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Law on NatRes (84-89) 1

PILAR CAEDA BRAGA, PETER TIU LAVINA,


ANTONIO H. VERGARA, BENJIE T. BADAL, The DOTC study served as one of the primary
DIOSDADO ANGELO A. MAHIPUS, AND SAMAL CITY considerations for current Sasa Wharf expansion project.
RESORT OWNERS ASSOCIATION, INC. (SCROA),
Petitioners, v. HON. JOSEPH EMILIO A. ABAYA, IN HIS On December 21, 2014, the Regional Development
CAPACITY AS SECRETARY OF THE DEPARTMENT Council for Region XI (the Council) endorsed the project
OF TRANSPORTATION AND COMMUNICATIONS, through Resolution No. 118 subject to the following
DEPARTMENT OF TRANSPORTATION AND conditions that must be met before its implementation:6
COMMUNICATIONS (DOTC), PRE-QUALIFICATION, The DOTC shall immediately secure the acquisition of 6.4
BIDS AND AWARDS COMMITTEE (PBAC) AND hectares of right of way, per recommendation of the
PHILIPPINE PORTS AUTHORITY (PPA), Respondents; National Economic and Development Authority -
G.R. No. 223076, September 13, 2016 Investment Coordination Committee (NEDA-ICC);

The DOTC shall ensure that appropriate compensation is


This is an Urgent Petition for a Writ of Continuing paid to the owners of the properties to be acquired as
Mandamus and/or Writ of Kalikasan with a prayer for the additional right of way;
issuance of a temporary environmental protection order
(TEPO). The petition is directed against the Department of The DOTC shall ensure the proper relocation/resettlement
Transportation and Communications (DOTC) and the of the informal settlers affected by the project; and
Philippine Ports Authority's (PPA) modernization project:
the Davao Sasa Wharf (the project), a 30-year concession The DOTC shall ensure the project will also benefit the
to develop, operate, and manage the port under the port users and the people of Davao by providing better,
Public-Private Partnership (PPP) scheme. more affordable service, and generating sustainable
employment opportunities.7
The project is allegedly being carried out without the On April 10, 2015, the DOTC published an invitation to
necessary Environmental Compliance Certificate (ECC) or pre-qualify and bid for the Project.8
Environmental Impact Statements required under
Presidential Decree No. (P.D.) 15861 and P.D. 1151.2 The On March 15, 2016, the petitioners - all stakeholders from
project also allegedly failed to conduct local consultation Davao City and Samal, Davao del Norte - filed this Urgent
and to secure prior sanggunian approval as required by Petition for a Writ of Continuing Mandamus and/or Writ of
the Local Government Code.3 Kalikasan.

The Petition
The Facts
The petitioners allege: (1) that the DOTC issued the notice
The Port of Davao is a seaport located in Mindanao. It is of public bidding despite noncompliance with Resolution
compose of several ports, all within the gulf of Davao, but No. 118; (2) that the DOTC did not conduct prior
its base port is the Sasa Wharf located at Barangay Sasa, consultation and public hearings nor secure the approval
Davao City. of the sanggunian concerned as required under Sections
26 and 27 of the LGC; (3) that the Davao City sanggunian
In 2011, the Sasa Wharf was pegged for privatization had passed a resolution objecting to the project for its
under the PPP scheme. noncompliance with the LGC; and (4) that the DOTC has
not yet obtained an Environmental Compliance Certificate
In 2012, the PPA commissioned a feasibility study (PPA (ECC) as required under P.D. 1586.
study) on the current condition of the Sasa Wharf and its
potential new targets in volume increase expansion. The They argue that the DOTC's implementation of the project
study, which was completed in 2012, was conducted by - one that as a significant impact on the environment -
Science & Vision For Technology, Inc. without preparing an Environmental Impact Statement,
securing an ECC, or consulting the affected stakeholders,
The PPA study estimated that the modernization project violates their constitutional right to a healthy and balanced
would cost an estimated 3.5 Billion pesos for the purchase ecology.
of new equipment and the installation of new facilities.4
The petitioners seek to restrain the implementation of the
However, the DOTC commissioned another firm, Hamburg Project - including its bidding and award - until the
port Consultants, to conduct a second feasibility study respondents secure an ECC and comply with the LGC.
(DOTC study) which was concluded in 2013. The DOTC
study has a projected cost of 18 billion pesos and requires The Counter-arguments
the expansion of Sasa Wharf by 27.9 hectares.5
Law on NatRes (84-89) 2

The respondents, through the Office of the Solicitor


General (OSG), invoke the prematurity of the petition. In 1991, Congress enacted the LGC which promoted
They argue that the Project is still in the bidding process; public participation by requiring national government
thus, there is still no proponent to implement it. agencies to consult stakeholders before undertaking
programs with significant ecological impact.
The proponent not the respondents has the duty to
initiate the Environmental Impact Assessment (EIA) In 1996, President Fidel V. Ramos mandated the
process and to apply for the issuance of the ECC.9 Until continuous Strengthening of DENR's Environmental
the bidding process is concluded, the EIA process cannot Impact Assessment Capability.16 He also required project
be undertaken and it would be premature to impute proponents to conduct the environmental impact study and
noncompliance with the Environmental Impact Statement the feasibility study of proposed projects simultaneously in
System.10 order to maximize the use of resources.

Moreover, consultation with the stakeholders and the local In an effort to further rationalize the EIS System and
government is premature and speculative at this point streamline the CC application process, President Gloria
because the proponent has not yet identified the actual Macapagal-Arroyo directed the DENR Secretary to issue
details of the project's implementation. Again, compliance new guidelines in 2002.18
with the consultation requirements of the LGC remains
premature pending the award of the contract. Consequently, the DENR issued Administrative Order
(DAO) No. 2003-30, the current IRR for the EIS System.
They further argue that the allegations do not warrant the
issuance of a writ of kalikasan because the petitioners Impact Assessment and the EIS System
failed to prove the threat of environmental damage of such
magnitude as to prejudice the life, health, or property of Environmental Impact Assessment (EIA) is the process of
inhabitants in two or more cities or provinces.11 evaluating and predicting the likely impacts - including
cumulative impacts - of an undertaking on the
Our Ruling environment.19 Its goal is to prevent or mitigate potential
harm to the environment and to protect the welfare of the
The petition is premature. affected community. To this end, the process requires
proponents to truthfully and responsibly disclose all
To better understand our judgment, we must first delve relevant information on the project through the EIS. This
into the relevant laws and their progression over time. facilitates meaningful and informed public participation that
ensures the project's social acceptability to the community.
On June 6, 1977, President Ferdinand Marcos enacted
P.D. 1151, the Philippine Environmental Policy. It required The following are the key operating principles of the EIS
all agencies and instrumentalities of the national System:
government, including government-owned or -controlled The EIS System is concerned primarily with assessing the
corporations (GOCCs), as well as private corporations, direct and indirect impacts of a project on the biophysical
firms, and entities to prepare a detailed Environmental and human environment and ensuring that these impacts
Impact Statement (EIS) for every project or undertaking are addressed by appropriate environmental protection
that significantly affects the quality of the environment.12 and enhancement measures.

A year later on June 11, 1978, President Marcos issued The EIS System aids proponents in incorporating
P.D. 1586 which expounded on P.D. 1151 to environmental considerations in planning their projects as
institutionalized a more comprehensive EIS System.13 It well as in determining the environment's impact on their
introduced the ECC, a certificate issued by the President project.
his representative) to environmentally critical projects that
have sufficient safeguards to protect and preserve the Project proponents are responsible for determining and
environment. It also penalized th who violate the disclosing all relevant information necessary for a
Environmental Impact System, its implementing rules, or methodical assessment of the environmental impacts of
the conditions of their ECC.14 their projects;

P.D. 1586 tasked the National Environmental Protection The review of the EIS by EMB shall be guided by three
Council (the Council) to issue its implementing rules and general criteria: (1) that environmental considerations are
regulations (IRR). Environmental Management Bureau integrated into the overall project planning, (2) that the
(EMB), a bureau under the Department of Environment assessment is technically sound and proposed
and Natural Resources (DENR), absorbed these powers environmental mitigation measures are effective, and (3)
later on after the council was abolished.15
Law on NatRes (84-89) 3

that, social acceptability is based on informed public


participation; Other clearances and documents that may be determined
and agreed upon during scoping.22
Effective regulatory review of the EIS depends largely on The EIS contains a detailed project description of the
timely, full, and accurate disclosure of relevant information nature, configuration, the raw materials/natural resources
by project proponents and other stakeholders in the EIA to be used, production system, waste generation and
process; control, timelines, and all other related activities of the
proposed project.23 It also includes an Environmental
The social acceptability of a project is a result of Management Plan (EMP) detailing the proponent's
meaningful public participation, which shall be assessed preventive, mitigating, compensatory, and contingent
as part of the Environmental Compliance Certificate (ECC) measures to enhance the project's positive impacts and
application, based on concerns related to the project's minimize ecological risks.24
environmental impacts;
Projects with potentially significant negative environmental
The timelines prescribed by this Order, within which an impacts are further required to conduct public
Environmental Compliance Certificate must be issued, or consultations so that the environmental concerns of
denied, apply only to processes and actions within the stakeholders are addressed in formulating the EMP.25
Environmental Management Bureau's (EMB) control and
do not include actions or activities that are the The impact assessment concludes with EMB's approval (in
responsibility of the proponent.20 the form of an ECC) or rejection (in the form of a denial
Projects or undertakings that pose a potential significant letter).26 The ECC signifies that the proposed project will
impact to the environment are required to undergo impact not cause significant negative impact on the environment
assessment in order to secure ECCs.21 The proponent based on the proponent's representation. It also certifies
initiates the application process by filing a comprehensive that the proponent has complied with the EIS System and
EIS with the EMB. The EIS should at least have the has committed to implement its approved EMP.
following: Accordingly, the ECC contains the specific measures and
conditions that the proponent must undertake to mitigate
EIS Executive Summary; the identified environmental impacts.

Project Description; The duty to comply with the EIS System rests on the
proponent.
Matrix of the scoping agreement identifying critical issues
and concerns, as validated by EMB; The Sasa Wharf Modernization Project has the potential to
significantly affect the quality of the environment, putting it
Baseline environmental conditions focusing on the sectors within the purview of the EIS System. However, (1) who is
(and resources) most significantly affected by the responsible for preparing and filing the EIS and (2) when
proposed action; does this duty arise?

Impact assessment focused on significant environmental P.D. 1151 and P.D. 1586 requires all agencies and
impacts (in relation to project construction/commissioning, instrumentalities of national government, including
operation and decommissioning), taking into account GOCCs, and private corporations, firms, and entities to file
cumulative impacts; the EIS for every proposed project or undertaking that
significantly affects the quality of the environment.27
Environmental Risk Assessment if determined by EMB as Section 4 of P.D. 1151 reads:
necessary during scoping; Section 4. Environmental Impact Statements. Pursuant to
the above enunciated policies and goals, all agencies and
Environmental Management Program/Plan; instrumentalities of the national government, including
government-owned or -controlled corporations, as well as
Supporting documents; including technical/socio-economic private corporations, firms, and entities shall prepare, file,
data used/generated; certificate of zoning viability and and include in every action, project, or undertaking which
municipal land use plan; and proof of consultation with significantly affects the quality of the environment, a
stakeholders; detailed statement on:

Proposals for Environmental Monitoring and Guarantee


Funds including justification of amount, when required; (a) the environmental impact of the proposed action,
project or undertaking;
Accountability statement of EIA consultants and the (b) any adverse environmental effect which cannot be
project proponent; and avoided should the proposal be implemented;
Law on NatRes (84-89) 4

(c) alternative to the proposed action; The LGC requires the lead agency to conduct local
(d) a determination that the short-term uses of the consultation and secure the approval of the concerned
resources of the environment are consistent with the sanggunian prior to the implementation of the project.
maintenance and enhancement of the long-term
productivity of the same; and The issuance of the ECC does not exempt the project from
(e) whenever a proposal involve the use of depletable or ompliance with other relevant laws. The LGC, in particular,
nonrenewable resources, a finding must be made that requires the government agency authorizing the project to
such use and commitment are warranted. conduct local consultation and kecure prior consent for
ecologically impactful projects:
Before an environmental impact statement is issued by a Section 26. Duty of National Government Agencies in the
lead agency, all agencies having jurisdiction over, or Maintenance of Ecological Balance. - It shall be the duty of
special expertise on the subject matter involved shall every national agency or government-owned or -controlled
comment on the draft environmental impact statement corporation authorizing or involved in the planning and
made by the lead agency within thirty (30) days from implementation of any project or program that may cause
receipt of the same. pollution, climatic change, depletion of nonrenewable
resources, loss of crop land, rangeland, or forest cover,
On the other hand, P.D. 1586 states: and extinction of animal or plant species, to consult with
the local government units, nongovernmental
Section 2. Environmental Impact Statement System. There organizations, and other sectors concerned and explain
is hereby established an Environmental Impact Statement the goals and objectives of the project or program, its
System founded and based on the environmental impact impact upon the people and the community in terms of
statement required, under Section 4 of Presidential Decree environmental or ecological balance, and the measures
No. 1151, of all agencies and instrumentalities of the that will be undertaken to prevent or minimize the adverse
national government, including government-owned or effects thereof.
controlled corporations, as well as private corporations,
firms and entities, for every proposed project and Section 27. Prior Consultations Required. - No project or
undertaking which significantly affect the quality of the program shall be implemented by government authorities
environment. unless the consultations mentioned in Sections 2 (c) and
26 hereof are complied with, and prior approval of the
These provisions demonstrate the expansive scope of the sanggunian concerned is obtained: Provided, That
EIS System. Unfortunately, they are also ambiguous when occupants in areas where such projects are to be
it comes to identifying with particularity the responsible implemented shall not be evicted unless appropriate
party in multilateral and collaborative projects. relocation sites have been provided, in accordance with
the provisions of the Constitution.33
The IRR of the EIS System simply designates the The duty to consult the concerned local government units
responsible party as the proponent. Ordinarily, the and the stakeholders belongs to the national government
proponent is easy to identify - it is the natural or juridical agency or GOCC authorizing or involved in the planning
person intending to implement the project.30 But who ane and implementation of the project - not the private sector
the proponents in PPP Projects which are a collaborative proponent. In this case, this refers to the DOTC.
effort between the government and the private sector?
The LGC does not prohibit the agency from acting through
Republic Act No. 695731 as amended by R.A. 7718, a medium such as the project proponent.34 In fact, the
commonly known as the Build-Operate-Transfer (BOT) required consultation under the LGC may overlap with the
Law, identifies the proponent in a PPP project as "the consultation prescribed under the EIS System. Both are
private sector entity which shall have contractual intended to measure a project's social acceptability and
responsibility for the project"32 Accordingly, there is yet no secure the community's approval before the project's
project proponent responsible for the EIS and the ECC implementation.
until the bidding process has concluded and the contract
has been awarded. However, the agency is responsible for ensuring that: (1)
the concerned LGUs and stakeholders have been
Considering that the Project is still in the bidding stage, the thoroughly and truthfully informed of the objectives of the
petition or continuing mandamus to compel the program and its ecological impact on the community; so
respondents to submit an EIS and secure an ECC is that (2) the community, through their sanggunian, can
premature. It is also misplaced because the public intelligently give their approval to socially acceptable
respondents DO NOT have the duty to submit the EIS or projects and reject the unacceptable ones. These
secure an ECC. requirements must be complied with befor the project is
implemented.
Law on NatRes (84-89) 5

But when does implementation begin? LGC). Accordingly, we cannot issue a writ of continuing
mandamus.
The BOT Law defines the proponent as the private sector
entity with the contractual responsibility over the project.35 The petition does not warrant a writ of Kalikasan.
The contract to a project is executed between the
concerned agency and the winning bidder within seven (7) Likewise, the Court cannot issue a writ of kalikasan based
days from the latter's receipt of the notice from the agency on the petition. The writ is a remedy to anyone whose
that all conditions stated in the Notice of Award have been constitutional right to a balanced and healthful ecology is
complied with.36 violated or threatened with violation by an lawful act or
omission. However, the violation must involve
Upon the signing of the contract, the winning bidder environmental damage of such magnitude as to prejudice
becomes the project proponent. Within another 7 days the life, health, or property of inhabitants in two or more
from the date of approval or signing of the contract by the cities or provinces in order to arrant the issuance of the
head of the Agency, the agency will isjsue a "Notice to writ.42
Commence Implementation" to the proponent.37
Interestingly enough, even this does not signal the start of The petitioners allege that the respondents have begun
the implementation stage. the process of transgressing their right to health and a
balanced ecology through the bidding process.43 They
Upon receipt of the Notice, the proponent is required to cite The Competitiveness of Global Port-Cities: Synthesis
prepare detailed engineering designs and plans based on Report44 to identify the four major negative impacts
the prescribed minimum design and performance related to port operations: 1) environmental impacts, 2)
standards and specifications in the bid/tender land use impacts, 3) traffic impacts, and 4) other impacts.
documents.38 The agency shall review the detailed The synthesis report claims that most of these impacts
engineering designs in terms of its compliance with the affect the surrounding localities.
prescribed standards and specification the designs are
found acceptable, the agency shall approve them They claim that the environmental impacts of port
incorporation in the contract to be signed by the proponent operations "are within the field of air emissions, water
and the agency.39 quality, soil, waste, biodiversity, noise and other impacts.
These environmental impacts can have consequences for
The proponent shall construct the project based on the the health of the population of the port city, especially the
design and performance standards and specifications in poorer parts of port cities."45
the detailed engineering design.40 The signing of the
finalized contract incorporating the detailed engineering The petitioners also cite Managing Impacts of
design is the reckoning point when implementation can Development in Coastal Zone, a joint publication of the
begin. This is the start of the Construction Stage. DENR, the Bureau of Fisheries Aquatic Resources
(BFAR), the Department of the Interior and Government
The Sasa Wharf Modernization Project has not yet (DILG), and the DENR Coastal Resource Management
reached the construction stage. The bidding process had Project (CRMP) that identified the effects of coastal
not even been concluded when ithe present petition was construction and reclam including ports and offshore
filed. On this account, the petition is also premature for the moorings.46 The petition alleges that:
purpose of compelling the respondents to comply with According to Managing Impacts, "Coastal construction has
Sections 26 and 27 of the LGC. been the most widespread of activities affecting coastal
resources" since "Any construction that modifies the
The purpose of a writ of continuing mandamus is to shoreline will invariably change currents, wave action, tidal
compel the espondent to perform his duties under the law. fluctuations, and the transport of sediments along the
This remedy is available When any government agency, coast" while "Coastal construction that restricts the
instrumentality, or officer unlawfully neglects a Specific circulation of coastal water bodies can also degrade water
legal duty in connection with the enforcement or violation quali[t]y and coastal ecosystems."47
of an environmental law, rule, or regulation, or a right However, these allegations are insufficient to warrant a
therein, unlawfully excludes another from the use or writ of kalikasan.
enjoyment of such right and :here is no other plain, speedy
and adequate remedy in the ordinary course of law.41 First, the petition failed to identify the particular threats
from the Project itself. All it does is cite the negative
The writ cannot be resorted to when the respondent is not impacts of operating a port inside a city based on the
the person obliged to perform the duty under the law (as is Synthesis Report. However, these impacts already exist
the case under the EIS System) or when the period for the because the Port of Davao has been operating since
respondent to perform its legal duty has not yet expired 1900. The Project is not for the creation of a new port but
(as is. the case with the consultation requirements of the the modernization of an existing one. At best, the
Law on NatRes (84-89) 6

allegations in support of the application for the writ of Before this Court are consolidated Petitions for Review on
kalikasan are hazy and speculative. Certiorari1 assailing the Decision2 dated January 30, 2013
and the Resolution3 dated May 22, 2013 of the Court of
Second, the joint publication is titled Managing Impacts of Appeals (CA) in CA-G.R. SP No. 00015, entitled "Hon.
Development in the Coastal Zone for a reason; it identifies Teodoro A. Casio, et al. v. Hon. Ramon Jesus P. Paje, et
the potential environmental impacts and proposes al."
mitigation measures to protest the environment. The
petition is misleading because it only identified the isks but Factual Antecedents
neglected to mention the existence and availability of
mitigating measures.48 In February 2006, Subic Bay Metropolitan Authority
(SBMA), a government agency organized and established
Moreover, this Court does not have the technical under Republic Act No. (RA) 7227,4 and Taiwan
competence to ssess the Project, identify the Cogeneration Corporation (TCC) entered into a
environmental threats, and weigh the sufficiency or Memorandum of Understanding (MOU) expressing their
insufficiency of any proposed mitigation measures. This intention to build a power plant in Subic Bay which would
specialized competence is lodged in the DENR, who acts supply reliable and affordable power to Subic Bay
through the EMB In the EIA process. As we have already Industrial Park (SBIP).5
established, the application of the EIS System is
premature until a proponent is selected. On July 28, 2006, SBMA and TCC entered into another
MOU, whereby TCC undertook to build and operatea coal-
Further, we fail to see an environmental risk that threatens fired power plant.6 In the said MOU, TCC identified 20
to prejudice the inhabitants of two or more cities or hectares of land at SitioNaglatore, Mt. Redondo, Subic
municipalities if we do not estrain the conduct of the Bay Freeport Zone (SBFZ) as the suitable area for the
bidding process. The bidding process is not equivalent to project and another site of approximately 10 hectares tobe
the implementation of the project. The bidding process used as an ash pond.7 TCC intends to lease the property
itself 'annot conceivably cause any environmental from SBMA for a term of 50 years with rent fixed at$3.50
damage. per square meter, payable in 10 equal 5-year
installments.8
Finally, it is premature to conclude that the respondents
violated the conditions of Resolution No. 118 issued by the On April 4, 2007, the SBMA Ecology Center issued SBFZ
Regional Development Council of Region XI. Notably, the Environmental Compliance Certificate (ECC) No. EC-
Resolution requires compliance before the implementation SBFZ-ECC-69-21-500 in favor of Taiwan Cogeneration
of the project. Again, the project has not yet reached the International Corporation (TCIC), a subsidiary of TCC,9 for
implementation stage. the construction, installation,and operation of 2x150-MW
Circulating Fluidized Bed (CFB) Coal-Fired Thermal Power
WHEREFORE, we DENY the petition for its prematurity Plant at Sitio Naglatore.10
and lack of merit. SO ORDERED.
HON. RAMON JESUS P. PAJE, in his capacity as On June 6, 2008, TCC assigned all its rights and interests
SECRETARY OF THE DEPARTMENT OF under the MOU dated July 28, 2006 to Redondo Peninsula
ENVIRONMENT AND NATURAL RESOURCES (DENR), Energy, Inc. (RP Energy),11 a corporation duly organized
Petitioner, vs. HON. TEODORO A. CASIO, HON. and existing under the laws of the Philippines with the
RAYMOND V. PALATINO, HON. RAFAEL V. MARIANO, primary purpose of building, owning, and operating
HON. EMERENCIANA A. DE JESUS, CLEMENTE G. powerplants in the Philippines, among others.12
BAUTISTA, JR., HON. ROLEN C. PAULINO, HON. Accordingly, an Addendum to the said MOU was executed
EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. by SBMA and RP Energy.13
AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA
LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA RP Energy then contracted GHD Pty, Ltd. (GHD) to
CHRISTINE GAMBOA ESPINOS, CHARO SIMONS, prepare an Environmental Impact Statement (EIS) for the
GREGORIO LLORCA MAGDARAOG, RUBELH proposed coal-fired power plant and to assist RP Energy
PERALTA, ALEX CORPUS HERMOSO, RODOLFO in applying for the issuance ofan ECC from the
SAMBAJON, REV. FR. GERARDO GREGORIO P. Department of Environment and Natural Resources
JORGE, CARLITO A. BALOY, OFELIA D. PABLO, (DENR).14 On August 27, 2008, the Sangguniang
MARIO ESQUILLO, ELLE LATINAZO, EVANGELINE Q. Panglungsodof Olongapo City issued Resolution No. 131,
RODRIGUEZ, JOHN CARLO DELOS REYES, Series of 2008, expressing the city governments objection
Respondents; G.R. No. 207257 February 3, to the coal-fired power plant as an energy source and
2015 urging the proponent to consider safer alternative sources
ofenergy for Subic Bay.15
Law on NatRes (84-89) 7

On December 22, 2008, the DENR, through former Petition for Writ of Kalikasan against RP Energy, SBMA,
Secretary Jose L. Atienza, Jr., issued an ECC for the and Hon. Ramon Jesus P. Paje, in his capacity as
proposed 2x150-MW coal-fired power plant.16 Secretary of the DENR.28

Sometime thereafter, RP Energy decided to include On July 31, 2012, this Court resolved, among others, to:
additional components in its proposed coal-fired power (1) issue a Writ of Kalikasan; and (2) refer the case to the
plant. Due to the changes in the project design, which CA for hearing and reception of evidence and rendition of
involved the inclusion of a barge wharf, seawater intake judgment.29 While the case was pending, RP Energy
breakwater, subsea discharge pipeline, raw water applied for another amendment to its ECC (third
collection system, drainage channel improvement, and a amendment) and submitted another EPRMP to the DENR-
230kV double-circuit transmission line,17 RP Energy EMB, proposing the construction and operation of a
requested the DENR Environmental Management 2x300-MW coal-fired power plant.30
Bureau(DENR-EMB) to amend its ECC.18 In support of its
request, RP Energy submitted to the DENR-EMBan On September 11, 2012, the Petition for Writ of
Environmental Performance Report and Management Plan Kalikasanwas docketed as CA-G.R. SP No. 00015 and
(EPRMP), which was prepared by GHD.19 raffled to the Fifteenth Division of the CA.31 In the Petition,
the Casio Group alleged, among others, that the power
On June 8, 2010, RP Energy and SBMA entered into a plant project would cause grave environmental damage;32
Lease and Development Agreement (LDA) over a that it would adversely affect the health of the residents of
380,004.456-square meter parcel of land to be used for the municipalities of Subic,Zambales, Morong, Hermosa,
building and operating the coal-fired power plant.20 and the City of Olongapo;33 that the ECC was issued and
the LDA entered into without the prior approval of the
On July 8, 2010, the DENR-EMBissued an amended ECC concerned sanggunians as required under Sections 26
(first amendment) allowing the inclusion ofadditional and 27 of the Local Government Code (LGC);34 that the
components, among others.21 LDA was entered into without securing a prior certification
from the National Commission on Indigenous Peoples
Several months later, RP Energy again requested the (NCIP) as required under Section 59 of RA8371 or the
DENR-EMB to amend the ECC.22 Instead of constructing Indigenous Peoples Rights Act of 1997 (IPRA Law);35
a 2x150-MW coal-fired power plant, as originally planned, that Section 8.3 of DENR Administrative Order No. 2003-
it now sought toconstruct a 1x300-MWcoal-fired power 30 (DAO 2003-30) which allowsamendments of ECCs is
plant.23 In support of its request, RP Energy submitted a ultra viresbecause the DENR has no authority to decide on
Project Description Report (PDR) to the DENR-EMB.24 requests for amendments of previously issued ECCs in the
absence of a new EIS;36 and that due to the nullity of
On May 26, 2011, the DENR-EMB granted the request Section 8.3 of DAO 2003-30, all amendments to RP
and further amended the ECC (second amendment).25 Energys ECC are null and void.37

On August 1, 2011, the Sangguniang Panglalawiganof On October 29, 2012, the CA conducted a preliminary
Zambales issued Resolution No. 2011-149, opposing the conference wherein the parties, with their respective
establishment of a coal-fired thermal power plant at counsels, appeared except for Hon. Teodoro A. Casio,
SitioNaglatore, Brgy. Cawag, Subic, Zambales.26 Hon. Rafael V. Mariano, Hon. Emerencia A. De Jesus,
Clemente G. Bautista, Mario Esquillo, Elle
On August 11, 2011, the Liga ng mga Barangayof Latinazo,Evangeline Q. Rodriguez, and the SBMA.38 The
Olongapo City issued Resolution No. 12, Series of 2011, matters taken up during the preliminary conference were
expressing its strong objection to the coal-fired power embodied in the CAs Resolution dated November 5,
plant as an energy source.27 2012, to wit:

On July 20, 2012, Hon. Teodoro A. Casio, Hon. I. ISSUES


Raymond V. Palatino, Hon. Rafael V. Mariano, Hon.
Emerenciana A. De Jesus, Clemente G. Bautista, Jr., Hon. A. Petitioners (Casio Group)
Rolen C. Paulino,Hon. Eduardo Piano, Hon. James de los
Reyes, Hon. Aquilino Y. Cortez, Jr., Hon. Sarah Lugerna 1. Whether x x x the DENR Environmental Compliance
Lipumano-Garcia, Noraida Velarmino, Bianca Christine Certificate (ECC x x x) in favor of RP Energy for a 2x150
Gamboa Espinos, Charo Simons, Gregorio Llorca MW Coal-Fired Thermal Power Plant Project (Power
Magdaraog, Rubelh Peralta, Alex Corpus Plant, x x x ) and its amendment to 1x300 MW Power
Hermoso,Rodolfo Sambajon, Rev. Fr. Gerardo Gregorio P. Plant, and the Lease and Development Agreement
Jorge, Carlito A. Baloy, Ofelia D. Pablo, Mario Esquillo, between SBMA and RP Energy complied with the
Elle Latinazo, Evangeline Q. Rodriguez, and John Carlo Certification Precondition as required under Section 59 of
delos Reyes (Casio Group) filed before this Court a
Law on NatRes (84-89) 8

Republic Act No. 8371 or the Indigenous Peoples Rights C. Respondent DENR Secretary Paje
Act of 1997 (IPRA Law, x x x);
1. Whether x x x the issuance of the DENR ECC and its
2. Whether x x x RP Energy can proceed with the amendment in favor of RP Energy requires compliance
construction and operation of the 1x300 MW Power Plant with Section 59 of the IPRA Law, as well as Sections 26
without prior consultation with and approval of the and 27 of the Local Government Code;
concerned local government units (LGUs, x x x ),
pursuant to Sections 26 and 27 of Republic Act No. 7160 2. Whether x x x Section 8.3 of DAO No. 2003-30 can be
or the Local Government Code; collaterally attacked in this proceeding; and

3. Whether x x x Section 8.3 of DENRAdministrative Order 3. Whether x x x Section 8.3 of DAO No. 2003-30 is valid.
No. 2003-30 (DAO No. 2003-30, x x x ) providing for the
amendment of an ECC is null and void for being ultra II. ADMISSIONS/DENIALS
vires; and
Petitioners, through Atty. Ridon, admittedall the allegations
4. Whether x x x the amendment of RPEnergys ECC in RP Energys Verified Return, except the following:
under Section 8.3 of DAO No. 2003-30 is null and void.
1. paragraphs 1.4 to 1.7;
B. Respondent RP Energy
2. paragraphs 1.29 to 1.32; and
1. Whether x x x Section 8.3 of DAO No. 2003-30 can be
collaterally attacked; 3. paragraphs 1.33 to 1.37.

1.1 Whether x x x the same is valid until annulled; Petitioners made no specific denial withrespect to the
allegations of DENR Secretary Pajes Verified Return. x x
2. Whether x x x petitioners exhausted their administrative x
remedies with respect to the amended ECC for the 1x300
MW Power Plant; Respondent RP Energy proposed the following
stipulations, which were all admitted by petitioners,
2.1 Whether x x x the instant Petition is proper; through Atty. Ridon, viz:

3. Whether x x x RP Energycomplied with all the 1. The 1x300 MW Power Plant is not yet operational;
procedures/requirements for the issuance of the DENR
ECC and its amendment; 2. At present, there is no environmental damage;

3.1 Whether x x x a Certificate of Non-Overlap from the 3. The 1x300 MW Power Plant project is situated within
National Commission on Indigenous Peoples is applicable the Subic Special Economic Zone; and
in the instant case;
4. Apart from the instant case, petitioners have not
4. Whether x x x the LGUs approval under Sections 26 challenged the validity of Section 8.3 of DAO No. 2003-30.
and 27 of the Local Government Code is necessaryfor the
issuance of the DENR ECC and its amendments, and Public respondent DENR Secretary Paje did not propose
what constitutes LGU approval; any matter for stipulation.39

5. Whether x x x there is a threatened or actual violation of Thereafter, trial ensued.


environmental laws to justify the Petition;
The Casio Group presented three witnesses, namely: (1)
5.1 Whether x x x the approved 1x300 MW Power Plant Raymond V. Palatino, a two-term representativeof the
complied with the accepted legal standards on thermal KabataanPartylist in the House of Representatives;40 (2)
pollution of coastal waters, air pollution, water pollution, Alex C. Hermoso, the convenor of the Zambales-Olongapo
and acid deposits on aquatic and terrestrial ecosystems; City Civil Society Network,a director of the PREDA41
and Foundation, and a member of the Zambales Chapter of
the Kaya NatinMovement and the Zambales Chapter of
6. Whether x x x the instant Petition should be dismissed the People Power Volunteers for Reform;42 and (3)
for failure to comply with the requirements of Ramon Lacbain, the ViceGovernor of the Province of
properverification and certification of nonforum shopping Zambales.43
with respect to some petitioners.
Law on NatRes (84-89) 9

RP Energy presented five witnesses,namely: (1) JunisseP. amendment dated November 15, 2012, the CA decided
Mercado (Ms. Mercado), an employee of GHD and the not to rule on its validity since it was not raised as an issue
Project Directorof ongoing projects for RP Energy during the preliminary conference.60
regarding the proposed power plant project;44 (2) Juha
Sarkki (Engr. Sarkki), a Master of Science degree holder The CA also invalidated the LDA entered into by SBMA
inChemical Engineering;45 (3) Henry K. Wong, a degree and RP Energy as it was issued without the prior
holder of Bachelor of Science Major in Mechanical consultation and approval of all the sanggunians
Engineering from Worcester Polytechnic Institute;46 (4) concerned as required under Sections 26 and 27 of the
Dr. Ely Anthony R. Ouano (Dr. Ouano), a licensed LGC,61 and in violation of Section 59, Chapter VIII ofthe
Chemical Engineer, Sanitary Engineer, and Environmental IPRA Law, which enjoins all departments and other
Planner in the Philippines;47 and (5) David C. Evangelista governmental agencies from granting any lease without a
(Mr. Evangelista), a Business Development Analyst prior certification that the area affected does not overlap
working for RP Energy.48 with any ancestral domain.62 The CA noted that no CNO
was secured from the NCIP prior to the execution of the
SBMA, for its part, presented its Legal Department LDA,63 and that the CNO dated October 31, 2012 was
Manager, Atty. Von F. Rodriguez (Atty. Rodriguez).49 secured during the pendency of the case and was issued
in connection with RP Energys application for a 2x300-
The DENR, however, presented no evidence.50 MW coalfired power plant.64

Meanwhile, on October 31, 2012, a Certificate of Non- Thus, the CA disposed of the case in this wise:
Overlap (CNO) was issued in connection with RP Energys
application for the 2x300-MW coal-fired power plant.51 WHEREFORE, premises considered, judgment is hereby
rendered DENYING the privilege of the writ of kalikasan
On November 15, 2012, the DENR-EMB granted RP and the application for an environmental protection order.
Energys application for the third amendment to its ECC, The prayer to declare the nullity of Section 8.3 of the
approving the construction and operation of a 2x300-MW DENR Administrative Order No. 2003-30 for being ultra
coal-fired power plant, among others.52 vires is DENIED; and the following are all declared
INVALID:
Ruling of the Court of Appeals
1. The Environmental Compliance Certificate (ECC Ref.
On January 30, 2013, the CA rendereda Decision denying Code: 0804-011-4021) dated 22 December 2008 issued in
the privilege of the writ of kalikasanand the application for favor of respondent Redondo Peninsula Energy, Inc. by
an environment protection order due to the failure of the former Secretary Jose L. Atienza, Jr. of the Department of
Casio Group to prove that its constitutional right to a Environment and Natural Resources;
balanced and healthful ecology was violated or
threatened.53 The CA likewise found no reason to nullify 2. The ECC first amendment dated 08 July 2010 and ECC
Section 8.3 ofDAO No. 2003-30. It said that the provision second amendment dated 26 May 2011, both issued in
was not ultra vires,as the express power of the Secretary favor ofrespondent Redondo Peninsula Energy, Inc. by
of the DENR, the Director and Regional Directors of the OIC Director Atty. Juan Miguel T. Cunaof the Department
EMB to issue an ECC impliedly includes the incidental of Environment and Natural Resources, Environmental
power to amend the same.54 In any case, the CA ruled Management Bureau; and
that the validity of the said section could not becollaterally
attacked in a petition for a writ of kalikasan.55 3. The Lease and Development Agreement dated 08 June
2010 entered into by respondents Subic Bay Metropolitan
Nonetheless, the CA resolved to invalidate the ECC dated Authority and Redondo Peninsula Energy, Inc. involving a
December 22, 2008 for non-compliance with Section 59 of parcel of land consisting of P380,004.456 square meters.
the IPRA Law56 and Sections 26 and 27 of the LGC57
and for failure of Luis Miguel Aboitiz (Mr. Aboitiz), Director SO ORDERED.65
of RP Energy, to affix his signature in the Sworn
Statement of Full Responsibility, which is an integral part The DENR and SBMA separately moved for
of the ECC.58 Also declared invalid were the ECC first reconsideration.66 RP Energy filed a Motion for Partial
amendment dated July 8, 2010 and the ECC second Reconsideration,67 attaching thereto a signed Statement
amendment dated May 26, 2011 in view of the failure of of Accountability.68 The Casio Group, on the other hand,
RP Energy to comply with the restrictions set forth in the filed Omnibus Motions for Clarification and
ECC, which specifically require that "any expansion of the Reconsideration.69
project beyond the project description or any change in the
activity x x x shall be subject to a new Environmental On May 22, 2013, the CAissued a Resolution70 denying
Impact Assessment."59 However, as to the ECC third the aforesaid motions for lack of merit. The CA opined that
Law on NatRes (84-89) 10

the reliefs it granted in its Decision are allowed under participants was a clear aversion to the project due to
Section 15, Rule 7 of the Rules of Procedure for environmental, health, economic and socio-cultural
Environmental Cases as the reliefs enumerated therein concerns.80 Finally, it contends that the ECC third
are broad, comprehensive, and nonexclusive.71 In fact, amendment should also be nullified for failure to comply
paragraph (e) of the saidprovision allows the granting of with the procedures and requirements for the issuance of
"such other reliefs" in consonance with the objective, the ECC.81
purpose, and intent of the Rules.72 SBMAs contention
that the stoppage of a project for non-compliance with The DENRs arguments
Section 59 of the IPRA Law may only be done by the
indigenous cultural communities or indigenous peoples The DENR imputes error on the CAin invalidating the ECC
was also brushed aside by the CA as the Casio Group and its amendments, arguing that the determination of the
did not file a case under the IPRA Law but a Petition for a validity of the ECC as well as its amendments is beyond
Writ of Kalikasan, which is available to all natural or the scope of a Petition for a Writ of Kalikasan.82 And even
juridical persons whose constitutional right to a balanced if it is within the scope, there is no reason to invalidate the
and healthful ecology is violated, or threatened to be ECC and its amendments as these were issued in
violated.73 As to RP Energys belated submission of a accordance with DAO No. 2003-30.83 The DENR also
signed Statement of Accountability, the CA gaveno weight insists that contrary to the view of the CA, a new EIS was
and credenceto it as the belated submission of such no longer necessary since the first EIS was still within the
document, long after the presentation of evidence of the validity period when the first amendment was requested,
parties had been terminated, is not in accord with the rules and that this is precisely the reason RP Energy was only
of fair play.74 Neither was the CA swayed by the required to submit an EPRMP in support of its application
argument that the omitted signature of Luis Miguel Aboitiz for the first amendment.84 As to the second amendment,
is a mere formal defect, which does not affect the validity the DENR-EMB only required RP Energy to submit
of the entire document.75 The dispositive portion of the documents to support the proposed revision considering
Resolution reads: WHEREFORE,premises considered, that the change in configuration of the power plant project,
respondents Subic Bay Metropolitan Authoritys Motion for from 2x150MW to 1x300MW, was not substantial.85
Reconsideration dated 18 February 2013, Department of Furthermore, the DENR argues that no permits, licenses,
Environment and Natural Resources Secretary Ramon and/or clearances from other government agencies are
Jesus P. Pajes Motion for Reconsideration dated 19 required in the processing and approval of the ECC.86
February 2013, and Redondo Peninsula Energy, Inc.s Thus, non-compliance with Sections 26 and 27 of the LGC
Motion for Partial Reconsideration dated 22 February as well as Section 59 ofthe IPRA Law is not a ground to
2013, as well as petitioners OmnibusMotions for invalidate the ECC and its amendments.87 The DENR
Clarification and Reconsideration dated 25 February further posits that the ECC is not a concession, permit, or
2013,are all DENIED for lack of merit. license but is a document certifying that the proponent has
complied with all the requirements of the EIS System and
SO ORDERED.76 has committed to implement the approved Environmental
Management Plan.88 The DENR invokes substantial
Unsatisfied, the parties appealed to this Court. justice so that the belatedly submitted certified true copy of
the ECC containing the signature of Mr. Aboitiz on the
The Casio Groups arguments Statement of Accountability may be accepted and
accorded weight and credence.89
The Casio Group, in essence, argues that it is entitled to
a Writ of Kalikasan as it was able to prove that the SBMAs arguments
operation of the power plant would cause environmental
damage and pollution, and that thiswould adversely affect For its part, SBMA asserts that since the CA did not issue
the residents of the provinces of Bataan and Zambales, a Writ of Kalikasan, it should not have invalidated the LDA
particularly the municipalities of Subic, Morong, Hermosa, and that in doing so, the CA acted beyond its powers.90
and the City of Olongapo. It cites as basis RP Energys SBMA likewise puts in issue the legal capacity of the
EIS, which allegedly admits that acid rain may occur in the Casio Group to impugn the validity of the LDA91 and its
combustion of coal;77 that the incidence of asthma attacks failure to exhaust administrative remedies.92 In any case,
among residents in the vicinity of the project site may SBMA contends that there is no legal basis to invalidate
increasedue to exposure to suspended particles from plant the LDA as prior consultation under Sections 26 and 27 of
operations;78 and that increased sulfur oxides (SOx) and the LGC is not required in this case considering that the
nitrogen oxides (NOx) emissions may occur during plant area is within the SBFZ.93 Under RA 7227, it is the SBMA
operations.79 It also claims that when the SBMA which has exclusive jurisdiction over projects and leases
conducted Social Acceptability Policy Consultations with within the SBFZ and that in case of conflict between the
different stakeholders on the proposed power plant, the LGC and RA 7227, it is the latter, a special law, which
results indicated that the overall persuasion of the must prevail.94 Moreover, the lack of prior certification
Law on NatRes (84-89) 11

from the NCIP is alsonot a ground to invalidate a persons whose constitutional right to a balanced and
contract.95 If at all, the only effect of non-compliance with healthful ecology is violated, or threatened with violation
the said requirement under Section 59 of the IPRA Law is by an unlawful act or omission of a public official or
the stoppage or suspension of the project.96 Besides, the employee, or private individual or entity, involving
subsequent issuance of a CNO has cured any legal defect environmental damage of such magnitude as to prejudice
found in the LDA.97 the life, health or property of inhabitants in two or more
cities or provinces.
RP Energys arguments
The writ is categorized as a special civil action and was,
RP Energy questions the proprietyof the reliefs granted by thus, conceptualized as an extraordinary remedy,which
the CA considering that it did not issue a writ of aims to provide judicial relief from threatened or actual
kalikasanin favor of the Casio Group.98 RP Energy is of violation/s of the constitutional right to a balanced and
the view that unless a writ of kalikasanis issued, the CA healthful ecology of a magnitude or degree of damage that
has no power to grant the reliefs prayed for in the transcends political and territorial boundaries.109 It is
Petition.99 And even if it does, the reliefs are limited to intended "to provide a strongerdefense for environmental
those enumerated in Section 15, Rule 7 of the Rules of rights through judicial efforts where institutional
Procedure for Environmental Cases and that the phrase arrangements of enforcement, implementation and
"such other reliefs" in paragraph (e) should be limited only legislation have fallen short"110 and seeks "to address the
to those of the same class or general nature as the four potentially exponential nature of large-scale ecological
other reliefs enumerated.100 As to the validity of the LDA, threats."111
the ECC and its amendments, the arguments of RP
Energy are basically the same arguments interposed by Under Section 1 of Rule 7, the following requisites must be
SBMA and the DENR. RP Energy maintains that the ECC present to avail of this extraordinary remedy: (1) there is
and its amendments were obtained in compliance with the an actual or threatened violation of the constitutional right
DENR rules and regulations;101 that a CNO is not to a balanced and healthful ecology; (2) the actual or
necessary in the execution of anLDA and in the issuance threatened violation arises from an unlawful act or
of the ECC and its amendments;102 and that prior omission of a public official or employee, or private
approval of the local governments, which may be affected individual or entity; and (3) the actual or threatened
by the project, are not required because under RA 7227, violation involves or will lead to an environmental damage
the decision of the SBMA shall prevail in matters affecting of such magnitude as to prejudice the life, health or
the Subic Special Economic Zone (SSEZ), except in property ofinhabitants in two or more cities or provinces.
matters involving defense and security.103 RP Energy
also raises the issue of non-exhaustion of administrative Expectedly, the Rules do not definethe exact nature or
remedies on the part of the Casio Group.104 degree of environmental damage but only that it must be
Preliminaries sufficientlygrave, in terms of the territorial scope of such
damage, so as tocall for the grant ofthis extraordinary
This case affords us an opportunity to expound on the remedy. The gravity ofenvironmental damage sufficient to
nature and scope of the writ of kalikasan. It presents some grant the writ is, thus, to be decided on a case-to-case
interesting questions about law and justice in the context basis.
of environmental cases, which we will tackle in the main
body of this Decision. If the petitioner successfully proves the foregoing
requisites, the court shall render judgment granting the
But we shall first address some preliminary matters, in privilege of the writ of kalikasan. Otherwise, the petition
view of the manner by which the appellate court disposed shall be denied. If the petition is granted, the court may
of this case. grant the reliefs provided for under Section 15of Rule 7, to
wit: Section 15. Judgment.- Within sixty (60) daysfrom the
The Rules on the Writ of Kalikasan,105 which is Part III of time the petition is submitted for decision, the court shall
the Rules of Procedure for Environmental Cases,106 was render judgment granting or denying the privilege of the
issued by the Court pursuant to its power to promulgate writ of kalikasan.
rules for the protection and enforcement of constitutional
rights,107 in particular, the individuals rightto a balanced The reliefs that may be granted under the writ are the
and healthful ecology.108 Section 1 of Rule 7 provides: following:

Section 1. Nature of the writ.- The writ is a remedy (a) Directing respondent to permanently cease and desist
available to a natural or juridical person, entity authorized from committing acts or neglecting the performance of a
by law, peoples organization, nongovernmental duty in violation of environmental laws resulting in
organization, or any public interest group accredited by or environmental destruction or damage;
registered with any government agency, on behalf of
Law on NatRes (84-89) 12

(b) Directing the respondent public official, government The second set of allegations deals with the failureto
agency, private person or entity to protect, preserve, comply with certain laws and rules governing or relating to
rehabilitate or restore the environment; the issuance ofan ECC and amendments thereto. The
Casio Group claims that the ECC was issued in violation
(c) Directing the respondent public official, government of (1) the DENR rules on the issuance and amendment of
agency, private person or entity to monitor strict an ECC, particularly, DAO 2003-30 and the Revised
compliance with the decision and orders of the court; Procedural Manual for DAO 2003-30 (Revised Manual),
(2) Section 59 of the IPRA Law,and (3) Sections 26 and 27
(d) Directing the respondent public official, government of the LGC. In addition, it claims that the LDA entered into
agency, or private person or entity to make periodic between SBMA and RP Energy violated Section 59 of the
reports on the execution of the final judgment; and IPRA Law.

