Project will now be confined to the reclamation and development of the 2.64 hectares,
more or less."144

The Court notes such manifestation of respondent Province. Assuming, however, that the area involved
in the subject reclamation project has been limited to 2.64 hectares, this case has not become moot and
academic, as alleged by respondents, because the Court still has to check whether respondents had
complied with all applicable environmental laws, rules, and regulations pertaining to the actual
reclamation project.

We recognize at this point that the DENR is the government agency vested with delegated powers to
review and evaluate all EIA reports, and to grant or deny ECCs to project proponents.145 It is the DENR
that has the duty to implement the EIS system. It appears, however, that respondent DENR-EMB RVIs
evaluation of this reclamation project was problematic, based on the valid questions raised by
petitioner.

Being the administrator of the EIS System, respondent DENR-EMB RVIs submissions bear great weight in
this case. However, the following are the issues that put in question the wisdom of respondent DENR-
EMB RVI in issuing the ECC:

1. Its approval of respondent Provinces classification of the project as a mere expansion of the existing
jetty port in Caticlan, instead of classifying it as a new project;

2. Its classification of the reclamation project as a single instead of a co-located project;

3. The lack of prior public consultations and approval of local government agencies; and

4. The lack of comprehensive studies regarding the impact of the reclamation project to the
environment.

The above issues as raised put in question the sufficiency of the evaluation of the project by respondent
DENR-EMB RVI.

Nature of the project

The first question must be answered by respondent DENR-EMB RVI as the agency with the expertise and
authority to state whether this is a new project, subject to the more rigorous environmental impact
study requested by petitioner, or it is a mere expansion of the existing jetty port facility.
The second issue refers to the classification of the project by respondent Province, approved by
respondent DENR-EMB RVI, as single instead of co-located. Under the Revised Procedural Manual, the
"Summary List of Additional Non-Environmentally-Critical Project (NECP) Types in ECAs Classified under
Group II" (Table I-2) lists "buildings, storage facilities and other structures" as a separate item from
"transport terminal facilities." This creates the question of whether this project should be considered as
consisting of more than one type of activity, and should more properly be classified as "co-located,"
under the following definition from the same Manual, which reads:

f) Group IV (Co-located Projects in either ECA or NECA): A co-located project is a group of single projects,
under one or more proponents/locators, which are located in a contiguous area and managed by one
administrator, who is also the ECC applicant. The co-located project may be an economic zone or
industrial park, or a mix of projects within a catchment, watershed or river basin, or any other
geographical, political or economic unit of area. Since the location or threshold of specific projects
within the contiguous area will yet be derived from the EIA process based on the carrying capacity of the
project environment, the nature of the project is called "programmatic." (Emphasis added.)

Respondent DENR-EMB RVI should conduct a thorough and detailed evaluation of the project to address
the question of whether this could be deemed as a group of single projects (transport terminal facility,
building, etc.) in a contiguous area managed by respondent Province, or as a single project.

The third item in the above enumeration will be discussed as a separate issue.

The answer to the fourth question depends on the final classification of the project under items 1 and 3
above because the type of EIA study required under the Revised Procedural Manual depends on such
classification.

The very definition of an EIA points to what was most likely neglected by respondent Province as project
proponent, and what was in turn overlooked by respondent DENR-EMB RVI, for it is defined as follows:

An *EIA+ is a process that involves predicting and evaluating the likely impacts of a project (including
cumulative impacts) on the environment during construction, commissioning, operation and
abandonment. It also includes designing appropriate preventive, mitigating and enhancement measures
addressing these consequences to protect the environment and the communitys welfare.146 (Emphases
supplied.)

Thus, the EIA process must have been able to predict the likely impact of the reclamation project to the
environment and to prevent any harm that may otherwise be caused.

The project now before us involves reclamation of land that is more than five times the size of the
original reclaimed land. Furthermore, the area prior to construction merely contained a jetty port,
whereas the proposed expansion, as described in the EPRMP submitted by respondent Province to
respondent DENR-EMB RVI involves so much more, and we quote:
The expansion project will be constructed at the north side of the existing jetty port and terminal that
will have a total area of 2.64 hectares, more or less, after reclamation. The Phase 1 of the project
construction costing around P260 million includes the following:

1. Reclamation - 3,000 sq m (expansion of jetty port)

2. Reclamation - 13,500 sq m (buildable area)

3. Terminal annex building - 250 sq m

4. 2-storey commercial building 2,500 sq m (1,750 sq m of leasable space)

5. Health and wellness center

6. Access road - 12 m (wide)

7. Parking, perimeter fences, lighting and water treatment sewerage system

8. Rehabilitation of existing jetty port and terminal

xxxx

The succeeding phases of the project will consist of [further] reclamation, completion of the commercial
center building, bay walk commercial strip, staff building, ferry terminal, a cable car system and wharf
marina. This will entail an additional estimated cost of P785 million bringing the total investment
requirement to about P1.0 billion.147 (Emphases added.)

As may be gleaned from the breakdown of the 2.64 hectares as described by respondent Province
above, a significant portion of the reclaimed area would be devoted to the construction of a commercial
building, and the area to be utilized for the expansion of the jetty port consists of a mere 3,000 square
meters (sq. m). To be true to its definition, the EIA report submitted by respondent Province should at
the very least predict the impact that the construction of the new buildings on the reclaimed land would
have on the surrounding environment. These new constructions and their environmental effects were
not covered by the old studies that respondent Province previously submitted for the construction of
the original jetty port in 1999, and which it re-submitted in its application for ECC in this alleged
expansion, instead of conducting updated and more comprehensive studies.

Any impact on the Boracay side cannot be totally ignored, as Caticlan and Boracay are separated only by
a narrow strait. This becomes more imperative because of the significant contributions of Boracays
white-sand beach to the countrys tourism trade, which requires respondent Province to proceed with
utmost caution in implementing projects within its vicinity.

We had occasion to emphasize the duty of local government units to ensure the quality of the
environment under Presidential Decree No. 1586 in Republic of the Philippines v. The City of
Davao,148 wherein we held:
Section 15 of Republic Act 7160, otherwise known as the Local Government Code, defines a local
government unit as a body politic and corporate endowed with powers to be exercised by it in
conformity with law. As such, it performs dual functions, governmental and proprietary. Governmental
functions are those that concern the health, safety and the advancement of the public good or welfare
as affecting the public generally. Proprietary functions are those that seek to obtain special corporate
benefits or earn pecuniary profit and intended for private advantage and benefit. When exercising
governmental powers and performing governmental duties, an LGU is an agency of the national
government. When engaged in corporate activities, it acts as an agent of the community in the
administration of local affairs.

Found in Section 16 of the Local Government Code is the duty of the LGUs to promote the peoples right
to a balanced ecology. Pursuant to this, an LGU, like the City of Davao, can not claim exemption from the
coverage of PD 1586. As a body politic endowed with governmental functions, an LGU has the duty to
ensure the quality of the environment, which is the very same objective of PD 1586.

xxxx

Section 4 of PD 1586 clearly states that "no person, partnership or corporation shall undertake or
operate any such declared environmentally critical project or area without first securing an
Environmental Compliance Certificate issued by the President or his duly authorized representative."
The Civil Code defines a person as either natural or juridical. The state and its political subdivisions, i.e.,
the local government units are juridical persons. Undoubtedly therefore, local government units are not
excluded from the coverage of PD 1586.

Lastly, very clear in Section 1 of PD 1586 that said law intends to implement the policy of the state to
achieve a balance between socio-economic development and environmental protection, which are the
twin goals of sustainable development. The above-quoted first paragraph of the Whereas clause
stresses that this can only be possible if we adopt a comprehensive and integrated environmental
protection program where all the sectors of the community are involved, i.e., the government and the
private sectors. The local government units, as part of the machinery of the government, cannot
therefore be deemed as outside the scope of the EIS system.149(Emphases supplied.)

The Court chooses to remand these matters to respondent DENR-EMB RVI for it to make a proper study,
and if it should find necessary, to require respondent Province to address these environmental issues
raised by petitioner and submit the correct EIA report as required by the projects specifications. The
Court requires respondent DENR-EMB RVI to complete its study and submit a report within a non-
extendible period of three months. Respondent DENR-EMB RVI should establish to the Court in said
report why the ECC it issued for the subject project should not be canceled.

Lack of prior public consultation

The Local Government Code establishes the duties of national government agencies in the maintenance
of ecological balance, and requires them to secure prior public consultation and approval of local
government units for the projects described therein.
In the case before us, the national agency involved is respondent PRA. Even if the project proponent is
the local government of Aklan, it is respondent PRA which authorized the reclamation, being the
exclusive agency of the government to undertake reclamation nationwide. Hence, it was necessary for
respondent Province to go through respondent PRA and to execute a MOA, wherein respondent PRAs
authority to reclaim was delegated to respondent Province. Respondent DENR-EMB RVI, regional office
of the DENR, is also a national government institution which is tasked with the issuance of the ECC that
is a prerequisite to projects covered by environmental laws such as the one at bar.

This project can be classified as a national project that affects the environmental and ecological balance
of local communities, and is covered by the requirements found in the Local Government Code
provisions that are quoted below:

Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall be
the duty of every national agency or government-owned or controlled corporation authorizing or
involved in the planning and implementation of any project or program that may cause pollution,
climatic change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover, and
extinction of animal or plant species, to consult with the local government units, nongovernmental
organizations, and other sectors concerned and explain the goals and objectives of the project or
program, its impact upon the people and the community in terms of environmental or ecological
balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof.

Section 27. Prior Consultations Required. - No project or program shall be implemented by government
authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and
prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such
projects are to be implemented shall not be evicted unless appropriate relocation sites have been
provided, in accordance with the provisions of the Constitution.

In Lina, Jr. v. Pao,150 we held that Section 27 of the Local Government Code applies only to "national
programs and/or projects which are to be implemented in a particular local community"151 and that it
should be read in conjunction with Section 26. We held further in this manner:

Thus, the projects and programs mentioned in Section 27 should be interpreted to mean projects and
programs whose effects are among those enumerated in Section 26 and 27, to wit, those that: (1) may
cause pollution; (2) may bring about climatic change; (3) may cause the depletion of non-renewable
resources; (4) may result in loss of crop land, range-land, or forest cover; (5) may eradicate certain
animal or plant species from the face of the planet; and (6) other projects or programs that may call for
the eviction of a particular group of people residing in the locality where these will be implemented.
Obviously, none of these effects will be produced by the introduction of lotto in the province of
Laguna.152 (Emphasis added.)

During the oral arguments held on September 13, 2011, it was established that this project as described
above falls under Section 26 because the commercial establishments to be built on phase 1, as
described in the EPRMP quoted above, could cause pollution as it could generate garbage, sewage, and
possible toxic fuel discharge.153
Our ruling in Province of Rizal v. Executive Secretary154 is instructive:

We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v. Lanzanas, where we held that
there was no statutory requirement for the sangguniang bayan of Puerto Galera to approve the
construction of a mooring facility, as Sections 26 and 27 are inapplicable to projects which are not
environmentally critical.

Moreover, Section 447, which enumerates the powers, duties and functions of the municipality, grants
thesangguniang bayan the power to, among other things, "enact ordinances, approve resolutions and
appropriate funds for the general welfare of the municipality and its inhabitants pursuant to Section 16
of th(e) Code." These include:

(1) Approving ordinances and passing resolutions to protect the environment and impose appropriate
penalties for acts which endanger the environment, such as dynamite fishing and other forms of
destructive fishing, illegal logging and smuggling of logs, smuggling of natural resources products and of
endangered species of flora and fauna, slash and burn farming, and such other activities which result in
pollution, acceleration of eutrophication of rivers and lakes, or of ecological imbalance; [Section 447
(1)(vi)]

(2) Prescribing reasonable limits and restraints on the use of property within the jurisdiction of the
municipality, adopting a comprehensive land use plan for the municipality, reclassifying land within the
jurisdiction of the city, subject to the pertinent provisions of this Code, enacting integrated zoning
ordinances in consonance with the approved comprehensive land use plan, subject to existing laws,
rules and regulations; establishing fire limits or zones, particularly in populous centers; and regulating
the construction, repair or modification of buildings within said fire limits or zones in accordance with
the provisions of this Code; [Section 447 (2)(vi-ix)]

(3) Approving ordinances which shall ensure the efficient and effective delivery of the basic services and
facilities as provided for under Section 17 of this Code, and in addition to said services and facilities,
providing for the establishment, maintenance, protection, and conservation of communal forests and
watersheds, tree parks, greenbelts, mangroves, and other similar forest development projects and,
subject to existing laws, establishing and providing for the maintenance, repair and operation of an
efficient waterworks system to supply water for the inhabitants and purifying the source of the water
supply; regulating the construction, maintenance, repair and use of hydrants, pumps, cisterns and
reservoirs; protecting the purity and quantity of the water supply of the municipality and, for this
purpose, extending the coverage of appropriate ordinances over all territory within the drainage area of
said water supply and within one hundred (100) meters of the reservoir, conduit, canal, aqueduct,
pumping station, or watershed used in connection with the water service; and regulating the
consumption, use or wastage of water." [Section 447 (5)(i) & (vii)]

Under the Local Government Code, therefore, two requisites must be met before a national project that
affects the environmental and ecological balance of local communities can be implemented:
prior consultation with the affected local communities, and prior approval of the project by the
appropriate sanggunian. Absent either of these mandatory requirements, the projects implementation
is illegal.155 (Emphasis added.)

Based on the above, therefore, prior consultations and prior approval are required by law to have been
conducted and secured by the respondent Province. Accordingly, the information dissemination
conducted months after the ECC had already been issued was insufficient to comply with this
requirement under the Local Government Code. Had they been conducted properly, the prior public
consultation should have considered the ecological or environmental concerns of the stakeholders and
studied measures alternative to the project, to avoid or minimize adverse environmental impact or
damage. In fact, respondent Province once tried to obtain the favorable endorsement of the
Sangguniang Bayan of Malay, but this was denied by the latter.

Moreover, DENR DAO 2003-30 provides:

5.3 Public Hearing / Consultation Requirements

For projects under Category A-1, the conduct of public hearing as part of the EIS review is mandatory
unless otherwise determined by EMB. For all other undertakings, a public hearing is not mandatory
unless specifically required by EMB.

Proponents should initiate public consultations early in order to ensure that environmentally relevant
concerns of stakeholders are taken into consideration in the EIA study and the formulation of the
management plan. All public consultations and public hearings conducted during the EIA process are to
be documented. The public hearing/consultation Process report shall be validated by the EMB/EMB RD
and shall constitute part of the records of the EIA process. (Emphasis supplied.)

