You are on page 1of 6

PD No. 1586 – Establishing an Environmental Impact restraining order but this was lifted later on.

Statement System, Including Other Environmental Respondents ORMECO and the provincial officials of
Management Related Measures and for Other Oriental Mindoro moved to dismiss the complaint for
Purposes failure of the petitioners to exhaust administrative
remedies. Petitioners claim that there was no need for
Bangus Fry Fisherfolk, et al. v. Hon. Lanzanas, et al.
exhaustion of remedies and claim that the issuance of
G.R. No. 131442, July 10, 2003, 405 SCRA 530 the ECC was a violation a DENR DAO No. 96-37 on the
documentation of ECC applications.
Syllabus:
Issues:
The settled rule is before a party may seek the
intervention of the courts, he should first avail of all (1) Whether administrative remedies should have
the means afforded by administrative processes. been first exhausted before resorting to the courts.
Hence, if a remedy within the administrative
(2) Whether the issuance of the Environmental
machinery is still available, with a procedure
Compliance Certificate violated the DENR DAO No. 96-
prescribed pursuant to law for an administrative
37.
officer to decide the controversy, a party should first
exhaust such remedy before resorting to the courts. Ruling:
The premature invocation of a court’s intervention
Yes. Administrative remedies should have been first
renders the complaint without cause of action and
exhausted and the issuance of the ECC violated DENR
dismissible on such ground.
DAO No. 96-37. Petitioners bypassed the DENR
Presidential Decree No. 1605 provides that the Secretary and immediately filed their complaint with
construction of any commercial structure within the the Manila Regional Trial Court, depriving the DENR
coves and waters embraced by Puerto Galera Bay, as Secretary the opportunity to review the decision of his
protected by Medio Island, is prohibited. The mooring subordinate. Under the Procedural Manual for DAO
facility to be constructed by the government of 96-37 and applicable jurisprudence, petitioners’
Mindoro is not a commercial structure; commercial or omission renders their complaint dismissible for lack
semi-commercial wharf or commercial docking as of cause of action. The Manila Regional Trial Court
contemplated in Section 1 of PD No. 1605. Therefore, therefore did not err in dismissing petitioners’
the issuance of the ECC does not violate PD No. 1605 complaint for lack of cause of action. Furthermore, PD
which applies only to commercial structures like No. 1605 provides that the construction of any
wharves, marinas, hotels and restaurants. commercial structure within the coves and waters
embraced by Puerto Galera Bay, as protected by
Facts:
Medio Island, is prohibited. PD No. 1605 does not
On June 30, 1997, Regional Executive Director Antonio apply to this case. The mooring facility is obviously a
G. Principe (RED Principe) of Region IV, DENR issued government-owned public infrastructure intended to
an Environmental Clearance Certificate (ECC) in favor serve a basic need of the people of Oriental Mindoro.
of National Power Corporation (NAPOCOR). The ECC The mooring facility is not a “commercial structure;
authorized NAPOCOR to construct a temporary commercial or semi-commercial wharf or commercial
mooring facility in Minolo Cove, Sitio Minolo, docking” as contemplated in Section 1 of PD No. 1605.
Barangay San Isidro, Puerto Galera, Oriental Mindoro, Therefore, the issuance of the ECC does not violate PD
despite the fact that the Sangguniang Bayan of Puerto No. 1605 which applies only to commercial structures
Galera has declared Minolo Cove, a mangrove area like wharves, marinas, hotels and restaurants.
and breeding ground for bangus fry, an eco-tourist
Baltimore Gas & Electric Co. v.
zone. Petitioners, who claim to be fisherfolks from the
area sought reconsideration of the ECC issuance. This, Natural Resources Defense Council, Inc.
however, was denied. As a result, petitioners filed a
complaint with Manila Regional Trial Court, Branch 7, No. 82-524
for the cancellation of the ECC and for the issuance of Argued April 19, 1983
a writ of injunction to stop the construction of the
mooring facility. The trial court issued a temporary Decided June 6, 1983*
1
462 U.S. 87 of the environmental impacts of its licensing decisions.
It is not the task of this Court to determine what
Syllabus
decision it would have reached if it had been the NRC.
Section 102(2)(C) of the National Environmental Policy The Court's only task is to determine whether the NRC
Act (NEPA) requires federal agencies to consider the had considered the relevant factors and articulated a
environmental impact of any major federal action. The rational connection between the facts found and the
dispute in these cases concerns the adoption by the choice made. Under this standard, the zero release
Nuclear Regulatory Commission (NRC) of a series of assumption, within the context of Table S-3 as a
generic rules to evaluate the environmental effects of whole, was not arbitrary or capricious. Pp. 462 U. S.
a nuclear powerplant's fuel cycle. In these rules, the 97-106.
NRC decided that licensing boards should assume, for
(b) It is inappropriate to cast doubt on the licensing
purposes of NEPA, that the permanent storage of
proceedings simply because of a minor ambiguity in
certain nuclear wastes would have no significant
the language of an earlier rule as to whether licensing
environmental impact (the so-called "zero release"
boards were required to consider health effects,
assumption), and thus should not affect the decision
socioeconomic effects, or cumulative impacts, where
whether to license a particular nuclear powerplant. At
there is no evidence that this ambiguity prevented any
the heart of each rule is Table S-3, a numerical
party from making as full a presentation as desired or
compilation of the estimated resources used and
ever affected the decision to license a plant. Pp. 462
effluents released by fuel cycle activities supporting a
U. S. 106-108.
year's operation of a typical light-water reactor.
Challenges to the rules ultimately resulted in a 222 U.S.App.D.C. 9, 685 F.2d 459, reversed.
decision by the Court of Appeals, on a petition for
O'CONNOR, J., delivered the opinion of the Court, in
review of the final version of the rules, that the rules
which all other Members joined, except POWELL, J.,
were arbitrary and capricious and inconsistent with
who took no part in the consideration or decision of
NEPA because the NRC had not factored the
the cases.
consideration of uncertainties surrounding the zero
release assumption into the licensing process in such a Page 462 U. S. 89
manner that the uncertainties could potentially affect
the outcome of any decision to license a plant.