(e) Such other reliefs which relate to the right of the people As to the first set of allegations, involving actual damage to
to a balanced and healthful ecology or to the protection, the environment, it is not difficult to discern that, if they are
preservation, rehabilitation or restoration of the proven, then the Petition for Writ of Kalikasan could
environment, except the award of damages to individual conceivably be granted.
petitioners.
However, as to the second set of allegations, a nuanced
It must be noted, however,that the above enumerated approach is warranted. The power of the courts to nullify
reliefs are non-exhaustive. The reliefs that may be granted an ECC existed even prior to the promulgation of the
under the writ are broad, comprehensive and non- Rules on the Writ of Kalikasanfor judicial review of the acts
exclusive.112 of administrative agencies or bodies has long been
recognized114 subject, of course, to the doctrine of
Prescinding from the above, the DENR, SBMA and RP exhaustion of administrative remedies.115
Energy are one in arguing that the reliefs granted by the
appellate court, i.e.invalidating the ECC and its But the issue presented before us is nota simple case of
amendments, are improper because it had deniedthe reviewing the acts of an administrative agency, the DENR,
Petition for Writ of Kalikasanupon a finding that the Casio which issued the ECC and its amendments. The challenge
Group failed to prove the alleged environmental damage, to the validity ofthe ECC was raised in the context of a writ
actual or threatened, contemplated under the Rules. of kalikasancase. The question then is, can the validity of
an ECC be challenged viaa writ of kalikasan?
Ordinarily, no reliefs could and should be granted. But the
question may be asked, could not the appellate court have We answer in the affirmative subject to certain
granted the Petition for Writ of Kalikasanon the ground of qualifications.
the invalidity of the ECC for failure to comply with certain
laws and rules? As earlier noted, the writ of kalikasanis principally
predicated on an actual or threatened violation of the
This question is the starting point for setting up the constitutional right to a balanced and healthful ecology,
framework of analysis which should govern writ of which involves environmental damage of a magnitude that
kalikasan cases. transcends political and territorial boundaries. A party,
therefore, who invokes the writ based on alleged defects
In their Petition for Writ of Kalikasan,113 the Casio or irregularities in the issuance of an ECC must not only
Groups allegations, relative to the actual or threatened allege and prove such defects or irregularities, but
violation of the constitutional right to a balanced and mustalso provide a causal link or, at least, a reasonable
healthful ecology, may be grouped into two. connection between the defects or irregularities in the
issuance of an ECC and the actual or threatened violation
The first set of allegations deals withthe actual of the constitutional right to a balanced and healthful
environmental damage that will occur if the power plant ecology of the magnitude contemplated under the Rules.
project isimplemented. The Casio Group claims that the Otherwise, the petition should be dismissed outright and
construction and operation of the power plant will result in the action re-filed before the proper forum with due regard
(1) thermal pollution of coastal waters, (2) air pollution due to the doctrine of exhaustion of administrative remedies.
to dust and combustion gases, (3) water pollution from This must be so ifwe are to preserve the noble and
toxic coal combustion waste, and (4) acid deposition in laudable purposes of the writ against those who seek to
aquatic and terrestrial ecosystems, which will adversely abuse it.
affect the residents of the Provinces of Bataan and
Zambales, particularly the Municipalities of Subic, Morong An example of a defect or an irregularity in the issuance of
and Hermosa, and the City of Olongapo. an ECC, which could conceivably warrant the granting of
the extraordinary remedy of the writ of kalikasan, is a case
Law on NatRes (84-89) 13

where there are serious and substantial Peoples (ICCs/IPs) to their ancestral domains. These
misrepresentations or fraud in the application for the ECC, alleged violationscould be the subject of appropriate
which, if not immediately nullified, would cause actual remedies before the proper administrative bodies (like the
negative environmental impacts of the magnitude NCIP) or a separate action to compel compliance before
contemplated under the Rules, because the government the courts, as the case may be. However, the writ of
agenciesand LGUs, with the final authority to implement kalikasan would not be the appropriate remedy to address
the project, may subsequently rely on such substantially and resolve such issues.
defective or fraudulent ECC in approving the
implementation of the project. Be that as it may, we shall resolve both the issues proper
in a writ of kalikasan case and those which are not,
To repeat, in cases of defects or irregularities in the commingled as it were here, because of the exceptional
issuance of an ECC, it is not sufficient to merely allege character of this case. We take judicial notice of the
such defects or irregularities, but to show a causal link or looming power crisis that our nation faces. Thus, the
reasonable connection with the environmental damage of resolution of all the issues in this case is of utmost urgency
the magnitude contemplated under the Rules. In the case and necessity in order to finally determine the fate of the
at bar, no such causal link or reasonable connection was project center of this controversy. If we were to resolve
shown or even attempted relative to the aforesaid second only the issues proper in a writ of kalikasancase and
set of allegations. It is a mere listing of the perceived dismiss those not proper therefor, that will leave such
defects or irregularities in the issuance of the ECC. This unresolved issues open to another round of protracted
would havebeen sufficient reason to disallow the litigation. In any case, we find the records sufficient to
resolution of such issues in a writ of kalikasan case. resolve all the issues presented herein. We also rule that,
due to the extreme urgency of the matter at hand, the
However, inasmuch as this is the first time that we lay present case is an exception to the doctrine of exhaustion
down this principle, we have liberally examined the alleged of administrative remedies.117 As we have often ruled, in
defects or irregularities in the issuance of the ECC and exceptional cases, we can suspend the rules of procedure
find that there is only one group of allegations, relative to in order to achieve substantial justice, and to address
the ECC, that can be reasonably connected to urgent and paramount State interests vital to the life of our
anenvironmental damageof the magnitude contemplated nation.
under the Rules. This is withrespect to the allegation that
there was no environmental impact assessment relative to Issues
the first and second amendments to the subject ECC. If
this were true, then the implementation of the project can In view of the foregoing, we shall resolve the following
conceivably actually violate or threaten to violate the right issues:
to a healthful and balanced ecology of the inhabitants near
the vicinity of the power plant. Thus, the resolution of such 1. Whether the Casio Group was able to prove that the
an issue could conceivably be resolved in a writ of construction and operation of the power plant will cause
kalikasan case provided that the case does not violate, or grave environmental damage.
is anexception to the doctrine of exhaustion of
administrative remedies and primary jurisdiction.116 1.1. The alleged thermal pollution of coastal waters, air
pollution due to dust and combustion gases, water
As to the claims that the issuance of the ECC violated the pollution from toxic coal combustion waste, and acid
IPRA Law and LGC and that the LDA, likewise, violated deposition to aquatic and terrestrial ecosystems that will
the IPRA Law, we find the same not to be within the becaused by the project.
coverage of the writ of kalikasanbecause, assuming there
was non-compliance therewith, no reasonable connection 1.2. The alleged negative environmental assessment of
can be made to an actual or threatened violation of the the project by experts in a report generated during the
right to a balanced and healthful ecology of the magnitude social acceptability consultations.
contemplated under the Rules.
1.3. The alleged admissions of grave environmental
To elaborate, the alleged lackof approval of the concerned damage in the EIS itself of the project.
sanggunians over the subject project would not lead toor is
not reasonably connected with environmental damage but, 2. Whether the ECC is invalid for lackof signature of Mr.
rather, it is an affront to the local autonomy of LGUs. Luis Miguel Aboitiz, as representative of RP Energy, in the
Similarly, the alleged lack of a certificate precondition that Statement of Accountability of the ECC.
the project site does not overlap with an ancestral domain
would not result inor is not reasonably connected with 3. Whether the first and second amendments to the ECC
environmental damage but, rather, it is an impairment of are invalid for failure to undergo a new environmental
the right of Indigenous Cultural Communities/Indigenous
Law on NatRes (84-89) 14

impact assessment (EIA) because of the utilization of adversely affect the residents of the Provinces of Bataan
inappropriate EIA documents. and Zambales, particularly, the Municipalities of Subic,
Morong and Hermosa, and the City of Olongapo, as well
4. Whether the Certificate of Non-Overlap, under Section as the sensitive ecological balance of the area. Their
59 of the IPRA Law, is a precondition to the issuanceof an claims of ecological damage may be summarized as
ECC and the lack of its prior issuance rendered the ECC follows:
invalid.
1. Thermal pollution of coastal waters. Due to the
5. Whether the Certificate of Non-Overlap, under Section discharge of heated water from the operation of the plant,
59 of the IPRA Law, is a precondition to the consummation they claim that the temperature of the affected bodies of
of the Lease and Development Agreement (LDA) between water will rise significantly. This will have adverse effects
SBMA and RPEnergy and the lack of its prior issuance on aquatic organisms. It will also cause the depletion of
rendered the LDA invalid. oxygen in the water. RP Energy claims that there will beno
more than a 3C increase in water temperature but the
6. Whether compliance with Section 27, in relation to Casio Group claims that a 1C to 2C rise can already
Section 26, of the LGC (i.e., approval of the concerned affect the metabolism and other biological functions of
sanggunianrequirement) is necessary prior to the aquatic organisms such asmortality rate and reproduction.
implementation of the power plant project.
2. Air pollution due to dust and combustion gases. While
7. Whether the validity of the third amendment to the ECC the Casio Group admits that Circulating Fluidized Bed
can be resolved in this case. (CFB) Coal technology, which will be used in the power
plant, is a clean technology because it reduces the
Ruling emission of toxic gases, it claims that volatile organic
compounds, specifically, polycyclic aromatic hydrocarbons
The parties to this case appealed from the decision of the (PAHs) will also be emitted under the CFB. PAHs are
appellate court pursuant to Section 16, Rule7 of the Rules categorized as pollutants with carcinogenic and mutagenic
of Procedure for Environmental Cases, viz: characteristics. Carbon monoxide, a poisonous gas, and
nitrous oxide, a lethal global warming gas, will also be
Section 16. Appeal.- Within fifteen (15) days from the date produced.
of notice of the adverse judgment or denialof motion for
reconsideration, any party may appeal to the Supreme 3. Water pollution from toxic coal combustion waste. The
Court under Rule45 of the Rules of Court. The appeal may waste from coal combustion or the residues from burning
raise questions of fact. (Emphasis supplied) pose serious environmental risk because they are toxic
and may cause cancer and birth defects. Their release to
It is worth noting that the Rules on the Writ of Kalikasan nearby bodies of water will be a threatto the marine
allow the parties to raise, on appeal, questions of fact ecosystem of Subic Bay. The project is located in a flood-
and, thus, constitutes an exception to Rule 45 of the Rules prone area and is near three prominent seismic faults as
of Court because ofthe extraordinary nature of the identified by Philippine Institute of Volcanology and
circumstances surrounding the issuance of a writ of Seismology. The construction of an ash pond in an area
kalikasan.118 Thus, we shall review both questions of law susceptible to flooding and earthquake also undermines
and fact in resolving the issues presented in this case. SBMAs duty to prioritize the preservation of the water
quality in Subic Bay.
We now rule on the above-mentioned issues in detail.
4. Acid deposition in aquatic and terrestrial ecosystems.
I. The power plant will release 1,888 tons of nitrous oxides
and 886 tons of sulfur dioxide per year. These oxides are
Whether the Casio Group was able to prove that the responsible for acid deposition. Acid deposition directly
construction and operation of the power plant will cause impacts aquatic ecosystems. It is toxic to fish and other
grave environmental damage. aquatic animals. It will also damage the forests near Subic
Bay as well as the wildlife therein. This will threaten the
The alleged thermal pollution of coastal waters, air stability of the biological diversity of the Subic Bay
pollution due to dust and combustion gases, water Freeport which was declared as one of the ten priority
pollution from toxic coal combustion waste, and acid sites among the protected areas in the Philippines and the
deposition in aquatic and terrestrial ecosystems that will Subic Watershed and Forest Reserve. This will also have
be caused by the project. an adverse effect on tourism.119

As previously noted, the Casio Group alleged that the


construction and operation of the power plant shall
Law on NatRes (84-89) 15

In its January 30, 2013 Decision, the appellate court ruled health effects of a coal-firedpower plant, but only attended
that the Casio Group failed to prove the above seminars and conferences pertaining to climate change;
allegations. and that the scientific studies mentioned in the penultimate
whereas clause of Resolution No. 2011-149 (Exhibit
We agree with the appellate court. "AAAAA") of the Sangguniang Panlalawiganof Zambales
is based on what he read on the internet, seminars he
Indeed, the three witnesses presented by the Casio attended and what he heard from unnamed experts in the
Group are not experts on the CFB technology or on field of environmental protection.
environmental matters. These witnesses even admitted on
cross-examination that theyare not competent to testify on In his Judicial Affidavit (Exhibit "HHHHH"), Palatino stated
the environmental impact of the subject project. What is that he was furnished by the concerned residents the Key
wanting in their testimonies is their technical knowledgeof Observations and Recommendations on the EIS of
the project design/implementation or some other aspects Proposed RPE Project by Rex Victor O. Cruz, and that he
of the project, even those not requiring expertknowledge, merely received and read the five (5) scientific studies and
vis--vis the significant negative environmental impacts articles which challenge the CFB technology. Palatino also
which the Casio Group alleged will occur. Clearly, the testified that: he was only furnished by the petitioners
Casio Group failed to carry the onusof proving the copies of the studies mentioned in his Judicial Affidavit
alleged significant negative environmental impacts of the and he did not participate in the execution, formulation or
project. In comparison, RP Energy presented several preparation of any of the said documents; he does not
experts to refute the allegations of the Casio Group. personally know Rex Cruz or any of the authors of the
studies included in his Judicial Affidavit; he did not read
As aptly and extensively discussed by the appellate court: other materials about coal-fired power plants; he is not
aware of the acceptable standards as far as the operation
Petitioners120 presented three (3) witnesses, namely, of a coal-fired power plant is concerned; petitioner
Palatino, Hermoso, and Lacbain, all of whom are not Velarmino was the one who furnished him copies of the
experts on the CFB technology or even on environmental documents in reference to the MOU and some papers
matters. Petitioners did not present any witness from related to the case; petitioner Peralta was the one who e-
Morong or Hermosa. Palatino, a former freelance writer mailed to him the soft copy ofall the documents [letters (a)
and now a Congressman representing the Kabataan to (o) of his Judicial Affidavit], except the LGU Resolutions;
Partylist, with a degree of BS Education major in Social and he has never been at the actual Power Plant
Studies, admitted that he is not a technical expert. projectsite. It must be noted that petitioners Velarmino and
Hermoso, a Director of the PREDA foundation which is Peralta were never presented as witnesses in this case. In
allegedly involved on environmental concerns, and a addition, Palatino did not identify the said studies but
member of Greenpeace, is not an expert on the matter simplyconfirmed that the said studies were attached to the
subject of this case. He is a graduate of BS Sociology and Petition.
a practicing business director involved in social
development and social welfare services. Lacbain, Indeed, under the rules of evidence, a witness can testify
incumbent ViceGovernor of the Province of Zambales, only to those facts which the witness knows of his orher
anaccounting graduate with a Master in Public personal knowledge, that is, which are derived from the
Administration, was a former BancoFilipino teller, witness own perception. Concomitantly, a witness may
entertainment manager, disco manager, marketing not testify on matters which he or she merely learned from
manager and college instructor, and is also not an expert others either because said witness was told or read or
on the CFB technology. Lacbain also admitted that he is heard those matters. Such testimony is considered
neither a scientist nor an expert on matters of the hearsay and may not be received as proof of the truth of
environment. what the witness has learned. This is known as the
hearsay rule. Hearsay is notlimited to oral testimony or
Petitioners cited various scientific studies or articles and statements; the general rule that excludes hearsay as
websites culled from the internet. However, the said evidence applies to written, as well as oral statements.
scientific studiesand articles including the alleged Key There are several exceptions to the hearsay rule under the
Observations and Recommendations on the EIS of the Rules of Court, among which are learned treatises under
Proposed RPE Project by Rex Victor O. Cruz (Exhibit Section 46 of Rule 130, viz:
"DDDDD") attached to the Petition, were not testified to by
an expert witness, and are basically hearsay in nature and "SEC. 46. Learned treatises. -A published treatise,
cannot be given probative weight. The article purportedly periodical or pamphlet on a subjectof history, law, science,
written by Rex Victor O. Cruz was not even signed by the or art is admissible as tending to prove the truth of a
said author, which fact was confirmed by Palatino. matter stated therein if the court takes judicial notice, or a
Petitioners witness, Lacbain, admitted that he did not witness expert in the subject testifies, that the writer of the
personally conduct any study on the environmental or statement in the treatise, periodical or pamphlet is
Law on NatRes (84-89) 16

recognized in his profession or calling as expert in the steam, which cools and condenses into water
subject." (condensate); the condensate is then pumped back
through a train of feedwater heaters to gradually increase
The alleged scientific studies mentioned in the Petition its temperature beforethis water is introduced to the boiler
cannot be classified as learned treatises. We cannot take to start the process all over again; and CFB technology
judicial notice of the same, and no witness expert in the has advantagesover pulverized coal firing without backend
subjectmatter of this case testified, that the writers of the cleanup systems, i.e., greater fuel flexibility, lower SO2
said scientific studies are recognized in their profession or and NOx emissions. Moreover, Wong testified, inter alia,
calling as experts in the subject. that: CFBs have a wider range of flexibility so they can
environmentally handle a wider range of fuel constituents,
In stark contrast, respondent RP Energy presented several mainly the constituent sulfur; and is capable of handling
witnesses on the CFB technology. different types of coal within the range of the different
fuelconstituents; since CFB is the newer technology than
In his Judicial Affidavit, witness Wong stated that he the PC or stalker fire, it has better environmental
obtained a Bachelor of Science, Major in Mechanical production; 50 percent ofthe electric generation in the
Engineering from Worcester Polytechnic Institute; he is a United States is still produced by coal combustion; and the
Consulting Engineer of Steam Generators of URS; he was CFB absorbs the sulfur dioxide before it is emitted; and
formerly connected with Foster Wheeler where he held the there will be a lower percentage of emissions than any
positions of site commissioning engineer, testing engineer, other technology for the coal.
instrumentation and controls engineer, mechanical
equipment department manager, director of boiler In his Judicial Affidavit, Sarrki, stated that: he is the Chief
performance and mechanical design engineering and Engineer for Process Concept in FosterWheeler; he was a
pulverized coal product director. He explained that: CFB Manager of Process Technology for Foster Wheeler from
stands for Circulating Fluidized Bed; it is a process by 1995 to 2007; and he holds a Master of Science degree in
which fuel is fed to the lower furnace where it is burned in Chemical Engineering.He explained that: CFB boilers will
an upward flow of combustion air; limestone, which is used emit PAHs but only in minimal amounts, while BFB will
as sulfur absorbent, is also fed to the lower furnace along produce higher PAH emissions; PAH is a natural product
with the fuel; the mixture offuel, ash, and the boiler bed of any combustion process; even ordinary burning, such
sorbent material is carried to the upper part of the furnace as cooking or driving automobiles, will have some
and into a cyclone separator; the heavier particles which emissions that are not considered harmful; it is only when
generally consist of the remaining uncombusted fuel and emissions are of a significant level that damage may be
absorbent material are separated in the cyclone separator caused; a CFB technology has minimal PAH emissions;
and are recirculated to the lower furnace to complete the the high combustion efficiency of CFB technology, due to
combustion of any unburned particles and to enhance long residence time of particles inside the boiler, leads to
SO2 capture by the sorbent; fly ash and flue gas exit the minimal emissions of PAH; other factors such as increase
cyclone and the fly ash is collected in the electrostatic in the excess air ratio[,] decrease in Ca/S, as well as
precipitator; furnace temperature is maintained in the decrease in the sulfur and chlorine contents of coal will
range of 800 to 900 C by suitable heat absorbing likewise minimize PAH production; and CFB does not
surface; the fuel passes through a crusher that reduces cause emissions beyond scientificallyacceptable levels.
the size to an appropriate size prior to the introduction into He testified, inter alia, that: the CFB technology is used
the lower furnace along with the limestone; the limestone worldwide; they have a 50% percent share of CFB market
is used as a SO2 sorbent which reacts with the sulfur worldwide; and this will be the first CFB by Foster Wheeler
oxides to form calcium sulfate, an inert and stable in the Philippines; Foster Wheeler manufactures and
material; air fans at the bottom of the furnace create supplies different type[s] of boilers including BFB, but CFB
sufficient velocity within the steam generator to maintain a is always applied on burning coal, so they do not apply
bed of fuel, ash, and limestone mixture; secondary air is any BFB for coal firing; CFB has features which have
also introduced above the bed to facilitate circulation and much better combustion efficiency, much lower emissions
complete combustion of the mixture; the combustion and it is more effective as a boiler equipment; the longer
process generates heat, which then heats the boiler the coal stays inthe combustion chamber, the better it is
feedwater flowing through boiler tube bundles under burned; eight (8) seconds is already beyond adequate but
pressure; the heat generated in the furnace circuit turns it keeps a margin; in CFB technology, combustion
the water to saturated steam which is further heated to technology is uniform throughout the combustion chamber;
superheated steam; this superheated steam leaves the high velocity is used in CFB technology, that is vigorous
CFB boiler and expands through a steam turbine; the mixing or turbulence; turbulence is needed to get contact
steam turbine is directly connected to a generator that between fuel and combustion air; and an important feature
turns and creates electricity; after making its way through of CFB is air distribution.
the steam turbine, the low-pressure steam is exhausted
downwards into a condenser; heat is removed from the
Law on NatRes (84-89) 17

In his Judicial Affidavit, Ouano stated that: he is a licensed plume. Since the area is well-flushed, mixing and dilution
Chemical Engineer, Sanitary Engineer and Environmental of the thermal discharge is expected.
Planner in the Philippines; he is also a chartered
Professional Engineer inAustralia and a member of the It also concluded that corals are less likely to be affected
colleges of environmental engineers and chemical by the cooling water discharge as corals may persist in
engineers of the Institution of Engineers (Australia); he shallow marine waterswith temperatures ranging from
completed his Bachelor in Chemical Engineering in 1970, 18C to 36C. The predicted highest temperature of
Master of Environmental Engineering in 1972 and Doctor 30.75C, from the 0.95C increase in ambient in the
of Environmental Engineering in 1974; he also graduated shallowest (5 m) discharge scenario, is within this
from the University of Sydney Law School with the degree range.122
of Master of Environmental Law in 2002 and PhD in Law
from Macquarie University in 2007. He explained in his In the same vein, Dr. Ouano stated in his Judicial Affidavit:
Judicial Affidavit that: the impacts identified and analyzed
in the EIA process are all potential or likely impacts; there Q: In page 41, paragraph 99 of the Petition, it was alleged
are a larger number of EIA techniques for predicting the that: "x x x a temperature change of 1C to 2C canalready
potential environmental impacts; it is important to note that affect the metabolism and other biological functions of
all those methods and techniques are only for predicting aquatic organisms such as mortality rate and
the potential environmental impacts, not the real impacts; reproduction." What is your expert opinion, if any, on this
almost all environmental systems are non-linear and they matter alleged by the Petitioners?
are subject to chaotic behavior that even the most
sophisticated computer could not predict accurately; and A: Living organisms have proven time and again that they
the actual or real environmental impact could only be are very adaptable to changes in the environment. Living
established when the project is in actual operation. He organisms have been isolated in volcanic vents under the
testified, inter alia, that: the higher the temperature the ocean living on the acidic nutrient soup of sulfur and other
higher the nitrous oxide emitted; in CFB technology, the minerals emitted by the volcano to sub-freezing
lower the temperature, the lower is the nitrogen oxide; and temperature in Antarctica. Asa general rule, metabolism
it still has a nitrogen oxide but not as high as conventional and reproductive activity [increase] with temperature until
coal; the CFB is the boiler; from the boiler itself,different a maximum is reached after which [they decline]. For this
pollution control facilities are going to be added; and for reason, during winter, animals hibernate and plants
the overall plant with the pollution control facilities, the become dormant after shedding their leaves. It is on the
particulate matters, nitrogen oxide and sulfur dioxide are onset of spring that animals breed and plants bloom when
under control. (Citations omitted)121 the air and water are warmer. At the middle of autumn
when the temperature drops to single digit, whales, fish,
We also note that RP Energy controverted in detail the birds and other living organisms, which are capable of
afore-summarized allegations of the Casio Group on the migrating, move to the other end of the globe where spring
four areas of environmental damage that will allegedly is just starting. In the processes of migration, those
occur upon the construction and operation of the power migratory species have to cross the tropics where the
plant: temperature is not just one or two degrees warmer but 10
to 20 degrees warmer. When discussing the impact of 1 to
1. On thermal pollution of coastal waters. 2 degrees temperature change and its impact on the
ecosystem, the most important factors to consider are
As to the extent of the expected rise in water temperature (1) Organism Type specifically its tolerance to
once the power plant is operational, Ms. Mercado stated in temperature change (mammals have higher tolerance); (2)
her JudicialAffidavit thus: Base Temperature it is the temperature over the
optimum temperature such that an increasewill result in
Q: What was the result of the Thermal Plume Modeling the decline in number of the organisms; (3) Mobility or
that was conducted for RP Energy? Space for Migration (i.e., an aquarium with limited space
or an open ocean that the organism can move to a space
A: The thermal dispersion modeling results show that more suited to [a] specific need, such as the migratory
largest warming change (0.95C above ambient) is birds); and (4) Ecosystem Complexity and Succession.
observed in the shallowest (5 m) discharge scenario. The The more complex the ecosystem the more stable it is as
warmest surface temperature change for the deepest (30 succession and adaptation [are] more robust.
m) scenario is 0.18C. All the simulated scenarios comply
with the DAO 90-35 limit for temperature rise of 3C within Normally, the natural variation in water temperature
the defined 70 x 70 m mixing zone. The proposed power between early morning to late afternoon could be several
plant location is near the mouth of Subic Bay, thus the tidal degrees (four to five degrees centigrade and up to ten
currents influence the behavior of thermal discharge degrees centigrade on seasonal basis). Therefore, the
Law on NatRes (84-89) 18

less than one degree centigrade change predicted by the die. And that is why I cited Kingman in his studies of coral
GHD modeling would have minimal impact.123 adaptability [in] the sea ofOman where there was a very
high temperature variation, [they] survived.
On cross-examination, Dr. Ouano further explained
ATTY. AZURA:
ATTY. AZURA:
Would you be aware, Dr. Ouano, if Kingman has done any
x x x When you say Organism Type you mentioned that studies in Subic Bay?
mammals have a higher tolerance for temperature
change? DR. OUANO:

DR. OUANO: Not in Subic Bay but I have reviewedthe temperature


variation, natural temperature variation from the solar side,
Yes. the days side as well as the seasonal variation. There are
two types of variation since temperatures are very critical.
ATTY. AZURA: One is the daily, which means from early morning to
around 3:00 oclock, and the other one is seasonal
What about other types of organisms, Dr. Ouano? Fish for variation because summer, December, January, February
example? are the cold months and then by April, May we are having
warm temperature where the temperature goes around 32-
DR. OUANO: 33 degrees; Christmas time, it drops to around 18 to 20
degrees so it[']sa variation of around seasonal variation of
Well, mammals have high tolerance because mammals 14 degrees although some of the fish might even migrate
are warm[- ]blooded. Now, when it comes to cold[- and that is why I was trying to put in corals because they
]blooded animals the tolerance is much lower. But again are the ones that are really fix[ed]. They are not in a
when you are considering x x x fish [e]specially in open position to migrate in this season.
ocean you have to remember that nature by itself is x x x
very brutal x x x where there is always the prey-predator ATTY. AZURA:
relationship. Now, most of the fish that we have in open
sea [have] already a very strong adaptability To clarify. You said that the most potentially sensitive part
mechanism.And in fact, Kingman back in 1964 x x x of the ecosystem would be the corals. DR. OUANO:
studied the coal reefaround the gulf of Oman where the
temperature variation on day to day basis varied not by 1 Or threatened part because they are the ones [that] are
degree to 2 degrees but by almost 12 degrees centigrade. not in a position to migrate.
Now, in the Subic Bay area which when youre looking at it
between daytime variation, early dawn when it is cold, the ATTY AZURA:
air is cold, the sea temperature, sea water is quite cold.
Then by 3:00 oclock in the afternoon it starts to warm up. In this case, Dr. Ouano, with respectto this project and the
Sothe variation [in the] Subic Bay area is around 2 to 4 projected temperature change, will the corals in Subic Bay
degrees by natural variation from the sun as well as from be affected?
the current that goes around it. So when you are talking
about what the report has said of around 1 degree change, DR. OUANO:
the total impact x x x on the fishes will be minimal. x x x
As far as the outlet is concerned, they have established it
ATTY. AZURA: outside the coral area. By the time it reaches the coral
area the temperature variation, as per the GHD study is
x x x So, you said, Dr. Ouano, that fish, while they have a very small, it[]s almost negligible.
much lower tolerance for temperature variation, are still
very adaptable. What about other sea life, Dr. Ouano, for ATTY AZURA:
example, sea reptiles?
Specifically, Dr. Ouano, what does negligible mean, what
DR. OUANO: level of variation are we talking about?

Thats what I said. The most sensitive part of the marine DR. OUANO:
ecology is physically the corals because corals are non-
migratory, they are fix[ed]. Second[ly] x x x corals are also If you are talking about a thermometer, you might be
highly dependent on sunlight penetration. If they are talking about, normally about .1 degrees centigrade.
exposed out of the sea, they die; if theyare so deep, they Thatsthe one that you could more or less ascertain. x x x
Law on NatRes (84-89) 19

ATTY. AZURA: 272. Q: What other findings resulted from the Air
Dispersion Modeling, if any?
Dr. Ouano, you mentioned in youranswer to the same
question, Question 51, that there is a normal variation in A: It also established that the highest GLC to CleanAir Act
water temperature. In fact, you said there is a variation Standards ratio among possible receptors was located 1.6
throughout the day, daily and also throughout the year, km North NorthEast ("NNE") of the Power Plant Project.
seasonal. Just to clarify, Dr. Ouano. When the power plant Further, this ratio was valued only at 0.434 or less than
causes the projected temperature change of 1 degree to 2 half of the upper limit set out in the Clean Air Act. This
degrees Celsius this will be in addition to existing means that the highest air ambient quality disruption will
variations? What I mean, Dr. Ouano, just so I can happen only 1.6 km NNE of the Power Plant Project, and
understand, how will that work? How will the temperature that such disruption would still be compliant with the
change caused by the power plant work with the existing standards imposed by the Clean Air Act.127
variation? DR. OUANO:
The Casio Group argued, however, that, as stated inthe
There is something like what we call the zonal mixing. This EIS, during upset conditions, significant negative
is an area of approximately one or two hectares where the environmental impact will result from the emissions. This
pipe goes out, the hot water goes out. So that x x x, we claim was refuted by RP Energys witness during cross-
have to accept x x x that [throughout it] the zone will be a examination:
disturb[ed] zone. After that one or two hectares park the
water temperature is well mixed [so] that the temperature ATTY. AZURA:
above the normal existing variation now practically drops
down to almost the normal level.124 If I may refer you to another page of the same annex, Ms.
Mercado, thats page 202 of the same document, the
2. On air pollution due todust and combustion gases. August 2012. Fig. 2-78 appears to show, theres a Table,
Ms. Mercado, the first table, the one on top appears to
To establish that the emissions from the operation of the show a comparison in normal and upset conditions. I
power plant would be compliant with the standards under noticed, Ms. Mercado, that the black bars are much higher
the Clean Air Act,125 Ms. Mercado stated in her Judicial than the bars in normal condition. Can you state what this
Affidavit thus: means?

271. Q: What was the result of the Air Dispersion Modeling MS. MERCADO:
that was conducted for RP Energy?
It means there are more emissions that could potentially
A: The Air Dispersion Modeling predicted that the Power be released when it is under upset condition.
Plant Project will produce the following emissions,which
[are] fully compliant with the standards set by DENR: ATTY. AZURA:

I also noticed, Ms. Mercado, at the bottom part of this


chart there are Receptor IDs, R1, R2, R3 and so forth and
on page 188 of this same document, Annex "9-Mercado,"
there is a list identifying these receptors, for example,
Receptor 6, Your Honor, appears to have been located in
Olongapo City, Poblacion. Just so I can understand, Ms.
Mercado, does that mean that if upset condition[s] were to
occur, the Olongapo City Poblacion will be affected by the
emissions? MS. MERCADO:

All it means is that there will be higher emissions and a


higher ground concentration. But you might want to
alsopay attention to the "y axis," it says there GLC/CAA
[Ground Level Concentration/Clean Air Act limit]. So it
means that even under upset conditions say for R6, the
ground level concentration for upset condition is still
around .1 or 10% percent only of the Clean Air Act limit.
So its still much lower than the limit.

ATTY. AZURA:
Law on NatRes (84-89) 20

But that would mean, would it not, Ms. Mercado, that in the Also, the small-scale test rig utilized in the study does not
event of upset conditions[,] emissionswould increase in the simulate the process conditions (hydrodynamics, heat
Olongapo City Poblacion? transfer characteristics, solid and gas mixing behavior,
etc.) seen in a large scale utility boiler, like those which
MS. MERCADO: would be utilized by the Power Plant Project.

Not emissions will increase. The emissions will be the xxxx


same but the ground level concentration, the GLC, will be
higher if you compare normal versus upset. But even if Q: Aside from residence time of particles and secondary
it[]s under upset conditions, it is still only around 10% air, what other factors, if any, reduce PAH production?
percent of the Clean Air Act Limit.
A: Increase in the excess air ratio will also minimizePAH
xxxx production. Furthermore, decrease in Calcium to Sulfur
moral ratio ("Ca/S"), as well as decrease in the sulfur and
J. LEAGOGO: chlorine contents of coal will likewise minimize PAH
production. This is also based on the study entitled
So you are trying to impress upon this Court that even if "Polycyclic Aromatic Hydrocarbon (PAH) Emissions from a
the plant is in an upset condition, it will emit less than what Coal-Fired Pilot FBC System" by Kunlei Liu, Wenjun Han,
the national standards dictate? Wei-Ping Pan, John T. Riley.

MS. MERCADO: In RP Energys Power Plant Project, the projected coal to


be utilized has low sulfur and chlorine contents minimizing
Yes, Your Honor.128 PAH production. Also, due to optimum conditions for the
in-furnace SO2capture, the Ca/S will be relatively low,
With respect to the claims that the powerplant will release decreasing PAH production.
dangerous PAHs and CO, Engr. Sarrki stated in his
Judicial Affidavit thus: Q: In paragraph 104 of the Petition, it was alleged that
"Carbon monoxide (CO), a poisonous, colorless and
Q: In page 42, paragraph 102 of the Petition, the odorless gas is also produced when there is partial
Petitioners alleged that Volatile Organic Compounds oxidation or when there is not enough oxygen (O2) to form
("VOC") specifically Polycyclic Aromatic Hydrocarbon carbon dioxide (CO2)." What can you say about this?
("PAH") will be emitted even by CFB boilers. What can you
say about this? A: CFB technology reduces the CO emissions of the
Power Plant Project to safe amounts. In fact, I understand
A: Actually, the study cited by the Petitioners does not that the projected emissions level of the Power Plant
apply to the present case because it does not refer to CFB Project compl[ies]with the International Finance
technology. The study refers to a laboratory-scale tubular Corporation ("IFC") standards. Furthermore,
Bubbling Fluidized Bed ("BFB") test rig and not a CFB. characteristics of CFB technology such as long residence
CFB boilers will emit PAHs but only in minimal amounts. time, uniform temperature and high turbulence provide an
Indeed, a BFB will produce higher PAH emissions. effective combustion environment which results [in] lower
and safer CO emissions.
xxxx
Q: I have no further questions for youat the moment. Is
Q: Why can the study cited by Petitioners not apply in the there anything you wish to add to the foregoing?
present case?
A: Yes. PAH is a natural product of ANY combustion
A: The laboratory-scale BFB used in the study only has process. Even ordinary burning, such as cooking or driving
one (1) air injection point and does not replicate the automobiles, will have some emissions that are not
staged-air combustion process of the CFB that RP Energy considered harmful. It is only when emissions are of a
will use. Thisstaged-air process includes the secondary significant level that damage may be caused.
air. Injecting secondary air into the system will lead to
more complete combustion and inhibits PAH production. Given that the Power Plant Project will utilize CFB
There is a study entitled "Polycyclic Aromatic Hydrocarbon technology, it will have minimal PAH emissions. The high
(PAH) Emissions from a Coal-Fired Pilot FBC System" combustion efficiency of CFB technology, due to the long
byKunlei Liu, Wenjun Han, Wei-Ping Pan, John T. Riley residence time of particles inside the boiler, leads to the
found in the Journal of Hazardous Materials B84 (2001) minimal emissions of PAH. Furthermore,other factors such
where the findings are discussed. as increase in the excess air ratio, decrease in Ca/S, as
Law on NatRes (84-89) 21

well as decrease in the sulfur and chlorine contents of coal manufacturing facilities or other local and international
will likewise minimize PAH production. CFB does not industries.
cause emissions beyond scientifically acceptable levels,
and we are confident it will not result in the damage 4.1.50 RP Energy shall also install safety measures to
speculated by the Petitioners.129 insure that waste from burning of coal shall be properly
handled and stored.
3. On water pollution from toxic coal combustion waste.
4.1.51 Bottom ash will be continuously collected from the
With regard to the claim that coal combustion waste furnace and transferred through a series of screw and
produced by the plant will endanger the health of the chain conveyors and bucket elevator to the bottom ash
inhabitants nearby, Dr. Ouano stated in his Judicial silo. The collection and handling system is enclosed to
Affidavit thus: prevent dust generation. Discharge chutes will be installed
at the base of the bottom ash silo for unloading. Open
Q: In page 43, paragraph 110 of the Petition, it was trucks will be used to collect ash through the discharge
alleged that: "[s]olid coal combustion waste is highly toxic chutes. Bottom ash will be sold, and unsold ash will be
and is said to cause birth defects and cancer risks among stored in ash cells. A portion of the bottom ash will be
others x x x." What is your expert opinion, if any, on this reused as bed materialthrough the installation of a bed
matter alleged by the Petitioners? media regeneration system (or ash recycle). Recycled
bottom ash will be sieved using a vibrating screen and
A: Coal is geologically compressed remains of living transported to a bed material surge bin for re-injection into
organisms that roamed the earth several million years ago. the boiler.
In the process of compression, some of the minerals in the
soil, rocks or mud, the geologic media for compression, 4.1.52 Fly ash from the electrostatic precipitator is
are also imparted into the compressed remains. If the pneumatically removed from the collection hopper using
compressing media of mud, sediments and rocks contain compressed air and transported in dry state to the fly ash
high concentration of mercury, uranium, and other toxic silo. Two discharge chutes will be installed at the base of
substances, the coal formed will likewise contain high the fly ash silo. Fly ash can either be dry-transferred
concentration of those substances. If the compressing through a loading spout into an enclosed lorry or truck for
materials have low concentration of those substances, selling, re-cycling, or wet-transferred through a wet
then the coal formed will likewise have low concentration unloader into open dump trucks and transported to ash
of those substances. If the coal does not contain cells. Fly ash discharge will operate in timed cycles, with
excessive quantities of toxic substances, the solid an override function to achievecontinuous discharge if
residues are even used in agriculture to supply required. Fly ash isolation valves in each branch line will
micronutrients and improve the potency of fertilizers. It is prevent leakage and backflow into non-operating lines.
used freely as a fill material in roads and other
construction activities requiring large volume of fill and as 4.1.53 Approximately 120,000m will be required for the
additive in cement manufacture. After all, diamonds that construction of the ash cell. Ash will be stacked along the
people love to hang around their necks and keep close to sloping hill, within a grid of excavations (i.e. cells) with a
the chest are nothing more than the result of special 5m embankment. Excavated soils will be used for
geologic action, as those in volcanic pipes on coal.130 embankment construction and backfill. To prevent
infiltration [of] ash deposits into the groundwater, a clay
RP Energy further argued, a matter which the Casio layer with minimum depth of400mm will be laid at the base
Group did not rebut or refute, that the waste generated by of each cell. For every 1-m depth of ash deposit, a 10-cm
the plant will be properly handled, to wit: soil backfill will be applied to immobilize ash and prevent
migration via wind. Ash cell walls will be lined with high-
4.1.49 When coal is burned in the boiler furnace, two by- density polyethylene to prevent seepage. This procedure
products are generated - bottom and fly ash. Bottom ash and treatment method is in fact suitable for disposal of
consists oflarge and fused particles that fall to the bottom toxic and hazardous wastes although fly ash is not
of the furnace and mix with the bed media.Fly ash includes classified as toxic and hazardous materials.131
finegrained and powdery particles that are carried away by
flue gas into the electrostatic precipitator, which is then Anent the claims that the plant is susceptible to
sifted and collected. These by-products are non- earthquake and landslides, Dr. Ouano testified thus:
hazardous materials. In fact, a coal power plants Fly Ash,
Bottom Ash and Boiler Slag have consequent beneficial J. LEAGOGO:
uses which "generate significant environmental, economic,
and performance benefits." Thus, fly ash generated during In terms of fault lines, did you study whether this project
the process will be sold and transported to cement site is in any fault line?
Law on NatRes (84-89) 22

DR. OUANO: 4. On acid deposition in aquatic and terrestrial


There are some fault linesand in fact, in the Philippines it ecosystems.
is very difficult to find an area except Palawan where there
is no fault line within 20 to 30 [kilometers]. But then fault Relative to the threat of acid rain, Dr. Ouano stated in his
lines as well as earthquakes really [depend] upon your Judicial Affidavit, thus:
engineering design. I mean, Sto. Tomas University has
withstood all the potential earthquakes we had in Manila[,] Q: In page 44, paragraph 114 of the Petition, it was
even sometimes it[]s intensity 8 or so because the design alleged that "the coalfired power plant will release 1,888
for it back in 1600 they are already using what we call tons of nitrous oxides (NOx) per year and 886 tons of
floating foundation. So if the engineering side for it[,] sulfur dioxide (SO2) per year. These oxides are the
technology is there to withstand the expected fault line precursors to the formation of sulfuric acid and nitric acid
[movement]. J. LEAGOGO: which are responsible for acid deposition." Whatis your
expert opinion on this matter alleged by the Petitioners?
What is the engineering side of the project? You said UST
is floating. A: NO2 is found in the air, water and soil from natural
processes such as lightning, bacterial activities and
DR. OUANO: geologic activities as well as from human activities such as
The foundation, that means to say you dont break power plants and fertilizer usage in agriculture. SO2 is
also found in air, water and soil from bacterial, geologic
J. LEAGOGO: and human activities. NO2 and SO2 in the air are part of
Floating foundation. What about this, what kind of the natural nitrogen and sulfur cycle to widely redistribute
foundation? and recycle those essential chemicals for use by plants.
Without the NO2 and SO2 in the air, plant and animal life
DR. OUANO: would be limited to small areas of this planet where
It will now depend on their engineering design, the type of nitrogen and sulfur are found in abundance. With intensive
equipment agricultural practices, nitrogen and sulfur are added in the
soil as fertilizers.
J. LEAGOGO:
No, but did you read it in their report? Acid rain takes place when the NO2 and SO2
concentration are excessive or beyond those values set in
DR. OUANO: It[]s not there in their report because it will the air quality standards. NO2 and SO2 in the air in
depend on the supplier, the equipment supplier. concentrations lower than those set in the standards have
beneficial effect to the environment and agriculture and
J. LEAGOGO: are commonly known as micronutrients.133
So it[]s not yet there?
On clarificatory questions from the appellate court, the
DR. OUANO: matter was further dissected thus:
It[]s not yet there in the site but it is also covered inour
Building Code what are the intensities of earthquakes J. LEAGOGO:
expected of the different areas in the Philippines.
x x x The project will release 1,888 tons of nitrous oxide
J. LEAGOGO: per year. And he said, yes; that witness answered, yes,
itwill produce 886 tons of sulfur dioxide per year. And he
Have you checked our geo-hazard maps in the Philippines also answered yes, that these oxides are the precursors to
to check on this project site? the formation of sulfuric acid and nitric acid. Now my
clarificatory question is, with this kind of releases there will
DR. OUANO: be acid rain?