In essence, the above-quoted rule shows that in cases requiring public consultations, the same should
be initiated early so that concerns of stakeholders could be taken into consideration in the EIA study. In
this case, respondent Province had already filed its ECC application before it met with the local
government units of Malay and Caticlan.

The claim of respondent DENR-EMB RVI is that no permits and/or clearances from National Government
Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum Circular No. 2007-08.
However, we still find that the LGC requirements of consultation and approval apply in this case. This is
because a Memorandum Circular cannot prevail over the Local Government Code, which is a statute and
which enjoys greater weight under our hierarchy of laws.

Subsequent to the information campaign of respondent Province, the Municipality of Malay and the Liga
ng mga Barangay-Malay Chapter still opposed the project. Thus, when respondent Province commenced
the implementation project, it violated Section 27 of the LGC, which clearly enunciates that "[no] project
or program shall be implemented by government authorities unless the consultations mentioned in
Sections 2(c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is
obtained."
The lack of prior public consultation and approval is not corrected by the subsequent endorsement of
the reclamation project by the Sangguniang Barangay of Caticlan on February 13, 2012, and the
Sangguniang Bayan of the Municipality of Malay on February 28, 2012, which were both undoubtedly
achieved at the urging and insistence of respondent Province. As we have established above, the
respective resolutions issued by the LGUs concerned did not render this petition moot and academic.

It is clear that both petitioner and respondent Province are interested in the promotion of tourism in
Boracay and the protection of the environment, lest they kill the proverbial hen that lays the golden egg.
At the beginning of this decision, we mentioned that there are common goals of national significance
that are very apparent from both the petitioners and the respondents respective pleadings and
memoranda.

The parties are evidently in accord in seeking to uphold the mandate found in Article II, Declaration of
Principles and State Policies, of the 1987 Constitution, which we quote below:

SECTION 16. The State shall protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature.

xxxx

SECTION 20. The State recognizes the indispensable role of the private sector, encourages private
enterprise, and provides incentives to needed investments.

The protection of the environment in accordance with the aforesaid constitutional mandate is the aim,
among others, of Presidential Decree No. 1586, "Establishing an Environmental Impact Statement
System, Including Other Environmental Management Related Measures and For Other Purposes," which
declared in its first Section that it is "the policy of the State to attain and maintain a rational and orderly
balance between socio-economic growth and environmental protection."

The parties undoubtedly too agree as to the importance of promoting tourism, pursuant to Section 2 of
Republic Act No. 9593, or "The Tourism Act of 2009," which reads:

SECTION 2. Declaration of Policy. The State declares tourism as an indispensable element of the
national economy and an industry of national interest and importance, which must be harnessed as an
engine of socioeconomic growth and cultural affirmation to generate investment, foreign exchange and
employment, and to continue to mold an enhanced sense of national pride for all Filipinos. (Emphasis
ours.)

The primordial role of local government units under the Constitution and the Local Government Code of
1991 in the subject matter of this case is also unquestionable. The Local Government Code of 1991
(Republic Act No. 7160) pertinently provides:

Section 2. Declaration of Policy. - (a) It is hereby declared the policy of the State that the territorial and
political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to
attain their fullest development as self-reliant communities and make them more effective partners in
the attainment of national goals. Toward this end, the State shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization whereby local
government units shall be given more powers, authority, responsibilities, and resources. The process of
decentralization shall proceed from the national government to the local government
units.156 (Emphases ours.)

As shown by the above provisions of our laws and rules, the speedy and smooth resolution of these
issues would benefit all the parties. Thus, respondent Provinces cooperation with respondent DENR-
EMB RVI in the Court-mandated review of the proper classification and environmental impact of the
reclamation project is of utmost importance.

WHEREFORE, premises considered, the petition is hereby PARTIALLY GRANTED.1wphi1 The TEPO
issued by this Court is hereby converted into a writ of continuing mandamus specifically as follows:

1. Respondent Department of Environment and Natural Resources-Environmental Management Bureau


Regional Office VI shall revisit and review the following matters:

a. its classification of the reclamation project as a single instead of a co-located project;

b. its approval of respondent Provinces classification of the project as a mere expansion of the existing
jetty port in Caticlan, instead of classifying it as a new project; and

c. the impact of the reclamation project to the environment based on new, updated, and
comprehensive studies, which should forthwith be ordered by respondent DENR-EMB RVI.

2. Respondent Province of Aklan shall perform the following:

a. fully cooperate with respondent DENR-EMB RVI in its review of the reclamation project proposal and
submit to the latter the appropriate report and study; and

b. secure approvals from local government units and hold proper consultations with non-governmental
organizations and other stakeholders and sectors concerned as required by Section 27 in relation to
Section 26 of the Local Government Code.

3. Respondent Philippine Reclamation Authority shall closely monitor the submission by respondent
Province of the requirements to be issued by respondent DENR-EMB RVI in connection to the
environmental concerns raised by petitioner, and shall coordinate with respondent Province in
modifying the MOA, if necessary, based on the findings of respondent DENR-EMB RVI.

4. The petitioner Boracay Foundation, Inc. and the respondents The Province of Aklan, represented by
Governor Carlito S. Marquez, The Philippine Reclamation Authority, and The DENR-EMB (Region VI) are
mandated to submit their respective reports to this Court regarding their compliance with the
requirements set forth in this Decision no later than three (3) months from the date of promulgation of
this Decision.
5. In the meantime, the respondents, their concerned contractor/s, and/or their agents, representatives
or persons acting in their place or stead, shall immediately cease and desist from continuing the
implementation of the project covered by ECC-R6-1003-096-7100 until further orders from this Court.
For this purpose, the respondents shall report within five (5) days to this Court the status of the project
as of their receipt of this Decision, copy furnished the petitioner.

This Decision is immediately executory.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO


Associate Justice

[G.R. No. 194239 : May 31, 2011]

WEST TOWER CONDOMINIUM CORPORATION, ON BEHALF OF THE RESIDENTS OF WEST TOWER


CONDO., AND IN REPRESENTATION OF BARANGAY BANGKAL, AND OTHERS, INCLUDING MINORS AND
GENERATIONS YET UNBORN V. FIRST PHILIPPINE INDUSTRIAL CORPORATION, FIRST GEN
CORPORATION AND THEIR RESPECTIVE BOARD OF DIRECTORS AND OFFICERS, JOHN DOES AND
RICHARD ROES

Sirs/Mesdames:

Please take notice that the Court en banc issued a Resolution dated May 31, 2011 which reads as
follows:

"G.R. No. 194239 (West Tower Condominium Corporation, on behalf of the Residents of West Tower
Condo., and in representation of Barangay Bangkal, and others, including minors and generations yet
unborn v. First Philippine Industrial Corporation, First Gen Corporation and their respective Board of
Directors and Officers, John Does and Richard Roes)

RESOLUTION

On November 15, 2010, petitioners filed their Petition for Issuance of a Writ of Kalikasan.[1]

On November 19, 2010, Chief Justice Renato C. Corona issued a Writ of Kalikasan[2] with a Temporary
Environmental Protection Order (TEPO), requiring the First Philippine Industrial Corporation (FPIC) and
First Gen Corporation (FGC) to make a Verified Return within a non-extendible period of ten (10) days
from receipt thereof pursuant to Section 8, Rule 7 of the Rules of Procedure for Environmental Cases.
The TEPO enjoined FPIC and FGC to: (a) cease and desist from operating the pipeline until further
orders; (b) check the structural integrity of The whole span of the 117-kilometer pipeline while
implementing sufficient measures to prevent and avert any untoward incidents that may result from any
leak of the pipeline; and (c) make a Report thereon within 60 days from receipt thereof.

Consequent to the Court's issuance of the Writ of Kalikasan and the accompanying TEPO, FPIC ceased
operations on both (a) the White Oil Pipeline System (WOPL System), which extends 117 kilometers
from Batangas to Pandacan Terminal in Manila and transports diesel, gasoline, jet fuel and kerosene;
and (b) the Black Oil Pipeline System (BOPL System), which extends 105 kilometers and transports
bunker fuel from Batangas to a depot in Sucat, Paraaque City.

Through a letter dated May 9, 2011, Department of Energy (DOE) Undersecretary Atty. Jose M. Layug, Jr.
seeks clarification and confirmation on the coverage of the Writ of Kalikasan and the accompanying
TEPO, i.e., whether they cover both the WOPL and the BOPL.

It is apparent from the Petition for Issuance of a Writ of Kalikasan that what petitioners sought to stop
operating is the WOPL, where the leak was found, affecting the vicinity of West Tower Condominium.
Only the WOPL is covered by the Writ of Kalikasan and the TEPO.

WHEREFORE, the Court hereby clarifies and confirms that what is covered by the November 19, 2010
Writ of Kalikasan and TEPO is only the WOPL System of respondent FPIC. Consequently, the FPIC can
resume operation of its BOPL System.

II

On March 29, 2011, the Court issued a Resolution setting the conduct of an ocular inspection on April
15, 2011 of the While Oil Pipeline System (WOPL System).

On April 15, 2011, the ocular inspection in the vicinity and basement of West Tower Condominium was
conducted in the presence of counsels of the parties, officers of respondent First Philippine Industrial
Corporation (FP1C), and residents of petitioner West Tower Condominium, among others.

As required by the Court, representatives of the University of the Philippines-National Institute of


Geological Sciences (UP-NIGS) and the UP Institute of Civil Engineering attended the ocular inspection.
After the ocular inspection, the Court asked the representatives of UP-N1GS and the UP Institute of Civil
Engineering for their opinions and recommendations through a report, among others, on (1) the issue of
whether to grant FPIC's urgent motion to temporarily lift the Temporary Environmental Protection
Order for a period of not more than 48 hours in order to conduct pressure controlled leak tests to check
the structural integrity of the WOPL which entails running a scraper pig to eliminate air gaps within the
pipeline prior to the conduct of said test, as recommended by the international technical consultant of
the Department of Energy; and (2) testing procedures that may be used by the FPIC regarding the
maintenance and checking of the structural integrity of the WOPL.
On May 10, 2011, the UP Institute of Civil Engineering sent a letter to the Court asking pertinent
documents from FPIC relative to testing protocols undertaken by FPIC and other proposals, and that it
be given one week within which to file its report after receipt of the documents.

WHEREFORE, finding the request of the UP Institute of Civil Engineering to be meritorious, FPIC is
hereby DIRECTED to submit documents regarding testing protocols it has undertaken to check for leaks
and the structural integrity of the WOPL, the results thereof and other related proposals it has
committed to undertake to the UP Institute of: Civil Engineering within five (5) days from notice. The UP
Institute of Civil Engineering is granted one (1) week from receipt of the requested documents from FPIC
within which to file its report.

The Court further Resolved to

(a) NOTE the Manifestation with Motion dated April 14, 2011 filed by counsel for petitioners, relative to
the resolution of March 29, 2011;

(b) NOTE the Letter (Report) dated April 21, 2011 of Dr. Carlo A. Arcilla, Director, National Institute of
Geological Sciences, College of Science University of the Philippines, Diliman, Quezon City, in compliance
with the resolution of March 29, 2011; and

(c) NOTE the Letter dated May 24, 2011 of Atty. Justin Christopher C. Mendoza of Poblador Bautista &
Reyes Law Offices, counsel for First Philippine Industrial Corporation, and GRANT his request for a copy
of Dr. Carlo Arcilla's April 21, 2011 Report filed in compliance with the resolution of March 29, 2011."

Carpio, Abad and Villarama, JJ., no part.


Nachura, J., on leave and no part.
Del Castillo, J., on official leave.

[G.R. No. 194239 : November 22, 2011]

WEST TOWER CONDOMINIUM CORPORATION, ON BEHALF OF THE RESIDENTS OF WEST TOWER


CONDO., AND IN REPRESENTATION OF BARANGAY BANGKAL, AND OTHERS, INCLUDING MINORS AND
GENERATIONS YET UNBORN V. FIRST PHILIPPINE INDUSTRIAL CORPORATION, FIRST GEN
CORPORATION AND THEIR RESPECTIVE BOARD OF DIRECTORS AND OFFICERS, JOHN DOES AND
RICHARD ROES

Sirs/Mesdames:

Please take notice that the Court en banc issued a Resolution dated NOVEMBER 22, 2011, which reads as
follows:cralaw
"G.R. No. 194239 (West Tower Condominium Corporation, on behalf of the Residents of West Tower
Condo., and in representation of Barangay Bangkal, and others, including minors and generations yet
unborn v. First Philippine Industrial Corporation, First Gen Corporation and their respective Board of
Directors and Officers, John Does and Richard Roes)

RESOLUTION

On April 15, 2011, the Court conducted an ocular inspection on the two (2) other alleged leaks in the
White Oil Pipeline (WOPL) of the First Philippine Industrial Corporation (FPIC) in the vicinity of Gen.
Capinpin and Gen. Del Pilar Streets near the West Tower Condo. The representatives of the parties, the
University of the Philippines-National Institute of Geological Sciences (UP-NIGS), the UP Institute of Civil
Engineering (UPICE) and Department of Energy (DOE) Undersecretary Atty. Jose M. Layug, Jr.
participated in said ocular inspection. It was proved in the ocular inspection that there were no
additional leaks in the WOPL of FPIC.

opinion or recommendations on the propriety of temporarily lifting the Writ of Kalikasan/Temporary


Environment Protection Order (TEPO) to allow FPIC to conduct the pressure controlled leak tests to
check the structural integrity of the WOPL for the duration of more or less 24 hours.

Consequently, on April 25, 2011, the UP-NIGS submitted its Report recommending, inter alia, that FPIC
be allowed to do the pressure controlled leak tests.

After asking for and receiving the test protocols undertaken by FPIC and clarification on testing
protocols ASME B 31.4 IN Section 437.4.1 (c) and ASME B 31.4 relative to the standard API RP 1110, the
UPICE, on October 3, 2011, submitted, in lieu of a Report, a Joint Manifestation with the DOE urging that
FPIC be allowed to conduct the pressure controlled leak tests which, they opined, should be conducted
in the presence of SGS Philippines, Inc., the certified leak test company commissioned by the DOE.

It must be recalled that, on January 3, 2011, respondent FPIC filed an Urgent Motion (to Temporarily Lift
Writ of Kalikasan/TEPO) in order to conduct pressure controlled leak tests to check the structural
integrity of the pipeline for the duration of more or less 24 hours. The proposed test entails running a
scraper pig to eliminate air gaps within the pipeline prior to the conduct of said pressure controlled leak
test. The test was recommended by the international technical consultant of the DOE which directed
FPIC through a December 20, 2010 letter to conduct said test.

