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Boracay Foundation, Inc. v. Province of Aklan G.R. No.

196870, June 26, 2012

FACTS: Claiming that tourist arrivals to Boracay would reach 1 million in the future, respondent Province of Aklan planned to expand the port facilities at Barangay Caticlan, Municipality of Malay. Thus, on May 7, 2009, the Sangguniang Panlalawigan of Aklan Province issued a resolution, authorizing Governor Carlito Marquez to file an application with respondent Philippine Reclamation Authority (PRA) to reclaim the 2.64 hectares of foreshore area in Caticlan. In the same year, the Province deliberated on the possible expansion from its original proposed reclamation area of 2.64 hectares to forty (40) hectares in order to maximize the utilization of its resources. After PRAs approval, on April 27, 2010, respondent Department of Environment and Natural Resources-Environmental Management Bureau-Region VI (DENR-EMB RVI) issued to the Province Environmental Compliance Certificate-R6-1003-096-7100 (the questioned ECC) for Phase 1 of the Reclamation Project to the extent of 2.64 hectares to be done along the Caticlan side beside the existing jetty port. On May 17, 2010, the Province finally entered into a MOA with PRA which stated that the land use development of the reclamation project shall be for commercial, recreational and institutional and other applicable uses. It was at this point that the Province deemed it necessary to conduct a series of public consultation meetings. On the other hand, the Sangguniang Barangay of Caticlan, the Sangguniang Bayan of the Municipality of Malay and petitioner Boracay Foundation, Inc. (BFI), an organization composed of some 160 businessmen and residents in Boracay, expressed their strong opposition to the reclamation project on environmental, socio-economic and legal grounds. Despite the opposition, the Province merely noted their objections and issued a notice to the contractor on December 1, 2010 to commence with the construction of the project. Thus, on June 1, 2011, BFI filed with the Supreme Court the instant Petition for Environmental Protection Order/Issuance of the Writ of Continuing Mandamus. Thereafter, the Court issued a Temporary Environmental Protection Order (TEPO) and ordered the respondents to file their respective comments to the petition. The Petition was premised on the following grounds, among others: a) the Province failed to obtain the favorable endorsement of the LGU concerned; b) the Province failed to conduct the required consultation procedures as required by the Local Government Code (LGC). The Province responded by claiming that its compliance with the requirements of DENR-EMB RVI and PRA that led to the approval of the reclamation project by the said government agencies, as well as the recent enactments of the Barangay Council of Caticlan and the Sangguniang Bayan of the

Municipality of Malay favorably endorsing the said project, had categorically addressed all the issues raised by the BFI in its Petition. It also considered the Petition to be premature for lack of cause of action due to the failure of BFI to fully exhaust the available administrative remedies even before seeking judicial relief.

ISSUES: WON the petition is premature because petitioner failed to exhaust administrative remedies before filing this case? WON there was proper, timely, and sufficient public consultation for the project?

RULING: On the issue of prematurity due to failure to exhaust administrative remedies The Court held that the petition is not premature for failing to exhaust administrative remedies and to observe the hierarchy of courts as claimed by the respondents. The Court reiterated their ruling in Pagara v. Court of Appeals where they clarified that the rule regarding exhaustion of administrative remedies is not a hard and fast rule. It is not applicable where, among others, there are circumstances indicating the urgency of judicial intervention such as in the instant case. The rule may also be disregarded when it does not provide a plain, speedy and adequate remedy or where the protestant has no other recourse. Meanwhile, the new Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, provides a relief for petitioner under the writ of continuing mandamus, which is a special civil action that may be availed of to compel the performance of an act specifically enjoined by law and which provides for the issuance of a TEPO as an auxiliary remedy prior to the issuance of the writ itself. The writ of continuing mandamus allows an aggrieved party to file a verified petition in the proper court when any government agency or instrumentality or officer thereof unlawfully neglects the performance of an act which the law specifically enjoins as a duty xxx in connection with the enforcement or violation of an environmental law rule or regulation or a right therein, xxx and there is no other plain, speedy and adequate remedy in the ordinary course of law. Such proper court may be the Regional Trial Court exercising jurisdiction over the territory where the actionable neglect or omission occurred, the Court of Appeals, or the Supreme Court. Here, the Court found that BFI had no other plain, speedy, or adequate remedy in the ordinary course of law to determine the questions of unique national and local importance raised that pertain to laws and rules for environmental protection.

Moreover, the writ of continuing mandamus permits the court to retain jurisdiction after judgment in order to ensure the successful implementation of the reliefs mandated under the courts decision and, in order to do this, the court may compel the submission of compliance reports from the respondent government agencies as well as avail of other means to monitor compliance with its decision.

On the issue of whether or not there was proper, timely, and sufficient public consultation for the project The Court found that there was no proper, timely, and sufficient public consultation for the project. The Local Government Code (LGC) establishes the duties of national government agencies in the maintenance of ecological balance and requires them to secure prior public consultations and approval of local government units. In Province of Rizal v. Executive Secretary, the Court emphasized that, under the Local Government Code, two requisites must be met before a national project that affects the environmental and ecological balance of local communities can be implemented: (1) prior consultation with the affected local communities, and (2) prior approval of the project by the appropriate sanggunian. The absence of either of such mandatory requirements will render the projects implementation as illegal. Here, the Court classified the reclamation project as a national project since it affects the environmental and ecological balance of local communities. In one ruling, the Court noted that such national projects mentioned in Section 27 of the LGC include those that may cause pollution and bring about climate change, among others, such as the reclamation project in this case. Also, DENR DAO 2003-30 provides that project proponents should initiate public consultations early in order to ensure that environmentally relevant concerns of stakeholders are taken into consideration in the EIA study and the formulation of the management plan. Thus, the law requires the Province, being the delegate of the PRAs power to reclaim land in this case, to conduct prior consultations and prior approval. However, the information dissemination conducted months after the ECC had already been issued was insufficient to comply with the requirements under the LGC. Furthermore, the lack of prior public consultation and approval is not corrected by the subsequent endorsement of the reclamation project by the Sangguniang Barangay of Caticlan and the Sangguniang Bayan in 2012, which were both undoubtedly achieved at the urging and insistence of the Province.