Yes. It is included there in the EIA Report. DR. OUANO:

J. LEAGOGO: No.

It[]s there? J. LEAGOGO:

DR. OUANO: Why?

It[]s there.132 DR. OUANO:


Law on NatRes (84-89) 23

Because it[]s so dilute[d].


J. LEAGOGO:
J. LEAGOGO:
So being an expert, whatwill be the concentration of this
It will? kind of 1,888 tons of nitrous oxide? What will be the
concentration in terms of your?
DR. OUANO:
DR. OUANO:
Because the acid concentration is so dilute[d] so that it is
not going to cause acid rain. If the concentration is in excess ofsomething like 8,000
micrograms per standard cubic meters, then there
J. LEAGOGO: isalready potential for acid rain.

The acid concentration is so diluted that it will not cause J. LEAGOGO:


acid rain?
I am asking you, Dr. Ouano, you said it will release 1,888
DR. OUANO: tons of nitrous oxide?

Yes . DR. OUANO:

J. LEAGOGO: Yes .

What do you mean it[]s so diluted? How will it be diluted? J. LEAGOGO:

DR. OUANO: In terms of concentration, what will that be?

Because it[]s going to be mixed withthe air in the DR. OUANO:


atmosphere; diluted in the air in the atmosphere. And
besides this 886 tons, this is not released in one go, it is In terms of the GHD study that will result [in] 19 milligrams
released almost throughout the year. per standard cubic meters and the time when acid rain will
start [is when the concentration gets] around 8,000
J. LEAGOGO: milligrams per standard cubic meters. So we have 19
compared to 8,000. So weare very, very safe.
You also answered in Question No. 61, "acid raintakes
place when the NO2 AND SO2 concentration are J. LEAGOGO:
excessive." So whendo you consider it as excessive?
What about SO2?
DR. OUANO:
DR. OUANO:
That is something when you are talking about acid
SO2, we are talking about ... youwont mind if I go to my
J. LEAGOGO: codigo. For sulfur dioxide this acid rain most likely will start
at around 7,000 milligrams per standard cubic meter but
In terms of tons of nitrous oxide and tons of sulfur oxide, then sorry, it[]s around 3,400 micrograms per cubic
when do you consider it as excessive? meter. That is the concentration for sulfur dioxide, and in
our plant it will be around 45 micrograms per standard
DR. OUANO: cubic meter. So the acid rain will start at 3,400 and the
emission is estimated here to result to concentration of
It is in concentration not on tons weight, Your Honor. 45.7 micrograms.

J. LEAGOGO: J. LEAGOGO:

In concentration? That is what GHD said in their report.

DR. OUANO: DR. OUANO:

In milligrams per cubic meter, milligrams per standard Yes. So that is the factor of x x x safety that we have.134
cubic meter.
Law on NatRes (84-89) 24

Apart from the foregoing evidence, wealso note that the proper coal type that will not cause significant negative
above and other environmental concerns are extensively environmental impacts.
addressed in RP Energys Environmental Management
Plan or Program(EMP). The EMP is "a section in the EIS The alleged negative environmental
that details the prevention, mitigation, compensation, assessment of the project by experts in a
contingency and monitoring measures to enhance positive report generated during the social
impacts and minimize negative impacts and risks of a acceptability consultations
proposed project or undertaking."135 One of the
conditions of the ECC is that RP Energy shall strictly The Casio Group also relies heavily on a report on the
comply with and implement its approved EMP. The Casio social acceptability process of the power plant project to
Group failed to contest, with proof, the adequacy of the bolster itsclaim that the project will cause grave
mitigating measures stated in the aforesaid EMP. environmental damage. We purposely discuss this matter
in this separate subsection for reasons which will be made
In upholding the evidence and arguments of RP Energy, clear shortly.
relative to the lack of proof as to the alleged significant
environmental damage that will be caused by the project, But first we shall present the pertinent contents of this
the appellate court relied mainly on the testimonies of report.
experts, which we find to be in accord withjudicial
precedents. Thus, we ruled in one case: According to the Casio Group, from December 7 to 9,
2011, the SBMA conducted social acceptabilitypolicy
Although courts are not ordinarily bound by testimonies of consultations with different stakeholders on RP Energys
experts, they may place whatever weight they choose proposed 600 MW coal plant project at the Subic Bay
upon such testimonies in accordance with the facts of the Exhibition and Convention Center. The results thereof are
case. The relative weight and sufficiency of expert contained in a document prepared by SBMA entitled "Final
testimony is peculiarly within the province of the trial court Report: Social Acceptability Process for RP Energy, Inc.s
to decide, considering the ability and character of the 600-MW Coal Plant Project" (Final Report). We notethat
witness, his actions upon the witness stand, the weight SBMA adopted the Final Report as a common exhibit with
and process of the reasoning by which he has supported the Casio Group in the course of the proceedings before
his opinion, his possible bias in favor of the side for whom the appellate court.
he testifies,the fact that he is a paid witness, the relative
opportunities for study and observation of the matters The Final Report stated that there was a clear aversion to
about which he testifies, and any other matters which the concept of a coal-fired power plant from the
serve to illuminate his statements. The opinion of the participants. Their concerns included environmental,
expert may not be arbitrarily rejected; it isto be considered health, economic and socio-cultural factors. Pertinent to
by the court in view of all the facts and circumstances in this case is the alleged assessment, contained in the Final
the case and when common knowledge utterly fails, the Report, of the potential effects of the project by three
expert opinion may be given controlling effects (20 Am. experts: (1) Dr. Rex Cruz (Dr. Cruz), Chancellor of the
Jur., 1056-1058). The problem of the credibility of the University of the Philippines, Los Baos and a forest
expert witness and the evaluation of his testimony is left to ecology expert, (2) Dr. Visitacion Antonio, a toxicologist,
the discretion of the trial court whose ruling thereupon is who related information as to public health; and (3) Andre
not reviewable inthe absence of an abuse of that Jon Uychiaco, a marine biologist.
discretion.136
The Final Report stated these expertsalleged views on the
Hence, we sustain the appellate courts findings that the project, thus:
Casio Group failed to establish the alleged grave
environmental damage which will be caused by the IV. EXPERTS OPINION
construction and operation of the power plant.
xxxx
In another vein, we, likewise, agree with the
observationsof the appellate court that the type of coal The specialists shared the judgment that the conditions
which shall be used in the power plant has important were not present to merit the operation of a coal-fired
implications as to the possible significant negative power plant,and to pursue and carry out the project with
environmental impacts of the subject project.137 However, confidence and assurance that the natural assets and
there is no coal supply agreement, as of yet, entered into ecosystems within the Freeport area would not be unduly
by RP Energy with a third-party supplier. In accordance compromised, or that irreversible damage would not occur
with the terms and conditions of the ECC and in and that the threats to the flora and fauna within the
compliance with existing environmental laws and immediate community and its surroundings would be
standards, RP Energy is obligated to make use of the adequately addressed. The three experts were also of the
Law on NatRes (84-89) 25

same opinion that the proposed coal plant project would


pose a wide range of negative impacts on the iii. To effectively determine the impacts on environment
environment, the ecosystems and human population within and health; and
the impact zone.
iv. To ensure a complete and comprehensive impacts
The specialists likewise deemed the Environment Impact zone study.
Assessment (EIA) conducted by RPEI to be incomplete
and limited in scope based on the following observations: The specialists also urged the SBMA to conduct a
Comprehensive Cost And Benefit Analysis Of The
i. The assessment failed to include areas 10km. to 50km. Proposed Coal Plant Project Relative To Each
from the operation site, although according tothe panel, Stakeholder Which Should Include The Environment As
sulfur emissions could extend as far as 40-50 km. Provider Of Numerous Environmental Goods And
Services.
ii. The EIA neglected to include other forests in the
Freeport in its scope and that there were no specific They also recommended an Integrated/Programmatic
details on the protection of the endangered flora and Environmental Impact Assessmentto accurately determine
endemic fauna in the area. Soil, grassland, brush land, the environmental status of the Freeport ecosystem as
beach forests and home gardens were also apparently not basis and reference in evaluating future similar projects.
included in the study. The need for a more Comprehensive Monitoring System
for the Environment and Natural Resourceswas also
iii. The sampling methods used inthe study were limited reiterated by the panel.138
and insufficient for effective long-term monitoring of
surface water, erosion control and terrestrial flora and Of particular interest are the alleged key observations of
fauna. Dr. Cruz on the EIS prepared by RP Energy relative to the
project:
The specialists also discussed the potential effects of an
operational coalfired power plant [on] its environs and the Key Observations and Recommendations on the EIS of
community therein. Primary among these were the Proposed RPE Project
following:
Rex Victor O. Cruz
i. Formation of acid rain, which would adversely affect the
trees and vegetation in the area which, in turn, would Based on SBMA SAP on December 7-9, 2011
diminish forest cover. The acid rain would apparently
worsen the acidity of the soil in the Freeport. 1. The baseline vegetation analysis was limited only within
the project site and its immediate vicinity. No vegetation
ii. Warming and acidification of the seawater in the bay, analysis was done in the brushland areas in the peninsula
resulting in the bio-accumulationof contaminants and toxic which is likely to be affected in the event acid rain forms
materials which would eventually lead to the overall due to emissions from the power plant.
reduction of marine productivity.
2. The forest in the remaining forests inthe Freeport was
iii. Discharge of pollutants such as Nitrous Oxide, Sodium not considered as impact zone as indicated by the lack
Oxide, Ozone and other heavy metals suchas mercury ofdescription of these forests and the potential impacts the
and lead to the surrounding region, which would adversely project might have on these forests. This appears to be a
affect the health of the populace in the vicinity. key omission in the EIS considering that these forests are
well within 40 to 50 km away from the site and that there
V. FINDINGS are studies showing that the impacts of sulphur emissions
can extend as far as 40 to 50 km away from the source.
Based on their analyses of the subject matter, the
specialists recommended that the SBMA re-scrutinize the 3. There are 39 endemic fauna and 1 endangered plant
coal-fired power plant project with the following goals in species (Molave) in the proposed project site. There will
mind: be a need to make sure that these species are protected
from being damaged permanently in wholesale.
i. To ensure its coherence and compatibility to [the] SBMA Appropriate measures such as ex situconservation and
mandate, vision, mission and development plans, translocation if feasible must be implemented.
including its Protected Area Management Plan;
4. The Project site is largely in grassland interspersed with
ii. To properly determine actual and potential costs and some trees. These plants if affected by acid rain or by
benefits; sulphur emissions may disappear and have consequences
Law on NatRes (84-89) 26

on the soil properties and hydrological processes in the 12. The monitoring plan for terrestrial flora and fauna is not
area. Accelerated soil erosion and increased surface clear on the frequency of measurement. More importantly,
runoff and reduced infiltration of rainwater into the soil. the proposed method of measurement (sampling transect)
while adequate for estimating the diversity of indices for
5. The rest of the peninsula is covered with brushland but benchmarking is not sufficient for long[-]term monitoring.
were never included as part of the impact zone. Instead, long[-]term monitoringplots (at least 1 hectare in
size) should be established to monitor the long[-]term
6. There are home gardens along the coastal areas of the impacts of the project on terrestrial flora and fauna.
site planted to ornamental and agricultural crops which are
likely to be affected by acid rain. 13. Since the proposed monitoring of terrestrial flora and
fauna is limited to the vicinity of the project site, it will be
7. There is also a beach forest dominated by aroma, talisai useful not only for mitigating and avoiding unnecessary
and agoho which will likely be affectedalso by acid rain. adverse impacts ofthe project but also for improving
management decisions if long[-]term monitoring plots for
8. There are no Environmentally Critical Areas within the 1 the remaining natural forests in the Freeport are
km radius from the project site. However, the established. These plots will also be useful for the study of
OlongapoWatershed Forest Reserve, a protected area is the dynamic interactions of terrestrial flora and fauna with
approximately 10 kmsouthwest of the projectsite. climate change, farming and other human activities and
Considering the prevailing wind movement in the area, this the resulting influences on soil, water, biodiversity, and
forest reserve is likely to be affected by acid rain if it other vital ecosystem services in the Freeport.139
occurs from the emission of the power plant. This forest
reserve is however not included as partof the potential We agree with the appellate court that the alleged
impact area. statements by these experts cannot be given weight
because they are hearsay evidence. None of these
9. Soil in the project site and the peninsula is thin and alleged experts testified before the appellate court to
highly acidic and deficient in NPK with moderate to severe confirm the pertinent contents of the Final Report. No
erosion potential. The sparse vegetation cover in the reason appears in the records of this case as to why the
vicinity of the projectsite is likely a result of the highly Casio Group failed to present these expert witnesses.
acidic soil and the nutrient deficiency. Additional acidity
may result from acid rain that may form in the area which We note, however, that these statements, on their face,
could further make it harder for the plants to grow in the especially the observations of Dr. Cruz, raise serious
area that in turn could exacerbate the already severe objections to the environmental soundness of the project,
erosion in the area. 10. There is a need to review the specifically, the EIS thereof.It brings to fore the question of
proposalto ensure that the proposed project is consistent whether the Court can, on its own, compel the testimonies
with the vision for the Freeport as enunciated in the SBMA of these alleged experts in order to shed light on these
Master Plan and the Protected Area Management Plan. matters in view of the rightat stake not just damage to
This will reinforce the validity and legitimacy of these plans the environment but the health, well-being and,ultimately,
as a legitimate framework for screening potential locators the livesof those who may be affected by the project.
in the Freeport. Itwill also reinforce the trust and
confidence of the stakeholders on the competence and The Rules of Procedure for Environmental Cases liberally
authority of the SBMA that would translate in stronger provide the courts with means and methods to obtain
popular support to the programs implemented in the sufficient information in order to adequately protect
Freeport. orsafeguard the right to a healthful and balanced ecology.
In Section 6 (l)140 of Rule 3 (Pre-Trial), when there is a
11. The EGF and Trust Fund (Table 5.13) should be made failure to settle, the judge shall, among others, determine
clear that the amounts are the minimum amount and that the necessity of engaging the services of a qualified expert
adequate funds will be provided by the proponent as as a friend of the court (amicus curiae). While, in Section
necessary beyond the minimum amounts. Furthermore the 12141 of Rule 7 (Writ of Kalikasan), a party may avail of
basis for the amounts allocated for the items (public discovery measures: (1) ocular inspection and (2)
liability and rehabilitation) in Trust Fund and in EGF (tree production or inspection of documents or things. The
planting and landscaping, artificial reef establishment) liberality of the Rules in gathering and even compelling
must be clarified. The specific damages and impacts that information, specifically with regard to the Writ of
will be covered by the TF and EGF must also be Kalikasan, is explained in this wise: [T]he writ of
presented clearly at the outset to avoid protracted kalikasanwas refashioned as a tool to bridge the gap
negotiations in the event of actual impacts occurring in the between allegation and proof by providing a remedy for
future. would-be environmental litigants to compel the production
of information within the custody of the government. The
writ would effectively serve as a remedy for the
Law on NatRes (84-89) 27

enforcement of the right to information about the therein would seem to suggest points for improvement in
environment. The scope of the fact-finding power could be: the operation and monitoring of the project,but they do not
(1) anything related to the issuance, grant of a government clearly show why such recommendations are
permit issued or information controlled by the government indispensable for the project to comply with existing
or private entity and (2) [i]nformation contained in environmental laws and standards, or how non-
documents such as environmental compliance certificate compliance with such recommendations will lead to an
(ECC) and other government records. In addition, the [w]rit environmental damage of the magnitude
may also be employed to compel the production of contemplatedunder the writ of kalikasan. Again, these
information, subject to constitutional limitations. This statements do not state with sufficient particularity how the
function is analogous to a discovery measure, and may be EMP in the EIS failed to adequately address these
availed of upon application for the writ.142 concerns.

Clearly, in environmental cases, the power toappoint Fourth, because the reason for the non-presentation of the
friends of the court in order to shed light on matters alleged expert witnesses does not appear on record, we
requiring special technical expertise as well as the power cannot assume that their testimonies are being unduly
to order ocular inspections and production of documents suppressed.
or things evince the main thrust of, and the spirit behind,
the Rules to allow the court sufficient leeway in acquiring By ruling that we do not find a sufficiently compelling
the necessary information to rule on the issues presented reason to compel the taking of the testimonies of these
for its resolution, to the end that the right toa healthful and alleged expert witnesses in relation to their serious
balanced ecology may be adequately protected. To draw a objections to the power plant project, we do not foreclose
parallel, in the protection of the constitutional rights of an the possibility that their testimonies could later on be
accused, when life or liberty isat stake, the testimonies of presented, in a proper case, to more directly, specifically
witnesses may be compelled as an attribute of the Due and sufficientlyassail the environmental soundness of the
Process Clause. Here, where the right to a healthful and project and establish the requisite magnitude of actualor
balanced ecology of a substantial magnitude is at stake, threatened environmental damage, if indeed present. After
should we not tread the path of caution and prudence by all, their sense ofcivic duty may well prevail upon them to
compelling the testimonies of these alleged experts? voluntarily testify, if there are truly sufficient reasons tostop
the project, above and beyond their inadequate claims in
After due consideration, we find that, based on the the Final Report that the project should not be pursued. As
statements in the Final Report, there is no sufficiently things now stand,however, we have insufficient bases to
compelling reason to compel the testimonies of these compel their testimonies for the reasons already proffered.
alleged expert witnesses for the following reasons.
The alleged admissions of grave
First, the statementsare not sufficiently specificto point to environmental damage in the EIS of the
us a flaw (or flaws) in the study or design/implementation project.
(or some other aspect) of the project which provides a
causal link or, at least, a reasonable connection between In their Omnibus Motions for Clarification and
the construction and operation ofthe project vis--vis Reconsideration before the appellate court and Petition for
potential grave environmental damage. In particular, they Review before thisCourt, the Casio Group belatedly
do not explain why the Environmental Management Plan claims that the statements in the EIS prepared by
(EMP) contained in the EIS of the project will RPEnergy established the significant negative
notadequately address these concerns. environmental impacts of the project. They argue in this
manner:
Second, some of the concerns raisedin the alleged
statements, like acid rain, warming and acidification of the Acid Rain
seawater, and discharge of pollutants were, as previously
discussed, addressed by the evidence presented by RP 35. According to RP Energys Environmental Impact
Energy before the appellate court. Again, these alleged Statement for its proposed 2 x 150 MW Coal-Fired
statements do not explain why such concerns are not Thermal Power Plant Project, acid rain may occur in the
adequately covered by the EMP of RP Energy. combustion of coal, to wit x x x x

Third, the key observations of Dr. Cruz, while concededly During the operation phase, combustion of coal will result
assailing certain aspects of the EIS, do not clearly and in emissions of particulates SOx and NOx. This may
specifically establish how these omissions have led to the contribute to the occurrence of acid rain due to elevated
issuance of an ECC that will pose significant negative SO2 levels in the atmosphere. High levels of NO2
environmental impacts once the project is constructed and emissions may give rise to health problems for residents
becomes operational. The recommendations stated within the impact area.
Law on NatRes (84-89) 28

place to prevent these ill effects. Quite clearly, the Casio


xxxx Group quoted piecemeal the EIS in sucha way as to
mislead this Court as to its true and full contents.
Asthma Attacks
We deplore the way the Casio Group has argued this
36. The same EPRMP143 mentioned the incidence of point and we take this time to remind it that litigants should
asthma attacks [as a] result of power plant operations, to not trifle withcourt processes. Along the same lines, we
wit note how the Casio Group has made serious allegations
in its Petition for Writ of Kalikasanbut failed to substantiate
xxxx the same in the course of the proceedings before the
appellate court. In particular, during the preliminary
The incidence of asthma attacks among residents in the conference of this case, the Casio Group expressly
vicinity of the project site may increase due to exposure to abandoned its factual claims on the alleged grave
suspended particulates from plant operations.144 environmental damage that will be caused by the power
plant (i.e., air, water and land pollution) and, instead,
RP Energy, however, counters that the above portions of limited itself to legal issues regarding the alleged non-
the EIS were quoted out of context. As to the subject of compliance of RP Energy with certain laws and rules in the
acid rain, the EIS states in full: procurement of the ECC.147 We also note how the Casio
Group failed to comment on the subject Petitions before
Operation this Court, which led this Court to eventually dispense with
its comment.148 We must express our disapproval over
During the operation phase, combustion of coal will result the way it has prosecuted itsclaims, bordering as it does
in emissions of particulates, SOx and NOx. This may on trifling with court processes. We deem itproper,
contribute to the occurrence of acid rain due to elevated therefore, to admonishit to be more circumspect in how it
SO2 levels in the atmosphere. High levels of NO2 prosecutesits claims.
emissions may give rise to health problems for residents
within the impact area. Emissions may also have an effect In sum, we agree with the appellate court that the Casio
onvegetation (Section 4.1.4.2). However, the use of CFBC Group failed to substantiate its claims thatthe construction
technology is a built-in measure that results in reduced and operation of the power plant will cause environmental
emission concentrations. SOx emissions will beminimised damage of the magnitude contemplated under the writ of
by the inclusion of a desulfurisation process, whilst NOx kalikasan. The evidence it presented is inadequate to
emissions will be reduced as the coal is burned at a establish the factual bases of its claims.
temperature lower than that required to oxidise
nitrogen.145 (Emphasis supplied) II.

As to the subject of asthma attacks, the EIS states in full: Whether the ECC is invalid for lack of signature of Mr. Luis
Miguel Aboitiz (Mr. Aboitiz), as representative of RP
The incidence of asthma attacks among residents in the Energy, in the Statement of Accountability of the ECC.
vicinity of the project site may increase due to exposureto
suspended particulates from plant operations. Coal and The appellate court ruled that the ECC is invalid because
ash particulates may also become suspended and Mr. Aboitiz failed to sign the Statement of Accountability
dispersed into the air during unloading and transport, portion of the ECC.
depending on wind speed and direction. However, effect
on air quality due to windblown coal particulates will be We shall discuss the correctness ofthis ruling on both
insignificant as the coal handling system will have procedural and substantive grounds. Procedurally, we
enclosures (i.e. enclosed conveyors and coal dome) to cannot fault the DENR for protesting the manner by which
eliminate the exposure of coal to open air, and therefore the appellate court resolved the issue of the aforesaid lack
greatly reduce the potential for particulates from being of signature. We agree with the DENR that this issue was
carried away by wind (coalhandling systems, Section not among those raised by the Casio Group in its Petition
3.4.3.3). In addition, the proposed process will include an for Writ of Kalikasan.149 What is more, this was not one of
electrostaticprecipitator that will remove fly ash from the the triable issues specificallyset during the preliminary
flue gas prior to its release through the stacks, and so conference of this case.150
particulates emissions will be minimal.146 (Emphasis
supplied) How then did the issue oflack of signature arise?

We agree with RP Energy that, while the EIS discusses A review of the voluminous records indicates that the
the subjects of acid rain and asthma attacks, it goes on to matterof the lack of signature was discussed, developed or
state that there are mitigating measures that will be put in
Law on NatRes (84-89) 29

surfaced only inthe course of the hearings, specifically, on


clarificatory questions from the appellate court, to wit: Please tell the Court why this was not signed by Mr. Luis
Miguel Aboitiz, the Statement of Accountability?
J. LEAGOGO:
Because the Statement of Accountability says, "Mr. Luis
I would also show to you your ECC, thats page 622 of the Miguel Aboitiz, Director, representing Redondo Peninsula
rollo. I am showing to you this Environmental Compliance Energy with office address located at 110 Legaspi Street,
Certificate dated December 22, 2008 issued by Sec. Jose Legaspi Village, Makati City, takes full responsibility in
L. Atienza, Jr. of the DENR. This is your "Exhibit "18." complying with all conditions in thisEnvironmental
Would you like to go over this? Are you familiar with this Compliance Certificate [ECC][.]" Will you tell this Court
document? why this was not signed?

MS. MERCADO: MS. MERCADO:

Yes, it[]s my Annex "3," Your Honor. It was signed, Your Honor, but this copy wasnt signed. My
apologies, I was the one who provided this, I believe, to
J. LEAGOGO: the lawyers. This copy was not signed because during.

I would like to refer you to page 3 of the ECC dated J. LEAGOGO:


December 22, 2008. Page 2 refers to the Environmental
Compliance Certificate, ECC Ref. No. 0804-011-4021. But this is your exhibit, this is yourExhibit "18" and this is
Thats page 2 of the letter dated December 22, 2008. And not signed. Do you agree with me that your Exhibit "18" is
on page 3, Dr. Julian Amador recommended approval and not signed by Mr. Aboitiz?
it was approved by Sec. Atienza. You see that on page 3?
MS. MERCADO:
MS. MERCADO:
Thats correct, Your Honor.151
Yes, Your Honor.
We find this line of questioning inadequate to apprise the
J. LEAGOGO: parties that the lack of signature would be a key issue in
this case; as in fact it became decisive in the eventual
Okay. On the same page, page 3, theres a Statement of invalidation of the ECC by the appellate court.
Accountability.
Concededly, a court has the power to suspend its rules of
MS. MERCADO: procedure in order to attain substantial justice so that it
has the discretion, in exceptional cases, to take into
Yes, Your Honor. consideration matters not originally within the scope of the
issues raised in the pleadings or set during the preliminary
J. LEAGOGO: conference, in order to prevent a miscarriage of justice. In
the case at bar, the importance of the signature cannot be
Luis, who is Luis Miguel Aboitiz? seriously doubted because it goes into the consent and
commitment of the project proponent to comply with the
MS. MERCADO: conditions of the ECC, which is vital to the protection of
the right to a balanced and healthful ecology of those who
During that time he was the authorized representative of may be affected by the project. Nonetheless, the power of
RP Energy, a court tosuspend its rules of procedure in exceptional
cases does not license it to foist a surprise on the parties
Your Honor. in a given case. To illustrate, in oral arguments before this
Court, involving sufficiently important public interest cases,
J. LEAGOGO: we note that individual members of the Court, from time to
time, point out matters that may not have been specifically
Now, who is the authorized representative of RP Energy? covered by the advisory (the advisory delineates the
issues to be argued and decided). However, a directive is
MS. MERCADO: given to the concerned parties to discuss the aforesaid
matters in their memoranda. Such a procedure ensures
It would be Mr. Aaron Domingo, I believe. that, at the very least, the parties are apprised that the
Court has taken an interest in such matters and may
J. LEAGOGO: adjudicate the case on the basis thereof. Thus, the parties
Law on NatRes (84-89) 30

are given an opportunity to adequately argue the issue or EIA Review Committee (EIARC) through Technical
meet the issue head-on. We, therefore, find that the Scoping, both with the participation of the DENR-EMB.
appellate court should have, at the very least, directed RP The process results in a signed Formal Scoping Checklist
Energy and the DENR to discuss and elaborate on the by the review team, with final approval by the EMB Chief.
issue of lack of signature in the presentation of their
evidence and memoranda, beforemaking a definitive ruling EIA STUDY and
that the lack thereof invalidated the ECC.This is in keeping 3.0 REPORT
with the basic tenets of due process. PREPARATION

At any rate, we shall disregard the procedural defect and The EIA Studyinvolves a description of the proposed
rule directly on whether the lack of signature invalidated project and its alternatives, characterization of the project
the ECC in the interest of substantial justice. environment, impact identification and prediction,
evaluation of impact significance, impact mitigation,
The laws governing the ECC, i.e., PresidentialDecree No. formulation of Environmental Management and Monitoring
(PD) 1151 and PD 1586, do not specifically state that the Plan, withcorresponding cost estimates and institutional
lack of signature in the Statement of Accountability has the support commitment. The study results are presented in
effect of invalidating the ECC. Unlike in wills or donations, an EIA Reportfor which an outline is prescribed by EMB
where failure to comply withthe specific form prescribed by for every major document type
law leads to its nullity,152 the applicable laws here are
silentwith respect to the necessity of a signature in the EIA REPORT
Statement of Accountability and the effect of the lack 4.0 REPORT and
thereof. This is, of course, understandable because the EVALUATION
Statement of Accountability is a mere off-shoot of the rule-
making powers of the DENR relative tothe implementation Review of EIA Reportsnormally entails an EMB procedural
of PD 1151 and PD 1586. To determine, therefore, the screening for compliance with minimum requirements
effect of the lack of signature, we must look atthe specified during Scoping, followed by a substantive review
significance thereof under the Environmental Impact of either composed third party experts commissioned by
Assessment (EIA) Rules of the DENR and the surrounding EMB as the EIA Review Committee for PEIS/EIS-based
circumstances of this case. applications, or DENR/EMB internal specialists, the
Technical Committee, for IEE-based applications. EMB
To place this issue in its proper context, a helpful overview evaluates the EIARC recommendations and the publics
of the stages of the EIA process, taken from the Revised inputs during public consultations/hearings in the process
Manual, is reproduced below: of recommending a decision on the application. The
EIARC Chair signs EIARC recommendations including
Figure 1-3 Overview of Stages of the Philippine EIA issues outside the mandate of the EMB. The entire EIA
Process153 review and evaluation process is summarized in the
Review Process Report (RPR) of the EMB, which includes
1.0 SCREENING a draft decision document.

Screeningdetermines if a project is covered or not covered 5.0 DECISION


by the PEISS.154 If a project is covered, screening further MAKING
determines what document type the project should
prepare to secure the needed approval, and what the rest Decision Making involves evaluation of EIA
of the requirements are in terms of EMB office of recommendations and the draft decision document,
application, endorsing and decision authorities, duration of resulting to the issuance of an ECC, CNC or Denial Letter.
processing. When approved, a covered project is issued its certificate
of Environmental Compliance Commitment (ECC) while an
2.0 SCOPING application of a non-covered project is issued a Certificate
of Non-Coverage (CNC). Endorsing and deciding
Scopingis a Proponent-driven multi-sectoral formal authorities are designated by AO 155 42, and further
process of determining the focused Terms of Reference of detailed in this Manual for every report type. Moreover, the
the EIA Study. Scoping identifies the most significant Proponent signs a sworn statement of full responsibility on
issues/impacts of a proposed project, and then, delimits implementation of its commitments prior to the release of
the extent of baseline information to those necessary to the ECC. 156 The ECC is then transmitted to concerned
evaluate and mitigate the impacts. The need for and scope LGUs and other GAs for integration into their
of an Environmental Risk Assessment (ERA) is also done decisionmaking process. The regulated part of EIA Review
during the scoping session. Scoping is done with the local is limited to the processes within EMB control. The
community through Public Scoping and with a third party timelines for the issuance of decision documents provided
Law on NatRes (84-89) 31

for in AO 42 and DAO 2003-30 are applicable only from


the time the EIA Report is accepted for substantive review Contrary to RP Energys position, we, thus, find that the
to the time a decision is issued on the application. signature of the project proponents representative in the
Statement of Accountability is necessary for the validity of
MONITORING. the ECC. It is not, as RP Energy would have it, a mere
6.0 VALIDATION, and formality and its absence a mere formal defect.
EVALUATION/
AUDIT The question then is, was the absence of the signature of
Monitoring, Validation and Evaluation/Audit stage Mr. Aboitiz, as representative of RP Energy, in the
assesses performance of the Proponent against the ECC Statement of Accountability sufficient ground to invalidate
and itscommitments in the Environmental Management the ECC?
and Monitoring Plans to ensure actual impacts of the
project are adequately prevented or mitigated. Viewed within the particular circumstances of this case, we
answer in the negative.
The signing of the Statement of Accountability takes
placeat the Decision Making Stage. After a favorable While it is clear that the signing of the Statement of
review of its ECC application, the project proponent, Accountability is necessary for the validity ofthe ECC, we
through its authorized representative, is made to sign a cannot close oureyes to the particular circumstances of
sworn statement of full responsibility on the this case. So often have we ruled that this Court is not
implementation ofits commitments prior to the official merely a court of law but a court of justice. We find that
release of the ECC. there are several circumstances present in this case which
militate against the invalidation of the ECC on this ground.
The definition of the ECC in the Revised Manual highlights
the importance of the signing of the Statement of We explain.
Accountability:
First, the reason for the lack of signature was not
Environmental Compliance Certificate (ECC) - a certificate adequately taken into consideration by the appellate court.
of Environmental Compliance Commitment to which the To reiterate, the matter surfaced during the hearing of this
Proponent conforms with, after DENR-EMB explains the case on clarificatory questions by the appellate court, viz:
ECC conditions, by signing the sworn undertaking of full
responsibility over implementation of specified measures J. LEAGOGO:
which are necessary to comply with existing environmental
regulations or to operate within best environmental Please tell the Court why this was not signed by Mr. Luis
practices that are not currently covered by existing laws. It Miguel Aboitiz, the Statement of Accountability?
is a document issued by the DENR/EMB after a positive
review of an ECC application, certifying that the Proponent Because the Statement of Accountability says, "Mr. Luis
has complied with all the requirements of the EIS System Miguel Aboitiz, Director, representing Redondo Peninsula
and has committed to implement its approved Energy with office address located at 110 Legaspi Street,
Environmental Management Plan. The ECC also provides Legaspi Village, Makati City, takes full responsibility in
guidance to other agencies and to LGUs on EIA findings complying with all conditions in this Environmental
and recommendations, which need to be considered in Compliance Certificate [ECC][.]" Will you tell this Court
their respective decision-making process.157 (Emphasis why this was not signed?
supplied)
MS. MERCADO:
As can be seen, the signing of the Statement of
Accountabilityis an integral and significant component of It was signed, Your Honor, but this copy wasnt signed. My
the EIA process and the ECC itself. The evident intention apologies, I was the one who provided this, I believe, to
is to bind the project proponentto the ECC conditions, the lawyers. This copy was not signed because during
which will ensure that the project will not cause significant
negative environmental impacts by the "implementation of J. LEAGOGO:
specified measures which are necessary to comply with
existing environmental regulations or tooperate within best But this is your exhibit, this is yourExhibit "18" and this is
environmental practices that are not currently covered by not signed. Do you agree with me that your Exhibit "18" is
existing laws." Indeed, the EIA process would be a not signed by Mr. Aboitiz?
meaningless exercise if the project proponent shall not be
strictly bound to faithfully comply withthe conditions MS. MERCADO:
necessary toadequately protect the right of the people to a
healthful and balanced ecology. Thats correct, Your Honor.158 (Emphasis supplied)
Law on NatRes (84-89) 32

because of the inadequacy of the evidence and arguments


Due to the inadequacy of the transcriptand the apparent presented, relative to the issue of lack of signature, in view
lack of opportunity for the witness to explain the lack of of the manner this issue arose in this case, as previously
signature, we find that the witness testimony does not, by discussed. Absent such proof, we are not prepared to rule
itself, indicate that there was a deliberate or malicious that the procedure adopted by the DENR was done with
intent not to sign the Statement of Accountability. bad faithor inexcusable negligence but we remind the
DENR to be more circumspect in following the rules it
Second, as previously discussed, the concerned parties to provided in the Revised Manual. Thus, we rule that the
this case, specifically, the DENR and RP Energy, werenot signature requirement was substantially complied with pro
properly apprised that the issue relative to the lack of hac vice.
signature would be decisive inthe determination of the
validity of the ECC. Consequently, the DENR and Fourth, we partly agree with the DENRthat the subsequent
RPEnergy cannot be faulted for not presenting proof letter-requests for amendments to the ECC, signed by Mr.
during the course ofthe hearings to squarely tackle the Aboitiz on behalf of RP Energy, indicate its implied
issue of lack of signature. conformity to the ECC conditions. In practical terms, if
future litigation should occur due to violations of the ECC
Third, after the appellate court ruled in its January 30, conditions, RP Energy would be estopped from denying its
2013 Decision that the lack of signature invalidated the consent and commitment to the ECC conditions even if
ECC,RP Energy attached, to its Motion for Partial there was no signature in the Statement of Accountability.
Reconsideration, a certified true copy of the ECC, issued However, we note that the Statement of Accountability
by the DENREMB, which bore the signature of Mr. Aboitiz. precisely serves to obviate any doubt as to the consent
The certified true copy of the ECC showed that the and commitment of the project proponent to the ECC
Statement of Accountability was signed by Mr. Aboitiz on conditions. At any rate, the aforesaid letter-requests do
December 24, 2008.159 additionally indicate RP Energys conformity to the ECC
conditions and, thus, negate a pattern to maliciously evade
The authenticity and veracity of this certified true copy of accountability for the ECC conditions or to intentionally
the ECC was not controverted by the Casio Group in create a "loophole" in the ECC to be exploited in a
itscomment on RP Energys motion for partial possible futurelitigation over non-compliance with the ECC
reconsideration before the appellate court nor in their conditions.
petition before this Court. Thus, in accordance with the
presumption of regularity in the performance of official In sum, we rule that the appellate court erred when it
duties, it remains uncontroverted that the ECC on file with invalidated the ECC on the ground of lack of signature of
the DENR contains the requisite signature of Mr. Aboitiz in Mr. Aboitiz in the ECCs Statement of Accountability
the Statement of Accountability portion. relative to the copy of the ECC submitted by RP Energy to
the appellate court. While the signature is necessary for
As previously noted, the DENR and RPEnergy were not the validity of the ECC, the particular circumstances of this
properly apprised that the issue relative to the lack case show that the DENR and RP Energy were not
ofsignature would be decisive in the determination of the properly apprised of the issue of lack ofsignature in order
validity of the ECC. As a result, we cannot fault RP Energy for them to present controverting evidence and arguments
for submitting the certified true copy of the ECC only after on this point, as the matter only developed during the
it learned that the appellate court had invalidated the ECC course of the proceedings upon clarificatory questions
on the ground of lack ofsignature in its January 30, 2013 from the appellate court. Consequently, RP Energy cannot
Decision. be faulted for submitting the certified true copy of the ECC
only after it learned that the ECC had been invalidated on
We note, however, that, as previously discussed, the the ground of lack of signature in the January 30, 2013
certified true copy of the Statement of Accountability was Decision of the appellate court.
signed by Mr. Aboitiz on December 24, 2008 or two days
after the ECCs official release on December 22, 2008. The certified true copy of the ECC, bearing the signature
The aforediscussed rules under the Revised Manual, of Mr. Aboitiz in the Statement of Accountability portion,
however, state that the proponent shall sign the sworn was issued by the DENR-EMB and remains
statement of full responsibility on implementation of its uncontroverted. Itshowed that the Statement of
commitments priorto the release of the ECC. Itwould seem Accountability was signed by Mr. Aboitiz on December 24,
that the ECC was first issued, then it was signed by Mr. 2008. Although the signing was done two days after the
Aboitiz, and thereafter, returned to the DENR to serve as official release of the ECC on December 22, 2008, absent
its file copy. Admittedly, there is lack of strict compliance sufficient proof, we are not prepared to rule that the
with the rules although the signature ispresent. Be thatas it procedure adoptedby the DENR was done with bad faith
may, we find nothing in the records to indicate that this or inexcusable negligence. Thus, werule that the signature
was done with bad faith or inexcusable negligence requirement was substantially complied with pro hac vice.
Law on NatRes (84-89) 33

III.
(d) a determination that the short-term uses of the
Whether the first and second amendments to the ECC are resources of the environment are consistent with the
invalid for failure to undergo a new environmental impact maintenance and enhancement of the longterm
assessment (EIA) because of the utilization of productivity of the same; and
inappropriate EIA documents.
(e) whenever a proposal involves the use of depletable or
Upholding the arguments of the Casio Group, the non-renewable resources, a finding must be made that
appellate court ruled that the first and second such use and commitment are warranted.161
amendments tothe ECC were invalid because the ECC
contained an express restriction that any expansion of the To further strengthen and develop the EIS, PD1586 was
project beyond the project description shall be the subject promulgated, which established the Philippine
of a new EIA. It found that both amendments failed to Environmental Impact Statement System (PEISS). The
comply with the appropriate EIA documentary PEISS is "a systems-oriented and integrated approach to
requirements under DAO 2003-30 and the Revised the EIS system to ensure a rational balance between
Manual. In particular, it found that the Environmental socio-economic development and environmental
Performance Report and Management Plan (EPRMP) and protection for the benefit of present and future
Project Description Report (PDR), which RP Energy generations."162 The ECC requirement ismandated under
submitted tothe DENR, relative to the application for the Section 4 thereof:
first and second amendments, respectively, were not the
proper EIA document type. Hence, the appellate court SECTION 4. Presidential Proclamation ofEnvironmentally
ruled that the aforesaid amendments were invalid. Critical Areas and Projects. The President of the
Philippines may, on his own initiative or upon
Preliminarily, we must state that executive actions carry recommendation of the National Environmental Protection
presumptive validity so that the burden of proof is on the Council, by proclamation declare certain projects,
Casio Group to show that the procedure adopted bythe undertakings or areas in the country as environmentally
DENR in granting the amendments to the ECC were done critical. No person, partnership or corporation shall
with grave abuse of discretion. More so here because the undertake or operate any such declared environmentally
administration of the EIA process involves special critical project or area without first securing an
technical skill or knowledge which the law has specifically Environmental Compliance Certificate issued by the
vested in the DENR. President or his dulyauthorized representative. x x x
(Emphasis supplied)
After our own examination of DAO 2003-30 and the
Revised Manual as well as the voluminous EIA documents The PEISS consists of the Environmental Impact
of RP Energy appearing in the records of this case, we Assessment (EIA) process, which is mandatory for private
find that the appellate court made an erroneous orpublic projects thatmay significantly affect the quality of
interpretation and application of the pertinent rules. the environment. It involves evaluating and predicting the
likely impacts of the project on the environment, designing
We explain. appropriate preventive, mitigating and enhancement
measures addressing these consequences to protect the
As a backgrounder, PD 1151 set the Philippine environment and the communitys welfare.163
Environment Policy. Notably, this law recognized the right
ofthe people to a healthful environment.160 Pursuant PD 1586 was implemented by DAO 2003-30 which, in
thereto, in every action, project or undertaking, which turn, set up a system or procedure to determine when a
significantly affects the quality of the environment, all project is required to secure an ECC and when it is not.
agencies and instrumentalities of the national government, When an ECC is not required, the project proponent
including government-owned or -controlled corporations, procures a Certificate of Non-Coverage (CNC).164 As part
as well as private corporations, firms, and entities were of the EIA process, the project proponent is required to
required to prepare, file and include a statement (i.e., submit certain studies or reports (i.e., EIA document type)
Environmental Impact Statement or EIS) containing: to the DENR-EMB, which willbe used in the review
process in assessing the environmental impact of the
(a) the environmental impact of the proposed action, project and the adequacy of the corresponding
project or undertaking; environmental management plan or program to address
such environmental impact. This will then be part of the
(b) any adverse environmental effect which cannot be bases to grant or deny the application for an ECC or CNC,
avoided should the proposal be implemented; as the case may be.

