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II However, the DOTC commissioned another firm, Hamburg port


Consultants, to conduct a second feasibility study (DOTC study)
EN BANC which was concluded in 2013. The DOTC study has a projected
cost of 18 billion pesos and requires the expansion of Sasa Wharf
G.R. No. 223076, September 13, 2016 by 27.9 hectares.
The DOTC study served as one of the primary considerations for
PILAR CAÑEDA BRAGA, PETER TIU LAVINA, ANTONIO H. current Sasa Wharf expansion project.
VERGARA, BENJIE T. BADAL, DIOSDADO ANGELO A. On December 21, 2014, the Regional Development Council for
MAHIPUS, AND SAMAL CITY RESORT OWNERS Region XI (the Council) endorsed the project through Resolution
ASSOCIATION, INC. (SCROA), Petitioners, No. 118 subject to the following conditions that must be met
v. HON. JOSEPH EMILIO A. ABAYA, IN HIS CAPACITY AS before its implementation:6
SECRETARY OF THE DEPARTMENT OF TRANSPORTATION The DOTC shall immediately secure the acquisition of 6.4
AND COMMUNICATIONS, DEPARTMENT OF hectares of right of way, per recommendation of the National
TRANSPORTATION AND COMMUNICATIONS (DOTC), PRE- Economic and Development Authority - Investment
QUALIFICATION, BIDS AND AWARDS COMMITTEE (PBAC) Coordination Committee (NEDA-ICC);
AND PHILIPPINE PORTS AUTHORITY (PPA), Respondents. The DOTC shall ensure that appropriate compensation is paid to
the owners of the properties to be acquired as additional right
DECISION of way;

BRION, J.: The DOTC shall ensure the proper relocation/resettlement of the
informal settlers affected by the project; and cralawlawlibrary
This is an Urgent Petition for a Writ of Continuing Mandamus
and/or Writ of Kalikasan with a prayer for the issuance of a The DOTC shall ensure the project will also benefit the port users
temporary environmental protection order (TEPO). The petition and the people of Davao by providing better, more affordable
is directed against the Department of Transportation and service, and generating sustainable employment opportunities.7
Communications (DOTC) and the Philippine Ports Authority's On April 10, 2015, the DOTC published an invitation to pre-
(PPA) modernization project: the Davao Sasa Wharf (the project), qualify and bid for the Project.8chanrobleslaw
a 30-year concession to develop, operate, and manage the port
under the Public-Private Partnership (PPP) scheme. On March 15, 2016, the petitioners - all stakeholders from Davao
The project is allegedly being carried out without the necessary City and Samal, Davao del Norte - filed this Urgent Petition for a
Environmental Compliance Certificate (ECC) or Environmental Writ of Continuing Mandamus and/or Writ of Kalikasan.
Impact Statements required under Presidential Decree No. (P.D.)
15861 and P.D. 1151.2 The project also allegedly failed to The Petition
conduct local consultation and to secure prior sanggunian
approval as required by the Local Government The petitioners allege: (1) that the DOTC issued the notice of
Code.3chanrobleslaw public bidding despite noncompliance with Resolution No. 118;
(2) that the DOTC did not conduct prior consultation and public
The Facts hearings nor secure the approval of the sanggunian concerned
as required under Sections 26 and 27 of the LGC; (3) that the
The Port of Davao is a seaport located in Mindanao. It is Davao City sanggunian had passed a resolution objecting to the
compose of several ports, all within the gulf of Davao, but its project for its noncompliance with the LGC; and (4) that the
base port is the Sasa Wharf located at Barangay Sasa, Davao City. DOTC has not yet obtained an Environmental Compliance
In 2011, the Sasa Wharf was pegged for privatization under the Certificate (ECC) as required under P.D. 1586.
PPP scheme.
In 2012, the PPA commissioned a feasibility study (PPA study) on They argue that the DOTC's implementation of the project - one
the current condition of the Sasa Wharf and its potential new that as a significant impact on the environment - without
targets in volume increase expansion. The study, which was preparing an Environmental Impact Statement, securing an ECC,
completed in 2012, was conducted by Science & Vision For or consulting the affected stakeholders, violates their
Technology, Inc. constitutional right to a healthy and balanced ecology.
The PPA study estimated that the modernization project would
cost an estimated 3.5 Billion pesos for the purchase of new
equipment and the installation of new facilities.

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The petitioners seek to restrain the implementation of the P.D. 1586 tasked the National Environmental Protection Council
Project - including its bidding and award - until the respondents (the Council) to issue its implementing rules and regulations
secure an ECC and comply with the LGC. (IRR). Environmental Management Bureau (EMB), a bureau
under the Department of Environment and Natural Resources
The Counter-arguments (DENR), absorbed these powers later on after the council was
The respondents, through the Office of the Solicitor General abolished.15chanrobleslaw
(OSG), invoke the prematurity of the petition. They argue that
the Project is still in the bidding process; thus, there is still no In 1991, Congress enacted the LGC which promoted public
proponent to implement it. participation by requiring national government agencies to
consult stakeholders before undertaking programs with
The proponent — not the respondents — has the duty to initiate significant ecological impact.
the Environmental Impact Assessment (EIA) process and to apply
for the issuance of the ECC.9 Until the bidding process is In 1996, President Fidel V. Ramos mandated the continuous
concluded, the EIA process cannot be undertaken and it would Strengthening of DENR's Environmental Impact Assessment
be premature to impute noncompliance with the Environmental Capability.16 He also required project proponents to conduct
Impact Statement System.10chanrobleslaw the environmental impact study and the feasibility study of
proposed projects simultaneously in order to maximize the use
Moreover, consultation with the stakeholders and the local of resources.17chanrobleslaw
government is premature and speculative at this point because
the proponent has not yet identified the actual details of the In an effort to further rationalize the EIS System and streamline
project's implementation. Again, compliance with the the CC application process, President Gloria Macapagal-Arroyo
consultation requirements of the LGC remains premature directed the DENR Secretary to issue new guidelines in 2002.
pending the award of the contract.
Consequently, the DENR issued Administrative Order (DAO) No.
They further argue that the allegations do not warrant the 2003-30, the current IRR for the EIS System.
issuance of a writ of kalikasan because the petitioners failed to Impact Assessment and the EIS System
prove the threat of environmental damage of such magnitude
as to prejudice the life, health, or property of inhabitants in two Environmental Impact Assessment (EIA) is the process of
or more cities or provinces.11chanrobleslaw evaluating and predicting the likely impacts - including
cumulative impacts - of an undertaking on the environment.19
Our Ruling Its goal is to prevent or mitigate potential harm to the
The petition is premature. environment and to protect the welfare of the affected
To better understand our judgment, we must first delve into the community. To this end, the process requires proponents to
relevant laws and their progression over time. truthfully and responsibly disclose all relevant information on
On June 6, 1977, President Ferdinand Marcos enacted P.D. 1151, the project through the EIS. This facilitates meaningful and
the Philippine Environmental Policy. It required all agencies and informed public participation that ensures the project's social
instrumentalities of the national government, including acceptability to the community.
government-owned or -controlled corporations (GOCCs), as well
as private corporations, firms, and entities to prepare a detailed The following are the key operating principles of the EIS System:
Environmental Impact Statement (EIS) for every project or The EIS System is concerned primarily with assessing the direct
undertaking that significantly affects the quality of the and indirect impacts of a project on the biophysical and human
environment.12chanrobleslaw environment and ensuring that these impacts are addressed by
appropriate environmental protection and enhancement
A year later on June 11, 1978, President Marcos issued P.D. 1586 measures.
which expounded on P.D. 1151 to institutionalized a more
comprehensive EIS System.13 It introduced the ECC, a certificate The EIS System aids proponents in incorporating environmental
issued by the President his representative) to environmentally considerations in planning their projects as well as in
critical projects that have sufficient safeguards to protect and determining the environment's impact on their project.
preserve the environment. It also penalized th who violate the
Environmental Impact System, its implementing rules, or the Project proponents are responsible for determining and
conditions of their ECC. disclosing all relevant information necessary for a methodical
assessment of the environmental impacts of their projects;

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Accountability statement of EIA consultants and the project
The review of the EIS by EMB shall be guided by three general proponent; and Other clearances and documents that may be
criteria: (1) that environmental considerations are integrated into determined and agreed upon during scoping.
the overall project planning, (2) that the assessment is
technically sound and proposed environmental mitigation The EIS contains a detailed project description of the nature,
measures are effective, and (3) that, social acceptability is based configuration, the raw materials/natural resources to be used,
on informed public participation; production system, waste generation and control, timelines, and
Effective regulatory review of the EIS depends largely on timely, all other related activities of the proposed project.23 It also
full, and accurate disclosure of relevant information by project includes an Environmental Management Plan (EMP) detailing
proponents and other stakeholders in the EIA process; the proponent's preventive, mitigating, compensatory, and
contingent measures to enhance the project's positive impacts
The social acceptability of a project is a result of meaningful and minimize ecological risks.24chanrobleslaw
public participation, which shall be assessed as part of the Projects with potentially significant negative environmental
Environmental Compliance Certificate (ECC) application, based impacts are further required to conduct public consultations so
on concerns related to the project's environmental impacts; that the environmental concerns of stakeholders are addressed
in formulating the EMP.25cralawredchanrobleslaw
The timelines prescribed by this Order, within which an
Environmental Compliance Certificate must be issued, or denied, The impact assessment concludes with EMB's approval (in the
apply only to processes and actions within the Environmental form of an ECC) or rejection (in the form of a denial letter).26
Management Bureau's (EMB) control and do not include actions The ECC signifies that the proposed project will not cause
or activities that are the responsibility of the proponent.20 significant negative impact on the environment based on the
Projects or undertakings that pose a potential significant impact proponent's representation. It also certifies that the proponent
to the environment are required to undergo impact assessment has complied with the EIS System and has committed to
in order to secure ECCs.21 The proponent initiates the implement its approved EMP. Accordingly, the ECC contains the
application process by filing a comprehensive EIS with the EMB. specific measures and conditions that the proponent must
The EIS should at least have the following: undertake to mitigate the identified environmental impacts.
EIS Executive Summary;
The duty to comply with the EIS System rests on the proponent.
Project Description;
The Sasa Wharf Modernization Project has the potential to
Matrix of the scoping agreement identifying critical issues and significantly affect the quality of the environment, putting it
concerns, as validated by EMB; within the purview of the EIS System. However, (1) who is
responsible for preparing and filing the EIS and (2) when does
Baseline environmental conditions focusing on the sectors (and this duty arise?
resources) most significantly affected by the proposed action;
P.D. 1151 and P.D. 1586 requires all agencies and
Impact assessment focused on significant environmental instrumentalities of national government, including GOCCs, and
impacts (in relation to project construction/commissioning, private corporations, firms, and entities to file the EIS for every
operation and decommissioning), taking into account proposed project or undertaking that significantly affects the
cumulative impacts; quality of the environment.27 Section 4 of P.D. 1151 reads:
Section 4. Environmental Impact Statements. Pursuant to the
Environmental Risk Assessment if determined by EMB as above enunciated policies and goals, all agencies and
necessary during scoping; instrumentalities of the national government, including
Environmental Management Program/Plan; government-owned or -controlled corporations, as well as
private corporations, firms, and entities shall prepare, file, and
Supporting documents; including technical/socio-economic include in every action, project, or undertaking which
data used/generated; certificate of zoning viability and significantly affects the quality of the environment, a detailed
municipal land use plan; and proof of consultation with statement on:
stakeholders;

Proposals for Environmental Monitoring and Guarantee Funds (a) the environmental impact of the proposed action, project or
including justification of amount, when required; undertaking;

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(b) any adverse environmental effect which cannot be avoided
should the proposal be implemented; The LGC requires the lead agency to conduct local consultation
(c) alternative to the proposed action; and secure the approval of the concerned sanggunian prior to
(d) a determination that the short-term uses of the resources of the implementation of the project.
the environment are consistent with the 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 compliance with other relevant laws. The LGC, in particular,
nonrenewable resources, a finding must be made that such use requires the government agency authorizing the project to
and commitment are warranted. conduct local consultation and secure prior consent for
ecologically impactful projects:
Before an environmental impact statement is issued by a lead Section 26. Duty of National Government Agencies in the
agency, all agencies having jurisdiction over, or special expertise Maintenance of Ecological Balance. - It shall be the duty of every
on the subject matter involved shall comment on the draft national agency or government-owned or -controlled
environmental impact statement made by the lead agency corporation authorizing or involved in the planning and
within thirty (30) days from receipt of the implementation of any project or program that may cause
same.28chanroblesvirtuallawlibrary pollution, climatic change, depletion of nonrenewable resources,
On the other hand, P.D. 1586 states: loss of crop land, rangeland, or forest cover, and extinction of
animal or plant species, to consult with the local government
Section 2. Environmental Impact Statement System. There is units, nongovernmental organizations, and other sectors
hereby established an Environmental Impact Statement System concerned and explain the goals and objectives of the project or
founded and based on the environmental impact statement program, its impact upon the people and the community in
required, under Section 4 of Presidential Decree No. 1151, of all terms of environmental or ecological balance, and the measures
agencies and instrumentalities of the national government, that will be undertaken to prevent or minimize the adverse
including government-owned or controlled corporations, as well effects thereof.
as private corporations, firms and entities, for every proposed
project and undertaking which significantly affect the quality of Section 27. Prior Consultations Required. - No project or
the environment.29chanroblesvirtuallawlibrary program shall be implemented by government authorities
These provisions demonstrate the expansive scope of the EIS unless the consultations mentioned in Sections 2 (c) and 26
System. Unfortunately, they are also ambiguous when it comes hereof are complied with, and prior approval of the sanggunian
to identifying with particularity the responsible party in concerned is obtained: Provided, That occupants in areas where
multilateral and collaborative projects. such projects are to be implemented shall not be evicted unless
appropriate relocation sites have been provided, in accordance
The IRR of the EIS System simply designates the responsible with the provisions of the
party as the proponent. Ordinarily, the proponent is easy to Constitution.33chanroblesvirtuallawlibrary
identify - it is the natural or juridical person intending to The duty to consult the concerned local government units and
implement the project.30 But who ane the proponents in PPP the stakeholders belongs to the national government agency or
Projects which are a collaborative effort between the GOCC authorizing or involved in the planning and
government and the private sector? implementation of the project - not the private sector
proponent. In this case, this refers to the DOTC.
Republic Act No. 695731 as amended by R.A. 7718, commonly
known as the Build-Operate-Transfer (BOT) Law, identifies the The LGC does not prohibit the agency from acting through a
proponent in a PPP project as "the private sector entity which medium such as the project proponent.34 In fact, the required
shall have contractual responsibility for the project"32 consultation under the LGC may overlap with the consultation
Accordingly, there is yet no project proponent responsible for prescribed under the EIS System. Both are intended to measure
the EIS and the ECC until the bidding process has concluded and a project's social acceptability and secure the community's
the contract has been awarded. approval before the project's implementation.

Considering that the Project is still in the bidding stage, the However, the agency is responsible for ensuring that: (1) the
petition or continuing mandamus to compel the respondents to concerned LGUs and stakeholders have been thoroughly and
submit an EIS and secure an ECC is premature. It is also truthfully informed of the objectives of the program and its
misplaced because the public respondents DO NOT have the ecological impact on the community; so that (2) the community,
duty to submit the EIS or secure an ECC. through their sanggunian, can intelligently give their approval to

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socially acceptable projects and reject the unacceptable ones. plain, speedy and adequate remedy in the ordinary course of
These requirements must be complied with before the project is law.41chanrobleslaw
implemented.
The writ cannot be resorted to when the respondent is not the
But when does implementation begin? person obliged to perform the duty under the law (as is the case
under the EIS System) or when the period for the respondent to
The BOT Law defines the proponent as the private sector entity perform its legal duty has not yet expired (as is. the case with the
with the contractual responsibility over the project.35 The consultation requirements of the LGC). Accordingly, we cannot
contract to a project is executed between the concerned agency issue a writ of continuing mandamus.
and the winning bidder within seven (7) days from the latter's
receipt of the notice from the agency that all conditions stated The petition does not warrant a writ of Kalikasan.
in the Notice of Award have been complied
with.36chanrobleslaw Likewise, the Court cannot issue a writ of kalikasan based on the
petition. The writ is a remedy to anyone whose constitutional
Upon the signing of the contract, the winning bidder becomes right to a balanced and healthful ecology is violated or
the project proponent. Within another 7 days from the date of threatened with violation by an lawful act or omission. However,
approval or signing of the contract by the head of the Agency, the violation must involve environmental damage of such
the agency will issue a "Notice to Commence Implementation" magnitude as to prejudice the life, health, or property of
to the proponent.37 interestingly enough, even this does not inhabitants in two or more cities or provinces in order to arrant
signal the start of the implementation stage. the issuance of the writ.42chanrobleslaw

Upon receipt of the Notice, the proponent is required to prepare The petitioners allege that the respondents have begun the
detailed engineering designs and plans based on the prescribed process of transgressing their right to health and a balanced
minimum design and performance standards and specifications ecology through the bidding process.43 They cite The
in the bid/tender documents.38 The agency shall review the Competitiveness of Global Port-Cities: Synthesis Report44 to
detailed engineering designs in terms of its compliance with the identify the four major negative impacts related to port
prescribed standards and specification the designs are found operations: 1) environmental impacts, 2) land use impacts, 3)
acceptable, the agency shall approve them incorporation in the traffic impacts, and 4) other impacts. The synthesis report claims
contract to be signed by the proponent and the that most of these impacts affect the surrounding localities.
agency.39chanrobleslaw
They claim that the environmental impacts of port operations
The proponent shall construct the project based on the design "are within the field of air emissions, water quality, soil, waste,
and performance standards and specifications in the detailed biodiversity, noise and other impacts. These environmental
engineering design.40 The signing of the finalized contract impacts can have consequences for the health of the population
incorporating the detailed engineering design is the reckoning of the port city, especially the poorer parts of port cities."
point when implementation can begin. This is the start of the
Construction Stage. The petitioners also cite Managing Impacts of Development in
Coastal Zone, a joint publication of the DENR, the Bureau of
The Sasa Wharf Modernization Project has not yet reached the Fisheries Aquatic Resources (BFAR), the Department of the
construction stage. The bidding process had not even been Interior and Government (DILG), and the DENR Coastal Resource
concluded when ithe present petition was filed. On this account, Management Project (CRMP) that identified the effects of
the petition is also premature for the purpose of compelling the coastal construction and reclaim including ports and offshore
respondents to comply with Sections 26 and 27 of the LGC. moorings.46 The petition alleges that:
According to Managing Impacts, "Coastal construction has been
The purpose of a writ of continuing mandamus is to compel the the most widespread of activities affecting coastal resources"
respondent to perform his duties under the law. This remedy is since "Any construction that modifies the shoreline will
available When any government agency, instrumentality, or invariably change currents, wave action, tidal fluctuations, and
officer unlawfully neglects a Specific legal duty in connection the transport of sediments along the coast" while "Coastal
with the enforcement or violation of an environmental law, rule, construction that restricts the circulation of coastal water bodies
or regulation, or a right therein, unlawfully excludes another can also degrade water quali[t]y and coastal ecosystems."47
from the use or enjoyment of such right and :here is no other However, these allegations are insufficient to warrant a writ of
kalikasan.

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First, the petition failed to identify the particular threats from the
Project itself. All it does is cite the negative impacts of operating
a port inside a city based on the Synthesis Report. However,
these impacts already exist because the Port of Davao has been
operating since 1900. The Project is not for the creation of a new
port but the modernization of an existing one. At best, the
allegations in support of the application for the writ of kalikasan
are hazy and speculative.

Second, the joint publication is titled Managing Impacts of


Development in the Coastal Zone for a reason; it identifies the
potential environmental impacts and proposes mitigation
measures to protest the environment. The petition is misleading
because it only identified the risks but neglected to mention the
existence and availability of mitigating measures.

Moreover, this Court does not have the technical competence to


assess the Project, identify the environmental threats, and weigh
the sufficiency or insufficiency of any proposed mitigation
measures. This specialized competence is lodged in the DENR,
who acts through the EMB In the EIA process. As we have already
established, the application of the EIS System is premature until
a proponent is selected.

Further, we fail to see an environmental risk that threatens to


prejudice the inhabitants of two or more cities or municipalities
if we do not restrain the conduct of the bidding process. The
bidding process is not equivalent to the implementation of the
project. The bidding process itself 'cannot conceivably cause any
environmental damage.

Finally, it is premature to conclude that the respondents violated


the conditions of Resolution No. 118 issued by the Regional
Development Council of Region XI. Notably, the Resolution
requires compliance before the implementation of the project.
Again, the project has not yet reached the implementation
stage.

WHEREFORE, we DENY the petition for its prematurity and lack


of merit.

SO ORDERED. II

Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Peralta, Del EN BANC
Castillo, Perez, Mendoza, Reyes, Perlas-Bernabe, Leonen,
Jardeleza, and Caguioa, JJ., concur. G.R. No. 207257 February 3, 2015
Bersamin,* J., on official leave.
HON. RAMON JESUS P. PAJE, in his capacity as SECRETARY
OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES (DENR), Petitioner,
vs.
HON. TEODORO A. CASIÑO
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DECISION On December 22, 2008, the DENR, through former Secretary
Jose L. Atienza, Jr., issued an ECC for the proposed 2x150-MW
DEL CASTILLO, J.: coal-fired power plant.16

Before this Court are consolidated Petitions for Review on Sometime thereafter, RP Energy decided to include additional
Certiorari1 assailing the Decision2 dated January 30, 2013 and components in its proposed coal-fired power plant. Due to the
the Resolution3 dated May 22, 2013 of the Court of Appeals (CA) changes in the project design, which involved the inclusion of a
in CA-G.R. SP No. 00015, entitled "Hon. Teodoro A. Casiño, et al. barge wharf, seawater intake breakwater, subsea discharge
v. Hon. Ramon Jesus P. Paje, et al." pipeline, raw water collection system, drainage channel
improvement, and a 230kV double-circuit transmission line,17 RP
Factual Antecedents Energy requested the DENR Environmental Management
Bureau(DENR-EMB) to amend its ECC.18 In support of its request,
RP Energy submitted to the DENR-EMBan Environmental
In February 2006, Subic Bay Metropolitan Authority· (SBMA), a
Performance Report and Management Plan (EPRMP), which was
government agency organized and established under Republic
prepared by GHD.19
Act No. (RA) 7227,4 and Taiwan Cogeneration Corporation (TCC)
entered into a Memorandum of Understanding (MOU)
expressing their intention to build a power plant in Subic Bay On June 8, 2010, RP Energy and SBMA entered into a Lease and
which would supply reliable and affordable power to Subic Bay Development Agreement (LDA) over a 380,004.456-square
Industrial Park (SBIP).5 meter parcel of land to be used for building and operating the
coal-fired power plant.20

On July 28, 2006, SBMA and TCC entered into another MOU,
whereby TCC undertook to build and operatea coal-fired power On July 8, 2010, the DENR-EMBissued an amended ECC (first
plant.6 In the said MOU, TCC identified 20 hectares of land at amendment) allowing the inclusion ofadditional components,
SitioNaglatore, Mt. Redondo, Subic Bay Freeport Zone (SBFZ) as among others.21
the suitable area for the project and another site of
approximately 10 hectares tobe used as an ash pond.7 TCC Several months later, RP Energy again requested the DENR-EMB
intends to lease the property from SBMA for a term of 50 years to amend the ECC.22 Instead of constructing a 2x150-MW coal-
with rent fixed at$3.50 per square meter, payable in 10 equal 5- fired power plant, as originally planned, it now sought
year installments.8 toconstruct a 1x300-MWcoal-fired power plant.23 In support of
its request, RP Energy submitted a Project Description Report
On April 4, 2007, the SBMA Ecology Center issued SBFZ (PDR) to the DENR-EMB.24
Environmental Compliance Certificate (ECC) No. EC-SBFZ-ECC-
69-21-500 in favor of Taiwan Cogeneration International On May 26, 2011, the DENR-EMB granted the request and
Corporation (TCIC), a subsidiary of TCC,9 for the construction, further amended the ECC (second amendment).25
installation,and operation of 2x150-MW Circulating Fluidized
Bed (CFB) Coal-Fired Thermal Power Plant at Sitio Naglatore.10 On August 1, 2011, the Sangguniang Panglalawiganof Zambales
issued Resolution No. 2011-149, opposing the establishment of
On June 6, 2008, TCC assigned all its rights and interests under a coal-fired thermal power plant at SitioNaglatore, Brgy. Cawag,
the MOU dated July 28, 2006 to Redondo Peninsula Energy, Inc. Subic, Zambales.26
(RP Energy),11 a corporation duly organized and existing under
the laws of the Philippines with the primary purpose of building, On August 11, 2011, the Liga ng mga Barangayof Olongapo City
owning, and operating powerplants in the Philippines, among issued Resolution No. 12, Series of 2011, expressing its strong
others.12Accordingly, an Addendum to the said MOU was objection to the coal-fired power plant as an energy source.27
executed by SBMA and RP Energy.13
On July 20, 2012, Hon. Teodoro A. Casiño, Hon. Raymond V.
RP Energy then contracted GHD Pty, Ltd. (GHD) to prepare an Palatino, Hon. Rafael V. Mariano, Hon. Emerenciana A. De Jesus,
Environmental Impact Statement (EIS) for the proposed coal- Clemente G. Bautista, Jr., Hon. Rolen C. Paulino,Hon. Eduardo
fired power plant and to assist RP Energy in applying for the Piano, Hon. James de los Reyes, Hon. Aquilino Y. Cortez, Jr., Hon.
issuance ofan ECC from the Department of Environment and Sarah Lugerna Lipumano-Garcia, Noraida Velarmino, Bianca
Natural Resources (DENR).14 On August 27, 2008, the Christine Gamboa Espinos, Charo Simons, Gregorio Llorca
Sangguniang Panglungsodof Olongapo City issued Resolution Magdaraog, Rubelh Peralta, Alex Corpus Hermoso,Rodolfo
No. 131, Series of 2008, expressing the city government’s Sambajon, Rev. Fr. Gerardo Gregorio P. Jorge, Carlito A. Baloy,
objection to the coal-fired power plant as an energy source and Ofelia D. Pablo, Mario Esquillo, Elle Latinazo, Evangeline Q.
urging the proponent to consider safer alternative sources Rodriguez, and John Carlo delos Reyes (Casiño Group) filed
ofenergy for Subic Bay.15 before this Court a Petition for Writ of Kalikasan against RP

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Energy, SBMA, and Hon. Ramon Jesus P. Paje, in his capacity as 2. Whether x x x RP Energy can proceed with the
Secretary of the DENR.28 construction and operation of the 1x300 MW Power
Plant without prior consultation with and approval of
On July 31, 2012, this Court resolved, among others, to: (1) issue the concerned local government units (‘LGUs,’ x x x ),
a Writ of Kalikasan; and (2) refer the case to the CA for hearing pursuant to Sections 26 and 27 of Republic Act No.
and reception of evidence and rendition of judgment.29 While 7160 or the Local Government Code;
the case was pending, RP Energy applied for another
amendment to its ECC (third amendment) and submitted 3. Whether x x x Section 8.3 of DENRAdministrative
another EPRMP to the DENR-EMB, proposing the construction Order No. 2003-30 (‘DAO No. 2003-30,’ x x x ) providing
and operation of a 2x300-MW coal-fired power plant.30 for the amendment of an ECC is null and void for being
ultra vires; and
On September 11, 2012, the Petition for Writ of Kalikasanwas
docketed as CA-G.R. SP No. 00015 and raffled to the Fifteenth 4. Whether x x x the amendment of RPEnergy’s ECC
Division of the CA.31 In the Petition, the Casiño Group alleged, under Section 8.3 of DAO No. 2003-30 is null and void.
among others, that the power plant project would cause grave
environmental damage;32 that it would adversely affect the B. Respondent RP Energy
health of the residents of the municipalities of Subic,Zambales,
Morong, Hermosa, and the City of Olongapo;33 that the ECC was 1. Whether x x x Section 8.3 of DAO No. 2003-30 can
issued and the LDA entered into without the prior approval of be collaterally attacked;
the concerned sanggunians as required under Sections 26 and
27 of the Local Government Code (LGC);34 that the LDA was
1.1 Whether x x x the same is valid until
entered into without securing a prior certification from the
annulled;
National Commission on Indigenous Peoples (NCIP) as required
under Section 59 of RA8371 or the Indigenous Peoples’ Rights
Act of 1997 (IPRA Law);35 that Section 8.3 of DENR 2. Whether x x x petitioners exhausted their
Administrative Order No. 2003-30 (DAO 2003-30) which administrative remedies with respect to the amended
allowsamendments of ECCs is ultra viresbecause the DENR has ECC for the 1x300 MW Power Plant;
no authority to decide on requests for amendments of
previously issued ECCs in the absence of a new EIS;36 and that 2.1 Whether x x x the instant Petition is proper;
due to the nullity of Section 8.3 of DAO 2003-30, all
amendments to RP Energy’s ECC are null and void.37 3. Whether x x x RP Energycomplied with all the
procedures/requirements for the issuance of the DENR
On October 29, 2012, the CA conducted a preliminary ECC and its amendment;
conference wherein the parties, with their respective counsels,
appeared except for Hon. Teodoro A. Casiño, Hon. Rafael V. 3.1 Whether x x x a Certificate of Non-Overlap
Mariano, Hon. Emerencia A. De Jesus, Clemente G. Bautista, from the National Commission on Indigenous
Mario Esquillo, Elle Latinazo,Evangeline Q. Rodriguez, and the Peoples is applicable in the instant case;
SBMA.38 The matters taken up during the preliminary conference
were embodied in the CA’s Resolution dated November 5, 2012, 4. Whether x x x the LGU’s approval under Sections 26
to wit: and 27 of the Local Government Code is necessaryfor
the issuance of the DENR ECC and its amendments, and
I. ISSUES what constitutes LGU approval;

A. Petitioners (Casiño Group) 5. Whether x x x there is a threatened or actual violation


of environmental laws to justify the Petition;
1. Whether x x x the DENR Environmental Compliance
Certificate (‘ECC’ x x x) in favor of RP Energy for a 2x150 5.1 Whether x x x the approved 1x300 MW
MW Coal-Fired Thermal Power Plant Project (‘Power Power Plant complied with the accepted legal
Plant,’ x x x ) and its amendment to 1x300 MW Power standards on thermal pollution of coastal
Plant, and the Lease and Development Agreement waters, air pollution, water pollution, and acid
between SBMA and RP Energy complied with the deposits on aquatic and terrestrial
Certification Precondition as required under Section 59 ecosystems; and
of Republic Act No. 8371 or the Indigenous People’s
Rights Act of 1997 (‘IPRA Law,’ x x x); 6. Whether x x x the instant Petition should be
dismissed for failure to comply with the requirements

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of properverification and certification of nonforum member of the Zambales Chapter of the Kaya NatinMovement
shopping with respect to some petitioners. and the Zambales Chapter of the People Power Volunteers for
Reform;42 and (3) Ramon Lacbain, the ViceGovernor of the
C. Respondent DENR Secretary Paje Province of Zambales.43

1. Whether x x x the issuance of the DENR ECC and its RP Energy presented five witnesses,namely: (1) JunisseP.
amendment in favor of RP Energy requires compliance Mercado (Ms. Mercado), an employee of GHD and the Project
with Section 59 of the IPRA Law, as well as Sections 26 Directorof ongoing projects for RP Energy regarding the
and 27 of the Local Government Code; proposed power plant project;44 (2) Juha Sarkki (Engr. Sarkki), a
Master of Science degree holder inChemical Engineering;45 (3)
2. Whether x x x Section 8.3 of DAO No. 2003-30 can Henry K. Wong, a degree holder of Bachelor of Science Major in
be collaterally attacked in this proceeding; and Mechanical Engineering from Worcester Polytechnic
Institute;46 (4) Dr. Ely Anthony R. Ouano (Dr. Ouano), a licensed
Chemical Engineer, Sanitary Engineer, and Environmental
3. Whether x x x Section 8.3 of DAO No. 2003-30 is
Planner in the Philippines;47 and (5) David C. Evangelista (Mr.
valid.
Evangelista), a Business Development Analyst working for RP
Energy.48
II. ADMISSIONS/DENIALS
SBMA, for its part, presented its Legal Department Manager,
Petitioners, through Atty. Ridon, admittedall the allegations in Atty. Von F. Rodriguez (Atty. Rodriguez).49
RP Energy’s Verified Return, except the following:
The DENR, however, presented no evidence.50
1. paragraphs 1.4 to 1.7;
Meanwhile, on October 31, 2012, a Certificate of Non-Overlap
2. paragraphs 1.29 to 1.32; and (CNO) was issued in connection with RP Energy’s application for
the 2x300-MW coal-fired power plant.51
3. paragraphs 1.33 to 1.37.
On November 15, 2012, the DENR-EMB granted RP Energy’s
Petitioners made no specific denial withrespect to the application for the third amendment to its ECC, approving the
allegations of DENR Secretary Paje’s Verified Return. x x x construction and operation of a 2x300-MW coal-fired power
plant, among others.52
Respondent RP Energy proposed the following stipulations,
which were all admitted by petitioners, through Atty. Ridon, viz: Ruling of the Court of Appeals

1. The 1x300 MW Power Plant is not yet operational; On January 30, 2013, the CA rendereda Decision denying the
privilege of the writ of kalikasanand the application for an
2. At present, there is no environmental damage; environment protection order due to the failure of the Casiño
Group to prove that its constitutional right to a balanced and
3. The 1x300 MW Power Plant project is situated within healthful ecology was violated or threatened.53 The CA likewise
the Subic Special Economic Zone; and found no reason to nullify Section 8.3 ofDAO No. 2003-30. It said
that the provision was not ultra vires,as the express power of the
4. Apart from the instant case, petitioners have not Secretary of the DENR, the Director and Regional Directors of
challenged the validity of Section 8.3 of DAO No. 2003- the EMB to issue an ECC impliedly includes the incidental power
30. to amend the same.54 In any case, the CA ruled that the validity
of the said section could not becollaterally attacked in a petition
for a writ of kalikasan.55
Public respondent DENR Secretary Paje did not propose any
matter for stipulation.39
Nonetheless, the CA resolved to invalidate the ECC dated
December 22, 2008 for non-compliance with Section 59 of the
Thereafter, trial ensued.
IPRA Law56 and Sections 26 and 27 of the LGC57 and for failure
of Luis Miguel Aboitiz (Mr. Aboitiz), Director of RP Energy, to affix
The Casiño Group presented three witnesses, namely: (1) his signature in the Sworn Statement of Full Responsibility,
Raymond V. Palatino, a two-term representativeof the which is an integral part of the ECC.58 Also declared invalid were
KabataanPartylist in the House of Representatives;40 (2) Alex C. the ECC first amendment dated July 8, 2010 and the ECC second
Hermoso, the convenor of the Zambales-Olongapo City Civil amendment dated May 26, 2011 in view of the failure of RP
Society Network,a director of the PREDA41 Foundation, and a
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Energy to comply with the restrictions set forth in the ECC, which Group, on the other hand, filed Omnibus Motions for
specifically require that "any expansion of the project beyond Clarification and Reconsideration.69
the project description or any change in the activity x x x shall
be subject to a new Environmental Impact On May 22, 2013, the CAissued a Resolution70 denying the
Assessment."59 However, as to the ECC third amendment dated aforesaid motions for lack of merit. The CA opined that the
November 15, 2012, the CA decided not to rule on its validity reliefs it granted in its Decision are allowed under Section 15,
since it was not raised as an issue during the preliminary Rule 7 of the Rules of Procedure for Environmental Cases as the
conference.60 reliefs enumerated therein are broad, comprehensive, and
nonexclusive.71 In fact, paragraph (e) of the saidprovision allows
The CA also invalidated the LDA entered into by SBMA and RP the granting of "such other reliefs" in consonance with the
Energy as it was issued without the prior consultation and objective, purpose, and intent of the Rules.72 SBMA’s contention
approval of all the sanggunians concerned as required under that the stoppage of a project for non-compliance with Section
Sections 26 and 27 of the LGC,61 and in violation of Section 59, 59 of the IPRA Law may only be done by the indigenous cultural
Chapter VIII ofthe IPRA Law, which enjoins all departments and communities or indigenous peoples was also brushed aside by
other governmental agencies from granting any lease without a the CA as the Casiño Group did not file a case under the IPRA
prior certification that the area affected does not overlap with Law but a Petition for a Writ of Kalikasan, which is available to
any ancestral domain.62 The CA noted that no CNO was secured all natural or juridical persons whose constitutional right to a
from the NCIP prior to the execution of the LDA,63 and that the balanced and healthful ecology is violated, or threatened to be
CNO dated October 31, 2012 was secured during the pendency violated.73 As to RP Energy’s belated submission of a signed
of the case and was issued in connection with RP Energy’s Statement of Accountability, the CA gaveno weight and
application for a 2x300-MW coalfired power plant.64 credenceto it as the belated submission of such document, long
after the presentation of evidence of the parties had been
Thus, the CA disposed of the case in this wise: terminated, is not in accord with the rules of fair play.74 Neither
was the CA swayed by the argument that the omitted signature
WHEREFORE, premises considered, judgment is hereby of Luis Miguel Aboitiz is a mere formal defect, which does not
rendered DENYING the privilege of the writ of kalikasan and the affect the validity of the entire document.75 The dispositive
application for an environmental protection order. The prayer to portion of the Resolution reads: WHEREFORE,premises
declare the nullity of Section 8.3 of the DENR Administrative considered, respondents Subic Bay Metropolitan Authority’s
Order No. 2003-30 for being ultra vires is DENIED; and the Motion for Reconsideration dated 18 February 2013,
following are all declared INVALID: Department of Environment and Natural Resources Secretary
Ramon Jesus P. Paje’s Motion for Reconsideration dated 19
February 2013, and Redondo Peninsula Energy, Inc.’s Motion for
1. The Environmental Compliance Certificate (ECC Ref.
Partial Reconsideration dated 22 February 2013, as well as
Code: 0804-011-4021) dated 22 December 2008 issued
petitioners’ OmnibusMotions for Clarification and
in favor of respondent Redondo Peninsula Energy, Inc.
Reconsideration dated 25 February 2013,are all DENIED for lack
by former Secretary Jose L. Atienza, Jr. of the
of merit.
Department of Environment and Natural Resources;

SO ORDERED.76
2. The ECC first amendment dated 08 July 2010 and
ECC second amendment dated 26 May 2011, both
issued in favor ofrespondent Redondo Peninsula Unsatisfied, the parties appealed to this Court.
Energy, Inc. by OIC Director Atty. Juan Miguel T. Cunaof
the Department of Environment and Natural The Casiño Group’s arguments
Resources, Environmental Management Bureau; and
The Casiño Group, in essence, argues that it is entitled to a Writ
3. The Lease and Development Agreement dated 08 of Kalikasan as it was able to prove that the operation of the
June 2010 entered into by respondents Subic Bay power plant would cause environmental damage and pollution,
Metropolitan Authority and Redondo Peninsula and that thiswould adversely affect the residents of the
Energy, Inc. involving a parcel of land consisting of provinces of Bataan and Zambales, particularly the
₱380,004.456 square meters. municipalities of Subic, Morong, Hermosa, and the City of
Olongapo. It cites as basis RP Energy’s EIS, which allegedly
SO ORDERED.65 admits that acid rain may occur in the combustion of coal;77 that
the incidence of asthma attacks among residents in the vicinity
of the project site may increasedue to exposure to suspended
The DENR and SBMA separately moved for reconsideration.66 RP
particles from plant operations;78 and that increased sulfur
Energy filed a Motion for Partial Reconsideration,67 attaching
oxides (SOx) and nitrogen oxides (NOx) emissions may occur
thereto a signed Statement of Accountability.68 The Casiño
during plant operations.79 It also claims that when the SBMA
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conducted Social Acceptability Policy Consultations with is alsonot a ground to invalidate a contract.95
If at all, the only
different stakeholders on the proposed power plant, the results effect of non-compliance with the said requirement under
indicated that the overall persuasion of the participants was a Section 59 of the IPRA Law is the stoppage or suspension of the
clear aversion to the project due to environmental, health, project.96 Besides, the subsequent issuance of a CNO has cured
economic and socio-cultural concerns.80 Finally, it contends that any legal defect found in the LDA.97
the ECC third amendment should also be nullified for failure to
comply with the procedures and requirements for the issuance RP Energy’s arguments
of the ECC.81
RP Energy questions the proprietyof the reliefs granted by the
The DENR’s arguments CA considering that it did not issue a writ of kalikasanin favor of
the Casiño Group.98 RP Energy is of the view that unless a writ of
The DENR imputes error on the CAin invalidating the ECC and kalikasanis issued, the CA has no power to grant the reliefs
its amendments, arguing that the determination of the validity prayed for in the Petition.99 And even if it does, the reliefs are
of the ECC as well as its amendments is beyond the scope of a limited to those enumerated in Section 15, Rule 7 of the Rules
Petition for a Writ of Kalikasan.82 And even if it is within the of Procedure for Environmental Cases and that the phrase "such
scope, there is no reason to invalidate the ECC and its other reliefs" in paragraph (e) should be limited only to those of
amendments as these were issued in accordance with DAO No. the same class or general nature as the four other reliefs
2003-30.83 The DENR also insists that contrary to the view of the enumerated.100 As to the validity of the LDA, the ECC and its
CA, a new EIS was no longer necessary since the first EIS was still amendments, the arguments of RP Energy are basically the same
within the validity period when the first amendment was arguments interposed by SBMA and the DENR. RP Energy
requested, and that this is precisely the reason RP Energy was maintains that the ECC and its amendments were obtained in
only required to submit an EPRMP in support of its application compliance with the DENR rules and regulations;101 that a CNO
for the first amendment.84 As to the second amendment, the is not necessary in the execution of anLDA and in the issuance
DENR-EMB only required RP Energy to submit documents to of the ECC and its amendments;102 and that prior approval of the
support the proposed revision considering that the change in local governments, which may be affected by the project, are not
configuration of the power plant project, from 2x150MW to required because under RA 7227, the decision of the SBMA shall
1x300MW, was not substantial.85 Furthermore, the DENR argues prevail in matters affecting the Subic Special Economic Zone
that no permits, licenses, and/or clearances from other (SSEZ), except in matters involving defense and security.103 RP
government agencies are required in the processing and Energy also raises the issue of non-exhaustion of administrative
approval of the ECC.86 Thus, non-compliance with Sections 26 remedies on the part of the Casiño Group.104 Preliminaries
and 27 of the LGC as well as Section 59 ofthe IPRA Law is not a
ground to invalidate the ECC and its amendments.87 The DENR This case affords us an opportunity to expound on the nature
further posits that the ECC is not a concession, permit, or license and scope of the writ of kalikasan. It presents some interesting
but is a document certifying that the proponent has complied questions about law and justice in the context of environmental
with all the requirements of the EIS System and has committed cases, which we will tackle in the main body of this Decision.
to implement the approved Environmental Management
Plan.88 The DENR invokes substantial justice so that the belatedly But we shall first address some preliminary matters, in view of
submitted certified true copy of the ECC containing the the manner by which the appellate court disposed of this case.
signature of Mr. Aboitiz on the Statement of Accountability may
be accepted and accorded weight and credence.89
The Rules on the Writ of Kalikasan,105 which is Part III of the Rules
of Procedure for Environmental Cases,106 was issued by the
SBMA’s arguments Court pursuant to its power to promulgate rules for the
protection and enforcement of constitutional rights,107 in
For its part, SBMA asserts that since the CA did not issue a Writ particular, the individual’s rightto a balanced and healthful
of Kalikasan, it should not have invalidated the LDA and that in ecology.108 Section 1 of Rule 7 provides:
doing so, the CA acted beyond its powers.90 SBMA likewise puts
in issue the legal capacity of the Casiño Group to impugn the Section 1. Nature of the writ.- The writ is a remedy available to a
validity of the LDA91 and its failure to exhaust administrative natural or juridical person, entity authorized by law, people’s
remedies.92 In any case, SBMA contends that there is no legal organization, nongovernmental organization, or any public
basis to invalidate the LDA as prior consultation under Sections interest group accredited by or registered with any government
26 and 27 of the LGC is not required in this case considering that agency, on behalf of persons whose constitutional right to a
the area is within the SBFZ.93 Under RA 7227, it is the SBMA balanced and healthful ecology is violated, or threatened with
which has exclusive jurisdiction over projects and leases within violation by an unlawful act or omission of a public official or
the SBFZ and that in case of conflict between the LGC and RA employee, or private individual or entity, involving
7227, it is the latter, a special law, which must environmental damage of such magnitude as to prejudice the
prevail.94 Moreover, the lack of prior certification from the NCIP
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life, health or property of inhabitants in two or more cities or (c) Directing the respondent public official, government
provinces. agency, private person or entity to monitor strict
compliance with the decision and orders of the court;
The writ is categorized as a special civil action and was, thus,
conceptualized as an extraordinary remedy,which aims to (d) Directing the respondent public official,
provide judicial relief from threatened or actual violation/s of the government agency, or private person or entity to
constitutional right to a balanced and healthful ecology of a make periodic reports on the execution of the final
magnitude or degree of damage that transcends political and judgment; and
territorial boundaries.109 It is intended "to provide a
strongerdefense for environmental rights through judicial (e) Such other reliefs which relate to the right of the
efforts where institutional arrangements of enforcement, people to a balanced and healthful ecology or to the
implementation and legislation have fallen short"110 and seeks protection, preservation, rehabilitation or restoration of
"to address the potentially exponential nature of large-scale the environment, except the award of damages to
ecological threats."111 individual petitioners.