On January 24, 2011, petitioners filed their Comment/Opposition (on the Urgent Motion to Temporarily
Lift Writ of Kalikasan/TEPO), arguing that the pressure controlled leak test will only determine whether
there are existing leaks in the pipeline but does not address the Court-directed determination of the
structural integrity of the whole pipeline.

Considering the unanimous recommendation of the UP-NIGS, UPICE and DOE, we find the urgent
motion of FPIC impressed with merit. The pressure controlled leak test is part and parcel of FPIC's effort
to check the structural integrity of its WOPL. This is consonant with the DOE directive embodied in its
December 20, 2010 letter to FPIC. Besides, petitioners really have no serious opposition to the conduct
of the tests, except their opinion that said tests are not adequate to determine the structural integrity of
the WOPL.

WHEREFORE, finding the urgent motion to temporarily lift the TEPO on the WOPL to beMERITORIOUS,
the TEPO issued on November 19, 2010 is hereby TEMPORARILY LIFTED for theDURATION of NOT
MORE THAN 48 HOURS ONLY from the start of the proposed test runs andONLY FOR THE DURATION
OF SAID TESTS in order for FPIC to conduct the tests for purposes of checking the structural integrity of
the WOPL. As recommended, the tests should be conducted in the presence of the parties or their
representatives, SGS Philippines, Inc., the representatives of the UP-NIGS and the UPICE. Accordingly,
FPIC is DIRECTED to COORDINATE with SGS Philippines, Inc., the UP-NIGS and the UPICE on the conduct
of the tests. FPIC and First Gen Corporation shall each pay one-half (1/2) of the fees of the experts. FPIC
is likewise DIRECTED to INFORM the DOE and other concerned agencies of the government on the
conduct of the test runs.

SO ORDERED.

II

The preliminary conference was conducted on March 24, 2011 pursuant to Sec. 11, Rule 7 of the Rules
of Procedure for Environmental Cases. In the meantime, pending resolution are the following pleadings:
(a) Omnibus Motion filed by petitioners assailing the Court's May 31, 2011 Resolution which clarified
that the November 19, 2010 TEPO covers only the White Oil Pipeline (WOPL); (b) Manifestation (Re:
Current Developments) with Omnibus Motion also filed by petitioners; and (c) Urgent Motion for Leave
(To Undertake "Bangkal Realignment" Project) filed by FPIC. The parties were directed to submit their
respective comments on the foregoing incidents.cralaw

In order to expedite the subsequent hearings of the instant case and the resolution of the pending
incidents, there is a need to refer the instant petition to the Court of Appeals (CA). The CA shall conduct
the subsequent hearings within a 60-day period, require the parties to file their respective memoranda,
and submit its report and recommendation within 30 days after the receipt of the memoranda.

WHEREFORE, the CA is DIRECTED to CONDUCT the SUBSEQUENT HEARINGS of the petition pursuant
to Rule 7 of the Rules of Procedure for Environmental Cases which shall not exceed 60 days from its
initial hearing, and to SUBMIT its REPORT and RECOMMENDATION within 30 days from submission of
the memoranda of the parties. It shall likewise resolve the pending incidents after all the parties shall
have submitted their respective Comments.

III

Acting on the Letter dated November 16, 2011 of Christine Glaisa Po of Sycip Salazar Hernandez &
Gatmaitan Law Office, SyCip Law Center, 105 Paseo De Roxas, 1226 Makati City, requesting for copies of
the material pleadings and court orders in this case, the Court Resolves to DENY the request with
respect to pleadings because a non-party is not entitled thereto.
Acting on the Letter dated November 21, 2011 of Atty. Ryan V. Romero of Kapunan Garcia & Castillo Law
Offices, counsel for West Tower Condominium Corporation, requesting for copies of the following
documents, the Court Resolves to (a) GRANT the request, subject to payment of the appropriate fees
and (b) ADVISE said counsel to COORDINATE with the Office of the Clerk of Court En Banc on the
matter, thus:cralaw

(1) Report submitted by the UPICE and UP-NIGS pursuant to the ocular inspection conducted on April
15, 2011; and

(b) Testing protocols submitted by FPIC pursuant to the Resolution dated May 31, 2011."

Carpio, J., no part.


Brion, J., on leave.
Abad and Villarama, Jr., JJ., no part.

[G.R. No. 195482 : June 21, 2011]

ELIZA M. HERNANDEZ, ET AL. V. PLACER DOME, INC.

Sirs/Mesdames:

Please take notice that the Court en banc issued a Resolution dated JUNE 21, 2011, which reads as
follows:

"G.R. No. 195482 (ELIZA M. HERNANDEZ, ET AL. v. PLACER DOME, INC.)

RESOLUTION

In the Resolution dated 8 March 2011, the Court granted petitioners' prayer for the issuance of a Writ of
Kalikasan and for the service of said writ as well as the summons issued in the case, by their counsel and
representative, Civic Action Group Ltd./APS International, Ltd. In the same resolution, the Court likewise
ordered respondents Placer Dome, Inc. (PDI) and Barrick Gold Corporation (BGC) to make a verified
return of the same writ and referred the case to the Court of Appeals (CA) for hearing, reception of
evidence and rendition of judgment. On 29 March 2011, the Court additionally issued a resolution
granting petitioners' motion for the inclusion of AI Legal Service & Training Ltd.and Select Document
Services among those authorized to serve summons on respondents, on the ground that Civic Action
Group Ltd./APS International, Ltd. had limited their services to the United States of America.

Subsequent to its filing of a 29 March 2011 Urgent Motion to Suspend Filing of Return, BGC filed a 31
March 2011 Urgent Motion for Ruling on Jurisdiction, questioning the constitutionality of Rule 7 of
theRules of Procedure for Environmental Cases (AMC No. 09-6-8-SC) as well as the validity of the
issuance and service of summons in the case. On 4 April 2011, BGC also filed a Return Ad Cautelam,
accompanied by a Manifestation dated 4 April 2011, undertaking to submit within a reasonable time
the authenticated copies of the sworn statements attached to said Return in view of time constraints.
On 12 April 2011, the Court issued a Resolution noting the foregoing motions and incidents and
requiring petitioners to file their comment to BGC's Urgent Motion for Ruling on Jurisdiction.

On 12 April 2011, petitioners also filed an Urgent Motion of even date, seeking leave to serve summons
upon respondents through any of in the means provided under Section 12, Rule 14 of theRules of Court.
As amended by A.M. No. 11-3-6-SC which was issued on 15 March 2011, said provision allows service of
summons through any of the following means to a foreign private juridical entity not registered in the
Philippines or without a resident agent, viz.: (a) by personal service coursed through the appropriate
court in the foreign country with the assistance of the Department of Foreign Affairs; (b) by publication
once in a newspaper of general circulation in the country where the defendant may be found and by
serving a copy of the summons and the court order by registered mail at the last known address of the
defendant; (c) by facsimile or any recognized electronic means that could generate proof of service; and,
(d) by such other means as the court may in its discretion direct.

On 18 April 2011, petitioners filed a Manifestation and Compliance dated 15 April 2011, submitting the
affidavit executed by Brian Nolan of the Civic Action Group Ltd./APS International, Ltd. attesting to the
25 March 2011 service of summons on BGC. Without prejudice to the Urgent Motion for Ruling on
Jurisdiction it earlier filed, BGC in turn filed a Submission dated 19 April 2011, proffering the original
authenticated copies of the affidavits executed by Debra Bilous and James Donald Robertson and
reiterating its commitment to submit within a reasonable time the authenticated copies of the other
affidavits attached to its Return Ad Cautelam. On 6 May 2011, Sycip Salazar Hernandez and Gatmaitan,
BGC's counsel of record, filed a Manifestation dated 5 May 2011 stating, among other matters, that they
have been served with copies of petitioners' Notice of Deposition, Interrogatories and Motion for
Production of Inspection of Documents (Discovery Papers) intended for their client, in connection with
the proceedings pending before the CA as CA-G.R. SP No. 00001; that being for the limited purpose of
raising constitutional and jurisdictional issues, their special appearance is not of such nature as would
authorize them to receive said Discovery Papers for and in behalf of BCG.

On 12 May 2011, petitioners filed their Manifestation with Reiterated Motion dated 11 May 2011,
alleging that they have received a copy of the 3 May 2011 Manifestation and Motion filed before the CA
by the Office of the Solicitor General (OSG) on behalf of the Department of Trade and Industry (DTI),
praying that petitioners be directed to manifest whether they have already caused the service of
summons upon PDI and, if not, to coordinate with the OSG with respect to the mode of service as well
as the manner of payment thereof; that although it had been served with copies of their petition and its
annexes by registered mail, PDI has yet to be served with summons; and, that while they are willing to
coordinate with the OSG regarding the mode and manner of payment for the service of summons to
PDI, the Court has yet to resolve their motions for the inclusion of AI Legal Service & Training
Ltd. and Select Document Services among those authorized to serve summons on respondents and for
the service of summons in accordance with Section 12, Rule 15 of the Rules of Court, as amended.
On 17 May 2011, BGC filed a Clarificatory Manifestation dated 16 May 2011, alleging that it received
the Resolution dated 4 May 2011 issued by the CA's First Division in CA-G.R. SP No. 00001, the decretal
portion of which states:

"ACTING on the pending incidents, We hereby resolve as follows:

1) In order to attain a judicious determination of the Urgent Motion for Ruling on Jurisdiction, the
petitioners are DIRECTED to submit their COMMENT within ten (10) days from receipt hereof.
Perforce, Our resolution on petitioners' Motion for Production and Inspection of Documents is held in
abeyance;

2) Petitioners are ORDERED to manifest whether or not respondent Placer Dome has been served with
Summons and if none had been served yet, to coordinate with the DTI, through the OSG, for the
implementation thereof.

SO ORDERED."

BGC calls the attention of the Court to the fact, among other matters, that the foregoing resolution is in
conflict with our resolution dated 12 April 2011 which required petitioners to file their comment to
its Urgent Motion for Ruling on Jurisdiction; and, that consequently, there is a need to clarify which court
exercises jurisdiction over the case in order to shed light to the procedural paths available to the parties.
Subsequent to its filing of a Submission dated 18 May 2011 submitting the original of the authenticated
affidavit of Geoffrey Marlow, BGC filed a Manifestation dated 6 June 2011 reiterating the need for said
clarification, in view of petitioners' filing on 2 June 2011 of their Opposition to itsUrgent Motion for
Ruling on Jurisdiction.

Pursuant to Section 3, Rule VII of the Rules of Procedure for Environmental Cases, petitions for theWrit
of Kalikasan "shall be filed with the Supreme Court or with any of the stations of the Court of Appeals."
It was in consonance with this provision that, on 8 March 2011, the Court issued the Resolution which,
after granting the Writ of Kalikasan sought by petitioners, referred the case to the CA for hearing,
reception of evidence and rendition of judgment. Considering said referral of the case to the CA, its re-
docketing of the petition as CA-G.R. SP No. 00001 and its conduct of proceedings relative thereto, it is
imperative that the various motions and incidents filed by the parties, together with the entire records
of the case, be likewise referred to said Court in observance of the doctrine of hierarchy of courts and in
the interest of the orderly and expeditious conduct of the proceedings in the case. With respect to
petitioners' Manifestation with Reiterated Motion dated 11 May 2011, attention is, however, called to
the fact that the motion for the inclusion of AI Legal Service & Training Ltd. and Select Document
Services among those authorized to serve summons on respondents had already been granted in the
Court's 29 March 2011 Resolution.

WHEREFORE, premises considered, the records of the case are REFERRED to the CA, for appropriate
action on the various motions and incidents filed by the parties."
Very truly yours,

(Sgd.) ENRIQUETA E. VIDAL


Clerk of Court

Agham files SC petition to stop mining activities in Zambales

Published June 11, 2012 9:46pm

A Writ of Kalikasan was filed in the Supreme Court by Agham Partylist Rep. Angelo B. Palmones to stop a
mining firm from cutting trees and leveling a mountain in Barangay Bolitoc, Sta. Cruz, Zambales.

The writ is a special remedy under Philippine law which protects the people's right to a healthy
environment. It is used to compel violators to stop acts that damage the environment and to restore
and rehabilitate it.

Agham asked the court to issue the writ within three days against LNL Archipelago Minerals Inc. (LAMI),
the Muntinlupa-based mining company operating in Zambales.

LAMI is destroying and continues to destroy the environment by cutting mountain trees and leveling a
mountain to the damage and detriment of the residents of Zambales without any of the concerned
government agencies and officials stopping such illegal actions, Palmones said in a 12-page petition.

The petition alleged that LAMIs activities destroy the natural barriers of Zambales from typhoons and
floods, and said that barangay residents were not consulted before the mining firm started mining in the
area.

*The tree-cutting and earth-hauling were] unnecessary to the development of port and related
facilities, and surely, no government agency will allow or authorize the flattening of a mountain, which is
illegal per se, Palmones said.

The petition also claimed that police tried to cover up the alleged illegal activities of LAMI by issuing a
special report which falsely stated that there was no leveling of mountain despite the undisputed
physical evidence on site.
Apart from LAMI, the petition was also directed against Environment and Natural Resources Secretary
Ramon Paje, Philippine Ports Authority (PPA) general manager Juan Sta. Ana, and Zambales Provincial
Office Police Superintendent Francisco Santiago Jr.

GMA News Online got in touch with LAMI, but the groups administrative staff said that officials were
not immediately available for comment. Rouchelle Dinglasan/AE/VS, GMA News

- See more at: http://www.gmanetwork.com/news/story/261519/money/agham-files-sc-petition-to-


stop-mining-activities-in-zambales#sthash.gaFUmAsK.dpuf

SC issues writ of kalikasan against mining activities in Zambales

Posted June 20th, 2012 by whit

in

Mines and Quarries

LNL Archipelago Minerals Inc. (LAMI)

Region 4a

Source:

MARK MERUEAS, GMA News -


http://www.gmanetwork.com/news/story/262564/economy/agricultureandmining/sc-issues-writ-of-
kalikasan-against-mining-activities-in-zambales

Date of publication:

20 June, 2012

The Supreme Court (SC) has issued a writ of kalikasan against companies, officials and government
agencies directly and indirectly involved in the leveling of a mountain in Sta. Cruz, Zambales, and
converting the place into a seaport.

In a June 13 decision, the high court said it was issuing the writ against Environment and Natural
Resources Secretary Ramon Paje, Philippine Ports Authority general manager Juan Sta.
Ana, LNL Archipelago Minerals Inc. (LAMI) president Lawrence Lenio and general manager Philip Floria,
as well as provincial and regional police offices in the area.
The writ is a special remedy under Philippine law, which protects peoples right to a healthy
environment, and issued to compel violators to stop acts damaging the environment as well as restore
and rehabilitate it.