(c) alternative to the proposed action;


Law on NatRes (84-89) 34

Table 1-4 of the Revised Manual summarizes the required The present controversy, however, revolves around, not
EIA document type for each project category. It classifies a an application for an ECC, but amendments thereto.
project as belonging to group I, II, III, IV or V, where:
RP Energy requested the subject first amendment to its
I- Environmentally Critical Projects (ECPs) in either ECC due to its desire to modify the project design through
Environmentally Critical Area (ECA) or Non- the inclusion of a barge wharf, seawater intake
Environmentally Critical Area (NECA), breakwater, subsea discharge pipeline, raw water
collection system, drainage channel improvement and a
II- Non-Environmentally Critical Projects (NECPs) in ECA, 230-kV double transmission line. The DENR-EMB
determined that this was a major amendment and, thus,
III- NECPs in NECA, required RP Energy to submit an EPRMP.

IV- Co-located Projects, and The Casio Group argued, and the appellate court
sustained, that an EPRMP is not the correct EIA document
V- Unclassified Projects. type based on the definition of an EPRMP in DAO 2003-30
and the Revised Manual.
The aforesaid table then further classifies a project, as
pertinent to this case, as belonging to category A,B or C, In DAO 2003-30, an EPRMP is defined as:
where:
Environmental Performance Report and Management Plan
A- new; (EPRMP) documentation of the actual cumulative
environmental impacts and effectiveness of current
B- existing projects for modification or re-start up; and measures for single projects that are already operating but
without ECC's, i.e., Category A-3. For Category B-3
C- operating projects without an ECC. projects, a checklist form of the EPRMP would suffice;171
(Emphasis supplied)
Finally, the aforesaid table considers whether the project is
single or co-located.165 After which, it states the Further, the table in Section 5 of DAO 2003-30 states that
appropriateEIA document typeneeded for the application an EPRMP is required for "A-2: Existing and to
for an ECC or CNC, as the case may be. beexpanded (including undertakings that have stopped
operations for more than 5 years and plan to re-start with
The appropriate EIA document type vis--vis a particular or without expansion) and A-3: Operating without ECC."
project depends on the potential significant environmental
impact of the project. At the highest level would be an On the other hand, the Revised Manual delineates when
ECP, such as the subject project. The hierarchy of EIA an EPRMP is the proper EIA document type, thus:
document type, based on comprehensiveness and detail
of the study or report contained therein, insofar as single For operating projects with previous ECCs but planning or
projects are concerned, is as follows: applying for clearance to modify/expand or re-start
operations, or for projects operating without an ECCbut
1. Environmental Impact Statement166 (EIS), applying to secure one to comply with PD 1586
regulations, the appropriate document is not an EIS but an
2. Initial Environmental Examination167 (IEE) Report, EIA Report incorporating the projects environmental
performance and its current Environmental Management
3. Initial Environmental Examination168 (IEE) Checklist Plan. This report isx x x anx x x Environmental
Report, Performance Report and Management Plan (EPRMP) for
single project applications x x x172 (Emphasis supplied)
4. Environmental Performance Report and Management
Plan169 (EPRMP), and In its "Glossary," the Revised Manual defines an EPRMP
as:
5. Project Description170 (PD) or Project Description
Report (PDR). Environmental Performance Report and Management Plan
(EPRMP) - documentation of the actual cumulative
Thus, in the course of RP Energys application for anECC, environmental impacts and effectiveness of current
it was required by the DENR-EMB to submit an EIS measures for single projects that are already operating but
because the subject project is: an ECP, new and a single without ECCs.173 (Emphasis supplied)
project.
Finally, Table 1-4, in the Revised Manual, states that an
EPRMP is required for "Item I-B: Existing Projects for
Law on NatRes (84-89) 35

Modification or Re-start up (subject to conditions in Annex requirements shall be decided upon by the endorsing
2-1c) and I-C: Operating without ECC." authority.

From these definitions and tables, an EPRMP is, thus, the 8.3.2. Requests for major changes to ECCs shall be
required EIA document type for an ECP-single project decided upon by the deciding authority.
which is:
8.3.3. For ECCs issued pursuant to an IEE or IEE
1. Existing and to be expanded (including undertakings checklist, the processing of the amendment application
that have stopped operations for more than 5 years and shall not exceed thirty (30) working days; and for ECCs
plan to re-start with or without expansion); issued pursuant to an EIS, the processing shall not exceed
sixty (60) working days. Provisions on automatic approval
2. Operating but without ECCs; related to prescribed timeframes under AO 42 shall also
apply for the processing of applications to amend ECCs.
3. Operating projects with previous ECCs but planning or (Emphasis supplied)
applying for clearance to modify/expand orre-start
operations; and Implementing the afore-quoted section, the Revised
Manual pertinently states in Section 2.2, paragraph 16:
4. Existing projects for modification or re-start up.
16) Application Process for ECC Amendments
It may be observed that, based from the above, DAO2003-
30 and the Revised Manual appear to use the terms Figure 2-4 presents how Proponents may request for
"operating"and "existing" interchangeably. In the case at minor or major changes in their ECCs. Annex 2-1c
bar, the subject project has not yet been constructed provides a decision chart for the determination of
although there have been horizontal clearing operations at requirements for project modifications, particularly for
the project site. delineating which application scenarios will require
EPRMP (which will be subject to Figure 2-1 process) or
On its face, therefore, the theory of the Casio Group, as other support documentations (which will be subject to
sustained by the appellate court that the EPRMP is not Figure 2-4 process). Figure 2-4, in turn, provides:
the appropriate EIA document type seems plausible
because the subject project is not: (1) operating/existing Figure 2-4. Flowchart on Request for ECC
with a previous ECC but planning or applying for Amendments175
modification or expansion, or (2) operating but without an
ECC. Instead, the subject project is an unimplemented or Scenario 1: Request for Minor Amendments
a non-implemented, hence,non-operating project with a
previous ECC but planning for modification or expansion. 1. Typographical error

The error in the above theory lies in the failure to consider 2. Extension of deadlines for submission of post-ECC
or trace the applicable provisions of DAO 2003-30 and the requirement/s
Revised Manual on amendments to an ECC.
3. Extension of ECC validity
The proper starting point in determining the validity of the
subject first amendment, specifically, the propriety of the 4. Change in company name/ownership
EIA document type (i.e., EPRMP) which RP Energy
submitted in relation to its application for the aforesaid 5. Decrease in land/project area or production capacity
amendment, must of necessity be the rules on
amendments to an ECC.174 This is principally found in 6. Other amendments deemed
Section 8.3,Article II of DAO 2003-03, viz:
"minor" at the discretion of the
8.3 Amending an ECC EMB CO/RO Director

Requirements for processing ECC amendments shall Scenario 2: Request for Major Amendments
depend on the nature of the request but shall be focused
on the information necessary to assess the environmental 1. Expansion of project area w/in catchment described in
impact of such changes. EIA

8.3.1. Requests for minor changes to ECCs such as 2. Increase in production capacity or auxiliary component
extension of deadlines for submission of post-ECC of the original project
Law on NatRes (84-89) 36

3. Change/s in process flow or technology


3
4. Addition of new product
4
5. Integration of ECCs for similar or dissimilar but
contiguous projects (NOTE: ITEM#5 IS PROPONENTS
OPTION, NOT EMBS) ECC-endorsing Authority decides on the Letter-Request,
based on CH recommendation
6. Revision/Reformatting of ECC Conditions
ECC-endorsing/issuing Authority (per Table 1-4) decides
7. Other amendments deemed "major" at the discretion of on Letter Requests/EPRMP/PEPRMP/Other documents
the EMB CO/RO Director based on EMB CH and/or Tech/Review Committee
recommendations.
1 [Start] 1[Start]
Within three (3) years from ECC issuance (for projects not Maximum Processing Time to Issuance of Decision
started)176 OR at any time during project implementation,
the Proponent prepares and submits to the ECC- Max Processing Time to Issuance of Decision
endorsing DENR-EMB office a LETTER-REQUEST for
ECC amendment, including data/information, reports or EMB CO
documents to substantiate the requested revisions.
7 workdays

CO PEPRMP

2 CO EPRMP
Within three (3) years from ECC issuance (for projects not
started)177 OR at any time during project implementation, RO PEPRMP
the Proponent prepares and submits to the ECC-
endorsing DENR-EMB office a LETTER-REQUESTfor RO EPRMP
ECC amendments, including data/information, reports or
documents to substantiate the requested revisions. EMB RO

2 7 workdays
For projects that have started implementation, EMB
evaluates request based on Annex 2-1cfor various 120 workdays
scenarios of project modification. Documentary
requirements may range from a Letter-Request to an 90 workdays
EPRMP to the EMB CO/RO while for those with
Programmatic ECC, a PEPRMP may need to be submitted 60 workdays
to the EMB CO to support the request. It is important to
note that for operating projects, the appropriate document 30 workdays
is not an EIS but an EIA Report incorporating the projects
historical environmental performance and its current EMP,
subject to specific documentary requirements detailed in Other document applications: max 30 workdays (EMB CO
Annex 2-1cfor every modification scenario. and RO)

Noteworthy in the above, which is pertinent to the issue at


3 hand, is that the amendment process squarely applies to
projects not started, such as the subject project, based on
The ECC-endorsing EMB office assigns a Case Handler to the phrase "[w]ithin three (3) years from ECC issuance (for
evaluate the request projects not started) x x x".

For EPRMP/PEPRMP-based requests, EMB forms a Annex 2-1c, in turn, provides a "Decision Chart for
Technical/Review Committee to evaluate the request. For Determination of Requirements For Project Modification."
other requests, a Case Handler may solely undertake the We reproduce below the first three columns of Annex 2-1c,
evaluation. EMB CO and RO will process P/EPRMP for as are pertinent to the issue at hand:
PECC/ECC under Groups I and II respectively. (Go to
Figure 2-1) ANNEX 2-1c
Law on NatRes (84-89) 37

DECISION CHART FOR DETERMINATION OF 4.


REQUIREMENTS FOR PROJECT MODIFICATION178
Increase in capacity or auxiliary component of the original
Proposed Modifications to the Current Project project which will either exceed PDR (noncovered project)
Analysis of Proposed Modifications thresholds, or EMP & ERA cannot address impacts and
risks arising from modification
Resulting Decision Document/Type of EIA Report
Required Exceedance of PDR (non-covered) threshold is assumed
that impacts may be potentially significant, particularly if
Operational projects, or those which have stopped for 5 modification will result to a next higher level of threshold
years and plan to re-start range

For Groups I and II EIS based Projects with an ECC Modification scenario and decision process are applicable
applying for modification to both nonimplemented and operating projects with or
without issued ECCs
1.
ECC Amendment /Environmental Performance Report and
Expansion of land/project area w/in catchment or Management Plan (EPRMP)
environment described in the original EIA Report
5.
Since the modification will be in an area already described
and evaluated in the original EIA Report, incremental Change/s in process flow or technology
impacts from additional land development will have been
addressed in the approved EMP EMP and ERA can still address impacts & risks arising
from modification
ECC Amendment /Letter Request with brief description of
activities in the additional area ECC Amendment /Letter Request with brief process
description
2.
EMP and ERA cannot address impacts & risks arising
Expansion of land/project area OUTSIDE catchment or from modification
environment described in the original EIA Report
ECC Amendment /Environmental Performance Report and
It is assumed the modification proposal may have Management Plan (EPRMP)
significant potential impacts due to absence of prior
assessment as to how the project may affect the proposed 6.
expansion area
Additional component or products which will enhance the
ECC Amendment /Environmental Performance Report and environment (e.g. due to compliance to new stringent
Management Plan (EPRMP) requirements) or lessen impacts on the environment (e.g.
thru utilization of waste into new products)
3.
Activity is directly lessening or mitigating the projects
Increase in capacity or auxiliary component of the original impacts on the environment. However, to ensure there is
project which will eithernot entail exceedance of PDR no component in the modification which fall under covered
(non-covered project) thresholds or EMP & ERA can still project types, EMB will require disclosure of the
address impacts & risks arising from modification description of the components and process with which the
new product will be developed.
Non-exceedance of PDR (non covered project) threshold
is assumed that impacts are not significant; ECC Amendment /Letter Request with consolidated
Project Description Report of new project component and
Modification scenario and decision process are applicable integrated EMP
to both nonimplemented and operating projects issued
ECCs 7.

ECC Amendment /Letter Request with brief description of Downgrade project size or area or other units of measure
additional capacity or component of thresholds limits
Law on NatRes (84-89) 38

DENR-EMB determined179 that the proposed


No incremental adverse impacts; may result to lower modifications involved a major amendment because it will
project threshold or may result to non-coverage result in anincrease in capacity or auxiliary component, as
per Scenario 2,Item #2 of Figure 2-4:
From ECC Amendment to Relief of ECC Commitments
(Conversion to CNC): /Letter-Request only Scenario 2: Request for Major Amendments

8. 1. Expansion of project area w/in catchment described in


EIA
Conversion to new project type (e.g. bunker-fired plant to
gas-fired) 2. Increase in production capacity or auxiliary component
of the original project180
Considered new application but with lesser data
requirements since most facilities are established; 3. Change/s in process flow or technology
environmental performance in the past will serve as
baseline; However, for operating projects, there may be 4. Addition of new product
need to request for Relief from ECC Commitment prior to
applying for new project type to ensure no balance of 5. Integration of ECCs for similar or dissimilar but
environmental accountabilities from the current project contiguous projects (NOTE: ITEM#5 IS PROPONENTS
OPTION, NOT EMBS)
New ECC /EIS
6. Revision/Reformatting of ECC Conditions
9.
7. Other amendments deemed "major at the discretion of
Integration of ECCs for similar or contiguous projects the EMB CO/RO Director

(Note: Integration of ECCs is at the option of the The Casio Group does not controvert this finding by the
Proponent to request/apply) DENR-EMB and we find the same reasonably supported
by the evidence on record considering that, among others,
No physical change in project size/area; no change in the construction of a 230-kVdouble transmission line
process/technology but improved management of would result in major activities outside the project site
continuous projects by having an integrated planning which could have significant environmental impacts.
document in the form or an integrated ECC (ECC
conditions will be harmonized across projects; conditions Consequently, the amendment was considered asfalling
relating to requirements within other agencies mandates under Item#4 of Annex 2-1c, and, thus, the appropriate
will be deleted) EIA document typeis an EPRMP, viz:

ECC Amendment /Letter Request with consolidated 4.


Project Description Report and integrated EMP
Increase in capacity or auxiliary component of the original
10. project which will either exceed PDR (non-covered project)
thresholds, or EMP & ERA cannot address impacts and
Revision/ Reformatting of ECC Conditions risks arising from modification

No physical change on the project but ECC conditions Exceedance of PDR (non-covered) thresholds is assumed
relating to requirements within other agencies mandates that impacts may be potentially significant, particularly if
will be deleted modification will result to a next higher level of threshold
range
ECC Amendment /Letter Request only
Modification scenario and decision process are applicable
We now apply these provisions to the case at bar. to both nonimplemented and operating projects with or
without issued ECCs181
To reiterate, the first amendment to the ECC was
requested by RP Energy due to its planned change of ECC Amendment /Environmental Performance Report and
project design involving the inclusion of a barge wharf, Management Plan (EPRMP)182
seawater intake breakwater, subseadischarge pipeline,
raw water collection system, drainage channel Note that the Chart expressly states that, "[m]odification
improvement and a 230-kV double transmission line. The scenario and decision process are applicable to both non-
Law on NatRes (84-89) 39

implementedand operating projects withor without necessary to assess the environmental impact of such
ECCs."183 To recall, the subject project has not been changes."185
constructed and is not yet operational, although horizontal
clearing activities have already been undertaken at the This brings us to the next logicalquestion, did the EPRMP
project site. Thus, the subject project may be reasonably provide the necessary information in order for the DENR-
classified as a non-implemented project with an issued EMB to assess the environmental impact of RP Energys
ECC, which falls under Item#4 and, hence, an EPRMP is request relative to the first amendment?
the appropriate EIA document type.
We answer in the affirmative.
This lengthy explanation brings us toa simple conclusion.
The definitions in DAO 2003-30 and the Revised Manual, In the first place, the Casio Group never attempted to
stating that the EPRMP is applicable to (1) prove that the subject EPRMP, submitted by RP Energy to
operating/existing projectswith a previous ECC but the DENR-EMB, was insufficient for purposes of
planning or applying for modification or expansion, or (2) evaluating the environmental impact of the proposed
operating projects but without an ECC, were not an modifications to the original project design. There is no
exclusive list. claim that the data submitted were falsified or
misrepresented. Neither was there an attempt to
The afore-discussed provisions of Figure 2-4, in relation to subpoena the review process documents of the DENR to
Annex 2-1c, plainly show that the EPRMP can, likewise, establish thatthe grant of the amendment to the ECC was
be used as an appropriate EIA document type for a single, done with grave abuse of discretion or to the grave
non-implemented project applying for a major amendment prejudice of the right to a healthful environment of those
to its ECC, involving an increase in capacity or auxiliary who will beaffected by the project. Instead, the Casio
component, which will exceed PDR (non-covered project) Group relied solely on the definition of terms in DAO 2003-
thresholds, or result in the inability of the EMP and ERA to 30 and the Revised Manual, which approach, as
address the impacts and risks arising from the previously discussed,was erroneous.
modification, such as the subject project.
At any rate, we have examined the contents of the
That the proposed modifications in the subject project fall voluminous EPRMP submitted by RP Energy and wefind
under this class or type of amendment was a therein substantial sections explaining the proposed
determination made by the DENR-EMBand, absent a changes as well as the adjustments that will be made in
showing of grave abuse of discretion, the DENR-EMBs the environmental management plan in order to address
findings are entitled to great respect because it is the the potential environmental impacts of the proposed
administrative agency with the special competence or modifications to the original project design. These are
expertise to administer or implement the EIS System. The summarized in the "Project Fact Sheet"186 of the EPRMP
apparent confusion of the Casio Group and the appellate and extensively discussed in Section 4187 thereof. Absent
court is understandable. They had approached the issue any claim or proof to the contrary, we have no bases to
with a legal training mindset or background. As a general conclude that these data were insufficient to assess the
proposition, the definition of terms in a statute or rule is environmental impact of the proposed modifications. In
controlling as to its nature and scope within the context of accordance with the presumption of regularity in the
legal or judicial proceedings. Thus, since the procedure performance of official duties, the DENR-EMB must be
adopted by the DENR-EMB seemed to contradict or go deemed to have adequately assessed the environmental
beyond the definition of terms in the relevant issuances, impact of the proposed changes, before granting the
the Casio Group and the appellate court concluded that request under the first amendment to the subject ECC.
the procedure was infirm.
In sum, the Revised Manual permits the use of an
However, a holistic reading of DAO2003-30 and the EPRMP, as the appropriate EIA document type, for major
Revised Manual will show that such a legalistic approach amendments to an ECC, even for an unimplemented or
inits interpretation and application is unwarranted. This is non-implementedproject with a previous ECC, such as the
primarily because the EIA process is a system, not a set of subject project. Consequently, we find that the procedure
rigid rules and definitions. In the EIA process, there is adopted by the DENR, in requiring RP Energy to submitan
much room for flexibility in the determination and use ofthe EPRMP in order to undertake the environmental impact
appropriate EIA document type as the foregoing assessment of the planned modifications to the original
discussion has shown.184 To our mind, whatshould be project design, relative to the first amendment to the ECC,
controlling is the guiding principle set in DAO 2003-30 in suffers from no infirmity.
the evaluation of applications for amendments to ECCs, as
stated in Section 8.3 thereof: "[r]equirements for We apply the same framework of analysis in determining
processing ECC amendments shall depend on the nature the propriety of a PDR, as the appropriate EIA document
of the requestbut shall be focused on theinformation
Law on NatRes (84-89) 40

type, relative to the second amendment to the subject use of raw materials and natural resources, production
ECC. system, waste or pollution generation and control and the
activities of a proposed project. It includes a description of
Again, the Casio Group, as sustained by the appellate the use of human resources as well as activity timelines,
court, relied on the definitions of a PDR in DAO 2003-30 during the pre-construction, construction, operation and
and the Revised Manual: abandonment phases.190

Project Description (PD) document, which may also be We will no longer delve intothe details of these definitions.
a chapter in an EIS, that describes the nature, Suffice it to state, similar to the discussion on the EPRMP,
configuration, use of raw materials and natural resources, that if we go by the strict limits of these definitions, the
production system, waste or pollution generation and PDR relative to the subject second amendment would not
control and the activities of a proposed project. It includes fall squarely under any of the above.
a description of the use of human resources as well as
activity timelines, during the pre-construction, construction, However, again, these are not the only provisions
operation and abandonment phases. It is tobe used for governing the PDR in the Revised Manual.
reviewing co-located and single projects under Category
C, aswell as for Category D projects.188 After the favorable grant of the first amendment, RP
Energy applied for another amendment to its ECC, this
xxxx time inconsideration of its plan to change the configuration
of the project from 2 x 150 MWto 1 x 300 MW. In practical
a) For new projects: x x x For non-covered projects in terms, this meant that the subject project will still produce
Groups II and III, a x x x Project Description Report (PDR) 300 MW of electricity but will now make use of only one
is the appropriate document to secure a decision from boiler (instead of two) to achieve greater efficiency in the
DENR/EMB. The PDR is a "must" requirement for operations of the plant. The DENR-EMB determined191
environmental enhancement and mitigation projects in this amendment to be minor, under Scenario 1, Item#6 of
both ECAs (Group II) and NECAs (Group III) to allow EMB Figure 2-4:
to confirm the benign nature of proposed operations for
eventual issuance of a Certificate ofNon-Coverage (CNC). Scenario 1: Request for Minor
All other Group III (non-covered) projects do not need to
submit PDRs application is at the option of the Amendments
Proponent should it need a CNC for its own purposes, e.g.
financing pre-requisite. For Group V projects, a PDR is 1. Typographical error
required to ensure new processes/technologies or any
new unlisted project does not pose harm to the 2. Extension of deadlines for submission of post-ECC
environment. The Group V PDR is a basis for either requirement/s
issuance of a CNC or classification of the project into its
proper project group. 3. Extension of ECC validity

b) For operating projects with previous ECCs but planning 4. Change in company name/ownership
or applying for clearance to modify/expand or re-start
operations, or for projects operating without an ECC but 5. Decrease in land/project area or production capacity
applying to secure oneto comply with PD 1586 regulations,
the appropriate document is not an EIS but an EIA Report 6. Other amendments deemed "minor" at the discretion of
incorporating the projects environmental performance and the EMB CO/RO Director192
its current Environmental Management Plan. This report is
either an (6) Environmental Performance Report and because (1) there is no increase in capacity; (2) it does
Management Plan (EPRMP) for single project applications not constitute any significant impact; and (3) its EMP and
or a (7) Programmatic EPRMP (PEPRMP) for co-located ERA as specified in the submitted EPRMP remain the
project applications. However, for small project same.193 Relative to Annex 2-1c, the requested
modifications, an updating of the project description or the amendment was, in turn, determinedto fall under Item#3:
Environmental Management Plan with the use of the
proponents historical performance and monitoring records 3.
may suffice.189 Increase in capacity or auxiliary component of the original
project which will either not entail exceedance of PDR
xxxx (non-covered project) thresholds or EMP & ERA can still
address impacts & risks arising from modification
Project Description (PD) - document, which may also be a
chapter in an EIS, that describes the nature, configuration,
Law on NatRes (84-89) 41

Non-exceedance of PDR (non covered project) thresholds substantial errors or misrepresentations in these data or
is assumed that impacts are not significant; their inadequacy for providing the bases for the DENR-
EMB to assess the environmental impact of the proposed
Modification scenario and decision process are applicable modifications under the second amendment.
to both non-implemented and operating projects issued
ECCs194 In fine, absent proof to the contrary, bearing in mind that
allegations are not proof, we sustain the procedure
ECC Amendment /Letter Request with brief description of adoptedby the DENR-EMB in requiring RP Energy to
additional capacity or component195 submit a PDR and, on the basis thereof, approving the
request for the second amendment.
We make the same observation, as before, that the above
applies to an unimplemented or non-implemented project In another vein, we note that the appellate court
with a previous ECC, like the subject project. Although it proceeded from the erroneous premise that the EIA is a
may be noted thatthe proposed modification does not document, when it repeatedly stated that the amendments
squarely fall under Item#3, considering that, as previously to the ECC require a new EIA, and not merely an EPRMP
mentioned,there will be no increase in capacity relative to or PDR. The appellate court relied on the provisoin the
the second amendment, still, we find nothing objectionable ECC, which stated that "[a]ny expansion of the project
to this classification by the DENR-EMB, for it seems plain beyond the project description or any change in the activity
enough that this classification was used because the or transfer of location shall besubject to a new
modification was deemed too minor to require a detailed Environmental Impact Assessment."199
project study like an EIS or EPRMP. Since this is the
classification most relevant and closely related to the However, as correctly pointed out by the DENR and RP
intended amendment, following the basic precept that the Energy, the EIA is not a document but a process:
greater includes the lesser, the DENR-EMB reasonably
exercised its discretion in merely requiring a letter request Environmental Impact Assessment (EIA) processthat
with a brief description of the modification. involves evaluating and predicting the likely impacts of a
project (including cumulative impacts) on the environment
As earlier noted, the PDR is the EIA document type with during construction, commissioning, operation and
the least detail, and, thus, applicable to such minor abandonment. It also includes designing appropriate
modifications. Thus, the DENR-EMB cannot be faulted for preventive, mitigating and enhancement measures
requiring RPEnergy to submit a PDR relative to its addressing these consequences to protect the
application for the second amendment. Consequently, as environment and the community's welfare.The process is
before, we findthat the Revised Manual supports the undertaken by, among others, the project proponent
procedure adopted by the DENR-EMB in requiring RP and/orEIA Consultant, EMB, a Review Committee,
Energy to submit a PDR in order to assess the affected communities and other stakeholders.200
environmental impact of the planned modifications relative (Emphasis supplied)
to the second amendment.
When the provisoin the ECC, therefore, states that a new
In their Petition before this Court, the Casio Group boldly EIA shall beconducted, this simply means that the project
asserts that "[t]here is nothing in the Project Description proponent shall be required to submit such study or report,
Report that provides an environmental impact assessment as warranted by the DENR Rules and circumstances,
of the effects of constructing and operating a single 300- which will sufficiently aid the DENR in making a new EIA
MW generating unit."196 However, to our dismay, as in and, thus, determine whether to grant the proposed
their other serious allegations in their Petition for Writ amendment (or project modification). Aswe have seen,
ofKalikasan, the same is, likewise, baseless. Apart from consistent with DAO 2003-30 and the Revised Manual, the
such a sweeping claim, the Casio Group has provided no DENR required RP Energy to submit an EPRMP and a
evidence or argument to back up the same. PDR relative to the latters request involving the first and
second amendments, respectively, which led to the new
An examination of the PDR readily reveals that it contains EIA of the project in compliance with the provisoof the
the details of the proposed modifications197 and an ECC.
express finding that no significant environmental impact
will be generated bysuch modifications, as in fact it is Verily, the various EIA documents, such as the EPRMP
expected that the operation of the power plant will become and PDR, are mere tools used by the DENR to assess the
more efficient as a result of the change from 2 x 150 MW environmental impact of a particular project. These
to 1 x 300 MW configuration.198 Consequently, the PDR documents are flexibly used by the DENR, as the
merely reiterates the same mitigating measures that will circumstances warrant, in order to adequately assess the
presumably address the minor modifications to the project impacts of a new project or modifications thereto. Being
design. Again, no evidence was presented to show the administrative agency entrusted with the determination
Law on NatRes (84-89) 42

of which EIA document type applies to a particular mandate to promote the government programwhere the
application for an amendment to an ECC, falling as it does project belongs.
within its particular technical expertise, wemust accord
great respect to its determination, absent a showing of We agree with the DENR and RP Energy.
grave abuse of discretion or patent illegality.
Section 59, Chapter VIII of the IPRA Law provides:
In sum, we find that the appellate court erred when it ruled
that the first and second amendments to the subject ECC SEC. 59. Certification Precondition. All departments and
wereinvalid for failure to comply with a new EIA and for other governmental agencies shall henceforth be strictly
violating DAO 2003-30 and the Revised Manual. The enjoined from issuing, renewing, or granting any
appellate court failed to properly consider the applicable concession,license or lease, or entering into any
provisions in DAO 2003-30 and the Revised Manual on production-sharing agreement, without prior certification
amendments to ECCs. Our examination of the provisions from the NCIP that the area affected does not overlap with
on amendments to ECCs, as well as the EPRMP and PDR any ancestral domain.Such certification shall only be
themselves, shows that the DENR reasonably exercised issued after a field-based investigation is conducted by the
its discretion in requiring an EPRMP and a PDR for the Ancestral Domains Office of the area concerned:
first and second amendments, respectively. Through these Provided, That no certification shall be issued by the NCIP
documents, which the DENR reviewed, a new EIA was without the free and prior informed and written consent of
conducted relative to the proposed project modifications. ICCs/IPs concerned: Provided, further, That no
Hence, absent sufficient showing of grave abuse of department, government agency or government-owned or
discretion or patent illegality, relative to both the procedure -controlled corporation may issue new concession,
and substance of the amendment process, we uphold the license, lease, or production sharing agreement while
validity of these amendments. there is a pending application for a CADT: Provided,
finally, That the ICCs/IPs shall have the right to stop or
IV. suspend, in accordance with this Act, any project that has
not satisfied the requirement of this consultation process.
Whether the Certificate of Non-Overlap (CNO), under (Emphasis supplied)
Section 59 of the IPRA Law, is a precondition to the
issuance of anECC and the lack of its prior issuance While Section 9, Part II, Rule VIII of National Commission
rendered the ECC invalid. on Indigenous Peoples (NCIP) Administrative Order No.
01-98201 states:
The appellate court ruled that the ECC issued in favor of
RP Energy on December 22, 2008 is invalid because the SECTION 9. Certification Precondition Prior to Issuance of
CNO covering the subject project was issued only on any Permits or Licenses.
October 31, 2012 or almost fouryears from the timeof
issuance of the ECC. Thus, the ECC was issued in a. Need for Certification. No department of government or
violation of Section 59 of the IPRA Law and its other agencies shall issue, renew or grant anyconcession,
implementing rules which require that a CNO be obtained license, lease, permit, or enter into any production sharing
prior to the issuance of a government agency of, among agreement without a prior certification from the NCIP that
others, a license or permit. In so ruling, the appellate court the area affected does not overlap any ancestral domain.
implicitly upheld the Casio Groups argument that the
ECC is a form of government license or permit pursuant to b. Procedure for Issuance ofCertification by NCIP.
Section 4 of PD 1586 which requires all entities to
securean ECC before (1) engaging in an environmentally 1) The certification, above mentioned, shall be issued by
critical project or (2) implementing a project within an the Ancestral Domain Office, only after a field based
environmentally critical area. investigation that such areas are not within any certified or
claimed ancestral domains.
The DENR and RP Energy, however, argue that an ECC
is not the license or permit contemplated under Section 59 2) The certification shall be issued only upon the free,
of the IPRA Law and its implementing rules as may be prior, informed and written consent of the ICCs/IPs who
deduced from the definition, nature and scope of an ECC will be affected by the operation of such concessions,
under DAO 2003-03 and the Revised Manual. The DENR licenses or leases or production-sharing agreements. A
explains that the issuance of an ECC does not exempt the written consent for the issuance of such certification shall
project proponent from securing other permits and be signed by at least a majority of the representatives of
clearances as required under existing laws, including the all the households comprising the concerned ICCs/IPs.
CNO, and that the final decision on whether a project will (Emphasis supplied)
be implemented lies with the concerned local government
unit/s or the lead government agency which has sectoral
Law on NatRes (84-89) 43

As may be deduced from its subtitle, Section 59 requires proper management of said critical project or area, the
as a precondition, relative to the issuance of any President may by his proclamation reorganize such
concession, license, lease or agreement over natural government offices, agencies, institutions, corporations or
resources, a certification issued by the NCIP that the area instrumentalities including the re-alignment of government
subject thereof does not lie within any ancestral personnel, and their specific functionsand responsibilities.
domain.202 This is in keeping with the State policy to (Emphasis supplied)
protect the rights of Indigenous Cultural
Communities/Indigenous Peoples (ICCs/IPs) to their While the above statutory provision reveals that the ECC
ancestral domains in order to ensure their economic, is an indispensable requirement before (1) the conduct of
social and cultural well-being as well as to recognize the an environmentally critical project or (2) the
applicability of customary laws governing property rights or implementation of a project inan environmentally critical
relations in determining the ownership and extent of such area, it does not follow that the ECC is the "license" or
ancestral domain.203 "permit" contemplated under Section 59 of the IPRA Law
and its implementing rules.
The IPRA Law and its implementing rules do not define
the terms "license" and "permit" so that resort to their plain Section 3(d), Article I of DAO 2003-03 defines an ECC in
or ordinary meaning in relation to the intendment of the this wise:
law is appropriate.
SECTION 3. Definition of Terms.
A "license" has been defined as "a governmental
permission to perform a particular act (such as getting For the purpose of this Order, the following definitions
married), conduct a particular business or occupation, shall be applied:
operate machinery or vehicles after proving capacity and
ability to do so safely, or use property for a certain xxxx
purpose"204 while a "permit" has been defined as "a
license or other document given by an authorized public d. Environmental Compliance Certificate (ECC)
official or agency (building inspector, department ofmotor document issued by the DENR/EMB after a positive
vehicles) to allow a person or business to perform certain review of an ECC application, certifying that based on the
acts."205 representations of the proponent, the proposed project or
undertaking will not cause significant negative
The evident intention of Section 59, in requiring the CNO environmental impact. The ECC also certifies that the
prior to the issuance of a license or permit, is to prevent proponent has complied with all the requirements of the
the implementation of a project that may impair the right of EIS System and has committed to implement its approved
ICCs/IPs to their ancestral domains. The law seeks to Environmental Management Plan. The ECC contains
ensure that a project willnot overlap with any ancestral specific measures and conditions that the project
domain prior to its implementation and thereby pre-empt proponent has to undertake beforeand during the
any potential encroachment of, and/or damage to the operation of a project, and in some cases, during the
ancestral domains of ICCs/IPs without their prior and project's abandonment phase to mitigate identified
informed consent. environmental impacts.

With these considerationsin mind, we now look atthe In turn, Section 1.0, paragraphs 3 and 6 of the Revised
definition, nature and scope of an ECC in order to Manual provide, in part:
determine if it falls within the ambit of a "license" or
"permit" to which the CNO requirement, under Section 59 3) Purpose of the EIA Process
of the IPRA Law and its implementing rules, finds
application. Section 4 of PD 1586 provides, in part: As a basic principle, EIA is used to enhance planning and
guide decisionmaking. In this Manual, EIA is primarily
SECTION 4. Presidential Proclamation of Environmentally presented in the context of a requirement to integrate
Critical Areas and Projects. The President of the environmental concerns in the planning process of
Philippines may, on his own initiative or upon projects at the feasibility stage. Through the EIA Process,
recommendation of the National Environmental Protection adverse environmental impacts of proposed actions are
Council, by proclamation declare certain projects, considerably reduced through a reiterative review process
undertakings or areas in the country as environmentally of project siting, design and other alternatives, and the
critical. No person, partnership or corporation shall subsequent formulation of environmental management
undertake or operate any suchdeclared environmentally and monitoring plans. A positive determination by the
critical project or area without first securing an DENR-EMB results to the issuance of an Environmental
Environmental Compliance Certificate issued by the Compliance Commitment (ECC) document, to be
President orhis duly authorized representative.For the conformed to by the Proponent and represents the
Law on NatRes (84-89) 44

projects Environmental Compliance Certificate. The jurisdiction over the project or with the lead government
release of the ECC allows the project to proceed to the agency who has sectoral mandate to promote the
next stage of project planning, which is the acquisition of government program where the project belongs, e.g. DOE
approvals from other government agencies and LGUs, for energy projects; DENR-MGB for mining
after which the project can start implementation. projects.(Emphasis supplied)

xxxx As can be seen, the issuance of the ECC does not, by and
of itself, authorize the implementation of the project.
6) The EIA Process inRelation to Other Agencies Although it is indispensable before the covered project can
Requirements It is inherent upon the EIA Process to be commenced, asper Section 4 of PD 1586,the
undertake a comprehensive and integrated approach in issuanceof the ECC does not, as of yet, result inthe
the review and evaluation of environment-related concerns implementation of the project. Rather, the ECC is intended
of government agencies (GAs), local government units to, among others, provide guidance or act as a decision-
(LGUs) and the general public. The subsequent EIA making tool to other government agencies and LGUs
findings shall provide guidance and recommendations to which have the final authority to grant licenses or permits,
these entities as a basis for their decision making process. such as building permits or licenses to operate, that will
ultimately result in, or authorize the implementation of the
a) An Inter-agency MOA on EIS Streamlining was entered project or the conduct of specific activities.
into in 1992 by 29 government agencies wherein ECC of
covered projects was agreed to be a prerequisite of all As a consequence, we find that the CNO requirement
other subsequent government approvals; under Section 59 of the IPRA Law is not required to be
obtained prior to the issuance of an ECC. As previously
b) DENR Memo Circular No. 2007-08 issued on 13 July discussed, Section 59 aims to forestall the implementation
2007 reiterates in effect the intent of the MOA and of a project that may impair the right of ICCs/IPs totheir
reinforces the role of the ECC/CNC as a guidance ancestral domains, by ensuring or verifying that a project
document to other agencies and LGUs, as follows: will not overlap with any ancestral domain prior to its
implementation. However, because the issuance of an
i) "No permits and/or clearances issued by other National ECC does not result in the implementation of the project,
Government Agencies and Local Government Units shall there is no necessity to secure a CNO prior to an ECCs
be required in the processing of ECC or CNC applications. issuance as the goal orpurpose, which Section 59 seeks to
achieve, is, at the time of the issuance of an ECC, not yet
ii) The findings and recommendations ofthe EIA shall be applicable.
transmitted to relevant government agencies for them to
integrate in their decision making prior to the issuance of In sum, we find that the ECC is not the license or permit
clearances, permits and licenses under their mandates. contemplated under Section 59 of the IPRA Law and its
implementing rules. Hence, there is no necessity to secure
iii) The issuance of an ECC or CNC for a project under the the CNO under Section 59 before an ECC may be issued
EIS System does not exempt the Proponent from securing and the issuance of the subject ECC without first securing
other government permits and clearances as required by the aforesaid certification does not render it invalid.
other laws. The current practice of requiring various
permits, clearancesand licenses only constrains the EIA V.
evaluation process and negates the purpose and function
of the EIA." Whether the Certificate of Non-Overlap (CNO), under
Section 59 of the IPRA Law, is a precondition to the
iv) Henceforth, all related previous instructions and other consummation of the Lease and Development Agreement
issuances shall be made consistent with the Circular. (LDA) between SBMA and RP Energy and the lack of its
prior issuance rendered the LDA invalid.
c) "Permits, licenses and clearances" are inclusive of other
national and local government approvals such as We now turn to the applicability of Section 59 of the IPRA
endorsements, resolutions, certifications, plans and Law to the LDA entered into between the SBMA and RP
programs, which have to be cleared/approved or other Energy on June 8, 2010. Similar to the ECC, the LDA was
government documents required within the respective entered into prior to the issuance ofthe CNO on October
mandates and jurisdiction of these agencies/LGUs. 31, 2012.

xxxx Before this Court, SBMA and RP Energy reiterate their


arguments on why the CNO is no longer necessary in the
f) The final decision whether a project will be implemented instant case, to wit:
or not lies either with the LGUs who have spatial
Law on NatRes (84-89) 45

1. Prior to entering into the LDA withRP Energy, SBMA 3. SBMAs representation that the project site is industrial
entered into a lease agreement with HHIC206 -Philippines, relies on a letter dated March 5, 2008 and the scoping
Inc. and a CNO was already issued therefor which, for all checklist, which are hearsay evidence.
intents and purposes, is applicable to the area leased by
RP Energy being part of contiguous lots in Redondo 4. The statements of Atty. Rodriguez have no probative
Peninsula. value because he is not an officer of SBMA Ecology
Center oran officer of NCIP.
2. The site of the power plant project is very distant from
the boundaries of the lone area at the Subic Bay Freeport 5. At the time the CNO was issued on October 31, 2012,
Zone covered by an Aeta Communitys Certificate of and the field investigation relative thereto was conducted
Ancestral Domain Title (CADT). by the NCIP, the project site no longer reflected the actual
condition on December 22, 2008 when the LDA was
3. There was no indigenous community within the vicinity entered into because the households which occupied the
of the project area as stated in RP Energys EIS. site had already been relocated by then.