Under Section 1 of Rule 7, the following requisites must be It must be noted, however,that the above enumerated reliefs are
present to avail of this extraordinary remedy: (1) there is an non-exhaustive. The reliefs that may be granted under the writ
actual or threatened violation of the constitutional right to a are broad, comprehensive and non-exclusive.112
balanced and healthful ecology; (2) the actual or threatened
violation arises from an unlawful act or omission of a public Prescinding from the above, the DENR, SBMA and RP Energy are
official or employee, or private individual or entity; and (3) the one in arguing that the reliefs granted by the appellate court,
actual or threatened violation involves or will lead to an i.e.invalidating the ECC and its amendments, are improper
environmental damage of such magnitude as to prejudice the because it had deniedthe Petition for Writ of Kalikasanupon a
life, health or property ofinhabitants in two or more cities or finding that the Casiño Group failed to prove the alleged
provinces. environmental damage, actual or threatened, contemplated
under the Rules.
Expectedly, the Rules do not definethe exact nature or degree of
environmental damage but only that it must be sufficientlygrave, Ordinarily, no reliefs could and should be granted. But the
in terms of the territorial scope of such damage, so as tocall for question may be asked, could not the appellate court have
the grant ofthis extraordinary remedy. The gravity granted the Petition for Writ of Kalikasanon the ground of the
ofenvironmental damage sufficient to grant the writ is, thus, to invalidity of the ECC for failure to comply with certain laws and
be decided on a case-to-case basis. rules?

If the petitioner successfully proves the foregoing requisites, the This question is the starting point for setting up the framework
court shall render judgment granting the privilege of the writ of of analysis which should govern writ of kalikasan cases.
kalikasan. Otherwise, the petition shall be denied. If the petition
is granted, the court may grant the reliefs provided for under
In their Petition for Writ of Kalikasan,113 the Casiño Group’s
Section 15of Rule 7, to wit: Section 15. Judgment.- Within sixty
allegations, relative to the actual or threatened violation of the
(60) daysfrom the time the petition is submitted for decision, the
constitutional right to a balanced and healthful ecology, may be
court shall render judgment granting or denying the privilege of
grouped into two.
the writ of kalikasan.

The first set of allegations deals withthe actual environmental


The reliefs that may be granted under the writ are the following:
damage that will occur if the power plant project isimplemented.
The Casiño Group claims that the construction and operation of
(a) Directing respondent to permanently cease and the power plant will result in (1) thermal pollution of coastal
desist from committing acts or neglecting the waters, (2) air pollution due to dust and combustion gases, (3)
performance of a duty in violation of environmental water pollution from toxic coal combustion waste, and (4) acid
laws resulting in environmental destruction or damage; deposition in aquatic and terrestrial ecosystems, which will
adversely affect the residents of the Provinces of Bataan and
(b) Directing the respondent public official, Zambales, particularly the Municipalities of Subic, Morong and
government agency, private person or entity to protect, Hermosa, and the City of Olongapo.
preserve, rehabilitate or restore the environment;
The second set of allegations deals with the failureto comply
with certain laws and rules governing or relating to the issuance
ofan ECC and amendments thereto. The Casiño Group claims
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that the ECC was issued in violation of (1) the DENR rules on the implement the project, may subsequently rely on such
issuance and amendment of an ECC, particularly, DAO 2003-30 substantially defective or fraudulent ECC in approving the
and the Revised Procedural Manual for DAO 2003-30 (Revised implementation of the project.
Manual), (2) Section 59 of the IPRA Law,and (3) Sections 26 and
27 of the LGC. In addition, it claims that the LDA entered into To repeat, in cases of defects or irregularities in the issuance of
between SBMA and RP Energy violated Section 59 of the IPRA an ECC, it is not sufficient to merely allege such defects or
Law. irregularities, but to show a causal link or reasonable connection
with the environmental damage of the magnitude contemplated
As to the first set of allegations, involving actual damage to the under the Rules. In the case at bar, no such causal link or
environment, it is not difficult to discern that, if they are proven, reasonable connection was shown or even attempted relative to
then the Petition for Writ of Kalikasan could conceivably be the aforesaid second set of allegations. It is a mere listing of the
granted. perceived defects or irregularities in the issuance of the ECC. This
would havebeen sufficient reason to disallow the resolution of
However, as to the second set of allegations, a nuanced such issues in a writ of kalikasan case.
approach is warranted. The power of the courts to nullify an ECC
existed even prior to the promulgation of the Rules on the Writ However, inasmuch as this is the first time that we lay down this
of Kalikasanfor judicial review of the acts of administrative principle, we have liberally examined the alleged defects or
agencies or bodies has long been recognized114 subject, of irregularities in the issuance of the ECC and find that there is
course, to the doctrine of exhaustion of administrative only one group of allegations, relative to the ECC, that can be
remedies.115 reasonably connected to anenvironmental damageof the
magnitude contemplated under the Rules. This is withrespect to
But the issue presented before us is nota simple case of the allegation that there was no environmental impact
reviewing the acts of an administrative agency, the DENR, which assessment relative to the first and second amendments to the
issued the ECC and its amendments. The challenge to the validity subject ECC. If this were true, then the implementation of the
ofthe ECC was raised in the context of a writ of kalikasancase. project can conceivably actually violate or threaten to violate the
The question then is, can the validity of an ECC be challenged right to a healthful and balanced ecology of the inhabitants near
viaa writ of kalikasan? the vicinity of the power plant. Thus, the resolution of such an
issue could conceivably be resolved in a writ of kalikasan case
We answer in the affirmative subject to certain qualifications. provided that the case does not violate, or is anexception to the
doctrine of exhaustion of administrative remedies and primary
jurisdiction.116
As earlier noted, the writ of kalikasanis principally predicated on
an actual or threatened violation of the constitutional right to a
balanced and healthful ecology, which involves environmental As to the claims that the issuance of the ECC violated the IPRA
damage of a magnitude that transcends political and territorial Law and LGC and that the LDA, likewise, violated the IPRA Law,
boundaries. A party, therefore, who invokes the writ based on we find the same not to be within the coverage of the writ of
alleged defects or irregularities in the issuance of an ECC must kalikasanbecause, assuming there was non-compliance
not only allege and prove such defects or irregularities, but therewith, no reasonable connection can be made to an actual
mustalso provide a causal link or, at least, a reasonable or threatened violation of the right to a balanced and healthful
connection between the defects or irregularities in the issuance ecology of the magnitude contemplated under the Rules.
of an ECC and the actual or threatened violation of the
constitutional right to a balanced and healthful ecology of the To elaborate, the alleged lackof approval of the concerned
magnitude contemplated under the Rules. Otherwise, the sanggunians over the subject project would not lead toor is not
petition should be dismissed outright and the action re-filed reasonably connected with environmental damage but, rather, it
before the proper forum with due regard to the doctrine of is an affront to the local autonomy of LGUs. Similarly, the alleged
exhaustion of administrative remedies. This must be so ifwe are lack of a certificate precondition that the project site does not
to preserve the noble and laudable purposes of the writ against overlap with an ancestral domain would not result inor is not
those who seek to abuse it. reasonably connected with environmental damage but, rather, it
is an impairment of the right of Indigenous Cultural
An example of a defect or an irregularity in the issuance of an Communities/Indigenous Peoples (ICCs/IPs) to their ancestral
ECC, which could conceivably warrant the granting of the domains. These alleged violationscould be the subject of
extraordinary remedy of the writ of kalikasan, is a case where appropriate remedies before the proper administrative bodies
there are serious and substantial misrepresentations or fraud in (like the NCIP) or a separate action to compel compliance before
the application for the ECC, which, if not immediately nullified, the courts, as the case may be. However, the writ of kalikasan
would cause actual negative environmental impacts of the would not be the appropriate remedy to address and resolve
magnitude contemplated under the Rules, because the such issues.
government agenciesand LGUs, with the final authority to
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Be that as it may, we shall resolve both the issues proper in a issuanceof an ECC and the lack of its prior issuance
writ of kalikasan case and those which are not, commingled as it rendered the ECC invalid.
were here, because of the exceptional character of this case. We
take judicial notice of the looming power crisis that our nation 5. Whether the Certificate of Non-Overlap, under
faces. Thus, the resolution of all the issues in this case is of Section 59 of the IPRA Law, is a precondition to the
utmost urgency and necessity in order to finally determine the consummation of the Lease and Development
fate of the project center of this controversy. If we were to Agreement (LDA) between SBMA and RPEnergy and
resolve only the issues proper in a writ of kalikasancase and the lack of its prior issuance rendered the LDA invalid.
dismiss those not proper therefor, that will leave such
unresolved issues open to another round of protracted 6. Whether compliance with Section 27, in relation to
litigation. In any case, we find the records sufficient to resolve all Section 26, of the LGC (i.e., approval of the concerned
the issues presented herein. We also rule that, due to the sanggunianrequirement) is necessary prior to the
extreme urgency of the matter at hand, the present case is an implementation of the power plant project.
exception to the doctrine of exhaustion of administrative
remedies.117 As we have often ruled, in exceptional cases, we can
7. Whether the validity of the third amendment to the
suspend the rules of procedure in order to achieve substantial
ECC can be resolved in this case.
justice, and to address urgent and paramount State interests
vital to the life of our nation.
Ruling
Issues
The parties to this case appealed from the decision of the
appellate court pursuant to Section 16, Rule7 of the Rules of
In view of the foregoing, we shall resolve the following issues:
Procedure for Environmental Cases, viz:

1. Whether the Casiño Group was able to prove that the


Section 16. Appeal.- Within fifteen (15) days from the date of
construction and operation of the power plant will
notice of the adverse judgment or denialof motion for
cause grave environmental damage.
reconsideration, any party may appeal to the Supreme Court
under Rule45 of the Rules of Court. The appeal may raise
1.1. The alleged thermal pollution of coastal questions of fact. (Emphasis supplied)
waters, air pollution due to dust and
combustion gases, water pollution from toxic
It is worth noting that the Rules on the Writ of Kalikasan allow
coal combustion waste, and acid deposition
the parties to raise, on appeal, questions of fact— and, thus,
to aquatic and terrestrial ecosystems that will
constitutes an exception to Rule 45 of the Rules of Court—
becaused by the project.
because ofthe extraordinary nature of the circumstances
surrounding the issuance of a writ of kalikasan.118 Thus, we shall
1.2. The alleged negative environmental review both questions of law and fact in resolving the issues
assessment of the project by experts in a presented in this case.
report generated during the social
acceptability consultations.
We now rule on the above-mentioned issues in detail.

1.3. The alleged admissions of grave


I.
environmental damage in the EIS itself of the
project.
Whether the Casiño Group was able to prove that the
construction and operation of the power plant will cause grave
2. Whether the ECC is invalid for lackof signature of Mr.
environmental damage.
Luis Miguel Aboitiz, as representative of RP Energy, in
the Statement of Accountability of the ECC.
The alleged thermal pollution of coastal
waters, air pollution due to dust and
3. Whether the first and second amendments to the
combustion gases, water pollution from
ECC are invalid for failure to undergo a new
toxic coal combustion waste, and acid
environmental impact assessment (EIA) because of the
deposition in aquatic and terrestrial
utilization of inappropriate EIA documents.
ecosystems that willbe caused by the
project.
4. Whether the Certificate of Non-Overlap, under
Section 59 of the IPRA Law, is a precondition to the
As previously noted, the Casiño Group alleged that the
construction and operation of the power plant shall adversely
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affect the residents of the Provinces of Bataan and Zambales, In its January 30, 2013 Decision, the appellate court ruled that
particularly, the Municipalities of Subic, Morong and Hermosa, the Casiño Group failed to prove the above allegations.
and the City of Olongapo, as well as the sensitive ecological
balance of the area. Their claims of ecological damage may be We agree with the appellate court.
summarized as follows:
Indeed, the three witnesses presented by the Casiño Group are
1. Thermal pollution of coastal waters. Due to the not experts on the CFB technology or on environmental matters.
discharge of heated water from the operation of the These witnesses even admitted on cross-examination that
plant, they claim that the temperature of the affected theyare not competent to testify on the environmental impact
bodies of water will rise significantly. This will have of the subject project. What is wanting in their testimonies is
adverse effects on aquatic organisms. It will also cause their technical knowledgeof the project design/implementation
the depletion of oxygen in the water. RP Energy claims or some other aspects of the project, even those not requiring
that there will beno more than a 3°C increase in water expertknowledge, vis-à-vis the significant negative
temperature but the Casiño Group claims that a 1°C to environmental impacts which the Casiño Group alleged will
2°C rise can already affect the metabolism and other occur. Clearly, the Casiño Group failed to carry the onusof
biological functions of aquatic organisms such proving the alleged significant negative environmental impacts
asmortality rate and reproduction. of the project. In comparison, RP Energy presented several
experts to refute the allegations of the Casiño Group.
2. Air pollution due to dust and combustion gases.
While the Casiño Group admits that Circulating As aptly and extensively discussed by the appellate court:
Fluidized Bed (CFB) Coal technology, which will be used
in the power plant, is a clean technology because it Petitioners120 presented three (3) witnesses, namely, Palatino,
reduces the emission of toxic gases, it claims that Hermoso, and Lacbain, all of whom are not experts on the CFB
volatile organic compounds, specifically, polycyclic technology or even on environmental matters. Petitioners did
aromatic hydrocarbons (PAHs) will also be emitted not present any witness from Morong or Hermosa. Palatino, a
under the CFB. PAHs are categorized as pollutants with former freelance writer and now a Congressman representing
carcinogenic and mutagenic characteristics. Carbon the Kabataan Partylist, with a degree of BS Education major in
monoxide, a poisonous gas, and nitrous oxide, a lethal Social Studies, admitted that he is not a technical expert.
global warming gas, will also be produced. Hermoso, a Director of the PREDA foundation which is allegedly
involved on environmental concerns, and a member of
3. Water pollution from toxic coal combustion waste. Greenpeace, is not an expert on the matter subject of this case.
The waste from coal combustion or the residues from He is a graduate of BS Sociology and a practicing business
burning pose serious environmental risk because they director involved in social development and social welfare
are toxic and may cause cancer and birth defects. Their services. Lacbain, incumbent ViceGovernor of the Province of
release to nearby bodies of water will be a threatto the Zambales, anaccounting graduate with a Master in Public
marine ecosystem of Subic Bay. The project is located Administration, was a former BancoFilipino teller, entertainment
in a flood-prone area and is near three prominent manager, disco manager, marketing manager and college
seismic faults as identified by Philippine Institute of instructor, and is also not an expert on the CFB technology.
Volcanology and Seismology. The construction of an Lacbain also admitted that he is neither a scientist nor an expert
ash pond in an area susceptible to flooding and on matters of the environment.
earthquake also undermines SBMA’s duty to prioritize
the preservation of the water quality in Subic Bay. Petitioners cited various scientific studies or articles and
websites culled from the internet. However, the said scientific
4. Acid deposition in aquatic and terrestrial ecosystems. studiesand articles including the alleged Key Observations and
The power plant will release 1,888 tons of nitrous Recommendations on the EIS of the Proposed RPE Project by
oxides and 886 tons of sulfur dioxide per year. These Rex Victor O. Cruz (Exhibit "DDDDD") attached to the Petition,
oxides are responsible for acid deposition. Acid were not testified to by an expert witness, and are basically
deposition directly impacts aquatic ecosystems. It is hearsay in nature and cannot be given probative weight. The
toxic to fish and other aquatic animals. It will also article purportedly written by Rex Victor O. Cruz was not even
damage the forests near Subic Bay as well as the signed by the said author, which fact was confirmed by Palatino.
wildlife therein. This will threaten the stability of the Petitioners’ witness, Lacbain, admitted that he did not personally
biological diversity of the Subic Bay Freeport which was conduct any study on the environmental or health effects of a
declared as one of the ten priority sites among the coal-firedpower plant, but only attended seminars and
protected areas in the Philippines and the Subic conferences pertaining to climate change; and that the scientific
Watershed and Forest Reserve. This will also have an studies mentioned in the penultimate whereas clause of
adverse effect on tourism.119 Resolution No. 2011-149 (Exhibit "AAAAA") of the Sangguniang
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Panlalawiganof Zambales is based on what he read on the In stark contrast, respondent RP Energy presented several
internet, seminars he attended and what he heard from witnesses on the CFB technology.
unnamed experts in the field of environmental protection.
In his Judicial Affidavit, witness Wong stated that he obtained a
In his Judicial Affidavit (Exhibit "HHHHH"), Palatino stated that Bachelor of Science, Major in Mechanical Engineering from
he was furnished by the concerned residents the Key Worcester Polytechnic Institute; he is a Consulting Engineer of
Observations and Recommendations on the EIS of Proposed RPE Steam Generators of URS; he was formerly connected with
Project by Rex Victor O. Cruz, and that he merely received and Foster Wheeler where he held the positions of site
read the five (5) scientific studies and articles which challenge commissioning engineer, testing engineer, instrumentation and
the CFB technology. Palatino also testified that: he was only controls engineer, mechanical equipment department manager,
furnished by the petitioners copies of the studies mentioned in director of boiler performance and mechanical design
his Judicial Affidavit and he did not participate in the execution, engineering and pulverized coal product director. He explained
formulation or preparation of any of the said documents; he that: CFB stands for Circulating Fluidized Bed; it is a process by
does not personally know Rex Cruz or any of the authors of the which fuel is fed to the lower furnace where it is burned in an
studies included in his Judicial Affidavit; he did not read other upward flow of combustion air; limestone, which is used as sulfur
materials about coal-fired power plants; he is not aware of the absorbent, is also fed to the lower furnace along with the fuel;
acceptable standards as far as the operation of a coal-fired the mixture offuel, ash, and the boiler bed sorbent material is
power plant is concerned; petitioner Velarmino was the one who carried to the upper part of the furnace and into a cyclone
furnished him copies of the documents in reference to the MOU separator; the heavier particles which generally consist of the
and some papers related to the case; petitioner Peralta was the remaining uncombusted fuel and absorbent material are
one who e-mailed to him the soft copy ofall the documents separated in the cyclone separator and are recirculated to the
[letters (a) to (o) of his Judicial Affidavit], except the LGU lower furnace to complete the combustion of any unburned
Resolutions; and he has never been at the actual Power Plant particles and to enhance SO2 capture by the sorbent; fly ash and
projectsite. It must be noted that petitioners Velarmino and flue gas exit the cyclone and the fly ash is collected in the
Peralta were never presented as witnesses in this case. In electrostatic precipitator; furnace temperature is maintained in
addition, Palatino did not identify the said studies but the range of 800° to 900° C by suitable heat absorbing surface;
simplyconfirmed that the said studies were attached to the the fuel passes through a crusher that reduces the size to an
Petition. appropriate size prior to the introduction into the lower furnace
along with the limestone; the limestone is used as a SO2 sorbent
Indeed, under the rules of evidence, a witness can testify only to which reacts with the sulfur oxides to form calcium sulfate, an
those facts which the witness knows of his orher personal inert and stable material; air fans at the bottom of the furnace
knowledge, that is, which are derived from the witness’ own create sufficient velocity within the steam generator to maintain
perception. Concomitantly, a witness may not testify on matters a bed of fuel, ash, and limestone mixture; secondary air is also
which he or she merely learned from others either because said introduced above the bed to facilitate circulation and complete
witness was told or read or heard those matters. Such testimony combustion of the mixture; the combustion process generates
is considered hearsay and may not be received as proof of the heat, which then heats the boiler feedwater flowing through
truth of what the witness has learned. This is known as the boiler tube bundles under pressure; the heat generated in the
hearsay rule. Hearsay is notlimited to oral testimony or furnace circuit turns the water to saturated steam which is
statements; the general rule that excludes hearsay as evidence further heated to superheated steam; this superheated steam
applies to written, as well as oral statements. There are several leaves the CFB boiler and expands through a steam turbine; the
exceptions to the hearsay rule under the Rules of Court, among steam turbine is directly connected to a generator that turns and
which are learned treatises under Section 46 of Rule 130, viz: creates electricity; after making its way through the steam
turbine, the low-pressure steam is exhausted downwards into a
"SEC. 46. Learned treatises. -A published treatise, periodical or condenser; heat is removed from the steam, which cools and
pamphlet on a subjectof history, law, science, or art is admissible condenses into water (condensate); the condensate is then
as tending to prove the truth of a matter stated therein if the pumped back through a train of feedwater heaters to gradually
court takes judicial notice, or a witness expert in the subject increase its temperature beforethis water is introduced to the
testifies, that the writer of the statement in the treatise, boiler to start the process all over again; and CFB technology has
periodical or pamphlet is recognized in his profession or calling advantagesover pulverized coal firing without backend cleanup
as expert in the subject." systems, i.e., greater fuel flexibility, lower SO2 and NOx
emissions. Moreover, Wong testified, inter alia, that: CFBs have
a wider range of flexibility so they can environmentally handle a
The alleged scientific studies mentioned in the Petition cannot
wider range of fuel constituents, mainly the constituent sulfur;
be classified as learned treatises. We cannot take judicial notice
and is capable of handling different types of coal within the
of the same, and no witness expert in the subjectmatter of this
range of the different fuelconstituents; since CFB is the newer
case testified, that the writers of the said scientific studies are
technology than the PC or stalker fire, it has better
recognized in their profession or calling as experts in the subject.
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environmental production; 50 percent ofthe electric generation environmental impacts, not the real impacts; almost all
in the United States is still produced by coal combustion; and environmental systems are non-linear and they are subject to
the CFB absorbs the sulfur dioxide before it is emitted; and there chaotic behavior that even the most sophisticated computer
will be a lower percentage of emissions than any other could not predict accurately; and the actual or real
technology for the coal. environmental impact could only be established when the
project is in actual operation. He testified, inter alia, that: the
In his Judicial Affidavit, Sarrki, stated that: he is the Chief higher the temperature the higher the nitrous oxide emitted; in
Engineer for Process Concept in FosterWheeler; he was a CFB technology, the lower the temperature, the lower is the
Manager of Process Technology for Foster Wheeler from 1995 nitrogen oxide; and it still has a nitrogen oxide but not as high
to 2007; and he holds a Master of Science degree in Chemical as conventional coal; the CFB is the boiler; from the boiler
Engineering.He explained that: CFB boilers will emit PAHs but itself,different pollution control facilities are going to be added;
only in minimal amounts, while BFB will produce higher PAH and for the overall plant with the pollution control facilities, the
emissions; PAH is a natural product of any combustion process; particulate matters, nitrogen oxide and sulfur dioxide are under
even ordinary burning, such as cooking or driving automobiles, control. (Citations omitted)121
will have some emissions that are not considered harmful; it is
only when emissions are of a significant level that damage may We also note that RP Energy controverted in detail the afore-
be caused; a CFB technology has minimal PAH emissions; the summarized allegations of the Casiño Group on the four areas
high combustion efficiency of CFB technology, due to long of environmental damage that will allegedly occur upon the
residence time of particles inside the boiler, leads to minimal construction and operation of the power plant:
emissions of PAH; other factors such as increase in the excess air
ratio[,] decrease in Ca/S, as well as decrease in the sulfur and 1. On thermal pollution of coastal waters.
chlorine contents of coal will likewise minimize PAH production;
and CFB does not cause emissions beyond As to the extent of the expected rise in water temperature once
scientificallyacceptable levels. He testified, inter alia, that: the the power plant is operational, Ms. Mercado stated in her
CFB technology is used worldwide; they have a 50% percent JudicialAffidavit thus:
share of CFB market worldwide; and this will be the first CFB by
Foster Wheeler in the Philippines; Foster Wheeler manufactures
Q: What was the result of the Thermal Plume Modeling that was
and supplies different type[s] of boilers including BFB, but CFB is
conducted for RP Energy?
always applied on burning coal, so they do not apply any BFB for
coal firing; CFB has features which have much better combustion
efficiency, much lower emissions and it is more effective as a A: The thermal dispersion modeling results show that largest
boiler equipment; the longer the coal stays inthe combustion warming change (0.95°C above ambient) is observed in the
chamber, the better it is burned; eight (8) seconds is already shallowest (5 m) discharge scenario. The warmest surface
beyond adequate but it keeps a margin; in CFB technology, temperature change for the deepest (30 m) scenario is 0.18°C.
combustion technology is uniform throughout the combustion All the simulated scenarios comply with the DAO 90-35 limit for
chamber; high velocity is used in CFB technology, that is temperature rise of 3°C within the defined 70 x 70 m mixing
vigorous mixing or turbulence; turbulence is needed to get zone. The proposed power plant location is near the mouth of
contact between fuel and combustion air; and an important Subic Bay, thus the tidal currents influence the behavior of
feature of CFB is air distribution. thermal discharge plume. Since the area is well-flushed, mixing
and dilution of the thermal discharge is expected.
In his Judicial Affidavit, Ouano stated that: he is a licensed
Chemical Engineer, Sanitary Engineer and Environmental It also concluded that corals are less likely to be affected by the
Planner in the Philippines; he is also a chartered Professional cooling water discharge as corals may persist in shallow marine
Engineer inAustralia and a member of the colleges of waterswith temperatures ranging from 18°C to 36°C. The
environmental engineers and chemical engineers of the predicted highest temperature of 30.75°C, from the 0.95°C
Institution of Engineers (Australia); he completed his Bachelor in increase in ambient in the shallowest (5 m) discharge scenario,
Chemical Engineering in 1970, Master of Environmental is within this range.122
Engineering in 1972 and Doctor of Environmental Engineering
in 1974; he also graduated from the University of Sydney Law In the same vein, Dr. Ouano stated in his Judicial Affidavit:
School with the degree of Master of Environmental Law in 2002
and PhD in Law from Macquarie University in 2007. He explained Q: In page 41, paragraph 99 of the Petition, it was alleged that:
in his Judicial Affidavit that: the impacts identified and analyzed "x x x a temperature change of 1°C to 2°C canalready affect the
in the EIA process are all potential or likely impacts; there are a metabolism and other biological functions of aquatic organisms
larger number of EIA techniques for predicting the potential such as mortality rate and reproduction." What is your expert
environmental impacts; it is important to note that all those opinion, if any, on this matter alleged by the Petitioners?
methods and techniques are only for predicting the potential

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A: Living organisms have proven time and again that they are Well, mammals have high tolerance because mammals are
very adaptable to changes in the environment. Living organisms warm[- ]blooded. Now, when it comes to cold[-]blooded animals
have been isolated in volcanic vents under the ocean living on the tolerance is much lower. But again when you are considering
the acidic nutrient soup of sulfur and other minerals emitted by x x x fish [e]specially in open ocean you have to remember that
the volcano to sub-freezing temperature in Antarctica. Asa nature by itself is x x x very brutal x x x where there is always the
general rule, metabolism and reproductive activity [increase] prey-predator relationship. Now, most of the fish that we have
with temperature until a maximum is reached after which [they in open sea [have] already a very strong adaptability
decline]. For this reason, during winter, animals hibernate and mechanism.And in fact, Kingman back in 1964 x x x studied the
plants become dormant after shedding their leaves. It is on the coal reefaround the gulf of Oman where the temperature
onset of spring that animals breed and plants bloom when the variation on day to day basis varied not by 1 degree to 2 degrees
air and water are warmer. At the middle of autumn when the but by almost 12 degrees centigrade. Now, in the Subic Bay area
temperature drops to single digit, whales, fish, birds and other which when you’re looking at it between daytime variation, early
living organisms, which are capable of migrating, move to the dawn when it is cold, the air is cold, the sea temperature, sea
other end of the globe where spring is just starting. In the water is quite cold. Then by 3:00 o’clock in the afternoon it starts
processes of migration, those migratory species have to cross to warm up. Sothe variation [in the] Subic Bay area is around 2
the tropics where the temperature is not just one or two degrees to 4 degrees by natural variation from the sun as well as from
warmer but 10 to 20 degrees warmer. When discussing the the current that goes around it. So when you are talking about
impact of 1 to 2 degrees temperature change and its impact on what the report has said of around 1 degree change, the total
the ecosystem, the most important factors to consider are – (1) impact x x x on the fishes will be minimal. x x x
Organism Type – specifically its tolerance to temperature change
(mammals have higher tolerance); (2) Base Temperature – it is ATTY. AZURA:
the temperature over the optimum temperature such that an
increasewill result in the decline in number of the organisms; (3) x x x So, you said, Dr. Ouano, that fish, while they have a much
Mobility or Space for Migration (i.e., an aquarium with limited lower tolerance for temperature variation, are still very
space or an open ocean that the organism can move to a space adaptable. What about other sea life, Dr. Ouano, for example,
more suited to [a] specific need, such as the migratory birds); sea reptiles?
and (4) Ecosystem Complexity and Succession. The more
complex the ecosystem the more stable it is as succession and
DR. OUANO:
adaptation [are] more robust.

That’s what I said. The most sensitive part of the marine ecology
Normally, the natural variation in water temperature between
is physically the corals because corals are non-migratory, they
early morning to late afternoon could be several degrees (four
are fix[ed]. Second[ly] x x x corals are also highly dependent on
to five degrees centigrade and up to ten degrees centigrade on
sunlight penetration. If they are exposed out of the sea, they die;
seasonal basis). Therefore, the less than one degree centigrade
if theyare so deep, they die. And that is why I cited Kingman in
change predicted by the GHD modeling would have minimal
his studies of coral adaptability [in] the sea ofOman where there
impact.123
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
studies in Subic Bay?
x x x When you say Organism Type – you mentioned that
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, the days side
Yes. as well as the seasonal variation. There are two types of variation
since temperatures are very critical. One is the daily, which
ATTY. AZURA: means from early morning to around 3:00 o’clock, and the other
one is seasonal variation because summer, December, January,
What about other types of organisms, Dr. Ouano? Fish for February are the cold months and then by April, May we are
example? having warm temperature where the temperature goes around
32-33 degrees; Christmas time, it drops to around 18 to 20
DR. OUANO: degrees so it[']sa variation of around seasonal variation of 14
degrees although some of the fish might even migrate and that

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is why I was trying to put in corals because they are the ones mixed [so] that the temperature above the normal existing
that are really fix[ed]. They are not in a position to migrate in this variation now practically drops down to almost the normal
season. level.124

ATTY. AZURA: 2. On air pollution due todust and combustion gases.

To clarify. You said that the most potentially sensitive part of the To establish that the emissions from the operation of the power
ecosystem would be the corals. DR. OUANO: plant would be compliant with the standards under the Clean Air
Act,125 Ms. Mercado stated in her Judicial Affidavit thus:
Or threatened part because they are the ones [that] are not in a
position to migrate. 271. Q: What was the result of the Air Dispersion Modeling that
was conducted for RP Energy?
ATTY AZURA:
A: The Air Dispersion Modeling predicted that the Power Plant
In this case, Dr. Ouano, with respectto this project and the Project will produce the following emissions,which [are] fully
projected temperature change, will the corals in Subic Bay be compliant with the standards set by DENR:
affected?
Predicted GLC126 for 1-hr National Ambient A
DR. OUANO: averaging period Guideline Values

SO2 45.79 µg/Nm3 340 µg/Nm3


As far as the outlet is concerned, they have established it outside
the coral area. By the time it reaches the coral NO2 area the 100.8 µg/Nm3 260 µg/Nm3
temperature variation, as per the GHD study is very small, it[’]s
almost negligible. CO 10 µg/Nm3 35 µg/Nm3

ATTY AZURA: Predicted GLC for 8-hr averaging period National Ambient A
Guideline Values
Specifically, Dr. Ouano, what does negligible mean, what level of
variation are we talking about? CO 0.19 mg/ncm 10 µg/Nm3

DR. OUANO: Predicted GLC for 24-hr averaging period National Ambient A
Guideline Values
If you are talking about a thermometer, you might be talking
SO2 one that
about, normally about .1 degrees centigrade. That’sthe 17.11 µg/Nm3 180 µg/Nm3
you could more or less ascertain. x x x NO2 45.79 µg/Nm3 150 µg/Nm3

ATTY. AZURA:
Predicted GLC for 1-yr averaging period National Ambient A
Guideline Values
Dr. Ouano, you mentioned in youranswer to the same question,
Question 51, that there is a normal variation SO2 in water 6.12 µg/Nm3 80 µg/Nm3
temperature. In fact, you said there is a variation throughout the
day, daily and also throughout the year, seasonal.NO2 Just to clarify, No standard ---
Dr. Ouano. When the power plant causes the projected
CO No standard ---
temperature change of 1 degree to 2 degrees Celsius this will be
in addition to existing variations? What I mean, Dr. Ouano, just
so I can understand, how will that work? How will the 272. Q: What other findings resulted from the Air Dispersion
temperature change caused by the power plant work with the Modeling, if any?
existing variation? DR. OUANO:
A: It also established that the highest GLC to CleanAir Act
There is something like what we call the zonal mixing. This is an Standards ratio among possible receptors was located 1.6 km
area of approximately one or two hectares where the pipe goes North NorthEast ("NNE") of the Power Plant Project. Further, this
out, the hot water goes out. So that x x x, we have to accept x x ratio was valued only at 0.434 or less than half of the upper limit
x that [throughout it] the zone will be a disturb[ed] zone. After set out in the Clean Air Act. This means that the highest air
that one or two hectares park the water temperature is well ambient quality disruption will happen only 1.6 km NNE of the

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Power Plant Project, and that such disruption would still be xxxx
compliant with the standards imposed by the Clean Air Act.127
J. LEAGOGO:
The Casiño Group argued, however, that, as stated inthe EIS,
during upset conditions, significant negative environmental So you are trying to impress upon this Court that even if the
impact will result from the emissions. This claim was refuted by plant is in an upset condition, it will emit less than what the
RP Energy’s witness during cross-examination: national standards dictate?

ATTY. AZURA: MS. MERCADO:

If I may refer you to another page of the same annex, Ms. Yes, Your Honor.128
Mercado, that’s page 202 of the same document, the August
2012. Fig. 2-78 appears to show, there’s a Table, Ms. Mercado, With respect to the claims that the powerplant will release
the first table, the one on top appears to show a comparison in dangerous PAHs and CO, Engr. Sarrki stated in his Judicial
normal and upset conditions. I noticed, Ms. Mercado, that the Affidavit thus:
black bars are much higher than the bars in normal condition.
Can you state what this means?
Q: In page 42, paragraph 102 of the Petition, the Petitioners
alleged that Volatile Organic Compounds ("VOC") specifically
MS. MERCADO: Polycyclic Aromatic Hydrocarbon ("PAH") will be emitted even
by CFB boilers. What can you say about this?
It means there are more emissions that could potentially be
released when it is under upset condition. A: Actually, the study cited by the Petitioners does not apply to
the present case because it does not refer to CFB technology.
ATTY. AZURA: The study refers to a laboratory-scale tubular Bubbling Fluidized
Bed ("BFB") test rig and not a CFB. CFB boilers will emit PAHs but
I also noticed, Ms. Mercado, at the bottom part of this chart only in minimal amounts. Indeed, a BFB will produce higher PAH
there are Receptor IDs, R1, R2, R3 and so forth and on page 188 emissions.
of this same document, Annex "9-Mercado," there is a list
identifying these receptors, for example, Receptor 6, Your xxxx
Honor, appears to have been located in Olongapo City,
Poblacion. Just so I can understand, Ms. Mercado, does that Q: Why can the study cited by Petitioners not apply in the
mean that if upset condition[s] were to occur, the Olongapo City present case?
Poblacion will be affected by the emissions? MS. MERCADO:

A: The laboratory-scale BFB used in the study only has one (1)
All it means is that there will be higher emissions and a higher air injection point and does not replicate the staged-air
ground concentration. But you might want to alsopay attention combustion process of the CFB that RP Energy will use.
to the "y axis," it says there GLC/CAA [Ground Level Thisstaged-air process includes the secondary air. Injecting
Concentration/Clean Air Act limit]. So it means that even under secondary air into the system will lead to more complete
upset conditions… say for R6, the ground level concentration for combustion and inhibits PAH production. There is a study
upset condition is still around .1 or 10% percent only of the Clean entitled "Polycyclic Aromatic Hydrocarbon (PAH) Emissions from
Air Act limit. So it’s still much lower than the limit. a Coal-Fired Pilot FBC System" byKunlei Liu, Wenjun Han, Wei-
Ping Pan, John T. Riley found in the Journal of Hazardous
ATTY. AZURA: Materials B84 (2001) where the findings are discussed.

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 transfer
Olongapo City Poblacion? characteristics, solid and gas mixing behavior, etc.) seen in a
large scale utility boiler, like those which would be utilized by the
MS. MERCADO: Power Plant Project.

Not emissions will increase. The emissions will be the same but xxxx
the ground level concentration, the GLC, will be higher if you
compare normal versus upset. But even if it[’]s under upset Q: Aside from residence time of particles and secondary air, what
conditions, it is still only around 10% percent of the Clean Air Act other factors, if any, reduce PAH production?
Limit.
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A: Increase in the excess air ratio will also minimizePAH Q: In page 43, paragraph 110 of the Petition, it was alleged that:
production. Furthermore, decrease in Calcium to Sulfur moral "[s]olid coal combustion waste is highly toxic and is said to cause
ratio ("Ca/S"), as well as decrease in the sulfur and chlorine birth defects and cancer risks among others x x x." What is your
contents of coal will likewise minimize PAH production. This is expert opinion, if any, on this matter alleged by the Petitioners?
also based on the study entitled "Polycyclic Aromatic
Hydrocarbon (PAH) Emissions from a Coal-Fired Pilot FBC A: Coal is geologically compressed remains of living organisms
System" by Kunlei Liu, Wenjun Han, Wei-Ping Pan, John T. Riley. that roamed the earth several million years ago. In the process
of compression, some of the minerals in the soil, rocks or mud,
In RP Energy’s Power Plant Project, the projected coal to be the geologic media for compression, are also imparted into the
utilized has low sulfur and chlorine contents minimizing PAH compressed remains. If the compressing media of mud,
production. Also, due to optimum conditions for the in-furnace sediments and rocks contain high concentration of mercury,
SO2capture, the Ca/S will be relatively low, decreasing PAH uranium, and other toxic substances, the coal formed will
production. likewise contain high concentration of those substances. If the
compressing materials have low concentration of those
Q: In paragraph 104 of the Petition, it was alleged that "Carbon substances, then the coal formed will likewise have low
monoxide (CO), a poisonous, colorless and odorless gas is also concentration of those substances. If the coal does not contain
produced when there is partial oxidation or when there is not excessive quantities of toxic substances, the solid residues are
enough oxygen (O2) to form carbon dioxide (CO2)." What can even used in agriculture to supply micronutrients and improve
you say about this? the potency of fertilizers. It is used freely as a fill material in roads
and other construction activities requiring large volume of fill
A: CFB technology reduces the CO emissions of the Power Plant and as additive in cement manufacture. After all, diamonds that
Project to safe amounts. In fact, I understand that the projected people love to hang around their necks and keep close to the
emissions level of the Power Plant Project compl[ies]with the chest are nothing more than the result of special geologic action,
International Finance Corporation ("IFC") standards. as those in volcanic pipes on coal.130
Furthermore, characteristics of CFB technology such as long
residence time, uniform temperature and high turbulence RP Energy further argued, a matter which the Casiño Group did
provide an effective combustion environment which results [in] not rebut or refute, that the waste generated by the plant will be
lower and safer CO emissions. properly handled, to wit:

Q: I have no further questions for youat the moment. Is there 4.1.49 When coal is burned in the boiler furnace, two
anything you wish to add to the foregoing? by-products are generated - bottom and fly ash.
Bottom ash consists oflarge and fused particles that fall
A: Yes. PAH is a natural product of ANY combustion process. to the bottom of the furnace and mix with the bed
Even ordinary burning, such as cooking or driving automobiles, media.Fly ash includes finegrained and powdery
will have some emissions that are not considered harmful. It is particles that are carried away by flue gas into the
only when emissions are of a significant level that damage may electrostatic precipitator, which is then sifted and
be caused. collected. These by-products are non-hazardous
materials. In fact, a coal power plant’s Fly Ash, Bottom
Ash and Boiler Slag have consequent beneficial uses
Given that the Power Plant Project will utilize CFB technology, it
which "generate significant environmental, economic,
will have minimal PAH emissions. The high combustion
and performance benefits." Thus, fly ash generated
efficiency of CFB technology, due to the long residence time of
during the process will be sold and transported to
particles inside the boiler, leads to the minimal emissions of PAH.
cement manufacturing facilities or other local and
Furthermore,other factors such as increase in the excess air ratio,
international industries.
decrease in Ca/S, as well as decrease in the sulfur and chlorine
contents of coal will likewise minimize PAH production. CFB
does not cause emissions beyond scientifically acceptable levels, 4.1.50 RP Energy shall also install safety measures to
and we are confident it will not result in the damage speculated insure that waste from burning of coal shall be properly
by the Petitioners.129 handled and stored.

3. On water pollution from toxic coal combustion waste. 4.1.51 Bottom ash will be continuously collected from
the furnace and transferred through a series of screw
and chain conveyors and bucket elevator to the bottom
With regard to the claim that coal combustion waste produced
ash silo. The collection and handling system is enclosed
by the plant will endanger the health of the inhabitants nearby,
to prevent dust generation. Discharge chutes will be
Dr. Ouano stated in his Judicial Affidavit thus:
installed at the base of the bottom ash silo for
unloading. Open trucks will be used to collect ash
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through the discharge chutes. Bottom ash will be sold, using what we call floating foundation. So if the engineering side
and unsold ash will be stored in ash cells. A portion of for it[,] technology is there to withstand the expected fault line
the bottom ash will be reused as bed materialthrough [movement]. J. LEAGOGO:
the installation of a bed media regeneration system (or
ash recycle). Recycled bottom ash will be sieved using What is the engineering side of the project? You said UST is
a vibrating screen and transported to a bed material floating.
surge bin for re-injection into the boiler.
DR. OUANO:
4.1.52 Fly ash from the electrostatic precipitator is
pneumatically removed from the collection hopper The foundation, that means to say you don’t break…
using compressed air and transported in dry state to
the fly ash silo. Two discharge chutes will be installed
J. LEAGOGO:
at the base of the fly ash silo. Fly ash can either be dry-
transferred through a loading spout into an enclosed
lorry or truck for selling, re-cycling, or wet-transferred Floating foundation. What about this, what kind of foundation?
through a wet unloader into open dump trucks and
transported to ash cells. Fly ash discharge will operate DR. OUANO:
in timed cycles, with an override function to
achievecontinuous discharge if required. Fly ash It will now depend on their engineering design, the type of
isolation valves in each branch line will prevent leakage equipment…
and backflow into non-operating lines.
J. LEAGOGO:
4.1.53 Approximately 120,000m² will be required for
the construction of the ash cell. Ash will be stacked No, but did you read it in their report?
along the sloping hill, within a grid of excavations (i.e.
cells) with a 5m embankment. Excavated soils will be DR. OUANO: It[’]s not there in their report because it will depend
used for embankment construction and backfill. To on the supplier, the equipment supplier.
prevent infiltration [of] ash deposits into the
groundwater, a clay layer with minimum depth
J. LEAGOGO:
of400mm will be laid at the base of each cell. For every
1-m depth of ash deposit, a 10-cm soil backfill will be
applied to immobilize ash and prevent migration via So it[’]s not yet there?
wind. Ash cell walls will be lined with high-density
polyethylene to prevent seepage. This procedure and DR. OUANO:
treatment method is in fact suitable for disposal of
toxic and hazardous wastes although fly ash is not It[’]s not yet there in the site but it is also covered inour Building
classified as toxic and hazardous materials.131 Code what are the intensities of earthquakes expected of the
different areas in the Philippines.
Anent the claims that the plant is susceptible to earthquake and
landslides, Dr. Ouano testified thus: J. LEAGOGO:

J. LEAGOGO: Have you checked our geo-hazard maps in the Philippines to


check on this project site?
In terms of fault lines, did you study whether this project site is
in any fault line? DR. OUANO:

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

There are some fault linesand in fact, in the Philippines it is very J. LEAGOGO:
difficult to find an area except Palawan where there is no fault
line within 20 to 30 [kilometers]. But then fault lines as well as It[’]s there?
earthquakes really [depend] upon your engineering design. I
mean, Sto. Tomas University has withstood all the potential DR. OUANO:
earthquakes we had in Manila[,] even sometimes it[’]s intensity
8 or so because the design for it back in 1600 they are already
It[’]s there.132
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4. On acid deposition in aquatic and terrestrial ecosystems. J. LEAGOGO:

Relative to the threat of acid rain, Dr. Ouano stated in his Judicial It will?
Affidavit, thus:
DR. OUANO:
Q: In page 44, paragraph 114 of the Petition, it was alleged that
"the coalfired power plant will release 1,888 tons of nitrous Because the acid concentration is so dilute[d] so that it is not
oxides (NOx) per year and 886 tons of sulfur dioxide (SO2) per going to cause acid rain.
year. These oxides are the precursors to the formation of sulfuric
acid and nitric acid which are responsible for acid deposition." J. LEAGOGO:
Whatis your expert opinion on this matter alleged by the
Petitioners?
The acid concentration is so diluted that it will not cause acid
rain?
A: NO2 is found in the air, water and soil from natural processes
such as lightning, bacterial activities and geologic activities as
DR. OUANO:
well as from human activities such as power plants and fertilizer
usage in agriculture. SO2 is also found in air, water and soil from
bacterial, geologic and human activities. NO2 and SO2 in the air Yes .
are part of the natural nitrogen and sulfur cycle to widely
redistribute and recycle those essential chemicals for use by J. LEAGOGO:
plants. Without the NO2 and SO2 in the air, plant and animal life
would be limited to small areas of this planet where nitrogen What do you mean it[’]s so diluted? How will it be diluted?
and sulfur are found in abundance. With intensive agricultural
practices, nitrogen and sulfur are added in the soil as fertilizers. DR. OUANO:

Acid rain takes place when the NO2 and SO2 concentration are Because it[’]s going to be mixed withthe air in the atmosphere;
excessive or beyond those values set in the air quality standards. diluted in the air in the atmosphere. And besides this 886 tons,
NO2 and SO2 in the air in concentrations lower than those set this is not released in one go, it is released almost throughout
in the standards have beneficial effect to the environment and the year.
agriculture and are commonly known as micronutrients.133
J. LEAGOGO:
On clarificatory questions from the appellate court, the matter
was further dissected thus: You also answered in Question No. 61, "acid raintakes place
when the NO2 AND SO2 concentration are excessive." So
J. LEAGOGO: whendo you consider it as excessive?

x x x The project will release 1,888 tons of nitrous oxide per year. DR. OUANO:
And he said, yes; that witness answered, yes, itwill produce 886
tons of sulfur dioxide per year. And he also answered yes, that That is something when you are talking about acid…
these oxides are the precursors to the formation of sulfuric acid
and nitric acid. Now my clarificatory question is, with this kind of
J. LEAGOGO:
releases there will be acid rain?