The case stemmed from a 12-page petition filed by Agham Partylist Rep. Angelo B. Palmones last June
11.

Palmones alleged that the activities of LNL Archipelagoa Mandaluyong-based miner operating in
Zambaleswere destroying the natural barriers of the province from typhoons and floods. Residents
were not consulted before the firm started working over the area, the lawmaker noted.

LAMI is destroying and continues to destroy the environment by cutting mountain trees and leveling a
mountain to the damage and detriment of the residents of Zambales without any of the concerned
government agencies and officials stopping such illegal actions, Palmones said in his petition.

Trees in the area were reportedly being cut as LNL Archipelago tried to level the mountain and convert it
into a seaport for shipping chromite-rich soil from the Philippines to China.

In a two-page notice of resolution signed by SC clerk of court Enriqueta Vidal and released to media on
Wednesday, the high court said it was referring Palmones case to the Court of Appeals.

The court resolved to refer the case to the Court of Appeals for acceptance of the return of the writ and
for hearing, reception of evidence and rendition of judgment, the high court said.

In his petition, Palmones said he and House committee on ecology chair Rep. Danilo Fernandez went to
the mining site last April and were able to confirm what LNL Archipelago was doing to the environment.

When they arrived in the area, Palmones said heavily armed men confronted them.

Palmones said he already asked Paje to issue a cease and desist order against the company, but
the DENR chief allegedly did not heed his request.

LNL Archipelago insisted and justified to residents that it was able to secure an environmental
compliance certificate from the DENR and a construction permit construct from the Philippine Ports
Authority.

Palmones, however, argued that the construction permit did not mean the mining firm can cut down
trees or flatten the mountain. The lawmaker also insisted that an ECC was only a planning tool and not
a permit. VS, GMA News

METROPOLITAN MANILA G.R. Nos. 171947-48

DEVELOPMENT AUTHORITY,

DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES, Present:

DEPARTMENT OF EDUCATION,

CULTURE AND SPORTS,[1] PUNO, C.J.,

DEPARTMENT OF HEALTH, QUISUMBING,

DEPARTMENT OF AGRICULTURE, YNARES-SANTIAGO,

DEPARTMENT OF PUBLIC CARPIO,

WORKS AND HIGHWAYS, AUSTRIA-MARTINEZ,

DEPARTMENT OF BUDGET AND CORONA,

MANAGEMENT, PHILIPPINE CARPIO MORALES,

COAST GUARD, PHILIPPINE AZCUNA,

NATIONAL POLICE MARITIME TINGA,

GROUP, and DEPARTMENT OF CHICO-NAZARIO,

THE INTERIOR AND LOCAL VELASCO, JR.,

GOVERNMENT, NACHURA,

Petitioners, REYES,

LEONARDO-DE CASTRO, and

- versus - BRION, JJ.

CONCERNED RESIDENTS OF

MANILA BAY, represented and

joined by DIVINA V. ILAS,

SABINIANO ALBARRACIN,

MANUEL SANTOS, JR., DINAH

DELA PEA, PAUL DENNIS

QUINTERO, MA. VICTORIA

LLENOS, DONNA CALOZA,


FATIMA QUITAIN, VENICE

SEGARRA, FRITZIE TANGKIA,

SARAH JOELLE LINTAG,

HANNIBAL AUGUSTUS BOBIS,

FELIMON SANTIAGUEL, and Promulgated:

JAIME AGUSTIN R. OPOSA,

Respondents. December 18, 2008

x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

The need to address environmental pollution, as a cause of climate change, has of late gained the
attention of the international community. Media have finally trained their sights on the ill effects of
pollution, the destruction of forests and other critical habitats, oil spills, and the unabated improper
disposal of garbage. And rightly so, for the magnitude of environmental destruction is now on a scale
few ever foresaw and the wound no longer simply heals by itself.[2] But amidst hard evidence and clear
signs of a climate crisis that need bold action, the voice of cynicism, naysayers, and procrastinators can
still be heard.

This case turns on government agencies and their officers who, by the nature of their respective offices
or by direct statutory command, are tasked to protect and preserve, at the first instance, our internal
waters, rivers, shores, and seas polluted by human activities. To most of these agencies and their official
complement, the pollution menace does not seem to carry the high national priority it deserves, if their
track records are to be the norm. Their cavalier attitude towards solving, if not mitigating, the
environmental pollution problem, is a sad commentary on bureaucratic efficiency and commitment.

At the core of the case is the Manila Bay, a place with a proud historic past, once brimming with marine
life and, for so many decades in the past, a spot for different contact recreation activities, but now a
dirty and slowly dying expanse mainly because of the abject official indifference of people and
institutions that could have otherwise made a difference.

This case started when, on January 29, 1999, respondents Concerned Residents of Manila Bay filed a
complaint before the Regional Trial Court (RTC) in Imus, Cavite against several government agencies,
among them the petitioners, for the cleanup, rehabilitation, and protection of the Manila Bay. Raffled to
Branch 20 and docketed as Civil Case No. 1851-99 of the RTC, the complaint alleged that the water
quality of the Manila Bay had fallen way below the allowable standards set by law, specifically
Presidential Decree No. (PD) 1152 or the Philippine Environment Code. This environmental aberration,
the complaint stated, stemmed from:

x x x [The] reckless, wholesale, accumulated and ongoing acts of omission or commission [of the
defendants] resulting in the clear and present danger to public health and in the depletion and
contamination of the marine life of Manila Bay, [for which reason] ALL defendants must be held jointly
and/or solidarily liable and be collectively ordered to clean up Manila Bay and to restore its water
quality to class B waters fit for swimming, skin-diving, and other forms of contact recreation.[3]

In their individual causes of action, respondents alleged that the continued neglect of petitioners in
abating the pollution of the Manila Bay constitutes a violation of, among others:

(1) Respondents constitutional right to life, health, and a balanced ecology;

(2) The Environment Code (PD 1152);

(3) The Pollution Control Law (PD 984);

(4) The Water Code (PD 1067);

(5) The Sanitation Code (PD 856);

(6) The Illegal Disposal of Wastes Decree (PD 825);

(7) The Marine Pollution Law (PD 979);

(8) Executive Order No. 192;

(9) The Toxic and Hazardous Wastes Law (Republic Act No. 6969);
(10) Civil Code provisions on nuisance and human relations;

(11) The Trust Doctrine and the Principle of Guardianship; and

(12) International Law

Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be ordered to clean
the Manila Bay and submit to the RTC a concerted concrete plan of action for the purpose.

The trial of the case started off with a hearing at the Manila Yacht Club followed by an ocular inspection
of the Manila Bay. Renato T. Cruz, the Chief of the Water Quality Management Section, Environmental
Management Bureau, Department of Environment and Natural Resources (DENR), testifying for
petitioners, stated that water samples collected from different beaches around the Manila Bay showed
that the amount of fecal coliform content ranged from 50,000 to 80,000 most probable number
(MPN)/ml when what DENR Administrative Order No. 34-90 prescribed as a safe level for bathing and
other forms of contact recreational activities, or the SB level, is one not exceeding 200 MPN/100 ml.[4]

Rebecca de Vera, for Metropolitan Waterworks and Sewerage System (MWSS) and in behalf of other
petitioners, testified about the MWSS efforts to reduce pollution along the Manila Bay through the
Manila Second Sewerage Project. For its part, the Philippine Ports Authority (PPA) presented, as part of
its evidence, its memorandum circulars on the study being conducted on ship-generated waste
treatment and disposal, and its Linis Dagat (Clean the Ocean) project for the cleaning of wastes
accumulated or washed to shore.

The RTC Ordered Petitioners to Clean Up and Rehabilitate Manila Bay

On September 13, 2002, the RTC rendered a Decision[5] in favor of respondents. The dispositive portion
reads:

WHEREFORE, finding merit in the complaint, judgment is hereby rendered ordering the abovenamed
defendant-government agencies, jointly and solidarily, to clean up and rehabilitate Manila Bay and
restore its waters to SB classification to make it fit for swimming, skin-diving and other forms of contact
recreation. To attain this, defendant-agencies, with defendant DENR as the lead agency, are directed,
within six (6) months from receipt hereof, to act and perform their respective duties by devising a
consolidated, coordinated and concerted scheme of action for the rehabilitation and restoration of the
bay.

In particular:

Defendant MWSS is directed to install, operate and maintain adequate [sewerage] treatment facilities in
strategic places under its jurisdiction and increase their capacities.

Defendant LWUA, to see to it that the water districts under its wings, provide, construct and operate
sewage facilities for the proper disposal of waste.

Defendant DENR, which is the lead agency in cleaning up Manila Bay, to install, operate and maintain
waste facilities to rid the bay of toxic and hazardous substances.

Defendant PPA, to prevent and also to treat the discharge not only of ship-generated wastes but also of
other solid and liquid wastes from docking vessels that contribute to the pollution of the bay.

Defendant MMDA, to establish, operate and maintain an adequate and appropriate sanitary landfill
and/or adequate solid waste and liquid disposal as well as other alternative garbage disposal system
such as re-use or recycling of wastes.

Defendant DA, through the Bureau of Fisheries and Aquatic Resources, to revitalize the marine life
in Manila Bay and restock its waters with indigenous fish and other aquatic animals.

Defendant DBM, to provide and set aside an adequate budget solely for the purpose of cleaning up and
rehabilitation of Manila Bay.

Defendant DPWH, to remove and demolish structures and other nuisances that obstruct the free flow of
waters to the bay. These nuisances discharge solid and liquid wastes which eventually end up
in Manila Bay. As the construction and engineering arm of the government, DPWH is ordered to actively
participate in removing debris, such as carcass of sunken vessels, and other non-biodegradable garbage
in the bay.
Defendant DOH, to closely supervise and monitor the operations of septic and sludge companies and
require them to have proper facilities for the treatment and disposal of fecal sludge and sewage coming
from septic tanks.

Defendant DECS, to inculcate in the minds and hearts of the people through education the importance
of preserving and protecting the environment.

Defendant Philippine Coast Guard and the PNP Maritime Group, to protect at all costs
the Manila Bay from all forms of illegal fishing.

No pronouncement as to damages and costs.

SO ORDERED.

The MWSS, Local Water Utilities Administration (LWUA), and PPA filed before the Court of Appeals (CA)
individual Notices of Appeal which were eventually consolidated and docketed as CA-G.R. CV No. 76528.

On the other hand, the DENR, Department of Public Works and Highways (DPWH), Metropolitan Manila
Development Authority (MMDA), Philippine Coast Guard (PCG), Philippine National Police (PNP)
Maritime Group, and five other executive departments and agencies filed directly with this Court a
petition for review under Rule 45. The Court, in a Resolution of December 9, 2002, sent the said petition
to the CA for consolidation with the consolidated appeals of MWSS, LWUA, and PPA, docketed as CA-
G.R. SP No. 74944.

Petitioners, before the CA, were one in arguing in the main that the pertinent provisions of the
Environment Code (PD 1152) relate only to the cleaning of specific pollution incidents and do not cover
cleaning in general. And apart from raising concerns about the lack of funds appropriated for cleaning
purposes, petitioners also asserted that the cleaning of the Manila Bay is not a ministerial act which can
be compelled by mandamus.
The CA Sustained the RTC

By a Decision[6] of September 28, 2005, the CA denied petitioners appeal and affirmed the Decision of
the RTC in toto, stressing that the trial courts decision did not require petitioners to do tasks outside of
their usual basic functions under existing laws.[7]

Petitioners are now before this Court praying for the allowance of their Rule 45 petition on the following
ground and supporting arguments:

THE [CA] DECIDED A QUESTION OF SUBSTANCE NOT HERETOFORE PASSED UPON BY THE HONORABLE
COURT, I.E., IT AFFIRMED THE TRIAL COURTS DECISION DECLARING THAT SECTION 20 OF [PD] 1152
REQUIRES CONCERNED GOVERNMENT AGENCIES TO REMOVE ALL POLLUTANTS SPILLED AND
DISCHARGED IN THE WATER SUCH AS FECAL COLIFORMS.

ARGUMENTS

[SECTIONS] 17 AND 20 OF [PD] 1152 RELATE ONLY TO THE CLEANING OF SPECIFIC POLLUTION
INCIDENTS AND [DO] NOT COVER CLEANING IN GENERAL

II

THE CLEANING OR REHABILITATION OF THE MANILA BAY IS NOT A MINISTERIAL ACT OF PETITIONERS
THAT CAN BE COMPELLED BY MANDAMUS.

The issues before us are two-fold. First, do Sections 17 and 20 of PD 1152 under the
headings, Upgrading of Water Quality and Clean-up Operations, envisage a cleanup in general or are
they limited only to the cleanup of specific pollution incidents? And second, can petitioners be
compelled by mandamus to clean up and rehabilitate the ManilaBay?

On August 12, 2008, the Court conducted and heard the parties on oral arguments.
Our Ruling

We shall first dwell on the propriety of the issuance of mandamus under the premises.

The Cleaning or Rehabilitation of Manila Bay

Can be Compelled by Mandamus

Generally, the writ of mandamus lies to require the execution of a ministerial duty.[8] A ministerial duty
is one that requires neither the exercise of official discretion nor judgment.[9] It connotes an act in which
nothing is left to the discretion of the person executing it. It is a simple, definite duty arising under
conditions admitted or proved to exist and imposed by law.[10] Mandamus is available to compel action,
when refused, on matters involving discretion, but not to direct the exercise of judgment or discretion
one way or the other.

Petitioners maintain that the MMDAs duty to take measures and maintain adequate solid waste and
liquid disposal systems necessarily involves policy evaluation and the exercise of judgment on the part of
the agency concerned. They argue that the MMDA, in carrying out its mandate, has to make decisions,
including choosing where a landfill should be located by undertaking feasibility studies and cost
estimates, all of which entail the exercise of discretion.

Respondents, on the other hand, counter that the statutory command is clear and that petitioners duty
to comply with and act according to the clear mandate of the law does not require the exercise of
discretion. According to respondents, petitioners, the MMDA in particular, are without discretion, for
example, to choose which bodies of water they are to clean up, or which discharge or spill they are to
contain. By the same token, respondents maintain that petitioners are bereft of discretion on whether
or not to alleviate the problem of solid and liquid waste disposal; in other words, it is the MMDAs
ministerial duty to attend to such services.

We agree with respondents.