4. The land where the project is located was subsequently 6. SBMA, prior to entering into a lease agreement with
classified as industrial by the SBMA. 5. The HHIC, secured a CNO, but oddly did not do the same with
scoping/procedural screening checklist classified as "not respect to the lease agreement with RP Energy,
relevant" the issue of indigenous people. considering that both leases cover lands located within the
same peninsula. RP Energy appears to have been
6. Ms. Mercado, who was part of the team which prepared accorded a different treatment.
the EIS, testified that she visited the project site ten or
more times and did not see any Aeta communities there. 7. The CNO issued in favor of HHIC cannot justify the lack
of a CNO for the power plant project because the two
7. Mr. Evangelista testified that the project site used to be projects are situated in different locations: the HHIC
a firing range of the U.S. Armed Forces which would make project is located in Sitio Agusuhin,while the power plant
it impossible to be a settlement area of indigenous project is located in Sitio Naglatore.
communities.
While we agree with the appellate court that a CNO should
8. Atty. Rodriguez stated that the project site is not have been secured prior to the consummation of the LDA
covered by a CADT and that from the start of negotiations between SBMAand RP Energy, and not after, as was done
on the LDA, the SBMA Ecology Center verified with the here, we find that, under the particular circumstances of
NCIP that there was no application for said area to be this case, the subsequent and belated compliance withthe
covered by a CADT. CNO requirement does not invalidate the LDA.

RP Energy further argues that, in any case, as a matter of For convenience, and as starting point of ouranalysis, we
prudence, it secured a CNO from the NCIP. On October reproduce Section 59 of the IPRA Law below:
31, 2012, the NCIP issued the subject CNO over the
project site, which should erase any doubt as to whether it SEC. 59. Certification Precondition. All departments and
overlaps with an ancestral domain. other governmental agencies shall henceforth be strictly
enjoined from issuing, renewing, or granting any
Upholding the arguments of the Casio Group, the concession, license or lease, or entering into any
appellate court ruled that SBMA failed to comply with the productionsharing agreement, without prior certification
CNO requirement and, thus, the LDA entered into between from the NCIP that the area affected does not overlap with
SBMA and RP Energy is invalid. It rejected the reasons any ancestral domain.Such certification shall only be
given by SBMA and RP Energy, to wit: issued after a field-based investigation is conducted by the
Ancestral Domains Office of the area concerned:
1. RP Energys reliance on its own field investigation that Provided, That no certification shall be issued by the NCIP
no indigenous community was found within the vicinity is without the free and prior informed and written consent of
unavailing because it was not the field investigation by the ICCs/IPs concerned: Provided, further, That no
NCIP required by the IPRA Law. department, government agency or government-owned or
-controlled corporation may issue new concession,
2. RP Energy acknowledged that Aetas were among the license, lease, or production sharing agreement while
earliest settlers in the municipality where the project will be there is a pending application for a CADT: Provided,
built. Hence, it was not clearly shown that in 2008, at the finally, That the ICCs/IPs shall have the right to stop or
time the LDA was entered into, there were no suspend, in accordance with this Act, any project that has
indigenouscommunities in the project site. not satisfied the requirement of this consultation process.
(Emphasis supplied)
Law on NatRes (84-89) 46

government offices should undertake proper and


The law is clear but its actual operation or application reasonable diligence in making a preliminary
should not be interpreted beyond the bounds of reason or determination on whether to secure the CNO, bearing in
practicality. mind the primordial State interest in protecting the rights of
ICCs/IPs to their ancestral domains. They should consider
We explain. the nature and location of the areas involved; the historical
background of the aforesaid areas relative to the
Indeed, a CNO is required prior to the grant of a lease by occupation, use or claim of ownership by ICCs/IPs; the
all government agencies, including the SBMA. Again, the present and actual condition of the aforesaid areas likethe
evident intention is to prevent the impairment of the right of existence of ICCs/IPs within the area itself or within nearby
ICCs/IPs to their ancestral domains. A lease, such as the territories; and such other considerations that would help
LDA under consideration, would result in, among others, determine whether a CNO should be first obtained prior to
granting RP Energy the right to the use and enjoyment of granting a concession, lease, license or permit, or entering
the project site to the exclusion of third parties.207 As into a production-sharing agreement.
such, the lease could conceivably encroach on an
ancestral domain if the CNO is not first obtained. If there are circumstances that indicate that a claim of
ownership by ICCs/IPs may be present or a claim of
However, implicit in the operation of Section 59 is the ownership may be asserted in the future, no matter how
practical reality that the concerned government agency remote, the proper and prudent course ofaction is to obtain
must make a preliminary determinationon whether or not the CNO. In case of doubt, the doubt should be resolved in
to obtain the required certification in the first place. To favor of securing the CNO and, thus, the government
expound, a government agency, which wishes to lease agency is under obligation tosecure the aforesaid
part of its property located near Padre Faura Street, certification in order to protect the interests and rights of
Manila City could not, and should not be reasonably ICCs/IPs to their ancestral domains. This must be so if we
expected to obtain the CNO, as it is obviously inapplicable are to accord the proper respect due to, and adequately
to its planned lease. In contrast, a government agency, safeguard the interests and rights of, our brothers and
which intends to lease a property in a valley or sisters belonging to ICCs/IPs in consonance with the
mountainous region, where indigenous communities are constitutional policy209 to promote and protect the rights
known to reside, conduct hunting activities, perform rituals, of ICCS/IPs as fleshed out in the IPRA Law and its
or carry out some other activities, should be reasonably implementing rules.
expected to secure the CNO prior to consummating the
planned lease with third persons. In the case at bar, we find, applying this rule of action, that
the SBMA should have first secured a CNO before
Even if the indigenous community does not actuallyreside entering into the LDA with RP Energy for the following
on the proposed lease site, the government agency would reasons.
still be required to obtain the CNO preciselyto rule out the
possibility that the proposed lease site encroaches upon First, the Subic area is historicallyknown to be the home of
an ancestral domain. The reason for this is that an our brothers and sisters belonging to the Aeta
ancestral domain does not only cover the lands actually communities. In particular, the EIS210 itself of RP Energy
occupied by an indigenous community, but all areas where noted that Aeta communities originally occupiedthe
they have a claim of ownership, through time immemorial proposed project site of the power plant. Thus, even if we
use, such as hunting, burial or worship grounds and to assume that, at the time of the ocular inspection of the
which they have traditional access for their subsistence proposed project site in 2008, there were no Aeta
and other traditional activities.208 communities seen thereat, as claimed by RP Energy, the
exercise of reasonable prudence should have moved
The wording of the law itself seems to presuppose that if SBMA and RP Energy to secure a CNO in order to rule out
the concession, lease, license or production-sharing the possibility that the project site may overlap with an
agreement is over natural resources, then the CNO should ancestral domain. This is especially so, in view of the
be first obtained. This is because the lastterm, "production- observation previously made, that lack of actual
sharing agreement," normally refers to natural resources. occupation by an indigenous community ofthe area does
But the problem arises as to what should be considered not necessarily mean that it is not a part of anancestral
"natural resources"; for a vacant lot, nearPadre Faura domain because the latter encompasses areas that are
Street, or a forest land, in Mt. Banahaw, could both not actually occupied by indigenouscommunities but are
beconsidered as "natural resources," depending on the used for other purposes like hunting, worship or burial
restrictive or expansive understanding of that term. grounds.

After due consideration, we find that the proper rule of Second, SBMA and RP Energy claim that the SBMA
action, for purposes of application of Section 59, is that all Ecology Center verified with the NCIP that the project site
Law on NatRes (84-89) 47

does not overlap with an ancestral domain. However, the SBMA, while RP Energy did not make such a request
person, who allegedly did the verification, and the officer because, as we have discussed, SBMA had the obligation,
from the NCIP, who was contacted in this alleged given the surrounding circumstances, to secure a CNO in
verification, were not presented in court. Assuming that order to rule out the possibility that the project site
this verification did take place and that the SBMA Ecology overlapped with an ancestral domain.
Center determined that there is no pendingapplication for
a CADT covering the project site and that the presently All in all, we find, applying the foregoing rule of action,that
recognized CADT of Aeta communities is too far away SBMA should have secured a CNO before entering into
from the project site, it still does not follow that the CNO the LDA with RP Energy. Considering that Section 59 is a
under Section 59 should have been dispensed with. The prohibitory statutory provision, a violation thereof would
acts of individual members ofa government agency, who ordinarily result in the nullification of the contract.212
allegedly checked with the NCIP that the project site does However, we rule that the harsh consequences of such a
not overlap with an ancestral domain, cannot substitute for ruling should not be applied to the case at bar.
the CNO required by law. The reason is obvious. Such
posture would circumvent the noble and laudable The reason is that this is the first time that we lay down the
purposes of the law in providing the CNO as the foregoing rule of action so much so that it would be
appropriate mechanism in order to validly and officially inequitable to retroactively apply its effects with respect to
determine whether a particular project site does not the LDA entered into between SBMA and RPEnergy. We
overlap with an ancestral domain. It would open the doors also note that, under the particular circumstances of this
to abuse because a government agency can easily claim case, there is no showing that SBMA and RP Energy had
that it checked with the NCIP regarding any application for a deliberate or ill intent to escape, defeat or circumvent the
an ancestral domain over a proposed project site while mandate of Section 59 of the IPRA Law. On the contrary,
stopping short of securing a CNO. To reiterate, the legally they appear to have believed in good faith,
mandated manner to verify if a project site overlaps with albeiterroneously, that a CNO was no longer needed
an ancestral domain is the CNO,and not through personal because of the afore-discussed defenses they raised
verification by members of a government agency with the herein. When the matter of lack of a CNO relative to the
NCIP. LDA was brought to their attention, through the subject
Petition for Writ ofKalikasan filed by the Casio Group, RP
Third, that the project site was formerlyused as the firing Energy, with the endorsement of SBMA, promptly
range of the U.S. Armed Forces does not preclude the undertook to secure the CNO, which was issued on
possibility that a present orfuture claim of ancestral October 31, 2012 and stated that the project site does not
domain may be made over the aforesaid site. The concept overlap with any ancestral domain.213
of an ancestral domain indicates that, even if the use ofan
area was interrupted by the occupation of foreign forces, it Thus, absent proof to the contrary, weare not prepared to
may still be validly claimed to be an ancestral domain.211 rule that SBMA and RP Energy acted inbad faith or with
inexcusable negligence, considering that the foregoing
Fourth, that the project site was subsequently classified by rule of action has not heretofore been laiddown by this
the SBMA as forming part of an industrial zone does not Court. As a result, we hold that the LDA should notbe
exempt it from the CNO requirement. The change in the invalidated due to equitable considerations present here.
classification of the land is not an exception to the CNO
requirement under the IPRA Law. Otherwise, government By so ruling, we clarify that we reject RP Energys claim
agencies can easily defeat the rights of ICCs/IPs through that the belated submission of the CNO is an "over
the conversion of land use. compliance" on its part. Quite the contrary, as we have
discussed, the CNO should have been first secured given
Fifth, SBMA argues that the CNO issued to HHIC should, the surrounding circumstances of this case.
for all intents and purposes, be applicable to RP Energy.
However, ascorrectly ruled by the appellate court, the In the same vein, we reject SBMAs argument thatthe
CNO issued to HHICs shipyard cannot be extended to RP belated application for, and submission of the CNO cured
Energys project site because they involve two different whatever defect the LDA had. We have purposely avoided
locations although found within the same land mass. The a ruling to the effect that a CNO secured subsequent to
CNO issued in favor of HHIC clearly states that the the concession, lease, license, permit or production-
findings in the CNO are applicable only to the shipyard sharing agreement will cure the defect. Such a ruling
location of HHIC. Last, the steps taken by SBMA, in would lead to abuse of the CNO requirement since the
securing a CNO prior to its lease agreement with HHIC, defect can be cured anyway by a subsequent and belated
was the proper and prudent course of action that should application for a CNO. Government agencies and third
have been applied to the LDA with RP Energy. It does parties, either through deliberate intent or negligence, may
notmatter that HHIC itself asked for the CNO prior to view it as an excuse not to timely and promptly secure the
entering into a lease agreement with SBMA, as claimed by CNO, even when the circumstances warrant the
Law on NatRes (84-89) 48

application for a CNO under the aforediscussed rule of concerned sanggunianrequirement insofar as the SSEZ is
action, tothe damage and prejudice of ICCs/IPs. Verily, concerned.
once the concession, lease, license or permit is issued, or
the agreement is entered into without the requisite CNO, We agree with the SBMA and RP Energy.
consequent damages will have already occurred if it later
turns out that the site overlaps with anancestral domain. Preliminarily, we note that Sections 26 and 27 of the LGC
This is so even if the ICCs/IPs can have the project contemplate two requirements: (1) prior consultations and
stopped upon discovery thatit overlapped with their (2) prior approval of the concerned sanggunian,viz:
ancestral domain under the last proviso214 of Section 59.
To prevent this evil, compliance with the CNO requirement SECTION 26. Duty of National Government Agencies in
should be followed through the aforediscussed rule of the Maintenance of Ecological Balance. It shall be the
action. duty of every national agency or government-owned or -
controlled corporation authorizing or involved in the
In sum, we rule that a CNO should have been secured planning and implementation of any project or program
prior to the consummation of the LDA between SBMA and that may cause pollution, climatic change, depletion of
RP Energy. However, considering that this is the first time non-renewable resources, loss of cropland, rangeland, or
we lay down the rule of action appropriate to the forest cover, and extinction of animal or plant species, to
application of Section 59, we refrain from invalidating the consult with the local government units, non governmental
LDA due to equitable considerations. organizations, and other sectors concerned and explain
the goals and objectives of the project or program, its
VI. impact upon the peopleand the community in terms of
environmental or ecological balance, and the measures
Whether compliance with Section 27, inrelation to Section that will be undertaken to prevent or minimize the adverse
26, of the LGC (i.e., approval of the concerned effects thereof. (Emphasis supplied)
sanggunianrequirement) is necessary prior to the
implementation of the power plant project. SECTION 27. Prior Consultations Required. No project
or program shall be implemented by government
Sustaining the arguments ofthe Casio Group, the authorities unless the consultations mentioned in Sections
appellate court ruled that the subject project cannot 2 (c) and 26 hereof are complied with, and prior approval
beconstructed and operated until after the prior approval of of the sanggunian concerned is obtained: Provided, That
the concerned sanggunianrequirement, under Section 27 occupants in areas where such projects are to be
of the LGC, is complied with. Hence, the ECC and LDA implemented shall not be evicted unless appropriate
could not be validly granted and entered into without first relocation sites have been provided, in accordance with
complying with the aforesaid provision. It held that all the the provisions of the Constitution. (Emphasis supplied)
requisites for the application of the aforesaid provision are
present. As to the pertinent provisions of RA 7227 or In the case at bar, the Casio Group only questions the
"TheBases Conversion and Development Act of 1992," alleged lack of the prior approval of the concerned
which grants broad powers of administration to the SBMA sanggunians under Section 27 of the LGC. Thus, we shall
over the Subic Special Economic Zone(SSEZ), the limit our discussion to the resolution of this issue.
appellate court ruled that RA 7227 contains a provision (Parenthetically, we note that prior consultations, as
recognizing the basic autonomy ofthe LGUs which joined required by Section 26 of the LGC, appear to have been
the SSEZ. Thus, the LGC and RA 7227should be complied with. This may begleaned from the EIS of
harmonized whereby the concerned sanggunianspower to RPEnergy which contains the documentation of the
approve under Section 27 must be respected. extensive public consultations held, under the supervision
of the DENR-EMB, relative to the subject project, as
The DENR impliedly agrees with the Casio Group that required by the EIA process,215 as well as the
compliance with Section 27 is still required but without socialacceptability policy consultations conducted by the
clearly elaborating its reasons therefor. SBMA, which generated the document entitled "Final
Report: Social Acceptability Process for RP Energy, Inc.s
The SBMA and RP Energy, however, argue that the prior 600-MW Coal Plant Project," as noted and discussed in an
approval of the concerned sanggunianrequirement, under earlier subsection.216)
Section 27, is inapplicable to the subject project because it
is located within the SSEZ. The LGC and RA 7227 cannot We also note that the Casio Group argues that the
be harmonized because of the clear mandate of the SBMA approval of the concerned sanggunian requirement was
to govern and administer all investments and businesses necessary prior to the issuance of the ECC and the
within the SSEZ. Hence, RA 7227 should be deemed as consummation of the LDA; the absence of which
carving out an exception to the prior approval of the invalidated the ECC and LDA.
Law on NatRes (84-89) 49

We shall no longer discuss at length whether the approval SSEZ and, thus, under the territorial jurisdiction of the
of the concerned sanggunian requirement must be SBMA pursuant to RA 7227.
complied with prior to the issuance of an ECC. As
discussed in an earlier subsection, the issuance of an Thus, we are tasked to determine the applicability of the
ECC does not, by itself, result in the implementation of the prior approval of the concerned sanggunian requirement,
project. Hence, the purpose or goal of Sections 26 and 27 under Section 27 of the LGC, relative to a project within
of the LGC,like Section 59 of the IPRA Law, does not yet the territorial jurisdiction of the SBMA under RA 7227.
obtain and, thus, the ECC may be issued evenwithout
prior compliance with Sections 26 and 27 of the LGC. RA 7227 was passed on March 13, 1992 in the aftermath
of the Mount Pinatubo eruption and the closure of the
We, thus, limit the discussion as to whether the approval Subic Naval Base ofthe U.S. Armed Forces. It sought to
of the concerned sanggunian requirement should have revivethe affected areas by creating and developing the
been complied with prior to the consummation of the LDA, SSEZ into a "self-sustaining industrial, commercial,
considering that the LDA is part of the implementation of financial and investment center to generate employment
the subject project and already vests in RP Energy the opportunities in and around the zone and to attract and
right to the use and enjoyment of the project site, asin fact promote productive foreign investments."221 The SSEZ
horizontal clearing activities were already undertaken by covered the City of Olangapo and Municipality of Subic in
RP Energy at the project site by virtue of the LDA. the Province ofZambales and the lands and its contiguous
extensions occupied by the former U.S. Naval Base, which
The prior approval of the concerned sanggunian traversed the territories of the Municipalities of Hermosa
requirement is an attribute and implementation of the local and Morong in the Province of Bataan. Under Section 12
autonomy granted to, and enjoyed by LGUs under the of RA 7227, the creation of the SSEZ was made subject to
Constitution.217 The LGU has the duty to protect its the concurrence by resolution of the respective
constituents and interests in the implementation of the sanggunians of the City of Olongapo and the
project. Hence, the approval of the concerned sanggunian Municipalities of Subic, Morong and Hermosa, viz:
is required by law to ensure thatlocal communities partake
in the fruits of their own backyard.218 SECTION 12. Subic Special Economic Zone. Subject to
the concurrence by resolution of the sangguniang
For Section 27, in relation to Section 26, to apply, the panlungsod of the City of Olongapo and the sangguniang
following requisites must concur: (1) the planning and bayanof the Municipalities of Subic, Morong and Hermosa,
implementation of the project or program is vested in a there is hereby created a Special Economic and Free-port
national agency or government-owned and-controlled Zone consisting of the City of Olongapo and the
corporation, i.e., national programs and/or projects which Municipality of Subic, Province of Zambales, the lands
are to be implemented in a particular local community; and occupied by the Subic Naval Base and its contiguous
(2) the project or program may cause pollution, climatic extensions as embraced, covered, and defined by the
change, depletion of non-renewable resources, loss of 1947 Military Bases Agreement between the Philippines
cropland, rangeland, or forest cover, extinction of animal and the United States of America as amended, and within
or plant species, or call for the eviction of a particular the territorial jurisdiction of the Municipalities of Morong
group of people residing in the locality where the project and Hermosa, Province of Bataan, hereinafter referred to
will be implemented.219 as the Subic Special Economic Zone whose metes and
bounds shall be delineated in a proclamation to be issued
In the case at bar, the two requisites are evidently present: by the President of the Philippines. Within thirty (30) days
(1) the planning and implementation of the subject project after the approval of this Act, each local government unit
involves the Department of Energy, DENR, and SBMA; shall submit its resolution of concurrence to join the Subic
and (2) the subject project may cause pollution, climatic Special Economic Zone to the office of the President.
change, depletion of non-renewable resources, loss of Thereafter, the President of the Philippines shall issue a
cropland, rangeland, or forest cover, and extinction of proclamation defining the metes and bounds of the Zone
animal or plant species,or call for the eviction of a as provided herein.
particular group of people residing in the locality where the
project will be implemented. Hence, Section 27 of the LGC Subsequently, the aforesaid sanggunians submitted their
should ordinarily apply. respective resolutions of concurrence and the President
issued Presidential Proclamation No. 532, Series of 1995,
It is not disputed that no approval was sought from the defining the metes and bounds of the SSEZ.
concerned sangguniansrelative to the subject
project.1a\^/phi1 Whatis more, the affected LGUs have In Executive Secretary v. Southwing Heavy Industries,
expressed their strong oppositions to the project through Inc.,222 we described the concept of SSEZ as a Freeport:
various sanggunian resolutions.220 However, it is also
undisputed that the subject project is located within the
Law on NatRes (84-89) 50

The Freeport was designed to ensurefree flow or Cubi Air Base within the Subic Special Economic and
movement of goods and capital within a portion of the Free-port Zone as a free market in accordance with the
Philippine territory in order to attract investors to invest policies set forth in Section 12 of this Act;
their capital in a business climate with the least
governmental intervention. The concept ofthis zone was (2) To accept any local or foreign investment, business or
explained by Senator Guingona in this wise: enterprise, subject only to such rules and regulations to be
promulgated by the Subic Authority in conformity with the
Senator Guingona. Mr. President, the special economic policies of the Conversion Authority without prejudice to
zone is successful in many places, particularly Hong Kong, the nationalization requirements provided for in the
which is a free port. The difference between a special Constitution;
economic zone and an industrial estate is simply
expansive in the sense that the commercial activities, (3) To undertake and regulate the establishment,
including the establishment of banks, services, financial operation and maintenance of utilities, other services and
institutions, agro-industrial activities, maybe agriculture to infrastructure in the Subic Special Economic Zone
a certain extent. including shipping and related business, stevedoring and
port terminal services or concessions, incidental thereto
This delineates the activities that would have the least of and airport operations in coordination with the Civil
government intervention, and the running of the affairs of Aeronautics Board, and to fix just and reasonable rates,
the special economic zone would be run principally by the fares charges and other prices therefor;
investors themselves, similar toa housing subdivision,
where the subdivision owners elect their representatives to (4) To construct, acquire, own, lease, operate and
run the affairs of the subdivision, toset the policies, to set maintain on its own or through contract, franchise, license
the guidelines. permits bulk purchase from the private sector and build-
operate transfer scheme or joint-venture the required
We would like to see Subic area converted into a little utilities and infrastructurein coordination with local
Hong Kong, Mr. President, where there is a hub of free government units and appropriate government agencies
port and free entry, free duties and activities to a maximum concerned and inconformity with existing applicable laws
spur generation of investment and jobs. therefor;

While the investor is reluctant to come in the Philippines, (5) To adopt, alter and use a corporate seal; to contract,
as a rule, because of red tape and perceived delays, we lease, sell, dispose, acquire and own properties; to sue
envision this special economic zone to be an area where and be sued in order to carry out its duties and functions
there will be minimum government interference. as provided for in this Act and to exercise the power of
eminent domain for public use and public purpose;
The initial outlay may not only come from the Government
or the Authority as envisioned here, but from them (6) Within the limitation provided by law, to raise and/or
themselves, because they would be encouraged to invest borrow the necessary funds from local and international
not only for the land but also for the buildings and financial institutions and to issue bonds, promissory notes
factories. As long as they are convinced that in such an and other securities for that purpose and to secure the
area they can do business and reap reasonable profits, same by guarantee, pledge, mortgage deed of trust, or
thenmany from other parts, both local and foreign, would assignment of its properties held by the Subic Authority for
invest, Mr. President.223 (Emphasis in the original) the purpose of financing its projects and programs within
the framework and limitation of this Act;
To achieve the above-mentioned purposes, the law
created SBMA to administer the SSEZ. In the process, (7) To operate directly or indirectly or license tourism
SBMA was granted broad and enormous powers as related activities subject to priorities and standards set by
provided for under Section 13(b) of RA 7227: the Subic Authority including games and amusements,
except horse racing, dog racing and casino gambling
Sec. 13. The Subic Bay Metropolitan Authority. which shall continue to be licensed by the Philippine
Amusement and Gaming Corporation (PAGCOR) upon
xxxx recommendation of the Conversion Authority; to maintain
and preserve the forested areas as a national park;
(b) Powers and functions of the Subic Bay Metropolitan
Authority - The Subic Bay Metropolitan Authority, (8) To authorize the establishment ofappropriate
otherwise knownas the Subic Authority, shall have the educational and medical institutions;
following powers and function: (1) To operate, administer,
manage and develop the ship repair and ship building (9) To protect, maintain and develop the virgin forests
facility, container port, oil storage and refueling facility and within the baselands, which will be proclaimed as a
Law on NatRes (84-89) 51

national park and subject to a permanent total log ban, Section 12 of RA 7227 provides:
and for this purpose, the rules and regulations of the
Department of Environment and Natural Resources and Sec. 12. Subic Special Economic Zone. x x x
other government agencies directly involved in the above
functions shall be implemented by the Subic Authority; The abovementioned zone shall be subjected to the
following policies:
(10) To adopt and implement measures and standards for
environmental pollution control of all areas within its (a) Within the framework and subject to the mandate and
territory, including but not limited to all bodies of water and limitations of the Constitution and the pertinent provisions
to enforce the same. For which purpose the Subic of the Local Government Code, the Subic Special
Authority shall create an Ecology Center; and Economic Zone shall bedeveloped into a self-sustaining,
industrial, commercial, financial and investment center to
(11) To exercise such powers as may be essential, generate employment opportunities in and around the
necessary or incidental to the powers granted to it zone and to attract and promote productive foreign
hereunder as well as to carry out the policies and investments;
objectives of this Act. (Emphasis supplied) The
Implementing Rules of RA 7227 further provide: xxxx

Sec. 11. Responsibilities of the SBMA. Other than the (i) Except as herein provided, the local government units
powers and functions prescribed in Section 10 of these comprising the Subic Special Economic Zone shall retain
Rules, the SBMA shall have the following responsibilities: their basic autonomy and identity. The cities shall be
governed by their respective charters and the
(a) The SBMA shall exercise authority and jurisdiction over municipalities shall operate and function in accordance
all economic activity within the SBF224 with Republic Act No. 7160, otherwise known as the Local
Government Code of 1991. (Emphasis supplied)
xxxx
This section sets out the basic policies underlying the
(f) Consistent with the Constitution, the SBMA shall have creation of the SSEZ. Indeed, as noted by the appellate
the following powers to enforce the law and these Rules in court, Section 12(i) expressly recognizes the basic
the SBF: autonomy and identity of the LGUscomprising the SSEZ.
However, the clause "[e]xcept as herein provided"
xxxx unambiguously provides that the LGUs do not retain their
basic autonomy and identitywhen it comes to matters
(8) to issue, alter, modify, suspend or revoke for cause, specified by the law as falling under the powers, functions
any permit, certificate, license, visa or privilege allowed and prerogatives of the SBMA.
under the Act or these Rules;
In the case at bar, we find that the power to approve or
xxxx disapprove projects within the SSEZ is one such power
over which the SBMAs authority prevails over the LGUs
(11) to promulgate such other rules, regulations and autonomy. Hence, there isno need for the SBMA to secure
circulars as may be necessary, proper or incidental to the approval of the concerned sangguniansprior to the
carry out the policies and objectives of the Act, these implementation of the subject project.
Rules, as well as the powers and duties of the SBMA
thereunder.225 This interpretation is based on the broad grant of powers
to the SBMA over all administrative matters relating to the
As can be seen, the SBMA was given broad administrative SSEZ under Section 13 of RA 7227, as afore-discussed.
powers over the SSEZ and these necessarily include the Equally important, under Section 14, other than those
power to approve or disapprove the subject project, which involving defense and security, the SBMAs decision
is within its territorial jurisdiction. But, as previously prevails in case of conflict between the SBMA and the
discussed, the LGC grants the concerned sangguniansthe LGUs in all matters concerning the SSEZ, viz.:
power to approve and disapprove this same project. The
SBMA asserts that its approval of the project prevails over Sec. 14. Relationship with the Conversion Authority and
the apparent disapproval of the concerned sanggunians. the Local Government Units.
There is, therefore, a real clash between the powers
granted under these two laws. (a) The provisions of existing laws, rules and regulations to
the contrary notwithstanding, the Subic Authority shall
Which shall prevail? exercise administrative powers, rule-making and
disbursement of funds over the Subic Special Economic
Law on NatRes (84-89) 52

Zonein conformity with the oversight function of the of those words: "SUBJECT TO THE APPROVAL OF THE
Conversion Authority. SANGGUNIAN OF THE AFFECTED LOCAL
GOVERNMENT UNITS AND IN COORDINATION WITH."
(b) In case of conflict between the Subic Authority and the
local government units concerned on matters affecting the So, this paragraph will read, as follows: "to construct, own,
Subic Special Economic Zone other than defense and lease, operate, and maintain on its own or through
security, the decision of the SubicAuthority shall prevail. contract, franchise, license permits, bulk purchase from
(Emphasis supplied) the private sector and build-operate-transfer scheme or
joint venture the required utilities and infrastructure
Clearly, the subject project does not involve defense or SUBJECT TO THE APPROVAL OF THE SANGGUNIAN
security, but rather business and investment to further the OF THE AFFECTED LOCAL GOVERNMENT UNITS AND
development of the SSEZ. Such is in line with the IN coordination with appropriate government agencies
objective of RA 7227 to develop the SSEZ into a self- concerned and in conformity with existing applicable laws
sustaining industrial, commercial, financial and investment therefor."
center. Hence, the decision of the SBMA would prevail
over the apparent objections of the concerned The President. What does the Sponsor say?
sanggunians of the LGUs.
Senator Shahani. I believe this would cripple the Authority.
Significantly, the legislative deliberations on RA 7227, I would like to remind our Colleagues that in the Board of
likewise, support and confirm the foregoing interpretation. Directors, the representatives of the local government
As earlier noted, Section 13 b(4) of RA 7227 provides: units that agree to join with the Subic Special Economic
Zone will be members of the Board so that they will have a
Sec. 13. The Subic Bay Metropolitan Authority. say, Mr. President. But if we say "subject," that is a very
strong word. It really means that they will be the ones to
xxxx determine the policy.

(b) Powers and functions of the Subic Bay Metropolitan So, I am afraid that I cannot accept this amendment, Mr.
Authority - The Subic Bay Metropolitan Authority, President.
otherwise knownas the Subic Authority, shall have the
following powers and function: x x x x Senator Laurel. May I respond or react, Mr. President.

(4) To construct, acquire, own, lease, operate and The President. Yes.
maintain on its own or through contract, franchise, license
permits bulk purchase from the private sector and build- Senator Laurel. The Constitution is there,very categorical
operate transfer scheme or joint-venture the required inthe promotion and encouragement of local autonomy,
utilities and infrastructure in coordination with local and mandating Congress to enact the necessary Local
government units and appropriate government agencies Government Code with emphasis on local autonomy.
concerned and in conformity with existing applicable laws
therefor; We have now Section 27 of the new Local Government
Code which actually provides that for every projectin any
In the Senate, during the period of amendments, when the local government territory, the conformity or concurrence
provision which would eventually become the afore-quoted of the Sanggunian of every such local government unit
Section 13 b(4) of RA 7227 was under consideration, the shall be secured in the form of resolutionthe consent of
following exchanges took place: the Sanggunian.

Senator Laurel. Mr. President. The President. Well, both sides have already been heard.
There is the Laurel amendment that would make the
The President. Senator Laurel is recognized. power of the Subic Bay Metropolitan Authority to construct,
acquire, own, lease, operate and maintain on its own or
Senator Laurel. Relative to line 27 up to line 31 of page through contract, franchise, license, permits, bulk
16, regarding the provision to the effect that the purchases from private sector, buildoperate-and-transfer
Authoritywill have the following functions: "to construct, scheme, or joint venture, the required utilities and
acquire, own, etcetera," that is all right. infrastructure, subject to approval by the appropriate
Sanggunian of the local government concerned.
My motion is that we amend this particular line, starting
from the word "structures", by deleting the words that This amendment to the amendment has been rejected by
follow on line 31, which states: "in coordination with local the Sponsor. So, we are voting now on this amendment.
government unitsand", and substitute the following in place
Law on NatRes (84-89) 53

As many as are in favor of the Laurel amendment, say When the concerned sanggunians opted to join the SSEZ,
Aye. (Few Senators: Aye.) they were, thus, fully aware that this would lead to some
diminution of their local autonomy in order to gain the
Those who are against the said amendment, say Nay. benefits and privileges of being a part of the SSEZ.
(Several Senators: Nay.)
Further, the point of Senator Shahani that the
Senator Laurel. Mr. President, may I ask for a nominal representation of the concerned LGUs in the Board of
voting. Directors will compensate for the diminution of their local
autonomy and allow them to be represented in the
The President. A nominal voting should beupon the decision-making of the SBMA is not lost on us. This is
request of one-fifth of the Members of the House, but we expressly provided for in Section 13(c) of RA 7227, viz:
can accommodate the Gentleman by asking for a division
of the House. Therefore, those in favor of the Laurel SECTION 13. The Subic Bay Metropolitan Authority.
amendment, please raise their right hands. (Few Senators
raised their right hands.) xxxx

Senator Laurel. I was asking, Mr. President, for a nominal (c) Board of Directors. The powers of the Subic
voting. The President. A nominal voting can be had only Authority shall be vested in and exercised by a Board of
upon motion ofone-fifth of the Members of the Body. Directors, hereinafter referred to as the Board, which shall
Senator Laurel. That is correct, Mr. President. But this be composed of fifteen (15) members, to wit:
issuch an important issue being presented to us, because
this question is related to the other important issue, which (1) Representatives of the local government units that
is: May an elected public official of a particular government concur to join the Subic Special Economic Zone;
unit, such as a town or municipality, participate as a
member of the Board of Directors of this particular zone. (2) Two (2) representatives from the National Government;

The President. The ruling of the Chair stands. The division (3) Five (5) representatives from the private sector coming
of the House is hereby directed. from the present naval stations, public works center, ship
repair facility, naval supply depot and naval air station; and
As many as are infavor of the Laurel amendment, please
raised (sic) their right hands. (Few Senators raised their (4) The remaining balance to complete the Board shall be
right hands.) composed of representatives from the business and
investment sectors. (Emphasis supplied)
As many as are against the said amendment, please do
likewise. (Several Senators raised their right hands.) SBMAs undisputed claim is that, during the board meeting
when the subject project was approved, exceptfor one, all
The amendment is lost.226 (Emphasis supplied) the representatives of the concerned LGUs were present
and voted to approve the subject project.227 Verily, the
Indubitably, the legislature rejected the attempts to engraft wisdom of the law creating the SSEZ; the wisdom of the
Section 27s prior approval of the concerned sanggunian choice of the concerned LGUs to join the SSEZ; and the
requirement under the LGC into RA 7227. Hence, the wisdom ofthe mechanism of representation of the
clear intent was to do awaywith the approval requirement concerned LGUs in the decision-making process of the
of the concerned sangguniansrelative to the power ofthe SBMA are matters outside the scope of the power of
SBMA to approve or disapprove a project within the SSEZ. judicial review. We can only interpret and apply the law as
we find it.
The power to create the SSEZ is expressly recognized in
Section 117 of the LGC, viz.: In sum, we find that the implementation of the project is
not subject to the prior approval of the concerned
TITLE VIII. sanggunians, under Section 27 of the LGC, and the
Autonomous Special Economic Zones SBMAs decision to approve the project prevails over the
apparent objections of the concerned sangguniansof the
SECTION 117. Establishment of Autonomous Special LGUs, by virtue ofthe clear provisions of RA 7227. Thus,
Economic Zones. The establishment by law of there was no infirmity when the LDA was entered into
autonomous special economic zones in selected areas of between SBMA and RP Energy despite the lack of
the country shall be subject to concurrence by the local approval of the concerned sanggunians. VII.
government units included therein.
Whether the validity of the third amendment to the ECC
can be resolved by the Court.
Law on NatRes (84-89) 54

Yes, Your Honor.


The Casio Group argues that the validity of the third
amendment should have been resolved by the appellate J. LEAGOGO:
court because it is covered by the broad issues set during
the preliminary conference. Because it was 2 x 150 and then 1 x 300?

RP Energy counters that this issue cannot be resolved ATTY. RIDON:


because it was expressly excluded during the preliminary
conference. Yes, Your Honor.

The appellate court sustained the position of RP Energy J. LEAGOGO:


and ruled that this issue was not included in the
preliminary conference so that it cannot be resolved Up to that point?
without violating the right todue process of RP Energy.
ATTY. RIDON:
We agree with the appellate court.
Yes, Your Honor.
Indeed, the issue of the validity of the third amendment to
the ECC was not part of the issues set during the J. LEAGOGO:
preliminary conference, as it appears at that time that the
application for the third amendment was still ongoing. The Because there is no amended ECC yet for the 2 x 300 or
following clarificatory questions during the aforesaid 600. Thats clear enough for all of us.
conference confirm this, viz.:
ATTY. RIDON:
J. LEAGOGO:
Yes, Your Honor.228
So what are you questioning in your Petition?
Given the invocation of the right to due process by RP
ATTY. RIDON: Energy, we must sustain the appellate courts finding that
the issue as to the validity of the third amendment cannot
We are questioning the validity of the amendment, Your be adjudicated in this case.
Honor.
Refutation of the Partial Dissent.
J. LEAGOGO:
Justice Leonen partially dissents from the foregoing
Which amendment? disposition on the following grounds:

ATTY. RIDON: (a) Environmental cases, such asa petition for a writ of
kalikasan, should not, in general,be litigated viaa
From 2 x 150 to 1 x 300, Your Honor. representative, citizen or class suit because of the danger
of misrepresenting the interests and thus, barring future
J. LEAGOGO: action due to res judicata of those not actually present in
the prosecution of the case, either because they do not yet
Your Petition does not involve the 2 x 300 which is still exist, like the unborn generations, or because the parties
pending with the DENR. Because you still have remedies bringing suit do not accurately represent the interests ofthe
there, you can make your noise there, you can question it group they represent or the class to which they belong. As
to your heart[]s content because it is still pending an exception, such representative, citizen or class suit
may be allowed subject to certain conditions; and
xxxx
(b) The amendments to the ECC, granted by the DENR in
J. LEAGOGO: favor of RP Energy, are void for failure to submit a new
EIS in support of the applications for these amendments to
Atty. Ridon, I go back to my question. Were not yet talking the subject ECC, and a petition for writ of kalikasanis not
of the legal points here. Im just talking of what are you the proper remedy to raise a defect inthe ECC.
questioning. You are questioning the 1 x 300?
We disagree.
ATTY. RIDON:
A.
Law on NatRes (84-89) 55

Justice Leonens proposition that environmental cases (e) whenever a proposal involves the use of depletable or
should not, in general, be litigated via a representative, nonrenewable resources, a finding must be made that
citizen or class suit is both novel and ground-breaking. such use and commitment are warranted.
However, it isinappropriate to resolve such an important
issue in this case, in view of the requisites for the exercise Before an environmental impact statement is issued by a
of our power of judicial review, because the matter was not lead agency, all agencies having jurisdiction over, or
raised by the parties so that the issue was not squarely special expertise on, the subject matter involved shall
tackled and fully ventilated. The proposition will entail, as comment on the draft environmental impact statement
Justice Leonen explains, an abandonment or, at least, a made by the lead agency within thirty (30) days from
modification of our ruling in the landmark case of Oposa v. receipt of the same. (Emphasis supplied)
Factoran.229 It will also require an amendment or a
modification of Section 5 (on citizen suits), Rule 2 ofthe As earlier stated, the EIS was subsequently developed
Rules of Procedure for Environmental Cases. Hence, it is and strengthened through PD 1586 which established the
more appropriate to await a case where such issues and Philippine Environmental Impact Statement System.
arguments are properly raisedby the parties for the Sections 4 and 5 of PD 1586 provide:
consideration of the Court.
SECTION 4. Presidential Proclamation of Environmentally
B. Critical Areas and Projects.1avvphi1 The President of the
Philippines may, on his own initiative or upon
Justice Leonen reasons that the amendments to the recommendation of the National Environmental Protection
subject ECC are void because the applications therefor Council, by proclamation declare certain projects,
were unsupported by anEIS, as required by PD 1151 and undertakings or areas in the country as environmentally
PD 1586. The claim is made that an EIS is required by critical. No person, partnership or corporation shall
law, even if the amendment to the ECC is minor, because undertake or operate any such declared environmentally
an EIS is necessary to determine the environmental critical project or area without first securing an
impact of the proposed modifications to the original project Environmental Compliance Certificate issued by the
design. The DENR rules, therefore, which permit the President or his duly authorized representative. For the
modification of the original project design without the proper management of said critical project or area, the
requisite EIS, are void for violating PD 1151 and PD 1586. President may by his proclamation reorganize such
government offices, agencies, institutions, corporations or
We disagree. instrumentalities including the re-alignment of government
personnel, and their specific functions and responsibilities.
Indeed, Section 4 of PD 1151 sets out the basic policy of
requiring an EIS in every action, project or undertaking For the same purpose as above, the Ministry of Human
that significantly affects the quality of the environment, viz: Settlements shall: (a) prepare the proper land or water use
pattern for said critical project(s) or area(s); (b) establish
SECTION 4. Environmental Impact Statements. ambient environmental quality standards; (c) develop a
Pursuant to the above enunciated policies and goals, all program of environmental enhancement or protective
agencies and instrumentalities of the national government, measures against calamituous factors such as
including government-owned or -controlled corporations, earthquake, floods, water erosion and others, and (d)
as well as private corporations, firms and entities shall perform such other functions as may be directed by the
prepare, file and include in every action, projector President from time to time.
undertaking which significantly affects the quality of the
environmenta detailed statement on SECTION 5. Environmentally Non-Critical Projects. All
other projects, undertakings and areas not declared by the
(a) the environmental impact of the proposed action, President as environmentally critical shall be considered
project or undertaking; as non-critical and shall not be required to submit an
environmental impact statement. The National
(b) any adverse environmental effect which cannot be Environmental Protection Council, thru the Ministry of
avoided should the proposal be implemented; Human Settlements may however require non-critical
projects and undertakings to provide additional
(c) alternative to the proposed action; environmental safeguards as it may deem necessary.
(Emphasis supplied)
(d) a determination that the short-term uses of the
resources of the environment are consistent with the These laws were, in turn, implemented by DAO 2003-30
maintenance and enhancement of the long-term and the Revised Manual.
productivity of the same; and
Law on NatRes (84-89) 56

As correctly noted by Justice Leonen,Presidential First, to repeat, there is nothing in PD 1586 which
Proclamation No. 2146 was subsequently issued which, expressly requires an EIS for an amendment to an ECC.
among others, classified fossil-fueled power plants as
environmentally critical projects. Second, as earlier noted, the proposition would constitute
a collateral attack on the validity of DAO 2003-30 and the
In conformity with the above-quoted laws and their Revised Manual, which is not allowed under the premises.
implementing issuances, the subject project, a coal power The Casio Group itself has abandoned this claim before
plant, was classified by the DENR as an environmentally this Court so that the issue is not properly before this
critical project, new and single. Hence, RP Energy was Court for its resolution.
required to submit an EIS in support of its application for
an ECC. RP Energy thereafter complied with the EIS Third, assuming that a collateral attack on the validity of
requirement and the DENR, after review, evaluation and DAO 2003-30 and the Revised Manual can be allowed in
compliance with the other steps provided in its rules, this case, the rules on amendments appear to be
issued an ECC in favor of RP Energy. As can be seen, the reasonable, absent a showing of grave abuse of discretion
EIS requirement was duly complied with. or patent illegality.