In terms of tons of nitrous oxide and tons of sulfur oxide, when


DR. OUANO:
do you consider it as excessive?

No.
DR. OUANO:

J. LEAGOGO:
It is in concentration not on tons weight, Your Honor.

Why?
J. LEAGOGO:

DR. OUANO:
In concentration?

Because it[’]s so dilute[d].


DR. OUANO:
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In milligrams per cubic meter, milligrams per standard cubic DR. OUANO:
meter.
Yes. So that is the factor of x x x safety that we have.134
J. LEAGOGO:
Apart from the foregoing evidence, wealso note that the above
So being an expert, whatwill be the concentration of this kind of and other environmental concerns are extensively addressed in
1,888 tons of nitrous oxide? What will be the concentration in RP Energy’s Environmental Management Plan or Program(EMP).
terms of your…? The EMP is "a section in the EIS that details the prevention,
mitigation, compensation, contingency and monitoring
DR. OUANO: measures to enhance positive impacts and minimize negative
impacts and risks of a proposed project or undertaking."135 One
If the concentration is in excess ofsomething like 8,000 of the conditions of the ECC is that RP Energy shall strictly
micrograms per standard cubic meters, then there isalready comply with and implement its approved EMP. The Casiño
potential for acid rain. Group failed to contest, with proof, the adequacy of the
mitigating measures stated in the aforesaid EMP.

J. LEAGOGO:
In upholding the evidence and arguments of RP Energy, relative
to the lack of proof as to the alleged significant environmental
I am asking you, Dr. Ouano, you said it will release 1,888 tons of
damage that will be caused by the project, the appellate court
nitrous oxide?
relied mainly on the testimonies of experts, which we find to be
in accord withjudicial precedents. Thus, we ruled in one case:
DR. OUANO:
Although courts are not ordinarily bound by testimonies of
Yes . experts, they may place whatever weight they choose upon such
testimonies in accordance with the facts of the case. The relative
J. LEAGOGO: weight and sufficiency of expert testimony is peculiarly within
the province of the trial court to decide, considering the ability
In terms of concentration, what will that be? and character of the witness, his actions upon the witness stand,
the weight and process of the reasoning by which he has
DR. OUANO: supported his opinion, his possible bias in favor of the side for
whom he testifies,the fact that he is a paid witness, the relative
In terms of the GHD study that will result [in] 19 milligrams per opportunities for study and observation of the matters about
standard cubic meters and the time when acid rain will start [is which he testifies, and any other matters which serve to
when the concentration gets] around 8,000 milligrams per illuminate his statements. The opinion of the expert may not be
standard cubic meters. So we have 19 compared to 8,000. So arbitrarily rejected; it isto be considered by the court in view of
weare very, very safe. all the facts and circumstances in the case and when common
knowledge utterly fails, the expert opinion may be given
controlling effects (20 Am. Jur., 1056-1058). The problem of the
J. LEAGOGO:
credibility of the expert witness and the evaluation of his
testimony is left to the discretion of the trial court whose ruling
What about SO2? thereupon is not reviewable inthe absence of an abuse of that
discretion.136
DR. OUANO:
Hence, we sustain the appellate court’s findings that the Casiño
SO2, we are talking about ... youwon’t mind if I go to my codigo. Group failed to establish the alleged grave environmental
For sulfur dioxide this acid rain most likely will start at around damage which will be caused by the construction and operation
7,000 milligrams per standard cubic meter but then … sorry, it[’]s of the power plant.
around 3,400 micrograms per cubic meter. That is the
concentration for sulfur dioxide, and in our plant it will be In another vein, we, likewise, agree with the observationsof the
around 45 micrograms per standard cubic meter. So the acid rain appellate court that the type of coal which shall be used in the
will start at 3,400 and the emission is estimated here to result to power plant has important implications as to the possible
concentration of 45.7 micrograms. significant negative environmental impacts of the subject
project.137 However, there is no coal supply agreement, as of yet,
J. LEAGOGO: entered into by RP Energy with a third-party supplier. In
accordance with the terms and conditions of the ECC and in
That is what GHD said in their report. compliance with existing environmental laws and standards, RP
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Energy is obligated to make use of the proper coal type that will environment, the ecosystems and human population within the
not cause significant negative environmental impacts. impact zone.

The alleged negative environmental The specialists likewise deemed the Environment Impact
assessment of the project by experts in a Assessment (EIA) conducted by RPEI to be incomplete and
report generated during the social limited in scope based on the following observations:
acceptability consultations
i. The assessment failed to include areas 10km. to
The Casiño Group also relies heavily on a report on the social 50km. from the operation site, although according
acceptability process of the power plant project to bolster tothe panel, sulfur emissions could extend as far as 40-
itsclaim that the project will cause grave environmental damage. 50 km.
We purposely discuss this matter in this separate subsection for
reasons which will be made clear shortly. ii. The EIA neglected to include other forests in the
Freeport in its scope and that there were no specific
But first we shall present the pertinent contents of this report. details on the protection of the endangered flora and
endemic fauna in the area. Soil, grassland, brush land,
According to the Casiño Group, from December 7 to 9, 2011, the beach forests and home gardens were also apparently
SBMA conducted social acceptabilitypolicy consultations with not included in the study.
different stakeholders on RP Energy’s proposed 600 MW coal
plant project at the Subic Bay Exhibition and Convention Center. iii. The sampling methods used inthe study were
The results thereof are contained in a document prepared by limited and insufficient for effective long-term
SBMA entitled "Final Report: Social Acceptability Process for RP monitoring of surface water, erosion control and
Energy, Inc.’s 600-MW Coal Plant Project" (Final Report). We terrestrial flora and fauna.
notethat SBMA adopted the Final Report as a common exhibit
with the Casiño Group in the course of the proceedings before The specialists also discussed the potential effects of an
the appellate court. operational coalfired power plant [on] its environs and the
community therein. Primary among these were the following:
The Final Report stated that there was a clear aversion to the
concept of a coal-fired power plant from the participants. Their i. Formation of acid rain, which would adversely affect
concerns included environmental, health, economic and socio- the trees and vegetation in the area which, in turn,
cultural factors. Pertinent to this case is the alleged assessment, would diminish forest cover. The acid rain would
contained in the Final Report, of the potential effects of the apparently worsen the acidity of the soil in the
project by three experts: (1) Dr. Rex Cruz (Dr. Cruz), Chancellor Freeport.
of the University of the Philippines, Los Baños and a forest
ecology expert, (2) Dr. Visitacion Antonio, a toxicologist, who ii. Warming and acidification of the seawater in the bay,
related information as to public health; and (3) Andre Jon resulting in the bio-accumulationof contaminants and
Uychiaco, a marine biologist. toxic materials which would eventually lead to the
overall reduction of marine productivity.
The Final Report stated these experts’alleged views on the
project, thus: iii. Discharge of pollutants such as Nitrous Oxide,
Sodium Oxide, Ozone and other heavy metals suchas
IV. EXPERTS’ OPINION mercury and lead to the surrounding region, which
would adversely affect the health of the populace in the
xxxx vicinity.

The specialists shared the judgment that the conditions were not V. FINDINGS
present to merit the operation of a coal-fired power plant,and
to pursue and carry out the project with confidence and Based on their analyses of the subject matter, the specialists
assurance that the natural assets and ecosystems within the recommended that the SBMA re-scrutinize the coal-fired power
Freeport area would not be unduly compromised, or that plant project with the following goals in mind:
irreversible damage would not occur and that the threats to the
flora and fauna within the immediate community and its i. To ensure its coherence and compatibility to [the]
surroundings would be adequately addressed. The three experts SBMA mandate, vision, mission and development
were also of the same opinion that the proposed coal plant plans, including its Protected Area Management Plan;
project would pose a wide range of negative impacts on the
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ii. To properly determine actual and potential costs and 4. The Project site is largely in grassland interspersed
benefits; with some trees. These plants if affected by acid rain or
by sulphur emissions may disappear and have
iii. To effectively determine the impacts on consequences on the soil properties and hydrological
environment and health; and processes in the area. Accelerated soil erosion and
increased surface runoff and reduced infiltration of
iv. To ensure a complete and comprehensive impacts rainwater into the soil.
zone study.
5. The rest of the peninsula is covered with brushland
The specialists also urged the SBMA to conduct a but were never included as part of the impact zone.
Comprehensive Cost And Benefit Analysis Of The Proposed Coal
Plant Project Relative To Each Stakeholder Which Should Include 6. There are home gardens along the coastal areas of
The Environment As Provider Of Numerous Environmental the site planted to ornamental and agricultural crops
Goods And Services. which are likely to be affected by acid rain.

They also recommended an Integrated/Programmatic 7. There is also a beach forest dominated by aroma,
Environmental Impact Assessmentto accurately determine the talisai and agoho which will likely be affectedalso by
environmental status of the Freeport ecosystem as basis and acid rain.
reference in evaluating future similar projects. The need for a
more Comprehensive Monitoring System for the Environment 8. There are no Environmentally Critical Areas within
and Natural Resourceswas also reiterated by the panel.138 the 1 km radius from the project site. However, the
OlongapoWatershed Forest Reserve, a protected area
Of particular interest are the alleged key observations of Dr. Cruz is approximately 10 kmsouthwest of the projectsite.
on the EIS prepared by RP Energy relative to the project: Considering the prevailing wind movement in the area,
this forest reserve is likely to be affected by acid rain if
Key Observations and Recommendations on the EIS of Proposed it occurs from the emission of the power plant. This
RPE Project forest reserve is however not included as partof the
potential impact area.

Rex Victor O. Cruz


9. Soil in the project site and the peninsula is thin and
highly acidic and deficient in NPK with moderate to
Based on SBMA SAP on December 7-9, 2011
severe erosion potential. The sparse vegetation cover
in the vicinity of the projectsite is likely a result of the
1. The baseline vegetation analysis was limited only highly acidic soil and the nutrient deficiency. Additional
within the project site and its immediate vicinity. No acidity may result from acid rain that may form in the
vegetation analysis was done in the brushland areas in area which could further make it harder for the plants
the peninsula which is likely to be affected in the event to grow in the area that in turn could exacerbate the
acid rain forms due to emissions from the power plant. already severe erosion in the area. 10. There is a need
to review the proposalto ensure that the proposed
2. The forest in the remaining forests inthe Freeport project is consistent with the vision for the Freeport as
was not considered as impact zone as indicated by the enunciated in the SBMA Master Plan and the Protected
lack ofdescription of these forests and the potential Area Management Plan. This will reinforce the validity
impacts the project might have on these forests. This and legitimacy of these plans as a legitimate framework
appears to be a key omission in the EIS considering that for screening potential locators in the Freeport. Itwill
these forests are well within 40 to 50 km away from the also reinforce the trust and confidence of the
site and that there are studies showing that the impacts stakeholders on the competence and authority of the
of sulphur emissions can extend as far as 40 to 50 km SBMA that would translate in stronger popular support
away from the source. to the programs implemented in the Freeport.

3. There are 39 endemic fauna and 1 endangered plant 11. The EGF and Trust Fund (Table 5.13) should be
species (Molave) in the proposed project site. There will made clear that the amounts are the minimum amount
be a need to make sure that these species are and that adequate funds will be provided by the
protected from being damaged permanently in proponent as necessary beyond the minimum
wholesale. Appropriate measures such as ex amounts. Furthermore the basis for the amounts
situconservation and translocation if feasible must be allocated for the items (public liability and
implemented. rehabilitation) in Trust Fund and in EGF (tree planting
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and landscaping, artificial reef establishment) must be of the Rules in gathering and even compelling information,
clarified. The specific damages and impacts that will be specifically with regard to the Writ of Kalikasan, is explained in
covered by the TF and EGF must also be presented this wise: [T]he writ of kalikasanwas refashioned as a tool to
clearly at the outset to avoid protracted negotiations in bridge the gap between allegation and proof by providing a
the event of actual impacts occurring in the future. remedy for would-be environmental litigants to compel the
production of information within the custody of the
12. The monitoring plan for terrestrial flora and fauna government. The writ would effectively serve as a remedy for the
is not clear on the frequency of measurement. More enforcement of the right to information about the environment.
importantly, the proposed method of measurement The scope of the fact-finding power could be: (1) anything
(sampling transect) while adequate for estimating the related to the issuance, grant of a government permit issued or
diversity of indices for benchmarking is not sufficient information controlled by the government or private entity and
for long[-]term monitoring. Instead, long[-]term (2) [i]nformation contained in documents such as environmental
monitoringplots (at least 1 hectare in size) should be compliance certificate (ECC) and other government records. In
established to monitor the long[-]term impacts of the addition, the [w]rit may also be employed to compel the
project on terrestrial flora and fauna. production of information, subject to constitutional limitations.
This function is analogous to a discovery measure, and may be
13. Since the proposed monitoring of terrestrial flora availed of upon application for the writ.142
and fauna is limited to the vicinity of the project site, it
will be useful not only for mitigating and avoiding Clearly, in environmental cases, the power toappoint friends of
unnecessary adverse impacts ofthe project but also for the court in order to shed light on matters requiring special
improving management decisions if long[-]term technical expertise as well as the power to order ocular
monitoring plots for the remaining natural forests in inspections and production of documents or things evince the
the Freeport are established. These plots will also be main thrust of, and the spirit behind, the Rules to allow the court
useful for the study of the dynamic interactions of sufficient leeway in acquiring the necessary information to rule
terrestrial flora and fauna with climate change, farming on the issues presented for its resolution, to the end that the
and other human activities and the resulting influences right toa healthful and balanced ecology may be adequately
on soil, water, biodiversity, and other vital ecosystem protected. To draw a parallel, in the protection of the
services in the Freeport.139 constitutional rights of an accused, when life or liberty isat stake,
the testimonies of witnesses may be compelled as an attribute
We agree with the appellate court that the alleged statements of the Due Process Clause. Here, where the right to a healthful
by these experts cannot be given weight because they are and balanced ecology of a substantial magnitude is at stake,
hearsay evidence. None of these alleged experts testified before should we not tread the path of caution and prudence by
the appellate court to confirm the pertinent contents of the Final compelling the testimonies of these alleged experts?
Report. No reason appears in the records of this case as to why
the Casiño Group failed to present these expert witnesses. After due consideration, we find that, based on the statements
in the Final Report, there is no sufficiently compelling reason to
We note, however, that these statements, on their face, compel the testimonies of these alleged expert witnesses for the
especially the observations of Dr. Cruz, raise serious objections following reasons.
to the environmental soundness of the project, specifically, the
EIS thereof.It brings to fore the question of whether the Court First, the statementsare not sufficiently specificto point to us a
can, on its own, compel the testimonies of these alleged experts flaw (or flaws) in the study or design/implementation (or some
in order to shed light on these matters in view of the rightat other aspect) of the project which provides a causal link or, at
stake— not just damage to the environment but the health, well- least, a reasonable connection between the construction and
being and,ultimately, the livesof those who may be affected by operation ofthe project vis-à-vis potential grave environmental
the project. damage. In particular, they do not explain why the
Environmental Management Plan (EMP) contained in the EIS of
The Rules of Procedure for Environmental Cases liberally provide the project will notadequately address these concerns.
the courts with means and methods to obtain sufficient
information in order to adequately protect orsafeguard the right Second, some of the concerns raisedin the alleged statements,
to a healthful and balanced ecology. In Section 6 (l)140 of Rule 3 like acid rain, warming and acidification of the seawater, and
(Pre-Trial), when there is a failure to settle, the judge shall, discharge of pollutants were, as previously discussed, addressed
among others, determine the necessity of engaging the services by the evidence presented by RP Energy before the appellate
of a qualified expert as a friend of the court (amicus curiae). court. Again, these alleged statements do not explain why such
While, in Section 12141 of Rule 7 (Writ of Kalikasan), a party may concerns are not adequately covered by the EMP of RP Energy.
avail of discovery measures: (1) ocular inspection and (2)
production or inspection of documents or things. The liberality
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Third, the key observations of Dr. Cruz, while concededly the occurrence of acid rain due to elevated SO2 levels in the
assailing certain aspects of the EIS, do not clearly and specifically atmosphere. High levels of NO2 emissions may give rise to
establish how these omissions have led to the issuance of an ECC health problems for residents within the impact area.
that will pose significant negative environmental impacts once
the project is constructed and becomes operational. The xxxx
recommendations stated therein would seem to suggest points
for improvement in the operation and monitoring of the Asthma Attacks
project,but they do not clearly show why such recommendations
are indispensable for the project to comply with existing
36. The same EPRMP143 mentioned the incidence of asthma
environmental laws and standards, or how non-compliance with
attacks [as a] result of power plant operations, to wit –
such recommendations will lead to an environmental damage of
the magnitude contemplatedunder the writ of kalikasan. Again,
these statements do not state with sufficient particularity how xxxx
the EMP in the EIS failed to adequately address these concerns.
The incidence of asthma attacks among residents in the vicinity
Fourth, because the reason for the non-presentation of the of the project site may increase due to exposure to suspended
alleged expert witnesses does not appear on record, we cannot particulates from plant operations.144
assume that their testimonies are being unduly suppressed.
RP Energy, however, counters that the above portions of the EIS
By ruling that we do not find a sufficiently compelling reason to were quoted out of context. As to the subject of acid rain, the
compel the taking of the testimonies of these alleged expert EIS states in full:
witnesses in relation to their serious objections to the power
plant project, we do not foreclose the possibility that their Operation
testimonies could later on be presented, in a proper case, to
more directly, specifically and sufficientlyassail the During the operation phase, combustion of coal will result in
environmental soundness of the project and establish the emissions of particulates, SOx and NOx. This may contribute to
requisite magnitude of actualor threatened environmental the occurrence of acid rain due to elevated SO2 levels in the
damage, if indeed present. After all, their sense ofcivic duty may atmosphere. High levels of NO2 emissions may give rise to
well prevail upon them to voluntarily testify, if there are truly health problems for residents within the impact area. Emissions
sufficient reasons tostop the project, above and beyond their may also have an effect onvegetation (Section 4.1.4.2). However,
inadequate claims in the Final Report that the project should not the use of CFBC technology is a built-in measure that results in
be pursued. As things now stand,however, we have insufficient reduced emission concentrations. SOx emissions will
bases to compel their testimonies for the reasons already beminimised by the inclusion of a desulfurisation process, whilst
proffered. NOx emissions will be reduced as the coal is burned at a
temperature lower than that required to oxidise
The alleged admissions of grave nitrogen.145(Emphasis supplied)
environmental damage in the EIS of the
project. As to the subject of asthma attacks, the EIS states in full:

In their Omnibus Motions for Clarification and Reconsideration The incidence of asthma attacks among residents in the vicinity
before the appellate court and Petition for Review before of the project site may increase due to exposureto suspended
thisCourt, the Casiño Group belatedly claims that the statements particulates from plant operations. Coal and ash particulates
in the EIS prepared by RPEnergy established the significant may also become suspended and dispersed into the air during
negative environmental impacts of the project. They argue in unloading and transport, depending on wind speed and
this manner: direction. However, effect on air quality due to windblown coal
particulates will be insignificant as the coal handling system will
Acid Rain have enclosures (i.e. enclosed conveyors and coal dome) to
eliminate the exposure of coal to open air, and therefore greatly
35. According to RP Energy’s Environmental Impact Statement reduce the potential for particulates from being carried away by
for its proposed 2 x 150 MW Coal-Fired Thermal Power Plant wind (coalhandling systems, Section 3.4.3.3). In addition, the
Project, acid rain may occur in the combustion of coal, to wit – x proposed process will include an electrostaticprecipitator that
xxx will remove fly ash from the flue gas prior to its release through
the stacks, and so particulates emissions will be
minimal.146 (Emphasis supplied)
During the operation phase, combustion of coal will result in
emissions of particulates SOx and NOx. This may contribute to

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We agree with RP Energy that, while the EIS discusses the A review of the voluminous records indicates that the matterof
subjects of acid rain and asthma attacks, it goes on to state that the lack of signature was discussed, developed or surfaced only
there are mitigating measures that will be put in place to prevent inthe course of the hearings, specifically, on clarificatory
these ill effects. Quite clearly, the Casiño Group quoted questions from the appellate court, to wit:
piecemeal the EIS in sucha way as to mislead this Court as to its
true and full contents. J. LEAGOGO:

We deplore the way the Casiño Group has argued this point and I would also show to you your ECC, that’s page 622 of the rollo.
we take this time to remind it that litigants should not trifle I am showing to you this Environmental Compliance Certificate
withcourt processes. Along the same lines, we note how the dated December 22, 2008 issued by Sec. Jose L. Atienza, Jr. of
Casiño Group has made serious allegations in its Petition for Writ the DENR. This is your "Exhibit "18." Would you like to go over
of Kalikasanbut failed to substantiate the same in the course of this? Are you familiar with this document?
the proceedings before the appellate court. In particular, during
the preliminary conference of this case, the Casiño Group MS. MERCADO:
expressly abandoned its factual claims on the alleged grave
environmental damage that will be caused by the power plant
Yes, it[’]s my Annex "3," Your Honor.
(i.e., air, water and land pollution) and, instead, limited itself to
legal issues regarding the alleged non-compliance of RP Energy
with certain laws and rules in the procurement of the ECC.147 We J. LEAGOGO:
also note how the Casiño Group failed to comment on the
subject Petitions before this Court, which led this Court to I would like to refer you to page 3 of the ECC dated December
eventually dispense with its comment.148 We must express our 22, 2008. Page 2 refers to the Environmental Compliance
disapproval over the way it has prosecuted itsclaims, bordering Certificate, ECC Ref. No. 0804-011-4021. That’s page 2 of the
as it does on trifling with court processes. We deem itproper, letter dated December 22, 2008. And on page 3, Dr. Julian
therefore, to admonishit to be more circumspect in how it Amador recommended approval and it was approved by Sec.
prosecutesits claims. Atienza. You see that on page 3?

In sum, we agree with the appellate court that the Casiño Group MS. MERCADO:
failed to substantiate its claims thatthe construction and
operation of the power plant will cause environmental damage Yes, Your Honor.
of the magnitude contemplated under the writ of kalikasan. The
evidence it presented is inadequate to establish the factual bases J. LEAGOGO:
of its claims.
Okay. On the same page, page 3, there’s a Statement of
II. Accountability.

Whether the ECC is invalid for lack of signature of Mr. Luis MS. MERCADO:
Miguel Aboitiz (Mr. Aboitiz), as representative of RP Energy, in
the Statement of Accountability of the ECC. Yes, Your Honor.

The appellate court ruled that the ECC is invalid because Mr. J. LEAGOGO:
Aboitiz failed to sign the Statement of Accountability portion of
the ECC.
Luis, who is Luis Miguel Aboitiz?

We shall discuss the correctness ofthis ruling on both procedural


MS. MERCADO:
and substantive grounds. Procedurally, we cannot fault the
DENR for protesting the manner by which the appellate court
resolved the issue of the aforesaid lack of signature. We agree During that time he was the authorized representative of RP
with the DENR that this issue was not among those raised by the Energy,
Casiño Group in its Petition for Writ of Kalikasan.149 What is
more, this was not one of the triable issues specificallyset during Your Honor.
the preliminary conference of this case.150
J. LEAGOGO:
How then did the issue oflack of signature arise?
Now, who is the authorized representative of RP Energy?

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MS. MERCADO: delineates the issues to be argued and decided). However, a
directive is given to the concerned parties to discuss the
It would be Mr. Aaron Domingo, I believe. aforesaid matters in their memoranda. Such a procedure ensures
that, at the very least, the parties are apprised that the Court has
J. LEAGOGO: taken an interest in such matters and may adjudicate the case
on the basis thereof. Thus, the parties are given an opportunity
to adequately argue the issue or meet the issue head-on. We,
Please tell the Court why this was not signed by Mr. Luis Miguel
therefore, find that the appellate court should have, at the very
Aboitiz, the Statement of Accountability?
least, directed RP Energy and the DENR to discuss and elaborate
on the issue of lack of signature in the presentation of their
Because the Statement of Accountability says, "Mr. Luis Miguel evidence and memoranda, beforemaking a definitive ruling that
Aboitiz, Director, representing Redondo Peninsula Energy with the lack thereof invalidated the ECC.This is in keeping with the
office address located at 110 Legaspi Street, Legaspi Village, basic tenets of due process.
Makati City, takes full responsibility in complying with all
conditions in thisEnvironmental Compliance Certificate [ECC][.]"
At any rate, we shall disregard the procedural defect and rule
Will you tell this Court why this was not signed?
directly on whether the lack of signature invalidated the ECC in
the interest of substantial justice.
MS. MERCADO:
The laws governing the ECC, i.e., PresidentialDecree No. (PD)
It was signed, Your Honor, but this copy wasn’t signed. My 1151 and PD 1586, do not specifically state that the lack of
apologies, I was the one who provided this, I believe, to the signature in the Statement of Accountability has the effect of
lawyers. This copy was not signed because during…. invalidating the ECC. Unlike in wills or donations, where failure
to comply withthe specific form prescribed by law leads to its
J. LEAGOGO: nullity,152 the applicable laws here are silentwith respect to the
necessity of a signature in the Statement of Accountability and
But this is your exhibit, this is yourExhibit "18" and this is not the effect of the lack thereof. This is, of course, understandable
signed. Do you agree with me that your Exhibit "18" is not signed because the Statement of Accountability is a mere off-shoot of
by Mr. Aboitiz? the rule-making powers of the DENR relative tothe
implementation of PD 1151 and PD 1586. To determine,
MS. MERCADO: therefore, the effect of the lack of signature, we must look atthe
significance thereof under the Environmental Impact
That’s correct, Your Honor.151 Assessment (EIA) Rules of the DENR and the surrounding
circumstances of this case.

We find this line of questioning inadequate to apprise the parties


that the lack of signature would be a key issue in this case; as in To place this issue in its proper context, a helpful overview of the
fact it became decisive in the eventual invalidation of the ECC by stages of the EIA process, taken from the Revised Manual, is
the appellate court. reproduced below:

Concededly, a court has the power to suspend its rules of Figure 1-3 Overview of Stages of the Philippine EIA Process153
procedure in order to attain substantial justice so that it has the
discretion, in exceptional cases, to take into consideration 1.0 Screeningdetermines if a
matters not originally within the scope of the issues raised in the SCREENING project is covered or not
pleadings or set during the preliminary conference, in order to covered by the PEISS.154If a
prevent a miscarriage of justice. In the case at bar, the project is covered, screening
importance of the signature cannot be seriously doubted further determines what
because it goes into the consent and commitment of the project document type the project
proponent to comply with the conditions of the ECC, which is should prepare to secure the
vital to the protection of the right to a balanced and healthful needed approval, and what
ecology of those who may be affected by the project. the rest of the requirements
Nonetheless, the power of a court tosuspend its rules of are in terms of EMB office of
procedure in exceptional cases does not license it to foist a application, endorsing and
surprise on the parties in a given case. To illustrate, in oral decision authorities, duration
arguments before this Court, involving sufficiently important of processing.
public interest cases, we note that individual members of the
Court, from time to time, point out matters that may not have
been specifically covered by the advisory (the advisory
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2.0 SCOPING Scopingis a Proponent-driven EIA Review Committee for
multi-sectoral formal process PEIS/EIS-based applications,
of determining the focused or DENR/EMB internal
Terms of Reference of the EIA specialists, the Technical
Study. Scoping identifies the Committee, for IEE-based
most significant applications. EMB evaluates
issues/impacts of a proposed the EIARC recommendations
project, and then, delimits the and the public’s inputs during
extent of baseline information public consultations/hearings
to those necessary to evaluate in the process of
and mitigate the impacts. The recommending a decision on
need for and scope of an the application. The EIARC
Environmental Risk Chair signs EIARC
Assessment (ERA) is also done recommendations including
during the scoping session. issues outside the mandate of
Scoping is done with the local the EMB. The entire EIA review
community through Public and evaluation process is
Scoping and with a third party summarized in the Review
EIA Review Committee Process Report (RPR) of the
(EIARC) through Technical EMB, which includes a draft
Scoping, both with the decision document.
participation of the DENR-
EMB. The process results in a 5.0 DECISION Decision Making involves
MAKING evaluation of EIA
signed Formal Scoping
Checklist by the review team, recommendations and the
with final approval by the EMB draft decision document,
Chief. resulting to the issuance of an
ECC, CNC or Denial Letter.
EIA STUDY and The EIA Studyinvolves a When approved, a covered
3.0 REPORT description of the proposed project is issued its certificate
PREPARATION project and its alternatives, of Environmental Compliance
characterization of the project Commitment (ECC) while an
environment, impact application of a non-covered
identification and prediction, project is issued a Certificate
evaluation of impact of Non-Coverage (CNC).
significance, impact Endorsing and deciding
mitigation, formulation of authorities are designated by
Environmental Management AO 155 42, and further
and Monitoring Plan, detailed in this Manual for
withcorresponding cost every report type. Moreover,
estimates and institutional the Proponent signs a sworn
support commitment. The statement of full responsibility
study results are presented in on implementation of its
an EIA Reportfor which an commitments prior to the
outline is prescribed by EMB release of the ECC. 156 The
for every major document ECC is then transmitted to
type concerned LGUs and other
GAs for integration into their
EIA REPORT Review of EIA decisionmaking process. The
4.0 REPORT Reportsnormally entails an regulated part of EIA Review is
and EMB procedural screening for limited to the processes
EVALUATION compliance with minimum
within EMB control. The
requirements specified during timelines for the issuance of
Scoping, followed by a decision documents provided
substantive review of either for in AO 42 and DAO 2003-
composed third party experts
30 are applicable only from
commissioned by EMB as the
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the time the EIA Report is necessary toadequately protect the right of the people to a
accepted for substantive healthful and balanced ecology.
review to the time a decision
is issued on the application. Contrary to RP Energy’s position, we, thus, find that the signature
of the project proponent’s representative in the Statement of
Accountability is necessary for the validity of the ECC. It is not,
as RP Energy would have it, a mere formality and its absence a
MONITORING. Monitoring, Validation and
mere formal defect.
6.0 Evaluation/Audit stage
VALIDATION, assesses performance of the
and Proponent against the ECC The question then is, was the absence of the signature of Mr.
EVALUATION/ and itscommitments in the Aboitiz, as representative of RP Energy, in the Statement of
AUDIT Environmental Management Accountability sufficient ground to invalidate the ECC?
and Monitoring Plans to
ensure actual impacts of the Viewed within the particular circumstances of this case, we
project are adequately answer in the negative.
prevented or mitigated.
While it is clear that the signing of the Statement of
The signing of the Statement of Accountability takes placeat the Accountability is necessary for the validity ofthe ECC, we cannot
Decision Making Stage. After a favorable review of its ECC close oureyes to the particular circumstances of this case. So
application, the project proponent, through its authorized often have we ruled that this Court is not merely a court of law
representative, is made to sign a sworn statement of full but a court of justice. We find that there are several
responsibility on the implementation ofits commitments prior to circumstances present in this case which militate against the
the official release of the ECC. invalidation of the ECC on this ground.

The definition of the ECC in the Revised Manual highlights the We explain.
importance of the signing of the Statement of Accountability:
First, the reason for the lack of signature was not adequately
Environmental Compliance Certificate (ECC) - a certificate of taken into consideration by the appellate court. To reiterate, the
Environmental Compliance Commitment to which the matter surfaced during the hearing of this case on clarificatory
Proponent conforms with, after DENR-EMB explains the ECC questions by the appellate court, viz:
conditions, by signing the sworn undertaking of full
responsibility over implementation of specified measures which J. LEAGOGO:
are necessary to comply with existing environmental regulations
or to operate within best environmental practices that are not Please tell the Court why this was not signed by Mr. Luis Miguel
currently covered by existing laws. It is a document issued by the Aboitiz, the Statement of Accountability?
DENR/EMB after a positive review of an ECC application,
certifying that the Proponent has complied with all the Because the Statement of Accountability says, "Mr. Luis Miguel
requirements of the EIS System and has committed to Aboitiz, Director, representing Redondo Peninsula Energy with
implement its approved Environmental Management Plan. The office address located at 110 Legaspi Street, Legaspi Village,
ECC also provides guidance to other agencies and to LGUs on Makati City, takes full responsibility in complying with all
EIA findings and recommendations, which need to be conditions in this Environmental Compliance Certificate [ECC][.]"
considered in their respective decision-making Will you tell this Court why this was not signed?
process.157 (Emphasis supplied)
MS. MERCADO:
As can be seen, the signing of the Statement of Accountabilityis
an integral and significant component of the EIA process and the It was signed, Your Honor, but this copy wasn’t signed. My
ECC itself. The evident intention is to bind the project apologies, I was the one who provided this, I believe, to the
proponentto the ECC conditions, which will ensure that the lawyers. This copy was not signed because during…
project will not cause significant negative environmental impacts
by the "implementation of specified measures which are
J. LEAGOGO:
necessary to comply with existing environmental regulations or
tooperate within best environmental practices that are not
currently covered by existing laws." Indeed, the EIA process But this is your exhibit, this is yourExhibit "18" and this is not
would be a meaningless exercise if the project proponent shall signed. Do you agree with me that your Exhibit "18" is not signed
not be strictly bound to faithfully comply withthe conditions by Mr. Aboitiz?

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MS. MERCADO: faith or inexcusable negligence because of the inadequacy of the
evidence and arguments presented, relative to the issue of lack
That’s correct, Your Honor.158 (Emphasis supplied) of signature, in view of the manner this issue arose in this case,
as previously discussed. Absent such proof, we are not prepared
Due to the inadequacy of the transcriptand the apparent lack of to rule that the procedure adopted by the DENR was done with
opportunity for the witness to explain the lack of signature, we bad faithor inexcusable negligence but we remind the DENR to
find that the witness’ testimony does not, by itself, indicate that be more circumspect in following the rules it provided in the
there was a deliberate or malicious intent not to sign the Revised Manual. Thus, we rule that the signature requirement
Statement of Accountability. was substantially complied with pro hac vice.

Second, as previously discussed, the concerned parties to this Fourth, we partly agree with the DENRthat the subsequent
case, specifically, the DENR and RP Energy, werenot properly letter-requests for amendments to the ECC, signed by Mr.
apprised that the issue relative to the lack of signature would be Aboitiz on behalf of RP Energy, indicate its implied conformity
decisive inthe determination of the validity of the ECC. to the ECC conditions. In practical terms, if future litigation
Consequently, the DENR and RPEnergy cannot be faulted for not should occur due to violations of the ECC conditions, RP Energy
presenting proof during the course ofthe hearings to squarely would be estopped from denying its consent and commitment
tackle the issue of lack of signature. to the ECC conditions even if there was no signature in the
Statement of Accountability. However, we note that the
Statement of Accountability precisely serves to obviate any
Third, after the appellate court ruled in its January 30, 2013
doubt as to the consent and commitment of the project
Decision that the lack of signature invalidated the ECC,RP Energy
proponent to the ECC conditions. At any rate, the aforesaid
attached, to its Motion for Partial Reconsideration, a certified
letter-requests do additionally indicate RP Energy’s conformity
true copy of the ECC, issued by the DENREMB, which bore the
to the ECC conditions and, thus, negate a pattern to maliciously
signature of Mr. Aboitiz. The certified true copy of the ECC
evade accountability for the ECC conditions or to intentionally
showed that the Statement of Accountability was signed by Mr.
create a "loophole" in the ECC to be exploited in a possible
Aboitiz on December 24, 2008.159
futurelitigation over non-compliance with the ECC conditions.

The authenticity and veracity of this certified true copy of the


In sum, we rule that the appellate court erred when it invalidated
ECC was not controverted by the Casiño Group in itscomment
the ECC on the ground of lack of signature of Mr. Aboitiz in the
on RP Energy’s motion for partial reconsideration before the
ECC’s Statement of Accountability relative to the copy of the ECC
appellate court nor in their petition before this Court. Thus, in
submitted by RP Energy to the appellate court. While the
accordance with the presumption of regularity in the
signature is necessary for the validity of the ECC, the particular
performance of official duties, it remains uncontroverted that
circumstances of this case show that the DENR and RP Energy
the ECC on file with the DENR contains the requisite signature
were not properly apprised of the issue of lack ofsignature in
of Mr. Aboitiz in the Statement of Accountability portion.
order for them to present controverting evidence and
arguments on this point, as the matter only developed during
As previously noted, the DENR and RPEnergy were not properly the course of the proceedings upon clarificatory questions from
apprised that the issue relative to the lack ofsignature would be the appellate court. Consequently, RP Energy cannot be faulted
decisive in the determination of the validity of the ECC. As a for submitting the certified true copy of the ECC only after it
result, we cannot fault RP Energy for submitting the certified true learned that the ECC had been invalidated on the ground of lack
copy of the ECC only after it learned that the appellate court had of signature in the January 30, 2013 Decision of the appellate
invalidated the ECC on the ground of lack ofsignature in its court.
January 30, 2013 Decision.
The certified true copy of the ECC, bearing the signature of Mr.
We note, however, that, as previously discussed, the certified Aboitiz in the Statement of Accountability portion, was issued by
true copy of the Statement of Accountability was signed by Mr. the DENR-EMB and remains uncontroverted. Itshowed that the
Aboitiz on December 24, 2008 or two days after the ECC’s official Statement of Accountability was signed by Mr. Aboitiz on
release on December 22, 2008. The aforediscussed rules under December 24, 2008. Although the signing was done two days
the Revised Manual, however, state that the proponent shall sign after the official release of the ECC on December 22, 2008,
the sworn statement of full responsibility on implementation of absent sufficient proof, we are not prepared to rule that the
its commitments priorto the release of the ECC. Itwould seem procedure adoptedby the DENR was done with bad faith or
that the ECC was first issued, then it was signed by Mr. Aboitiz, inexcusable negligence. Thus, werule that the signature
and thereafter, returned to the DENR to serve as its file copy. requirement was substantially complied with pro hac vice.
Admittedly, there is lack of strict compliance with the rules
although the signature ispresent. Be thatas it may, we find
III.
nothing in the records to indicate that this was done with bad

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Whether the first and second amendments to the ECC are invalid maintenance and enhancement of the longterm
for failure to undergo a new environmental impact assessment productivity of the same; and
(EIA) because of the utilization of inappropriate EIA documents.
(e) whenever a proposal involves the use of depletable
Upholding the arguments of the Casiño Group, the appellate or non-renewable resources, a finding must be made
court ruled that the first and second amendments tothe ECC that such use and commitment are warranted.161
were invalid because the ECC contained an express restriction
that any expansion of the project beyond the project description To further strengthen and develop the EIS, PD1586 was
shall be the subject of a new EIA. It found that both amendments promulgated, which established the Philippine Environmental
failed to comply with the appropriate EIA documentary Impact Statement System (PEISS). The PEISS is "a systems-
requirements under DAO 2003-30 and the Revised Manual. In oriented and integrated approach to the EIS system to ensure a
particular, it found that the Environmental Performance Report rational balance between socio-economic development and
and Management Plan (EPRMP) and Project Description Report environmental protection for the benefit of present and future
(PDR), which RP Energy submitted tothe DENR, relative to the generations."162 The ECC requirement ismandated under Section
application for the first and second amendments, respectively, 4 thereof:
were not the proper EIA document type. Hence, the appellate
court ruled that the aforesaid amendments were invalid. SECTION 4. Presidential Proclamation ofEnvironmentally Critical
Areas and Projects. The President of the Philippines may, on his
Preliminarily, we must state that executive actions carry own initiative or upon recommendation of the National
presumptive validity so that the burden of proof is on the Casiño Environmental Protection Council, by proclamation declare
Group to show that the procedure adopted bythe DENR in certain projects, undertakings or areas in the country as
granting the amendments to the ECC were done with grave environmentally critical. No person, partnership or corporation
abuse of discretion. More so here because the administration of shall undertake or operate any such declared environmentally
the EIA process involves special technical skill or knowledge critical project or area without first securing an Environmental
which the law has specifically vested in the DENR. Compliance Certificate issued by the 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 of RP Energy The PEISS consists of the Environmental Impact Assessment (EIA)
appearing in the records of this case, we find that the appellate process, which is mandatory for private orpublic projects
court made an erroneous interpretation and application of the thatmay significantly affect the quality of the environment. It
pertinent rules. involves evaluating and predicting the likely impacts of the
project on the environment, designing appropriate preventive,
We explain. mitigating and enhancement measures addressing these
consequences to protect the environment and the community’s
As a backgrounder, PD 1151 set the Philippine Environment welfare.163
Policy. Notably, this law recognized the right ofthe people to a
healthful environment.160 Pursuant thereto, in every action, PD 1586 was implemented by DAO 2003-30 which, in turn, set
project or undertaking, which significantly affects the quality of up a system or procedure to determine when a project is
the environment, all agencies and instrumentalities of the required to secure an ECC and when it is not. When an ECC is
national government, including government-owned or - not required, the project proponent procures a Certificate of
controlled corporations, as well as private corporations, firms, Non-Coverage (CNC).164 As part of the EIA process, the project
and entities were required to prepare, file and include a proponent is required to submit certain studies or reports (i.e.,
statement (i.e., Environmental Impact Statement or EIS) EIA document type) to the DENR-EMB, which willbe used in the
containing: review process in assessing the environmental impact of the
project and the adequacy of the corresponding environmental
(a) the environmental impact of the proposed action, management plan or program to address such environmental
project or undertaking; impact. This will then be part of the bases to grant or deny the
application for an ECC or CNC, as the case may be.
(b) any adverse environmental effect which cannot be
avoided should the proposal be implemented; Table 1-4 of the Revised Manual summarizes the required EIA
document type for each project category. It classifies a project
(c) alternative to the proposed action; as belonging to group I, II, III, IV or V, where:

(d) a determination that the short-term uses of the


resources of the environment are consistent with the
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I- Environmentally Critical Projects (ECPs) in either RP Energy requested the subject first amendment to its ECC due
Environmentally Critical Area (ECA) or Non- to its desire to modify the project design through the inclusion
Environmentally Critical Area (NECA), of a barge wharf, seawater intake breakwater, subsea discharge
pipeline, raw water collection system, drainage channel
II- Non-Environmentally Critical Projects (NECPs) in improvement and a 230-kV double transmission line. The DENR-
ECA, EMB determined that this was a major amendment and, thus,
required RP Energy to submit an EPRMP.
III- NECPs in NECA,
The Casiño Group argued, and the appellate court sustained,
IV- Co-located Projects, and that an EPRMP is not the correct EIA document type based on
the definition of an EPRMP in DAO 2003-30 and the Revised
Manual.
V- Unclassified Projects.

In DAO 2003-30, an EPRMP is defined as:


The aforesaid table then further classifies a project, as pertinent
to this case, as belonging to category A,B or C, where:
Environmental Performance Report and Management Plan
(EPRMP) — documentation of the actual cumulative
A- new;
environmental impacts and effectiveness of current measures
for single projects that are already operating but without ECC's,
B- existing projects for modification or re-start up; and i.e., Category A-3. For Category B-3 projects, a checklist form of
the EPRMP would suffice;171(Emphasis supplied)
C- operating projects without an ECC.
Further, the table in Section 5 of DAO 2003-30 states that an
Finally, the aforesaid table considers whether the project is EPRMP is required for "A-2: Existing and to beexpanded
single or co-located.165 After which, it states the appropriateEIA (including undertakings that have stopped operations for more
document typeneeded for the application for an ECC or CNC, as than 5 years and plan to re-start with or without expansion) and
the case may be. A-3: Operating without ECC."