First off, we wish to state that petitioners obligation to perform their duties as defined by law, on one
hand, and how they are to carry out such duties, on the other, are two different concepts. While the
implementation of the MMDAs mandated tasks may entail a decision-making process, the enforcement
of the law or the very act of doing what the law exacts to be done is ministerial in nature and may be
compelled by mandamus. We said so in Social Justice Society v. Atienza[11] in which the Court directed
the City ofManila to enforce, as a matter of ministerial duty, its Ordinance No. 8027 directing the three
big local oil players to cease and desist from operating their business in the so-called Pandacan
Terminals within six months from the effectivity of the ordinance. But to illustrate with respect to the
instant case, the MMDAs duty to put up an adequate and appropriate sanitary landfill and solid waste
and liquid disposal as well as other alternative garbage disposal systems is ministerial, its duty being a
statutory imposition. The MMDAs duty in this regard is spelled out in Sec. 3(c) of Republic Act No. (RA)
7924 creating the MMDA. This section defines and delineates the scope of the MMDAs waste disposal
services to include:

Solid waste disposal and management which include formulation and implementation of policies,
standards, programs and projects for proper and sanitary waste disposal. It shall likewise include
the establishment and operation of sanitary land fill and related facilities and the implementation of
other alternative programs intended to reduce, reuse and recycle solid waste. (Emphasis added.)

The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid Waste Management Act (RA
9003) which prescribes the minimum criteria for the establishment of sanitary landfills and Sec. 42
which provides the minimum operating requirements that each site operator shall maintain in the
operation of a sanitary landfill. Complementing Sec. 41 are Secs. 36 and 37 of RA 9003,[12] enjoining the
MMDA and local government units, among others, after the effectivity of the law on February 15, 2001,
from using and operating open dumps for solid waste and disallowing, five years after such effectivity,
the use of controlled dumps.

The MMDAs duty in the area of solid waste disposal, as may be noted, is set forth not only in the
Environment Code (PD 1152) and RA 9003, but in its charter as well. This duty of putting up a proper
waste disposal system cannot be characterized as discretionary, for, as earlier stated, discretion
presupposes the power or right given by law to public functionaries to act officially according to their
judgment or conscience.[13] A discretionary duty is one that allows a person to exercise judgment and
choose to perform or not to perform.[14] Any suggestion that the MMDA has the option whether or not
to perform its solid waste disposal-related duties ought to be dismissed for want of legal basis.
A perusal of other petitioners respective charters or like enabling statutes and pertinent laws would
yield this conclusion: these government agencies are enjoined, as a matter of statutory obligation, to
perform certain functions relating directly or indirectly to the cleanup, rehabilitation, protection, and
preservation of the Manila Bay. They are precluded from choosing not to perform these duties.
Consider:

(1) The DENR, under Executive Order No. (EO) 192,[15] is the primary agency responsible for the
conservation, management, development, and proper use of the countrys environment and natural
resources. Sec. 19 of the Philippine Clean Water Act of 2004 (RA 9275), on the other hand, designates
the DENR as the primary government agency responsible for its enforcement and implementation, more
particularly over all aspects of water quality management. On water pollution, the DENR, under the Acts
Sec. 19(k), exercises jurisdiction over all aspects of water pollution, determine[s] its location, magnitude,
extent, severity, causes and effects and other pertinent information on pollution, and [takes] measures,
using available methods and technologies, to prevent and abate such pollution.

The DENR, under RA 9275, is also tasked to prepare a National Water Quality Status Report, an
Integrated Water Quality Management Framework, and a 10-year Water Quality Management Area
Action Plan which is nationwide in scope covering the Manila Bay and adjoining areas. Sec. 19 of RA
9275 provides:

Sec. 19 Lead Agency.The [DENR] shall be the primary government agency responsible for the
implementation and enforcement of this Act x x x unless otherwise provided herein. As such, it shall
have the following functions, powers and responsibilities:

a) Prepare a National Water Quality Status report within twenty-four (24) months from the effectivity
of this Act: Provided, That the Department shall thereafter review or revise and publish annually, or as
the need arises, said report;

b) Prepare an Integrated Water Quality Management Framework within twelve (12) months following
the completion of the status report;

c) Prepare a ten (10) year Water Quality Management Area Action Plan within 12 months following
the completion of the framework for each designated water management area. Such action plan shall be
reviewed by the water quality management area governing board every five (5) years or as need arises.
The DENR has prepared the status report for the period 2001 to 2005 and is in the process of completing
the preparation of the Integrated Water Quality Management Framework.[16] Within twelve (12) months
thereafter, it has to submit a final Water Quality Management Area Action Plan.[17] Again, like the
MMDA, the DENR should be made to accomplish the tasks assigned to it under RA 9275.

Parenthetically, during the oral arguments, the DENR Secretary manifested that the DENR, with the
assistance of and in partnership with various government agencies and non-government organizations,
has completed, as of December 2005, the final draft of a comprehensive action plan with estimated
budget and time frame, denominated as Operation Plan for the Manila Bay Coastal Strategy, for the
rehabilitation, restoration, and rehabilitation of the Manila Bay.

The completion of the said action plan and even the implementation of some of its phases should more
than ever prod the concerned agencies to fast track what are assigned them under existing laws.

(2) The MWSS, under Sec. 3 of RA 6234,[18] is vested with jurisdiction, supervision, and control over all
waterworks and sewerage systems in the territory comprising what is now the cities of Metro Manila
and several towns of the provinces of Rizal and Cavite, and charged with the duty:

(g) To construct, maintain, and operate such sanitary sewerages as may be necessary for the proper
sanitation and other uses of the cities and towns comprising the System; x x x

(3) The LWUA under PD 198 has the power of supervision and control over local water districts. It can
prescribe the minimum standards and regulations for the operations of these districts and shall monitor
and evaluate local water standards. The LWUA can direct these districts to construct, operate, and
furnish facilities and services for the collection, treatment, and disposal of sewerage, waste, and storm
water. Additionally, under RA 9275, the LWUA, as attached agency of the DPWH, is tasked with
providing sewerage and sanitation facilities, inclusive of the setting up of efficient and safe collection,
treatment, and sewage disposal system in the different parts of the country.[19] In relation to the instant
petition, the LWUA is mandated to provide sewerage and sanitation facilities in Laguna, Cavite, Bulacan,
Pampanga, and Bataan to prevent pollution in theManila Bay.

(4) The Department of Agriculture (DA), pursuant to the Administrative Code of 1987 (EO 292),[20] is
designated as the agency tasked to promulgate and enforce all laws and issuances respecting the
conservation and proper utilization of agricultural and fishery resources. Furthermore, the DA, under the
Philippine Fisheries Code of 1998 (RA 8550), is, in coordination with local government units (LGUs) and
other concerned sectors, in charge of establishing a monitoring, control, and surveillance system to
ensure that fisheries and aquatic resources in Philippine waters are judiciously utilized and managed on
a sustainable basis.[21] Likewise under RA 9275, the DA is charged with coordinating with the PCG and
DENR for the enforcement of water quality standards in marine waters.[22] More specifically, its Bureau
of Fisheries and Aquatic Resources(BFAR) under Sec. 22(c) of RA 9275 shall primarily be responsible for
the prevention and control of water pollution for the development, management, and conservation of
the fisheries and aquatic resources.

(5) The DPWH, as the engineering and construction arm of the national government, is tasked under EO
292[23] to provide integrated planning, design, and construction services for, among others, flood control
and water resource development systems in accordance with national development objectives and
approved government plans and specifications.

In Metro Manila, however, the MMDA is authorized by Sec. 3(d), RA 7924 to perform metro-wide
services relating to flood control and sewerage management which include the formulation and
implementation of policies, standards, programs and projects for an integrated flood control, drainage
and sewerage system.

On July 9, 2002, a Memorandum of Agreement was entered into between the DPWH and MMDA,
whereby MMDA was made the agency primarily responsible for flood control in Metro Manila. For the
rest of the country, DPWH shall remain as the implementing agency for flood control services. The
mandate of the MMDA and DPWH on flood control and drainage services shall include the removal of
structures, constructions, and encroachments built along rivers, waterways, and esteros (drainages) in
violation of RA 7279, PD 1067, and other pertinent laws.

(6) The PCG, in accordance with Sec. 5(p) of PD 601, or the Revised Coast Guard Law of 1974, and Sec. 6
of PD 979,[24] or the Marine Pollution Decree of 1976, shall have the primary responsibility of enforcing
laws, rules, and regulations governing marine pollution within the territorial waters of the Philippines. It
shall promulgate its own rules and regulations in accordance with the national rules and policies set by
the National Pollution Control Commission upon consultation with the latter for the effective
implementation and enforcement of PD 979. It shall, under Sec. 4 of the law, apprehend violators who:

a. discharge, dump x x x harmful substances from or out of any ship, vessel, barge, or any other floating
craft, or other man-made structures at sea, by any method, means or manner, into or upon the
territorial and inland navigable waters of the Philippines;
b. throw, discharge or deposit, dump, or cause, suffer or procure to be thrown, discharged, or deposited
either from or out of any ship, barge, or other floating craft or vessel of any kind, or from the shore,
wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description
whatever other than that flowing from streets and sewers and passing therefrom in a liquid state into
tributary of any navigable water from which the same shall float or be washed into such navigable
water; and

c. deposit x x x material of any kind in any place on the bank of any navigable water or on the bank of
any tributary of any navigable water, where the same shall be liable to be washed into such navigable
water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or
may be impeded or obstructed or increase the level of pollution of such water.

(7) When RA 6975 or the Department of the Interior and Local Government (DILG) Act of 1990 was
signed into law on December 13, 1990, the PNP Maritime Group was tasked to perform all police
functions over the Philippine territorial waters and rivers. Under Sec. 86, RA 6975, the police functions
of the PCG shall be taken over by the PNP when the latter acquires the capability to perform such
functions. Since the PNP Maritime Group has not yet attained the capability to assume and perform the
police functions of PCG over marine pollution, the PCG and PNP Maritime Group shall coordinate with
regard to the enforcement of laws, rules, and regulations governing marine pollution within the
territorial waters of the Philippines. This was made clear in Sec. 124, RA 8550 or the Philippine Fisheries
Code of 1998, in which both the PCG and PNP Maritime Group were authorized to enforce said law and
other fishery laws, rules, and regulations.[25]

(8) In accordance with Sec. 2 of EO 513, the PPA is mandated to establish, develop, regulate, manage
and operate a rationalized national port system in support of trade and national
development.[26] Moreover, Sec. 6-c of EO 513 states that the PPA has police authority within the

ports administered by it as may be necessary to carry out its powers and functions and attain its
purposes and objectives, without prejudice to the exercise of the functions of the Bureau of Customs
and other law enforcement bodies within the area. Such police authority shall include the following:

xxxx
b) To regulate the entry to, exit from, and movement within the port, of persons and vehicles, as well as
movement within the port of watercraft.[27]

Lastly, as a member of the International Marine Organization and a signatory to the International
Convention for the Prevention of Pollution from Ships, as amended by MARPOL
73/78,[28] the Philippines, through the PPA, must ensure the provision of adequate reception facilities at
ports and terminals for the reception of sewage from the ships docking in Philippine ports. Thus, the PPA
is tasked to adopt such measures as are necessary to prevent the discharge and dumping of solid and
liquid wastes and other ship-generated wastes into the Manila Bay waters from vessels docked at ports
and apprehend the violators. When the vessels are not docked at ports but within Philippine territorial
waters, it is the PCG and PNP Maritime Group that have jurisdiction over said vessels.

(9) The MMDA, as earlier indicated, is duty-bound to put up and maintain adequate sanitary landfill and
solid waste and liquid disposal system as well as other alternative garbage disposal systems. It is
primarily responsible for the implementation and enforcement of the provisions of RA 9003, which
would necessary include its penal provisions, within its area of jurisdiction.[29]

Among the prohibited acts under Sec. 48, Chapter VI of RA 9003 that are frequently violated are
dumping of waste matters in public places, such as roads, canals or esteros, open burning of solid waste,
squatting in open dumps and landfills, open dumping, burying of biodegradable or non- biodegradable
materials in flood-prone areas, establishment or operation of open dumps as enjoined in RA 9003, and
operation of waste management facilities without an environmental compliance certificate.

Under Sec. 28 of the Urban Development and Housing Act of 1992 (RA 7279), eviction or demolition may
be allowed when persons or entities occupy danger areas such asesteros, railroad tracks, garbage
dumps, riverbanks, shorelines, waterways, and other public places such as sidewalks, roads, parks and
playgrounds. The MMDA, as lead agency, in coordination with the DPWH, LGUs, and concerned
agencies, can dismantle and remove all structures, constructions, and other encroachments built in
breach of RA 7279 and other pertinent laws along the rivers, waterways, and esteros in Metro
Manila. With respect to rivers, waterways, and esteros in Bulacan, Bataan, Pampanga, Cavite, and
Laguna that discharge wastewater directly or eventually into the Manila Bay, the DILG shall direct the
concerned LGUs to implement the demolition and removal of such structures, constructions, and other
encroachments built in violation of RA 7279 and other applicable laws in coordination with the DPWH
and concerned agencies.
(10) The Department of Health (DOH), under Article 76 of PD 1067 (the Water Code), is tasked to
promulgate rules and regulations for the establishment of waste disposal areas that affect the source of
a water supply or a reservoir for domestic or municipal use. And under Sec. 8 of RA 9275, the DOH, in
coordination with the DENR, DPWH, and other concerned agencies, shall formulate guidelines and
standards for the collection, treatment, and disposal of sewage and the establishment and operation of
a centralized sewage treatment system. In areas not considered as highly urbanized cities, septage or a
mix sewerage-septage management system shall be employed.

In accordance with Sec. 72[30] of PD 856, the Code of Sanitation of the Philippines, and Sec. 5.1.1[31] of
Chapter XVII of its implementing rules, the DOH is also ordered to ensure the regulation and monitoring
of the proper disposal of wastes by private sludge companies through the strict enforcement of the
requirement to obtain an environmental sanitation clearance of sludge collection treatment and
disposal before these companies are issued their environmental sanitation permit.