Anent Justice Leonens argument thatthe subsequent Essentially, the rules take into consideration the nature of
amendments to the ECC were void for failure to prepare the amendment in determining the proper Environmental
and submit a new EIS relative to these amendments, it is Impact Assessment (EIA) document type that the project
important to note thatPD 1586 does not state the proponent will submit in support of its application for an
procedure to be followed when there is an application for amendment to its previously issued ECC. A minor
an amendment to a previously issued ECC. There is amendment will require a less detailed EIA document type,
nothing in PD 1586 which expressly requires an EIS for an like a Project Description Report (PDR), while a major
amendment to an ECC. amendment will require a more detailed EIA document
type, like an Environmental Performance Report and
In footnote 174 of the ponencia, it is stated: Management Plan (EPRMP) or even an EIS.230

Parenthetically, we must mention that the validity of the The rules appear to be based on the premise that it would
rules providing for amendments to the ECC was be unduly burden some or impractical to require a project
challenged by the Casio Group on the ground that it is proponent to submit a detailed EIA document type, like an
ultra vires before the appellate court. It argued that the EIS, for amendments that, upon preliminary evaluation by
laws governing the ECC do not expressly permit the the DENR, will not cause significant environmental impact.
amendment of an ECC. However, the appellate court In particular, as applied to the subject project, the DENR
correctly ruled that the validity of the rules cannot be effectively determined that it is impractical to requireRP
collaterally attacked. Besides,the power of the DENR to Energy to, in a manner of speaking, start from scratch by
issue rules on amendments of an ECC is sanctioned submitting a new EIS in support of its application for the
under the doctrine of necessary implication. Considering first amendment to its previously issued ECC, considering
that the greater power todeny or grant an ECC is vested that the existing EIS may be supplemented by an EPRMP
by law in the President or his authorized representative, to adequately evaluate the environmental impact of the
the DENR, there is no obstacle to the exercise of the proposed modifications under the first amendment. The
lesser or implied power to amend the ECC for justifiable same reasoning may be applied to the PDR relative to the
reasons. This issue was no longer raised before this Court second amendment. As previously discussed, the Casio
and, thus, we no longertackle the same here. Group failed to provethat the EPRMP and PDR were
inadequate to assess the environmental impact of the
Because PD 1586 did not expressly provide the procedure planned modifications under the first and second
to be followed in case of an application for an amendment amendments, respectively. On the contrary, the EPRMP
toa previously issued ECC, the DENR exercised its and PDR appeared to contain the details of the planned
discretion, pursuant to its delegated authority to implement modifications and the corresponding adjustments to
this law, in issuing DAO 2003-30 and the Revised Manual. bemade in the environmental management plan or
mitigating measures inorder to address the potential
Justice Leonens argument effectively challenges the impacts of these planned modifications. Hence, absent
validity of the provisions in DAO 2003-30 and the Revised sufficient proof, there is no basis to conclude that the
Manual relative to amendments to an ECC for being procedure adopted by the DENR was done with grave
contrary to PD 1151 and 1586. abuse of discretion.

We disagree. Justice Leonens proposition would effectively impose a


stringent requirement of an EIS for each and every
proposed amendment to an ECC, no matter how minor the
Law on NatRes (84-89) 57

amendment may be. While this requirement would seem 1. The appellate court correctly ruled that the Casio
ideal, in order to ensure that the environmental impact of Group failed to substantiate its claims thatthe construction
the proposed amendment is fully taken into consideration, and operation of the power plant will cause environmental
the pertinent laws do not, however, expressly require that damage of the magnitude contemplated under the writ of
such a procedure be followed.As already discussed, the kalikasan. On the other hand, RP Energy presented
DENR appear to have reasonably issued DAO 2003-30 evidenceto establish that the subject project will not cause
and the Revised Manualrelative to the amendment grave environmental damage, through its Environmental
process of an ECC, by balancing practicality vis--vis the Management Plan, which will ensure thatthe project will
need for sufficient information in determining the operate within the limits of existing environmental laws and
environmental impact of the proposed amendment to an standards;
ECC. In fine, the Court cannot invalidate the rules which
appear to be reasonable, absent a showing of grave 2. The appellate court erred when it invalidated the ECC
abuse of discretion or patent illegality. on the ground of lack of signature of Mr. Aboitiz in the
ECCs Statement of Accountability relative to the copy of
We next tackle Justice Leonens argument that a petition the ECC submitted by RP Energy to the appellate court.
for certiorari,and not a writ of kalikasan,is the proper While the signature is necessary for the validity of the
remedy to question a defect in an ECC. ECC, the particular circumstances of this case show that
the DENR and RP Energy were not properly apprised of
In general, the proper procedure to question a defectin an the issue of lack of signature in order for them to present
ECC is to follow the appeal process provided in DAO controverting evidence and arguments on this point, as the
2003-30 and the Revised Manual. After complying with the issue only arose during the course of the proceedings
proper administrative appeal process, recourse may be upon clarificatory questions from the appellate court.
made to the courts in accordance with the doctrine of Consequently, RP Energy cannot be faulted for submitting
exhaustion of administrative remedies. However, as earlier the certified true copy of the ECC only after it learned that
discussed, in exceptional cases, a writ of kalikasan may the ECC had been invalidatedon the ground of lack of
be availed of to challenge defects in the ECC providedthat signature in the January 30, 2013 Decision of the
(1) the defects are causally linked or reasonably appellate court. The certified true copy of the ECC,
connected to an environmental damage of the nature and bearing the signature of Mr. Aboitiz in the Statement of
magnitudecontemplated under the Rules on Writ of Accountability portion, was issued by the DENR-EMB, and
Kalikasan, and (2) the case does not violate, or falls under remains uncontroverted. It showed that the Statement of
an exception to, the doctrine of exhaustion of Accountability was signed by Mr. Aboitiz on December 24,
administrative remedies and/or primary jurisdiction. 2008. Because the signing was done after the official
release of the ECC on December 22, 2008, wenote that
As previously discussed, in the case at bar, only the the DENR did not strictly follow its rules, which require that
allegation with respect to the lack of an EIA relative to the the signing of the Statement of Accountability should be
first and second amendments to the subject ECC may be done before the official release of the ECC. However,
reasonably connected to such an environmental damage. considering that the issue was not adequately argued
Further, given the extreme urgency of resolving the issue norwas evidence presented before the appellate court on
due to the looming power crisis, this case may be the circumstances at the time of signing, there is
considered as falling under an exception to the doctrine of insufficient basis to conclude that the procedure
exhaustion of administrative remedies. Thus, the aforesaid adoptedby the DENR was tainted with bad faith or
issue may be conceivably resolved in a writ of kalikasan inexcusable negligence. We remind the DENR, however,
case. to be more circumspect in following its rules. Thus, we rule
that the signature requirement was substantially complied
More importantly, we have expressly ruled that this case is with pro hac vice.
an exceptional case due to the looming power crisis, so
that the rules of procedure may be suspended in order to 3. The appellate court erred when it ruled that the first and
address issues which, ordinarily, the Court would not second amendments to the ECC were invalid for failure to
consider proper in a writ of kalikasan case. Hence, all comply with a new EIA and for violating DAO 2003-30 and
issues, including those not proper in a writ of kalikasan the Revised Manual. It failed to properly consider the
case, were resolved here in order to forestall another applicable provisions in DAO 2003-30 and the Revised
round of protracted litigation relative to the implementation Manual for amendment to ECCs. Our own examination of
of the subject project. the provisions on amendments to ECCs in DAO 2003-30
and the Revised Manual, as wellas the EPRMP and PDR
Conclusion themselves, shows that the DENR reasonably exercised
its discretion in requiring an EPRMP and a PDR for the
We now summarize our findings: first and second amendments, respectively. Through these
documents, which the DENR reviewed, a new EIA was
Law on NatRes (84-89) 58

conducted relative to the proposed project modifications. 2.1. The January 30, 2013 Decision and May 22, 2013
Hence, absent sufficient showing of grave abuse of Resolution of the Court of Appeals in CA-G.R. SP No.
discretion or patent illegality, relative to both the procedure 00015 are reversed and set aside;
and substance of the amendment process, we uphold the
validity of these amendments; 2.2. The Petition for Writ of Kalikasan, docketed as CA-
G.R. SP No. 00015, is denied for insufficiency of evidence;
4. The appellate court erred when it invalidated the ECC
for failure to comply with Section 59 of the IPRA 2.3. The validity of the December 22, 2008 Environmental
Law.1wphi1 The ECC is not the license or permit Compliance Certificate, as well as the July 8, 2010 first
contemplated under Section 59 of the IPRA Law and its amendment and the May 26, 2011 second amendment
implementing rules. Hence, there is no necessity to secure thereto, issued by the Department of Environment and
the CNO under Section 59 before an ECC may be issued, Natural Resources in favor of Redondo Peninsula Energy,
and the issuance of the subject ECC without first securing Inc., are upheld; and
the aforesaid certification does not render it invalid;
2.4. The validity of the June 8, 2010 Lease and
5. The appellate court erred when it invalidated the LDA Development Agreement between Subic Bay Metropolitan
between SBMA and RP Energy for failure to comply Authority and Redondo Peninsula Energy, Inc. is upheld.
withSection 59 of the IPRA Law. While we find that a CNO
should have been secured prior to the consummation of SO ORDERED.
the LDA between SBMA and RP Energy, considering that LNL ARCHIPELAGO MINERALS, INC., Petitioner, vs.
this is the first time we lay down the rule of action AGHAM PARTY LIST (represented by its President
appropriate to the application of Section 59, we refrain Rep. Angelo B. Palmones), Respondent. G.R. No.
from invalidating the LDA for reasons of equity; 209165

6. The appellate court erred when it ruled that compliance This is a petition for review on certiorari 1 assailing the
with Section 27, in relation to Section 26, of the LGC (i.e., Amended Decision dated 13 September 20132 of the
approval of the concerned sanggunian requirement) is Court of Appeals in CA-G.R. SP No. 00012.
necessary prior to issuance of the subjectECC. The
issuance of an ECC does not, by itself, result inthe The Facts
implementation of the project. Hence, there is no necessity
to secure prior compliance with the approval of the Petitioner LNL Archipelago Minerals, Inc. (LAMI) is the
concerned sanggunian requirement, and the issuance of operator of a mining claim located in Sta. Cruz, Zambales.
the subject ECC without first complying with the aforesaid LAMIs mining area is covered by Mineral Production
requirement does not render it invalid. The appellate court Sharing Agreement3 No. 268-2008-III dated 26 August
also erred when it ruled that compliance with the aforesaid 2008 by virtue of an Operating Agreement4 dated 5 June
requirement is necessary prior to the consummation of the 2007 with Filipinas Mining Corporation.
LDA. By virtue of the clear provisions of RA 7227, the
project is not subject to the aforesaid requirement and the LAMI embarked on a project to build a private, non-
SBMAs decision to approve the project prevails over the commercial port in Brgy. Bolitoc, Sta. Cruz, Zambales. A
apparent objections of the concerned sanggunians. Thus, port is a vital infrastructure to the operations of a mining
the LDA entered into between SBMA and RP Energy company to ship out ores and other minerals extracted
suffers from no infirmity despite the lack of approval of the from the mines and make the venture economically
concerned sanggunians; and feasible. Brgy. Bolitoc, about 25 kilometers away from the
mine site, makes it an ideal location to build a port facility.
7. The appellate court correctly ruled thatthe issue as to In the area of Sta. Cruz, Shangfil Mining and Trading
the validity of the third amendment to the ECC cannot be Corporation (Shangfil)/A3Una Mining Corporation (A3Una)
resolved in this case because it was not one of the issues and DMCI Mining Corporation, have been operating their
set during the preliminary conference, and would, thus, own ports since 2007.
violate RP Energys right to due process. WHEREFORE,
the Court resolves to: LAMI secured the following permits and compliance
certificates for the port project: (1) Department of
1. DENY the Petition in G.R. No. 207282; and Environment and Natural Resources (DENR)
Environmental Compliance Certificate5 (ECC) R03-1104-
2. GRANT the Petitions in G.R.Nos. 207257, 207366 and 182 dated 2 May 2011 covering the development of
207276: causeway, stockpile and related facilities on LAMIs
property with an area of 18,142 sq.m.; (2) DENR
provisional foreshore lease agreement with LAMI;6 (3)
Philippine
Law on NatRes (84-89) 59

2012, the Committee on Ecology conducted an ocular


Ports Authority (PPA) Clearance to Develop a Port;7 (4) inspection of the LAMI port site, as well as the other ports
PPA Permit to Construct a Port;8 (5) PPA Special Permit adjacent to LAMIs those of Shangfil/A3Una and D.M.
to Operate a Beaching Facility;9 and (6) Tree Cutting Consunji, Inc. The Committee allegedly never visited any
Permit/Certification10 from the Community Environment mining site in the area of Sta. Cruz.
and Natural Resources Office (CENRO) of the DENR.
Meanwhile, on 30 April 2012, the DENR Environmental
The Zambales Alliance, a group of other mining Management Bureau in Region III (DENR-EMB R3)
companies operating in Sta. Cruz, Zambales which do not received a letter dated 27 April 2012 from Mayor Marty
have their own port, namely Eramen Minerals, Inc.; inquiring if the ECC the DENR issued in favor of LAMI
Zambales Diversified Metals Corporation; Zambales allowed LAMI to cut trees and level a mountain.
Chromite Mining Corporation, Inc.; BenguetCorp Nickel
Mines, Inc., supported the port project of LAMI and issued On 25 May 2012, representatives from the DENR
Letters11 of Intent to use the port facilities of LAMI upon Provincial Environment and Natural Resources Office
completion. (PENRO) in Zambales and the local government of Sta.
Cruz conducted an ECC compliance monitoring of LAMIs
The Bolitoc community the barangay, its officials and property. The DENR PENRO team found that LAMI
residents gave several endorsements12 supporting the violated some of its conditions under the ECC.
project. Even the Sangguniang Bayan of Sta. Cruz gave Accordingly, a Notice of Violation (NOV) dated 1 June
its consent to the construction of the port.13 2012 was issued against LAMI for violation of certain
conditions of the ECC with a cease and desist order from
However, LAMI allegedly encountered problems from the further constructing and developing until such time that the
local government of Sta. Cruz, headed by Mayor Luisito E. ECC conditions were fully complied.
Marty (Mayor Marty). LAMI stated that Mayor Marty unduly
favored some mining companies in the municipality and On 8 June 2012, a technical conference was held where
allegedly refused to issue business and mayors permits LAMI presented its reply to the NOV. The DENR-EMB R3
and to receive payment of occupation fees from other ascertained that LAMIs violations of the four conditions of
mining companies despite the necessary national permits its ECC constitute minor violations since they only pertain
and licenses secured by the other mining companies. to non-submission of documents. However, the leveling of
the elevated portion of the area was a major violation. A
On 24 April 2012, Mayor Marty issued an order14 directing penalty was consequently imposed on LAMI, and the
LAMI to refrain from continuing with its clearing works and DENREMB R3 directed LAMI to (1) immediately cause the
directed the Sta. Cruz Municipal Police Chief Generico installation of mitigating measures to prevent soil erosion
Bian to implement his order. On 26 April 2012, LAMI and siltation of the waterbody, and (2) submit a
responded through a letter15 explaining that Mayor rehabilitation plan.
Martys order was illegal and baseless. Chief Bian,
together with two of his deputies, went to LAMIs port site On 11 June 2012, LAMI wrote a letter17 to the DENR-
to demand that LAMI cease its clearing works. LAMIs EMB R3 regarding the commitments agreed upon during
supervisor showed Chief Bian all of LAMIs permits. In a the technical conference. LAMI signified compliance with
Memorandum dated 3 May 2012, Chief Bian made a the conditions of DENR-EMB R3. Attached to the letter
report to his supervisor, S/Supt. Francisco DB Santiago, were: (1) Official Receipt of payment of penalties under
Jr. (S/Supt. Santiago), Zambales Police Provincial Presidential Decree (PD) No. 1586, (2) Matrix of Mitigation
Director, that there was no leveling of a mountain on the and Rehabilitation Plan, (3) Designation of Pollution
port site. On 6 May 2012, S/Supt. Santiago made a Control Officer dated 6 May 2011, and (4) Tree Cutting
Special Report re: Police Assistance16 to the Philippine Permit dated 17 April 2012 issued by DENR R3
National Police (PNP) Regional Director citing the findings CENRO.18
of Chief Bian.
On 20-21 June 2012, the DENR composite team,
Thereafter, Rep. Dan Fernandez, a member of the composed of DENR-EMB R3, Mines and Geosciences
Committee on Ecology of the House of Representatives, Bureau (MGB) R3 and PENRO Zambales, conducted an
passed House Resolution No. 117 (HR 117) entitled investigation to determine whether mitigating measures
"Resolution Directing the Committee on Ecology to done by LAMI were sufficient. The composite team found
Conduct an Inquiry, in Aid of Legislation, on the that LAMIs activities in its property would not result to any
Implementation of Republic Act No. 7942, Otherwise environmental damage to its surrounding communities.
Known as the Philippine Mining Act of 1995, Particularly
on the Adverse Effects of Mining on the Environment." HR Thereafter, the DENR-EMB R3 lifted the cease and desist
117 was issued in order to conduct an alleged ocular order after LAMI was found to have complied with the
inspection of the port site in aid of legislation. On 21 May requirements. In a Letter19 dated 24 October 2012,
Law on NatRes (84-89) 60

Lormelyn E. Claudio (Dir. Claudio), the Regional Director Public respondents DENR, PPA and ZPPO, filed with the
of DENR-EMB R3 wrote: Court of Appeals their Pre-Trial Brief dated 1 August 2012.
In the Pre-Trial Brief, public respondents stated that they
xxxx will present the following witnesses: (1) Dir. Claudio,
Regional Director, DENR-EMB R3; two from the PPA (2)
The violated ECC conditions have been rectified and Engineer Marieta G. Odicta (Engr. Odicta), Division
clarified while the penalty corresponding to such violation Manager, Engineering Services Division, Port District
was fully paid and the required rehabilitation and mitigating Office, Manila, Northern Luzon; and (3) Emma L. Susara
measures were already implemented as committed. As (Ms. Susara), Department Manager, Commercial Services
such, the matter leading to the issuance of the NOV is now of the PPA (NCR); and (4) S/Supt. Santiago, Provincial
resolved. Director of the ZPPO.

As ECC holder, you are enjoined to ensure the effective The witnesses of public respondents submitted their
carrying out of your Environmental Management and Judicial Affidavits dated 6 August 2012. The testimonies of
Monitoring Plan.20 the witnesses were offered to prove the facts and
allegations in the petition:
Meanwhile, earlier, or on 6 June 2012, respondent Agham
Party List (Agham), through its President, former (1) Dir. Claudio30
Representative Angelo B. Palmones (Rep. Palmones),
filed a Petition21 for the issuance of a Writ22 of Kalikasan a) That the issues presented by Agham were already
against LAMI, DENR, PPA, and the Zambales Police subject of the complaint filed by Mayor Marty with the
Provincial Office (ZPPO). DENR-EMB R3;

Agham alleged that LAMI violated: (1) Section 6823 of PD b) That the DENR-EMB R3 issued an ECC to LAMI;
No. 705,24 as amended by Executive Order No. 277,25 or
the Revised Forestry Code; and (2) Sections 5726 and c) That the DENR-EMB R3 acted on the complaint of
6927 of Republic Act No. 7942,28 or the Philippine Mining Mayor Marty with regard to construction by LAMI of its port
Act of 1995 (Philippine Mining Act). Agham added that facility;
LAMI cut mountain trees and flattened a mountain which
serves as a natural protective barrier from typhoons and d) That the DENR-EMB R3 issued a NOV dated 1 June
floods not only of the residents of Zambales but also the 2012 to LAMI;
residents of some nearby towns located in Pangasinan.
e) That the DENR-CENRO issued a tree cutting permit to
On 13 June 2012, this Court remanded the petition29 to LAMI;
the Court of Appeals for hearing, reception of evidence
and rendition of judgment. f) That there is no mountain within or inside the property of
LAMI in Brgy. Bolitoc, Sta. Cruz, Zambales;
On 25 June 2012, LAMI filed its Verified Return dated 21
June 2012, controverting Aghams allegations. LAMI g) That the cutting of the trees and the partial leveling of a
stated that it did not and was not violating any landform (which is determined to be an "elongated mound"
environmental law, rule or regulation. LAMI argued that: but is alleged to be a "mountain" by the petitioner)
conducted by LAMI in its property in Brgy. Bolitoc, Sta.
(1) LAMI had the necessary permits and authorization to Cruz, Zambales do not pose adverse environmental
cut trees in the port site; (2) LAMI had the necessary impact on the adjoining communities more so to the larger
permits to construct its port; (3) LAMI consulted with and areas or the entire provinces of Zambales and
obtained the support of the Sangguniang Barangay and Pangasinan.
residents of Barangay Bolitoc; (4) LAMIs port site is
located on private and alienable land; (5) there is no (2) Eng. Odicta31
mountain on the port site; (6) the Philippine Mining Act is
irrelevant and inapplicable to the present case; and (7) the a) That the PPA issued a permit to construct to LAMI only
other allegations of Agham that LAMI violated after due application and submission of the required
environmental laws, rules or regulations are likewise documents;
baseless, irrelevant and false. LAMI stated further that
there is no environmental damage of such magnitude as to b) That other private companies, namely: DMCI Mining
prejudice the life, health, or property of inhabitants in two Corporation and Shangfil/A3Una constructed port facilities
or more cities and provinces. along the Brgy. Bolitoc coastline and contiguous to where
the port facility of LAMI is located.
Law on NatRes (84-89) 61

(3) Ms. Susara32 SO ORDERED.38

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

c) The contents of the Memorandum (Special Report re: In a Resolution40 dated 31 May 2013, the Court of
Police Assistance) dated 6 May 2012 submitted by S/Supt. Appeals set Aghams Motion for Reconsideration for
Santiago to the PNP Regional Director. hearing on 13 June 2013. At the hearing, all parties were
given time to argue their case. Thereafter, the Motion for
On 10 September 2012, Agham presented its first and Reconsideration was submitted for resolution.
only witness, former Rep. Angelo B. Palmones. Rep.
Palmones was cross-examined by counsel for LAMI and Agham then filed a Manifestation dated 17 June 2013
counsel for public respondents DENR, PPA, and ZPPO.34 summarizing its arguments. On 4 July 2013, LAMI filed a
Motion to Expunge with Ad Cautelam
On 26 September 2012, public respondents presented Comment/Opposition. On 11 July 2013, the Court of
their witnesses.35 Appeals, for the last and third time, submitted the Motion
for Reconsideration for resolution.
On 28 September 2012, LAMI manifested that it was
adopting the testimonies of the witnesses of the public In an Amended Decision dated 13 September 2013, the
respondents. On the same hearing, LAMI presented its Court of Appeals reversed and set aside its original
witness, Felipe E. Floria, LAMIs Vice-President and Decision dated 23 November 2012. The dispositive portion
General Manager.36 of the Decision states:

In a Decision37 dated 23 November 2012, the Court of WHEREFORE, in view of the foregoing, the Decision
Appeals decided the case in favor of petitioner. The dated November 23, 2012 is hereby RECONSIDERED
appellate court found that the government, through the and SET ASIDE and, in lieu thereof, another judgment is
CENRO, authorized LAMI to cut trees and LAMI strictly rendered GRANTING the petition for WRIT OF
followed the proper guidelines stated in the permit. The KALIKASAN as follows, to wit:
appellate court also stated that there can be no flattening
of a mountain when there is no mountain to speak of. (1) respondent LNL Archipelago Minerals, Inc. (LAMI) is
Thus, for failing to comply with the requisites necessary for directed to PERMANENTLY CEASE and [DESIST] from
the issuance of a Writ of Kalikasan, the Court of Appeals scraping off the land formation in question or from
resolved to deny the petition. The dispositive portion of the performing any activity/ies in violation of environmental
Decision states: laws resulting in environmental destruction or damage;

WHEREFORE, premises considered, the petition is (2) the respondent LAMI as well as the Secretary of
hereby DENIED. Department of Environment and Natural Resources and/or
their representatives are directed to PROTECT,
Law on NatRes (84-89) 62

PRESERVE, REHABILITATE and/or RESTORE the organization, or any public interest group accredited by or
subject land formation including the plants and trees registered with any government agency, on behalf of
therein; persons whose constitutional right to a balanced and
healthful ecology is violated, or threatened with violation
(3) the Secretary of DENR and/or his representative is by an unlawful act or omission of a public official or
directed to MONITOR strict compliance with the Decision employee, or private individual or entity, involving
and Orders of the Court; and make PERIODIC REPORTS environmental damage of such magnitude as to prejudice
on a monthly basis on the execution of the final judgment. the life, health or property of inhabitants in two or more
cities or provinces.
SO ORDERED.41
The Writ of Kalikasan, categorized as a special civil action
Hence, the instant petition. and conceptualized as an extraordinary remedy,43 covers
environmental damage of such magnitude that will
The Issues prejudice the life, health or property of inhabitants in two or
more cities or provinces. The writ is available against an
The issues for our resolution are (1) whether LAMI violated unlawful act or omission of a public official or employee, or
the environmental laws as alleged by Agham, and (2) private individual or entity.
whether LAMI flattened any mountain and caused
environmental damage of such magnitude as to prejudice The following requisites must be present to avail of this
the life, health or property of inhabitants in two or more remedy: (1) there is an actual or threatened violation of the
cities or provinces. constitutional right to a balanced and healthful ecology; (2)
the actual or threatened violation arises from an unlawful
The Courts Ruling act or omission of a public official or employee, or private
individual or entity; and (3) the actual or threatened
Petitioner contends that it has the necessary permits and violation involves or will lead to an environmental damage
authorization to cut trees on the port site, controverting the of such magnitude as to prejudice the life, health or
allegation of Agham that it violated Section 68 of the property of inhabitants in two or more cities or provinces.
Revised Forestry Code, as amended. Petitioner also
insists that it did not violate nor is it violating the Mining Act In the present case, Agham, in its Petition for a Writ of
as alleged by Agham. Petitioner argues that it is not Kalikasan, cited two laws which LAMI allegedly violated:
conducting any mining activity on the port site since the (1) Section 68 of the Revised Forestry Code, as amended;
mine site is about 25 kilometers away from the port site. and (2) Sections 57 and 69 of the Philippine Mining Act.
Further, petitioner adds that after filing its Verified Return
dated 21 June 2012, Agham never mentioned again the Section 68 of the Revised Forestry Code, as amended,
alleged violation of the Revised Forestry Code, as states:
amended, and the Philippine Mining Act. Instead, Agham
changed its position and later claimed that LAMI was Sec. 68. Cutting, Gathering and/or collecting Timber, or
flattening a mountain on the port site which was allegedly Other Forest Products Without License. Any person who
illegal per se. Petitioner insists that Agham did not even shall cut, gather, collect, remove timber or other forest
present evidence to establish any environmental damage products from any forest land, or timber from alienable or
which is required for the issuance of the privilege of the disposable public land, or from private land, without any
Writ of Kalikasan. authority, or possess timber or other forest products
without the legal documents as required under existing
Respondents, on the other hand, assert that even if the forest laws and regulations, shall be punished with the
subject land formation is not a mound, hill or mountain, the penalties imposed under Articles 309 and 310 of the
fact remains that the scraping and leveling done by Revised Penal Code: Provided, That in the case of
petitioner caused serious environmental damage which partnerships, associations, or corporations, the officers
affects not only the municipality of Sta. Cruz, Zambales who ordered the cutting, gathering, collection or
but also the nearby towns of Zambales and Pangasinan. possession shall be liable, and if such officers are aliens,
they shall, in addition to the penalty, be deported without
The present case involves the extraordinary remedy of a further proceedings on the part of the Commission on
Writ of Kalikasan which is under the Rules of Procedure Immigration and Deportation.
for Environmental Cases.42 Section 1, Rule 7, Part III of
the said Rules provides: xxxx

Section 1. Nature of the writ. The writ is a remedy There are two distinct and separate offenses punished
available to a natural or juridical person, entity authorized under Section 68 of PD 705:
by law, peoples organization, non-governmental
Law on NatRes (84-89) 63

(1) Cutting, gathering, collecting and removing timber or


other forest products from any forest land, or timber from Sections 57 and 69 of the Philippine Mining Act state:
alienable or disposable public land, or from private land
without any authorization; and Section 57. Expenditure for Community Development and
Science and Mining Technology A contractor shall assist
(2) Possession of timber or other forest products without in the development of its mining community, the promotion
the legal documents required under existing forest laws of the general welfare of its inhabitants, and the
and regulations.44 development of science and mining technology.

In the present case, LAMI was given a Tree Cutting Section 69. Environmental Protection Every contractor
Permit45 by the CENRO dated 17 April 2012. In the shall undertake an environmental protection and
permit, LAMI was allowed to cut 37 trees with a total enhancement program covering the period of the mineral
volume of 7.64 cubic meters within the port site, subject to agreement or permit. Such environmental program shall
the condition that the trees cut shall be replaced with a be incorporated in the work program which the contractor
ratio of 1-30 fruit and non-bearing fruit trees. Thereafter, or permittee shall submit as an accompanying document
the Forest Management Service and Forest Utilization to the application for a mineral agreement or permit. The
Unit, both under the DENR, issued a Post Evaluation work program shall include not only plans relative to
Report46 dated 3 May 2012 stating that LAMI properly mining operations but also to rehabilitation, regeneration,
followed the conditions laid down in the permit. The revegetation and reforestation of mineralized areas, slope
relevant portions of the Post Evaluation Report state: stabilization of mined-out and tailings covered areas,
aquaculture, watershed development and water
x x x the following findings and observations are noted: conservation; and socioeconomic development.

1. That the tree cutting implemented/conducted by the These two provisions are inapplicable to this case. First,
company was confined inside Lot No. 2999, Cad 316-D LAMI is not conducting any mining activity on the port site.
situated at Barangay Bolitoc, Sta. Cruz, Zambales and LAMIs mine site is about 25 kilometers away from the port
within the area previously granted for tree cutting; site. Second, LAMI secured all the necessary permits and
licenses for the construction of a port and LAMIs activity
2. It was found that the thirty seven (37) trees of various was limited to preparatory works for the ports
lesser-known species and fruit bearing trees with a total construction. The Philippine Mining Act deals with mining
volume of 7.64 cubic meters as specified in the permit operations and other mining activities. Sections 57 and 69
were cut as subject trees are located within the directly deal with the development of a mining community and
affected areas of the port facility project of the company; environmental protection covering a mineral agreement or
permit.
3. The other trees previously inventoried and are not
directly affected by the project within the same lot are Here, Agham reasoned that LAMI was destroying the
spared; and environment by cutting mountain trees and leveling a
mountain to the damage and detriment of the residents of
4. There are forty four (44) various species of Zambales and the nearby towns of Pangasinan. Agham
miscellaneous trees counted and left with a computed simply submitted a picture taken on 4 June 2012 where
volume of 6.04 cubic meters. allegedly the backhoes owned by LAMI were pushing the
remnants of the mountain to the sea.
Relative the above findings and in compliance with the
terms and conditions of the permit issued, the company This explanation, absent any concrete proof, is untenable.
should be reminded to replace the trees cut therein as
specified in support with the environmental enhancement Clearly, Agham did not give proper justifications for citing
program of the DENR. Sections 57 and 69 of the Philippine Mining Act. Agham
did not even present any evidence that LAMI violated the
xxxx mining law or any mining undertakings in relation to
LAMIs construction of a port facility. Agham only alleged
Since LAMI strictly followed the permit issued by the in very general terms that LAMI was destroying the
CENRO and even passed the evaluation conducted after environment and leveling a mountain without conducting
the issuance of the permit, then clearly LAMI had the any scientific studies or submitting expert testimonies that
authority to cut trees and did not violate Section 68 of the would corroborate such allegations.
Revised Forestry Code, as amended.
Section 2(c), Rule 7, Part III of the Rules of Procedure for
Next, Agham submitted that LAMI allegedly violated Environmental Cases provides:
Sections 57 and 69 of the Philippine Mining Act.
Law on NatRes (84-89) 64

Section 2. Contents of the petition. - The verified petition 32. Q: One of the complaints of Mayor Marty in his letter
shall contain the following: dated 27 April 2012, x x x, is that LAMI is "leveling a
mountain" in its property in Barangay Bolitoc, Sta. Cruz,
(c) The environmental law, rule or regulation violated or Zambales. Is there really a mountain in the property of
threatened to be violated, the act or omission complained LAMI in the said place?
of, and the environmental damage of such magnitude as
to prejudice the life, health or property of inhabitants in two A: None, sir. The subject landform is not considered as a
or more cities or provinces. mountain based on commonly accepted description of a
mountain as having 300 meters to 2,500 meters height
The Rules are clear that in a Writ of Kalikasan petitioner over base. The highest elevation of the project area is 23
has the burden to prove the (1) environmental law, rule or meters.
regulation violated or threatened to be violated; (2) act or
omission complained of; and (3) the environmental 33. Q: Do you have any proof that the landform in LAMIs
damage of such magnitude as to prejudice the life, health property is not a mountain?
or property of inhabitants in two or more cities or
provinces. A: Yes, sir. The Mines and Geosciences Bureau (MGB),
Regional Office No. III, through the OIC of the
Even the Annotation to the Rules of Procedure for Geosciences Division, issued a Memorandum dated June
Environmental Cases states that the magnitude of 26, 2012 proving that there is no mountain in LAMIs
environmental damage is a condition sine qua non in a property. The proper description of the landform,
petition for the issuance of a Writ of Kalikasan and must according to the said memorandum, is an "elongated
be contained in the verified petition. mound"48

Agham, in failing to prove any violation of the Revised Second, LAMI, through the Judicial Affidavit49 dated 3
Forestry Code, as amended, and the Philippine Mining August 2012 of Felipe E. Floria, LAMIs Vice-President
Act, shifted its focus and then claimed that LAMI allegedly and General Manager, was able m to establish that Brgy.
flattened or leveled a mountain. Bolitoc, Sta. Cruz had no mountain. The relevant portions
provide:
The mountain, according to Agham, serves as a natural
protective barrier from typhoons and floods to the 126. Q: Why do you say that this elevated portion is not a
residents of Zambales and nearby towns of Pangasinan. "mountain"?
Thus, Agham argues that once such natural resources are
damaged, the residents of these two provinces will be A: The port site where the alleged mountain is located is
defenseless and their life, health and properties will be at only 1.8 hectares of alienable and disposable land. It is
constant risk of being lost. private property, lawfully possessed by LAMI, with the
latter exercising rights based on its occupation thereof.
However, Agham, in accusing that LAMI allegedly The mound and/or ridge within the private property is only
flattened a mountain, did not cite any law allegedly about 23 meters high. The base or footing of the mound
violated by LAMI in relation to this claim. Agham did not therein which the Petitioner insists is a mountain is only
present any proof to demonstrate that the local residents 1.5 hectares, and the height is approximately 23 meters. I
in Zambales, and even the nearby towns of Pangasinan, have been advised that a mountain, as described by the
complained of any great danger or harm on the alleged United Nations Environment Programme World
leveling of the land formation which may affect their lives, Conservation Monitoring Centre ("UNEP-WCMC"), must
health or properties. Neither was there any evidence be, at least, of a height greater than 300 meters or 984
showing of a grave and real environmental damage to the feet in addition to other requirements on slope and local
barangay and the surrounding vicinity. elevation range. In other countries, the United Kingdom for
example, the minimum height requirement is 2,000 ft or
To belie Aghams contentions, the records, from the 609.6 meters.50
testimonies of those experts in their fields, show that there
is in fact no mountain in Brgy. Bolitoc, Sta. Cruz, Third, several government entities and officials have
Zambales. declared that there is no mountain on the port site: (1) in a
Letter51 to LAMI signed by the Sangguniang Bayan
First, in the Judicial Affidavit047 dated 6 August 2012, the members of Sta. Cruz dated 4 June 2012, the
Regional Director of DENR EMB R3, Dir. Claudio, Sangguniang Bayan members stated that there is no
categorically declared that there is no mountain on LAMIs mountain in the area; (2) in a Memorandum52 dated 4
property. The relevant portions state: June 2012, the CENRO concluded that the "mountain" is a
"hill falling under Block I, Alienable and Disposable land
per LC Map 635"; and (3) in a Special Report53 re: Police
Law on NatRes (84-89) 65

Assistance dated 6 May 2012, the Provincial Director of elevated landform is neither a mountain or hill, but instead
PNP Zambales reported to the PNP Regional Director, it is considered elongated landmass/or elongated mound.
citing the findings of the local chief of police, that no
leveling of a mountain transpired in the area. CONCLUSION

Last, in an Inspection Report54 dated 26 June 2012, the Based on the above geological and landform (geomorphic)
Mines and Geosciences Bureau, Geosciences Division of classification, considering its elevation of 23 to 26 meters
the DENR concluded that the "mountain" is only an above mean sea level and which is 16 meters above the
elongated mound. The findings and conclusion of the barangay road and vicinity, the elevated landform present
report provide: in the LAMI port facility is neither a hill or mountain. Its
elevation of 16 meters above its vicinity is lower than a hill
FINDINGS (30 meters). Its height above its vicinity can be possibly
categorized as a mound which is defined by the Dictionary
1. The Bolitoc LAMI Port Facility is approximately centered of Geological terms (1976) prepared by the American
at the intersection of geographic coordinates 154500.4" Geological Institute as which defines a mound as "a low
north latitude and 1195319.9" east longitude, x x x. It is hill of earth, natural or artificial." In the United Kingdom,
bounded on the north by the West Philippine Sea (Bolitoc mounds are also called hillocks or knolls. The term
Bay), on the west and east by the continuation of the elongated is prefixed as a modifier to describe its east-
elevated landform, and to the south by an unnamed creek west disposition. Hence, the elevated landform of interest
and a concrete barangay road connecting the Brgy. Bolitoc is considered as elongated mound.55 (Emphasis supplied)
to the Zambales National Highway.
On the other hand, the lone witness of Agham, former
Brgy. Bolitoc also hosts the port facilities of the DMCI and Rep. Palmones, admitted in the 10 September 2012
the Shangfil Corporation both of which occupy the former hearing conducted by the Court of Appeals that he was
loading site of the defunct Acoje Mining Corporation. incompetent to prove that the elevated ground located in
Brgy. Bolitoc is a mountain. The relevant portions56 of
2. The landform of interest is characterized by a roughly Rep. Palmones testimony provide:
east-west trending elevated and elongated landmass.
Within the LAMI site, the elevated landform measures 164 Atty. Gallos: Mr. Congressman, you conducted an ocular
meters in length and about 94 meters in width and is inspection in Brgy. Bolitoc in Sta. Cruz, Zambales on May
almost parallel to the coastline. It has a maximum 21?
elevation located at its eastern end of 26 meters above
mean sea level more or less. Its western end has an Cong. Palmones: Yes.
elevation of 23 meters above mean sea level more or less
x x x. The landform is about 16 meters higher than the xxxx
barangay road and nearby houses x x x.
Atty. Gallos: That was the first time you were in Brgy.
From the LAMI area, the landform continues eastwards to Bolitoc?
the DMCI and the Shangfil Port facilities and also
westwards to the vicinity of Brgy. Bolitoc proper. Cong. Palmones: Yes.

3. The area is underlain by interbedded calcareous Atty. Gallos: That was also the first and the last ocular
sandstone, shale, and siltstone of the Cabaluan Formation inspection that you did so far in Brgy. Bolitoc?
(formerly Zambales Formation), x x x. Rock outcrops show
the sedimentary sequence displaying almost horizontal to Cong. Palmones: Yes.
gently dipping beds cut by a minor fault. These rocks
weather into a 1-2 meter silty clay. xxxx

DISCUSSION Atty. Gallos: What is the name of this mountain?

Considering elevated landform of interest measures 164 Cong. Palmones: I really dont know the name of the
meters in length and about 94 meters in width disposed in mountain, Your Honor.
an elongate manner with a maximum elevation of 26
meters more or less above mean sea level and is about 16 Atty. Gallos: What is the elevation or height of this
meters higher than the barangay road and nearby houses mountain?
and using the Glossary of Landforms and Geologic Terms
x x x by Hawley and Parsons, 1980 above that the Cong. Palmones: I really dont know the elevation of that
mountain, Your Honors.
Law on NatRes (84-89) 66

and properties of the residents of the municipality of Sta.


Atty. Gallos: What is the base of this mountain? Cruz and its neighboring towns or cities, or even the
provinces of Zambales and Pangasinan. The pleadings
Cong. Palmones: I really dont know, Your Honors. and documents submitted by Agham were just a
reiteration of its original position before the original Court
Atty. Tolentino: Your Honor, the witness is incompetent to of Appeals decision was promulgated on 23 November
answer the questions. 2012.