The appropriate EIA document type vis-à-vis a particular project On the other hand, the Revised Manual delineates when an
depends on the potential significant environmental impact of EPRMP is the proper EIA document type, thus:
the project. At the highest level would be an ECP, such as the
subject project. The hierarchy of EIA document type, based on For operating projects with previous ECCs but planning or
comprehensiveness and detail of the study or report contained applying for clearance to modify/expand or re-start operations,
therein, insofar as single projects are concerned, is as follows: or for projects operating without an ECCbut applying to secure
one to comply with PD 1586 regulations, the appropriate
1. Environmental Impact Statement166 (EIS), document is not an EIS but an EIA Report incorporating the
project’s environmental performance and its current
2. Initial Environmental Examination167 (IEE) Report, Environmental Management Plan. This report isx x x anx x x
Environmental Performance Report and Management Plan
3. Initial Environmental Examination168 (IEE) Checklist (EPRMP) for single project applications x x x172 (Emphasis
Report, supplied)

4. Environmental Performance Report and In its "Glossary," the Revised Manual defines an EPRMP as:
Management Plan169 (EPRMP), and
Environmental Performance Report and Management Plan
5. Project Description170 (PD) or Project Description (EPRMP) - documentation of the actual cumulative
Report (PDR). environmental impacts and effectiveness of current measures
for single projects that are already operating but without
Thus, in the course of RP Energy’s application for anECC, it was ECCs.173 (Emphasis supplied)
required by the DENR-EMB to submit an EIS because the subject
project is: an ECP, new and a single project. Finally, Table 1-4, in the Revised Manual, states that an EPRMP
is required for "Item I-B: Existing Projects for Modification or Re-
The present controversy, however, revolves around, not an start up (subject to conditions in Annex 2-1c) and I-C: Operating
application for an ECC, but amendments thereto. without ECC."

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From these definitions and tables, an EPRMP is, thus, the 8.3.2. Requests for major changes to ECCs
required EIA document type for an ECP-single project which is: shall be decided upon by the deciding
authority.
1. Existing and to be expanded (including undertakings
that have stopped operations for more than 5 years 8.3.3. For ECCs issued pursuant to an IEE or IEE
and plan to re-start with or without expansion); checklist, the processing of the amendment
application shall not exceed thirty (30)
2. Operating but without ECCs; working days; and for ECCs issued pursuant to
an EIS, the processing shall not exceed sixty
3. Operating projects with previous ECCs but planning (60) working days. Provisions on automatic
or applying for clearance to modify/expand orre-start approval related to prescribed timeframes
operations; and under AO 42 shall also apply for the
processing of applications to amend ECCs.
(Emphasis supplied)
4. Existing projects for modification or re-start up.

Implementing the afore-quoted section, the Revised Manual


It may be observed that, based from the above, DAO2003-30
pertinently states in Section 2.2, paragraph 16:
and the Revised Manual appear to use the terms "operating"and
"existing" interchangeably. In the case at bar, the subject project
has not yet been constructed although there have been 16) Application Process for ECC Amendments
horizontal clearing operations at the project site.
Figure 2-4 presents how Proponents may request for minor or
On its face, therefore, the theory of the Casiño Group, as major changes in their ECCs. Annex 2-1c provides a decision
sustained by the appellate court — that the EPRMP is not the chart for the determination of requirements for project
appropriate EIA document type— seems plausible because the modifications, particularly for delineating which application
subject project is not: (1) operating/existing with a previous ECC scenarios will require EPRMP (which will be subject to Figure 2-
but planning or applying for modification or expansion, or (2) 1 process) or other support documentations (which will be
operating but without an ECC. Instead, the subject project is an subject to Figure 2-4 process). Figure 2-4, in turn, provides:
unimplemented or a non-implemented, hence,non-operating
project with a previous ECC but planning for modification or Figure 2-4. Flowchart on Request for ECC Amendments175
expansion.
Scenario 1: Scenario 2: Request for Major Amendments
The error in the above theory lies in the failure to consider or Request for
trace the applicable provisions of DAO 2003-30 and the Revised Minor 1. Expansion of project area w/in catchment
Manual on amendments to an ECC. Amendments described in EIA

The proper starting point in determining the validity of the 1. Typographical 2. Increase in production capacity or auxiliary
subject first amendment, specifically, the propriety of the EIA error component of the original project
document type (i.e., EPRMP) which RP Energy submitted in
relation to its application for the aforesaid amendment, must of
2. Extension of 3. Change/s in process flow or technology
necessity be the rules on amendments to an ECC.174 This is
deadlines for
principally found in Section 8.3,Article II of DAO 2003-03, viz:
submission of 4. Addition of new product
post-ECC
8.3 Amending an ECC requirement/s
5. Integration of ECCs for similar or dissimilar
but contiguous projects (NOTE: ITEM#5 IS
Requirements for processing ECC amendments shall depend on 3. Extension of PROPONENT’S OPTION, NOT EMB’S)
the nature of the request but shall be focused on the information ECC validity
necessary to assess the environmental impact of such changes.
6. Revision/Reformatting of ECC Conditions
4. Change in
8.3.1. Requests for minor changes to ECCs company
such as extension of deadlines for submission 7. Other amendments deemed "major" at
name/ownership
of post-ECC requirements shall be decided the discretion of the EMB CO/RO Director
upon by the endorsing authority.
5. Decrease in
land/project area

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or production 3 4
capacity

6. Other
amendments ECC-endorsing ECC-endorsing/issuing Authority (per Table
deemed Authority decides 1-4) decides on Letter
on the Letter- Requests/EPRMP/PEPRMP/Other
"minor" at the Request, based documents based on EMB CH and/or
discretion of the on CH Tech/Review Committee recommendations.
EMB CO/RO recommendation
Director
Maximum Max Processing Time to Issuance of Decision
1 [Start] 1[Start] Processing Time
to Issuance of
Within three (3) Within three (3) years from ECC issuance (for
Decision
years from ECC projects not started)177 OR at any time
issuance (for during project implementation, the EMB 7 CO CO RO RO
projects not Proponent prepares and submits to the ECC- CO workdays PEPRMP EPRMP PEPRMP EPRMP
started)176 OR at endorsing DENR-EMB office a LETTER-
any time during REQUESTfor ECC amendments, including EMB 7 120 90 60 30
project data/information, reports or documents to RO workdays
implementation, substantiate the requested revisions. workdays workdays workdays workdays
the Proponent
prepares and 2 Other document applications: max 30
submits to the workdays (EMB CO and RO)
For projects that have started
ECC-endorsing
implementation, EMB evaluates request
DENR-EMB office
based on Annex 2-1cfor various scenarios of
a LETTER-
project modification. Documentary
REQUEST for ECC
requirements may range from a Letter-
amendment,
Request to an EPRMP to the EMB CO/RO
including Noteworthy in the above, which is pertinent to the issue at hand,
while for those with Programmatic ECC, a
data/information, is that the amendment process squarely applies to projects not
PEPRMP may need to be submitted to the
reports or started, such as the subject project, based on the phrase
EMB CO to support the request. It is
documents to "[w]ithin three (3) years from ECC issuance (for projects not
important to note that for operating
substantiate the started) x x x".
projects, the appropriate document is not an
requested
EIS but an EIA Report incorporating the
revisions. Annex 2-1c, in turn, provides a "Decision Chart for
project’s historical environmental
performance and its current EMP, subject to Determination of Requirements For Project Modification." We
specific documentary requirements detailed reproduce below the first three columns of Annex 2-1c, as are
in Annex 2-1cfor every modification pertinent to the issue at hand:
scenario.
ANNEX 2-1c
2

3 DECISION CHART FOR DETERMINATION OF REQUIREMENTS


FOR PROJECT MODIFICATION178

The ECC- For EPRMP/PEPRMP-based requests, EMB We now apply these provisions to the case at bar.
endorsing EMB forms a Technical/Review Committee to
office assigns a evaluate the request. For other requests, a To reiterate, the first amendment to the ECC was requested by
Case Handler to Case Handler may solely undertake the RP Energy due to its planned change of project design involving
evaluate the evaluation. EMB CO and RO will process the inclusion of a barge wharf, seawater intake breakwater,
request P/EPRMP for PECC/ECC under Groups I and subseadischarge pipeline, raw water collection system, drainage
II respectively. (Go to Figure 2-1) channel improvement and a 230-kV double transmission line.
The DENR-EMB determined179 that the proposed modifications
involved a major amendment because it will result in anincrease

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in capacity or auxiliary component, as per Scenario 2,Item #2 of
nonimplemented
Figure 2-4:
and operating
projects with or
Scenario 2: Request for Major Amendments without issued
ECCs181
1. Expansion of project area w/in catchment described
in EIA
Note that the Chart expressly states that, "[m]odification
scenario and decision process are applicable to both non-
2. Increase in production capacity or auxiliary
implementedand operating projects withor without ECCs."183 To
component of the original project180
recall, the subject project has not been constructed and is not
yet operational, although horizontal clearing activities have
3. Change/s in process flow or technology already been undertaken at the project site. Thus, the subject
project may be reasonably classified as a non-implemented
4. Addition of new product project with an issued ECC, which falls under Item#4 and, hence,
an EPRMP is the appropriate EIA document type.
5. Integration of ECCs for similar or dissimilar but
contiguous projects (NOTE: ITEM#5 IS PROPONENT’S This lengthy explanation brings us toa simple conclusion. The
OPTION, NOT EMB’S) definitions in DAO 2003-30 and the Revised Manual, stating that
the EPRMP is applicable to (1) operating/existing projectswith a
6. Revision/Reformatting of ECC Conditions previous ECC but planning or applying for modification or
expansion, or (2) operating projects but without an ECC, were
7. Other amendments deemed "major at the discretion not an exclusive list.
of the EMB CO/RO Director
The afore-discussed provisions of Figure 2-4, in relation to
The Casiño Group does not controvert this finding by the DENR- Annex 2-1c, plainly show that the EPRMP can, likewise, be used
EMB and we find the same reasonably supported by the as an appropriate EIA document type for a single, non-
evidence on record considering that, among others, the implemented project applying for a major amendment to its
construction of a 230-kVdouble transmission line would result in ECC, involving an increase in capacity or auxiliary component,
major activities outside the project site which could have which will exceed PDR (non-covered project) thresholds, or
significant environmental impacts. result in the inability of the EMP and ERA to address the impacts
and risks arising from the modification, such as the subject
project.
Consequently, the amendment was considered asfalling under
Item#4 of Annex 2-1c, and, thus, the appropriate EIA document
typeis an EPRMP, viz: That the proposed modifications in the subject project fall under
this class or type of amendment was a determination made by
the DENR-EMBand, absent a showing of grave abuse of
4. Increase in Exceedance of ECC Amendment discretion, the DENR-EMB’s findings are entitled to great respect
capacity or PDR (non- /Environmental because it is the administrative agency with the special
auxiliary covered) Performance competence or expertise to administer or implement the EIS
component of thresholds is Report and System. The apparent confusion of the Casiño Group and the
the original assumed that Management Plan appellate court is understandable. They had approached the
project which impacts may be (EPRMP)182 issue with a legal training mindset or background. As a general
will either potentially proposition, the definition of terms in a statute or rule is
exceed PDR significant, controlling as to its nature and scope within the context of legal
(non-covered particularly if or judicial proceedings. Thus, since the procedure adopted by
project) modification will the DENR-EMB seemed to contradict or go beyond the
thresholds, or result to a next definition of terms in the relevant issuances, the Casiño Group
EMP & ERA higher level of and the appellate court concluded that the procedure was
cannot address threshold range infirm.
impacts and
risks arising Modification However, a holistic reading of DAO2003-30 and the Revised
from scenario and Manual will show that such a legalistic approach in its
modification decision process interpretation and application is unwarranted. This is primarily
are applicable to because the EIA process is a system, not a set of rigid rules and
both definitions. In the EIA process, there is much room for flexibility
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in the determination and use of the appropriate EIA document We apply the same framework of analysis in determining the
type as the foregoing discussion has shown.184 To our mind, propriety of a PDR, as the appropriate EIA document type,
what should be controlling is the guiding principle set in DAO relative to the second amendment to the subject ECC.
2003-30 in the evaluation of applications for amendments to
ECCs, as stated in Section 8.3 thereof: "[r]requirements for Again, the Casiño Group, as sustained by the appellate court,
processing ECC amendments shall depend on the nature of the relied on the definitions of a PDR in DAO 2003-30 and the
requestbut shall be focused on the information necessary to Revised Manual:
assess the environmental impact of such changes."185
Project Description (PD) — document, which may also be a
This brings us to the next logical question, did the EPRMP chapter in an EIS, that describes the nature, configuration, use of
provide the necessary information in order for the DENR-EMB to raw materials and natural resources, production system, waste
assess the environmental impact of RP Energy’s request relative or pollution generation and control and the activities of a
to the first amendment? proposed project. It includes a description of the use of human
resources as well as activity timelines, during the pre-
We answer in the affirmative. construction, construction, operation and abandonment phases.
It is tobe used for reviewing co-located and single projects under
In the first place, the Casiño Group never attempted to prove Category C, aswell as for Category D projects.188
that the subject EPRMP, submitted by RP Energy to the DENR-
EMB, was insufficient for purposes of evaluating the xxxx
environmental impact of the proposed modifications to the
original project design. There is no claim that the data submitted a) For new projects: x x x For non-covered projects in Groups II
were falsified or misrepresented. Neither was there an attempt and III, a x x x Project Description Report (PDR) is the appropriate
to subpoena the review process documents of the DENR to document to secure a decision from DENR/EMB. The PDR is a
establish that the grant of the amendment to the ECC was done "must" requirement for environmental enhancement and
with grave abuse of discretion or to the grave prejudice of the mitigation projects in both ECAs (Group II) and NECAs (Group
right to a healthful environment of those who will be affected by III) to allow EMB to confirm the benign nature of proposed
the project. Instead, the Casiño Group relied solely on the operations for eventual issuance of a Certificate ofNon-
definition of terms in DAO 2003-30 and the Revised Manual, Coverage (CNC). All other Group III (non-covered) projects do
which approach, as previously discussed, was erroneous. not need to submit PDRs – application is at the option of the
Proponent should it need a CNC for its own purposes, e.g.
At any rate, we have examined the contents of the voluminous financing pre-requisite. For Group V projects, a PDR is required
EPRMP submitted by RP Energy and wefind therein substantial to ensure new processes/technologies or any new unlisted
sections explaining the proposed changes as well as the project does not pose harm to the environment. The Group V
adjustments that will be made in the environmental PDR is a basis for either issuance of a CNC or classification of the
management plan in order to address the potential project into its proper project group.
environmental impacts of the proposed modifications to the
original project design. These are summarized in the "Project b) For operating projects with previous ECCs but planning or
Fact Sheet"186 of the EPRMP and extensively discussed in Section applying for clearance to modify/expand or re-start operations,
4187 thereof. Absent any claim or proof to the contrary, we have or for projects operating without an ECC but applying to secure
no bases to conclude that these data were insufficient to assess oneto comply with PD 1586 regulations, the appropriate
the environmental impact of the proposed modifications. In document is not an EIS but an EIA Report incorporating the
accordance with the presumption of regularity in the project’s environmental performance and its current
performance of official duties, the DENR-EMB must be deemed Environmental Management Plan. This report is either an (6)
to have adequately assessed the environmental impact of the Environmental Performance Report and Management Plan
proposed changes, before granting the request under the first (EPRMP) for single project applications or a (7) Programmatic
amendment to the subject ECC. EPRMP (PEPRMP) for co-located project applications. However,
for small project modifications, an updating of the project
In sum, the Revised Manual permits the use of an EPRMP, as the description or the Environmental Management Plan with the use
appropriate EIA document type, for major amendments to an of the proponent’s historical performance and monitoring
ECC, even for an unimplemented or non-implemented project records may suffice.189
with a previous ECC, such as the subject project. Consequently,
we find that the procedure adopted by the DENR, in requiring xxxx
RP Energy to submit an EPRMP in order to undertake the
environmental impact assessment of the planned modifications Project Description (PD) - document, which may also be a
to the original project design, relative to the first amendment to chapter in an EIS, that describes the nature, configuration, use of
the ECC, suffers from no infirmity.
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raw materials and natural resources, production system, waste
3. Increase in Non-exceedance ECC Amendment
or pollution generation and control and the activities of a
capacity or of PDR (non /Letter Request
proposed project. It includes a description of the use of human
auxiliary covered project) with brief
resources as well as activity timelines, during the pre-
component of thresholds is description of
construction, construction, operation and abandonment
the original assumed that additional
phases.190
project which impacts are not capacity or
will either not significant; component195
We will no longer delve into the details of these definitions. entail
Suffice it to state, similar to the discussion on the EPRMP, that if exceedance of Modification
we go by the strict limits of these definitions, the PDR relative to PDR (non- scenario and
the subject second amendment would not fall squarely under covered decision process
any of the above. project) are applicable to
thresholds or both non-
However, again, these are not the only provisions governing the EMP & ERA implemented
PDR in the Revised Manual. can still and operating
address projects issued
After the favorable grant of the first amendment, RP Energy impacts & ECCs194
applied for another amendment to its ECC, this time risks arising
inconsideration of its plan to change the configuration of the from
project from 2 x 150 MWto 1 x 300 MW. In practical terms, this modification
meant that the subject project will still produce 300 MW of
electricity but will now make use of only one boiler (instead of
We make the same observation, as before, that the above
two) to achieve greater efficiency in the operations of the plant.
applies to an unimplemented or non-implemented project with
The DENR-EMB determined191 this amendment to be minor,
a previous ECC, like the subject project. Although it may be
under Scenario 1, Item#6 of Figure 2-4:
noted thatthe proposed modification does not squarely fall
under Item#3, considering that, as previously mentioned,there
Scenario 1: Request for Minor will be no increase in capacity relative to the second
amendment, still, we find nothing objectionable to this
Amendments classification by the DENR-EMB, for it seems plain enough that
this classification was used because the modification was
1. Typographical error deemed too minor to require a detailed project study like an EIS
or EPRMP. Since this is the classification most relevant and
2. Extension of deadlines for submission of post-ECC closely related to the intended amendment, following the basic
requirement/s precept that the greater includes the lesser, the DENR-EMB
reasonably exercised its discretion in merely requiring a letter
request with a brief description of the modification.
3. Extension of ECC validity

As earlier noted, the PDR is the EIA document type with the least
4. Change in company name/ownership
detail, and, thus, applicable to such minor modifications. Thus,
the DENR-EMB cannot be faulted for requiring RPEnergy to
5. Decrease in land/project area or production capacity
submit a PDR relative to its application for the second
amendment. Consequently, as before, we find that the Revised
6. Other amendments deemed "minor" at the Manual supports the procedure adopted by the DENR-EMB in
discretion of the EMB CO/RO Director192 requiring RP Energy to submit a PDR in order to assess the
environmental impact of the planned modifications relative to
— because (1) there is no increase in capacity; (2) it does not the second amendment.
constitute any significant impact; and (3) its EMP and ERA as
specified in the submitted EPRMP remain the same.193 Relative In their Petition before this Court, the Casiño Group boldly
to Annex 2-1c, the requested amendment was, in turn, asserts that "[t]here is nothing in the Project Description Report
determined to fall under Item#3: that provides an environmental impact assessment of the effects
of constructing and operating a single 300-MW generating
unit."196 However, to our dismay, as in their other serious
allegations in their Petition for Writ of Kalikasan, the same is,
likewise, baseless. Apart from such a sweeping claim, the Casiño

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Group has provided no evidence or argument to back up the led to the new EIA of the project in compliance with the proviso
same. of the ECC.

An examination of the PDR readily reveals that it contains the Verily, the various EIA documents, such as the EPRMP and PDR,
details of the proposed modifications197 and an express finding are mere tools used by the DENR to assess the environmental
that no significant environmental impact will be generated impact of a particular project. These documents are flexibly used
bysuch modifications, as in fact it is expected that the operation by the DENR, as the circumstances warrant, in order to
of the power plant will become more efficient as a result of the adequately assess the impacts of a new project or modifications
change from 2 x 150 MW to 1 x 300 MW thereto. Being the administrative agency entrusted with the
configuration.198 Consequently, the PDR merely reiterates the determination of which EIA document type applies to a
same mitigating measures that will presumably address the particular application for an amendment to an ECC, falling as it
minor modifications to the project design. Again, no evidence does within its particular technical expertise, we must accord
was presented to show substantial errors or misrepresentations great respect to its determination, absent a showing of grave
in these data or their inadequacy for providing the bases for the abuse of discretion or patent illegality.
DENR-EMB to assess the environmental impact of the proposed
modifications under the second amendment. In sum, we find that the appellate court erred when it ruled that
the first and second amendments to the subject ECC were invalid
In fine, absent proof to the contrary, bearing in mind that for failure to comply with a new EIA and for violating DAO 2003-
allegations are not proof, we sustain the procedure adopted by 30 and the Revised Manual. The appellate court failed to
the DENR-EMB in requiring RP Energy to submit a PDR and, on properly consider the applicable provisions in DAO 2003-30 and
the basis thereof, approving the request for the second the Revised Manual on amendments to ECCs. Our examination
amendment. of the provisions on amendments to ECCs, as well as the EPRMP
and PDR themselves, shows that the DENR reasonably exercised
In another vein, we note that the appellate court proceeded from its discretion in requiring an EPRMP and a PDR for the first and
the erroneous premise that the EIA is a document, when it second amendments, respectively. Through these documents,
repeatedly stated that the amendments to the ECC require a new which the DENR reviewed, a new EIA was conducted relative to
EIA, and not merely an EPRMP or PDR. The appellate court relied the proposed project modifications. Hence, absent sufficient
on the proviso in the ECC, which stated that "[a]ny expansion of showing of grave abuse of discretion or patent illegality, relative
the project beyond the project description or any change in the to both the procedure and substance of the amendment
activity or transfer of location shall be subject to a new process, we uphold the validity of these amendments.
Environmental Impact Assessment."199
IV.
However, as correctly pointed out by the DENR and RP Energy,
the EIA is not a document but a process: Whether the Certificate of Non-Overlap (CNO), under Section 59
of the IPRA Law, is a precondition to the issuance of anECC and
Environmental Impact Assessment (EIA) — process that involves the lack of its prior issuance rendered the ECC invalid.
evaluating and predicting the likely impacts of a project
(including cumulative impacts) on the environment during The appellate court ruled that the ECC issued in favor of RP
construction, commissioning, operation and abandonment. It Energy on December 22, 2008 is invalid because the CNO
also includes designing appropriate preventive, mitigating and covering the subject project was issued only on October 31,
enhancement measures addressing these consequences to 2012 or almost four years from the time of issuance of the ECC.
protect the environment and the community's welfare. The Thus, the ECC was issued in violation of Section 59 of the IPRA
process is undertaken by, among others, the project proponent Law and its implementing rules which require that a CNO be
and/orEIA Consultant, EMB, a Review Committee, affected obtained prior to the issuance of a government agency of,
communities and other stakeholders.200 (Emphasis supplied) among others, a license or permit. In so ruling, the appellate
court implicitly upheld the Casiño Group’s argument that the
When the proviso in the ECC, therefore, states that a new EIA ECC is a form of government license or permit pursuant to
shall be conducted, this simply means that the project Section 4 of PD 1586 which requires all entities to secure an ECC
proponent shall be required to submit such study or report, as before (1) engaging in an environmentally critical project or (2)
warranted by the DENR Rules and circumstances, which will implementing a project within an environmentally critical area.
sufficiently aid the DENR in making a new EIA and, thus,
determine whether to grant the proposed amendment (or The DENR and RP Energy, however, argue that an ECC is not the
project modification). Aswe have seen, consistent with DAO license or permit contemplated under Section 59 of the IPRA
2003-30 and the Revised Manual, the DENR required RP Energy Law and its implementing rules as may be deduced from the
to submit an EPRMP and a PDR relative to the latter’s request definition, nature and scope of an ECC under DAO 2003-03 and
involving the first and second amendments, respectively, which the Revised Manual. The DENR explains that the issuance of an
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ECC does not exempt the project proponent from securing other of the ICCs/IPs who will be affected by the
permits and clearances as required under existing laws, operation of such concessions, licenses or
including the CNO, and that the final decision on whether a leases or production-sharing agreements. A
project will be implemented lies with the concerned local written consent for the issuance of such
government unit/s or the lead government agency which has certification shall be signed by at least a
sectoral mandate to promote the government program where majority of the representatives of all the
the project belongs. households comprising the concerned
ICCs/IPs. (Emphasis supplied)
We agree with the DENR and RP Energy.
As may be deduced from its subtitle, Section 59 requires as a
Section 59, Chapter VIII of the IPRA Law provides: precondition, relative to the issuance of any concession, license,
lease or agreement over natural resources, a certification issued
SEC. 59. Certification Precondition. All departments and other by the NCIP that the area subject thereof does not lie within any
governmental agencies shall henceforth be strictly enjoined ancestral domain.202 This is in keeping with the State policy to
from issuing, renewing, or granting any concession, license or protect the rights of Indigenous Cultural
lease, or entering into any production-sharing agreement, Communities/Indigenous Peoples (ICCs/IPs) to their ancestral
without prior certification from the NCIP that the area affected domains in order to ensure their economic, social and cultural
does not overlap with any ancestral domain. Such certification well-being as well as to recognize the applicability of customary
shall only be issued after a field-based investigation is laws governing property rights or relations in determining the
conducted by the Ancestral Domains Office of the area ownership and extent of such ancestral domain.203
concerned: Provided, That no certification shall be issued by the
NCIP without the free and prior informed and written consent of The IPRA Law and its implementing rules do not define the terms
ICCs/IPs concerned: Provided, further, That no department, "license" and "permit" so that resort to their plain or ordinary
government agency or government-owned or -controlled meaning in relation to the intendment of the law is appropriate.
corporation may issue new concession, license, lease, or
production sharing agreement while there is a pending A "license" has been defined as "a governmental permission to
application for a CADT: Provided, finally, That the ICCs/IPs shall perform a particular act (such as getting married), conduct a
have the right to stop or suspend, in accordance with this Act, particular business or occupation, operate machinery or vehicles
any project that has not satisfied the requirement of this after proving capacity and ability to do so safely, or use property
consultation process. (Emphasis supplied) for a certain purpose"204 while a "permit" has been defined as "a
license or other document given by an authorized public official
While Section 9, Part II, Rule VIII of National Commission on or agency (building inspector, department of motor vehicles) to
Indigenous Peoples (NCIP) Administrative Order No. 01- allow a person or business to perform certain acts."205
98201 states:
The evident intention of Section 59, in requiring the CNO prior
SECTION 9. Certification Precondition Prior to Issuance of any to the issuance of a license or permit, is to prevent the
Permits or Licenses. — implementation of a project that may impair the right of ICCs/IPs
to their ancestral domains. The law seeks to ensure that a project
a. Need for Certification. No department of willnot overlap with any ancestral domain prior to its
government or other agencies shall issue, renew or implementation and thereby pre-empt any potential
grant any concession, license, lease, permit, or enter encroachment of, and/or damage to the ancestral domains of
into any production sharing agreement without a prior ICCs/IPs without their prior and informed consent.
certification from the NCIP that the area affected does
not overlap any ancestral domain. With these considerations in mind, we now look at the definition,
nature and scope of an ECC in order to determine if it falls within
b. Procedure for Issuance of Certification by NCIP. the ambit of a "license" or "permit" to which the CNO
requirement, under Section 59 of the IPRA Law and its
implementing rules, finds application. Section 4 of PD 1586
1) The certification, above mentioned, shall be
provides, in part:
issued by the Ancestral Domain Office, only
after a field based investigation that such
areas are not within any certified or claimed SECTION 4. Presidential Proclamation of Environmentally Critical
ancestral domains. Areas and Projects. — The President of the Philippines may, on
his own initiative or upon recommendation of the National
Environmental Protection Council, by proclamation declare
2) The certification shall be issued only upon
certain projects, undertakings or areas in the country as
the free, prior, informed and written consent
environmentally critical. No person, partnership or corporation
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shall undertake or operate any such declared environmentally Proponent and represents the project’s Environmental
critical project or area without first securing an Environmental Compliance Certificate. The release of the ECC allows the project
Compliance Certificate issued by the President orhis duly to proceed to the next stage of project planning, which is the
authorized representative. For the proper management of said acquisition of approvals from other government agencies and
critical project or area, the President may by his proclamation LGUs, after which the project can start implementation.
reorganize such government offices, agencies, institutions,
corporations or instrumentalities including the re-alignment of xxxx
government personnel, and their specific functions and
responsibilities. (Emphasis supplied) 6) The EIA Process in Relation to Other Agencies’ Requirements
It is inherent upon the EIA Process to undertake a
While the above statutory provision reveals that the ECC is an comprehensive and integrated approach in the review and
indispensable requirement before (1) the conduct of an evaluation of environment-related concerns of government
environmentally critical project or (2) the implementation of a agencies (GAs), local government units (LGUs) and the general
project inan environmentally critical area, it does not follow that public. The subsequent EIA findings shall provide guidance and
the ECC is the "license" or "permit" contemplated under Section recommendations to these entities as a basis for their decision
59 of the IPRA Law and its implementing rules. making process.

Section 3(d), Article I of DAO 2003-03 defines an ECC in this wise: a) An Inter-agency MOA on EIS Streamlining was
entered into in 1992 by 29 government agencies
SECTION 3. Definition of Terms. — wherein ECC of covered projects was agreed to be a
prerequisite of all other subsequent government
For the purpose of this Order, the following definitions shall be approvals;
applied:
b) DENR Memo Circular No. 2007-08 issued on 13 July
xxxx 2007 reiterates in effect the intent of the MOA and
reinforces the role of the ECC/CNC as a guidance
d. Environmental Compliance Certificate (ECC) — document document to other agencies and LGUs, as follows:
issued by the DENR/EMB after a positive review of an ECC
application, certifying that based on the representations of the i) "No permits and/or clearances issued by
proponent, the proposed project or undertaking will not cause other National Government Agencies and
significant negative environmental impact. The ECC also certifies Local Government Units shall be required in
that the proponent has complied with all the requirements of the processing of ECC or CNC applications.
the EIS System and has committed to implement its approved
Environmental Management Plan. The ECC contains specific ii) The findings and recommendations ofthe
measures and conditions that the project proponent has to EIA shall be transmitted to relevant
undertake beforehand during the operation of a project, and in government agencies for them to integrate in
some cases, during the project's abandonment phase to their decision making prior to the issuance of
mitigate identified environmental impacts. clearances, permits and licenses under their
mandates.
In turn, Section 1.0, paragraphs 3 and 6 of the Revised Manual
provide, in part: iii) The issuance of an ECC or CNC for a project
under the EIS System does not exempt the
3) Purpose of the EIA Process Proponent from securing other government
permits and clearances as required by other
As a basic principle, EIA is used to enhance planning and guide laws. The current practice of requiring various
decision-making. In this Manual, EIA is primarily presented in the permits, clearances and licenses only
context of a requirement to integrate environmental concerns in constrains the EIA evaluation process and
the planning process of projects at the feasibility stage. Through negates the purpose and function of the EIA."
the EIA Process, adverse environmental impacts of proposed
actions are considerably reduced through a reiterative review iv) Henceforth, all related previous
process of project siting, design and other alternatives, and the instructions and other issuances shall be
subsequent formulation of environmental management and made consistent with the Circular.
monitoring plans. A positive determination by the DENR-EMB
results to the issuance of an Environmental Compliance c) "Permits, licenses and clearances" are inclusive of
Commitment (ECC) document, to be conformed to by the other national and local government approvals such as
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endorsements, resolutions, certifications, plans and We now turn to the applicability of Section 59 of the IPRA Law
programs, which have to be cleared/approved or other to the LDA entered into between the SBMA and RP Energy on
government documents required within the respective June 8, 2010. Similar to the ECC, the LDA was entered into prior
mandates and jurisdiction of these agencies/LGUs. to the issuance ofthe CNO on October 31, 2012.

xxxx Before this Court, SBMA and RP Energy reiterate their arguments
on why the CNO is no longer necessary in the instant case, to
f) The final decision whether a project will be implemented or wit:
not lies either with the LGUs who have spatial jurisdiction over
the project or with the lead government agency who has sectoral 1. Prior to entering into the LDA with Energy, SBMA
mandate to promote the government program where the entered into a lease agreement with HHIC206 -
project belongs, e.g. DOE for energy projects; DENR-MGB for Philippines, Inc. and a CNO was already issued therefor
mining projects.(Emphasis supplied) which, for all intents and purposes, is applicable to the
area leased by RP Energy being part of contiguous lots
As can be seen, the issuance of the ECC does not, by and of itself, in Redondo Peninsula.
authorize the implementation of the project. Although it is
indispensable before the covered project can be commenced, 2. The site of the power plant project is very distant
asper Section 4 of PD 1586,the issuanceof the ECC does not, as from the boundaries of the lone area at the Subic Bay
of yet, result inthe implementation of the project. Rather, the Freeport Zone covered by an Aeta Community’s
ECC is intended to, among others, provide guidance or act as a Certificate of Ancestral Domain Title (CADT).
decision-making tool to other government agencies and LGUs
which have the final authority to grant licenses or permits, such 3. There was no indigenous community within the
as building permits or licenses to operate, that will ultimately vicinity of the project area as stated in RP Energy’s EIS.
result in, or authorize the implementation of the project or the
conduct of specific activities. 4. The land where the project is located was
subsequently classified as industrial by the SBMA. 5.
As a consequence, we find that the CNO requirement under The scoping/procedural screening checklist classified
Section 59 of the IPRA Law is not required to be obtained prior as "not relevant" the issue of indigenous people.
to the issuance of an ECC. As previously discussed, Section 59
aims to forestall the implementation of a project that may impair 6. Ms. Mercado, who was part of the team which
the right of ICCs/IPs totheir ancestral domains, by ensuring or prepared the EIS, testified that she visited the project
verifying that a project will not overlap with any ancestral site ten or more times and did not see any Aeta
domain prior to its implementation. However, because the communities there.
issuance of an ECC does not result in the implementation of the
project, there is no necessity to secure a CNO prior to an ECC’s
7. Mr. Evangelista testified that the project site used to
issuance as the goal orpurpose, which Section 59 seeks to
be a firing range of the U.S. Armed Forces which would
achieve, is, at the time of the issuance of an ECC, not yet
make it impossible to be a settlement area of
applicable.
indigenous communities.

In sum, we find that the ECC is not the license or permit


8. Atty. Rodriguez stated that the project site is not
contemplated under Section 59 of the IPRA Law and its
covered by a CADT and that from the start of
implementing rules. Hence, there is no necessity to secure the
negotiations on the LDA, the SBMA Ecology Center
CNO under Section 59 before an ECC may be issued and the
verified with the NCIP that there was no application for
issuance of the subject ECC without first securing the aforesaid
said area to be covered by a CADT.
certification does not render it invalid.

RP Energy further argues that, in any case, as a matter of


V.
prudence, it secured a CNO from the NCIP. On October 31, 2012,
the NCIP issued the subject CNO over the project site, which
Whether the Certificate of Non-Overlap (CNO), under Section 59 should erase any doubt as to whether it overlaps with an
of the IPRA Law, is a precondition to the consummation of the ancestral domain.
Lease and Development Agreement (LDA) between SBMA and
RP Energy and the lack of its prior issuance rendered the LDA
Upholding the arguments of the Casiño Group, the appellate
invalid.
court ruled that SBMA failed to comply with the CNO
requirement and, thus, the LDA entered into between SBMA and

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RP Energy is invalid. It rejected the reasons given by SBMA and from issuing, renewing, or granting any concession, license or
RP Energy, to wit: lease, or entering into any production sharing agreement,
without prior certification from the NCIP that the area affected
1. RP Energy’s reliance on its own field investigation does not overlap with any ancestral domain. Such certification
that no indigenous community was found within the shall only be issued after a field-based investigation is
vicinity is unavailing because it was not the field conducted by the Ancestral Domains Office of the area
investigation by the NCIP required by the IPRA Law. concerned: Provided, That no certification shall be issued by the
NCIP without the free and prior informed and written consent of
2. RP Energy acknowledged that Aetas were among the ICCs/IPs concerned: Provided, further, That no department,
earliest settlers in the municipality where the project government agency or government-owned or -controlled
will be built. Hence, it was not clearly shown that in corporation may issue new concession, license, lease, or
2008, at the time the LDA was entered into, there were production sharing agreement while there is a pending
no indigenous communities in the project site. application for a CADT: Provided, finally, That the ICCs/IPs shall
have the right to stop or suspend, in accordance with this Act,
any project that has not satisfied the requirement of this
3. SBMA’s representation that the project site is
consultation process. (Emphasis supplied)
industrial relies on a letter dated March 5, 2008 and the
scoping checklist, which are hearsay evidence.
The law is clear but its actual operation or application should not
be interpreted beyond the bounds of reason or practicality.
4. The statements of Atty. Rodriguez have no probative
value because he is not an officer of SBMA Ecology
Center oran officer of NCIP. We explain.

5. At the time the CNO was issued on October 31, 2012, Indeed, a CNO is required prior to the grant of a lease by all
and the field investigation relative thereto was government agencies, including the SBMA. Again, the evident
conducted by the NCIP, the project site no longer intention is to prevent the impairment of the right of ICCs/IPs to
reflected the actual condition on December 22, 2008 their ancestral domains. A lease, such as the LDA under
when the LDA was entered into because the consideration, would result in, among others, granting RP
households which occupied the site had already been Energy the right to the use and enjoyment of the project site to
relocated by then. the exclusion of third parties.207 As such, the lease could
conceivably encroach on an ancestral domain if the CNO is not
first obtained.
6. SBMA, prior to entering into a lease agreement with
HHIC, secured a CNO, but oddly did not do the same
with respect to the lease agreement with RP Energy, However, implicit in the operation of Section 59 is the practical
considering that both leases cover lands located within reality that the concerned government agency must make a
the same peninsula. RP Energy appears to have been preliminary determinationon whether or not to obtain the
accorded a different treatment. required certification in the first place. To expound, a
government agency, which wishes to lease part of its property
located near Padre Faura Street, Manila City could not, and
7. The CNO issued in favor of HHIC cannot justify the
should not be reasonably expected to obtain the CNO, as it is
lack of a CNO for the power plant project because the
obviously inapplicable to its planned lease. In contrast, a
two projects are situated in different locations: the
government agency, which intends to lease a property in a valley
HHIC project is located in Sitio Agusuhin,while the
or mountainous region, where indigenous communities are
power plant project is located in Sitio Naglatore.
known to reside, conduct hunting activities, perform rituals, or
carry out some other activities, should be reasonably expected
While we agree with the appellate court that a CNO should have to secure the CNO prior to consummating the planned lease
been secured prior to the consummation of the LDA between with third persons.
SBMAand RP Energy, and not after, as was done here, we find
that, under the particular circumstances of this case, the
Even if the indigenous community does not actually reside on
subsequent and belated compliance with the CNO requirement
the proposed lease site, the government agency would still be
does not invalidate the LDA.
required to obtain the CNO precisely to rule out the possibility
that the proposed lease site encroaches upon an ancestral
For convenience, and as starting point of our analysis, we domain. The reason for this is that an ancestral domain does not
reproduce Section 59 of the IPRA Law below: only cover the lands actually occupied by an indigenous
community, but all areas where they have a claim of ownership,
SEC. 59. Certification Precondition. All departments and other through time immemorial use, such as hunting, burial or worship
governmental agencies shall henceforth be strictly enjoined
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grounds and to which they have traditional access for their possibility that the project site may overlap with an ancestral
subsistence and other traditional activities.208 domain. This is especially so, in view of the observation
previously made, that lack of actual occupation by an indigenous
The wording of the law itself seems to presuppose that if the community of the area does not necessarily mean that it is not
concession, lease, license or production-sharing agreement is a part of an ancestral domain because the latter encompasses
over natural resources, then the CNO should be first obtained. areas that are not actually occupied by indigenous communities
This is because the last term, "production-sharing agreement," but are used for other purposes like hunting, worship or burial
normally refers to natural resources. But the problem arises as grounds.
to what should be considered "natural resources"; for a vacant
lot, near Padre Faura Street, or a forest land, in Mt. Banahaw, Second, SBMA and RP Energy claim that the SBMA Ecology
could both be considered as "natural resources," depending on Center verified with the NCIP that the project site does not
the restrictive or expansive understanding of that term. overlap with an ancestral domain. However, the person, who
allegedly did the verification, and the officer from the NCIP, who
After due consideration, we find that the proper rule of action, was contacted in this alleged verification, were not presented in
for purposes of application of Section 59, is that all government court. Assuming that this verification did take place and that the
offices should undertake proper and reasonable diligence in SBMA Ecology Center determined that there is no pending
making a preliminary determination on whether to secure the application for a CADT covering the project site and that the
CNO, bearing in mind the primordial State interest in protecting presently recognized CADT of Aeta communities is too far away
the rights of ICCs/IPs to their ancestral domains. They should from the project site, it still does not follow that the CNO under
consider the nature and location of the areas involved; the Section 59 should have been dispensed with. The acts of
historical background of the aforesaid areas relative to the individual members ofa government agency, who allegedly
occupation, use or claim of ownership by ICCs/IPs; the present checked with the NCIP that the project site does not overlap with
and actual condition of the aforesaid areas likethe existence of an ancestral domain, cannot substitute for the CNO required by
ICCs/IPs within the area itself or within nearby territories; and law. The reason is obvious. Such posture would circumvent the
such other considerations that would help determine whether a noble and laudable purposes of the law in providing the CNO as
CNO should be first obtained prior to granting a concession, the appropriate mechanism in order to validly and officially
lease, license or permit, or entering into a production-sharing determine whether a particular project site does not overlap with
agreement. an ancestral domain. It would open the doors to abuse because
a government agency can easily claim that it checked with the
If there are circumstances that indicate that a claim of ownership NCIP regarding any application for an ancestral domain over a
by ICCs/IPs may be present or a claim of ownership may be proposed project site while stopping short of securing a CNO.
asserted in the future, no matter how remote, the proper and To reiterate, the legally mandated manner to verify if a project
prudent course of action is to obtain the CNO. In case of doubt, site overlaps with an ancestral domain is the CNO,and not
the doubt should be resolved in favor of securing the CNO and, through personal verification by members of a government
thus, the government agency is under obligation to secure the agency with the NCIP.
aforesaid certification in order to protect the interests and rights
of ICCs/IPs to their ancestral domains. This must be so if we are Third, that the project site was formerly used as the firing range
to accord the proper respect due to, and adequately safeguard of the U.S. Armed Forces does not preclude the possibility that
the interests and rights of, our brothers and sisters belonging to a present or future claim of ancestral domain may be made over
ICCs/IPs in consonance with the constitutional policy209 to the aforesaid site. The concept of an ancestral domain indicates
promote and protect the rights of ICCS/IPs as fleshed out in the that, even if the use of an area was interrupted by the occupation
IPRA Law and its implementing rules. of foreign forces, it may still be validly claimed to be an ancestral
domain.211
In the case at bar, we find, applying this rule of action, that the
SBMA should have first secured a CNO before entering into the Fourth, that the project site was subsequently classified by the
LDA with RP Energy for the following reasons. SBMA as forming part of an industrial zone does not exempt it
from the CNO requirement. The change in the classification of
First, the Subic area is historically known to be the home of our the land is not an exception to the CNO requirement under the
brothers and sisters belonging to the Aeta communities. In IPRA Law. Otherwise, government agencies can easily defeat the
particular, the EIS210 itself of RP Energy noted that Aeta rights of ICCs/IPs through the conversion of land use.
communities originally occupied the proposed project site of the
power plant. Thus, even if we assume that, at the time of the Fifth, SBMA argues that the CNO issued to HHIC should, for all
ocular inspection of the proposed project site in 2008, there intents and purposes, be applicable to RP Energy. However, as
were no Aeta communities seen thereat, as claimed by RP correctly ruled by the appellate court, the CNO issued to HHIC’s
Energy, the exercise of reasonable prudence should have moved shipyard cannot be extended to RP Energy’s project site because
SBMA and RP Energy to secure a CNO in order to rule out the they involve two different locations although found within the
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same land mass. The CNO issued in favor of HHIC clearly states defect. Such a ruling would lead to abuse of the CNO
that the findings in the CNO are applicable only to the shipyard requirement since the defect can be cured anyway by a
location of HHIC. Last, the steps taken by SBMA, in securing a subsequent and belated application for a CNO. Government
CNO prior to its lease agreement with HHIC, was the proper and agencies and third parties, either through deliberate intent or
prudent course of action that should have been applied to the negligence, may view it as an excuse not to timely and promptly
LDA with RP Energy. It does not matter that HHIC itself asked for secure the CNO, even when the circumstances warrant the
the CNO prior to entering into a lease agreement with SBMA, as application for a CNO under the aforediscussed rule of action,
claimed by SBMA, while RP Energy did not make such a request tothe damage and prejudice of ICCs/IPs. Verily, once the
because, as we have discussed, SBMA had the obligation, given concession, lease, license or permit is issued, or the agreement
the surrounding circumstances, to secure a CNO in order to rule is entered into without the requisite CNO, consequent damages
out the possibility that the project site overlapped with an will have already occurred if it later turns out that the site
ancestral domain. overlaps with anancestral domain. This is so even if the ICCs/IPs
can have the project stopped upon discovery thatit overlapped
All in all, we find, applying the foregoing rule of action, that with their ancestral domain under the last proviso214 of Section
SBMA should have secured a CNO before entering into the LDA 59. To prevent this evil, compliance with the CNO requirement
with RP Energy. Considering that Section 59 is a prohibitory should be followed through the aforediscussed rule of action.
statutory provision, a violation thereof would ordinarily result in
the nullification of the contract.212 However, we rule that the In sum, we rule that a CNO should have been secured prior to
harsh consequences of such a ruling should not be applied to the consummation of the LDA between SBMA and RP Energy.
the case at bar. However, considering that this is the first time we lay down the
rule of action appropriate to the application of Section 59, we
The reason is that this is the first time that we lay down the refrain from invalidating the LDA due to equitable
foregoing rule of action so much so that it would be inequitable considerations.
to retroactively apply its effects with respect to the LDA entered
into between SBMA and RP Energy. We also note that, under the VI.
particular circumstances of this case, there is no showing that
SBMA and RP Energy had a deliberate or ill intent to escape, Whether compliance with Section 27, inrelation to Section 26, of
defeat or circumvent the mandate of Section 59 of the IPRA Law. the LGC (i.e., approval of the concerned
On the contrary, they appear to have believed in good faith, sanggunianrequirement) is necessary prior to the
albeit erroneously, that a CNO was no longer needed because implementation of the power plant project.
of the afore-discussed defenses they raised herein. When the
matter of lack of a CNO relative to the LDA was brought to their Sustaining the arguments ofthe Casiño Group, the appellate
attention, through the subject Petition for Writ ofKalikasan filed court ruled that the subject project cannot beconstructed and
by the Casiño Group, RP Energy, with the endorsement of SBMA, operated until after the prior approval of the concerned
promptly undertook to secure the CNO, which was issued on sanggunianrequirement, under Section 27 of the LGC, is
October 31, 2012 and stated that the project site does not complied with. Hence, the ECC and LDA could not be validly
overlap with any ancestral domain.213 granted and entered into without first complying with the
aforesaid provision. It held that all the requisites for the
Thus, absent proof to the contrary, weare not prepared to rule application of the aforesaid provision are present. As to the
that SBMA and RP Energy acted inbad faith or with inexcusable pertinent provisions of RA 7227 or "TheBases Conversion and
negligence, considering that the foregoing rule of action has not Development Act of 1992," which grants broad powers of
heretofore been laiddown by this Court. As a result, we hold that administration to the SBMA over the Subic Special Economic
the LDA should notbe invalidated due to equitable Zone(SSEZ), the appellate court ruled that RA 7227 contains a
considerations present here. provision recognizing the basic autonomy ofthe LGUs which
joined the SSEZ. Thus, the LGC and RA 7227should be
By so ruling, we clarify that we reject RP Energy’s claim that the harmonized whereby the concerned sanggunian’spower to
belated submission of the CNO is an "over compliance" on its approve under Section 27 must be respected.
part. Quite the contrary, as we have discussed, the CNO should
have been first secured given the surrounding circumstances of The DENR impliedly agrees with the Casiño Group that
this case. compliance with Section 27 is still required but without clearly
elaborating its reasons therefor.
In the same vein, we reject SBMA’s argument thatthe belated
application for, and submission of the CNO cured whatever The SBMA and RP Energy, however, argue that the prior
defect the LDA had. We have purposely avoided a ruling to the approval of the concerned sanggunianrequirement, under
effect that a CNO secured subsequent to the concession, lease, Section 27, is inapplicable to the subject project because it is
license, permit or production-sharing agreement will cure the located within the SSEZ. The LGC and RA 7227 cannot be
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harmonized because of the clear mandate of the SBMA to We shall no longer discuss at length whether the approval of the
govern and administer all investments and businesses within the concerned sanggunian requirement must be complied with prior
SSEZ. Hence, RA 7227 should be deemed as carving out an to the issuance of an ECC. As discussed in an earlier subsection,
exception to the prior approval of the concerned the issuance of an ECC does not, by itself, result in the
sanggunianrequirement insofar as the SSEZ is concerned. implementation of the project. Hence, the purpose or goal of
Sections 26 and 27 of the LGC,like Section 59 of the IPRA Law,
We agree with the SBMA and RP Energy. does not yet obtain and, thus, the ECC may be issued
evenwithout prior compliance with Sections 26 and 27 of the
Preliminarily, we note that Sections 26 and 27 of the LGC LGC.
contemplate two requirements: (1) prior consultations and (2)
prior approval of the concerned sanggunian,viz: We, thus, limit the discussion as to whether the approval of the
concerned sanggunian requirement should have been complied
SECTION 26. Duty of National Government Agencies in the with prior to the consummation of the LDA, considering that the
Maintenance of Ecological Balance. — It shall be the duty of LDA is part of the implementation of the subject project and
every national agency or government-owned or -controlled already vests in RP Energy the right to the use and enjoyment of
corporation authorizing or involved in the planning and the project site, asin fact horizontal clearing activities were
implementation of any project or program that may cause already undertaken by RP Energy at the project site by virtue of
pollution, climatic change, depletion of non-renewable the LDA.
resources, loss of cropland, rangeland, or forest cover, and
extinction of animal or plant species, to consult with the local The prior approval of the concerned sanggunian requirement is
government units, non governmental organizations, and other an attribute and implementation of the local autonomy granted
sectors concerned and explain the goals and objectives of the to, and enjoyed by LGUs under the Constitution.217 The LGU has
project or program, its impact upon the peopleand the the duty to protect its constituents and interests in the
community in terms of environmental or ecological balance, and implementation of the project. Hence, the approval of the
the measures that will be undertaken to prevent or minimize the concerned sanggunian is required by law to ensure thatlocal
adverse effects thereof. (Emphasis supplied) communities partake in the fruits of their own backyard.218