Held: The NRC complied with NEPA, and its decision is The Case
not arbitrary or capricious within the meaning of § On June 06, 1983, the Supreme Court issued a 8-0
10(e) of the Administrative Procedure Act (APA). decision stating that the case of Baltimore Gas &
Pp. 462 U. S. 97-108. Electric Co. Et Al. v. Natural Resources Defense
(a) The zero release assumption, which was designed Council, Inc. (docket no. 82-524) should be reversed
for the limited purpose of individual licensing and upholding the law in question [National
decisions and which is but a single figure in Table S-3, Environmental Policy] as constitutional. The judgment
is within the bounds of reasoned decisionmaking rested on the Court's authority over interpretation of
required by the APA. The NRC, in its statement administrative regulations or rules. It was decided by
announcing the final Table S-3 rule, summarized the an opinion of the court (orally argued) and
major uncertainties of long-term storage of nuclear was conservative in nature.
wastes, noted that the probability of intrusion was The Court undertook review of the case via cert and
small, and found the evidence "tentative but heard the case on April 19, 1983. The case originated
favorable" that an appropriate storage site in the U.S. Court of Appeals, District of Columbia
Page 462 U. S. 88 Circuit and was heard directly from that court by the
U.S. Supreme Court.
could be found. Table S-3 refers interested persons to
staff studies that discuss the uncertainties in greater Justice Sandra Day O'Connor authored the majority
detail. In these circumstances, the NRC complied with opinion.
NEPA's requirements of consideration and disclosure