Cong. Palmones: Im not competent to answer that It is well-settled that a party claiming the privilege for the
question. issuance of a Writ of Kalikasan has to show that a law,
rule or regulation was violated or would be violated. In the
Atty. Gallos: Your Honor, thats exactly our point. He is present case, the allegation by Agham that two laws the
claiming that there is a mountain but he cannot tell us the Revised Forestry Code, as amended, and the Philippine
height, the slope, the elevation, the base, Your Honor. So Mining Act were violated by LAMI was not adequately
you admit now that you do not know, you do not have the substantiated by Agham. Even the facts submitted by
competence to state whether or not there is a mountain? Agham to establish environmental damage were mere
general allegations.
Cong. Palmones: I really dont know what is the technical
description of a mountain but based on the information Second, Aghams allegation that there was a "mountain" in
that we got from the community during the consultation its LAMIs port site was earlier established as false as the
full of vegetation before it was leveled down by the "mountain" was non-existent as proven by the testimonies
operation, Your Honors. (Emphasis supplied) of the witnesses and reports made by environmental
experts and persons who have been educated and trained
Agham, in its Motion for Reconsideration with the Court of in their respective fields.
Appeals, then asserted that even if the subject land
formation is not a mound, hill or mountain, the fact remains Third, contrary to Aghams claim that LAMI had no ECC
that the scraping and leveling done by petitioner caused from the DENR, the DENR restored LAMIs ECC. After
serious environmental damage which affects not only Sta. LAMI was issued a Notice of Violation of its ECC dated 1
Cruz, Zambales but also the nearby towns of Zambales June 2012 by the DENR-EMB R3, LAMI complied with all
and Pangasinan. the requirements and its ECC had been reinstated. In the
Letter57 dated 24 October 2012, Dir. Claudio wrote:
The Court of Appeals, in granting the Motion for
Reconsideration embodied in its Amended Decision dated xxxx
13 September 2013, held that what LAMI did was not to
simply level the subject land formation but scrape and Regarding the alleged cutting of trees and leveling of the
remove a small mountain and, thereafter, reclaim a portion mountain, we have verified that:
of the adjacent waters with the earth it took therefrom,
making out of the soil gathered to construct a seaport. The 1. There is no illegal cutting of trees since a Tree Cutting
Court of Appeals stated that the scraping off or the cutting Permit was issued by the Community Environment and
of the subject land formation by LAMI would instigate the Natural Resources Office (CENRO). Monitoring of the
gradual eradication of the strip of land mass in Brgy. compliance with the conditions of the said Permit was also
Bolitoc which serves as protective barrier to floods brought undertaken by the CENRO; and
about by the swelling or surging of the coastal water
moving inward reaching other towns of Zambales and 2. There is no leveling of a mountain. As certified by the
Pangasinan. The Court of Appeals added that the port site Mines and Geosciences Bureau Region 3, the landform in
is prone to frequent visits of tropical depression and that the area is an elongated mound which is 164 meters in
the coastal portions of the "Sta. Cruz Quadrangle length and 94 meters in width and its maximum elevation
Zambales and Pangasinan province" are touted to be is 26 meters above mean sea level.
highly susceptible to landslide and flooding.
Further, we recognize your efforts in revegetating the
We do not subscribe to the appellate courts view. exposed side slopes of the cut portion of the mound and
the construction of drainage system and silt traps to
First, the Court of Appeals did not provide any basis, in prevent the siltation of the bay.
fact and in law, to support the reversal of its original
decision. Agham, in its Motion for Reconsideration, did not The violated ECC conditions have been rectified and
present new evidence to refute its claim that LAMI leveled clarified while the penalty corresponding to such violation
a "mountain" or that there was an environmental damage was fully paid and the required rehabilitation and mitigating
of considerable significance that will harm the life, health measures were already implemented as committed. As
Law on NatRes (84-89) 67

such, the matter leading to the issuance of the NOV is now A/Sol. Chua Cheng: What about the effect of such cut and
resolved. fill operations as regards the two provinces, Pangasinan
and Zambales, does it have any effect or what is the
As ECC holder, you are enjoined to ensure the effective extent of the effect?
carrying out of your Environmental Management and
Monitoring Plan. Dir. Claudio: It is just localized; it is just confined within the
project area because we required them to put up the
Even Rep. Dan S. Fernandez, the Chairman of the drainage system, the drainage, the canals and the siltation
Committee on Ecology of the House of Representatives, ponds and the laying of armour rocks for the sea wall and
acknowledged that LAMI had fully complied with its ECC the construction of causeway, Sir, to avoid erosion and
conditions. In a Letter58 dated 26 February 2013 sedimentation. We also required them to rehabilitate the
addressed to the DENR Secretary, Rep. Fernandez wrote: exposed slopes which they already did.

xxxx xxxx

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

Last, the alleged scraping off or leveling of land at LAMIs 6.0 Findings in Relation to the Petition for Writ of
port site is deemed insignificant to pose a detrimental Kalikasan
impact on the environment.
xxxx
Dir. Claudio testified at the hearing conducted by the Court
of Appeals on 26 September 2012 that the cut and fill 1. The LAMI Port is partly situated in a hill and not a
operations of LAMI only affected the port site but not the mountain. The topographic and geologic maps of NAMRIA
surrounding area and that the environmental effect was and the MGB do not show the presence of a mountain
only minimal and insignificant. The relevant portions of Dir. where the port is partly located. The detailed topographic
Claudios testimony provide: survey moreover indicates that this hill had an original
elevation of 23 m.MSL in the portion where it was
A/Sol. Chua Cheng: Madam Witness, you made mention excavated to 0accommodate the access road leading to
that the cut and fill operations involved the... or the the wharf.
causeway created during the cut and fill operation is 82
meters in length and 8 meters in width. What is the overall Mountains attain much higher elevations than 23 m.MSL.
environment effect of this cut and fill operation in Barangay Kendall et al. (1967), defines a mountain as having a
Bolitoc? height of at least 900 meters and are usually characterized
by a vertical zonation of landscape and vegetation due to
Dir. Claudio.: It is minimal, insignificant and temporary in increasing elevations.
nature, Sir, because as I mentioned, only 11,580 cubic
meters had been stripped off and the tree cutting which 2. No leveling of a mountain was done. The construction of
had been issued with a permit is only less than about 37 the access road required a V-cut through the hill that
trees based on the Post Evaluation Report done by the lowered it from 23 m.MSL to 7.5 m.MSL. This elevation is
CENRO, Sir. still much higher than the flat land surrounding the hill. The
hill had an original length of 600 meters through which the
V-cut, which has an average width of 26.5 meters, was
Law on NatRes (84-89) 68

excavated. Only a small portion of the hill was therefore Further, the DENR composite team, in its Report of
altered. Investigation62 conducted on 20-21 June 2012 on LAMIs
port site to ensure that LAMI undertook mitigating
The topographic survey further reveals that the total measures in its property, found that LAMIs activities
volume of earth material removed is 24,569 cubic meters, posed only a minimal or insignificant impact to the
which would fit a room that has a length, width and height environment. The relevant portions of the Report state:
of 29 meters. This amount of earth material does not
constitute the volume of a mountain. Findings and Observations:

3. The hill is too small and not in the right location to The composite team gathered data and the following are
protect against typhoons. The hill cannot serve as a the initial observations:
natural protective barrier against typhoons in Zambales
and some towns of Pangasinan because it is too small 1. Site preparation which includes site grading/surface
compared to the magnitude of typhoons. Typhoons stripping, low ridge cut and fill and reclamation works were
approach the country from east and move in a west to observed to have been undertaken within the project area;
northwest direction through Zambales Province as clarified
in Figure 7. They are even able to cross the Sierra Madre 2. A total volume of approximately 11,580 cubic meters of
Range and the Zambales Range before reaching soil cut/stripped from low ridge was noted being used for
Zambales Province. Since the port is situated at the causeway construction. Part of the discarded soil with a
western coastline of Zambales, it would be the last thing a volume of 5,843 cubic meters was already used for
typhoon would pass by as it moves through Zambales. causeway preparation while the remaining 5,735 cubic
meters was noted still on stockpile area;
4. The hill is too small to protect against the Southwest
Monsoon. The hill does not shield any area from the heavy 3. Discarded soil generated from ridge cut and fill consists
rains that batter the country during the Southwest of clay with sandstone and shale;
Monsoon. It is too small to alter the effect of the Southwest
Monsoon in the way that the Sierra Madre Range forces 4. The partial low ridge cut and fill poses minimal or
the Northwest Monsoon to rise over it and release much of insignificant impact to the environment due to threats of
its moisture as orographic precipitation on the windward storm surges, strong winds and flooding because the
side of the range such that the leeward side is drier. protective natural barriers against northeast monsoon are
the mountain ranges in the eastern part of Zambales and
5. The hill is not in the right location to protect against Pangasinan which are geologically and historically
flooding due to heavy rains. The hill does not protect effective as in the case of the adjoining and operational
against the floods that occur from heavy rains. Since ports of the DMCI and Shang Fil.
Zambales regionally slopes down to the west, flood water
during heavy rains will move from east to west following 5. The height of the low ridge is still maintained at an
the flow direction of rivers in the area. Flood water from elevation of 23.144 meters above sea level while the
the Zambales Range will inundate the coastal plain first constructed access road to the causeway has an elevation
before reaching the coastline where the hill is situated. of 7.46 meters with a width of 8 meters and length of 80-
Figure 11 depicts the flow direction of flood water in the 100 meters only.
municipality.
Remarks and Recommendation:
6. The hill is too small to protect against floods due to
storm surges. Storm surges appear as large waves that The construction of the access road on the low ridge does
are caused by the pushing of the wind on the surface of not pose adverse environmental impact to the adjoining
the sea or ocean during storm events. Since the hill has a communities more so to the larger areas or the entire
present length of only 420 meters, it is too small to prevent province of Zambales and Pangasinan.
flooding due to storm surges.1wphi1 The large waves will
just skirt the hill and sweep through the low-lying coastland It was determined as a result of our verification and based
to the west and east of the hill. on the above findings supported with field GPS reading
that there had been no leveling of the mountain
The hill shields against the direct impact of large, south- undertaken in the project site as there is no mountain
moving waves to several homes located immediately existing inside the area covered by the ECC issued by
south of the hill. Since the V-cut of the access road is EMB-Region 3. The landform claimed by Mayor Marty to
small compared to the rest of the hill and terminates at a be a mountain is actually an elongated low ridge with a
relatively high 7.5 m.MSL, this protection offered by the hill peak of approximately 23 meters above sea level which is
is not significantly diminished.61 located in a private land falling under Block 1, Alienable
and Disposable Land per LC Map 635 with Lot No. 2999
Law on NatRes (84-89) 69

originally owned by Mr. Severo Monsalud which was petition for the issuance of the privilege of the Writ of
transferred to Sta. Cruz Mineral Port Corporation with a Kalikasan must be denied.
Contract of Lease with LAMI (data provided by CENRO
Masinloc through a Memorandum dated June 4, 2012). WHEREFORE, we GRANT the petition. We REVERSE
The proponent (LAMI) only implemented road cutting of and SET ASIDE the Amended Decision dated 13
low ridge in the middle to make an access way to the September 2013 of the Court of Appeals and REINSTATE
proposed marine loading facility. More so, tree cutting AND AFFIRM the original Decision dated 23 November
done by LAMI is covered by a Permit to Cut issued by 2012 of the Court of Appeals in CA-G.R. SP No. 00012
DENR-Region 3-CENRO, Masinloc which is responsible which DENIED the petition for the issuance of the privilege
for the inventory and monitoring of cut trees. of the Writ of Kalikasan. SO ORDERED.

x x x x63 (Emphasis supplied) SEGOVIA V CLIMATE CHANGE COMMISSION- PDF


MOST REV. PEDRO D. ARIGO, Vicar Apostolic of
Thus, from all the foregoing, we agree with the appellate
Puerto Princesa D.D.; MOST REV. DEOGRACIAS S.
court, in its original Decision dated 23 November 2012,
INIGUEZ, JR., Bishop-Emeritus of Caloocan,
when it denied the petition for a Writ of Kalikasan:
FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA, JR.,
Kalikasan-PNE, MARIA CAROLINA P. ARAULLO,
As between the too general and very hypothetical
RENATO M. REYES, JR., Bagong Alyansang
allegation of large-scale environmental damage at one
Makabayan, HON. NERI JAVIER COLMENARES, Bayan
hand, and the remarks of government experts on the
Muna Partylist, ROLAND G. SIMBULAN, PH.D., Junk
other, We are inclined to give more credit to the latter.
VF A Movement, TERESITA R. PEREZ, PH.D., HON.
Below is the further articulation of our stance:
RAYMOND V. PALATINO, Kabataan Party-list, PETER
SJ. GONZALES, Pamalakaya, GIOVANNI A. TAPANG,
Presumption of regularity
PH. D., Agham, ELMER C. LABOG, Kilusang Mayo
Uno, JOAN MAY E. SALVADOR, Gabriela, JOSE
It is a legal presumption, born of wisdom and experience,
ENRIQUE A. AFRICA, THERESA A. CONCEPCION,
that official duty has been regularly performed. Therefore,
MARY JOAN A. GUAN, NESTOR T. BAGUINON, PH.D.,
the fact that the "remarks and recommendation" of the
A. EDSEL F. TUPAZ, Petitioners, vs. SCOTT H. SWIFT
composite team from EMB R3, MGB R3, and PENRO
in his capacity as Commander of the US. 7th Fleet,
Zambales were made in the exercise of their government
MARK A. RICE in his capacity as Commanding Officer
function, the presumption of regularity in the performance
of the USS Guardian, PRESIDENT BENIGNO S.
of such official duty stands. It is incumbent upon petitioner
AQUINO III in his capacity as Commander-in-Chief of
to prove otherwise, a task which it failed to do here.
the Armed Forces of the Philippines, HON. ALBERT F.
DEL ROSARIO, Secretary, pepartment of Foreign
Expert findings are afforded great weight
Affair.s, HON. PAQUITO OCHOA, JR.,
Executiv~.:Secretary, Office of the President, . HON.
The findings of facts of administrative bodies charged with
VOLTAIRE T. GAZMIN, Secretary, Department of
their specific field of expertise, are afforded great weight
National Defense, HON. RAMON JESUS P. P AJE,
by the courts, and in the absence of substantial showing
Secretary, Department of Environment and Natural
that such findings are made from an erroneous estimation
Resoz!rces, VICE ADMIRAL JOSE LUIS M. ALANO,
of the evidence presented, they are conclusive, and in the
Philippine Navy Flag Officer in Command, Armed
interest of stability of the governmental structure, should
Forces of the Philippines, ADMIRAL RODOLFO D. ISO
not be disturbed. x x x.64
RENA, Commandant, Philippine Coast Guard,
COMMODORE ENRICO EFREN EVANGELISTA,
In sum, contrary to the findings of the appellate court in its
Philippine Coast Guard Palawan, MAJOR GEN.
Amended Decision dated 13 September 2013, we find that
VIRGILIO 0. DOMINGO, Commandant of Armed Forces
LAMI did not cause any environmental damage that
of the Philippines Command and LT. GEN. TERRY G.
prejudiced the life, health or property of the inhabitants
ROBLING, US Marine Corps Forces. Pacific and
residing in the municipality of Sta. Cruz, the province of
Balikatan 2013 Exercise Co-Director, Respondents.;
Zambales or in the neighboring province of Pangasinan.
G.R. No. 206510 September 16, 2014
Agham, as the party that has the burden to prove the
requirements for the issuance of the privilege of the Writ
ofKalikasan, failed to prove (1) the environmental laws
Before us is a petition for the issuance of a Writ of
allegedly violated by LAMI; and (2) the magnitude of the
Kalikasan with prayer for the issuance of a Temporary
environmental damage allegedly caused by LAMI in the
Environmental Protection Order (TEPO) under Rule 7 of
construction of LAMI' s port facility in Brgy. Bolitoc, Sta.
A.M. No. 09-6-8-SC, otherwise known as the Rules of
Cruz, Zambales and its surrounding area. Thus, the
Procedure for Environmental Cases (Rules), involving
Law on NatRes (84-89) 70

violations of environmental laws and regulations in relation ship left Sasebo, Japan for Subic Bay, arriving on January
to the grounding of the US military ship USS Guardian 13, 2013 after a brief stop for fuel in Okinawa,
over the Tubbataha Reefs. Japan.1wphi1

Factual Background On January 15, 2013, the USS Guardian departed Subic
Bay for its next port of call in Makassar, Indonesia. On
The name "Tubbataha" came from the Samal (seafaring January 17, 2013 at 2:20 a.m. while transiting the Sulu
people of southern Philippines) language which means Sea, the ship ran aground on the northwest side of South
"long reef exposed at low tide." Tubbataha is composed of Shoal of the Tubbataha Reefs, about 80 miles east-
two huge coral atolls - the north atoll and the south atoll - southeast of Palawan. No cine was injured in the incident,
and the Jessie Beazley Reef, a smaller coral structure and there have been no reports of leaking fuel or oil.
about 20 kilometers north of the atolls. The reefs of
Tubbataha and Jessie Beazley are considered part of On January 20, 2013, U.S. 7th Fleet Commander, Vice
Cagayancillo, a remote island municipality of Palawan.1 Admiral Scott Swift, expressed regret for the incident in a
press statement.5 Likewise, US Ambassador to the
In 1988, Tubbataha was declared a National Marine Park Philippines Harry K. Thomas, Jr., in a meeting at the
by virtue of Proclamation No. 306 issued by President Department of Foreign Affairs (DFA) on February 4,
Corazon C. Aquino on August 11, 1988. Located in the "reiterated his regrets over the grounding incident and
middle of Central Sulu Sea, 150 kilometers southeast of assured Foreign Affairs Secretazy Albert F. del Rosario
Puerto Princesa City, Tubbataha lies at the heart of the that the United States will provide appropriate
Coral Triangle, the global center of marine biodiversity. compensation for damage to the reef caused by the
ship."6 By March 30, 2013, the US Navy-led salvage team
In 1993, Tubbataha was inscribed by the United Nations had finished removing the last piece of the grounded ship
Educational Scientific and Cultural Organization from the coral reef.
(UNESCO) as a World Heritage Site. It was recognized as
one of the Philippines' oldest ecosystems, containing On April 1 7, 2013, the above-named petitioners on their
excellent examples of pristine reefs and a high diversity of behalf and in representation of their respective
marine life. The 97,030-hectare protected marine park is sector/organization and others, including minors or
also an important habitat for internationally threatened and generations yet unborn, filed the present petition agairtst
endangered marine species. UNESCO cited Tubbataha's Scott H. Swift in his capacity as Commander of the US 7th
outstanding universal value as an important and significant Fleet, Mark A. Rice in his capacity as Commanding Officer
natural habitat for in situ conservation of biological of the USS Guardian and Lt. Gen. Terry G. Robling, US
diversity; an example representing significant on-going Marine Corps Forces, Pacific and Balikatan 2013
ecological and biological processes; and an area of Exercises Co-Director ("US respondents"); President
exceptional natural beauty and aesthetic importance.2 Benigno S. Aquino III in his capacity as Commander-in-
Chief of the Armed Forces of the Philippines (AFP), DF A
On April 6, 2010, Congress passed Republic Act (R.A.) Secretary Albert F. Del Rosario, Executive Secretary
No. 10067,3 otherwise known as the "Tubbataha Reefs Paquito Ochoa, Jr., Secretary Voltaire T. Gazmin
Natural Park (TRNP) Act of 2009" "to ensure the (Department of National Defense), Secretary Jesus P.
protection and conservation of the globally significant Paje (Department of Environment and Natural Resources),
economic, biological, sociocultural, educational and Vice-Admiral Jose Luis M. Alano (Philippine Navy Flag
scientific values of the Tubbataha Reefs into perpetuity for Officer in Command, AFP), Admiral Rodolfo D. Isorena
the enjoyment of present and future generations." Under (Philippine Coast Guard Commandant), Commodore
the "no-take" policy, entry into the waters of TRNP is Enrico Efren Evangelista (Philippine Coast Guard-
strictly regulated and many human activities are prohibited Palawan), and Major General Virgilio 0. Domingo (AFP
and penalized or fined, including fishing, gathering, Commandant), collectively the "Philippine respondents."
destroying and disturbing the resources within the TRNP.
The law likewise created the Tubbataha Protected Area The Petition
Management Board (TPAMB) which shall be the sole
policy-making and permit-granting body of the TRNP. Petitioners claim that the grounding, salvaging and post-
salvaging operations of the USS Guardian cause and
The USS Guardian is an Avenger-class mine continue to cause environmental damage of such
countermeasures ship of the US Navy. In December 2012, magnitude as to affect the provinces of Palawan, Antique,
the US Embassy in the Philippines requested diplomatic Aklan, Guimaras, Iloilo, Negros Occidental, Negros
clearance for the said vessel "to enter and exit the Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-
territorial waters of the Philippines and to arrive at the port Tawi, which events violate their constitutional rights to a
of Subic Bay for the purpose of routine ship replenishment, balanced and healthful ecology. They also seek a directive
maintenance, and crew liberty."4 On January 6, 2013, the from this Court for the institution of civil, administrative and
Law on NatRes (84-89) 71

criminal suits for acts committed in violation of against erring officers and individuals to the full extent of
environmental laws and regulations in connection with the the law, and to make such proceedings public;
grounding incident.
c. Declare that Philippine authorities may exercise primary
Specifically, petitioners cite the following violations and exclusive criminal jurisdiction over erring U.S.
committed by US respondents under R.A. No. 10067: personnel under the circumstances of this case;
unauthorized entry (Section 19); non-payment of
conservation fees (Section 21 ); obstruction of law d. Require Respondents to pay just and reasonable
enforcement officer (Section 30); damages to the reef compensation in the settlement of all meritorious claims for
(Section 20); and destroying and disturbing resources damages caused to the Tubbataha Reef on terms and
(Section 26[g]). Furthermore, petitioners assail certain conditions no less severe than those applicable to other
provisions of the Visiting Forces Agreement (VFA) which States, and damages for personal injury or death, if such
they want this Court to nullify for being unconstitutional. had been the case;

The numerous reliefs sought in this case are set forth in e. Direct Respondents to cooperate in providing for the
the final prayer of the petition, to wit: WHEREFORE, in attendance of witnesses and in the collection and
view of the foregoing, Petitioners respectfully pray that the production of evidence, including seizure and delivery of
Honorable Court: 1. Immediately issue upon the filing of objects connected with the offenses related to the
this petition a Temporary Environmental Protection Order grounding of the Guardian;
(TEPO) and/or a Writ of Kalikasan, which shall, in
particular, f. Require the authorities of the Philippines and the United
States to notify each other of the disposition of all cases,
a. Order Respondents and any person acting on their wherever heard, related to the grounding of the Guardian;
behalf, to cease and desist all operations over the
Guardian grounding incident; g. Restrain Respondents from proceeding with any
purported restoration, repair, salvage or post salvage plan
b. Initially demarcating the metes and bounds of the or plans, including cleanup plans covering the damaged
damaged area as well as an additional buffer zone; area of the Tubbataha Reef absent a just settlement
approved by the Honorable Court;
c. Order Respondents to stop all port calls and war games
under 'Balikatan' because of the absence of clear h. Require Respondents to engage in stakeholder and
guidelines, duties, and liability schemes for breaches of LOU consultations in accordance with the Local
those duties, and require Respondents to assume Government Code and R.A. 10067;
responsibility for prior and future environmental damage in
general, and environmental damage under the Visiting i. Require Respondent US officials and their
Forces Agreement in particular. representatives to place a deposit to the TRNP Trust Fund
defined under Section 17 of RA 10067 as a bona .fide
d. Temporarily define and describe allowable activities of gesture towards full reparations;
ecotourism, diving, recreation, and limited commercial
activities by fisherfolk and indigenous communities near or j. Direct Respondents to undertake measures to
around the TRNP but away from the damaged site and an rehabilitate the areas affected by the grounding of the
additional buffer zone; Guardian in light of Respondents' experience in the Port
Royale grounding in 2009, among other similar grounding
2. After summary hearing, issue a Resolution extending incidents;
the TEPO until further orders of the Court;
k. Require Respondents to regularly publish on a quarterly
3. After due proceedings, render a Decision which shall basis and in the name of transparency and accountability
include, without limitation: such environmental damage assessment, valuation, and
valuation methods, in all stages of negotiation;
a. Order Respondents Secretary of Foreign Affairs,
following the dispositive portion of Nicolas v. Romulo, "to l. Convene a multisectoral technical working group to
forthwith negotiate with the United States representatives provide scientific and technical support to the TPAMB;
for the appropriate agreement on [environmental
guidelines and environmental accountability] under m. Order the Department of Foreign Affairs, Department of
Philippine authorities as provided in Art. V[] of the VFA ... " National Defense, and the Department of Environment and
Natural Resources to review the Visiting Forces
b. Direct Respondents and appropriate agencies to Agreement and the Mutual Defense Treaty to consider
commence administrative, civil, and criminal proceedings whether their provisions allow for the exercise of erga
Law on NatRes (84-89) 72

omnes rights to a balanced and healthful ecology and for and legislators when the public interest so requires, such
damages which follow from any violation of those rights; as when the subject matter of the controversy is of
transcendental importance, of overreaching significance to
n. Narrowly tailor the provisions of the Visiting Forces society, or of paramount public interest.12
Agreement for purposes of protecting the damaged areas
of TRNP; In the landmark case of Oposa v. Factoran, Jr.,13 we
recognized the "public right" of citizens to "a balanced and
o. Declare the grant of immunity found in Article V healthful ecology which, for the first time in our
("Criminal Jurisdiction") and Article VI of the Visiting constitutional history, is solemnly incorporated in the
Forces Agreement unconstitutional for violating equal fundamental law." We declared that the right to a balanced
protection and/or for violating the preemptory norm of and healthful ecology need not be written in the
nondiscrimination incorporated as part of the law of the Constitution for it is assumed, like other civil and polittcal
land under Section 2, Article II, of the Philippine rights guaranteed in the Bill of Rights, to exist from the
Constitution; inception of mankind and it is an issue of transcendental
importance with intergenerational implications.1wphi1
p. Allow for continuing discovery measures; Such right carries with it the correlative duty to refrain from
impairing the environment.14
q. Supervise marine wildlife rehabilitation in the Tubbataha
Reefs in all other respects; and On the novel element in the class suit filed by the
petitioners minors in Oposa, this Court ruled that not only
4. Provide just and equitable environmental rehabilitation do ordinary citizens have legal standing to sue for the
measures and such other reliefs as are just and equitable enforcement of environmental rights, they can do so in
under the premises.7 (Underscoring supplied.) representation of their own and future generations. Thus:

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

Locus standi is "a right of appearance in a court of justice The liberalization of standing first enunciated in Oposa,
on a given question."10 Specifically, it is "a party's insofar as it refers to minors and generations yet unborn,
personal and substantial interest in a case where he has is now enshrined in the Rules which allows the filing of a
sustained or will sustain direct injury as a result" of the act citizen suit in environmental cases. The provision on
being challenged, and "calls for more than just a citizen suits in the Rules "collapses the traditional rule on
generalized grievance."11 However, the rule on standing personal and direct interest, on the principle that humans
is a procedural matter which this Court has relaxed for are stewards of nature."16
non-traditional plaintiffs like ordinary citizens, taxpayers
Law on NatRes (84-89) 73

Having settled the issue of locus standi, we shall address may move to dismiss the comp.taint on the ground that it
the more fundamental question of whether this Court has has been filed without its consent.19 (Emphasis supplied.)
jurisdiction over the US respondents who did not submit
any pleading or manifestation in this case. Under the American Constitution, the doctrine is
expressed in the Eleventh Amendment which reads:
The immunity of the State from suit, known also as the
doctrine of sovereign immunity or non-suability of the The Judicial power of the United States shall not be
State,17 is expressly provided in Article XVI of the 1987 construed to extend to any suit in law or equity,
Constitution which states: commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or
Section 3. The State may not be sued without its consent. Subjects of any Foreign State.

In United States of America v. Judge Guinto,18 we In the case of Minucher v. Court of Appeals,20 we further
discussed the principle of state immunity from suit, as expounded on the immunity of foreign states from the
follows: jurisdiction of local courts, as follows:

The rule that a state may not be sued without its consent, The precept that a State cannot be sued in the courts of a
now expressed in Article XVI, Section 3, of the 1987 foreign state is a long-standing rule of customary
Constitution, is one of the generally accepted principles of international law then closely identified with the personal
international law that we have adopted as part of the law immunity of a foreign sovereign from suit and, with the
of our land under Article II, Section 2. x x x. emergence of democratic states, made to attach not just to
the person of the head of state, or his representative, but
Even without such affirmation, we would still be bound by also distinctly to the state itself in its sovereign capacity. If
the generally accepted principles of international law under the acts giving rise to a suit arc those of a foreign
the doctrine of incorporation. Under this doctrine, as government done by its foreign agent, although not
accepted by the majority of states, such principles are necessarily a diplomatic personage, but acting in his
deemed incorporated in the law of every civilized state as official capacity, the complaint could be barred by the
a condition and consequence of its membership in the immunity of the foreign sovereign from suit without its
society of nations. Upon its admission to such society, the consent. Suing a representative of a state is believed to
state is automatically obligated to comply with these be, in effect, suing the state itself. The proscription is not
principles in its relations with other states. accorded for the benefit of an individual but for the State,
in whose service he is, under the maxim -par in parem,
As applied to the local state, the doctrine of state immunity non habet imperium -that all states are soverr~ign equals
is based on the justification given by Justice Holmes that and cannot assert jurisdiction over one another. The
''there can be no legal right against the authority which implication, in broad terms, is that if the judgment against
makes the law on which the right depends." [Kawanakoa an official would rec 1uire the state itself to perform an
v. Polybank, 205 U.S. 349] There are other practical affirmative act to satisfy the award, such as the
reasons for the enforcement of the doctrine. In the case of appropriation of the amount needed to pay the damages
the foreign state sought to be impleaded in the local decreed against him, the suit must be regarded as being
jurisdiction, the added inhibition is expressed in the maxim against the state itself, although it has not been formally
par in parem, non habet imperium. All states are sovereign impleaded.21 (Emphasis supplied.)
equals and cannot assert jurisdiction over one another. A
contrary disposition would, in the language of a celebrated In the same case we also mentioned that in the case of
case, "unduly vex the peace of nations." [De Haber v. diplomatic immunity, the privilege is not an immunity from
Queen of Portugal, 17 Q. B. 171] the observance of the law of the territorial sovereign or
from ensuing legal liability; it is, rather, an immunity from
While the doctrine appears to prohibit only suits against the exercise of territorial jurisdiction.22
the state without its consent, it is also applicable to
complaints filed against officials of the state for acts In United States of America v. Judge Guinto,23 one of the
allegedly performed by them in the discharge of their consolidated cases therein involved a Filipino employed at
duties. The rule is that if the judgment against such Clark Air Base who was arrested following a buy-bust
officials will require the state itself to perform an affirmative operation conducted by two officers of the US Air Force,
act to satisfy the same,. such as the appropriation of the and was eventually dismissed from his employment when
amount needed to pay the damages awarded against he was charged in court for violation of R.A. No. 6425. In a
them, the suit must be regarded as against the state itself complaint for damages filed by the said employee against
although it has not been formally impleaded. [Garcia v. the military officers, the latter moved to dismiss the case
Chief of Staff, 16 SCRA 120] In such a situation, the state on the ground that the suit was against the US
Government which had not given its consent. The RTC
Law on NatRes (84-89) 74

denied the motion but on a petition for certiorari and arises where the public official acts without authority or in
prohibition filed before this Court, we reversed the RTC excess of the powers vested in him. It is a well-settled
and dismissed the complaint. We held that petitioners US principle of law that a public official may be liable in his
military officers were acting in the exercise of their official personal private capacity for whatever damage he may
functions when they conducted the buy-bust operation have caused by his act done with malice and in bad faith,
against the complainant and thereafter testified against or beyond the scope of his authority or jurisdiction.26
him at his trial. It follows that for discharging their duties as (Emphasis supplied.) In this case, the US respondents
agents of the United States, they cannot be directly were sued in their official capacity as commanding officers
impleaded for acts imputable to their principal, which has of the US Navy who had control and supervision over the
not given its consent to be sued. USS Guardian and its crew. The alleged act or omission
resulting in the unfortunate grounding of the USS
This traditional rule of State immunity which exempts a Guardian on the TRNP was committed while they we:re
State from being sued in the courts of another State performing official military duties. Considering that the
without the former's consent or waiver has evolved into a satisfaction of a judgment against said officials will require
restrictive doctrine which distinguishes sovereign and remedial actions and appropriation of funds by the US
governmental acts (Jure imperil") from private, commercial government, the suit is deemed to be one against the US
and proprietary acts (Jure gestionis). Under the restrictive itself. The principle of State immunity therefore bars the
rule of State immunity, State immunity extends only to acts exercise of jurisdiction by this Court over the persons of
Jure imperii. The restrictive application of State immunity respondents Swift, Rice and Robling.
is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its During the deliberations, Senior Associate Justice Antonio
commercial activities or economic affairs.24 T. Carpio took the position that the conduct of the US in
this case, when its warship entered a restricted area in
In Shauf v. Court of Appeals,25 we discussed the violation of R.A. No. 10067 and caused damage to the
limitations of the State immunity principle, thus: TRNP reef system, brings the matter within the ambit of
Article 31 of the United Nations Convention on the Law of
It is a different matter where the public official is made to the Sea (UNCLOS). He explained that while historically,
account in his capacity as such for acts contrary to law warships enjoy sovereign immunity from suit as extensions
and injurious to the rights of plaintiff. As was clearly set of their flag State, Art. 31 of the UNCLOS creates an
forth by JustiGe Zaldivar in Director of the Bureau of exception to this rule in cases where they fail to comply
Telecommunications, et al. vs. Aligaen, etc., et al. : with the rules and regulations of the coastal State
"Inasmuch as the State authorizes only legal acts by its regarding passage through the latter's internal waters and
officers, unauthorized acts of government officials or the territorial sea.
officers are not acts of the State, and an action against the
officials or officers by one whose rights have been invaded According to Justice Carpio, although the US to date has
or violated by such acts, for the protection of his rights, is not ratified the UNCLOS, as a matter of long-standing
not a suit against the State within the rule of immunity of policy the US considers itself bound by customary
the State from suit. In the same tenor, it has been said that international rules on the "traditional uses of the oceans"
an action at law or suit in equity against a State officer or as codified in UNCLOS, as can be gleaned from previous
the director of a State department on the ground that, declarations by former Presidents Reagan and Clinton,
while claiming to act for the State, he violates or invades and the US judiciary in the case of United States v. Royal
the personal and property rights of the plaintiff, under an Caribbean Cruise Lines, Ltd.27
unconstitutional act or under an assumption of authority
which he does not have, is not a suit against the State The international law of the sea is generally defined as "a
within the constitutional provision that the State may not body of treaty rules arid customary norms governing the
be sued without its consent." The rationale for this ruling is uses of the sea, the exploitation of its resources, and the
that the doctrine of state immunity cannot be used as an exercise of jurisdiction over maritime regimes. It is a
instrument for perpetrating an injustice. branch of public international law, regulating the relations
of states with respect to the uses of the oceans."28 The
xxxx UNCLOS is a multilateral treaty which was opened for
signature on December 10, 1982 at Montego Bay,
The aforecited authorities are clear on the matter. They Jamaica. It was ratified by the Philippines in 1984 but
state that the doctrine of immunity from suit will not apply came into force on November 16, 1994 upon the
and may not be invoked where the public official is being submission of the 60th ratification.
sued in his private and personal capacity as an ordinary
citizen. The cloak of protection afforded the officers and The UNCLOS is a product of international negotiation that
agents of the government is removed the moment they are seeks to balance State sovereignty (mare clausum) and
sued in their individual capacity. This situation usually the principle of freedom of the high seas (mare liberum).29
Law on NatRes (84-89) 75

The freedom to use the world's marine waters is one of the


oldest customary principles of international law.30 The An overwhelming majority - over 80% -- of nation states
UNCLOS gives to the coastal State sovereign rights in are now members of UNCLOS, but despite this the US,
varying degrees over the different zones of the sea which the world's leading maritime power, has not ratified it.
are: 1) internal waters, 2) territorial sea, 3) contiguous
zone, 4) exclusive economic zone, and 5) the high seas. It While the Reagan administration was instrumental in
also gives coastal States more or less jurisdiction over UNCLOS' negotiation and drafting, the U.S. delegation
foreign vessels depending on where the vessel is ultimately voted against and refrained from signing it due
located.31 to concerns over deep seabed mining technology transfer
provisions contained in Part XI. In a remarkable,
Insofar as the internal waters and territorial sea is multilateral effort to induce U.S. membership, the bulk of
concerned, the Coastal State exercises sovereignty, UNCLOS member states cooperated over the succeeding
subject to the UNCLOS and other rules of international decade to revise the objection.able provisions. The
law. Such sovereignty extends to the air space over the revisions satisfied the Clinton administration, which signed
territorial sea as well as to its bed and subsoil.32 the revised Part XI implementing agreement in 1994. In
the fall of 1994, President Clinton transmitted UNCLOS
In the case of warships,33 as pointed out by Justice and the Part XI implementing agreement to the Senate
Carpio, they continue to enjoy sovereign immunity subject requesting its advice and consent. Despite consistent
to the following exceptions: support from President Clinton, each of his successors,
and an ideologically diverse array of stakeholders, the
Article 30 Senate has since withheld the consent required for the
Non-compliance by warships with the laws and regulations President to internationally bind the United States to
of the coastal State UNCLOS.

If any warship does not comply with the laws and While UNCLOS cleared the Senate Foreign Relations
regulations of the coastal State concerning passage Committee (SFRC) during the 108th and 110th
through the territorial sea and disregards any request for Congresses, its progress continues to be hamstrung by
compliance therewith which is made to it, the coastal State significant pockets of political ambivalence over U.S.
may require it to leave the territorial sea immediately. participation in international institutions. Most recently, 111
th Congress SFRC Chairman Senator John Kerry included
Article 31 "voting out" UNCLOS for full Senate consideration among
Responsibility of the flag State for damage caused by a his highest priorities. This did not occur, and no Senate
warship action has been taken on UNCLOS by the 112th
Congress.34
or other government ship operated for non-commercial
purposes Justice Carpio invited our attention to the policy statement
given by President Reagan on March 10, 1983 that the US
The flag State shall bear international responsibility for any will "recognize the rights of the other , states in the waters
loss or damage to the coastal State resulting from the non- off their coasts, as reflected in the convention [UNCLOS],
compliance by a warship or other government ship so long as the rights and freedom of the United States and
operated for non-commercial purposes with the laws and others under international law are recognized by such
regulations of the coastal State concerning passage coastal states", and President Clinton's reiteration of the
through the territorial sea or with the provisions of this US policy "to act in a manner consistent with its [UNCLOS]
Convention or other rules of international law. provisions relating to traditional uses of the oceans and to
encourage other countries to do likewise." Since Article 31
Article 32 relates to the "traditional uses of the oceans," and "if under
Immunities of warships and other government ships its policy, the US 'recognize[s] the rights of the other states
operated for non-commercial purposes in the waters off their coasts,"' Justice Carpio postulates
that "there is more reason to expect it to recognize the
With such exceptions as are contained in subsection A rights of other states in their internal waters, such as the
and in articles 30 and 31, nothing in this Convention Sulu Sea in this case."
affects the immunities of warships and other government
ships operated for non-commercial purposes. (Emphasis As to the non-ratification by the US, Justice Carpio
supplied.) A foreign warship's unauthorized entry into our emphasizes that "the US' refusal to join the UN CLOS was
internal waters with resulting damage to marine resources centered on its disagreement with UN CLOS' regime of
is one situation in which the above provisions may apply. deep seabed mining (Part XI) which considers the oceans
But what if the offending warship is a non-party to the and deep seabed commonly owned by mankind," pointing
UNCLOS, as in this case, the US? out that such "has nothing to do with its [the US']
Law on NatRes (84-89) 76

acceptance of customary international rules on


navigation." In fine, the relevance of UNCLOS provisions to the present
controversy is beyond dispute. Although the said treaty
It may be mentioned that even the US Navy Judge upholds the immunity of warships from the jurisdiction of
Advocate General's Corps publicly endorses the Coastal States while navigating the.latter's territorial sea,
ratification of the UNCLOS, as shown by the following the flag States shall be required to leave the territorial
statement posted on its official website: '::;ea immediately if they flout the laws and regulations of
the Coastal State, and they will be liable for damages
The Convention is in the national interest of the United caused by their warships or any other government vessel
States because it establishes stable maritime zones, operated for non-commercial purposes under Article 31.
including a maximum outer limit for territorial seas; codifies
innocent passage, transit passage, and archipelagic sea Petitioners argue that there is a waiver of immunity from
lanes passage rights; works against "jurisdictiomtl creep" suit found in the VFA. Likewise, they invoke federal
by preventing coastal nations from expanding their own statutes in the US under which agencies of the US have
maritime zones; and reaffirms sovereign immunity of statutorily waived their immunity to any action. Even under
warships, auxiliaries anJ government aircraft. the common law tort claims, petitioners asseverate that
the US respondents are liable for negligence, trespass and
xxxx nuisance.

Economically, accession to the Convention would support We are not persuaded.


our national interests by enhancing the ability of the US to
assert its sovereign rights over the resources of one of the The VFA is an agreement which defines the treatment of
largest continental shelves in the world. Further, it is the United States troops and personnel visiting the Philippines
Law of the Sea Convention that first established the to promote "common security interests" between the US
concept of a maritime Exclusive Economic Zone out to 200 and the Philippines in the region. It provides for the
nautical miles, and recognized the rights of coastal states guidelines to govern such visits of military personnel, and
to conserve and manage the natural resources in this further defines the rights of the United States and the
Zone.35 Philippine government in the matter of criminal jurisdiction,
movement of vessel and aircraft, importation and
We fully concur with Justice Carpio's view that non- exportation of equipment, materials and supplies.36 The
membership in the UNCLOS does not mean that the US invocation of US federal tort laws and even common law is
will disregard the rights of the Philippines as a Coastal thus improper considering that it is the VF A which
State over its internal waters and territorial sea. We thus governs disputes involving US military ships and crew
expect the US to bear "international responsibility" under navigating Philippine waters in pursuance of the objectives
Art. 31 in connection with the USS Guardian grounding of the agreement.
which adversely affected the Tubbataha reefs. Indeed, it is
difficult to imagine that our long-time ally and trading As it is, the waiver of State immunity under the VF A
partner, which has been actively supporting the country's pertains only to criminal jurisdiction and not to special civil
efforts to preserve our vital marine resources, would shirk actions such as the present petition for issuance of a writ
from its obligation to compensate the damage caused by of Kalikasan. In fact, it can be inferred from Section 17,
its warship while transiting our internal waters. Much less Rule 7 of the Rules that a criminal case against a person
can we comprehend a Government exercising leadership charged with a violation of an environmental law is to be
in international affairs, unwilling to comply with the filed separately:
UNCLOS directive for all nations to cooperate in the global
task to protect and preserve the marine environment as SEC. 17. Institution of separate actions.-The filing of a
provided in Article 197, viz: petition for the issuance of the writ of kalikasan shall not
preclude the filing of separate civil, criminal or
Article 197 administrative actions.
Cooperation on a global or regional basis
In any case, it is our considered view that a ruling on the
States shall cooperate on a global basis and, as application or non-application of criminal jurisdiction
appropriate, on a regional basis, directly or through provisions of the VF A to US personnel who may be found
competent international organizations, in formulating and responsible for the grounding of the USS Guardian, would
elaborating international rules, standards and be premature and beyond the province of a petition for a
recommended practices and procedures consistent with writ of Kalikasan. We also find it unnecessary at this point
this Convention, for the protection and preservation of the to determine whether such waiver of State immunity is
marine environment, taking into account characteristic indeed absolute. In the same vein, we cannot grant
regional features. damages which have resulted from the violation of
Law on NatRes (84-89) 77

environmental laws. The Rules allows the recovery of the extent of the damage and appropriate methods of
damages, including the collection of administrative fines rehabilitation.
under R.A. No. 10067, in a separate civil suit or that
deemed instituted with the criminal action charging the Exploring avenues for settlement of environmental cases
same violation of an environmental law.37 is not proscribed by the Rules. As can be gleaned from the
following provisions, mediation and settlement are
Section 15, Rule 7 enumerates the reliefs which may be available for the consideration of the parties, and which
granted in a petition for issuance of a writ of Kalikasan, to dispute resolution methods are encouraged by the court,
wit: to wit:

SEC. 15. Judgment.-Within sixty (60) days from the time RULE3
the petition is submitted for decision, the court shall render
judgment granting or denying the privilege of the writ of xxxx
kalikasan.
SEC. 3. Referral to mediation.-At the start of the pre-trial
The reliefs that may be granted under the writ are the conference, the court shall inquire from the parties if they
following: have settled the dispute; otherwise, the court shall
immediately refer the parties or their counsel, if authorized
(a) Directing respondent to permanently cease and desist by their clients, to the Philippine Mediation Center (PMC)
from committing acts or neglecting the performance of a unit for purposes of mediation. If not available, the court
duty in violation of environmental laws resulting in shall refer the case to the clerk of court or legal researcher
environmental destruction or damage; for mediation.