SECTION 27. Prior Consultations Required. — No project or For Section 27, in relation to Section 26, to apply, the following
program shall be implemented by government authorities requisites must concur: (1) the planning and implementation of
unless the consultations mentioned in Sections 2 (c) and 26 the project or program is vested in a national agency or
hereof are complied with, and prior approval of the sanggunian government-owned and-controlled corporation, i.e., national
concerned is obtained: Provided, That occupants in areas where programs and/or projects which are to be implemented in a
such projects are to be implemented shall not be evicted unless particular local community; and (2) the project or program may
appropriate relocation sites have been provided, in accordance cause pollution, climatic change, depletion of non-renewable
with the provisions of the Constitution. (Emphasis supplied) resources, loss of cropland, rangeland, or forest cover, extinction
of animal or plant species, or call for the eviction of a particular
In the case at bar, the Casiño Group only questions the alleged group of people residing in the locality where the project will be
lack of the prior approval of the concerned sanggunians under implemented.219
Section 27 of the LGC. Thus, we shall limit our discussion to the
resolution of this issue. (Parenthetically, we note that prior In the case at bar, the two requisites are evidently present: (1)
consultations, as required by Section 26 of the LGC, appear to the planning and implementation of the subject project involves
have been complied with. This may begleaned from the EIS of the Department of Energy, DENR, and SBMA; and (2) the subject
RPEnergy which contains the documentation of the extensive project may cause pollution, climatic change, depletion of non-
public consultations held, under the supervision of the DENR- renewable resources, loss of cropland, rangeland, or forest
EMB, relative to the subject project, as required by the EIA cover, and extinction of animal or plant species,or call for the
process,215 as well as the socialacceptability policy consultations eviction of a particular group of people residing in the locality
conducted by the SBMA, which generated the document where the project will be implemented. Hence, Section 27 of the
entitled "Final Report: Social Acceptability Process for RP Energy, LGC should ordinarily apply.
Inc.’s 600-MW Coal Plant Project," as noted and discussed in an
earlier subsection.216) It is not disputed that no approval was sought from the
concerned sangguniansrelative to the subject
We also note that the Casiño Group argues that the approval of project.1a\^/phi1Whatis more, the affected LGUs have
the concerned sanggunian requirement was necessary prior to expressed their strong oppositions to the project through
the issuance of the ECC and the consummation of the LDA; the various sanggunian resolutions.220 However, it is also
absence of which invalidated the ECC and LDA. undisputed that the subject project is located within the SSEZ

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and, thus, under the territorial jurisdiction of the SBMA pursuant order to attract investors to invest their capital in a business
to RA 7227. climate with the least governmental intervention. The concept
ofthis zone was explained by Senator Guingona in this wise:
Thus, we are tasked to determine the applicability of the prior
approval of the concerned sanggunian requirement, under Senator Guingona. Mr. President, the special economic zone is
Section 27 of the LGC, relative to a project within the territorial successful in many places, particularly Hong Kong, which is a free
jurisdiction of the SBMA under RA 7227. port. The difference between a special economic zone and an
industrial estate is simply expansive in the sense that the
RA 7227 was passed on March 13, 1992 in the aftermath of the commercial activities, including the establishment of banks,
Mount Pinatubo eruption and the closure of the Subic Naval services, financial institutions, agro-industrial activities, maybe
Base ofthe U.S. Armed Forces. It sought to revivethe affected agriculture to a certain extent.
areas by creating and developing the SSEZ into a "self-sustaining
industrial, commercial, financial and investment center to This delineates the activities that would have the least of
generate employment opportunities in and around the zone and government intervention, and the running of the affairs of the
to attract and promote productive foreign investments."221 The special economic zone would be run principally by the investors
SSEZ covered the City of Olangapo and Municipality of Subic in themselves, similar toa housing subdivision, where the
the Province ofZambales and the lands and its contiguous subdivision owners elect their representatives to run the affairs
extensions occupied by the former U.S. Naval Base, which of the subdivision, toset the policies, to set the guidelines.
traversed the territories of the Municipalities of Hermosa and
Morong in the Province of Bataan. Under Section 12 of RA 7227, We would like to see Subic area converted into a little Hong
the creation of the SSEZ was made subject to the concurrence Kong, Mr. President, where there is a hub of free port and free
by resolution of the respective sanggunians of the City of entry, free duties and activities to a maximum spur generation
Olongapo and the Municipalities of Subic, Morong and of investment and jobs.
Hermosa, viz:
While the investor is reluctant to come in the Philippines, as a
SECTION 12. Subic Special Economic Zone. — Subject to the rule, because of red tape and perceived delays, we envision this
concurrence by resolution of the sangguniang panlungsod of special economic zone to be an area where there will be
the City of Olongapo and the sangguniang bayanof the minimum government interference.
Municipalities of Subic, Morong and Hermosa, there is hereby
created a Special Economic and Free-port Zone consisting of the The initial outlay may not only come from the Government or
City of Olongapo and the Municipality of Subic, Province of the Authority as envisioned here, but from them themselves,
Zambales, the lands occupied by the Subic Naval Base and its because they would be encouraged to invest not only for the
contiguous extensions as embraced, covered, and defined by land but also for the buildings and factories. As long as they are
the 1947 Military Bases Agreement between the Philippines and convinced that in such an area they can do business and reap
the United States of America as amended, and within the reasonable profits, thenmany from other parts, both local and
territorial jurisdiction of the Municipalities of Morong and foreign, would invest, Mr. President.223 (Emphasis in the original)
Hermosa, Province of Bataan, hereinafter referred to as the Subic
Special Economic Zone whose metes and bounds shall be
To achieve the above-mentioned purposes, the law created
delineated in a proclamation to be issued by the President of the
SBMA to administer the SSEZ. In the process, SBMA was granted
Philippines. Within thirty (30) days after the approval of this Act,
broad and enormous powers as provided for under Section
each local government unit shall submit its resolution of
13(b) of RA 7227:
concurrence to join the Subic Special Economic Zone to the
office of the President. Thereafter, the President of the
Philippines shall issue a proclamation defining the metes and Sec. 13. The Subic Bay Metropolitan Authority. –
bounds of the Zone as provided herein.
xxxx
Subsequently, the aforesaid sanggunians submitted their
respective resolutions of concurrence and the President issued (b) Powers and functions of the Subic Bay Metropolitan
Presidential Proclamation No. 532, Series of 1995, defining the Authority - The Subic Bay Metropolitan Authority,
metes and bounds of the SSEZ. otherwise knownas the Subic Authority, shall have the
following powers and function: (1) To operate,
In Executive Secretary v. Southwing Heavy Industries, Inc.,222 we administer, manage and develop the ship repair and
described the concept of SSEZ as a Freeport: ship building facility, container port, oil storage and
refueling facility and Cubi Air Base within the Subic
Special Economic and Free-port Zone as a free market
The Freeport was designed to ensurefree flow or movement of
goods and capital within a portion of the Philippine territory in
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in accordance with the policies set forth in Section 12 horse racing, dog racing and casino gambling
of this Act; which shall continue to be licensed by the
Philippine Amusement and Gaming
(2) To accept any local or foreign investment, Corporation (PAGCOR) upon
business or enterprise, subject only to such recommendation of the Conversion Authority;
rules and regulations to be promulgated by to maintain and preserve the forested areas as
the Subic Authority in conformity with the a national park;
policies of the Conversion Authority without
prejudice to the nationalization requirements (8) To authorize the establishment
provided for in the Constitution; ofappropriate educational and medical
institutions;
(3) To undertake and regulate the
establishment, operation and maintenance of (9) To protect, maintain and develop the
utilities, other services and infrastructure in virgin forests within the baselands, which will
the Subic Special Economic Zone including be proclaimed as a national park and subject
shipping and related business, stevedoring to a permanent total log ban, and for this
and port terminal services or concessions, purpose, the rules and regulations of the
incidental thereto and airport operations in Department of Environment and Natural
coordination with the Civil Aeronautics Board, Resources and other government agencies
and to fix just and reasonable rates, fares directly involved in the above functions shall
charges and other prices therefor; be implemented by the Subic Authority;

(4) To construct, acquire, own, lease, operate (10) To adopt and implement measures and
and maintain on its own or through contract, standards for environmental pollution control
franchise, license permits bulk purchase from of all areas within its territory, including but
the private sector and build-operate transfer not limited to all bodies of water and to
scheme or joint-venture the required utilities enforce the same. For which purpose the
and infrastructurein coordination with local Subic Authority shall create an Ecology
government units and appropriate Center; and
government agencies concerned and
inconformity with existing applicable laws (11) To exercise such powers as may be
therefor; essential, necessary or incidental to the
powers granted to it hereunder as well as to
(5) To adopt, alter and use a corporate seal; to carry out the policies and objectives of this
contract, lease, sell, dispose, acquire and own Act. (Emphasis supplied) The Implementing
properties; to sue and be sued in order to Rules of RA 7227 further provide:
carry out its duties and functions as provided
for in this Act and to exercise the power of Sec. 11. Responsibilities of the SBMA. Other than the powers and
eminent domain for public use and public functions prescribed in Section 10 of these Rules, the SBMA shall
purpose; have the following responsibilities:

(6) Within the limitation provided by law, to (a) The SBMA shall exercise authority and jurisdiction over all
raise and/or borrow the necessary funds from economic activity within the SBF224
local and international financial institutions
and to issue bonds, promissory notes and xxxx
other securities for that purpose and to secure
the same by guarantee, pledge, mortgage
(f) Consistent with the Constitution, the SBMA shall have the
deed of trust, or assignment of its properties
following powers to enforce the law and these Rules in the SBF:
held by the Subic Authority for the purpose of
financing its projects and programs within the
framework and limitation of this Act; xxxx

(7) To operate directly or indirectly or license (8) to issue, alter, modify, suspend or revoke for cause, any
tourism related activities subject to priorities permit, certificate, license, visa or privilege allowed under the Act
and standards set by the Subic Authority or these Rules;
including games and amusements, except
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xxxx which the SBMA’s authority prevails over the LGU’s autonomy.
Hence, there isno need for the SBMA to secure the approval of
(11) to promulgate such other rules, regulations and circulars as the concerned sangguniansprior to the implementation of the
may be necessary, proper or incidental to carry out the policies subject project.
and objectives of the Act, these 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 SSEZ under
As can be seen, the SBMA was given broad administrative Section 13 of RA 7227, as afore-discussed. Equally important,
powers over the SSEZ and these necessarily include the power under Section 14, other than those involving defense and
to approve or disapprove the subject project, which is within its security, the SBMA’s decision prevails in case of conflict between
territorial jurisdiction. But, as previously discussed, the LGC the SBMA and the LGUs in all matters concerning the SSEZ, viz.:
grants the concerned sangguniansthe power to approve and
disapprove this same project. The SBMA asserts that its approval Sec. 14. Relationship with the Conversion Authority and the
of the project prevails over the apparent disapproval of the Local Government Units.
concerned sanggunians. 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
Which shall prevail? shall exercise administrative powers, rule-making and
disbursement of funds over the Subic Special Economic
Section 12 of RA 7227 provides: Zonein conformity with the oversight function of the
Conversion Authority.
Sec. 12. Subic Special Economic Zone. x x x
(b) In case of conflict between the Subic Authority and
The abovementioned zone shall be subjected to the following the local government units concerned on matters
policies: affecting the Subic Special Economic Zone other than
defense and security, the decision of the
SubicAuthority shall prevail. (Emphasis supplied)
(a) Within the framework and subject to the mandate and
limitations of the Constitution and the pertinent provisions of
the Local Government Code, the Subic Special Economic Zone Clearly, the subject project does not involve defense or security,
shall bedeveloped into a self-sustaining, industrial, commercial, but rather business and investment to further the development
financial and investment center to generate employment of the SSEZ. Such is in line with the objective of RA 7227 to
opportunities in and around the zone and to attract and develop the SSEZ into a self-sustaining industrial, commercial,
promote productive foreign investments; financial and investment center. Hence, the decision of the
SBMA would prevail over the apparent objections of the
concerned sanggunians of the LGUs.
xxxx

Significantly, the legislative deliberations on RA 7227, likewise,


(i) Except as herein provided, the local government units
support and confirm the foregoing interpretation. As earlier
comprising the Subic Special Economic Zone shall retain their
noted, Section 13 b(4) of RA 7227 provides:
basic autonomy and identity. The cities shall be governed by
their respective charters and the municipalities shall operate and
function in accordance with Republic Act No. 7160, otherwise Sec. 13. The Subic Bay Metropolitan Authority. –
known as the Local Government Code of 1991. (Emphasis
supplied) xxxx

This section sets out the basic policies underlying the creation of (b) Powers and functions of the Subic Bay Metropolitan
the SSEZ. Indeed, as noted by the appellate court, Section 12(i) Authority - The Subic Bay Metropolitan Authority, otherwise
expressly recognizes the basic autonomy and identity of the knownas the Subic Authority, shall have the following powers
LGUscomprising the SSEZ. However, the clause "[e]xcept as and function: x x x x
herein provided" unambiguously provides that the LGUs do not
retain their basic autonomy and identitywhen it comes to (4) To construct, acquire, own, lease, operate and maintain on its
matters specified by the law as falling under the powers, own or through contract, franchise, license permits bulk
functions and prerogatives of the SBMA. purchase from the private sector and build-operate transfer
scheme or joint-venture the required utilities and infrastructure
In the case at bar, we find that the power to approve or in coordination with local government units and appropriate
disapprove projects within the SSEZ is one such power over
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government agencies concerned and in conformity with existing mandating Congress to enact the necessary Local Government
applicable laws therefor; Code with emphasis on local autonomy.

In the Senate, during the period of amendments, when the We have now Section 27 of the new Local Government Code
provision which would eventually become the afore-quoted which actually provides that for every projectin any local
Section 13 b(4) of RA 7227 was under consideration, the government territory, the conformity or concurrence of the
following exchanges took place: Sanggunian of every such local government unit shall be
secured in the form of resolution—the consent of the
Senator Laurel. Mr. President. Sanggunian.

The President. Senator Laurel is recognized. The President. Well, both sides have already been heard. There
is the Laurel amendment that would make the power of the
Senator Laurel. Relative to line 27 up to line 31 of page 16, Subic Bay Metropolitan Authority to construct, acquire, own,
regarding the provision to the effect that the Authoritywill have lease, operate and maintain on its own or through contract,
the following functions: "to construct, acquire, own, etcetera," franchise, license, permits, bulk purchases from private sector,
that is all right. buildoperate-and-transfer scheme, or joint venture, the required
utilities and 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 follow on line
31, which states: "in coordination with local government This amendment to the amendment has been rejected by the
unitsand", and substitute the following in place of those words: Sponsor. So, we are voting now on this amendment.
"SUBJECT TO THE APPROVAL OF THE SANGGUNIAN OF THE
AFFECTED LOCAL GOVERNMENT UNITS AND IN As many as are in favor of the Laurel amendment, say Aye. (Few
COORDINATION WITH." Senators: Aye.)

So, this paragraph will read, as follows: "to construct, own, lease, Those who are against the said amendment, say Nay. (Several
operate, and maintain on its own or through contract, franchise, Senators: Nay.)
license permits, bulk purchase from the private sector and build-
operate-transfer scheme or joint venture the required utilities Senator Laurel. Mr. President, may I ask for a nominal voting.
and infrastructure SUBJECT TO THE APPROVAL OF THE
SANGGUNIAN OF THE AFFECTED LOCAL GOVERNMENT UNITS The President. A nominal voting should beupon the request of
AND IN coordination with appropriate government agencies one-fifth of the Members of the House, but we can
concerned and in conformity with existing applicable laws accommodate the Gentleman by asking for a division of the
therefor." House. Therefore, those in favor of the Laurel amendment,
please raise their right hands. (Few Senators raised their right
The President. What does the Sponsor say? hands.)

Senator Shahani. I believe this would cripple the Authority. I Senator Laurel. I was asking, Mr. President, for a nominal voting.
would like to remind our Colleagues that in the Board of The President. A nominal voting can be had only upon motion
Directors, the representatives of the local government units that ofone-fifth of the Members of the Body. Senator Laurel. That is
agree to join with the Subic Special Economic Zone will be correct, Mr. President. But this issuch an important issue being
members of the Board so that they will have a say, Mr. President. presented to us, because this question is related to the other
But if we say "subject," that is a very strong word. It really means important issue, which is: May an elected public official of a
that they will be the ones to determine the policy. particular government unit, such as a town or municipality,
participate as a member of the Board of Directors of this
So, I am afraid that I cannot accept this amendment, Mr. particular zone.
President.
The President. The ruling of the Chair stands. The division of the
Senator Laurel. May I respond or react, Mr. President. House is hereby directed.

The President. Yes. As many as are infavor of the Laurel amendment, please raised
(sic) their right hands. (Few Senators raised their right hands.)
Senator Laurel. The Constitution is there,very categorical inthe
promotion and encouragement of local autonomy, and As many as are against the said amendment, please do likewise.
(Several Senators raised their right hands.)
Page 52 of 94
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The amendment is lost.226 (Emphasis supplied) SBMA’s undisputed claim is that, during the board meeting
when the subject project was approved, exceptfor one, all the
Indubitably, the legislature rejected the attempts to engraft representatives of the concerned LGUs were present and voted
Section 27’s prior approval of the concerned sanggunian to approve the subject project.227 Verily, the wisdom of the law
requirement under the LGC into RA 7227. Hence, the clear intent creating the SSEZ; the wisdom of the choice of the concerned
was to do away with the approval requirement of the concerned LGUs to join the SSEZ; and the wisdom ofthe mechanism of
sanggunians relative to the power of the SBMA to approve or representation of the concerned LGUs in the decision-making
disapprove a project within the SSEZ. process of the SBMA are matters outside the scope of the power
of judicial review. We can only interpret and apply the law as we
The power to create the SSEZ is expressly recognized in Section find it.
117 of the LGC, viz.:
In sum, we find that the implementation of the project is not
TITLE VIII. subject to the prior approval of the concerned sanggunians,
Autonomous Special Economic Zones under Section 27 of the LGC, and the SBMA’s decision to
approve the project prevails over the apparent objections of the
concerned sangguniansof the LGUs, by virtue ofthe clear
SECTION 117. Establishment of Autonomous Special Economic
provisions of RA 7227. Thus, there was no infirmity when the LDA
Zones. — The establishment by law of autonomous special
was entered into between SBMA and RP Energy despite the lack
economic zones in selected areas of the country shall be subject
of approval of the concerned sanggunians. VII.
to concurrence by the local government units included therein.

Whether the validity of the third amendment to the ECC can be


When the concerned sanggunians opted to join the SSEZ, they
resolved by the Court.
were, thus, fully aware that this would lead to some diminution
of their local autonomy in order to gain the benefits and
privileges of being a part of the SSEZ. The Casiño Group argues that the validity of the third
amendment should have been resolved by the appellate court
because it is covered by the broad issues set during the
Further, the point of Senator Shahani that the representation of
preliminary conference.
the concerned LGUs in the Board of Directors will compensate
for the diminution of their local autonomy and allow them to be
represented in the decision-making of the SBMA is not lost on RP Energy counters that this issue cannot be resolved because it
us. This is expressly provided for in Section 13(c) of RA 7227, viz: was expressly excluded during the preliminary conference.

SECTION 13. The Subic Bay Metropolitan Authority. — The appellate court sustained the position of RP Energy and
ruled that this issue was not included in the preliminary
conference so that it cannot be resolved without violating the
xxxx
right todue process of RP Energy.

(c) Board of Directors. — The powers of the Subic Authority shall


We agree with the appellate court.
be vested in and exercised by a Board of Directors, hereinafter
referred to as the Board, which shall be composed of fifteen (15)
members, to wit: Indeed, the issue of the validity of the third amendment to the
ECC was not part of the issues set during the preliminary
conference, as it appears at that time that the application for the
(1) Representatives of the local government units that
third amendment was still ongoing. The following clarificatory
concur to join the Subic Special Economic Zone;
questions during the aforesaid conference confirm this, viz.:

(2) Two (2) representatives from the National


J. LEAGOGO:
Government;

So what are you questioning in your Petition?


(3) Five (5) representatives from the private sector
coming from the present naval stations, public works
center, ship repair facility, naval supply depot and naval ATTY. RIDON:
air station; and
We are questioning the validity of the amendment, Your Honor.
(4) The remaining balance to complete the Board shall
be composed of representatives from the business and J. LEAGOGO:
investment sectors. (Emphasis supplied)

Page 53 of 94
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Which amendment? the validity of the third amendment cannot be adjudicated in
this case.
ATTY. RIDON:
Refutation of the Partial Dissent.
From 2 x 150 to 1 x 300, Your Honor.
Justice Leonen partially dissents from the foregoing disposition
J. LEAGOGO: on the following grounds:

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

Because it was 2 x 150 and then 1 x 300? We disagree.

ATTY. RIDON: A.

Yes, Your Honor. Justice Leonen’s proposition that environmental cases should
not, in general, be litigated via a representative, citizen or class
J. LEAGOGO: suit is both novel and ground-breaking. However, it
isinappropriate to resolve such an important issue in this case,
Up to that point? in view of the requisites for the exercise of our power of judicial
review, because the matter was not raised by the parties so that
the issue was not squarely tackled and fully ventilated. The
ATTY. RIDON:
proposition will entail, as Justice Leonen explains, an
abandonment or, at least, a modification of our ruling in the
Yes, Your Honor. landmark case of Oposa v. Factoran.229 It will also require an
amendment or a modification of Section 5 (on citizen suits), Rule
J. LEAGOGO: 2 ofthe Rules of Procedure for Environmental Cases. Hence, it is
more appropriate to await a case where such issues and
Because there is no amended ECC yet for the 2 x 300 or 600. arguments are properly raisedby the parties for the
That’s clear enough for all of us. consideration of the Court.

ATTY. RIDON: B.

Yes, Your Honor.228 Justice Leonen reasons that the amendments to the subject ECC
are void because the applications therefor were unsupported by
Given the invocation of the right to due process by RP Energy, anEIS, as required by PD 1151 and PD 1586. The claim is made
we must sustain the appellate court’s finding that the issue as to that an EIS is required by law, even if the amendment to the ECC
is minor, because an EIS is necessary to determine the
Page 54 of 94
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environmental impact of the proposed modifications to the critical project or area without first securing an Environmental
original project design. The DENR rules, therefore, which permit Compliance Certificate issued by the President or his duly
the modification of the original project design without the authorized representative. For the proper management of said
requisite EIS, are void for violating PD 1151 and PD 1586. critical project or area, the President may by his proclamation
reorganize such government offices, agencies, institutions,
We disagree. corporations or instrumentalities including the re-alignment of
government personnel, and their specific functions and
Indeed, Section 4 of PD 1151 sets out the basic policy of responsibilities.
requiring an EIS in every action, project or undertaking that
significantly affects the quality of the environment, viz: For the same purpose as above, the Ministry of Human
Settlements shall: (a) prepare the proper land or water use
SECTION 4. Environmental Impact Statements. — Pursuant to pattern for said critical project(s) or area(s); (b) establish ambient
the above enunciated policies and goals, all agencies and environmental quality standards; (c) develop a program of
instrumentalities of the national government, including environmental enhancement or protective measures against
government-owned or -controlled corporations, as well as calamituous factors such as earthquake, floods, water erosion
private corporations, firms and entities shall prepare, file and and others, and (d) perform such other functions as may be
include in every action, projector undertaking which significantly directed by the President from time to time.
affects the quality of the environmenta detailed statement on —
SECTION 5. Environmentally Non-Critical Projects. — All other
(a) the environmental impact of the proposed action, projects, undertakings and areas not declared by the President
project or undertaking; as environmentally critical shall be considered as non-critical
and shall not be required to submit an environmental impact
statement. The National Environmental Protection Council, thru
(b) any adverse environmental effect which cannot be
the Ministry of Human Settlements may however require non-
avoided should the proposal be implemented;
critical projects and undertakings to provide additional
environmental safeguards as it may deem necessary. (Emphasis
(c) alternative to the proposed action; supplied)

(d) a determination that the short-term uses of the These laws were, in turn, implemented by DAO 2003-30 and the
resources of the environment are consistent with the Revised Manual.
maintenance and enhancement of the long-term
productivity of the same; and
As correctly noted by Justice Leonen,Presidential Proclamation
No. 2146 was subsequently issued which, among others,
(e) whenever a proposal involves the use of depletable classified fossil-fueled power plants as environmentally critical
or nonrenewable resources, a finding must be made projects.
that such use and commitment are warranted.
In conformity with the above-quoted laws and their
Before an environmental impact statement is issued by a lead implementing issuances, the subject project, a coal power plant,
agency, all agencies having jurisdiction over, or special expertise was classified by the DENR as an environmentally critical project,
on, the subject matter involved shall comment on the draft new and single. Hence, RP Energy was required to submit an EIS
environmental impact statement made by the lead agency in support of its application for an ECC. RP Energy thereafter
within thirty (30) days from receipt of the same. (Emphasis complied with the EIS requirement and the DENR, after review,
supplied) evaluation and compliance with the other steps provided in its
rules, issued an ECC in favor of RP Energy. As can be seen, the
As earlier stated, the EIS was subsequently developed and EIS requirement was duly complied with.
strengthened through PD 1586 which established the Philippine
Environmental Impact Statement System. Sections 4 and 5 of PD Anent Justice Leonen’s argument thatthe subsequent
1586 provide: amendments to the ECC were void for failure to prepare and
submit a new EIS relative to these amendments, it is important
SECTION 4. Presidential Proclamation of Environmentally Critical to note thatPD 1586 does not state the procedure to be followed
Areas and Projects.1avvphi1 The President of the Philippines when there is an application for an amendment to a previously
may, on his own initiative or upon recommendation of the issued ECC. There is nothing in PD 1586 which expressly requires
National Environmental Protection Council, by proclamation an EIS for an amendment to an ECC.
declare certain projects, undertakings or areas in the country as
environmentally critical. No person, partnership or corporation In footnote 174 of the ponencia, it is stated:
shall undertake or operate any such declared environmentally
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Parenthetically, we must mention that the validity of the rules for amendments that, upon preliminary evaluation by the DENR,
providing for amendments to the ECC was challenged by the will not cause significant environmental impact. In particular, as
Casiño Group on the ground that it is ultra vires before the applied to the subject project, the DENR effectively determined
appellate court. It argued that the laws governing the ECC do that it is impractical to requireRP Energy to, in a manner of
not expressly permit the amendment of an ECC. However, the speaking, start from scratch by submitting a new EIS in support
appellate court correctly ruled that the validity of the rules of its application for the first amendment to its previously issued
cannot be collaterally attacked. Besides,the power of the DENR ECC, considering that the existing EIS may be supplemented by
to issue rules on amendments of an ECC is sanctioned under the an EPRMP to adequately evaluate the environmental impact of
doctrine of necessary implication. Considering that the greater the proposed modifications under the first amendment. The
power todeny or grant an ECC is vested by law in the President same reasoning may be applied to the PDR relative to the
or his authorized representative, the DENR, there is no obstacle second amendment. As previously discussed, the Casiño Group
to the exercise of the lesser or implied power to amend the ECC failed to provethat the EPRMP and PDR were inadequate to
for justifiable reasons. This issue was no longer raised before this assess the environmental impact of the planned modifications
Court and, thus, we no longertackle the same here. under the first and second amendments, respectively. On the
contrary, the EPRMP and PDR appeared to contain the details of
Because PD 1586 did not expressly provide the procedure to be the planned modifications and the corresponding adjustments
followed in case of an application for an amendment toa to bemade in the environmental management plan or mitigating
previously issued ECC, the DENR exercised its discretion, measures inorder to address the potential impacts of these
pursuant to its delegated authority to implement this law, in planned modifications. Hence, absent sufficient proof, there is
issuing DAO 2003-30 and the Revised Manual. no basis to conclude that the procedure adopted by the DENR
was done with grave abuse of discretion.
Justice Leonen’s argument effectively challenges the validity of
the provisions in DAO 2003-30 and the Revised Manual relative Justice Leonen’s proposition would effectively impose a
to amendments to an ECC for being contrary to PD 1151 and stringent requirement of an EIS for each and every proposed
1586. amendment to an ECC, no matter how minor the amendment
may be. While this requirement would seem ideal, in order to
We disagree. ensure that the environmental impact of the proposed
amendment is fully taken into consideration, the pertinent laws
do not, however, expressly require that such a procedure be
First, to repeat, there is nothing in PD 1586 which expressly
followed.As already discussed, the DENR appear to have
requires an EIS for an amendment to an ECC.
reasonably issued DAO 2003-30 and the Revised Manualrelative
to the amendment process of an ECC, by balancing practicality
Second, as earlier noted, the proposition would constitute a vis-à-vis the need for sufficient information in determining the
collateral attack on the validity of DAO 2003-30 and the Revised environmental impact of the proposed amendment to an ECC.
Manual, which is not allowed under the premises. The Casiño In fine, the Court cannot invalidate the rules which appear to be
Group itself has abandoned this claim before this Court so that reasonable, absent a showing of grave abuse of discretion or
the issue is not properly before this Court for its resolution. patent illegality.

Third, assuming that a collateral attack on the validity of DAO We next tackle Justice Leonen’s argument that a petition for
2003-30 and the Revised Manual can be allowed in this case, the certiorari,and not a writ of kalikasan,is the proper remedy to
rules on amendments appear to be reasonable, absent a question a defect in an ECC.
showing of grave abuse of discretion or patent illegality.
In general, the proper procedure to question a defectin an ECC
Essentially, the rules take into consideration the nature of the is to follow the appeal process provided in DAO 2003-30 and
amendment in determining the proper Environmental Impact the Revised Manual. After complying with the proper
Assessment (EIA) document type that the project proponent will administrative appeal process, recourse may be made to the
submit in support of its application for an amendment to its courts in accordance with the doctrine of exhaustion of
previously issued ECC. A minor amendment will require a less administrative remedies. However, as earlier discussed, in
detailed EIA document type, like a Project Description Report exceptional cases, a writ of kalikasan may be availed of to
(PDR), while a major amendment will require a more detailed EIA challenge defects in the ECC providedthat (1) the defects are
document type, like an Environmental Performance Report and causally linked or reasonably connected to an environmental
Management Plan (EPRMP) or even an EIS.230 damage of the nature and magnitudecontemplated under the
Rules on Writ of Kalikasan, and (2) the case does not violate, or
The rules appear to be based on the premise that it would be falls under an exception to, the doctrine of exhaustion of
unduly burden some or impractical to require a project administrative remedies and/or primary jurisdiction.
proponent to submit a detailed EIA document type, like an EIS,

Page 56 of 94
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As previously discussed, in the case at bar, only the allegation after the official release of the ECC on December 22,
with respect to the lack of an EIA relative to the first and second 2008, wenote that the DENR did not strictly follow its
amendments to the subject ECC may be reasonably connected rules, which require that the signing of the Statement
to such an environmental damage. Further, given the extreme of Accountability should be done before the official
urgency of resolving the issue due to the looming power crisis, release of the ECC. However, considering that the issue
this case may be considered as falling under an exception to the was not adequately argued norwas evidence presented
doctrine of exhaustion of administrative remedies. Thus, the before the appellate court on the circumstances at the
aforesaid issue may be conceivably resolved in a writ of kalikasan time of signing, there is insufficient basis to conclude
case. that the procedure adoptedby the DENR was tainted
with bad faith or inexcusable negligence. We remind
More importantly, we have expressly ruled that this case is an the DENR, however, to be more circumspect in
exceptional case due to the looming power crisis, so that the following its rules. Thus, we rule that the signature
rules of procedure may be suspended in order to address issues requirement was substantially complied with pro hac
which, ordinarily, the Court would not consider proper in a writ vice.
of kalikasan case. Hence, all issues, including those not proper in
a writ of kalikasan case, were resolved here in order to forestall 3. The appellate court erred when it ruled that the first
another round of protracted litigation relative to the and second amendments to the ECC were invalid for
implementation of the subject project. failure to comply with a new EIA and for violating DAO
2003-30 and the Revised Manual. It failed to properly
Conclusion consider the applicable provisions in DAO 2003-30 and
the Revised Manual for amendment to ECCs. Our own
We now summarize our findings: examination of the provisions on amendments to ECCs
in DAO 2003-30 and the Revised Manual, as wellas the
EPRMP and PDR themselves, shows that the DENR
1. The appellate court correctly ruled that the Casiño
reasonably exercised its discretion in requiring an
Group failed to substantiate its claims thatthe
EPRMP and a PDR for the first and second
construction and operation of the power plant will
amendments, respectively. Through these documents,
cause environmental damage of the magnitude
which the DENR reviewed, a new EIA was conducted
contemplated under the writ of kalikasan. On the other
relative to the proposed project modifications. Hence,
hand, RP Energy presented evidenceto establish that
absent sufficient showing of grave abuse of discretion
the subject project will not cause grave environmental
or patent illegality, relative to both the procedure and
damage, through its Environmental Management Plan,
substance of the amendment process, we uphold the
which will ensure thatthe project will operate within the
validity of these amendments;
limits of existing environmental laws and standards;

4. The appellate court erred when it invalidated the ECC


2. The appellate court erred when it invalidated the ECC
for failure to comply with Section 59 of the IPRA
on the ground of lack of signature of Mr. Aboitiz in the
Law.1âwphi1 The ECC is not the license or permit
ECC’s Statement of Accountability relative to the copy
contemplated under Section 59 of the IPRA Law and its
of the ECC submitted by RP Energy to the appellate
implementing rules. Hence, there is no necessity to
court. While the signature is necessary for the validity
secure the CNO under Section 59 before an ECC may
of the ECC, the particular circumstances of this case
be issued, and the issuance of the subject ECC without
show that the DENR and RP Energy were not properly
first securing the aforesaid certification does not render
apprised of the issue of lack of signature in order for
it invalid;
them to present controverting evidence and
arguments on this point, as the issue only arose during
the course of the proceedings upon clarificatory 5. The appellate court erred when it invalidated the LDA
questions from the appellate court. Consequently, RP between SBMA and RP Energy for failure to comply
Energy cannot be faulted for submitting the certified withSection 59 of the IPRA Law. While we find that a
true copy of the ECC only after it learned that the ECC CNO should have been secured prior to the
had been invalidatedon the ground of lack of signature consummation of the LDA between SBMA and RP
in the January 30, 2013 Decision of the appellate court. Energy, considering that this is the first time we lay
The certified true copy of the ECC, bearing the down the rule of action appropriate to the application
signature of Mr. Aboitiz in the Statement of of Section 59, we refrain from invalidating the LDA for
Accountability portion, was issued by the DENR-EMB, reasons of equity;
and remains uncontroverted. It showed that the
Statement of Accountability was signed by Mr. Aboitiz 6. The appellate court erred when it ruled that
on December 24, 2008. Because the signing was done compliance with Section 27, in relation to Section 26,
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of the LGC (i.e., approval of the concerned sanggunian Authority and Redondo Peninsula
requirement) is necessary prior to issuance of the Energy, Inc. is upheld.
subjectECC. The issuance of an ECC does not, by itself,
result inthe implementation of the project. Hence, SO ORDERED.
there is no necessity to secure prior compliance with
the approval of the concerned sanggunian
requirement, and the issuance of the subject ECC
without first complying with the aforesaid requirement
does not render it invalid. The appellate court also EN BANC
erred when it ruled that compliance with the aforesaid
requirement is necessary prior to the consummation of April 12, 2016
the LDA. By virtue of the clear provisions of RA 7227,
the project is not subject to the aforesaid requirement G.R. No. 209165
and the SBMA’s decision to approve the project
prevails over the apparent objections of the concerned LNL ARCHIPELAGO MINERALS, INC., Petitioner,
sanggunians. Thus, the LDA entered into between vs.
SBMA and RP Energy suffers from no infirmity despite AGHAM PARTY LIST (represented by its President Rep.
the lack of approval of the concerned sanggunians; and Angelo B. Palmones), Respondent.

7. The appellate court correctly ruled thatthe issue as DECISION


to the validity of the third amendment to the ECC
cannot be resolved in this case because it was not one
CARPIO, J.:
of the issues set during the preliminary conference, and
would, thus, violate RP Energy’s right to due process.
WHEREFORE, the Court resolves to: The Case

1. DENY the Petition in G.R. No. 207282; and This is a petition for review on certiorari 1 assailing the Amended
Decision dated 13 September 20132 of the Court of Appeals in
2. GRANT the Petitions in G.R.Nos. 207257, CA-G.R. SP No. 00012.
207366 and 207276:
The Facts
2.1. The January 30, 2013 Decision
and May 22, 2013 Resolution of the Petitioner LNL Archipelago Minerals, Inc. (LAMI) is the operator
Court of Appeals in CA-G.R. SP No. of a mining claim located in Sta. Cruz, Zambales. LAMI’s mining
00015 are reversed and set aside; area is covered by Mineral Production Sharing Agreement3 No.
268-2008-III dated 26 August 2008 by virtue of an Operating
2.2. The Petition for Writ of Agreement4 dated 5 June 2007 with Filipinas Mining
Kalikasan, docketed as CA-G.R. SP Corporation.
No. 00015, is denied for insufficiency
of evidence; LAMI embarked on a project to build a private, non-commercial
port in Brgy. Bolitoc, Sta. Cruz, Zambales. A port is a vital
2.3. The validity of the December 22, infrastructure to the operations of a mining company to ship out
2008 Environmental Compliance ores and other minerals extracted from the mines and make the
Certificate, as well as the July 8, 2010 venture economically feasible. Brgy. Bolitoc, about 25 kilometers
first amendment and the May 26,
away from the mine site, makes it an ideal location to build a
2011 second amendment thereto,
port facility. In the area of Sta. Cruz, Shangfil Mining and Trading
issued by the Department of
Corporation (Shangfil)/A3Una Mining Corporation (A3Una) and
Environment and Natural Resources
in favor of Redondo Peninsula DMCI Mining Corporation, have been operating their own ports
Energy, Inc., are upheld; and since 2007.