(11) The Department of Education (DepEd), under the Philippine Environment Code (PD 1152), is
mandated to integrate subjects on environmental education in its school curricula at all levels.[32] Under
Sec. 118 of RA 8550, the DepEd, in collaboration with the DA, Commission on Higher Education, and
Philippine Information Agency, shall launch and pursue a nationwide educational campaign to promote
the development, management, conservation, and proper use of the environment. Under the Ecological
Solid Waste Management Act (RA 9003), on the other hand, it is directed to strengthen the integration
of environmental concerns in school curricula at all levels, with an emphasis on waste management
principles.[33]

(12) The Department of Budget and Management (DBM) is tasked under Sec. 2, Title XVII of the
Administrative Code of 1987 to ensure the efficient and sound utilization of government funds and
revenues so as to effectively achieve the countrys development objectives.[34]

One of the countrys development objectives is enshrined in RA 9275 or the Philippine Clean Water Act
of 2004. This law stresses that the State shall pursue a policy of economic growth in a manner consistent
with the protection, preservation, and revival of the quality of our fresh, brackish, and marine waters. It
also provides that it is the policy of the government, among others, to streamline processes and
procedures in the prevention, control, and abatement of pollution mechanisms for the protection of
water resources; to promote environmental strategies and use of appropriate economic instruments
and of control mechanisms for the protection of water resources; to formulate a holistic national
program of water quality management that recognizes that issues related to this management cannot
be separated from concerns about water sources and ecological protection, water supply, public health,
and quality of life; and to provide a comprehensive management program for water pollution focusing
on pollution prevention.

Thus, the DBM shall then endeavor to provide an adequate budget to attain the noble objectives of RA
9275 in line with the countrys development objectives.

All told, the aforementioned enabling laws and issuances are in themselves clear, categorical, and
complete as to what are the obligations and mandate of each agency/petitioner under the law. We need
not belabor the issue that their tasks include the cleanup of the Manila Bay.

Now, as to the crux of the petition. Do Secs. 17 and 20 of the Environment Code encompass the cleanup
of water pollution in general, not just specific pollution incidents?

Secs. 17 and 20 of the Environment Code

Include Cleaning in General

The disputed sections are quoted as follows:

Section 17. Upgrading of Water Quality.Where the quality of water has deteriorated to a degree where
its state will adversely affect its best usage, the government agencies concerned shall take such
measures as may be necessary to upgrade the quality of such water to meet the prescribed water
quality standards.

Section 20. Clean-up Operations.It shall be the responsibility of the polluter to contain, remove and
clean-up water pollution incidents at his own expense. In case of his failure to do so, the government
agencies concerned shall undertake containment, removal and clean-up operations and expenses
incurred in said operations shall be charged against the persons and/or entities responsible for such
pollution.
When the Clean Water Act (RA 9275) took effect, its Sec. 16 on the subject, Cleanup Operations,
amended the counterpart provision (Sec. 20) of the Environment Code (PD 1152). Sec. 17 of PD 1152
continues, however, to be operational.

The amendatory Sec. 16 of RA 9275 reads:

SEC. 16. Cleanup Operations.Notwithstanding the provisions of Sections 15 and 26 hereof, any person
who causes pollution in or pollutes water bodies in excess of the applicable and prevailing standards
shall be responsible to contain, remove and clean up any pollution incident at his own expense to the
extent that the same water bodies have been rendered unfit for utilization and beneficial use: Provided,
That in the event emergency cleanup operations are necessary and the polluter fails to immediately
undertake the same, the [DENR] in coordination with other government agencies concerned, shall
undertake containment, removal and cleanup operations. Expenses incurred in said operations shall be
reimbursed by the persons found to have caused such pollution under proper administrative
determination x x x. Reimbursements of the cost incurred shall be made to the Water Quality
Management Fund or to such other funds where said disbursements were sourced.

As may be noted, the amendment to Sec. 20 of the Environment Code is more apparent than real since
the amendment, insofar as it is relevant to this case, merely consists in the designation of the DENR as
lead agency in the cleanup operations.

Petitioners contend at every turn that Secs. 17 and 20 of the Environment Code concern themselves
only with the matter of cleaning up in specific pollution incidents, as opposed to cleanup in general.
They aver that the twin provisions would have to be read alongside the succeeding Sec. 62(g) and (h),
which defines the terms cleanup operations and accidental spills, as follows:

g. Clean-up Operations [refer] to activities conducted in removing the pollutants discharged or spilled in
water to restore it to pre-spill condition.

h. Accidental Spills [refer] to spills of oil or other hazardous substances in water that result
from accidents such as collisions and groundings.
Petitioners proffer the argument that Secs. 17 and 20 of PD 1152 merely direct the government agencies
concerned to undertake containment, removal, and cleaning operations of a specific polluted portion or
portions of the body of water concerned. They maintain that the application of said Sec. 20 is limited
only to water pollution incidents, which are situations that presuppose the occurrence of specific,
isolated pollution events requiring the corresponding containment, removal, and cleaning operations.
Pushing the point further, they argue that the aforequoted Sec. 62(g) requires cleanup operations to
restore the body of water to pre-spill condition, which means that there must have been a specific
incident of either intentional or accidental spillage of oil or other hazardous substances, as mentioned in
Sec. 62(h).

As a counterpoint, respondents argue that petitioners erroneously read Sec. 62(g) as delimiting the
application of Sec. 20 to the containment, removal, and cleanup operations for accidental spills only.
Contrary to petitioners posture, respondents assert that Sec. 62(g), in fact, even expanded the coverage
of Sec. 20. Respondents explain that without its Sec. 62(g), PD 1152 may have indeed covered only
pollution accumulating from the day-to-day operations of businesses around the Manila Bay and other
sources of pollution that slowly accumulated in the bay. Respondents, however, emphasize that Sec.
62(g), far from being a delimiting provision, in fact even enlarged the operational scope of Sec. 20, by
including accidental spills as among the water pollution incidents contemplated in Sec. 17 in relation to
Sec. 20 of PD 1152.

To respondents, petitioners parochial view on environmental issues, coupled with their narrow reading
of their respective mandated roles, has contributed to the worsening water quality of the Manila Bay.
Assuming, respondents assert, that petitioners are correct in saying that the cleanup coverage of Sec. 20
of PD 1152 is constricted by the definition of the phrase cleanup operations embodied in Sec. 62(g), Sec.
17 is not hobbled by such limiting definition. As pointed out, the phrases cleanup operations and
accidental spills do not appear in said Sec. 17, not even in the chapter where said section is found.

Respondents are correct. For one thing, said Sec. 17 does not in any way state that the government
agencies concerned ought to confine themselves to the containment, removal, and cleaning operations
when a specific pollution incident occurs. On the contrary, Sec. 17 requires them to act even in the
absence of a specific pollution incident, as long as water quality has deteriorated to a degree where its
state will adversely affect its best usage. This section, to stress, commands concerned government
agencies, when appropriate, to take such measures as may be necessary to meet the prescribed water
quality standards. In fine, the underlying duty to upgrade the quality of water is not conditional on the
occurrence of any pollution incident.

For another, a perusal of Sec. 20 of the Environment Code, as couched, indicates that it is properly
applicable to a specific situation in which the pollution is caused by polluters who fail to clean up the
mess they left behind. In such instance, the concerned government agencies shall undertake the
cleanup work for the polluters account. Petitioners assertion, that they have to perform cleanup
operations in the Manila Bay only when there is a water pollution incident and the erring polluters do
not undertake the containment, removal, and cleanup operations, is quite off mark. As earlier discussed,
the complementary Sec. 17 of the Environment Code comes into play and the specific duties of the
agencies to clean up come in even if there are no pollution incidents staring at them. Petitioners, thus,
cannot plausibly invoke and hide behind Sec. 20 of PD 1152 or Sec. 16 of RA 9275 on the pretext that
their cleanup mandate depends on the happening of a specific pollution incident. In this regard, what
the CA said with respect to the impasse over Secs. 17 and 20 of PD 1152 is at once valid as it is practical.
The appellate court wrote: PD 1152 aims to introduce a comprehensive program of environmental
protection and management. This is better served by making Secs. 17 & 20 of general application rather
than limiting them to specific pollution incidents.[35]

Granting arguendo that petitioners position thus described vis--vis the implementation of Sec. 20 is
correct, they seem to have overlooked the fact that the pollution of theManila Bay is of such magnitude
and scope that it is well-nigh impossible to draw the line between a specific and a general pollution
incident. And such impossibility extends to pinpointing with reasonable certainty who the polluters
are. We note that Sec. 20 of PD 1152 mentions water pollution incidents which may be caused by
polluters in the waters of the Manila Bay itself or by polluters in adjoining lands and in water bodies or
waterways that empty into the bay. Sec. 16 of RA 9275, on the other hand, specifically adverts to any
person who causes pollution in or pollutes water bodies, which may refer to an individual or an
establishment that pollutes the land mass near the Manila Bay or the waterways, such that the
contaminants eventually end up in the bay. In this situation, the water pollution incidents are so
numerous and involve nameless and faceless polluters that they can validly be categorized as beyond
the specific pollution incident level.

Not to be ignored of course is the reality that the government agencies concerned are so undermanned
that it would be almost impossible to apprehend the numerous polluters of the Manila Bay. It may
perhaps not be amiss to say that the apprehension, if any, of the Manila Bay polluters has been few and
far between. Hence, practically nobody has been required to contain, remove, or clean up a given water
pollution incident. In this kind of setting, it behooves the Government to step in and undertake cleanup
operations. Thus, Sec. 16 of RA 9275, previously Sec. 20 of PD 1152, covers for all intents and purposes a
general cleanup situation.
The cleanup and/or restoration of the Manila Bay is only an aspect and the initial stage of the long-term
solution. The preservation of the water quality of the bay after the rehabilitation process is as important
as the cleaning phase. It is imperative then that the wastes and contaminants found in the rivers, inland
bays, and other bodies of water be stopped from reaching the Manila Bay. Otherwise, any cleanup effort
would just be a futile, cosmetic exercise, for, in no time at all, the Manila Bay water quality would again
deteriorate below the ideal minimum standards set by PD 1152, RA 9275, and other relevant laws. It
thus behooves the Court to put the heads of the petitioner-department-agencies and the bureaus and
offices under them on continuing notice about, and to enjoin them to perform, their mandates and
duties towards cleaning up the Manila Bay and preserving the quality of its water to the ideal level.
Under what other judicial discipline describes as continuing mandamus,[36] the Court may, under
extraordinary circumstances, issue directives with the end in view of ensuring that its decision would not
be set to naught by administrative inaction or indifference. In India, the doctrine of continuing
mandamus was used to enforce directives of the court to clean up the length of the Ganges River from
industrial and municipal pollution.[37]

The Court can take judicial notice of the presence of shanties and other unauthorized structures which
do not have septic tanks along the Pasig-Marikina-San Juan Rivers, the National Capital Region (NCR)
(Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycuayan-
Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay,
and other minor rivers and connecting waterways, river banks, and esteros which discharge their waters,
with all the accompanying filth, dirt, and garbage, into the major rivers and eventually the Manila Bay. If
there is one factor responsible for the pollution of the major river systems and the Manila Bay, these
unauthorized structures would be on top of the list. And if the issue of illegal or unauthorized structures
is not seriously addressed with sustained resolve, then practically all efforts to cleanse these important
bodies of water would be for naught. The DENR Secretary said as much.[38]

Giving urgent dimension to the necessity of removing these illegal structures is Art. 51 of PD 1067 or the
Water Code,[39] which prohibits the building of structures within a given length along banks of rivers and
other waterways. Art. 51 reads:

The banks of rivers and streams and the shores of the seas and lakes throughout their entire length and
within a zone of three (3) meters in urban areas, twenty (20) meters in agricultural areas and forty (40)
meters in forest areas, along their margins, are subject to the easement of public use in the interest of
recreation, navigation, floatage, fishing and salvage.No person shall be allowed to stay in this
zone longer than what is necessary for recreation, navigation, floatage, fishing or salvage or to build
structures of any kind. (Emphasis added.)
Judicial notice may likewise be taken of factories and other industrial establishments standing along or
near the banks of the Pasig River, other major rivers, and connecting waterways. But while they may not
be treated as unauthorized constructions, some of these establishments undoubtedly contribute to the
pollution of the Pasig River and waterways. The DILG and the concerned LGUs, have, accordingly, the
duty to see to it that non-complying industrial establishments set up, within a reasonable period, the
necessary waste water treatment facilities and infrastructure to prevent their industrial discharge,
including their sewage waters, from flowing into the Pasig River, other major rivers, and connecting
waterways. After such period, non-complying establishments shall be shut down or asked to transfer
their operations.

At this juncture, and if only to dramatize the urgency of the need for petitioners-agencies to comply
with their statutory tasks, we cite the Asian Development Bank-commissioned study on the garbage
problem in Metro Manila, the results of which are embodied in the The Garbage Book. As there
reported, the garbage crisis in the metropolitan area is as alarming as it is shocking. Some highlights of
the report:

1. As early as 2003, three land-filled dumpsites in Metro Manila - the Payatas, Catmon and Rodriquez
dumpsites - generate an alarming quantity of lead and leachate or liquid run-off. Leachate are toxic
liquids that flow along the surface and seep into the earth and poison the surface and groundwater that
are used for drinking, aquatic life, and the environment.

2. The high level of fecal coliform confirms the presence of a large amount of human waste in the dump
sites and surrounding areas, which is presumably generated by households that lack alternatives to
sanitation. To say that Manila Bay needs rehabilitation is an understatement.

3. Most of the deadly leachate, lead and other dangerous contaminants and possibly strains of
pathogens seeps untreated into ground water and runs into the Marikina and Pasig Riversystems
and Manila Bay.[40]

Given the above perspective, sufficient sanitary landfills should now more than ever be established as
prescribed by the Ecological Solid Waste Management Act (RA 9003). Particular note should be taken of
the blatant violations by some LGUs and possibly the MMDA of Sec. 37, reproduced below:

Sec. 37. Prohibition against the Use of Open Dumps for Solid Waste.No open dumps shall be established
and operated, nor any practice or disposal of solid waste by any person, including LGUs which
[constitute] the use of open dumps for solid waste, be allowed after the effectivity of this Act: Provided,
further that no controlled dumps shall be allowed (5) years following the effectivity of this Act.
(Emphasis added.)

RA 9003 took effect on February 15, 2001 and the adverted grace period of five (5) years which ended
on February 21, 2006 has come and gone, but no single sanitary landfill which strictly complies with the
prescribed standards under RA 9003 has yet been set up.

In addition, there are rampant and repeated violations of Sec. 48 of RA 9003, like littering, dumping of
waste matters in roads, canals, esteros, and other public places, operation of open dumps, open burning
of solid waste, and the like. Some sludge companies which do not have proper disposal facilities simply
discharge sludge into the Metro Manila sewerage system that ends up in the Manila Bay. Equally
unabated are violations of Sec. 27 of RA 9275, which enjoins the pollution of water bodies, groundwater
pollution, disposal of infectious wastes from vessels, and unauthorized transport or dumping into sea
waters of sewage or solid waste and of Secs. 4 and 102 of RA 8550 which proscribes the introduction by
human or machine of substances to the aquatic environment including dumping/disposal of waste and
other marine litters, discharge of petroleum or residual products of petroleum of carbonaceous
materials/substances [and other] radioactive, noxious or harmful liquid, gaseous or solid substances,
from any water, land or air transport or other human-made structure.