(b) Directing the respondent public official, govemment Mediation must be conducted within a non-extendible
agency, private person or entity to protect, preserve, period of thirty (30) days from receipt of notice of referral
rehabilitate or restore the environment; to mediation.

(c) Directing the respondent public official, government The mediation report must be submitted within ten (10)
agency, private person or entity to monitor strict days from the expiration of the 30-day period.
compliance with the decision and orders of the court;
SEC. 4. Preliminary conference.-If mediation fails, the
(d) Directing the respondent public official, government court will schedule the continuance of the pre-trial. Before
agency, or private person or entity to make periodic the scheduled date of continuance, the court may refer the
reports on the execution of the final judgment; and case to the branch clerk of court for a preliminary
conference for the following purposes:
(e) Such other reliefs which relate to the right of the people
to a balanced and healthful ecology or to the protection, (a) To assist the parties in reaching a settlement;
preservation, rehabilitation or restoration of the
environment, except the award of damages to individual xxxx
petitioners. (Emphasis supplied.)
SEC. 5. Pre-trial conference; consent decree.-The judge
We agree with respondents (Philippine officials) in shall put the parties and their counsels under oath, and
asserting that this petition has become moot in the sense they shall remain under oath in all pre-trial conferences.
that the salvage operation sought to be enjoined or
restrained had already been accomplished when The judge shall exert best efforts to persuade the parties
petitioners sought recourse from this Court. But insofar as to arrive at a settlement of the dispute. The judge may
the directives to Philippine respondents to protect and issue a consent decree approving the agreement between
rehabilitate the coral reef stn icture and marine habitat the parties in accordance with law, morals, public order
adversely affected by the grounding incident are and public policy to protect the right of the people to a
concerned, petitioners are entitled to these reliefs balanced and healthful ecology.
notwithstanding the completion of the removal of the USS
Guardian from the coral reef. However, we are mindful of xxxx
the fact that the US and Philippine governments both
expressed readiness to negotiate and discuss the matter SEC. 10. Efforts to settle.- The court shall endeavor to
of compensation for the damage caused by the USS make the parties to agree to compromise or settle in
Guardian. The US Embassy has also declared it is closely accordance with law at any stage of the proceedings
coordinating with local scientists and experts in assessing before rendition of judgment. (Underscoring supplied.)
Law on NatRes (84-89) 78

The Court takes judicial notice of a similar incident in 2009 the Philippine Senate and has been recognized as a treaty
when a guided-missile cruiser, the USS Port Royal, ran by the United States as attested and certified by the duly
aground about half a mile off the Honolulu Airport Reef authorized representative of the United States
Runway and remained stuck for four days. After spending government. The VF A being a valid and binding
$6.5 million restoring the coral reef, the US government agreement, the parties are required as a matter of
was reported to have paid the State of Hawaii $8.5 million international law to abide by its terms and provisions.42
in settlement over coral reef damage caused by the The present petition under the Rules is not the proper
grounding.38 remedy to assail the constitutionality of its provisions.
WHEREFORE, the petition for the issuance of the
To underscore that the US government is prepared to pay privilege of the Writ of Kalikasan is hereby DENIED.
appropriate compensation for the damage caused by the
USS Guardian grounding, the US Embassy in the No pronouncement as to costs. SO ORDERED.
Philippines has announced the formation of a US RESIDENT MARINE MAMMALS OF THE PROTECTED
interdisciplinary scientific team which will "initiate SEASCAPE TAON STRAIT, e.g., TOOTHED WHALES,
discussions with the Government of the Philippines to DOLPHINS, PORPOISES, AND OTHER CETACEAN
review coral reef rehabilitation options in Tubbataha, SPECIES, Joined in and Represented herein by
based on assessments by Philippine-based marine Human Beings Gloria Estenzo Ramos and Rose-Liza
scientists." The US team intends to "help assess damage Eisma-Osorio, In Their Capacity as Legal Guardians of
and remediation options, in coordination with the the Lesser Life-Forms and as Responsible Stewards
Tubbataha Management Office, appropriate Philippine of God's Creations, Petitioners, vs. SECRETARY
government entities, non-governmental organizations, and ANGELO REYES, in his capacity as Secretary of the
scientific experts from Philippine universities."39 Department of Energy (DOE), SECRETARY JOSE L.
ATIENZA, in his capacity as Secretary of the
A rehabilitation or restoration program to be implemented Department of Environment and Natural Resources
at the cost of the violator is also a major relief that may be (DENR), LEONARDO R. SIBBALUCA, DENR Regional
obtained under a judgment rendered in a citizens' suit Director-Region VII and in his capacity as Chairperson
under the Rules, viz: of the Taon Strait Protected Seascape Management
Board, Bureau of Fisheries and Aquatic Resources
RULES (BFAR), DIRECTOR MALCOLM J. SARMIENTO, JR.,
BFAR Regional Director for Region VII ANDRES M.
SECTION 1. Reliefs in a citizen suit.-If warranted, the BOJOS, JAPAN PETROLEUM EXPLORATION CO.,
court may grant to the plaintiff proper reliefs which shall LTD. (JAPEX), as represented by its Philippine Agent,
include the protection, preservation or rehabilitation of the SUPPLY OILFIELD SERVICES, INC. Respondents.;
environment and the payment of attorney's fees, costs of G.R. No. 180771 April 21, 2015
suit and other litigation expenses. It may also require the
violator to submit a program of rehabilitation or restoration In G.R. No. 180771, petitioners Resident Marine Mammals
of the environment, the costs of which shall be borne by allegedly bring their case in their personal capacity,
the violator, or to contribute to a special trust fund for that alleging that they stand to benefit or be injured from the
purpose subject to the control of the court.1wphi1 judgment on the issues. The human petitioners implead
themselves in a representative capacity "as legal
In the light of the foregoing, the Court defers to the guardians of the lesser life-forms and as responsible
Executive Branch on the matter of compensation and stewards of God's Creations."1 They use Oposa v.
rehabilitation measures through diplomatic channels. Factoran, Jr.2 as basis for their claim, asserting their right
Resolution of these issues impinges on our relations with to enforce international and domestic environmental laws
another State in the context of common security interests enacted for their benefit under the concept of stipulation
under the VFA. It is settled that "[t]he conduct of the pour autrui.3 As the representatives of Resident Marine
foreign relations of our government is committed by the Mammals, the human petitioners assert that they have the
Constitution to the executive and legislative-"the political" - obligation to build awareness among the affected
-departments of the government, and the propriety of what residents of Taon Strait as well as to protect the
may be done in the exercise of this political power is not environment, especially in light of the government's failure,
subject to judicial inquiry or decision."40 as primary steward, to do its duty under the doctrine of
public trust.4
On the other hand, we cannot grant the additional reliefs
prayed for in the petition to order a review of the VFA and Resident Marine Mammals and the human petitioners also
to nullify certain immunity provisions thereof. assert that through this case, this court will have the
opportunity to lower the threshold for locus standi as an
As held in BAYAN (Bagong Alyansang Makabayan) v. exercise of "epistolary jurisdiction."5
Exec. Sec. Zamora,41 the VFA was duly concurred in by
Law on NatRes (84-89) 79

The zeal of the human petitioners to pursue their desire to


protect the environment and to continue to define Basic is the concept of natural and juridical persons in our
environmental rights in the context of actual cases is Civil Code:
commendable. However, the space for legal creativity
usually required for advocacy of issues of the public ARTICLE 37. Juridical capacity, which is the fitness to be
interest is not so unlimited that it should be allowed to the subject of legal relations, is inherent in every natural
undermine the other values protected by current person and is lost only through death. Capacity to act,
substantive and procedural laws. Even rules of procedure which is the power to do acts with legal effect, is acquired
as currently formulated set the balance between and may be lost.
competing interests. We cannot abandon these rules when
the necessity is not clearly and convincingly presented. Article 40 further defines natural persons in the following
manner:
The human petitioners, in G.R. No. 180771, want us to
create substantive and procedural rights for animals ARTICLE 40. Birth determines personality; but the
through their allegation that they can speak for them. conceived child shall be considered born for all purposes
Obviously, we are asked to accept the premises that (a) that are favorable to it, provided it be born later with the
they were chosen by the Resident Marine Mammals of conditions specified 'in the following article.
Taon Strait; (b) they were chosen by a representative
group of all the species of the Resident Marine Mammals; Article 44, on the other hand, enumerates the concept of a
(c) they were able to communicate with them; and (d) they juridical person:
received clear consent from their animal principals that
they would wish to use human legal institutions to pursue ARTICLE 44. The following are juridical persons:
their interests. Alternatively, they ask us to acknowledge
through judicial notice that the interests that they, the (1) The State and its political subdivisions;
human petitioners, assert are identical to what the
Resident Marine Mammals would assert had they been (2) Other corporations, institutions and entities for public
humans and the legal strategies that they invoked are the interest or purpose, created by law; their personality
strategies that they agree with. begins as soon as they have been constituted according to
law;
In the alternative, they want us to accept through judicial
notice that there is a relationship of guardianship between (3) Corporations, partnerships and associations for private
them and all the resident mammals in the affected interest or purpose to which the law grants a juridical
ecology. personality, separate and distinct from that of each
shareholder, partner or member.
Fundamental judicial doctrines that may significantly
change substantive and procedural law cannot be founded Petitioners in G.R. No. 180771 implicitly suggest that we
on feigned representation. amend, rather than simply construe, the provisions of the
Rules of Court as well as substantive law to accommodate
Instead, I agree that the human petitioners should only Resident Marine Mammals or animals. This we cannot do.
speak for themselves and already have legal standing to
sue with respect to the issue raised in their pleading. The Rule 3, Section 2 of the 1997 Rules of Civil Procedure
rules on standing have already been liberalized to take further defines real party in interest:
into consideration the difficulties in the assertion of
environmental rights. When standing becomes too liberal, SEC. 2. Parties in interest.-A real party in interest is the
this can be the occasion for abuse. party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of
II the suit. Unless otherwise authorized by law or these
Rules, every action must be prosecuted or defended in the
Rule 3, Section 1 of the 1997 Rules of Civil Procedure, in name of the real party in interest. (2a)6
part, provides:
A litigant who stands to benefit or sustain an injury from
SECTION 1. Who may be parties; plaintiff and defendant. - the judgment of a case is a real party in interest.7 When a
Only natural or juridical persons, or entities authorized by case is brought to the courts, the real party in interest must
law may be parties in a civil action. show that another party's act or omission has caused a
direct injury, making his or her interest both material and
The Rules provide that parties may only be natural or based on an enforceable legal right.8
juridical persons or entities that may be authorized by
statute to be parties in a civil action.
Law on NatRes (84-89) 80

Representatives as parties, on the other hand, are parties Christopher D. Stone asserts that the environment should
acting in representation of the real party in interest, as possess the right to seek judicial redress even though it is
defined in Rule 3, Section 3 of the 1997 Rules of Civil incapable of representing itself. While asserting the rights
Procedure: of speechless entities such as the environment or
nonhuman animals certainly poses legitimate challenges -
SEC. 3. Representatives as parties. - Where the action is such as identifying the proper spokesman -the American
allowed to be prosecuted or defended by a representative legal system is already well-equipped with a reliable
or someone acting in a fiduciary capacity, the beneficiary mechanism by which nonhumans may obtain standing via
shall be included in the title of the case and shall be a judicially established guardianship. Stone notes that
deemed to be the real party in interest. A representative other speechless - and nonhuman - entities such as
may be a trustee of an express rust, a guardian, an corporations, states, estates, and municipalities have
executor or administrator, or a party authorized by law or standing to bring suit on their own behalf. There is little
these Rules. An agent acting in his own name and for the reason to fear abuses under this regime as procedures for
benefit of an undisclosed principal may sue or be sued removal and substitution, avoiding conflicts of interest, and
without joining the principal except when the contract termination of a guardianship are well established.
involves things belonging to the principal.(3a)9
In fact, the opinion in Animal Lovers suggests that such an
The rule is two-pronged. First, it defines .a representative arrangement is indeed possible. The court indicated that
as a party who is not bound to directly or actually benefit AL VA might have obtained standing in its own right if it
or suffer from the judgment, but instead brings a case in had an established history of dedication to the cause of
favor of an identified real party in interest.10 The the humane treatment of animals. It noted that the Fund
representative is an outsider to the cause of action. for Animals had standing and indicated that another more
Second, the rule provides a list of who may be considered well-known advocacy organization might have had
as "representatives." It is not an exhaustive list, but the standing as well. The court further concluded that an
rule limits the coverage only to those authorized by law or organization's standing is more than a derivative of its
the Rules of Court.11 history, but history is a relevant consideration where
organizations are not well-established prior to
These requirements should apply even in cases involving commencing legal action. ALVA was not the proper
the environment, which means that for the Petition of the plaintiff because it could not identify previous activities
human petitioners to prosper, they must show that (a) the demonstrating its recognized activism for and commitment
Resident Marine Mammals are real parties in interest; and to the dispute independent of its desire to pursue legal
(b) that the human petitioners are authorized by law or the action. The court's analysis suggests that a qualified
Rules to act in a representative capacity. organization with a demonstrated commitment to a cause
could indeed bring suit on behalf of the speechless in the
The Resident Marine Mammals are comprised of "toothed form of a court-sanctioned guardianship.
whales, dolphins, porpoises, and other cetacean species
inhabiting Taon Strait."12 While relatively new in This Comment advocates a shift in contemporary standing
Philippine jurisdiction, the issue of whether animals have doctrine to empower non-profit organizations with an
legal standing before courts has been the subject of established history of dedication to the cause and relevant
academic discourse in light of the emergence of animal expertise to serve as official guardians ad !item on behalf
and environmental rights. of nonhuman animals interests. The American legal
system has numerous mechanisms for representing the
In the United States, anim4l rights advocates have rights and interests of nonhumans; any challenges
managed to establish a system which Hogan explains as inherent in extending these pre-existing mechanisms to
the "guardianship model for nonhuman animals":13 nonhuman animals are minimal compared to an interest in
the proper administration of justice. To adequately protect
Despite Animal Lovers, there exists a well-established the statutory rights of nonhuman animals, the legal system
system by which nonhuman animals may obtain judicial must recognize those statutory rights independent of
review to enforce their statutory rights and protections: humans and provide a viable means of enforcement.
guardianships. With court approval, animal advocacy Moreover, the idea of a guardianship for speechless
organizations may bring suit on behalf of nonhuman plaintiffs is not new and has been urged on behalf of the
animals in the same way court-appointed guardians bring natural environment. 'Such a model is even more
suit on behalf of mentally-challenged humans who compelling as applied to nonhuman animals, because they
possess an enforceable right but lack the ability to enforce are sentient beings with the ability to feel pain and
it themselves. exercise rational thought. Thus, animals are qualitatively
different from other legally protected nonhumans and
In the controversial but pivotal Should Trees Have therefore have interests deserving direct legal protection.
Standing?-Toward Legal Rights for Natural Objects,
Law on NatRes (84-89) 81

Furthermore, the difficulty of enforcing the statutory rights ....


of nonhuman animals threatens the integrity of the federal
statutes designed to protect them, essentially rendering In fact, the opinion in Animal Lovers suggests that such an
them meaningless. Sensing that laws protecting arrangement is indeed possible. The court indicated that
nonhuman animals would be difficult to enforce, Congress ALVA might have obtained standing in its own right if it
provided for citizen suit provisions: the most well-known had an established history of dedication to the cause of
example is found in the Endangered Species Act (ESA). the humane treatment of animals. It noted that the Fund
Such provisions are evidence of legislative intent to for Animals had standing and indicated that another more
encourage civic participation on behalf of nonhuman well-known advocacy organization might have had
animals. Our law of standing should reflect this intent and standing as well. The court further concluded that an
its implication that humans are suitable representatives of organization's standing is more than a derivative of its
the natural environment, which includes nonhuman history, but history is a relevant consideration where
animals.14 (Emphasis supplied, citation omitted) organizations are not well-established prior to
commencing legal action. ALVA was not the proper
When a court allows guardianship as a basis of plaintiff because it could not identify previous activities
representation, animals are considered as similarly demonstrating its recognized activism for and commitment
situated as individuals who have enforceable rights but, for to the dispute independent of its desire to pursue legal
a legitimate reason (e.g., cognitive disability), are unable action. The court's analysis suggests that a qualified
to bring suit for themselves. They are also similar to organization with a demonstrated commitment to a cause
entities that by their very nature are incapable of speaking could indeed bring suit on behalf of the speechless in the
for themselves (e.g., corporations, states, and others). form of a court-sanctioned guardianship.18 (Emphasis
supplied, citation omitted)
In our jurisdiction, persons and entities are recognized
both in law and the Rules of Court as having standing to What may be argued as being parallel to this concept of
sue and, therefore, may be properly represented as real guardianship is the principle of human stewardship over
parties in interest. The same cannot be said about the environment in a citizen suit under the Rules of
animals. Procedure for Environmental Cases. A citizen suit allows
any Filipino to act as a representative of a party who has
Animals play an important role in households, enforceable rights under environmental laws before
communities, and the environment. While we, as humans, Philippine courts, and is defined in Section 5: .
may feel the need to nurture and protect them, we cannot
go as far as saying we represent their best interests and SEC. 5. Citizen suit. - Any Filipino citizen in representation
can, therefore, speak for them before the courts. As of others, including minors or generations yet unborn, may
humans, we cannot be so arrogant as to argue that we file an action to enforce rights or obligations under
know the suffering of animals and that we know what environmental laws. Upon the filing of a citizen suit, the
remedy they need in the face of an injury. court shall issue an order which shall contain a brief
description of the cause of action and the reliefs prayed
Even in Hogan's discussion, she points out that in a case for, requiring all interested parties to manifest their interest
before the United States District Court for the Central to intervene in the case within fifteen (15) days from notice
District of California, Animal Lovers Volunteer Ass'n v. thereof. The plaintiff may publish the order once in a
Weinberger,15 the court held that an emotional response newspaper of a general circulation in the Philippines or
to what humans perceive to be an injury inflicted on an furnish all affected barangays copies of said order.
animal is not within the "zone-of-interest" protected by
law.16 Such sympathy cannot stand independent of or as There is no valid reason in law or the practical
a substitute for an actual injury suffered by the claimant.17 requirements of this case to implead and feign
The ability to represent animals was further limited in that representation on behalf of animals. To have done so
case by the need to prove "genuine dedication" to betrays a very anthropocentric view of environmental
asserting and protecting animal rights: advocacy. There is no way that we, humans, can claim to
speak for animals let alone present that they would wish to
What ultimately proved fatal to ALVA 's claim, however, use our court system, which is designed to ensure that
was the court's assertion that standing doctrine further humans seriously carry their responsibility including
required ALVA to differentiate its genuine dedication to the ensuring a viable ecology for themselves, which of course
humane treatment of animals from the general disdain for includes compassion for all living things.
animal cruelty shared by the public at large. In doing so,
the court found ALVA 's asserted organizational injury to Our rules on standing are sufficient and need not be
be abstract and thus relegated ALVA to the ranks of the further relaxed.
"concerned bystander. "
Law on NatRes (84-89) 82

In Arigo v. Swift,19 I posed the possibility of further the ground of lack of cause of action if the person who
reviewing the broad interpretation we have given to the instituted it is not the real party in interest.24 The term
rule on standing. While representatives are not required to "interest" under the Rules of Court must refer to a material
establish direct injury on their part, they should only be interest that is not merely a curiosity about or an "interest
allowed to represent after complying with the following: [I]t in the question involved." The interest must be present and
is imperative for them to indicate with certainty the injured substantial. It is not a mere expectancy or a future,
parties on whose behalf they bring the suit. Furthermore, contingent interest.
the interest of those they represent must be based upon
concrete legal rights. It is not sufficient to draw out a A person who is not a real party in interest may institute an
perceived interest from a general, nebulous idea of a action if he or she is suing as representative of a .real
potential "injury."20 party in interest. When an action is prosecuted or
defended by a representative, that representative is not
I reiterate my position in Arigo v. Swift and in Paje v. and does not become the real party in interest. The person
Casio21 regarding this rule alongside the appreciation of represented is deemed the real party in interest. The
legal standing in Oposa v. Factoran22 for environmental representative remains to be a third party to the action
cases. In Arigo, I opined that procedural liberality, instituted on behalf of another.
especially in cases brought by representatives, should be
used with great caution: ....

Perhaps it is time to revisit the ruling in Oposa v. Factoran. To sue under this rule, two elements must be present: "(a)
the suit is brought on behalf of an identified party whose
That case was significant in that, at that time, there was right has been violated, resulting in some form of damage,
need to call attention to environmental concerns in light of and (b) the representative authorized by law or the Rules
emerging international legal principles. While of Court to represent the victim."
"intergenerational responsibility" is a noble principle, it
should not be used to obtain judgments that would The Rules of Procedure for Environmental Cases allows
preclude future generations from making their own filing of a citizen's suit. A citizen's suit under this rule
assessment based on their actual concerns. The present allows any Filipino citizen to file an action for the
generation must restrain itself from assuming that it can enforcement of environmental law on behalf of minors or
speak best for those who will exist at a different time, generations yet unborn. It is essentially a representative
under a different set of circumstances. In essence, the suit that allows persons who are not real parties in interest
unbridled resort to representative suit will inevitably result to institute actions on behalf of the real party in interest.
in preventing future generations from protecting their own
rights and pursuing their own interests and decisions. It The expansion of what constitutes "real party in interest" to
reduces the autonomy of our children and our children 's include minors and generations yet unborn is a recognition
children. Even before they are born, we again restricted of this court's ruling in Oposa v. Factoran. This court
their ability to make their own arguments. recognized the capacity of minors (represented by their
parents) to file a class suit on behalf of succeeding
It is my opinion that, at best, the use of the Oposa doctrine generations based on the concept of intergenerational
in environmental cases should be allowed only when a) responsibility to ensure the future generation's access to
there is a clear legal basis for the representative suit; b) and enjoyment of [the] country's natural resources.
there are actual concerns based squarely upon an existing
legal right; c) there is no possibility of any countervailing To allow citizen's suits to enforce environmental rights of
interests existing within the population represented or others, including future generations, is dangerous for three
those that are yet to be born; and d) there is an absolute reasons:
necessity for such standing because there is a threat of
catastrophe so imminent that an immediate protective First, they run the risk of foreclosing arguments of others
measure is necessary. Better still, in the light of its costs who are unable to take part in the suit, putting into.
and risks, we abandon the precedent all together.23 question its representativeness. Second, varying interests
(Emphasis in the original) may potentially result in arguments that are bordering on
political issues, the resolutions of which do not fall upon
Similarly, in Paje: this court. Third, automatically allowing a class or citizen's
suit on behalf of minors and generations yet unborn may
A person cannot invoke the court's jurisdiction if he or she result in the oversimplification of what may be a complex
has no right or interest to protect. He or she who invokes issue, especially in light of the impossibility of determining
the court's jurisdiction must be the "owner of the right future generation's true interests on the matter.
sought to be enforced." In other words, he or she must
have a cause of action. An action may be dismissed on
Law on NatRes (84-89) 83

In citizen's suits, persons who may have no interest in the impleaded Former President Gloria Macapagal-Arroyo as
case may file suits for others. Uninterested persons will "unwilling co-petitioner" for "her express declaration and
argue for the persons they represent, and the court will undertaking in the ASEAN Charter to protect Taon
decide based on their evidence and arguments. Any Strait."28
decision by the court will be binding upon the
beneficiaries, which in this case are the minors and the No person may implead any other person as a co-plaintiff
future generations. The court's decision will be res judicata or co-petitioner without his or her consent. In our
upon them and conclusive upon the issues presented.25 jurisdiction, only when there is a party that should have
been a necessary party but was unwilling to join would
The danger in invoking Oposa v. Factoran to justify all there be an allegation as to why that party has been
kinds of environmental claims lies in its potential to omitted. In Rule 3, Section 9 of the 1997 Rules of Civil
diminish the value of legitimate environmental rights. Procedure:
Extending the application of "real party in interest" to the
Resident Marine Mammals, or animals in general, through SEC. 9. Non-joinder of necessary parties to be pleaded. -
a judicial pronouncement will potentially result in allowing Whenever in any pleading in which a claim is asserted a
petitions based on mere concern rather than an actual necessary party is not joined, the pleader shall set forth his
enforcement of a right. It is impossible for animals to tell name, if known, and shall state why he is omitted. Should
humans what their concerns are. At best, humans can only the court find the reason for the omission unmeritorious, it
surmise the extent of injury inflicted, if there be any. may order the inclusion of the omitted necessary party if
Petitions invoking a right and seeking legal redress before jurisdiction over his person may be obtained.
this court cannot be a product of guesswork, and
representatives have the responsibility to ensure that they The failure to comply with the order for his inclusion,
bring "reasonably cogent, rational, scientific, well-founded without justifiable cause, shall be deemed a waiver of the
arguments"26 on behalf of those they represent. claim against such party.

Creative approaches to fundamental problems should be The non-inclusion of a necessary party does not prevent
welcome. However, they should be considered carefully so the court from proceeding in the action, and the judgment
that no unintended or unwarranted consequences should rendered therein shall be without prejudice to the rights of
follow. I concur with the approach of Madame Justice such necessary party.29
Teresita J. Leonardo-De Castro in her brilliant ponencia as
it carefully narrows down the doctrine in terms of standing. A party who should have been a plaintiff or petitioner but
Resident Marine Mammals and the human petitioners whose consent cannot be obtained should be impleaded
have no legal standing to file any kind of petition. as a defendant in the nature of an unwilling co-plaintiff
under Rule 3, Section 10 of the 1997 Rules of Civil
However, I agree that petitioners in G.R. No. 181527, Procedure:
namely, Central Visayas Fisherfolk Development Center,.
Engarcial, Yanong, and Labid, have standing both as real SEC. 10. Unwilling co-plaintiff. - If the consent of any party
parties in interest and as representatives of subsistence who should be joined as plaintiff can not be obtained, he
fisherfolks of the Municipalities of Aloguinsan and may be made a defendant and the reason therefor shall be
Pinamungahan, Cebu, and their families, and the present stated in the complaint.30
and future generations of Filipinos whose rights are
similarly affected. The activities undertaken under Service The reason for this rule is plain: Indispensable party
Contract 46 (SC-46) directly affected their source of plaintiffs who should be part of the action but who do not
livelihood, primarily felt through the significant reduction of consent should be put within the jurisdiction of the court
their fish harvest.27 The actual, direct, and material through summons or other court processes. Petitioners.
damage they suffered, which has potential long-term should not take it upon themselves to simply imp lead any
effects transcending generations, is a proper subject of a party who does not consent as a petitioner. This places
legal suit. the unwilling co-petitioner at the risk of being denied due
process.
III
Besides, Former President Gloria Macapagal-Arroyo
In our jurisdiction, there is neither reason nor any legal cannot be a party to this suit. As a co-equal constitutional
basis for the concept of implied petitioners, most department, we cannot assume that the President needs
especially when the implied petitioner was a sitting to enforce policy directions by suing his or her alter-egos.
President of the Republic of the Philippines. In G.R. No. The procedural situation caused by petitioners may have
180771, apart from adjudicating unto themselves the gained public attention, but its legal absurdity borders on
status of "legal guardians" of whales, dolphins, porpoises, the contemptuous. The Former President's name should
and other cetacean species, human petitioners also be stricken out of the title of this case.
Law on NatRes (84-89) 84

economic zone, and reserve its use and enjoyment


IV exclusively to Filipino citizens.

I also concur with the conclusion that SC-46 is both. illegal The Congress may, by law, allow small-scale utilization of
and unconstitutional. natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence
SC-46 is illegal because it violates Republic Act No. 7586 fishermen and fish-workers in rivers, lakes, bays, and
or the National Integrated Protected Areas System Act of lagoons.
1992, and Presidential Decree No. 1234,31 which
declared Taon Strait as a protected seascape. It is The President may enter into agreements with foreign-
unconstitutional because it violates the fourth paragraph of owned corporations involving either technical or financial
Article XII, Section 2 of the Constitution. assistance for large-scale exploration, development, and
utilization of minerals, petroleum, and other mineral oils
V according to the general terms and conditions provided by
law, based on real contributions to the economic growth
Petitioner Central Visayas Fisherfolk Development Center and general welfare of the country. In such agreements,
asserts that SC-46 violated Article XII, Section 2, the State shall promote the development and use of local
paragraph 1 of the .1987 Constitution because Japan scientific and technical resources.
Petroleum Exploration Co., Ltd. (JAPEX) is 100%
Japanese-owned.32 It further asserts that SC-46 cannot The President shall notify the Congress of every contract
be validly classified as a technical and financial assistance entered into in accordance with this provision, within thirty
agreement executed under Article XII, Section 2, days from its execution. (Emphasis supplied)
paragraph 4 of the 1987 Constitution.33 Public
respondents counter that SC-46 does not fall under the I agree that fully foreign-owned corporations may
coverage of paragraph 1, but is a validly executed contract participate in the exploration, development, and use of
under paragraph 4.34 Public respondents further aver natural resources, but only through either financial
that SC-46 neither granted exclusive fishing rights to agreements or technical ones. This is the clear import of
JAPEX nor violated Central Visayas Fisherfolk the words "either financial or technical assistance
Development Center's right to preferential use of agreements." This is also
communal marine and fishing resources.35
the clear result if we compare the 1987 constitutional
VI provision with the versions in the 1973 and 1935
Constitution:
Article XII, Section 2 of the 1987 Constitution states:
1973 CONSTITUTION
Section 2. All lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of ARTICLE XIV
potential energy, fisheries, forests or timber, wildlife, flora THE NATIONAL ECONOMY AND THE PATRIMONY OF
and fauna, and other natural resources are owned by the THE NATION
State. With the exception. of agricultural lands, all other
natural resources shall not be alienated. The exploration, SEC. 9. The disposition, exploration, development, of
development, and utilization of natural resources shall be exploitation, or utilization of any of the natural resources of
under the full control and supervision of the State. The the Philippines shall be limited to citizens of the
State may directly undertake such activities, or it may Philippines, or to corporations or association at least sixty
enter into co-production, joint venture, or production- per centum of the capital of which is owned by such
sharing agreements with Filipino citizens, or corporations citizens. The Batasang Pambansa, in the national interest,
or associations at least sixty per centum of whose capital may allow such citizens, corporations, or associations to
is owned by such citizens. Such agreements may be for a enter into service contracts for financial, technical,
period not exceeding twenty-five years, renewable for not management, or other forms of assistance with any foreign
more than twenty-five years, and under such terms and person or entity for the exploitation, development,
conditions as may be provided by law. In cases of water exploitation, or utilization of any of the natural resources.
rights for irrigation, water supply fisheries, or industrial Existing valid and binding service contracts for financial,
uses other than the development of water power, the technical, management, or other forms of assistance
beneficial use may be the measure and limit of the grant. are hereby recognized as such. (Emphasis supplied)

The State shall protect the nation's marine wealth in its 1935 CONSTITUTION
archipelagic waters, territorial sea, and exclusive
ARTICLE XIII
Law on NatRes (84-89) 85

CONSERVATION AND UTILIZATION OF NATURAL (2) The President shall be the signatory for the
RESOURCES government because, supposedly before an agreement is
presented to the President for signature, it will have been
SECTION 1. All agricultural timber, and mineral. lands of vetted several times over at different levels to ensure that
the public domain, waters, minerals, coal, petroleum, and it conforms to law and can withstand public scrutiny.
other mineral oils, all forces of potential energy, and other
natural resources of the Philippines belong to the State, (3) Within thirty days of the executed agreement, the
and their disposition, exploitation, development, or President shall report it to Congress to give that branch of
utilization shall be limited to citizens of the Philippines, or government an opportunity to look over the agreement and
to corporations or associations at least sixty per centum of interpose timely objections, if any.37 (Emphasis in the
the capital of which is owned by such citizens, subject to original, citation omitted)
any existing right, grant, lease, or concession at the time
of the inauguration of the Government established under Based on the standards pronounced in La Bugal, SC-46' S
this Constitution. Natural resources, with the exception of validity must be tested against three important points: (a)
public agricultural land, shall not be alienated, and no whether SC-46 was crafted in accordance with a general
license, concession, or lease for the exploitation, law that provides standards, terms, and conditions; (b)
development, or utilization of any of the natural resources whether SC-46 was signed by the President for and on
shall be granted for a period exceeding twenty-five years, behalf of the government; and (c) whether it was reported
renewable for another twenty-five years, except as to by the President to Congress within 30 days of execution.
water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water power, VII
in which cases beneficial use may be the measure and the
limit of the grant. The general law referred to as a possible basis for SC-46's
validity is Presidential Decree No. 87 or the Oil Exploration
The clear text of the Constitution in light of its history and Development Act of 1972.1wphi1 It is my opinion
prevails over any attempt to infer interpretation from the that this law is unconstitutional in that it allows service
Constitutional Commission deliberations. The contracts, contrary to Article XII, Section 2 of the 1987
constitutional texts are the product of a full sovereign act: Constitution:
deliberations in a constituent assembly and ratification.
Reliance on recorded discussion of Constitutional The President may enter into agreements with foreign-
Commissions, on the other hand, may result in owned corporations involving either technical or financial
dependence on incomplete authorship; Besides, it opens assistance for large-scale exploration, development, and
judicial review to further subjectivity from those who spoke utilization of minerals, petroleum, and other mineral oils
during the Constitutional Commission deliberations who according to the general terms and conditions provided by
may not have predicted how their words will be used. It is law, based on real contributions to the economic growth
safer that we use the words already in the Constitution. and general welfare of the country. In such agreements,
The Constitution was their product. Its words were read by the State shall promote the development and use of local
those who ratified it. The Constitution is what society relies scientific and technical resources. (Emphasis supplied)
upon even at present.
The deletion of service contracts from the enumeration of
SC-46 is neither a financial assistance nor a technical the kind of agreements the President may enter into with
assistance agreement. foreign-owned corporations for exploration and utilization
of resources means that service contracts are no longer
Even supposing for the sake of argument that it is, it could allowed by the Constitution. Pursuant to Article XVIII,
not be declared valid in light of the standards set forth in Section 3 of the 1987 Constitution,38 this inconsistency
La Bugal-B'laan Tribal Association, Inc. v. Ramos:36 renders the law invalid and ineffective.

Such service contracts may be entered into only with SC-46 suffers from the lack of a special law allowing its
respect to minerals, petroleum and other mineral oils. The activities. The Main Opinion emphasizes an important
grant thereof is subject to several safeguards, among point, which is that SC-46 did not merely involve
which are these requirements: exploratory activities, but also provided the rights and
obligations of the parties should it be discovered that there
(1) The service contract shall be crafted m accordance is oil in commercial quantities in the area. The Taon Strait
with a general law that will set standard or uniform terms, being a protected seascape under Presidential Decree No.
conditions and requirements, presumably to attain a 123439 requires that the exploitation and utilization of
certain uniformity in provisions and avoid the possible energy resources from that area are explicitly covered by a
insertion of terms disadvantageous to the country. law passed by Congress specifically for that purpose,
Law on NatRes (84-89) 86

pursuant to Section 14 of Republic Act No. 7586 or the abuses prevalent during the marital law regime.42
National Integrated Protected Areas System Act of 1992: (Emphasis in the original)

SEC. 14. Survey for Energy R6'sources. - Consistent with Public respondents failed to show that. Former President
the policies declared in Section 2, hereof, protected areas, Gloria Macapagal-Arroyo was involved in the signing or
except strict nature reserves and natural parks, may be execution of SC-46. The failure to comply with this
subjected to exploration only for the purpose of gathering constitutional requirement renders SC-46 null and void.
information on energy resources and only if such activity is
carried out with the least damage to surrounding areas. IX
Surveys shall be conducted only in accordance with a
program approved by the DENR, and the result of such Public respondents also failed to show that Congress was
surveys shall be made available to the public and subsequently informed of the execution and existence of
submitted to the President for recommendation to SC-46. The reporting requirement is an equally important
Congress. Any exploitation and utilization of energy requisite to the validity of any service contract involving the
resources found within NIP AS areas shall be allowed only exploration, development, and utilization of Philippine
through a law passed by Congress.40 (Emphasis petroleum. Public respondents' failure to report to
supplied) Congress about SC-46 effectively took away any
opportunity for the legislative branch to scrutinize its terms
No law was passed by Congress specifically providing the and conditions.
standards, terms, and conditions of an oil exploration,
extraction, and/or utilization for Taon Strait and, In sum, SC-46 was executed and implemented absent all
therefore, no such activities could have been validly the requirements provided under paragraph 4 of Article
undertaken under SC-46. The National Integrated XII, Section 2. It is, therefore, null and void.
Protected Areas System Act of 1992 is clear that
exploitation and utilization of energy resources in a X
protected seascape such as Taon Strait shall only be
allowed through a specific law. I am of the view that SC-46, aside from not having
complied with the 1987 Constitution, is also null and void
VIII for being violative of environmental laws protecting Taon
Strait. In particular, SC-46 was implemented despite falling
Former President Gloria Macapagal-Arroyo was not the short of the requirements of the National Integrated
signatory to SC-46, contrary to the requirement set by Protected Areas System Act of 1992.
paragraph 4 of Article XII, Section 2 for service contracts
involving the exploration of petroleum. SC-46 was entered As a protected seascape under Presidential Decree No.
into by then Department of Energy Secretary Vicente S. 1234,43 Taon Strait is covered by the National Integrated
Perez, Jr., on behalf of the government. I agree with the Protected Areas System Act of 1992. This law declares as
Main Opinion that in cases where the Constitution or law a matter of policy:
requires the President to act personally on the matter, the
duty cannot be delegated to another public official.41 La SEC. 2. Declaration of Policy. Cognizant of the profound
Bugal highlights the importance of the President's impact of man's activities on all components of the natural
involvement, being one of the constitutional safeguards environment particularly the effect of increasing
against abuse and corruption, as not mere formality: population, resource exploitation and industrial
advancement and recognizing the critical importance of
At this point, we sum up the matters established, based on protecting and maintaining the natural biological and
a careful reading of the ConCom deliberations, as follows: physical diversities of the environment notably on areas
with biologically unique features to sustain human life and
In their deliberations on what was to become paragraph development, as well as plant and animal life, it is hereby
4, the framers used the term service contracts in referring declared the policy of the State to secure for the Filipino
to agreements x x x involving either technical or financial people of present and future generations the perpetual
assistance. They spoke of service contracts as the existence of all native plants and animals through the
concept was understood in the 1973 Constitution. establishment of a comprehensive system of integrated
protected areas within the classification of national park as
It was obvious from their discussions that they were not provided for in the Constitution.
about to ban or eradicate service contracts.
It is hereby recognized that these areas, although distinct
Instead, they were plainly crafting provisions to. put in in features, possess common ecological values that may
place safeguards that would eliminate or m minimize the be incorporated into a holistic plan representative of our
natural heritage; that effective administration of these
Law on NatRes (84-89) 87

areas is possible only through cooperation among national carried out with the least damage to surrounding areas.
government, local and concerned private organizations; Surveys shall be conducted only in accordance with a
that the use and enjoyment of these protected areas must program approved by the DENR, and the result of such
be consistent with the principles of biological diversity and surveys shall be made available to the public and
sustainable development. submitted to the President for recommendation to
Congress. Any exploitation and utilization of energy
To this end, there is hereby established a National resources found within NIPAS areas shall be allowed only
Integrated Protected Areas System (NIPAS), which shall through a taw passed by Congress.47 (Emphasis
encompass outstanding remarkable areas and biologically supplied)
important public lands that are habitats of rare and
endangered species of plants and animals, biogeographic Public respondents argue that SC-46 complied with the
zones and related ecosystems, whether terrestrial, procedural requirements of obtaining an Environmental
wetland or marine, all of which shall be designated as Compliance Certificate.48 At any rate, they assert that the
"protected areas."44 (Emphasis supplied) activities covered by SC-46 fell under Section 14 of the
National Integrated Protected Areas System Act of 1992,
Pursuant to this law, any proposed activity in Taon Strait which they interpret to be an exception to Section 12. They
must undergo an Environmental Impact Assessment: argue that the Environmental Compliance Certificate is not
a strict requirement for the validity of SC-46 since (a) the
SEC. 12. Environmental Impact Assessment. - Proposals Taon Strait is not a nature' reserve or natural park; (b) the
for activities which are outside the scope of the exploration was merely for gathering information; and ( c)
management plan for protected areas shall be subject to measures were in place to ensure that the exploration
an environmental impact assessment as required by law caused the least possible damage to the area.49
before they are adopted, and the results thereof shall be
taken into consideration in the decision-making process.45 Section 14 is not an exception to Section 12, but instead
(Emphasis supplied) provides additional requirements for cases involving
Philippine energy resources. The National Integrated
The same provision further requires that an Environmental Protected Areas System Act of 1992 was enacted to
Compliance Certificate be secured under the Philippine recognize the importance of protecting the environment in
Environmental Impact Assessment System before arty light of resource exploitation, among others.50 Systems
project is implemented: are put in place to secure for Filipinos local resources
under the most favorable conditions. With the status of
No actual implementation of such activities shall be Taon Strait as a protected seascape, the institution of
allowed without the required Environmental Compliance additional legal safeguards is even more significant.
Certificate (ECC) under the Philippine Environment Impact
Assessment (EIA) system. In instances where such Public respondents did not validly obtain an Environmental
activities are allowed to be undertaken, the proponent Compliance Certificate for SC-46. Based on the records,
shall plan and carry them out in such manner as will JAPEX commissioned an environmental impact evaluation
minimize any adverse effects and take preventive and only in the second subphase of its project, with the
remedial action when appropriate. The proponent shall be Environmental Management .Bureau of Region
liable for any damage due to lack of caution or
indiscretion.46 (Emphasis supplied) VII granting the project an Environmental Compliance
Certificate on March 6, 2007.51
In projects involving the exploration or utilization of energy
resources, the National Integrated Protected Areas Despite its scale, the seismic surveys from May 9 to 18,
System Act of 1992 additionally requires that a program be 2005 were conducted without any environmental
approved by the Department of Environment and Natural assessment contrary to Section 12 of the National
Resources, which shall be publicly accessible. The Integrated Protected Areas System Act of 1992.
program shall also be submitted to the President, who in
turn will recommend the program to Congress. XI
Furthermore, Congress must enact a law specifically
allowing the exploitation of energy resources found within Finally, we honor every living creature when we take care
a protected area such as Taon Strait: of our environment. As sentient species, we do not lack in
the wisdom or sensitivity to realize that we only borrow the
SEC. 14. Survey for Energy Resources. - Consistent with resources that we use to survive and to thrive. We are not
the policies declared in Section 2, hereof, protected areas, incapable of mitigating the greed that is slowly causing the
except strict nature reserves and natural parks, may be demise of our planet. Thus, there is no need for us to feign
subjected to exploration only for the purpose of gathering representation of any other species or some imagined
information on energy resources and only if such activity is unborn generation in filing any action in our courts of law
Law on NatRes (84-89) 88

to claim any of our fundamental rights to a healthful


ecology. In this way and with candor and courage, we fully
shoulder the responsibility deserving of the grace and
power endowed on our species.

ACCORDINGLY, I vote:

(a) to DISMISS G.R. No. 180771 for lack of standing and


STRIKE OUT the name of Former President Gloria
Macapagal-Arroyo from the title of this case;

(b) to GRANT G.R. No. 181527; and

(c) to DECLARE SERVICE CONTRACT 46 NULL AND


VOID for violating the 1987 Constitution, Republic Act No.
7586, and Presidential Decree No. 1234.