2.4. The validity of the June 8, 2010 LAMI secured the following permits and compliance certificates
Lease and Development Agreement for the port project: (1) Department of Environment and Natural
between Subic Bay Metropolitan Resources (DENR) Environmental Compliance Certificate5 (ECC)
R03-1104-182 dated 2 May 2011 covering the development of

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causeway, stockpile and related facilities on LAMI’s property with Legislation, on the Implementation of Republic Act No. 7942,
an area of 18,142 sq.m.; (2) DENR provisional foreshore lease Otherwise Known as the Philippine Mining Act of 1995,
agreement with LAMI;6 (3) Philippine Particularly on the Adverse Effects of Mining on the
Environment." HR 117 was issued in order to conduct an alleged
Ports Authority (PPA) Clearance to Develop a Port;7 (4) PPA ocular inspection of the port site in aid of legislation. On 21 May
Permit to Construct a Port;8 (5) PPA Special Permit to Operate a 2012, the Committee on Ecology conducted an ocular inspection
Beaching Facility;9 and (6) Tree Cutting Permit/Certification10 of the LAMI port site, as well as the other ports adjacent to
from the Community Environment and Natural Resources Office LAMI’s – those of Shangfil/A3Una and D.M. Consunji, Inc. The
(CENRO) of the DENR. Committee allegedly never visited any mining site in the area of
Sta. Cruz.
The Zambales Alliance, a group of other mining companies
operating in Sta. Cruz, Zambales which do not have their own Meanwhile, on 30 April 2012, the DENR Environmental
port, namely Eramen Minerals, Inc.; Zambales Diversified Metals Management Bureau in Region III (DENR-EMB R3) received a
Corporation; Zambales Chromite Mining Corporation, Inc.; letter dated 27 April 2012 from Mayor Marty inquiring if the ECC
BenguetCorp Nickel Mines, Inc., supported the port project of the DENR issued in favor of LAMI allowed LAMI to cut trees and
LAMI and issued Letters11 of Intent to use the port facilities of level a mountain.
LAMI upon completion.
On 25 May 2012, representatives from the DENR Provincial
The Bolitoc community – the barangay, its officials and residents Environment and Natural Resources Office (PENRO) in Zambales
– gave several endorsements12 supporting the project. Even the and the local government of Sta. Cruz conducted an ECC
Sangguniang Bayan of Sta. Cruz gave its consent to the compliance monitoring of LAMI’s property. The DENR PENRO
construction of the port.13 team found that LAMI violated some of its conditions under the
ECC. Accordingly, a Notice of Violation (NOV) dated 1 June 2012
However, LAMI allegedly encountered problems from the local was issued against LAMI for violation of certain conditions of the
government of Sta. Cruz, headed by Mayor Luisito E. Marty ECC with a cease and desist order from further constructing and
(Mayor Marty). LAMI stated that Mayor Marty unduly favored developing until such time that the ECC conditions were fully
some mining companies in the municipality and allegedly complied.
refused to issue business and mayor’s permits and to receive
payment of occupation fees from other mining companies On 8 June 2012, a technical conference was held where LAMI
despite the necessary national permits and licenses secured by presented its reply to the NOV. The DENR-EMB R3 ascertained
the other mining companies. that LAMI’s violations of the four conditions of its ECC constitute
minor violations since they only pertain to non-submission of
On 24 April 2012, Mayor Marty issued an order14 directing LAMI documents. However, the leveling of the elevated portion of the
to refrain from continuing with its clearing works and directed area was a major violation. A penalty was consequently imposed
the Sta. Cruz Municipal Police Chief Generico Biñan to on LAMI, and the DENREMB R3 directed LAMI to (1) immediately
implement his order. On 26 April 2012, LAMI responded through cause the installation of mitigating measures to prevent soil
a letter15 explaining that Mayor Marty’s order was illegal and erosion and siltation of the waterbody, and (2) submit a
baseless. Chief Biñan, together with two of his deputies, went to rehabilitation plan.
LAMI’s port site to demand that LAMI cease its clearing works.
LAMI’s supervisor showed Chief Biñan all of LAMI’s permits. In a On 11 June 2012, LAMI wrote a letter17 to the DENR-EMB R3
Memorandum dated 3 May 2012, Chief Biñan made a report to regarding the commitments agreed upon during the technical
his supervisor, S/Supt. Francisco DB Santiago, Jr. (S/Supt. conference. LAMI signified compliance with the conditions of
Santiago), Zambales Police Provincial Director, that there was no DENR-EMB R3. Attached to the letter were: (1) Official Receipt of
leveling of a mountain on the port site. On 6 May 2012, S/Supt. payment of penalties under Presidential Decree (PD) No. 1586,
Santiago made a Special Report re: Police Assistance16 to the (2) Matrix of Mitigation and Rehabilitation Plan, (3) Designation
Philippine National Police (PNP) Regional Director citing the of Pollution Control Officer dated 6 May 2011, and (4) Tree
findings of Chief Biñan. Cutting Permit dated 17 April 2012 issued by DENR R3
CENRO.18
Thereafter, Rep. Dan Fernandez, a member of the Committee on
Ecology of the House of Representatives, passed House On 20-21 June 2012, the DENR composite team, composed of
Resolution No. 117 (HR 117) entitled "Resolution Directing the DENR-EMB R3, Mines and Geosciences Bureau (MGB) R3 and
Committee on Ecology to Conduct an Inquiry, in Aid of PENRO Zambales, conducted an investigation to determine

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whether mitigating measures done by LAMI were sufficient. The Mining Act is irrelevant and inapplicable to the present case; and
composite team found that LAMI’s activities in its property (7) the other allegations of Agham that LAMI violated
would not result to any environmental damage to its environmental laws, rules or regulations are likewise baseless,
surrounding communities. irrelevant and false. LAMI stated further that there is no
environmental damage of such magnitude as to prejudice the
Thereafter, the DENR-EMB R3 lifted the cease and desist order life, health, or property of inhabitants in two or more cities and
after LAMI was found to have complied with the requirements. provinces.
In a Letter19 dated 24 October 2012, Lormelyn E. Claudio (Dir.
Claudio), the Regional Director of DENR-EMB R3 wrote: Public respondents DENR, PPA and ZPPO, filed with the Court of
Appeals their Pre-Trial Brief dated 1 August 2012. In the Pre-Trial
xxxx Brief, public respondents stated that they will present the
following witnesses: (1) Dir. Claudio, Regional Director, DENR-
The violated ECC conditions have been rectified and clarified EMB R3; two from the PPA – (2) Engineer Marieta G. Odicta (Engr.
while the penalty corresponding to such violation was fully paid Odicta), Division Manager, Engineering Services Division, Port
and the required rehabilitation and mitigating measures were District Office, Manila, Northern Luzon; and (3) Emma L. Susara
already implemented as committed. As such, the matter leading (Ms. Susara), Department Manager, Commercial Services of the
to the issuance of the NOV is now resolved. PPA (NCR); and (4) S/Supt. Santiago, Provincial Director of the
ZPPO.
As ECC holder, you are enjoined to ensure the effective carrying
out of your Environmental Management and Monitoring Plan.20 The witnesses of public respondents submitted their Judicial
Affidavits dated 6 August 2012. The testimonies of the witnesses
Meanwhile, earlier, or on 6 June 2012, respondent Agham Party were offered to prove the facts and allegations in the petition:
List (Agham), through its President, former Representative
Angelo B. Palmones (Rep. Palmones), filed a Petition21 for the (1) Dir. Claudio30 –
issuance of a Writ22 of Kalikasan against LAMI, DENR, PPA, and
the Zambales Police Provincial Office (ZPPO). a) That the issues presented by Agham were already subject of
the complaint filed by Mayor Marty with the DENR-EMB R3;
Agham alleged that LAMI violated: (1) Section 6823 of PD No.
705,24 as amended by Executive Order No. 277,25 or the Revised b) That the DENR-EMB R3 issued an ECC to LAMI;
Forestry Code; and (2) Sections 5726 and 6927 of Republic Act
No. 7942,28 or the Philippine Mining Act of 1995 (Philippine c) That the DENR-EMB R3 acted on the complaint of Mayor
Mining Act). Agham added that LAMI cut mountain trees and Marty with regard to construction by LAMI of its port facility;
flattened a mountain which serves as a natural protective barrier
from typhoons and floods not only of the residents of Zambales d) That the DENR-EMB R3 issued a NOV dated 1 June 2012 to
but also the residents of some nearby towns located in LAMI;
Pangasinan.
e) That the DENR-CENRO issued a tree cutting permit to LAMI;
On 13 June 2012, this Court remanded the petition29 to the
Court of Appeals for hearing, reception of evidence and f) That there is no mountain within or inside the property of LAMI
rendition of judgment. in Brgy. Bolitoc, Sta. Cruz, Zambales;

On 25 June 2012, LAMI filed its Verified Return dated 21 June g) That the cutting of the trees and the partial leveling of a
2012, controverting Agham’s allegations. LAMI stated that it did landform (which is determined to be an "elongated mound" but
not and was not violating any environmental law, rule or is alleged to be a "mountain" by the petitioner) conducted by
regulation. LAMI argued that: LAMI in its property in Brgy. Bolitoc, Sta. Cruz, Zambales do not
pose adverse environmental impact on the adjoining
(1) LAMI had the necessary permits and authorization to cut communities more so to the larger areas or the entire provinces
trees in the port site; (2) LAMI had the necessary permits to of Zambales and Pangasinan.
construct its port; (3) LAMI consulted with and obtained the
support of the Sangguniang Barangay and residents of Barangay (2) Eng. Odicta31 –
Bolitoc; (4) LAMI’s port site is located on private and alienable
land; (5) there is no mountain on the port site; (6) the Philippine

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a) That the PPA issued a permit to construct to LAMI only after that the government, through the CENRO, authorized LAMI to
due application and submission of the required documents; cut trees and LAMI strictly followed the proper guidelines stated
in the permit. The appellate court also stated that there can be
b) That other private companies, namely: DMCI Mining no flattening of a mountain when there is no mountain to speak
Corporation and Shangfil/A3Una constructed port facilities of. Thus, for failing to comply with the requisites necessary for
along the Brgy. Bolitoc coastline and contiguous to where the the issuance of a Writ of Kalikasan, the Court of Appeals resolved
port facility of LAMI is located. to deny the petition. The dispositive portion of the Decision
states:
(3) Ms. Susara32 –
WHEREFORE, premises considered, the petition is hereby
a) That the PPA issued a clearance to develop and a permit to DENIED.
operate to LAMI only after due application and submission of
the required documents; SO ORDERED.38

b) That other private port facilities, namely: DMCI Mining Agham filed a Motion for Reconsideration with the Court of
Corporation, Shangfil/A3Una are operating along the Brgy. Appeals. In its Motion for Reconsideration, Agham argued that
Bolitoc coastline and contiguous to where the port facility of the alleged leveling of the subject hill by LAMI: (1) was not
LAMI is located; and sanctioned by the DENR since LAMI allegedly had no ECC from
the DENR; (2) affected the ecological balance of the affected
c) That since the 1970’s, the coastline along Brgy. Bolitoc, towns and provinces since such leveling was done without the
Municipality of Sta. Cruz, Zambales, has been the location of port concurrence of its residents; and (3) instigated the gradual
facilities necessary for mining operations in the province of eradication of the strip of land mass in Sta. Cruz, Zambales that
Zambales. serves as protective barrier from floods brought about by the
swelling or surging of the coastal water moving inward reaching
(4) S/Supt. Santiago33 – other towns of Zambales and Pangasinan.39

a) That the members and officials of the ZPPO did not violate, or On 4 February 2013, LAMI filed its Comment/Opposition to the
threaten with violation, petitioner’s right to a balanced and Motion for Reconsideration. Agham then filed its Reply dated 21
healthful ecology; February 2013.

b) That the members and officials of the ZPPO did not cover-up In a Resolution dated 6 March 2013, the Court of Appeals
any alleged illegal activity of LAMI; and declared that Agham’s Motion for Reconsideration was
submitted for resolution. Subsequently, Agham filed a
c) The contents of the Memorandum (Special Report re: Police Supplemental Reply dated 29 April 2013 reiterating the same
Assistance) dated 6 May 2012 submitted by S/Supt. Santiago to arguments.
the PNP Regional Director.
In a Resolution40 dated 31 May 2013, the Court of Appeals set
On 10 September 2012, Agham presented its first and only Agham’s Motion for Reconsideration for hearing on 13 June
witness, former Rep. Angelo B. Palmones. Rep. Palmones was 2013. At the hearing, all parties were given time to argue their
cross-examined by counsel for LAMI and counsel for public case. Thereafter, the Motion for Reconsideration was submitted
respondents DENR, PPA, and ZPPO.34 for resolution.

On 26 September 2012, public respondents presented their Agham then filed a Manifestation dated 17 June 2013
witnesses.35 summarizing its arguments. On 4 July 2013, LAMI filed a Motion
to Expunge with Ad Cautelam Comment/Opposition. On 11 July
On 28 September 2012, LAMI manifested that it was adopting 2013, the Court of Appeals, for the last and third time, submitted
the testimonies of the witnesses of the public respondents. On the Motion for Reconsideration for resolution.
the same hearing, LAMI presented its witness, Felipe E. Floria,
LAMI’s Vice-President and General Manager.36 In an Amended Decision dated 13 September 2013, the Court of
Appeals reversed and set aside its original Decision dated 23
In a Decision37 dated 23 November 2012, the Court of Appeals November 2012. The dispositive portion of the Decision states:
decided the case in favor of petitioner. The appellate court found

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WHEREFORE, in view of the foregoing, the Decision dated
November 23, 2012 is hereby RECONSIDERED and SET ASIDE Respondents, on the other hand, assert that even if the subject
and, in lieu thereof, another judgment is rendered GRANTING land formation is not a mound, hill or mountain, the fact remains
the petition for WRIT OF KALIKASAN as follows, to wit: that the scraping and leveling done by petitioner caused serious
environmental damage which affects not only the municipality
(1) respondent LNL Archipelago Minerals, Inc. (LAMI) is directed of Sta. Cruz, Zambales but also the nearby towns of Zambales
to PERMANENTLY CEASE and [DESIST] from scraping off the and Pangasinan.
land formation in question or from performing any activity/ies
in violation of environmental laws resulting in environmental The present case involves the extraordinary remedy of a Writ of
destruction or damage; Kalikasan which is under the Rules of Procedure for
Environmental Cases.42 Section 1, Rule 7, Part III of the said
(2) the respondent LAMI as well as the Secretary of Department Rules provides:
of Environment and Natural Resources and/or their
representatives are directed to PROTECT, PRESERVE, Section 1. Nature of the writ. – The writ is a remedy available to
REHABILITATE and/or RESTORE the subject land formation a natural or juridical person, entity authorized by law, people’s
including the plants and trees therein; organization, non-governmental organization, or any public
interest group accredited by or registered with any government
(3) the Secretary of DENR and/or his representative is directed agency, on behalf of persons whose constitutional right to a
to MONITOR strict compliance with the Decision and Orders of balanced and healthful ecology is violated, or threatened with
the Court; and make PERIODIC REPORTS on a monthly basis on violation by an unlawful act or omission of a public official or
the execution of the final judgment. employee, or private individual or entity, involving
environmental damage of such magnitude as to prejudice the
SO ORDERED.41 life, health or property of inhabitants in two or more cities or
provinces.
Hence, the instant petition.
The Writ of Kalikasan, categorized as a special civil action and
The Issues conceptualized as an extraordinary remedy,43 covers
environmental damage of such magnitude that will prejudice the
The issues for our resolution are (1) whether LAMI violated the life, health or property of inhabitants in two or more cities or
environmental laws as alleged by Agham, and (2) whether LAMI provinces. The writ is available against an unlawful act or
flattened any mountain and caused environmental damage of omission of a public official or employee, or private individual or
such magnitude as to prejudice the life, health or property of entity.
inhabitants in two or more cities or provinces.
The following requisites must be present to avail of this remedy:
The Court’s Ruling (1) there is an actual or threatened violation of the constitutional
right to a balanced and healthful ecology; (2) the actual or
Petitioner contends that it has the necessary permits and threatened violation arises from an unlawful act or omission of
authorization to cut trees on the port site, controverting the a public official or employee, or private individual or entity; and
allegation of Agham that it violated Section 68 of the Revised (3) the actual or threatened violation involves or will lead to an
Forestry Code, as amended. Petitioner also insists that it did not environmental damage of such magnitude as to prejudice the
violate nor is it violating the Mining Act as alleged by Agham. life, health or property of inhabitants in two or more cities or
Petitioner argues that it is not conducting any mining activity on provinces.
the port site since the mine site is about 25 kilometers away from
the port site. Further, petitioner adds that after filing its Verified In the present case, Agham, in its Petition for a Writ of Kalikasan,
Return dated 21 June 2012, Agham never mentioned again the cited two laws which LAMI allegedly violated: (1) Section 68 of
alleged violation of the Revised Forestry Code, as amended, and the Revised Forestry Code, as amended; and (2) Sections 57 and
the Philippine Mining Act. Instead, Agham changed its position 69 of the Philippine Mining Act.
and later claimed that LAMI was flattening a mountain on the
port site which was allegedly illegal per se. Petitioner insists that Section 68 of the Revised Forestry Code, as amended, states:
Agham did not even present evidence to establish any
environmental damage which is required for the issuance of the Sec. 68. Cutting, Gathering and/or collecting Timber, or Other
privilege of the Writ of Kalikasan. Forest Products Without License. Any person who shall cut,

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gather, collect, remove timber or other forest products from any 3. The other trees previously inventoried and are not directly
forest land, or timber from alienable or disposable public land, affected by the project within the same lot are spared; and
or from private land, without any authority, or possess timber or
other forest products without the legal documents as required 4. There are forty four (44) various species of miscellaneous trees
under existing forest laws and regulations, shall be punished counted and left with a computed volume of 6.04 cubic meters.
with the penalties imposed under Articles 309 and 310 of the
Revised Penal Code: Provided, That in the case of partnerships, Relative the above findings and in compliance with the terms
associations, or corporations, the officers who ordered the and conditions of the permit issued, the company should be
cutting, gathering, collection or possession shall be liable, and if reminded to replace the trees cut therein as specified in support
such officers are aliens, they shall, in addition to the penalty, be with the environmental enhancement program of the DENR.
deported without further proceedings on the part of the
Commission on Immigration and Deportation. xxxx

xxxx Since LAMI strictly followed the permit issued by the CENRO and
even passed the evaluation conducted after the issuance of the
There are two distinct and separate offenses punished under permit, then clearly LAMI had the authority to cut trees and did
Section 68 of PD 705: not violate Section 68 of the Revised Forestry Code, as amended.

(1) Cutting, gathering, collecting and removing timber or other Next, Agham submitted that LAMI allegedly violated Sections 57
forest products from any forest land, or timber from alienable or and 69 of the Philippine Mining Act.
disposable public land, or from private land without any
authorization; and Sections 57 and 69 of the Philippine Mining Act state:

(2) Possession of timber or other forest products without the Section 57. Expenditure for Community Development and
legal documents required under existing forest laws and Science and Mining Technology – A contractor shall assist in the
regulations.44 development of its mining community, the promotion of the
general welfare of its inhabitants, and the development of
In the present case, LAMI was given a Tree Cutting Permit45 by science and mining technology.
the CENRO dated 17 April 2012. In the permit, LAMI was allowed
to cut 37 trees with a total volume of 7.64 cubic meters within Section 69. Environmental Protection – Every contractor shall
the port site, subject to the condition that the trees cut shall be undertake an environmental protection and enhancement
replaced with a ratio of 1-30 fruit and non-bearing fruit trees. program covering the period of the mineral agreement or
Thereafter, the Forest Management Service and Forest permit. Such environmental program shall be incorporated in
Utilization Unit, both under the DENR, issued a Post Evaluation the work program which the contractor or permittee shall
Report46 dated 3 May 2012 stating that LAMI properly followed submit as an accompanying document to the application for a
the conditions laid down in the permit. The relevant portions of mineral agreement or permit. The work program shall include
the Post Evaluation Report state: not only plans relative to mining operations but also to
rehabilitation, regeneration, revegetation and reforestation of
x x x the following findings and observations are noted: mineralized areas, slope stabilization of mined-out and tailings
covered areas, aquaculture, watershed development and water
1. That the tree cutting implemented/conducted by the conservation; and socioeconomic development.
company was confined inside Lot No. 2999, Cad 316-D situated
at Barangay Bolitoc, Sta. Cruz, Zambales and within the area These two provisions are inapplicable to this case. First, LAMI is
previously granted for tree cutting; not conducting any mining activity on the port site. LAMI’s mine
site is about 25 kilometers away from the port site. Second, LAMI
2. It was found that the thirty seven (37) trees of various lesser- secured all the necessary permits and licenses for the
known species and fruit bearing trees with a total volume of 7.64 construction of a port and LAMI’s activity was limited to
cubic meters as specified in the permit were cut as subject trees preparatory works for the port’s construction. The Philippine
are located within the directly affected areas of the port facility Mining Act deals with mining operations and other mining
project of the company; activities. Sections 57 and 69 deal with the development of a
mining community and environmental protection covering a
mineral agreement or permit.

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that once such natural resources are damaged, the residents of
Here, Agham reasoned that LAMI was destroying the these two provinces will be defenseless and their life, health and
environment by cutting mountain trees and leveling a mountain properties will be at constant risk of being lost.
to the damage and detriment of the residents of Zambales and
the nearby towns of Pangasinan. Agham simply submitted a However, Agham, in accusing that LAMI allegedly flattened a
picture taken on 4 June 2012 where allegedly the backhoes mountain, did not cite any law allegedly violated by LAMI in
owned by LAMI were pushing the remnants of the mountain to relation to this claim. Agham did not present any proof to
the sea. demonstrate that the local residents in Zambales, and even the
nearby towns of Pangasinan, complained of any great danger or
This explanation, absent any concrete proof, is untenable. harm on the alleged leveling of the land formation which may
affect their lives, health or properties. Neither was there any
Clearly, Agham did not give proper justifications for citing evidence showing of a grave and real environmental damage to
Sections 57 and 69 of the Philippine Mining Act. Agham did not the barangay and the surrounding vicinity.
even present any evidence that LAMI violated the mining law or
any mining undertakings in relation to LAMI’s construction of a To belie Agham’s contentions, the records, from the testimonies
port facility. Agham only alleged in very general terms that LAMI of those experts in their fields, show that there is in fact no
was destroying the environment and leveling a mountain mountain in Brgy. Bolitoc, Sta. Cruz, Zambales.
without conducting any scientific studies or submitting expert
testimonies that would corroborate such allegations. First, in the Judicial Affidavit047 dated 6 August 2012, the
Regional Director of DENR EMB R3, Dir. Claudio, categorically
Section 2(c), Rule 7, Part III of the Rules of Procedure for declared that there is no mountain on LAMI’s property. The
Environmental Cases provides: relevant portions state:

Section 2. Contents of the petition. - The verified petition shall 32. Q: One of the complaints of Mayor Marty in his letter dated
contain the following: 27 April 2012, x x x, is that LAMI is "leveling a mountain" in its
property in Barangay Bolitoc, Sta. Cruz, Zambales. Is there really
(c) The environmental law, rule or regulation violated or a mountain in the property of LAMI in the said place?
threatened to be violated, the act or omission complained of,
and the environmental damage of such magnitude as to A: None, sir. The subject landform is not considered as a
prejudice the life, health or property of inhabitants in two or mountain based on commonly accepted description of a
more cities or provinces. mountain as having 300 meters to 2,500 meters height over
base. The highest elevation of the project area is 23 meters.
The Rules are clear that in a Writ of Kalikasan petitioner has the
burden to prove the (1) environmental law, rule or regulation 33. Q: Do you have any proof that the landform in LAMI’s
violated or threatened to be violated; (2) act or omission property is not a mountain?
complained of; and (3) the environmental damage of such
magnitude as to prejudice the life, health or property of A: Yes, sir. The Mines and Geosciences Bureau (MGB), Regional
inhabitants in two or more cities or provinces. Office No. III, through the OIC of the Geosciences Division,
issued a Memorandum dated June 26, 2012 proving that there
Even the Annotation to the Rules of Procedure for Environmental is no mountain in LAMI’s property. The proper description of the
Cases states that the magnitude of environmental damage is a landform, according to the said memorandum, is an "elongated
condition sine qua non in a petition for the issuance of a Writ of mound"48
Kalikasan and must be contained in the verified petition.
Second, LAMI, through the Judicial Affidavit49 dated 3 August
Agham, in failing to prove any violation of the Revised Forestry 2012 of Felipe E. Floria, LAMI’s Vice-President and General
Code, as amended, and the Philippine Mining Act, shifted its Manager, was able m to establish that Brgy. Bolitoc, Sta. Cruz
focus and then claimed that LAMI allegedly flattened or leveled had no mountain. The relevant portions provide:
a mountain.
126. Q: Why do you say that this elevated portion is not a
The mountain, according to Agham, serves as a natural "mountain"?
protective barrier from typhoons and floods to the residents of
Zambales and nearby towns of Pangasinan. Thus, Agham argues

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A: The port site where the alleged mountain is located is only 1.8 has an elevation of 23 meters above mean sea level more or less
hectares of alienable and disposable land. It is private property, x x x. The landform is about 16 meters higher than the barangay
lawfully possessed by LAMI, with the latter exercising rights road and nearby houses x x x.
based on its occupation thereof. The mound and/or ridge within
the private property is only about 23 meters high. The base or From the LAMI area, the landform continues eastwards to the
footing of the mound therein which the Petitioner insists is a DMCI and the Shangfil Port facilities and also westwards to the
mountain is only 1.5 hectares, and the height is approximately vicinity of Brgy. Bolitoc proper.
23 meters. I have been advised that a mountain, as described by
the United Nations Environment Programme – World 3. The area is underlain by interbedded calcareous sandstone,
Conservation Monitoring Centre ("UNEP-WCMC"), must be, at shale, and siltstone of the Cabaluan Formation (formerly
least, of a height greater than 300 meters or 984 feet in addition Zambales Formation), x x x. Rock outcrops show the sedimentary
to other requirements on slope and local elevation range. In sequence displaying almost horizontal to gently dipping beds
other countries, the United Kingdom for example, the minimum cut by a minor fault. These rocks weather into a 1-2 meter silty
height requirement is 2,000 ft or 609.6 meters.50 clay.

Third, several government entities and officials have declared DISCUSSION


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

Last, in an Inspection Report54 dated 26 June 2012, the Mines CONCLUSION


and Geosciences Bureau, Geosciences Division of the DENR
concluded that the "mountain" is only an elongated mound. The Based on the above geological and landform (geomorphic)
findings and conclusion of the report provide: classification, considering its elevation of 23 to 26 meters above
mean sea level and which is 16 meters above the barangay road
FINDINGS and vicinity, the elevated landform present in the LAMI port
facility is neither a hill or mountain. Its elevation of 16 meters
1. The Bolitoc LAMI Port Facility is approximately centered at the above its vicinity is lower than a hill (30 meters). Its height above
intersection of geographic coordinates 15°45’00.4" north its vicinity can be possibly categorized as a mound which is
latitude and 119°53’19.9" east longitude, x x x. It is bounded on defined by the Dictionary of Geological terms (1976) prepared
the north by the West Philippine Sea (Bolitoc Bay), on the west by the American Geological Institute as which defines a mound
and east by the continuation of the elevated landform, and to as "a low hill of earth, natural or artificial." In the United
the south by an unnamed creek and a concrete barangay road Kingdom, mounds are also called hillocks or knolls. The term
connecting the Brgy. Bolitoc to the Zambales National Highway. elongated is prefixed as a modifier to describe its east-west
disposition. Hence, the elevated landform of interest is
Brgy. Bolitoc also hosts the port facilities of the DMCI and the considered as elongated mound.55 (Emphasis supplied)
Shangfil Corporation both of which occupy the former loading
site of the defunct Acoje Mining Corporation. On the other hand, the lone witness of Agham, former Rep.
Palmones, admitted in the 10 September 2012 hearing
2. The landform of interest is characterized by a roughly east- conducted by the Court of Appeals that he was incompetent to
west trending elevated and elongated landmass. Within the prove that the elevated ground located in Brgy. Bolitoc is a
LAMI site, the elevated landform measures 164 meters in length mountain. The relevant portions56 of Rep. Palmones’ testimony
and about 94 meters in width and is almost parallel to the provide:
coastline. It has a maximum elevation located at its eastern end
of 26 meters above mean sea level more or less. Its western end

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Atty. Gallos: Mr. Congressman, you conducted an ocular and leveling done by petitioner caused serious environmental
inspection in Brgy. Bolitoc in Sta. Cruz, Zambales on May 21? damage which affects not only Sta. Cruz, Zambales but also the
nearby towns of Zambales and Pangasinan.
Cong. Palmones: Yes.
The Court of Appeals, in granting the Motion for
xxxx Reconsideration embodied in its Amended Decision dated 13
September 2013, held that what LAMI did was not to simply level
Atty. Gallos: That was the first time you were in Brgy. Bolitoc? the subject land formation but scrape and remove a small
mountain and, thereafter, reclaim a portion of the adjacent
Cong. Palmones: Yes. waters with the earth it took therefrom, making out of the soil
gathered to construct a seaport. The Court of Appeals stated
Atty. Gallos: That was also the first and the last ocular inspection that the scraping off or the cutting of the subject land formation
that you did so far in Brgy. Bolitoc? by LAMI would instigate the gradual eradication of the strip of
land mass in Brgy. Bolitoc which serves as protective barrier to
Cong. Palmones: Yes. floods brought about by the swelling or surging of the coastal
water moving inward reaching other towns of Zambales and
xxxx Pangasinan. The Court of Appeals added that the port site is
prone to frequent visits of tropical depression and that the
Atty. Gallos: What is the name of this mountain? coastal portions of the "Sta. Cruz Quadrangle – Zambales and
Pangasinan province" are touted to be highly susceptible to
Cong. Palmones: I really don’t know the name of the mountain, landslide and flooding.
Your Honor.
We do not subscribe to the appellate court’s view.
Atty. Gallos: What is the elevation or height of this mountain?
First, the Court of Appeals did not provide any basis, in fact and
Cong. Palmones: I really don’t know the elevation of that in law, to support the reversal of its original decision. Agham, in
mountain, Your Honors. its Motion for Reconsideration, did not present new evidence to
refute its claim that LAMI leveled a "mountain" or that there was
Atty. Gallos: What is the base of this mountain? an environmental damage of considerable significance that will
harm the life, health and properties of the residents of the
Cong. Palmones: I really don’t know, Your Honors. municipality of Sta. Cruz and its neighboring towns or cities, or
even the provinces of Zambales and Pangasinan. The pleadings
Atty. Tolentino: Your Honor, the witness is incompetent to and documents submitted by Agham were just a reiteration of
answer the questions. its original position before the original Court of Appeals’
decision was promulgated on 23 November 2012.
Cong. Palmones: I’m not competent to answer that question.
It is well-settled that a party claiming the privilege for the
Atty. Gallos: Your Honor, that’s exactly our point. He is claiming issuance of a Writ of Kalikasan has to show that a law, rule or
that there is a mountain but he cannot tell us the height, the regulation was violated or would be violated. In the present case,
slope, the elevation, the base, Your Honor. So you admit now the allegation by Agham that two laws – the Revised Forestry
that you do not know, you do not have the competence to state Code, as amended, and the Philippine Mining Act – were
whether or not there is a mountain? violated by LAMI was not adequately substantiated by Agham.
Even the facts submitted by Agham to establish environmental
Cong. Palmones: I really don’t know what is the technical damage were mere general allegations.
description of a mountain but based on the information that we
got from the community during the consultation it’s full of Second, Agham’s allegation that there was a "mountain" in
vegetation before it was leveled down by the operation, Your LAMI’s port site was earlier established as false as the
Honors. (Emphasis supplied) "mountain" was non-existent as proven by the testimonies of the
witnesses and reports made by environmental experts and
Agham, in its Motion for Reconsideration with the Court of persons who have been educated and trained in their respective
Appeals, then asserted that even if the subject land formation is fields.
not a mound, hill or mountain, the fact remains that the scraping

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Third, contrary to Agham’s claim that LAMI had no ECC from the LAMI is, to date, in compliance with its environmental
DENR, the DENR restored LAMI’s ECC. After LAMI was issued a commitments as required under the ECC and said Order.
Notice of Violation of its ECC dated 1 June 2012 by the DENR-
EMB R3, LAMI complied with all the requirements and its ECC In view thereof, the Committee would like to express its
had been reinstated. In the Letter57 dated 24 October 2012, Dir. appreciation for the apt and prompt action on the matter. We
Claudio wrote: expect that the subject company’s conformity to environmental
laws, as well as its activities’ impact on the environment, will
xxxx remain closely monitored and evaluated.

Regarding the alleged cutting of trees and leveling of the xxxx


mountain, we have verified that:
Last, the alleged scraping off or leveling of land at LAMI’s port
1. There is no illegal cutting of trees since a Tree Cutting Permit site is deemed insignificant to pose a detrimental impact on the
was issued by the Community Environment and Natural environment.
Resources Office (CENRO). Monitoring of the compliance with
the conditions of the said Permit was also undertaken by the Dir. Claudio testified at the hearing conducted by the Court of
CENRO; and Appeals on 26 September 2012 that the cut and fill operations
of LAMI only affected the port site but not the surrounding area
2. There is no leveling of a mountain. As certified by the Mines and that the environmental effect was only minimal and
and Geosciences Bureau Region 3, the landform in the area is an insignificant. The relevant portions of Dir. Claudio’s testimony
elongated mound which is 164 meters in length and 94 meters provide:
in width and its maximum elevation is 26 meters above mean
sea level. A/Sol. Chua Cheng: Madam Witness, you made mention that the
cut and fill operations involved the... or the causeway created
Further, we recognize your efforts in revegetating the exposed during the cut and fill operation is 82 meters in length and 8
side slopes of the cut portion of the mound and the construction meters in width. What is the overall environment effect of this
of drainage system and silt traps to prevent the siltation of the cut and fill operation in Barangay Bolitoc?
bay.
Dir. Claudio.: It is minimal, insignificant and temporary in nature,
The violated ECC conditions have been rectified and clarified Sir, because as I mentioned, only 11,580 cubic meters had been
while the penalty corresponding to such violation was fully paid stripped off and the tree cutting which had been issued with a
and the required rehabilitation and mitigating measures were permit is only less than about 37 trees based on the Post
already implemented as committed. As such, the matter leading Evaluation Report done by the CENRO, Sir.
to the issuance of the NOV is now resolved.
A/Sol. Chua Cheng: What about the effect of such cut and fill
As ECC holder, you are enjoined to ensure the effective carrying operations as regards the two provinces, Pangasinan and
out of your Environmental Management and Monitoring Plan. Zambales, does it have any effect or what is the extent of the
effect?
Even Rep. Dan S. Fernandez, the Chairman of the Committee on
Ecology of the House of Representatives, acknowledged that Dir. Claudio: It is just localized; it is just confined within the
LAMI had fully complied with its ECC conditions. In a Letter58 project area because we required them to put up the drainage
dated 26 February 2013 addressed to the DENR Secretary, Rep. system, the drainage, the canals and the siltation ponds and the
Fernandez wrote: laying of armour rocks for the sea wall and the construction of
causeway, Sir, to avoid erosion and sedimentation. We also
xxxx required them to rehabilitate the exposed slopes which they
already did.
On 21 February 2013, the Committee on Ecology received a
letter from Director Lormelyn E. Claudio, the Regional Director xxxx
for Region III of the Environment Management Bureau of the
DENR. The letter ascertains that, among other things, based on A/Sol. Chua Cheng: Only in the project area specifically located
the investigation and monitoring conducted led by Dir. Claudio, only in Brgy. Bolitoc?

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Dir. Claudio: Brgy. Bolitoc, Sta. Cruz, Zambales, Sir. It does not in Sierra Madre Range and the Zambales Range before reaching
any way affect or cannot affect the Province of Pangasinan as Zambales Province. Since the port is situated at the western
alleged, Sir.59 (Emphasis supplied) coastline of Zambales, it would be the last thing a typhoon
would pass by as it moves through Zambales.
Even the Geoscience Foundation, Inc., which conducted a
scientific study on the port site regarding the possible damage 4. The hill is too small to protect against the Southwest
to the environment from the construction of the port facility, Monsoon. The hill does not shield any area from the heavy rains
found that the landform was too small to protect against that batter the country during the Southwest Monsoon. It is too
typhoons, monsoons and floods due to heavy rains and storm small to alter the effect of the Southwest Monsoon in the way
surges. Its Report60 on the Topographical, Geomorphological that the Sierra Madre Range forces the Northwest Monsoon to
and Climatological Characterization of the LAMI Port undertaken rise over it and release much of its moisture as orographic
in September 2012 stated: precipitation on the windward side of the range such that the
leeward side is drier.
6.0 Findings in Relation to the Petition for Writ of Kalikasan
5. The hill is not in the right location to protect against flooding
xxxx due to heavy rains. The hill does not protect against the floods
that occur from heavy rains. Since Zambales regionally slopes
1. The LAMI Port is partly situated in a hill and not a mountain. down to the west, flood water during heavy rains will move from
The topographic and geologic maps of NAMRIA and the MGB east to west following the flow direction of rivers in the area.
do not show the presence of a mountain where the port is partly Flood water from the Zambales Range will inundate the coastal
located. The detailed topographic survey moreover indicates plain first before reaching the coastline where the hill is situated.
that this hill had an original elevation of 23 m.MSL in the portion Figure 11 depicts the flow direction of flood water in the
where it was excavated to 0accommodate the access road municipality.
leading to the wharf.
6. The hill is too small to protect against floods due to storm
Mountains attain much higher elevations than 23 m.MSL. surges. Storm surges appear as large waves that are caused by
Kendall et al. (1967), defines a mountain as having a height of at the pushing of the wind on the surface of the sea or ocean
least 900 meters and are usually characterized by a vertical during storm events. Since the hill has a present length of only
zonation of landscape and vegetation due to increasing 420 meters, it is too small to prevent flooding due to storm
elevations. surges.1âwphi1 The large waves will just skirt the hill and sweep
through the low-lying coastland to the west and east of the hill.
2. No leveling of a mountain was done. The construction of the
access road required a V-cut through the hill that lowered it from The hill shields against the direct impact of large, south-moving
23 m.MSL to 7.5 m.MSL. This elevation is still much higher than waves to several homes located immediately south of the hill.
the flat land surrounding the hill. The hill had an original length Since the V-cut of the access road is small compared to the rest
of 600 meters through which the V-cut, which has an average of the hill and terminates at a relatively high 7.5 m.MSL, this
width of 26.5 meters, was excavated. Only a small portion of the protection offered by the hill is not significantly diminished.61
hill was therefore altered.
Further, the DENR composite team, in its Report of
The topographic survey further reveals that the total volume of Investigation62 conducted on 20-21 June 2012 on LAMI’s port
earth material removed is 24,569 cubic meters, which would fit site to ensure that LAMI undertook mitigating measures in its
a room that has a length, width and height of 29 meters. This property, found that LAMI’s activities posed only a minimal or
amount of earth material does not constitute the volume of a insignificant impact to the environment. The relevant portions of
mountain. the Report state:

3. The hill is too small and not in the right location to protect Findings and Observations:
against typhoons. The hill cannot serve as a natural protective
barrier against typhoons in Zambales and some towns of The composite team gathered data and the following are the
Pangasinan because it is too small compared to the magnitude initial observations:
of typhoons. Typhoons approach the country from east and
move in a west to northwest direction through Zambales
Province as clarified in Figure 7. They are even able to cross the

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1. Site preparation which includes site grading/surface stripping,
low ridge cut and fill and reclamation works were observed to x x x x63 (Emphasis supplied)
have been undertaken within the project area;
Thus, from all the foregoing, we agree with the appellate court,
2. A total volume of approximately 11,580 cubic meters of soil in its original Decision dated 23 November 2012, when it denied
cut/stripped from low ridge was noted being used for causeway the petition for a Writ of Kalikasan:
construction. Part of the discarded soil with a volume of 5,843
cubic meters was already used for causeway preparation while As between the too general and very hypothetical allegation of
the remaining 5,735 cubic meters was noted still on stockpile large-scale environmental damage at one hand, and the remarks
area; of government experts on the other, We are inclined to give
more credit to the latter. Below is the further articulation of our
3. Discarded soil generated from ridge cut and fill consists of clay stance:
with sandstone and shale;
Presumption of regularity
4. The partial low ridge cut and fill poses minimal or insignificant
impact to the environment due to threats of storm surges, It is a legal presumption, born of wisdom and experience, that
strong winds and flooding because the protective natural official duty has been regularly performed. Therefore, the fact
barriers against northeast monsoon are the mountain ranges in that the "remarks and recommendation" of the composite team
the eastern part of Zambales and Pangasinan which are from EMB R3, MGB R3, and PENRO Zambales were made in the
geologically and historically effective as in the case of the exercise of their government function, the presumption of
adjoining and operational ports of the DMCI and Shang Fil. regularity in the performance of such official duty stands. It is
incumbent upon petitioner to prove otherwise, a task which it
5. The height of the low ridge is still maintained at an elevation failed to do here.
of 23.144 meters above sea level while the constructed access
road to the causeway has an elevation of 7.46 meters with a Expert findings are afforded great weight
width of 8 meters and length of 80-100 meters only.
The findings of facts of administrative bodies charged with their
Remarks and Recommendation: specific field of expertise, are afforded great weight by the
courts, and in the absence of substantial showing that such
The construction of the access road on the low ridge does not findings are made from an erroneous estimation of the evidence
pose adverse environmental impact to the adjoining presented, they are conclusive, and in the interest of stability of
communities more so to the larger areas or the entire province the governmental structure, should not be disturbed. x x x.64
of Zambales and Pangasinan.
In sum, contrary to the findings of the appellate court in its
It was determined as a result of our verification and based on Amended Decision dated 13 September 2013, we find that LAMI
the above findings supported with field GPS reading that there did not cause any environmental damage that prejudiced the
had been no leveling of the mountain undertaken in the project life, health or property of the inhabitants residing in the
site as there is no mountain existing inside the area covered by municipality of Sta. Cruz, the province of Zambales or in the
the ECC issued by EMB-Region 3. The landform claimed by neighboring province of Pangasinan. Agham, as the party that
Mayor Marty to be a mountain is actually an elongated low ridge has the burden to prove the requirements for the issuance of the
with a peak of approximately 23 meters above sea level which is privilege of the Writ ofKalikasan, failed to prove (1) the
located in a private land falling under Block 1, Alienable and environmental laws allegedly violated by LAMI; and (2) the
Disposable Land per LC Map 635 with Lot No. 2999 originally magnitude of the environmental damage allegedly caused by
owned by Mr. Severo Monsalud which was transferred to Sta. LAMI in the construction of LAMI' s port facility in Brgy. Bolitoc,
Cruz Mineral Port Corporation with a Contract of Lease with Sta. Cruz, Zambales and its surrounding area. Thus, the petition
LAMI (data provided by CENRO Masinloc through a for the issuance of the privilege of the Writ of Kalikasan must be
Memorandum dated June 4, 2012). The proponent (LAMI) only denied.
implemented road cutting of low ridge in the middle to make an
access way to the proposed marine loading facility. More so, tree WHEREFORE, we GRANT the petition. We REVERSE and SET
cutting done by LAMI is covered by a Permit to Cut issued by ASIDE the Amended Decision dated 13 September 2013 of the
DENR-Region 3-CENRO, Masinloc which is responsible for the Court of Appeals and REINSTATE AND AFFIRM the original
inventory and monitoring of cut trees. Decision dated 23 November 2012 of the Court of Appeals in

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CA-G.R. SP No. 00012 which DENIED the petition for the Chairperson, and cabinet secretaries as members of the Task
issuance of the privilege of the Writ of Kalikasan. Force. EO 774 expressed what is now referred to by the
petitioners as the "Road Sharing Principle." Its Section 9(a) reads:
SO ORDERED.
Section 9. Task Group on Fossil Fuels. - (a) To reduce the
consumption of fossil fuels, the Department of Transportation
and Communications (DOTC) shall lead a Task Group to reform
the transportation sector. The new paradigm in the movement
of men and things must follow a simple principle: "Those who
have less in wheels must have more in road." For this purpose,
the system shall favor nonmotorized locomotion and collective
transportation system (walking, bicycling, and the man-powered
mini-train).
En Banc
In 2009, AO 254 was issued, mandating the DOTC (as lead
March 7, 2017 agency for the Task Group on Fossil Fuels or TGFF) to formulate
a national Environmentally Sustainable Transport Strategy (EST)
G.R. No. 211010 for the Philippines. The Road Sharing Principle is similarly
mentioned, thus:
VICTORIA SEGOVIA, vs THE CLIMATE CHANGE
COMMISSION, D E C I S I O N SECTION 4. Functions of the TGFF- In addition to the functions
provided in EO 774, the TGFF shall initiate and pursue the
CAGUIOA, J.: formulation of the National EST Strategy for the Philippines.