In the light of the ongoing environmental degradation, the Court wishes to emphasize the extreme
necessity for all concerned executive departments and agencies to immediately act and discharge their
respective official duties and obligations. Indeed, time is of the essence; hence, there is a need to set
timetables for the performance and completion of the tasks, some of them as defined for them by law
and the nature of their respective offices and mandates.

The importance of the Manila Bay as a sea resource, playground, and as a historical landmark cannot be
over-emphasized. It is not yet too late in the day to restore theManila Bay to its former splendor and
bring back the plants and sea life that once thrived in its blue waters. But the tasks ahead, daunting as
they may be, could only be accomplished if those mandated, with the help and cooperation of all civic-
minded individuals, would put their minds to these tasks and take responsibility. This means that the
State, through petitioners, has to take the lead in the preservation and protection of the Manila Bay.
The era of delays, procrastination, and ad hoc measures is over. Petitioners must transcend their
limitations, real or imaginary, and buckle down to work before the problem at hand becomes
unmanageable. Thus, we must reiterate that different government agencies and instrumentalities
cannot shirk from their mandates; they must perform their basic functions in cleaning up and
rehabilitating the Manila Bay. We are disturbed by petitioners hiding behind two untenable claims: (1)
that there ought to be a specific pollution incident before they are required to act; and (2) that the
cleanup of the bay is a discretionary duty.

RA 9003 is a sweeping piece of legislation enacted to radically transform and improve waste
management. It implements Sec. 16, Art. II of the 1987 Constitution, which explicitly provides that the
State shall protect and advance the right of the people to a balanced and healthful ecology in accord
with the rhythm and harmony of nature.

So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a balanced and healthful
ecology need not even be written in the Constitution for it is assumed, like other civil and political rights
guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational implications.[41] Even assuming the absence of a
categorical legal provision specifically prodding petitioners to clean up the bay, they and the men and
women representing them cannot escape their obligation to future generations of Filipinos to keep the
waters of the Manila Bay clean and clear as humanly as possible. Anything less would be a betrayal of
the trust reposed in them.

WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA in CA-G.R. CV No.
76528 and SP No. 74944 and the September 13, 2002 Decision of the RTC in Civil Case No. 1851-99
are AFFIRMED but with MODIFICATIONS in view of subsequent developments or supervening events in
the case. The fallo of the RTC Decision shall now read:

WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-government agencies


to clean up, rehabilitate, and preserve Manila Bay, and restore and maintain its waters to SB level (Class
B sea waters per Water Classification Tables under DENR Administrative Order No. 34 [1990]) to make
them fit for swimming, skin-diving, and other forms of contact recreation.

In particular:
(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency responsible for the
conservation, management, development, and proper use of the countrys environment and natural
resources, and Sec. 19 of RA 9275, designating the DENR as the primary government agency responsible
for its enforcement and implementation, the DENR is directed to fully implement its Operational Plan
for the Manila Bay Coastal Strategy for the rehabilitation, restoration, and conservation of the Manila
Bay at the earliest possible time. It is ordered to call regular coordination meetings with concerned
government departments and agencies to ensure the successful implementation of the aforesaid plan of
action in accordance with its indicated completion schedules.

(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec. 25 of the Local
Government Code of 1991,[42] the DILG, in exercising the Presidents power of general supervision and its
duty to promulgate guidelines in establishing waste management programs under Sec. 43 of the
Philippine Environment Code (PD 1152), shall direct all LGUs in Metro Manila, Rizal, Laguna, Cavite,
Bulacan, Pampanga, and Bataan to inspect all factories, commercial establishments, and private homes
along the banks of the major river systems in their respective areas of jurisdiction, such as but not
limited to the Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the Navotas-
Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay
(Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and waterways that
eventually discharge water into the Manila Bay; and the lands abutting the bay, to determine whether
they have wastewater treatment facilities or hygienic septic tanks as prescribed by existing laws,
ordinances, and rules and regulations. If none be found, these LGUs shall be ordered to require non-
complying establishments and homes to set up said facilities or septic tanks within a reasonable time to
prevent industrial wastes, sewage water, and human wastes from flowing into these rivers,
waterways, esteros, and the Manila Bay, under pain of closure or imposition of fines and other
sanctions.

(3) As mandated by Sec. 8 of RA 9275,[43] the MWSS is directed to provide, install, operate, and maintain
the necessary adequate waste water treatment facilities in Metro Manila, Rizal, and Cavite where
needed at the earliest possible time.

(4) Pursuant to RA 9275,[44] the LWUA, through the local water districts and in coordination with the
DENR, is ordered to provide, install, operate, and maintain sewerage and sanitation facilities and the
efficient and safe collection, treatment, and disposal of sewage in the provinces of Laguna, Cavite,
Bulacan, Pampanga, and Bataan where needed at the earliest possible time.

(5) Pursuant to Sec. 65 of RA 8550,[45] the DA, through the BFAR, is ordered to improve and restore the
marine life of the Manila Bay. It is also directed to assist the LGUs in Metro Manila, Rizal, Cavite, Laguna,
Bulacan, Pampanga, and Bataan in developing, using recognized methods, the fisheries and aquatic
resources in the Manila Bay.

(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group, in accordance with Sec.
124 of RA 8550, in coordination with each other, shall apprehend violators of PD 979, RA 8550, and
other existing laws and regulations designed to prevent marine pollution in the Manila Bay.

(7) Pursuant to Secs. 2 and 6-c of EO 513[46] and the International Convention for the Prevention of
Pollution from Ships, the PPA is ordered to immediately adopt such measures to prevent the discharge
and dumping of solid and liquid wastes and other ship-generated wastes into the Manila Bay waters
from vessels docked at ports and apprehend the violators.

(8) The MMDA, as the lead agency and implementor of programs and projects for flood control projects
and drainage services in Metro Manila, in coordination with the DPWH, DILG, affected LGUs, PNP
Maritime Group, Housing and Urban Development Coordinating Council (HUDCC), and other agencies,
shall dismantle and remove allstructures, constructions, and other encroachments established or built in
violation of RA 7279, and other applicable laws along the Pasig-Marikina-San Juan Rivers, the NCR
(Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting
waterways and esteros in Metro Manila. The DPWH, as the principal implementor of programs and
projects for flood control services in the rest of the country more particularly in Bulacan, Bataan,
Pampanga, Cavite, and Laguna, in coordination with the DILG, affected LGUs, PNP Maritime Group,
HUDCC, and other concerned government agencies, shall remove and demolish all structures,
constructions, and other encroachments built in breach of RA 7279 and other applicable laws along the
Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the
Laguna De Bay, and other rivers, connecting waterways, and esteros that discharge wastewater into the
Manila Bay.

In addition, the MMDA is ordered to establish, operate, and maintain a sanitary landfill, as prescribed by
RA 9003, within a period of one (1) year from finality of this Decision.On matters within its territorial
jurisdiction and in connection with the discharge of its duties on the maintenance of sanitary landfills
and like undertakings, it is also ordered to cause the apprehension and filing of the appropriate criminal
cases against violators of the respective penal provisions of RA 9003,[47] Sec. 27 of RA 9275 (the Clean
Water Act), and other existing laws on pollution.

(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275, within one (1) year from
finality of this Decision, determine if all licensed septic and sludge companies have the proper facilities
for the treatment and disposal of fecal sludge and sewage coming from septic tanks. The DOH shall give
the companies, if found to be non-complying, a reasonable time within which to set up the necessary
facilities under pain of cancellation of its environmental sanitation clearance.

(10) Pursuant to Sec. 53 of PD 1152,[48] Sec. 118 of RA 8550, and Sec. 56 of RA 9003,[49] the DepEd shall
integrate lessons on pollution prevention, waste management, environmental protection, and like
subjects in the school curricula of all levels to inculcate in the minds and hearts of students and, through
them, their parents and friends, the importance of their duty toward achieving and maintaining a
balanced and healthful ecosystem in the Manila Bay and the entire Philippine archipelago.

(11) The DBM shall consider incorporating an adequate budget in the General Appropriations Act of
2010 and succeeding years to cover the expenses relating to the cleanup, restoration, and preservation
of the water quality of the Manila Bay, in line with the countrys development objective to attain
economic growth in a manner consistent with the protection, preservation, and revival of our marine
waters.

(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG, PNP Maritime
Group, DILG, and also of MWSS, LWUA, and PPA, in line with the principle of continuing
mandamus, shall, from finality of this Decision, each submit to the Court a quarterly progressive report
of the activities undertaken in accordance with this Decision.

No costs.

SO ORDERED.

G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented
by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her
parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES,
minors and represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor,
represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all
surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN
V. PESIGAN, minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO,
minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T.
CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA,
minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA,
JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by
their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and
DAVID IAN, all surnamed KING, minors, represented by their parents MARIO and HAYDEE KING,
DAVID, FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their
parents BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors,
represented by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all
surnamed CARDAMA, minors, represented by their parents MARIO and LINA CARDAMA, CLARISSA,
ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and represented by their parents
RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed
QUIPIT, minors, represented by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO,
CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented by their parents
FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of
Environment and Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of
the RTC, Makati, Branch 66, respondents.

Oposa Law Office for petitioners.

The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology
which the petitioners dramatically associate with the twin concepts of "inter-generational responsibility"
and "inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have
a cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest
the unabated hemorrhage of the country's vital life support systems and continued rape of Mother
Earth."

The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro
Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein,
now the principal petitioners, are all minors duly represented and joined by their respective parents.
Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-
stock and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action
geared for the protection of our environment and natural resources. The original defendant was the
Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural
Resources (DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala,
was subsequently ordered upon proper motion by the petitioners. 1 The complaint 2 was instituted as a
taxpayers' class suit 3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines,
taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is the
country's virgin tropical forests." The same was filed for themselves and others who are equally
concerned about the preservation of said resource but are "so numerous that it is impracticable to bring
them all before the Court." The minors further asseverate that they "represent their generation as well
as generations yet unborn." 4 Consequently, it is prayed for that judgment be rendered:

. . . ordering defendant, his agents, representatives and other persons acting in his behalf to

(1) Cancel all existing timber license agreements in the country;

(2) Cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements.

and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5

The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has
a land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests
in which varied, rare and unique species of flora and fauna may be found; these rainforests contain a
genetic, biological and chemical pool which is irreplaceable; they are also the habitat of indigenous
Philippine cultures which have existed, endured and flourished since time immemorial; scientific
evidence reveals that in order to maintain a balanced and healthful ecology, the country's land area
should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per
cent (46%) for agricultural, residential, industrial, commercial and other uses; the distortion and
disturbance of this balance as a consequence of deforestation have resulted in a host of environmental
tragedies, such as (a) water shortages resulting from drying up of the water table, otherwise known as
the "aquifer," as well as of rivers, brooks and streams, (b) salinization of the water table as a result of
the intrusion therein of salt water, incontrovertible examples of which may be found in the island of
Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss of soil
fertility and agricultural productivity, with the volume of soil eroded estimated at one billion
(1,000,000,000) cubic meters per annum approximately the size of the entire island of Catanduanes,
(d) the endangering and extinction of the country's unique, rare and varied flora and fauna, (e) the
disturbance and dislocation of cultural communities, including the disappearance of the Filipino's
indigenous cultures, (f) the siltation of rivers and seabeds and consequential destruction of corals and
other aquatic life leading to a critical reduction in marine resource productivity, (g) recurrent spells of
drought as is presently experienced by the entire country, (h) increasing velocity of typhoon winds
which result from the absence of windbreakers, (i) the floodings of lowlands and agricultural plains
arising from the absence of the absorbent mechanism of forests, (j) the siltation and shortening of the
lifespan of multi-billion peso dams constructed and operated for the purpose of supplying water for
domestic uses, irrigation and the generation of electric power, and (k) the reduction of the earth's
capacity to process carbon dioxide gases which has led to perplexing and catastrophic climatic changes
such as the phenomenon of global warming, otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation
are so capable of unquestionable demonstration that the same may be submitted as a matter of judicial
notice. This notwithstanding, they expressed their intention to present expert witnesses as well as
documentary, photographic and film evidence in the course of the trial.

As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests
constituting roughly 53% of the country's land mass.

9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said
rainforests or four per cent (4.0%) of the country's land area.

10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left,
barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of
immature and uneconomical secondary growth forests.

11. Public records reveal that the defendant's, predecessors have granted timber license agreements
('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for commercial
logging purposes.

A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A".

12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per hour
nighttime, Saturdays, Sundays and holidays included the Philippines will be bereft of forest
resources after the end of this ensuing decade, if not earlier.

13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this
continued trend of deforestation to the plaintiff minor's generation and to generations yet unborn are
evident and incontrovertible. As a matter of fact, the environmental damages enumerated in paragraph
6 hereof are already being felt, experienced and suffered by the generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest
stands will work great damage and irreparable injury to plaintiffs especially plaintiff minors and their
successors who may never see, use, benefit from and enjoy this rare and unique natural resource
treasure.

This act of defendant constitutes a misappropriation and/or impairment of the natural resource
property he holds in trust for the benefit of plaintiff minors and succeeding generations.

15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled to
protection by the State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2, 1990,
plaintiffs served upon defendant a final demand to cancel all logging permits in the country.

A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".

17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious damage
and extreme prejudice of plaintiffs.

18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights of
plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic), bare, barren
and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines had been
abundantly blessed with.

19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy
enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy of
the State

(a) to create, develop, maintain and improve conditions under which man and nature can thrive in
productive and enjoyable harmony with each other;

(b) to fulfill the social, economic and other requirements of present and future generations of Filipinos
and;

(c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and well-
being. (P.D. 1151, 6 June 1977)

20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory to
the Constitutional policy of the State to

a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and
efficient use of natural resources (sic)." (Section 1, Article XII of the Constitution);

b. "protect the nation's marine wealth." (Section 2, ibid);

c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article XIV,id.);

d. "protect and advance the right of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature." (Section 16, Article II, id.)

21. Finally, defendant's act is contrary to the highest law of humankind the natural law and
violative of plaintiffs' right to self-preservation and perpetuation.

22. There is no other plain, speedy and adequate remedy in law other than the instant action to arrest
the unabated hemorrhage of the country's vital life support systems and continued rape of Mother
Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint
based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue
raised by the plaintiffs is a political question which properly pertains to the legislative or executive
branches of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that
(1) the complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory and (3) the
action presents a justiciable question as it involves the defendant's abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In
the said order, not only was the defendant's claim that the complaint states no cause of action
against him and that it raises a political question sustained, the respondent Judge further ruled that
the granting of the relief prayed for would result in the impairment of contracts which is prohibited by
the fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of
Court and ask this Court to rescind and set aside the dismissal order on the ground that the respondent
Judge gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors
not only represent their children, but have also joined the latter in this case. 8

On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their
respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the
respondents and the petitioners filed a reply thereto.

Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains
sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of
the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section
3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the
1987 Constitution recognizing the right of the people to a balanced and healthful ecology, the concept
of generational genocide in Criminal Law and the concept of man's inalienable right to self-preservation
and self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in
granting Timber License Agreements (TLAs) to cover more areas for logging than what is available
involves a judicial question.

Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners
maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit
that even if TLAs may be considered protected by the said clause, it is well settled that they may still be
revoked by the State when the public interest so requires.

On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific
legal right violated by the respondent Secretary for which any relief is provided by law. They see nothing
in the complaint but vague and nebulous allegations concerning an "environmental right" which
supposedly entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such
allegations, according to them, do not reveal a valid cause of action. They then reiterate the theory that
the question of whether logging should be permitted in the country is a political question which should
be properly addressed to the executive or legislative branches of Government. They therefore assert
that the petitioners' resources is not to file an action to court, but to lobby before Congress for the
passage of a bill that would ban logging totally.

As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by
the State without due process of law. Once issued, a TLA remains effective for a certain period of time
usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled
unless the holder has been found, after due notice and hearing, to have violated the terms of the
agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative of the requirements of due
process.

Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil
Case No. 90-777 as a class suit. The original defendant and the present respondents did not take issue
with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject
matter of the complaint is of common and general interest not just to several, but to all citizens of the
Philippines. Consequently, since the parties are so numerous, it, becomes impracticable, if not totally
impossible, to bring all of them before the court. We likewise declare that the plaintiffs therein are
numerous and representative enough to ensure the full protection of all concerned interests. Hence, all
the requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are
present both in the said civil case and in the instant petition, the latter being but an incident to the
former.

This case, however, has a special and novel element. Petitioners minors assert that they represent their
generation as well as generations yet unborn. We find no difficulty in ruling that they can, for
themselves, for others of their 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
intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned.
Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and
harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal
and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and
other natural resources to the end that their exploration, development and utilization be equitably
accessible to the present as well as future generations. 10 Needless to say, every generation has a
responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and
healthful 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 ensure the protection of that right
for the generations to come.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of
the petition.
After a careful perusal of the complaint in question and a meticulous consideration and evaluation of
the issues raised and arguments adduced by the parties, We do not hesitate to find for the petitioners
and rule against the respondent Judge's challenged order for having been issued with grave abuse of
discretion amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows:

xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the
defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell short
of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or a
specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the
Court notes that the Complaint is replete with vague assumptions and vague conclusions based on
unverified data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein
defendant.

Furthermore, the Court firmly believes that the matter before it, being impressed with political color
and involving a matter of public policy, may not be taken cognizance of by this Court without doing
violence to the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the
Government.

The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant
the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country
and to cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient
definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is
replete with vague assumptions and conclusions based on unverified data. A reading of the complaint
itself belies these conclusions.

The complaint focuses on one specific fundamental legal right the right to a balanced and healthful
ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the
fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides:

Sec. 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.

This right unites with the right to health which is provided for in the preceding section of the same
article:

Sec. 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.
While the right to a balanced and healthful ecology is to be found under the Declaration of Principles
and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of
the civil and political rights enumerated in the latter. Such a right belongs to a different category of
rights altogether for it concerns nothing less than self-preservation and self-perpetuation aptly and
fittingly stressed by the petitioners the advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these basic rights need not even be written in the
Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly
mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless
the rights to a balanced and healthful ecology and to health are mandated as state policies by the
Constitution itself, thereby highlighting their continuing importance and imposing upon the state a
solemn obligation to preserve the first and protect and advance the second, the day would not be too
far when all else would be lost not only for the present generation, but also for those to come
generations which stand to inherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from
impairing the environment. During the debates on this right in one of the plenary sessions of the 1986
Constitutional Commission, the following exchange transpired between Commissioner Wilfrido
Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question:

MR. VILLACORTA:

Does this section mandate the State to provide sanctions against all forms of pollution air, water and
noise pollution?

MR. AZCUNA:

Yes, Madam President. The right to healthful (sic) environment necessarily carries with it the correlative
duty of not impairing the same and, therefore, sanctions may be provided for impairment of
environmental balance. 12

The said right implies, among many other things, the judicious management and conservation of the
country's forests.

Without such forests, the ecological or environmental balance would be irreversiby disrupted.

Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as
well as the other related provisions of the Constitution concerning the conservation, development and
utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10
June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates that the Department of Environment
and Natural Resources "shall be the primary government agency responsible for the conservation,
management, development and proper use of the country's environment and natural resources,
specifically forest and grazing lands, mineral, resources, including those in reservation and watershed
areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as
may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for
the welfare of the present and future generations of Filipinos." Section 3 thereof makes the following
statement of policy:

Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to ensure the sustainable
use, development, management, renewal, and conservation of the country's forest, mineral, land, off-
shore areas and other natural resources, including the protection and enhancement of the quality of the
environment, and equitable access of the different segments of the population to the development and
the use of the country's natural resources, not only for the present generation but for future
generations as well. It is also the policy of the state to recognize and apply a true value system including
social and environmental cost implications relative to their utilization, development and conservation of
our natural resources.

This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of
1987, 15specifically in Section 1 thereof which reads:

Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the Filipino people, the full
exploration and development as well as the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources, consistent with the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment and the objective of making the exploration,
development and utilization of such natural resources equitably accessible to the different segments of
the present as well as future generations.

(2) The State shall likewise recognize and apply a true value system that takes into account social and
environmental cost implications relative to the utilization, development and conservation of our natural
resources.

The above provision stresses "the necessity of maintaining a sound ecological balance and protecting
and enhancing the quality of the environment." Section 2 of the same Title, on the other hand,
specifically speaks of the mandate of the DENR; however, it makes particular reference to the fact of the
agency's being subject to law and higher authority. Said section provides:

Sec. 2. Mandate. (1) The Department of Environment and Natural Resources shall be primarily
responsible for the implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional
mandate to control and supervise the exploration, development, utilization, and conservation of the
country's natural resources.

Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the
bases for policy formulation, and have defined the powers and functions of the DENR.

It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes
already paid special attention to the "environmental right" of the present and future generations. On 6
June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment
Code) were issued. The former "declared a continuing policy of the State (a) to create, develop, maintain
and improve conditions under which man and nature can thrive in productive and enjoyable harmony
with each other, (b) to fulfill the social, economic and other requirements of present and future
generations of Filipinos, and (c) to insure the attainment of an environmental quality that is conducive
to a life of dignity and well-being." 16 As its goal, it speaks of the "responsibilities of each generation as
trustee and guardian of the environment for succeeding generations." 17 The latter statute, on the other
hand, gave flesh to the said policy.

Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as
clear as the DENR's duty under its mandate and by virtue of its powers and functions under E.O. No.
192 and the Administrative Code of 1987 to protect and advance the said right.

A denial or violation of that right by the other who has the corelative duty or obligation to respect or
protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which
they claim was done with grave abuse of discretion, violated their right to a balanced and healthful
ecology; hence, the full protection thereof requires that no further TLAs should be renewed or granted.

A cause of action is defined as:

. . . an act or omission of one party in violation of the legal right or rights of the other; and its essential
elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of
the defendant in violation of said legal right. 18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to
state a cause of action, 19 the question submitted to the court for resolution involves the sufficiency of
the facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth of
falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted.
The only issue to be resolved in such a case is: admitting such alleged facts to be true, may the court
render a valid judgment in accordance with the prayer in the complaint? 20 InMilitante vs.
Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost care and
circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of
action] lest, by its failure to manifest a correct appreciation of the facts alleged and deemed
hypothetically admitted, what the law grants or recognizes is effectively nullified. If that happens, there
is a blot on the legal order. The law itself stands in disrepute."

After careful examination of the petitioners' complaint, We find the statements under the introductory
affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be
adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they
may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as
the cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the
grantees thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation
or determination by the executive or legislative branches of Government is not squarely put in issue.
What is principally involved is the enforcement of a right vis-a-vis policies already formulated and
expressed in legislation. It must, nonetheless, be emphasized that the political question doctrine is no
longer, the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that
protects executive and legislative actions from judicial inquiry or review. The second paragraph of
section 1, Article VIII of the Constitution states that:

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.

Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a
distinguished member of this Court, says:

The first part of the authority represents the traditional concept of judicial power, involving the
settlement of conflicting rights as conferred as law. The second part of the authority represents a
broadening of judicial power to enable the courts of justice to review what was before forbidden
territory, to wit, the discretion of the political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to
rule upon even the wisdom of the decisions of the executive and the legislature and to declare their acts
invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch, of
course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or
contract according to the disposition of the judiciary.

In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:

In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The
reason is that, even if we were to assume that the issue presented before us was political in nature, we
would still not be precluded from revolving it under the expanded jurisdiction conferred upon us that
now covers, in proper cases, even the political question. Article VII, Section 1, of the Constitution clearly
provides: . . .

The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts
clause found in the Constitution. The court a quo declared that:

The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant
the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country
and to cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 24

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in
his motion to dismiss the non-impairment clause. If he had done so, he would have acted with utmost
infidelity to the Government by providing undue and unwarranted benefits and advantages to the
timber license holders because he would have forever bound the Government to strictly respect the said
licenses according to their terms and conditions regardless of changes in policy and the demands of
public interest and welfare. He was aware that as correctly pointed out by the petitioners, into every
timber license must be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:

. . . Provided, That when the national interest so requires, the President may amend, modify, replace or
rescind any contract, concession, permit, licenses or any other form of privilege granted herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract,
property or a property right protested by the due process clause of the Constitution. In Tan vs. Director
of Forestry, 25 this Court held:

. . . A timber license is an instrument by which the State regulates the utilization and disposition of forest
resources to the end that public welfare is promoted. A timber license is not a contract within the
purview of the due process clause; it is only a license or privilege, which can be validly withdrawn
whenever dictated by public interest or public welfare as in this case.

A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract
between the authority, federal, state, or municipal, granting it and the person to whom it is granted;
neither is it property or a property right, nor does it create a vested right; nor is it taxation (37 C.J. 168).
Thus, this Court held that the granting of license does not create irrevocable rights, neither is it property
or property rights (People vs. Ong Tin, 54 O.G. 7576).

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26

. . . Timber licenses, permits and license agreements are the principal instruments by which the State
regulates the utilization and disposition of forest resources to the end that public welfare is promoted.
And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified
entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area
and the forest products therein. They may be validly amended, modified, replaced or rescinded by the
Chief Executive when national interests so require. Thus, they are not deemed contracts within the
purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].

Since timber licenses are not contracts, the non-impairment clause, which reads:

Sec. 10. No law impairing, the obligation of contracts shall be passed. 27

cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant case does not
involve a law or even an executive issuance declaring the cancellation or modification of existing timber
licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further
that a law has actually been passed mandating cancellations or modifications, the same cannot still be
stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose,
such as law could have only been passed in the exercise of the police power of the state for the purpose
of advancing the right of the people to a balanced and healthful ecology, promoting their health and
enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:

The freedom of contract, under our system of government, is not meant to be absolute. The same is
understood to be subject to reasonable legislative regulation aimed at the promotion of public health,
moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations
of contract is limited by the exercise of the police power of the State, in the interest of public health,
safety, moral and general welfare.

The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life
Insurance Co. vs. Auditor General, 30 to wit:

Under our form of government the use of property and the making of contracts are normally matters of
private and not of public concern. The general rule is that both shall be free of governmental
interference. But neither property rights nor contract rights are absolute; for government cannot exist if
the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of
contract to work them harm. Equally fundamental with the private right is that of the public to regulate
it in the common interest.

In short, the non-impairment clause must yield to the police power of the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with
respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing,
renewing or approving new timber licenses for, save in cases of renewal, no contract would have as of
yet existed in the other instances. Moreover, with respect to renewal, the holder is not entitled to it as a
matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged
Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The
petitioners may therefore amend their complaint to implead as defendants the holders or grantees of
the questioned timber license agreements.

No pronouncement as to costs.

SO ORDERED.

Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur.

Narvasa, C.J., Puno and Vitug, JJ., took no part.


EN BANC

[G.R. No. 196835 : June 28, 2011]

TRIBAL COALITION OF MINDANAO (TRICOM), INC., DAGING MANOBO SECTORAL TRIBAL COUNCIL, ET
AL. V. TAGANITO MINING CORPORATION, PLATINUM GROUP METALS CORPORATION, ORIENTAL
SYNERGY MINING CORP., ET AL.

Sirs/Mesdames:

Please take notice that the Court en banc issued a Resolution dated June 28, 2011 which reads as
follows:

"G.R. No. 196835 - (Tribal Coalition of Mindanao (TRICOM), Inc., Daging Manobo Sectoral Tribal
Council, et al. v. Taganito Mining Corporation, Platinum Group Metals Corporation, Oriental Synergy
Mining Corp., et al.) Acting on the Petition for a Writ of Kalikasan with prayer for Temporary
Environmental Protection Order (TEPO) filed by applicant Tribal Coalition of Mindanao (TRICOM), Inc., et
al., the Court resolves to REMAND the case to the Court of Appeals in Cagayan de Oro City.

The petition on its face does not demonstrate sufficient factual and legal allegations, as well as
evidentiary support required under the Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC)
for this Court to immediately grant relief to petitioners. The only factual allegation that merits a hard
look from this Court is the presence of a high level of nickel in the water near their tribal residences, its
alleged causal link to the mining activities of respondents and the potential carcinogenic effect of such
high level of nickel on the petitioners. Nevertheless, pursuant to the longstanding doctrine on the
hierarchy of courts and the precautionary principle stating that the constitutional right of the people to
balanced and healthful ecology shall be given the benefit of the doubt, applicants are given the
opportunity to prove their entitlement to the remedies prayed for. The applicants may hereby submit
their evidence to the Court of Appeals in Cagayan de Oro City for proper disposition.

The prayer for a TEPO is DENIED. Applicants merely replead their allegations in support of the issuance
of the writ, which are insufficient; thus, no extreme urgency, grave injustice, nor irreparable injury has
been shown. The denial is without prejudice to the CA's grant of TEPO if it finds that the evidence so
warrant."

Very truly yours,

(Sgd.) ENRIQUETA E. VIDAL


Clerk of Court