This is a petition for the issuance of writs of kalikasan and Specifically, the TGFF shall perform the following functions:
continuing mandamus to compel the implementation of the
following environmental laws and executive issuances - Republic (a) Reform the transport sector to reduce the consumption of
Act No. (RA) 97291 (Climate Change Act), and RA 87492 (Clean fossil fuels. The new paradigm in the movement of men and
Air Act); Executive Order No. 7743 (BO 774); AO 254, s. 20094 things must follow a simple principle: "Those who have less in
(AO 254); and Administrative Order No. 171, s. 20075 (AO 171). wheels must have more in road." For this purpose, the system
shall favor non-motorized locomotion and collective
Accordingly, the Petitioners seek to compel: (a) the public transportation system (walking, bicycling, and the manpowered
respondents to: (1) implement the Road Sharing Principle in all mini-train).
roads; (2) divide all roads lengthwise, one-half (½) for all-
weather sidewalk and bicycling, the other half for Filipino-made xxxx
transport vehicles; (3) submit a time-bound action plan to
implement the Road Sharing Principle throughout the country; Later that same year, Congress passed the Climate Change Act.
(b) the Office of the President, Cabinet officials and public It created the Climate Change Commission which absorbed the
employees of Cabinet members to reduce their fuel functions of the PTFCC and became the lead policy-making body
consumption by fifty percent (50%) and to take public of the government which shall be tasked to coordinate, monitor
transportation fifty percent (50%) of the time; (c) Public and evaluate the programs and action plans of the government
respondent DPWH to demarcate and delineate the road right- relating to climate change.7
of-way in all roads and sidewalks; and (d) Public respondent
DBM to instantly release funds for Road Users' Tax.6 Herein petitioners wrote respondents regarding their pleas for
implementation of the Road Sharing Principle, demanding the
The Facts reform of the road and transportation system in the whole
country within thirty (30) days from receipt of the said letter -
To address the clamor for a more tangible response to climate foremost, through the bifurcation of roads and the reduction of
change, Former President Gloria Macapagal-Arroyo issued AO official and government fuel consumption by fifty percent
171 which created the Presidential Task Force on Climate (50%).8 Claiming to have not received a response, they filed this
Change (PTFCC) on February 20, 2007. This body was petition.
reorganized through BO 774, which designated the President as

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The Petition respondents are guilty of an unlawful act or omission; state the
environmental law/s violated; show environmental damage of
Petitioners are Carless People of the Philippines, parents, such magnitude as to prejudice the life, health or property of
representing their children, who in turn represent "Children of inhabitants of two or more cities; and prove that non-
the Future, and Car-owners who would rather not have cars if implementation of Road Sharing Principle will cause
good public transportation were safe, convenient, accessible, environmental damage. Respondents likewise assert that
available, and reliable". They claim that they are entitled to the petitioners are similarly not entitled to a
issuance of the extraordinary writs due to the alleged failure and
refusal of respondents to perform an act mandated by Continuing Mandamus because: (a) there is no showing of a
environmental laws, and violation of environmental laws direct or personal injury or a clear legal right to the thing
resulting in environmental damage of such magnitude as to demanded; (b) the writ will not compel a discretionary act or
prejudice the life, health and property of all Filipinos.9 anything not in a public officer's duty to do (i.e. the manner by
which the Road Sharing Principle will be applied; and to compel
These identified violations10 include: (a) The government's DA to exercise jurisdiction over roadside lands); and (c) DBM
violation of "atmospheric trust" as provided under Article XI, cannot be compelled to make an instant release of funds as the
Section 1 of the Constitution, and thoughtless extravagance in same requires an appropriation made by law (Article VI, Section
the midst of acute public want under Article 25 of the Civil Code 29[1] of the Constitution) and the use of the Road Users' Tax
for failure to reduce personal and official consumption of fossil (more appropriately, the Motor Vehicle Users' Charge) requires
fuels by at least fifty percent (50%); (b) DOTC and DPWH's failure prior approval of the Road Board.18
to implement the Road Sharing Principle under EO 774; (c) DA's
failure to devote public open spaces along sidewalks, roads and In any event, respondents denied the specific violations alleged
parking lots to sustainable urban farming as mandated by in the petition, stating that they have taken and continue to take
Section 12(b)11 f EO 774; (d) DILG's failure to coordinate with measures to improve the traffic situation in Philippine roads and
local government units (LGUs) to guide them on the Road to improve the environment condition - through projects and
Sharing Principle under Section 9(g)12 of EO 774; (e) DENR's programs such as: priority tagging of expenditures for climate
failure to reduce air pollutant emissions; and lastly, (f) DBM's change adaptation and mitigation, the Integrated Transport
failure to make available Road Users' Tax for purposes stated in System which is aimed to decongest major thoroughfares, Truck
Section 9(e)13 of EO 774. Ban, Anti-Smoke Belching Campaign, Anti-Colorum, Mobile Bike
Service Programs, and Urban Re-Greening Programs. These
In gist, petitioners contend that respondents' failure to projects are individually and jointly implemented by the public
implement the foregoing laws and executive issuances resulted respondents to improve the traffic condition and mitigate the
in the continued degradation of air quality, particularly in Metro effects of motorized vehicles on the environment.19 Contrary to
Manila, in violation of the petitioners' constitutional right to a petitioners' claims, public respondents assert that they consider
balanced and healthful ecology,14 and may even be tantamount the impact of the transport sector on the environment, as shown
to deprivation of life, and of life sources or "land, water, and air" in the Philippine National Implementation Plan on Environment
by the government without due process of law.15 They also Improvement in the Transport Sector which targets air pollution
decry the "unequal" protection of laws in the prevailing scheme, improvement actions, greenhouse gases emission mitigation,
claiming that ninety-eight percent (98%) of Filipinos are and updating of noise pollution standards for the transport
discriminated against by the law when the car-owning two sector.
percent (2%) is given almost all of the road space and while large
budgets are allocated for construction and maintenance of In response, petitioner filed their Reply, substantially reiterating
roads, hardly any budget is given for sidewalks, bike lanes and the arguments they raised in the Petition.
non-motorized transportation systems.16
ISSUES
Respondents, through the Office of the Solicitor General, filed
their Comment seeking the outright dismissal of the petition for From the foregoing submissions, the main issues for resolution
lack of standing and failure to adhere to the doctrine of are:
hierarchy of courts.17 Moreover, respondents argue that
petitioners are not entitled to the reliefs prayed for. 1. Whether or not the petitioners have standing to file the
petition;
Specifically, respondents assert that petitioners are not entitled
to a writ of kalikasan because they failed to show that the public

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2. Whether or not the petition should be dismissed for failing to provinces. It is designed for a narrow but special purpose: to
adhere to the doctrine of hierarchy of courts; and accord a stronger protection for environmental rights, aiming,
among others, to provide a speedy and effective resolution of a
3. Whether or not a writ of Kalikasan and/or Continuing case involving the violation of one's constitutional right to a
Mandamus should issue. healthful and balanced ecology that transcends political and
territorial boundaries, and to address the potentially exponential
RULING nature of large-scale ecological threats.32 At the very least, the
magnitude of the ecological problems contemplated under the
The petition must be dismissed. RPEC satisfies at least one of the exceptions to the rule on
hierarchy of courts, as when direct resort is allowed where it is
Procedural Issues dictated by public welfare.1âwphi1 Given that the RPEC allows
direct resort to this Court,33 it is ultimately within the Court's
Citing Section 1, Rule 7 of the Rules of Procedure for discretion whether or not to accept petitions brought directly
Environmental Cases20 (RPEC), respondents argue that the before it.
petitioners failed to show that they have the requisite standing
to file the petition, being representatives of a rather amorphous Requisites for issuance of Writs of
sector of society and without a concrete interest or injury.21 Kalikasan and Continuing
Petitioners counter that they filed the suit as citizens, taxpayers, Mandamus
and representatives; that the rules on standing had been relaxed
following the decision in Oposa v. Factoran;22 and that, in any We find that the petitioners failed to establish the requisites for
event, legal standing is a procedural technicality which the Court the issuance of the writs prayed for.
may set aside in its discretion.23
For a writ of kalikasan to issue, the following requisites must
The Court agrees with the petitioners' position. The RPEC did concur:
liberalize the requirements on standing, allowing the filing of
citizen's suit for the enforcement of rights and obligations under 1. there is an actual or threatened violation of the constitutional
environmental laws.24 This has been confirmed by this Court's right to a balanced and healthful ecology;
rulings in Arigo v. Swift,25 and International Service for the
Acquisition of Agri-BioTech Applications, Inc. v. Greenpeace 2. the actual or threatened violation arises from an unlawful act
Southeast Asia (Philippines).26 However, it bears noting that or omission of a public official or employee, or private individual
there is a difference between a petition for the issuance of a writ or entity; and
of kalikasan, wherein it is sufficient that the person filing
represents the inhabitants prejudiced by the environmental 3. the actual or threatened violation involves or will lead to an
damage subject of the writ;27 and a petition for the issuance of environmental damage of such magnitude as to prejudice the
a writ of continuing mandamus, which is only available to one life, health or property of inhabitants in two or more cities or
who is personally aggrieved by the unlawful act or omission. 28 provinces.34

Respondents also seek the dismissal of the petition on the It is well-settled that a party claiming the privilege for the
ground that the petitioners failed to adhere to the doctrine of issuance of a writ of kalikasan has to show that a law, rule or
hierarchy of courts, reasoning that since a petition for the regulation was violated or would be violated.35
issuance of a writ of kalikasan must be filed with the Supreme
Court or with any of the stations of the Court of Appeals,29 then In this case, apart from repeated invocation of the constitutional
the doctrine of hierarchy of courts is applicable.30 Petitioners, right to health and to a balanced and healthful ecology and bare
on the other hand, cite the same provision and argue that direct allegations that their right was violated, the petitioners failed to
recourse to this Court is available, and that the provision shows show that public respondents are guilty of any unlawful act or
that the remedy to environmental damage should not be limited omission that constitutes a violation of the petitioners' right to
to the territorial jurisdiction of the lower courts.31 a balanced and healthful ecology.

The respondents' argument does not persuade. Under the RPEC, While there can be no disagreement with the general
the writ of kalikasan is an extraordinary remedy covering propositions put forth by the petitioners on the correlation of air
environmental damage of such magnitude that will prejudice the quality and public health, petitioners have not been able to show
life, health or property of inhabitants in two or more cities or that respondents are guilty of violation or neglect of

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environmental laws that causes or contributes to bad air quality. unlawfully neglects the performance of an act which the law
Notably, apart from bare allegations, petitioners were not able specifically enjoins as a duty resulting from an office, trust or
to show that respondents failed to execute any of the laws station in connection with the enforcement or violation of an
petitioners cited. In fact, apart from adducing expert testimony environmental law rule or regulation or a right therein, or
on the adverse effects of air pollution on public health, the unlawfully excludes another from the use or enjoyment of such
petitioners did not go beyond mere allegation in establishing right and there is no other plain, speedy and adequate remedy
the unlawful acts or omissions on the part of the public in the ordinary course of law, the person aggrieved thereby may
respondents that have a causal link or reasonable connection to file a verified petition in the proper court, alleging the facts with
the actual or threatened violation of the constitutional right to a certainty, attaching thereto supporting evidence, specifying that
balanced and healthful ecology of the magnitude contemplated the petition concerns an environmental law, rule or regulation,
under the Rules, as required of petitions of this nature.36 and praying that judgment be rendered commanding the
respondent to do an act or series of acts until the judgment is
Moreover, the National Air Quality Status Report for 2005-2007 fully satisfied, and to pay damages sustained by the petitioner
(NAQSR) submitted by the petitioners belies their claim that the by reason of the malicious neglect to perform the duties of the
DENR failed to reduce air pollutant emissions - in fact, the respondent, under the law, rules or regulations. The petition
NAQSR shows that the National Ambient Total Suspended shall also contain a sworn certification of non-forum shopping.
Particulates (TSP) value used to determine air quality has steadily
declined from 2004 to 2007,37 and while the values still exceed First, the petitioners failed to prove direct or personal injury
the air quality guideline value, it has remained on this same arising from acts attributable to the respondents to be entitled
downward trend until as recently as 2011.38 to the writ.1âwphi1 While the requirements of standing had
been liberalized in environmental cases, the general rule of real
On the other hand, public respondents sufficiently showed that party-in-interest applies to a petition for continuing
they did not unlawfully refuse to implement or neglect the laws, mandamus.41
executive and administrative orders as claimed by the
petitioners. Projects and programs that seek to improve air Second, the Road Sharing Principle is precisely as it is
quality were undertaken by the respondents, jointly and in denominated - a principle. It cannot be considered an absolute
coordination with stakeholders, such as: priority tagging of imposition to encroach upon the province of public respondents
expenditures for climate change adaptation and mitigation, the to determine the manner by which this principle is applied or
Integrated Transport System which is aimed to decongest major considered in their policy decisions. Mandamus lies to compel
thoroughfares, Truck Ban, Anti-Smoke Belching Campaign, Anti- the performance of duties that are purely ministerial in nature,
Colorum, Mobile Bike Service Programs, and Urban Re-Greening not those that are discretionary,42 and the official can only be
Programs. directed by mandamus to act but not to act one way or the
other. The duty being enjoined in mandamus must be one
In fact, the same NAQSR submitted by the petitioners show that according to the terms provided in the law itself. Thus, the
the DENR was, and is, taking concrete steps to improve national recognized rule is that, in the performance of an official duty or
air quality, such as information campaigns, free emission testing act involving discretion, the corresponding official can only be
to complement the anti-smoke-belching program and other directed by mandamus to act, but not to act one way or the
programs to reduce emissions from industrial smokestacks and other.43
from open burning of waste.39 The efforts of local governments
and administrative regions in conjunction with other · executive This Court cannot but note that this is precisely the thrust of the
agencies and stakeholders are also outlined.40 petition - to compel the respondents to act one way to
implement the Road Sharing Principle - to bifurcate all roads in
Similarly, the writ of continuing mandamus cannot issue. the country to devote half to sidewalk and bicycling, and the
other to Filipino-made transport - when there is nothing in EO
Rule 8, Section 1 of the RPEC lays down the requirements for a 774, AO 254 and allied issuances that require that specific course
petition for continuing mandamus as follows: of action in order to implement the same. Their good intentions
notwithstanding, the petitioners cannot supplant the executive
RULES department's discretion with their own through this petition for
WRIT OF CONTINUING MANDAMUS the issuance of writs of kalikasan and continuing mandamus.

SECTION 1. Petition for continuing mandamus.-When any In this case, there is no showing of unlawful neglect on the part
agency or instrumentality of the government or officer thereof of the respondents to perform any act that the law specifically

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enjoins as a duty - there being nothing in the executive issuances petitioner do not rise to the level of law that can supplant the
relied upon by the petitioners that specifically enjoins the provisions of RA 8794 that require the approval of the Road
bifurcation of roads to implement the Road Sharing Principle. To Board for the use of the monies in the trust fund. In other words,
the opposite, the respondents were able to show that they were the provisions on the release of funds by the DBM as provided
and are actively implementing projects and programs that seek in EO 774 and AO 254 are necessarily subject to the conditions
to improve air quality.1âwphi1 set forth in RA 8794. Notably, RA 9729, as amended by RA 10174,
provides for the establishment for the People's Survival Fund46
At its core, what the petitioners are seeking to compel is not the that may be tapped for adaptation activities, which similarly
performance of a ministerial act, but a discretionary act - the require approval from the PSF Board.47
manner of implementation of the Road Sharing Principle.
Clearly, petitioners' preferred specific course of action (i.e. the That notwithstanding, the claim made by the petitioners that
bifurcation of roads to devote for all-weather sidewalk and hardly any budget is allotted to mitigating environmental
bicycling and Filipino-made transport vehicles) to implement the pollution is belied by the priority given to programs aimed at
Road Sharing Principle finds no textual basis in law or executive addressing and mitigating climate change that the DBM and the
issuances for it to be considered an act enjoined by law as a duty, CCC had been tagging and tracking as priority expenditures
leading to the necessary conclusion that the continuing since 2013.48 With the coordination of the DILG, this priority
mandamus prayed for seeks not the implementation of an tagging and tracking is cascaded down to the local budget
environmental law, rule or regulation, but to control the exercise management of local government units.49
of discretion of the executive as to how the principle enunciated
in an executive issuance relating to the environment is best Other causes of action
implemented. Clearly, the determination of the means to be
taken by the executive in implementing or actualizing any stated As previously discussed, the petitioners' failure to show any
legislative or executive policy relating to the environment violation on the part of the respondents renders it unnecessary
requires the use of discretion. Absent a showing that the to rule on other allegations of violation that the petitioners rely
executive is guilty of "gross abuse of discretion, manifest upon as causes of action against the public respondents.
injustice or palpable excess of authority,"44 the general rule
applies that discretion cannot be checked via this petition for In fine, the allegations and supporting evidence in the petition
continuing mandamus. Hence, the continuing mandamus fall short in showing an actual or threatened violation of the
cannot issue.1âwphi1 petitioners' constitutional right to a balanced and healthful
ecology arising from an unlawful act or omission by, or any
Road Users' Tax unlawful neglect on the part of, the respondents that would
warrant the issuance of the writs prayed for.
Finally, petitioners seek to compel DBM to release the Road
Users' Tax to fund the reform of the road and transportation WHEREFORE, the petition is DISMISSED.
system and the implementation of the Road Sharing Principle.
SO ORDERED.
It bears clarifying that the Road Users' Tax mentioned in Section
9(e) of EO 774, apparently reiterated in Section 5 of AO 254 is
the Special Vehicle Pollution Control Fund component of the
Motor Vehicle Users' . Charge ("MVUC') imposed on owners of
motor vehicles in RA 8794, otherwise known as the Road Users'
Tax Law. By the express provisions of the aforementioned law, EN BANC
the amounts in the special trust accounts of the MVUC are
earmarked solely and used exclusively (1) for road maintenance G.R. No. 206510 September 16, 2014
and the improvement of the road drainage, (2) for the
installation of adequate and efficient traffic lights and road MOST REV. PEDRO D. ARIGO, vs.
safety devices, and (3) for the air pollution control, and their SCOTT H. SWIFT
utilization are subject to the management of the Road Board.45
Verily, the petitioners' demand for the immediate and unilateral DECISION
release of the Road Users' Tax by the DBM to support the
petitioners' operationalization of this Road Sharing Principle has VILLARAMA, JR, J.:
no basis in law. The executive issuances relied upon by the

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Before us is a petition for the issuance of a Writ of Kalikasan with The USS Guardian is an Avenger-class mine countermeasures
prayer for the issuance of a Temporary Environmental Protection ship of the US Navy. In December 2012, the US Embassy in the
Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC, otherwise Philippines requested diplomatic clearance for the said vessel
known as the Rules of Procedure for Environmental Cases "to enter and exit the territorial waters of the Philippines and to
(Rules), involving violations of environmental laws and arrive at the port of Subic Bay for the purpose of routine ship
regulations in relation to the grounding of the US military ship replenishment, maintenance, and crew liberty."4 On January 6,
USS Guardian over the Tubbataha Reefs. 2013, the ship left Sasebo, Japan for Subic Bay, arriving on
January 13, 2013 after a brief stop for fuel in Okinawa,
Factual Background Japan.1âwphi1

The name "Tubbataha" came from the Samal (seafaring people On January 15, 2013, the USS Guardian departed Subic Bay for
of southern Philippines) language which means "long reef its next port of call in Makassar, Indonesia. On January 17, 2013
exposed at low tide." Tubbataha is composed of two huge coral at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground
atolls - the north atoll and the south atoll - and the Jessie Beazley on the northwest side of South Shoal of the Tubbataha Reefs,
Reef, a smaller coral structure about 20 kilometers north of the about 80 miles east-southeast of Palawan. No cine was injured
atolls. The reefs of Tubbataha and Jessie Beazley are considered in the incident, and there have been no reports of leaking fuel
part of Cagayancillo, a remote island municipality of Palawan.1 or oil.

In 1988, Tubbataha was declared a National Marine Park by On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral
virtue of Proclamation No. 306 issued by President Corazon C. Scott Swift, expressed regret for the incident in a press
Aquino on August 11, 1988. Located in the middle of Central statement.5 Likewise, US Ambassador to the Philippines Harry K.
Sulu Sea, 150 kilometers southeast of Puerto Princesa City, Thomas, Jr., in a meeting at the Department of Foreign Affairs
Tubbataha lies at the heart of the Coral Triangle, the global (DFA) on February 4, "reiterated his regrets over the grounding
center of marine biodiversity. incident and assured Foreign Affairs Secretazy Albert F. del
Rosario that the United States will provide appropriate
In 1993, Tubbataha was inscribed by the United Nations compensation for damage to the reef caused by the ship."6 By
Educational Scientific and Cultural Organization (UNESCO) as a March 30, 2013, the US Navy-led salvage team had finished
World Heritage Site. It was recognized as one of the Philippines' removing the last piece of the grounded ship from the coral reef.
oldest ecosystems, containing excellent examples of pristine
reefs and a high diversity of marine life. The 97,030-hectare On April 1 7, 2013, the above-named petitioners on their behalf
protected marine park is also an important habitat for and in representation of their respective sector/organization and
internationally threatened and endangered marine species. others, including minors or generations yet unborn, filed the
UNESCO cited Tubbataha's outstanding universal value as an present petition agairtst Scott H. Swift in his capacity as
important and significant natural habitat for in situ conservation Commander of the US 7th Fleet, Mark A. Rice in his capacity as
of biological diversity; an example representing significant on- Commanding Officer of the USS Guardian and Lt. Gen. Terry G.
going ecological and biological processes; and an area of Robling, US Marine Corps Forces, Pacific and Balikatan 2013
exceptional natural beauty and aesthetic importance.2 Exercises Co-Director ("US respondents"); President Benigno S.
Aquino III in his capacity as Commander-in-Chief of the Armed
On April 6, 2010, Congress passed Republic Act (R.A.) No. Forces of the Philippines (AFP), DF A Secretary Albert F. Del
10067,3 otherwise known as the "Tubbataha Reefs Natural Park Rosario, Executive Secretary Paquito Ochoa, Jr., Secretary
(TRNP) Act of 2009" "to ensure the protection and conservation Voltaire T. Gazmin (Department of National Defense), Secretary
of the globally significant economic, biological, sociocultural, Jesus P. Paje (Department of Environment and Natural
educational and scientific values of the Tubbataha Reefs into Resources), Vice-Admiral Jose Luis M. Alano (Philippine Navy
perpetuity for the enjoyment of present and future generations." Flag Officer in Command, AFP), Admiral Rodolfo D. Isorena
Under the "no-take" policy, entry into the waters of TRNP is (Philippine Coast Guard Commandant), Commodore Enrico
strictly regulated and many human activities are prohibited and Efren Evangelista (Philippine Coast Guard-Palawan), and Major
penalized or fined, including fishing, gathering, destroying and General Virgilio 0. Domingo (AFP Commandant), collectively the
disturbing the resources within the TRNP. The law likewise "Philippine respondents."
created the Tubbataha Protected Area Management Board
(TPAMB) which shall be the sole policy-making and permit- The Petition
granting body of the TRNP.

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Petitioners claim that the grounding, salvaging and post- 3. After due proceedings, render a Decision which shall include,
salvaging operations of the USS Guardian cause and continue to without limitation:
cause environmental damage of such magnitude as to affect the
provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros a. Order Respondents Secretary of Foreign Affairs, following the
Occidental, Negros Oriental, Zamboanga del Norte, Basilan, dispositive portion of Nicolas v. Romulo, "to forthwith negotiate
Sulu, and Tawi-Tawi, which events violate their constitutional with the United States representatives for the appropriate
rights to a balanced and healthful ecology. They also seek a agreement on [environmental guidelines and environmental
directive from this Court for the institution of civil, administrative accountability] under Philippine authorities as provided in Art.
and criminal suits for acts committed in violation of V[] of the VFA ... "
environmental laws and regulations in connection with the
grounding incident. b. Direct Respondents and appropriate agencies to commence
administrative, civil, and criminal proceedings against erring
Specifically, petitioners cite the following violations committed officers and individuals to the full extent of the law, and to make
by US respondents under R.A. No. 10067: unauthorized entry such proceedings public;
(Section 19); non-payment of conservation fees (Section 21 );
obstruction of law enforcement officer (Section 30); damages to c. Declare that Philippine authorities may exercise primary and
the reef (Section 20); and destroying and disturbing resources exclusive criminal jurisdiction over erring U.S. personnel under
(Section 26[g]). Furthermore, petitioners assail certain provisions the circumstances of this case;
of the Visiting Forces Agreement (VFA) which they want this
Court to nullify for being unconstitutional. d. Require Respondents to pay just and reasonable
compensation in the settlement of all meritorious claims for
The numerous reliefs sought in this case are set forth in the final damages caused to the Tubbataha Reef on terms and conditions
prayer of the petition, to wit: WHEREFORE, in view of the no less severe than those applicable to other States, and
foregoing, Petitioners respectfully pray that the Honorable damages for personal injury or death, if such had been the case;
Court: 1. Immediately issue upon the filing of this petition a
Temporary Environmental Protection Order (TEPO) and/or a Writ e. Direct Respondents to cooperate in providing for the
of Kalikasan, which shall, in particular, attendance of witnesses and in the collection and production of
evidence, including seizure and delivery of objects connected
a. Order Respondents and any person acting on their behalf, to with the offenses related to the grounding of the Guardian;
cease and desist all operations over the Guardian grounding
incident; f. Require the authorities of the Philippines and the United States
to notify each other of the disposition of all cases, wherever
b. Initially demarcating the metes and bounds of the damaged heard, related to the grounding of the Guardian;
area as well as an additional buffer zone;
g. Restrain Respondents from proceeding with any purported
c. Order Respondents to stop all port calls and war games under restoration, repair, salvage or post salvage plan or plans,
'Balikatan' because of the absence of clear guidelines, duties, including cleanup plans covering the damaged area of the
and liability schemes for breaches of those duties, and require Tubbataha Reef absent a just settlement approved by the
Respondents to assume responsibility for prior and future Honorable Court;
environmental damage in general, and environmental damage
under the Visiting Forces Agreement in particular. h. Require Respondents to engage in stakeholder and LOU
consultations in accordance with the Local Government Code
d. Temporarily define and describe allowable activities of and R.A. 10067;
ecotourism, diving, recreation, and limited commercial activities
by fisherfolk and indigenous communities near or around the i. Require Respondent US officials and their representatives to
TRNP but away from the damaged site and an additional buffer place a deposit to the TRNP Trust Fund defined under Section
zone; 17 of RA 10067 as a bona .fide gesture towards full reparations;

2. After summary hearing, issue a Resolution extending the TEPO j. Direct Respondents to undertake measures to rehabilitate the
until further orders of the Court; areas affected by the grounding of the Guardian in light of
Respondents' experience in the Port Royale grounding in 2009,
among other similar grounding incidents;

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responsibility of the US Government as regards the damage to
k. Require Respondents to regularly publish on a quarterly basis the Tubbataha Reefs rests exdusively with the executive branch.
and in the name of transparency and accountability such
environmental damage assessment, valuation, and valuation The Court's Ruling
methods, in all stages of negotiation;
As a preliminary matter, there is no dispute on the legal standing
l. Convene a multisectoral technical working group to provide of petitioners to file the present petition.
scientific and technical support to the TPAMB;
Locus standi is "a right of appearance in a court of justice on a
m. Order the Department of Foreign Affairs, Department of given question."10 Specifically, it is "a party's personal and
National Defense, and the Department of Environment and substantial interest in a case where he has sustained or will
Natural Resources to review the Visiting Forces Agreement and sustain direct injury as a result" of the act being challenged, and
the Mutual Defense Treaty to consider whether their provisions "calls for more than just a generalized grievance."11 However,
allow for the exercise of erga omnes rights to a balanced and the rule on standing is a procedural matter which this Court has
healthful ecology and for damages which follow from any relaxed for non-traditional plaintiffs like ordinary citizens,
violation of those rights; taxpayers and legislators when the public interest so requires,
such as when the subject matter of the controversy is of
n. Narrowly tailor the provisions of the Visiting Forces transcendental importance, of overreaching significance to
Agreement for purposes of protecting the damaged areas of society, or of paramount public interest.12
TRNP;
In the landmark case of Oposa v. Factoran, Jr.,13 we recognized
o. Declare the grant of immunity found in Article V ("Criminal the "public right" of citizens to "a balanced and healthful
Jurisdiction") and Article VI of the Visiting Forces Agreement ecology which, for the first time in our constitutional history, is
unconstitutional for violating equal protection and/or for solemnly incorporated in the fundamental law." We declared
violating the preemptory norm of nondiscrimination that the right to a balanced and healthful ecology need not be
incorporated as part of the law of the land under Section 2, written in the Constitution for it is assumed, like other civil and
Article II, of the Philippine Constitution; polittcal rights guaranteed in the Bill of Rights, to exist from the
inception of mankind and it is an issue of transcendental
p. Allow for continuing discovery measures; importance with intergenerational implications.1âwphi1 Such
right carries with it the correlative duty to refrain from impairing
q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs the environment.14
in all other respects; and
On the novel element in the class suit filed by the petitioners
4. Provide just and equitable environmental rehabilitation minors in Oposa, this Court ruled that not only do ordinary
measures and such other reliefs as are just and equitable under citizens have legal standing to sue for the enforcement of
the premises.7 (Underscoring supplied.) environmental rights, they can do so in representation of their
own and future generations. Thus:
Since only the Philippine respondents filed their comment8 to
the petition, petitioners also filed a motion for early resolution Petitioners minors assert that they represent their generation as
and motion to proceed ex parte against the US respondents.9 well as generations yet unborn. We find no difficulty in ruling
that they can, for themselves, for others of their generation and
Respondents' Consolidated Comment for the succeeding generations, file a class suit. Their personality
to sue in behalf of the succeeding generations can only be based
In their consolidated comment with opposition to the on the concept of intergenerational responsibility insofar as the
application for a TEPO and ocular inspection and production right to a balanced and healthful ecology is concerned. Such a
orders, respondents assert that: ( 1) the grounds relied upon for right, as hereinafter expounded, considers the "rhythm and
the issuance of a TEPO or writ of Kalikasan have become fait harmony of nature." Nature means the created world in its
accompli as the salvage operations on the USS Guardian were entirety. Such rhythm and harmony indispensably include, inter
already completed; (2) the petition is defective in form and alia, the judicious disposition, utilization, management, renewal
substance; (3) the petition improperly raises issues involving the and conservation of the country's forest, mineral, land, waters,
VFA between the Republic of the Philippines and the United fisheries, wildlife, off-shore areas and other natural resources to
States of America; and ( 4) the determination of the extent of the end that their exploration, development and utilization be

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equitably accessible to the present a:: well as future generations. in the local jurisdiction, the added inhibition is expressed in the
Needless to say, every generation has a responsibility to the next maxim par in parem, non habet imperium. All states are
to preserve that rhythm and harmony for the full 1:njoyment of sovereign equals and cannot assert jurisdiction over one
a balanced and healthful ecology. Put a little differently, the another. A contrary disposition would, in the language of a
minors' assertion of their right to a sound environment celebrated case, "unduly vex the peace of nations." [De Haber v.
constitutes, at the same time, the performance of their Queen of Portugal, 17 Q. B. 171]
obligation to ensure the protection of that right for the
generations to come.15 (Emphasis supplied.) While the doctrine appears to prohibit only suits against the
state without its consent, it is also applicable to complaints filed
The liberalization of standing first enunciated in Oposa, insofar against officials of the state for acts allegedly performed by them
as it refers to minors and generations yet unborn, is now in the discharge of their duties. The rule is that if the judgment
enshrined in the Rules which allows the filing of a citizen suit in against such officials will require the state itself to perform an
environmental cases. The provision on citizen suits in the Rules affirmative act to satisfy the same,. such as the appropriation of
"collapses the traditional rule on personal and direct interest, on the amount needed to pay the damages awarded against them,
the principle that humans are stewards of nature."16 the suit must be regarded as against the state itself although it
has not been formally impleaded. [Garcia v. Chief of Staff, 16
Having settled the issue of locus standi, we shall address the SCRA 120] In such a situation, the state may move to dismiss the
more fundamental question of whether this Court has comp.taint on the ground that it has been filed without its
jurisdiction over the US respondents who did not submit any consent.19 (Emphasis supplied.)
pleading or manifestation in this case.
Under the American Constitution, the doctrine is expressed in
The immunity of the State from suit, known also as the doctrine the Eleventh Amendment which reads:
of sovereign immunity or non-suability of the State,17 is
expressly provided in Article XVI of the 1987 Constitution which The Judicial power of the United States shall not be construed
states: to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or
Section 3. The State may not be sued without its consent. by Citizens or Subjects of any Foreign State.

In United States of America v. Judge Guinto,18 we discussed the In the case of Minucher v. Court of Appeals,20 we further
principle of state immunity from suit, as follows: expounded on the immunity of foreign states from the
jurisdiction of local courts, as follows:
The rule that a state may not be sued without its consent, now ·
expressed in Article XVI, Section 3, of the 1987 Constitution, is The precept that a State cannot be sued in the courts of a foreign
one of the generally accepted principles of international law that state is a long-standing rule of customary international law then
we have adopted as part of the law of our land under Article II, closely identified with the personal immunity of a foreign
Section 2. x x x. sovereign from suit and, with the emergence of democratic
states, made to attach not just to the person of the head of state,
Even without such affirmation, we would still be bound by the or his representative, but also distinctly to the state itself in its
generally accepted principles of international law under the sovereign capacity. If the acts giving rise to a suit arc those of a
doctrine of incorporation. Under this doctrine, as accepted by foreign government done by its foreign agent, although not
the majority of states, such principles are deemed incorporated necessarily a diplomatic personage, but acting in his official
in the law of every civilized state as a condition and consequence capacity, the complaint could be barred by the immunity of the
of its membership in the society of nations. Upon its admission foreign sovereign from suit without its consent. Suing a
to such society, the state is automatically obligated to comply representative of a state is believed to be, in effect, suing the
with these principles in its relations with other states. state itself. The proscription is not accorded for the benefit of an
individual but for the State, in whose service he is, under the
As applied to the local state, the doctrine of state immunity is maxim -par in parem, non habet imperium -that all states are
based on the justification given by Justice Holmes that ''there soverr~ign equals and cannot assert jurisdiction over one
can be no legal right against the authority which makes the law another. The implication, in broad terms, is that if the judgment
on which the right depends." [Kawanakoa v. Polybank, 205 U.S. against an official would rec 1uire the state itself to perform an
349] There are other practical reasons for the enforcement of the affirmative act to satisfy the award, such as the appropriation of
doctrine. In the case of the foreign state sought to be impleaded the amount needed to pay the damages decreed against him,

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the suit must be regarded as being against the state itself, of his rights, is not a suit against the State within the rule of
although it has not been formally impleaded.21 (Emphasis immunity of the State from suit. In the same tenor, it has been
supplied.) said that an action at law or suit in equity against a State officer
or the director of a State department on the ground that, while
In the same case we also mentioned that in the case of claiming to act for the State, he violates or invades the personal
diplomatic immunity, the privilege is not an immunity from the and property rights of the plaintiff, under an unconstitutional act
observance of the law of the territorial sovereign or from or under an assumption of authority which he does not have, is
ensuing legal liability; it is, rather, an immunity from the exercise not a suit against the State within the constitutional provision
of territorial jurisdiction.22 that the State may not be sued without its consent." The
rationale for this ruling is that the doctrine of state immunity
In United States of America v. Judge Guinto,23 one of the cannot be used as an instrument for perpetrating an injustice.
consolidated cases therein involved a Filipino employed at Clark
Air Base who was arrested following a buy-bust operation xxxx
conducted by two officers of the US Air Force, and was
eventually dismissed from his employment when he was The aforecited authorities are clear on the matter. They state that
charged in court for violation of R.A. No. 6425. In a complaint for the doctrine of immunity from suit will not apply and may not
damages filed by the said employee against the military officers, be invoked where the public official is being sued in his private
the latter moved to dismiss the case on the ground that the suit and personal capacity as an ordinary citizen. The cloak of
was against the US Government which had not given its consent. protection afforded the officers and agents of the government
The RTC denied the motion but on a petition for certiorari and is removed the moment they are sued in their individual
prohibition filed before this Court, we reversed the RTC and capacity. This situation usually arises where the public official
dismissed the complaint. We held that petitioners US military acts without authority or in excess of the powers vested in him.
officers were acting in the exercise of their official functions It is a well-settled principle of law that a public official may be
when they conducted the buy-bust operation against the liable in his personal private capacity for whatever damage he
complainant and thereafter testified against him at his trial. It may have caused by his act done with malice and in bad faith,
follows that for discharging their duties as agents of the United or beyond the scope of his authority or jurisdiction.26 (Emphasis
States, they cannot be directly impleaded for acts imputable to supplied.) In this case, the US respondents were sued in their
their principal, which has not given its consent to be sued. official capacity as commanding officers of the US Navy who had
control and supervision over the USS Guardian and its crew. The
This traditional rule of State immunity which exempts a State alleged act or omission resulting in the unfortunate grounding
from being sued in the courts of another State without the of the USS Guardian on the TRNP was committed while they
former's consent or waiver has evolved into a restrictive doctrine we:re performing official military duties. Considering that the
which distinguishes sovereign and governmental acts (Jure satisfaction of a judgment against said officials will require
imperil") from private, commercial and proprietary acts (Jure remedial actions and appropriation of funds by the US
gestionis). Under the restrictive rule of State immunity, State government, the suit is deemed to be one against the US itself.
immunity extends only to acts Jure imperii. The restrictive The principle of State immunity therefore bars the exercise of
application of State immunity is proper only when the jurisdiction by this Court over the persons of respondents Swift,
proceedings arise out of commercial transactions of the foreign Rice and Robling.
sovereign, its commercial activities or economic affairs.24
During the deliberations, Senior Associate Justice Antonio T.
In Shauf v. Court of Appeals,25 we discussed the limitations of Carpio took the position that the conduct of the US in this case,
the State immunity principle, thus: when its warship entered a restricted area in violation of R.A. No.
10067 and caused damage to the TRNP reef system, brings the
It is a different matter where the public official is made to matter within the ambit of Article 31 of the United Nations
account in his capacity as such for acts contrary to law and Convention on the Law of the Sea (UNCLOS). He explained that
injurious to the rights of plaintiff. As was clearly set forth by while historically, warships enjoy sovereign immunity from suit
JustiGe Zaldivar in Director of the Bureau of as extensions of their flag State, Art. 31 of the UNCLOS creates
Telecommunications, et al. vs. Aligaen, etc., et al. : "Inasmuch as an exception to this rule in cases where they fail to comply with
the State authorizes only legal acts by its officers, unauthorized the rules and regulations of the coastal State regarding passage
acts of government officials or officers are not acts of the State, through the latter's internal waters and the territorial sea.
and an action against the officials or officers by one whose rights
have been invaded or violated by such acts, for the protection

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According to Justice Carpio, although the US to date has not Responsibility of the flag State for damage caused by a warship
ratified the UNCLOS, as a matter of long-standing policy the US
considers itself bound by customary international rules on the or other government ship operated for non-commercial
"traditional uses of the oceans" as codified in UNCLOS, as can purposes
be gleaned from previous declarations by former Presidents
Reagan and Clinton, and the US judiciary in the case of United The flag State shall bear international responsibility for any loss
States v. Royal Caribbean Cruise Lines, Ltd.27 or damage to the coastal State resulting from the non-
compliance by a warship or other government ship operated for
The international law of the sea is generally defined as "a body non-commercial purposes with the laws and regulations of the
of treaty rules arid customary norms governing the uses of the coastal State concerning passage through the territorial sea or
sea, the exploitation of its resources, and the exercise of with the provisions of this Convention or other rules of
jurisdiction over maritime regimes. It is a branch of public international law.
international law, regulating the relations of states with respect
to the uses of the oceans."28 The UNCLOS is a multilateral treaty Article 32
which was opened for signature on December 10, 1982 at Immunities of warships and other government ships operated
Montego Bay, Jamaica. It was ratified by the Philippines in 1984 for non-commercial purposes
but came into force on November 16, 1994 upon the submission
of the 60th ratification. With such exceptions as are contained in subsection A and in
articles 30 and 31, nothing in this Convention affects the
The UNCLOS is a product of international negotiation that seeks immunities of warships and other government ships operated
to balance State sovereignty (mare clausum) and the principle of for non-commercial purposes. (Emphasis supplied.) A foreign
freedom of the high seas (mare liberum).29 The freedom to use warship's unauthorized entry into our internal waters with
the world's marine waters is one of the oldest customary resulting damage to marine resources is one situation in which
principles of international law.30 The UNCLOS gives to the the above provisions may apply. But what if the offending
coastal State sovereign rights in varying degrees over the warship is a non-party to the UNCLOS, as in this case, the US?
different zones of the sea which are: 1) internal waters, 2)
territorial sea, 3) contiguous zone, 4) exclusive economic zone, An overwhelming majority - over 80% -- of nation states are now
and 5) the high seas. It also gives coastal States more or less members of UNCLOS, but despite this the US, the world's
jurisdiction over foreign vessels depending on where the vessel leading maritime power, has not ratified it.
is located.31
While the Reagan administration was instrumental in UNCLOS'
Insofar as the internal waters and territorial sea is concerned, the negotiation and drafting, the U.S. delegation ultimately voted
Coastal State exercises sovereignty, subject to the UNCLOS and against and refrained from signing it due to concerns over deep
other rules of international law. Such sovereignty extends to the seabed mining technology transfer provisions contained in Part
air space over the territorial sea as well as to its bed and XI. In a remarkable, multilateral effort to induce U.S.
subsoil.32 membership, the bulk of UNCLOS member states cooperated
over the succeeding decade to revise the objection.able
In the case of warships,33 as pointed out by Justice Carpio, they provisions. The revisions satisfied the Clinton administration,
continue to enjoy sovereign immunity subject to the following which signed the revised Part XI implementing agreement in
exceptions: 1994. In the fall of 1994, President Clinton transmitted UNCLOS
and the Part XI implementing agreement to the Senate
Article 30 requesting its advice and consent. Despite consistent support
Non-compliance by warships with the laws and regulations of from President Clinton, each of his successors, and an
the coastal State ideologically diverse array of stakeholders, the Senate has since
withheld the consent required for the President to
If any warship does not comply with the laws and regulations of internationally bind the United States to UNCLOS.
the coastal State concerning passage through the territorial sea
and disregards any request for compliance therewith which is While UNCLOS cleared the Senate Foreign Relations Committee
made to it, the coastal State may require it to leave the territorial (SFRC) during the 108th and 110th Congresses, its progress
sea immediately. continues to be hamstrung by significant pockets of political
ambivalence over U.S. participation in international institutions.
Article 31 Most recently, 111 th Congress SFRC Chairman Senator John

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Kerry included "voting out" UNCLOS for full Senate recognized the rights of coastal states to conserve and manage
consideration among his highest priorities. This did not occur, the natural resources in this Zone.35
and no Senate action has been taken on UNCLOS by the 112th
Congress.34 We fully concur with Justice Carpio's view that non-membership
in the UNCLOS does not mean that the US will disregard the
Justice Carpio invited our attention to the policy statement given rights of the Philippines as a Coastal State over its internal waters
by President Reagan on March 10, 1983 that the US will and territorial sea. We thus expect the US to bear "international
"recognize the rights of the other , states in the waters off their responsibility" under Art. 31 in connection with the USS
coasts, as reflected in the convention [UNCLOS], so long as the Guardian grounding which adversely affected the Tubbataha
rights and freedom of the United States and others under reefs. Indeed, it is difficult to imagine that our long-time ally and
international law are recognized by such coastal states", and trading partner, which has been actively supporting the
President Clinton's reiteration of the US policy "to act in a country's efforts to preserve our vital marine resources, would
manner consistent with its [UNCLOS] provisions relating to shirk from its obligation to compensate the damage caused by
traditional uses of the oceans and to encourage other countries its warship while transiting our internal waters. Much less can we
to do likewise." Since Article 31 relates to the "traditional uses of comprehend a Government exercising leadership in
the oceans," and "if under its policy, the US 'recognize[s] the international affairs, unwilling to comply with the UNCLOS
rights of the other states in the waters off their coasts,"' Justice directive for all nations to cooperate in the global task to protect
Carpio postulates that "there is more reason to expect it to and preserve the marine environment as provided in Article 197,
recognize the rights of other states in their internal waters, such viz:
as the Sulu Sea in this case."
Article 197
As to the non-ratification by the US, Justice Carpio emphasizes Cooperation on a global or regional basis
that "the US' refusal to join the UN CLOS was centered on its
disagreement with UN CLOS' regime of deep seabed mining States shall cooperate on a global basis and, as appropriate, on
(Part XI) which considers the oceans and deep seabed commonly a regional basis, directly or through competent international
owned by mankind," pointing out that such "has nothing to do organizations, in formulating and elaborating international rules,
with its [the US'] acceptance of customary international rules on standards and recommended practices and procedures
navigation." consistent with this Convention, for the protection and
preservation of the marine environment, taking into account
It may be mentioned that even the US Navy Judge Advocate characteristic regional features.
General's Corps publicly endorses the ratification of the
UNCLOS, as shown by the following statement posted on its In fine, the relevance of UNCLOS provisions to the present
official website: controversy is beyond dispute. Although the said treaty upholds
the immunity of warships from the jurisdiction of Coastal States
The Convention is in the national interest of the United States while navigating the.latter's territorial sea, the flag States shall
because it establishes stable maritime zones, including a be required to leave the territorial '::;ea immediately if they flout
maximum outer limit for territorial seas; codifies innocent the laws and regulations of the Coastal State, and they will be
passage, transit passage, and archipelagic sea lanes passage liable for damages caused by their warships or any other
rights; works against "jurisdictiomtl creep" by preventing coastal government vessel operated for non-commercial purposes
nations from expanding their own maritime zones; and reaffirms under Article 31.
sovereign immunity of warships, auxiliaries anJ government
aircraft. Petitioners argue that there is a waiver of immunity from suit
found in the VFA. Likewise, they invoke federal statutes in the US
xxxx under which agencies of the US have statutorily waived their
immunity to any action. Even under the common law tort claims,
Economically, accession to the Convention would support our petitioners asseverate that the US respondents are liable for
national interests by enhancing the ability of the US to assert its negligence, trespass and nuisance.
sovereign rights over the resources of one of the largest
continental shelves in the world. Further, it is the Law of the Sea We are not persuaded.
Convention that first established the concept of a maritime
Exclusive Economic Zone out to 200 nautical miles, and The VFA is an agreement which defines the treatment of United
States troops and personnel visiting the Philippines to promote

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"common security interests" between the US and the Philippines (b) Directing the respondent public official, govemment agency,
in the region. It provides for the guidelines to govern such visits private person or entity to protect, preserve, rehabilitate or
of military personnel, and further defines the rights of the United restore the environment;
States and the Philippine government in the matter of criminal
jurisdiction, movement of vessel and aircraft, importation and (c) Directing the respondent public official, government agency,
exportation of equipment, materials and supplies.36 The private person or entity to monitor strict compliance with the
invocation of US federal tort laws and even common law is thus decision and orders of the court;
improper considering that it is the VF A which governs disputes
involving US military ships and crew navigating Philippine waters (d) Directing the respondent public official, government agency,
in pursuance of the objectives of the agreement. or private person or entity to make periodic reports on the
execution of the final judgment; and
As it is, the waiver of State immunity under the VF A pertains
only to criminal jurisdiction and not to special civil actions such (e) Such other reliefs which relate to the right of the people to a
as the present petition for issuance of a writ of Kalikasan. In fact, balanced and healthful ecology or to the protection,
it can be inferred from Section 17, Rule 7 of the Rules that a preservation, rehabilitation or restoration of the environment,
criminal case against a person charged with a violation of an except the award of damages to individual petitioners.
environmental law is to be filed separately: (Emphasis supplied.)

SEC. 17. Institution of separate actions.-The filing of a petition We agree with respondents (Philippine officials) in asserting that
for the issuance of the writ of kalikasan shall not preclude the this petition has become moot in the sense that the salvage
filing of separate civil, criminal or administrative actions. operation sought to be enjoined or restrained had already been
accomplished when petitioners sought recourse from this Court.
In any case, it is our considered view that a ruling on the But insofar as the directives to Philippine respondents to protect
application or non-application of criminal jurisdiction provisions and rehabilitate the coral reef stn icture and marine habitat
of the VF A to US personnel who may be found responsible for adversely affected by the grounding incident are concerned,
the grounding of the USS Guardian, would be premature and petitioners are entitled to these reliefs notwithstanding the
beyond the province of a petition for a writ of Kalikasan. We also completion of the removal of the USS Guardian from the coral
find it unnecessary at this point to determine whether such reef. However, we are mindful of the fact that the US and
waiver of State immunity is indeed absolute. In the same vein, Philippine governments both expressed readiness to negotiate
we cannot grant damages which have resulted from the violation and discuss the matter of compensation for the damage caused
of environmental laws. The Rules allows the recovery of by the USS Guardian. The US Embassy has also declared it is
damages, including the collection of administrative fines under closely coordinating with local scientists and experts in assessing
R.A. No. 10067, in a separate civil suit or that deemed instituted the extent of the damage and appropriate methods of
with the criminal action charging the same violation of an rehabilitation.
environmental law.37
Exploring avenues for settlement of environmental cases is not
Section 15, Rule 7 enumerates the reliefs which may be granted proscribed by the Rules. As can be gleaned from the following
in a petition for issuance of a writ of Kalikasan, to wit: provisions, mediation and settlement are available for the
consideration of the parties, and which dispute resolution
SEC. 15. Judgment.-Within sixty (60) days from the time the methods are encouraged by the court, to wit:
petition is submitted for decision, the court shall render
judgment granting or denying the privilege of the writ of RULE3
kalikasan.
xxxx
The reliefs that may be granted under the writ are the following:
SEC. 3. Referral to mediation.-At the start of the pre-trial
(a) Directing respondent to permanently cease and desist from conference, the court shall inquire from the parties if they have
committing acts or neglecting the performance of a duty in settled the dispute; otherwise, the court shall immediately refer
violation of environmental laws resulting in environmental the parties or their counsel, if authorized by their clients, to the
destruction or damage; Philippine Mediation Center (PMC) unit for purposes of
mediation. If not available, the court shall refer the case to the
clerk of court or legal researcher for mediation.

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Management Office, appropriate Philippine government
Mediation must be conducted within a non-extendible period of entities, non-governmental organizations, and scientific experts
thirty (30) days from receipt of notice of referral to mediation. from Philippine universities."39

The mediation report must be submitted within ten (10) days A rehabilitation or restoration program to be implemented at
from the expiration of the 30-day period. the cost of the violator is also a major relief that may be obtained
under a judgment rendered in a citizens' suit under the Rules,
SEC. 4. Preliminary conference.-If mediation fails, the court will viz:
schedule the continuance of the pre-trial. Before the scheduled
date of continuance, the court may refer the case to the branch RULES
clerk of court for a preliminary conference for the following
purposes: SECTION 1. Reliefs in a citizen suit.-If warranted, the court may
grant to the plaintiff proper reliefs which shall include the
(a) To assist the parties in reaching a settlement; protection, preservation or rehabilitation of the environment
and the payment of attorney's fees, costs of suit and other
xxxx litigation expenses. It may also require the violator to submit a
program of rehabilitation or restoration of the environment, the
SEC. 5. Pre-trial conference; consent decree.-The judge shall put costs of which shall be borne by the violator, or to contribute to
the parties and their counsels under oath, and they shall remain a special trust fund for that purpose subject to the control of the
under oath in all pre-trial conferences. court.1âwphi1

The judge shall exert best efforts to persuade the parties to In the light of the foregoing, the Court defers to the Executive
arrive at a settlement of the dispute. The judge may issue a Branch on the matter of compensation and rehabilitation
consent decree approving the agreement between the parties in measures through diplomatic channels. Resolution of these
accordance with law, morals, public order and public policy to issues impinges on our relations with another State in the
protect the right of the people to a balanced and healthful context of common security interests under the VFA. It is settled
ecology. that "[t]he conduct of the foreign relations of our government is
committed by the Constitution to the executive and legislative-
xxxx "the political" --departments of the government, and the
propriety of what may be done in the exercise of this political
SEC. 10. Efforts to settle.- The court shall endeavor to make the power is not subject to judicial inquiry or decision."40
parties to agree to compromise or settle in accordance with law
at any stage of the proceedings before rendition of judgment. On the other hand, we cannot grant the additional reliefs prayed
(Underscoring supplied.) for in the petition to order a review of the VFA and to nullify
certain immunity provisions thereof.
The Court takes judicial notice of a similar incident in 2009 when
a guided-missile cruiser, the USS Port Royal, ran aground about As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec.
half a mile off the Honolulu Airport Reef Runway and remained Zamora,41 the VFA was duly concurred in by the Philippine
stuck for four days. After spending $6.5 million restoring the Senate and has been recognized as a treaty by the United States
coral reef, the US government was reported to have paid the as attested and certified by the duly authorized representative
State of Hawaii $8.5 million in settlement over coral reef damage of the United States government. The VF A being a valid and
caused by the grounding.38 binding agreement, the parties are required as a matter of
international law to abide by its terms and provisions.42 The
To underscore that the US government is prepared to pay present petition under the Rules is not the proper remedy to
appropriate compensation for the damage caused by the USS assail the constitutionality of its provisions. WHEREFORE, the
Guardian grounding, the US Embassy in the Philippines has petition for the issuance of the privilege of the Writ of Kalikasan
announced the formation of a US interdisciplinary scientific team is hereby DENIED.
which will "initiate discussions with the Government of the
Philippines to review coral reef rehabilitation options in No pronouncement as to costs.
Tubbataha, based on assessments by Philippine-based marine
scientists." The US team intends to "help assess damage and SO ORDERED.
remediation options, in coordination with the Tubbataha

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forms and as responsible stewards of God's Creations."1 They
EN BANC use Oposa v. Factoran, Jr.2 as basis for their claim, asserting their
right to enforce international and domestic environmental laws
G.R. No. 180771 April 21, 2015 enacted for their benefit under the concept of stipulation pour
autrui.3 As the representatives of Resident Marine Mammals, the
RESIDENT MARINE MAMMALS OF THE PROTECTED human petitioners assert that they have the obligation to build
SEASCAPE TAÑON STRAIT, vs. awareness among the affected residents of Tañon Strait as well
SECRETARY ANGELO REYES as to protect the environment, especially in light of the
x-----------------------x government's failure, as primary steward, to do its duty under
the doctrine of public trust.4
G.R. No. 181527
Resident Marine Mammals and the human petitioners also
CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER assert that through this case, this court will have the opportunity
(FIDEC), CERILO D. ENGARCIAL, RAMON YANONG, to lower the threshold for locus standi as an exercise of
FRANCISCO LABID, in their personal capacity and as "epistolary jurisdiction."5
representatives of the SUBSISTENCE FISHERFOLKS OF THE
MUNICIPALITIES OF ALOGUINSAN AND PINAMUNGAJAN, The zeal of the human petitioners to pursue their desire to
CEBU, AND THEIR FAMILIES, AND THE PRESENT AND protect the environment and to continue to define
FUTURE GENERATIONS OF FILIPINOS WHOSE RIGHTS ARE environmental rights in the context of actual cases is
SIMILARLY AFFECTED, Petitioners, commendable. However, the space for legal creativity usually
vs. required for advocacy of issues of the public interest is not so
SECRETARY ANGELO REYES, in his capacity as Secretary of unlimited that it should be allowed to undermine the other
the Department of Energy (DOE), JOSE L. ATIENZA, in his values protected by current substantive and procedural laws.
capacity as Secretary of the Department of Environment and Even rules of procedure as currently formulated set the balance
Natural Resources (DENR), LEONARDO R. SIBBALUCA, in his between competing interests. We cannot abandon these rules
capacity as DENR Regional Director-Region VII and as when the necessity is not clearly and convincingly presented.
Chairperson of the Tañon Strait Protected Seascape
Management Board, ALAN ARRANGUEZ, in his capacity as The human petitioners, in G.R. No. 180771, want us to create
Director - Environmental Management Bureau-Region VII, substantive and procedural rights for animals through their
DOE Regional Director for Region VIII1 ANTONIO LABIOS, allegation that they can speak for them. Obviously, we are asked
JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as to accept the premises that (a) they were chosen by the Resident
represented by its Philippine Agent, SUPPLY OILFIELD Marine Mammals of Tañon Strait; (b) they were chosen by a
SERVICES, INC., Respondents. representative group of all the species of the Resident Marine
Mammals; (c) they were able to communicate with them; and (d)
CONCURRING OPINION they received clear consent from their animal principals that they
would wish to use human legal institutions to pursue their
"Until one has loved an animal, interests. Alternatively, they ask us to acknowledge through
a part of one 's soul remains unawakened." judicial notice that the interests that they, the human petitioners,
assert are identical to what the Resident Marine Mammals would
Anatole France assert had they been humans and the legal strategies that they
invoked are the strategies that they agree with.
LEONEN, J.:
In the alternative, they want us to accept through judicial notice
I concur in the result, with the following additional reasons. that there is a relationship of guardianship between them and
all the resident mammals in the affected ecology.
I
Fundamental judicial doctrines that may significantly change
In G.R. No. 180771, petitioners Resident Marine Mammals substantive and procedural law cannot be founded on feigned
allegedly bring their case in their personal capacity, alleging that representation.
they stand to benefit or be injured from the judgment on the
issues. The human petitioners implead themselves in a Instead, I agree that the human petitioners should only speak for
representative capacity "as legal guardians of the lesser life- themselves and already have legal standing to sue with respect

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to the issue raised in their pleading. The rules on standing have as well as substantive law to accommodate Resident Marine
already been liberalized to take into consideration the difficulties Mammals or animals. This we cannot do.
in the assertion of environmental rights. When standing
becomes too liberal, this can be the occasion for abuse. Rule 3, Section 2 of the 1997 Rules of Civil Procedure further
defines real party in interest:
II
SEC. 2. Parties in interest.-A real party in interest is the party who
Rule 3, Section 1 of the 1997 Rules of Civil Procedure, in part, stands to be benefited or injured by the judgment in the suit, or
provides: the party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be
SECTION 1. Who may be parties; plaintiff and defendant. - Only prosecuted or defended in the name of the real party in interest.
natural or juridical persons, or entities authorized by law may be (2a)6
parties in a civil action.
A litigant who stands to benefit or sustain an injury from the
The Rules provide that parties may only be natural or juridical judgment of a case is a real party in interest.7 When a case is
persons or entities that may be authorized by statute to be brought to the courts, the real party in interest must show that
parties in a civil action. another party's act or omission has caused a direct injury,
making his or her interest both material and based on an
Basic is the concept of natural and juridical persons in our Civil enforceable legal right.8
Code:
Representatives as parties, on the other hand, are parties acting
ARTICLE 37. Juridical capacity, which is the fitness to be the in representation of the real party in interest, as defined in Rule
subject of legal relations, is inherent in every natural person and 3, Section 3 of the 1997 Rules of Civil Procedure:
is lost only through death. Capacity to act, which is the power to
do acts with legal effect, is acquired and may be lost. SEC. 3. Representatives as parties. - Where the action is allowed
to be prosecuted or defended by a representative or someone
Article 40 further defines natural persons in the following acting in a fiduciary capacity, the beneficiary shall be included in
manner: the title of the case and shall be deemed to be the real party in
interest. A representative may be a trustee of an express rust, a
ARTICLE 40. Birth determines personality; but the conceived guardian, an executor or administrator, or a party authorized by
child shall be considered born for all purposes that are favorable law or these Rules. An agent acting in his own name and for the
to it, provided it be born later with the conditions specified 'in benefit of an undisclosed principal may sue or be sued without
the following article. joining the principal except when the contract involves things
belonging to the principal.(3a)9
Article 44, on the other hand, enumerates the concept of a
juridical person: The rule is two-pronged. First, it defines .a representative as a
party who is not bound to directly or actually benefit or suffer
ARTICLE 44. The following are juridical persons: from the judgment, but instead brings a case in favor of an
identified real party in interest.10 The representative is an
(1) The State and its political subdivisions; outsider to the cause of action. Second, the rule provides a list
of who may be considered as "representatives." It is not an
(2) Other corporations, institutions and entities for public exhaustive list, but the rule limits the coverage only to those
interest or purpose, created by law; their personality begins as authorized by law or the Rules of Court.11
soon as they have been constituted according to law;
These requirements should apply even in cases involving the
(3) Corporations, partnerships and associations for private environment, which means that for the Petition of the human
interest or purpose to which the law grants a juridical petitioners to prosper, they must show that (a) the Resident
personality, separate and distinct from that of each shareholder, Marine Mammals are real parties in interest; and (b) that the
partner or member. human petitioners are authorized by law or the Rules to act in a
representative capacity.
Petitioners in G.R. No. 180771 implicitly suggest that we amend,
rather than simply construe, the provisions of the Rules of Court

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The Resident Marine Mammals are comprised of "toothed analysis suggests that a qualified organization with a
whales, dolphins, porpoises, and other cetacean species demonstrated commitment to a cause could indeed bring suit
inhabiting Tañon Strait."12 While relatively new in Philippine on behalf of the speechless in the form of a court-sanctioned
jurisdiction, the issue of whether animals have legal standing guardianship.
before courts has been the subject of academic discourse in light
of the emergence of animal and environmental rights. This Comment advocates a shift in contemporary standing
doctrine to empower non-profit organizations with an
In the United States, anim4l rights advocates have managed to established history of dedication to the cause and relevant
establish a system which Hogan explains as the "guardianship expertise to serve as official guardians ad !item on behalf of
model for nonhuman animals":13 nonhuman animals interests. The American legal system has
numerous mechanisms for representing the rights and interests
Despite Animal Lovers, there exists a well-established system by of nonhumans; any challenges inherent in extending these pre-
which nonhuman animals may obtain judicial review to enforce existing mechanisms to nonhuman animals are minimal
their statutory rights and protections: guardianships. With court compared to an interest in the proper administration of justice.
approval, animal advocacy organizations may bring suit on To adequately protect the statutory rights of nonhuman animals,
behalf of nonhuman animals in the same way court-appointed the legal system must recognize those statutory rights
guardians bring suit on behalf of mentally-challenged humans independent of humans and provide a viable means of
who possess an enforceable right but lack the ability to enforce enforcement. Moreover, the idea of a guardianship for
it themselves. speechless plaintiffs is not new and has been urged on behalf of
the natural environment. 'Such a model is even more compelling
In the controversial but pivotal Should Trees Have Standing?- as applied to nonhuman animals, because they are sentient
Toward Legal Rights for Natural Objects, Christopher D. Stone beings with the ability to feel pain and exercise rational thought.
asserts that the environment should possess the right to seek Thus, animals are qualitatively different from other legally
judicial redress even though it is incapable of representing itself. protected nonhumans and therefore have interests deserving
While asserting the rights of direct legal protection.

speechless entities such as the environment or nonhuman Furthermore, the difficulty of enforcing the statutory rights of
animals certainly poses legitimate challenges - such as nonhuman animals threatens the integrity of the federal statutes
identifying the proper spokesman -the American legal system is designed to protect them, essentially rendering them
already well-equipped with a reliable mechanism by which meaningless. Sensing that laws protecting nonhuman animals
nonhumans may obtain standing via a judicially established would be difficult to enforce, Congress provided for citizen suit
guardianship. Stone notes that other speechless - and provisions: the most well-known example is found in the
nonhuman - entities such as corporations, states, estates, and Endangered Species Act (ESA). Such provisions are evidence of
municipalities have standing to bring suit on their own behalf. legislative intent to encourage civic participation on behalf of
There is little reason to fear abuses under this regime as nonhuman animals. Our law of standing should reflect this intent
procedures for removal and substitution, avoiding conflicts of and its implication that humans are suitable representatives of
interest, and termination of a guardianship are well established. the natural environment, which includes nonhuman animals.14
(Emphasis supplied, citation omitted)
In fact, the opinion in Animal Lovers suggests that such an
arrangement is indeed possible. The court indicated that AL VA When a court allows guardianship as a basis of representation,
might have obtained standing in its own right if it had an animals are considered as similarly situated as individuals who
established history of dedication to the cause of the humane have enforceable rights but, for a legitimate reason (e.g.,
treatment of animals. It noted that the Fund for Animals had cognitive disability), are unable to bring suit for themselves. They
standing and indicated that another more well-known advocacy are also similar to entities that by their very nature are incapable
organization might have had standing as well. The court further of speaking for themselves (e.g., corporations, states, and
concluded that an organization's standing is more than a others).
derivative of its history, but history is a relevant consideration
where organizations are not well-established prior to In our jurisdiction, persons and entities are recognized both in
commencing legal action. ALVA was not the proper plaintiff law and the Rules of Court as having standing to sue and,
because it could not identify previous activities demonstrating therefore, may be properly represented as real parties in interest.
its recognized activism for and commitment to the dispute The same cannot be said about animals.
independent of its desire to pursue legal action. The court's

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Animals play an important role in households, communities, and representative of a party who has enforceable rights under
the environment. While we, as humans, may feel the need to environmental laws before Philippine courts, and is defined in
nurture and protect them, we cannot go as far as saying we Section 5: .
represent their best interests and can, therefore, speak for them
before the courts. As humans, we cannot be so arrogant as to SEC. 5. Citizen suit. - Any Filipino citizen in representation of
argue that we know the suffering of animals and that we know others, including minors or generations yet unborn, may file an
what remedy they need in the face of an injury. action to enforce rights or obligations under environmental
laws. Upon the filing of a citizen suit, the court shall issue an
Even in Hogan's discussion, she points out that in a case before order which shall contain a brief description of the cause of
the United States District Court for the Central District of action and the reliefs prayed for, requiring all interested parties
California, Animal Lovers Volunteer Ass'n v. Weinberger,15 the to manifest their interest to intervene in the case within fifteen
court held that an emotional response to what humans perceive (15) days from notice thereof. The plaintiff may publish the order
to be an injury inflicted on an animal is not within the "zone-of- once in a newspaper of a general circulation in the Philippines
interest" protected by law.16 Such sympathy cannot stand or furnish all affected barangays copies of said order.
independent of or as a substitute for an actual injury suffered by
the claimant.17 The ability to represent animals was further There is no valid reason in law or the practical requirements of
limited in that case by the need to prove "genuine dedication" this case to implead and feign representation on behalf of
to asserting and protecting animal rights: animals. To have done so betrays a very anthropocentric view of
environmental advocacy. There is no way that we, humans, can
What ultimately proved fatal to ALVA 's claim, however, was the claim to speak for animals let alone present that they would wish
court's assertion that standing doctrine further required ALVA to to use our court system, which is designed to ensure that
differentiate its genuine dedication to the humane treatment of humans seriously carry their responsibility including ensuring a
animals from the general disdain for animal cruelty shared by viable ecology for themselves, which of course includes
the public at large. In doing so, the court found ALVA 's asserted compassion for all living things.
organizational injury to be abstract and thus relegated ALVA to
the ranks of the "concerned bystander. " Our rules on standing are sufficient and need not be further
relaxed.
....
In Arigo v. Swift,19 I posed the possibility of further reviewing
In fact, the opinion in Animal Lovers suggests that such an the broad interpretation we have given to the rule on standing.
arrangement is indeed possible. The court indicated that ALVA While representatives are not required to establish direct injury
might have obtained standing in its own right if it had an on their part, they should only be allowed to represent after
established history of dedication to the cause of the humane complying with the following: [I]t is imperative for them to
treatment of animals. It noted that the Fund for Animals had indicate with certainty the injured parties on whose behalf they
standing and indicated that another more well-known advocacy bring the suit. Furthermore, the interest of those they represent
organization might have had standing as well. The court further must be based upon concrete legal rights. It is not sufficient to
concluded that an organization's standing is more than a draw out a perceived interest from a general, nebulous idea of a
derivative of its history, but history is a relevant consideration potential "injury."20
where organizations are not well-established prior to
commencing legal action. ALVA was not the proper plaintiff I reiterate my position in Arigo v. Swift and in Paje v. Casiño21
because it could not identify previous activities demonstrating regarding this rule alongside the appreciation of legal standing
its recognized activism for and commitment to the dispute in Oposa v. Factoran22 for environmental cases. In Arigo, I
independent of its desire to pursue legal action. The court's opined that procedural liberality, especially in cases brought by
analysis suggests that a qualified organization with a representatives, should be used with great caution:
demonstrated commitment to a cause could indeed bring suit
on behalf of the speechless in the form of a court-sanctioned Perhaps it is time to revisit the ruling in Oposa v. Factoran.
guardianship.18 (Emphasis supplied, citation omitted)
That case was significant in that, at that time, there was need to
What may be argued as being parallel to this concept of call attention to environmental concerns in light of emerging
guardianship is the principle of human stewardship over the international legal principles. While "intergenerational
environment in a citizen suit under the Rules of Procedure for responsibility" is a noble principle, it should not be used to
Environmental Cases. A citizen suit allows any Filipino to act as a obtain judgments that would preclude future generations from

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making their own assessment based on their actual concerns.
The present generation must restrain itself from assuming that The Rules of Procedure for Environmental Cases allows filing of
it can speak best for those who will exist at a different time, a citizen's suit. A citizen's suit under this rule allows any Filipino
under a different set of circumstances. In essence, the unbridled citizen to file an action for the enforcement of environmental law
resort to representative suit will inevitably result in preventing on behalf of minors or generations yet unborn. It is essentially a
future generations from protecting their own rights and representative suit that allows persons who are not real parties
pursuing their own interests and decisions. It reduces the in interest to institute actions on behalf of the real party in
autonomy of our children and our children 's children. Even interest.
before they are born, we again restricted their ability to make
their own arguments. The expansion of what constitutes "real party in interest" to
include minors and generations yet unborn is a recognition of
It is my opinion that, at best, the use of the Oposa doctrine in this court's ruling in Oposa v. Factoran. This court recognized the
environmental cases should be allowed only when a) there is a capacity of minors (represented by their parents) to file a class
clear legal basis for the representative suit; b) there are actual suit on behalf of succeeding generations based on the concept
concerns based squarely upon an existing legal right; c) there is of intergenerational responsibility to ensure the future
no possibility of any countervailing interests existing within the generation's access to and enjoyment of [the] country's natural
population represented or those that are yet to be born; and d) resources.
there is an absolute necessity for such standing because there is
a threat of catastrophe so imminent that an immediate To allow citizen's suits to enforce environmental rights of others,
protective measure is necessary. Better still, in the light of its including future generations, is dangerous for three reasons:
costs and risks, we abandon the precedent all together.23
(Emphasis in the original) First, they run the risk of foreclosing arguments of others who
are unable to take part in the suit, putting into. question its
Similarly, in Paje: representativeness. Second, varying interests may potentially
result in arguments that are bordering on political issues, the
A person cannot invoke the court's jurisdiction if he or she has resolutions of which do not fall upon this court. Third,
no right or interest to protect. He or she who invokes the court's automatically allowing a class or citizen's suit on behalf of
jurisdiction must be the "owner of the right sought to be minors and generations yet unborn may result in the
enforced." In other words, he or she must have a cause of action. oversimplification of what may be a complex issue, especially in
An action may be dismissed on the ground of lack of cause of light of the impossibility of determining future generation's true
action if the person who instituted it is not the real party in interests on the matter.
interest.24 The term "interest" under the Rules of Court must
refer to a material interest that is not merely a curiosity about or In citizen's suits, persons who may have no interest in the case
an "interest in the question involved." The interest must be may file suits for others. Uninterested persons will argue for the
present and substantial. It is not a mere expectancy or a future, persons they represent, and the court will decide based on their
contingent interest. evidence and arguments. Any decision by the court will be
binding upon the beneficiaries, which in this case are the minors
A person who is not a real party in interest may institute an and the future generations. The court's decision will be res
action if he or she is suing as representative of a .real party in judicata upon them and conclusive upon the issues presented.25
interest. When an action is prosecuted or defended by a
representative, that representative is not and does not become The danger in invoking Oposa v. Factoran to justify all kinds of
the real party in interest. The person represented is deemed the environmental claims lies in its potential to diminish the value of
real party in interest. The representative remains to be a third legitimate environmental rights. Extending the application of
party to the action instituted on behalf of another. "real party in interest" to the Resident Marine Mammals, or
animals in general, through a judicial pronouncement will
.... potentially result in allowing petitions based on mere concern
rather than an actual enforcement of a right. It is impossible for
To sue under this rule, two elements must be present: "(a) the animals to tell humans what their concerns are. At best, humans
suit is brought on behalf of an identified party whose right has can only surmise the extent of injury inflicted, if there be any.
been violated, resulting in some form of damage, and (b) the Petitions invoking a right and seeking legal redress before this
representative authorized by law or the Rules of Court to court cannot be a product of guesswork, and representatives
represent the victim." have the responsibility to ensure that they bring "reasonably

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cogent, rational, scientific, well-founded arguments"26 on The failure to comply with the order for his inclusion, without
behalf of those they represent. justifiable cause, shall be deemed a waiver of the claim against
such party.
Creative approaches to fundamental problems should be
welcome. However, they should be considered carefully so that The non-inclusion of a necessary party does not prevent the
no unintended or unwarranted consequences should follow. I court from proceeding in the action, and the judgment rendered
concur with the approach of Madame Justice Teresita J. therein shall be without prejudice to the rights of such necessary
Leonardo-De Castro in her brilliant ponencia as it carefully party.29
narrows down the doctrine in terms of standing. Resident
Marine Mammals and the human petitioners have no legal A party who should have been a plaintiff or petitioner but whose
standing to file any kind of petition. consent cannot be obtained should be impleaded as a
defendant in the nature of an unwilling co-plaintiff under Rule
However, I agree that petitioners in G.R. No. 181527, namely, 3, Section 10 of the 1997 Rules of Civil Procedure:
Central Visayas Fisherfolk Development Center,. Engarcial,
Yanong, and Labid, have standing both as real parties in interest SEC. 10. Unwilling co-plaintiff. - If the consent of any party who
and as representatives of subsistence fisherfolks of the should be joined as plaintiff can not be obtained, he may be
Municipalities of Aloguinsan and Pinamungahan, Cebu, and made a defendant and the reason therefor shall be stated in the
their families, and the present and future generations of Filipinos complaint.30
whose rights are similarly affected. The activities undertaken
under Service Contract 46 (SC-46) directly affected their source The reason for this rule is plain: Indispensable party plaintiffs
of livelihood, primarily felt through the significant reduction of who should be part of the action but who do not consent should
their fish harvest.27 The actual, direct, and material damage they be put within the jurisdiction of the court through summons or
suffered, which has potential long-term effects transcending other court processes. Petitioners. should not take it upon
generations, is a proper subject of a legal suit. themselves to simply imp lead any party who does not consent
as a petitioner. This places the unwilling co-petitioner at the risk
III of being denied due process.

In our jurisdiction, there is neither reason nor any legal basis for Besides, Former President Gloria Macapagal-Arroyo cannot be a
the concept of implied petitioners, most especially when the party to this suit. As a co-equal constitutional department, we
implied petitioner was a sitting President of the Republic of the cannot assume that the President needs to enforce policy
Philippines. In G.R. No. 180771, apart from adjudicating unto directions by suing his or her alter-egos. The procedural
themselves the status of "legal guardians" of whales, dolphins, situation caused by petitioners may have gained public
porpoises, and other cetacean species, human petitioners also attention, but its legal absurdity borders on the contemptuous.
impleaded Former President Gloria Macapagal-Arroyo as The Former President's name should be stricken out of the title
"unwilling co-petitioner" for "her express declaration and of this case.
undertaking in the ASEAN Charter to protect Tañon Strait."28
IV
No person may implead any other person as a co-plaintiff or co-
petitioner without his or her consent. In our jurisdiction, only I also concur with the conclusion that SC-46 is both. illegal and
when there is a party that should have been a necessary party unconstitutional.
but was unwilling to join would there be an allegation as to why
that party has been omitted. In Rule 3, Section 9 of the 1997 SC-46 is illegal because it violates Republic Act No. ·7586 or the
Rules of Civil Procedure: National Integrated Protected Areas System Act of 1992, and
Presidential Decree No. 1234,31 which declared Tañon Strait as
SEC. 9. Non-joinder of necessary parties to be pleaded. - a protected seascape. It is unconstitutional because it violates
Whenever in any pleading in which a claim is asserted a the fourth paragraph of Article XII, Section 2 of the Constitution.
necessary party is not joined, the pleader shall set forth his name,
if known, and shall state why he is omitted. Should the court find V
the reason for the omission unmeritorious, it may order the
inclusion of the omitted necessary party if jurisdiction over his Petitioner Central Visayas Fisherfolk Development Center asserts
person may be obtained. that SC-46 violated Article XII, Section 2, paragraph 1 of the
.1987 Constitution because Japan Petroleum Exploration Co.,

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Ltd. (JAPEX) is 100% Japanese-owned.32 It further asserts that The President shall notify the Congress of every contract entered
SC-46 cannot be validly classified as a technical and financial into in accordance with this provision, within thirty days from its
assistance agreement executed under Article XII, Section 2, execution. (Emphasis supplied)
paragraph 4 of the 1987 Constitution.33 Public respondents
counter that SC-46 does not fall under the coverage of I agree that fully foreign-owned corporations may participate in
paragraph 1, but is a validly executed contract under paragraph the exploration, development, and use of natural resources, but
4.34· Public respondents further aver that SC-46 neither granted only through either financial agreements or technical ones. This
exclusive fishing rights to JAPEX nor violated Central Visayas is the clear import of the words "either financial or technical
Fisherfolk Development Center's right to preferential use of assistance agreements." This is also
communal marine and fishing resources.35
the clear result if we compare the 1987 constitutional provision
VI 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, ARTICLE XIV
petroleum, and other mineral oils, all forces of potential energy, THE NATIONAL ECONOMY AND THE PATRIMONY OF THE
fisheries, forests or timber, wildlife, flora and fauna, and other NATION
natural resources are owned by the State. With the exception. of
agricultural lands, all other natural resources shall not be SEC. 9. The disposition, exploration, development, of
alienated. The exploration, development, and utilization of exploitation, or utilization of any of the natural resources of the
natural resources shall be under the full control and supervision Philippines shall be limited to citizens of the Philippines, or to
of the State. The State may directly undertake such activities, or corporations or association at least sixty per centum of the
it may enter into co-production, joint venture, or production- capital of which is owned by such citizens. The Batasang
sharing agreements with Filipino citizens, or corporations or Pambansa, in the national interest, may allow such citizens,
associations at least sixty per centum of whose capital is owned corporations, or associations to enter into service contracts for
by such citizens. Such agreements may be for a period not financial, technical, management, or other forms of assistance
exceeding twenty-five years, renewable for not more than with any foreign person or entity for the exploitation,
twenty-five years, and under such terms and conditions as may development, exploitation, or utilization of any of the natural
be provided by law. In cases of water rights for irrigation, water resources. Existing valid and binding service contracts for
supply fisheries, or industrial uses other than the development financial, the technical, management, or other forms of
of water power, beneficial use may be the measure and limit of assistance are hereby recognized as such. (Emphasis supplied)
the grant.
1935 CONSTITUTION
The State shall protect the nation's marine wealth in its
archipelagic waters, territorial sea, and exclusive economic zone, ARTICLE XIII
and reserve its use and enjoyment exclusively to Filipino citizens. CONSERVATION AND UTILIZATION OF NATURAL RESOURCES

The Congress may, by law, allow small-scale utilization of natural SECTION 1. All agricultural timber, and mineral. lands of the
resources by Filipino citizens, as well as cooperative fish farming, public domain, waters, minerals, coal, petroleum, and other
with priority to subsistence fishermen and fish-workers in rivers, mineral oils, all forces of potential energy, and other natural
lakes, bays, and lagoons. resources of the Philippines belong to the State, and their
disposition, exploitation, development, or utilization shall be
The President may enter into agreements with foreign-owned limited to citizens of the Philippines, or to corporations or
corporations involving either technical or financial assistance for associations at least sixty per centum of the capital of which is
large-scale exploration, development, and utilization of owned by such citizens, subject to any existing right, grant, lease,
minerals, petroleum, and other mineral oils according to the or concession at the time of the inauguration of the Government
general terms and conditions provided by law, based on real established under this Constitution. Natural resources, with the
contributions to the economic growth and general welfare of the exception of public agricultural land, shall not be alienated, and
country. In such agreements, the State shall promote the no license, concession, or lease for the exploitation,
development and use of local scientific and technical resources. development, or utilization of any of the natural resources shall
be granted for a period exceeding twenty-five years, renewable

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for another twenty-five years, except as to water rights for by the President for and on behalf of the government; and (c)
irrigation, water supply, fisheries, or industrial uses other than whether it was reported by the President to Congress within 30
the development of water power, in which cases beneficial use days of execution.
may be the measure and the limit of the grant.
VII
The clear text of the Constitution in light of its history prevails
over any attempt to infer interpretation from the Constitutional The general law referred to as a possible basis for SC-46's validity
Commission deliberations. The constitutional texts are the is Presidential Decree No. 87 or the Oil Exploration and
product of a full sovereign act: deliberations in a constituent Development Act of 1972.1âwphi1 It is my opinion that this law
assembly and ratification. Reliance on recorded discussion of is unconstitutional in that it allows service contracts, contrary to
Constitutional Commissions, on the other hand, may result in Article XII, Section 2 of the 1987 Constitution:
dependence on incomplete authorship; Besides, it opens judicial
review to further subjectivity from those who spoke during the The President may enter into agreements with foreign-owned
Constitutional Commission deliberations who may not have corporations involving either technical or financial assistance for
predicted how their words will be used. It is safer that we use the large-scale exploration, development, and utilization of
words already in the Constitution. The Constitution was their minerals, petroleum, and other mineral oils according to the
product. Its words were read by those who ratified it. The general terms and conditions provided by law, based on real
Constitution is what society relies upon even at present. contributions to the economic growth and general welfare of the
country. In such agreements, the State shall promote the
SC-46 is neither a financial assistance nor a technical assistance development and use of local scientific and technical resources.
agreement. (Emphasis supplied)

Even supposing for the sake of argument that it is, it could not The deletion of service contracts from the enumeration of the
be declared valid in light of the standards set forth in La Bugal- kind of agreements the President may enter into with foreign-
B'laan Tribal Association, Inc. v. Ramos:36 owned corporations for exploration and utilization of resources
means that service contracts are no longer allowed by the
Such service contracts may be entered into only with respect to Constitution. Pursuant to Article XVIII, Section 3 of the 1987
minerals, petroleum and other mineral oils. The grant thereof is Constitution,38 this inconsistency renders the law invalid and
subject to several safeguards, among which are these ineffective.
requirements:
SC-46 suffers from the lack of a special law allowing its activities.
(1) The service contract shall be crafted m accordance with a The Main Opinion emphasizes an important point, which is that
general law that will set standard or uniform terms, conditions SC-46 did not merely involve exploratory activities, but also
and requirements, presumably to attain a certain uniformity in provided the rights and obligations of the parties should it be
provisions and avoid the possible insertion of terms discovered that there is oil in commercial quantities in the area.
disadvantageous to the country. The Tañon Strait being a protected seascape under Presidential
Decree No. 123439 requires that the exploitation and utilization
(2) The President shall be the signatory for the government of energy resources from that area are explicitly covered by a
because, supposedly before an agreement is presented to the law passed by Congress specifically for that purpose, pursuant
President for signature, it will have been vetted several times to Section 14 of Republic Act No. 7586 or the National
over at different levels to ensure that it conforms to law and can Integrated Protected Areas System Act of 1992:
withstand public scrutiny.
SEC. 14. Survey for Energy R6'sources. - Consistent with the
(3) Within thirty days of the executed agreement, the President policies declared in Section 2, hereof, protected areas, except
shall report it to Congress to give that branch of government an strict nature reserves and natural parks, may be subjected to
opportunity to look over the agreement and interpose timely exploration only for the purpose of gathering information on
objections, if any.37 (Emphasis in the original, citation omitted) energy resources and only if such activity is carried out with the
least damage to surrounding areas. Surveys shall be conducted
Based on the standards pronounced in La Bugal, SC-46' S validity only in accordance with a program approved by the DENR, and
must be tested against three important points: (a) whether SC- the result of such surveys shall be made available to the public
46 was crafted in accordance with a general law that provides and submitted to the President for recommendation to
standards, terms, and conditions; (b) whether SC-46 was signed Congress. Any exploitation and utilization of energy resources

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found within NIP AS areas shall be allowed only through a law The reporting requirement is an equally important requisite to
passed by Congress.40 (Emphasis supplied) the validity of any service contract involving the exploration,
development, and utilization of Philippine petroleum. Public
No law was passed by Congress specifically providing the respondents' failure to report to Congress about SC-46
standards, terms, and conditions of an oil exploration, extraction, effectively took away any opportunity for the legislative branch
and/or utilization for Tañon Strait and, therefore, no such to scrutinize its terms and conditions.
activities could have been validly undertaken under SC-46. The
National Integrated Protected Areas System Act of 1992 is clear In sum, SC-46 was executed and implemented absent all the
that exploitation and utilization of energy resources in a requirements provided under paragraph 4 of Article XII, Section
protected seascape such as Tañon Strait shall only be allowed 2. It is, therefore, null and void.
through a specific law.
X
VIII
I am of the view that SC-46, aside from not having complied with
Former President Gloria Macapagal-Arroyo was not the the 1987 Constitution, is also null and void for being violative of
signatory to SC-46, contrary to the requirement set by environmental laws protecting Tañon Strait. In particular, SC-46
paragraph 4 of Article XII, Section 2 for service contracts was implemented despite falling short of the requirements of
involving the exploration of petroleum. SC-46 was entered into the National Integrated Protected Areas System Act of 1992.
by then Department of Energy Secretary Vicente S. Perez, Jr., on
behalf of the government. I agree with the Main Opinion that in As a protected seascape under Presidential Decree No. 1234,43
cases where the Constitution or law requires the President to act Tañon Strait is covered by the National Integrated Protected
personally on the matter, the duty cannot be delegated to Areas System Act of 1992. This law declares as a matter of policy:
another public official.41 La Bugal highlights the importance of
the President's involvement, being one of the constitutional SEC. 2. Declaration of Policy. Cognizant of the profound impact
safeguards against abuse and corruption, as not mere formality: of man's activities on all components of the natural environment
particularly the effect of increasing population, resource
At this point, we sum up the matters established, based on a exploitation and industrial advancement and recognizing the
careful reading of the ConCom deliberations, as follows: critical importance of protecting and maintaining the natural
biological and physical diversities of the environment notably on
• In their deliberations on what was to become paragraph 4, the areas with biologically unique features to sustain human life and
framers used the term service contracts in referring to development, as well as plant and animal life, it is hereby
agreements x x x involving either technical or financial declared the policy of the State to secure for the Filipino people
assistance. • They spoke of service contracts as the concept was of present and future generations the perpetual existence of all
understood in the 1973 Constitution. native plants and animals through the establishment of a
comprehensive system of integrated protected areas within the
• It was obvious from their discussions that they were not about classification of national park as provided for in the Constitution.
to ban or eradicate service contracts.
It is hereby recognized that these areas, although distinct in
• Instead, they were plainly crafting provisions to. put in place features, possess common ecological values that may be
safeguards that would eliminate or m minimize the abuses incorporated into a holistic plan representative of our natural
prevalent during the marital law regime.42 (Emphasis in the heritage; that effective administration of these areas is possible
original) only through cooperation among national government, local
and concerned private organizations; that the use and
Public respondents failed to show that. Former President Gloria enjoyment of these protected areas must be consistent with the
Macapagal-Arroyo was involved in the signing or execution of principles of biological diversity and sustainable development.
SC-46. The failure to comply with this constitutional requirement
renders SC-46 null and void. To this end, there is hereby established a National Integrated
Protected Areas System (NIPAS), which shall encompass
IX outstanding remarkable areas and biologically important public
lands that are habitats of rare and endangered species of plants
Public respondents also failed to show that Congress was and animals, biogeographic zones and related ecosystems,
subsequently informed of the execution and existence of SC-46.

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whether terrestrial, wetland or marine, all of which shall be Public respondents argue that SC-46 complied with the
designated as "protected areas."44 (Emphasis supplied) procedural requirements of obtaining an Environmental
Compliance Certificate.48 At any rate, they assert that the
Pursuant to this law, any proposed activity in Tañon Strait must activities covered by SC-46 fell under Section 14 of the National
undergo an Environmental Impact Assessment: Integrated Protected Areas System Act of 1992, which they
interpret to be an exception to Section 12. They argue that the
SEC. 12. Environmental Impact Assessment. - Proposals for Environmental Compliance Certificate is not a strict requirement
activities which are outside the scope of the management plan for the validity of SC-46 since (a) the Tañon Strait is not a nature'
for protected areas shall be subject to an environmental impact reserve or natural park; (b) the exploration was merely for
assessment as required by law before they are adopted, and the gathering information; and ( c) measures were in place to ensure
results thereof shall be taken into consideration in the decision- that the exploration caused the least possible damage to the
making process.45 (Emphasis supplied) area.49

The same provision further requires that an Environmental Section 14 is not an exception to Section 12, but instead
Compliance Certificate be secured under the Philippine provides additional requirements for cases involving Philippine
Environmental Impact Assessment System before arty project is energy resources. The National Integrated Protected Areas
implemented: System Act of 1992 was enacted to recognize the importance of
protecting the environment in light of resource exploitation,
No actual implementation of such activities shall be allowed among others.50 Systems are put in place to secure for Filipinos
without the required Environmental Compliance Certificate local resources under the most favorable conditions. With the
(ECC) under the Philippine Environment Impact Assessment (EIA) status of Tañon Strait as a protected seascape, the institution of
system. In instances where such activities are allowed to be additional legal safeguards is even more significant.
undertaken, the proponent shall plan and carry them out in such
manner as will minimize any adverse effects and take preventive Public respondents did not validly obtain an Environmental
and remedial action when appropriate. The proponent shall be Compliance Certificate for SC-46. Based on the records, JAPEX
liable for any damage due to lack of caution or indiscretion.46 commissioned an environmental impact evaluation only in the
(Emphasis supplied) second subphase of its project, with the Environmental
Management .Bureau of Region
In projects involving the exploration or utilization of energy
resources, the National Integrated Protected Areas System Act VII granting the project an Environmental Compliance Certificate
of 1992 additionally requires that a program be approved by the on March 6, 2007.51
Department of Environment and Natural Resources, which shall
be publicly accessible. The program shall also be submitted to Despite its scale, the seismic surveys from May 9 to 18, 2005
the President, who in turn will recommend the program to were conducted without any environmental assessment contrary
Congress. Furthermore, Congress must enact a law specifically to Section 12 of the National Integrated Protected Areas System
allowing the exploitation of energy resources found within a Act of 1992.
protected area such as Tañon Strait:
XI
SEC. 14. Survey for Energy Resources. - Consistent with the
policies declared in Section 2, hereof, protected areas, except Finally, we honor every living creature when we take care of our
strict nature reserves and natural parks, may be subjected to environment. As sentient species, we do not lack in the wisdom
exploration only for the purpose of gathering information on or sensitivity to realize that we only borrow the resources that
energy resources and only if such activity is carried out with the we use to survive and to thrive. We are not incapable of
least damage to surrounding areas. Surveys shall be conducted mitigating the greed that is slowly causing the demise of our
only in accordance with a program approved by the DENR, and planet. Thus, there is no need for us to feign representation of
the result of such surveys shall be made available to the public any other species or some imagined unborn generation in filing
and submitted to the President for recommendation to any action in our courts of law to claim any of our fundamental
Congress. Any exploitation and utilization of energy resources rights to a healthful ecology. In this way and with candor and
found within NIPAS areas shall be allowed only through a taw courage, we fully shoulder the responsibility deserving of the
passed by Congress.47 (Emphasis supplied) grace and power endowed on our species.

ACCORDINGLY, I vote:

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Santoalla

(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.

MARVIC M.V.F. LEONEN


Associate Justice

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