2
rule, but this new rule maintained the "zero release"
Legal Provisions Considered Federal Statute
assumption for the long-term storage of spent fuel.
The NRC also rejected a petition filed by the NRDC
Outcome of Case for Petitioner Favorable tothat had requested that Table S-3 include
petitioner
uncertainties, or that the nuclear plant licensing
proceedings be allowed to consider uncertainties in
emissions from spent fuel storage.
Baltimore Gas & Electric Co. v. Natural Resources
Defense Council, Inc., 462 U.S. 87 (1983)[1] is a United The NRDC and the State of New York petitioned for
States Supreme Court decision which held that judicial review of the Table S-3 rule in circuit court.
a Nuclear Regulatory Commission (NRC) rule that, The circuit court ruled that "Table S-3 rules
during the licensing of nuclear power plants, the were arbitrary and capricious and inconsistent with
permanent storage of nuclear waste should be NEPA because the Commission had not factored the
assumed to have no environmental impact was valid. consideration of uncertainties surrounding the zero-
release assumption into the licensing process in such a
Background[edit] manner that the uncertainties could potentially effect
The National Environmental Policy Act (NEPA) at 42 the outcome of any decision to license a particular
U.S.C. § 4332(c) requires government agencies to plant."[1] The Supreme Court on appeal
consider the environmental impact of any major granted certiorari.
federal action. For the licensing of nuclear power Decision[edit]
plants by the NRC, the environmental impact includes
activities necessary to produce new nuclear fuel and The Supreme Court reversed the decision of the circuit
to dispose of spent nuclear fuel. In 1974 the NRC court, ruling that the NRC had complied with the
adopted a rule for determining the environmental requirements of NEPA. The Court explained that the
impact of the fuel cycle in plant licensing proceedings. NEPA requires that an agency must consider every
For the long-term storage of transuranic and high significant aspect of the environmental impact of a
levelradiological wastes, the rule in Table S-3 assumed proposed action, and that the public be informed of
that there would be no environmental impact due to a this. The role of a court is to ensure that the agency
"zero release" assumption. This assumption was based has adequately considered and disclosed the
upon an expectation that technology would be environmental impact of its decision and that the
developed to isolate these wastes from the agency's decision was not arbitrary and capricious.
environment.
Regarding the Table S-3 rule, it was the result of a
The Natural Resources Defense Council (NRDC) filed lengthy proceeding in which the NRC determined that
an action to challenge the Table S-3 rule, leading to it was appropriate to generically evaluate the
the Supreme Court caseVermont Yankee Nuclear environmental effects of the storage of nuclear wastes
Power Corp. v. Natural Resources Defense Council, Inc., and not to evaluate these effects during nuclear
435 U.S. 519 (1978). In that case the Supreme Court power plant licensing proceedings. Under the holding
reversed the ruling by the Court of Appeals for the of Vermont Yankee, the NRC's choice to use this
District of Columbia Circuit that the generic method in the Table S-3 regulation is valid,
NRC rulemaking procedures used to develop the rule and courts do not have the authority to require a
were inadequate, stating that the NRC had done different rule under the APA.
everything that was required by NEPA and
Calvert Cliffs Coordinating Committee v. U.S. Atomic
the Administrative Procedures Act, and that courts
Energy Commission
lack the authority to impose rulemaking procedures
greater than those contemplated by these statutes. United States Court of Appeals for the District of
The case was remanded for the circuit court to Columbia Circuit
determine whether the Table S-3 rule was adequately 449 F.2d 1109 (1971)
supported by the administrative record.

While the Vermont Yankee case was before the


Supreme Court, the NRC proposed a new Table S-3 Facts

3
The National Environmental Policy Act of 1969 (NEPA) environmental issue was
required federal agencies to prepare a “detailed raised by a party to the
statement” covering the impact of agency actions on proceeding.
the environment that would be considered at every
o Technically, NEPA only requires
important stage in the decision-making process. In
you to consider the likely
response, the U.S. Atomic Energy Commission (the
environmental effects of your
Commission) (defendant) promulgated rules requiring
activities. It doesn't say what you
an applicant seeking a permit to build and operate a
should do once you've considered
nuclear power plant to prepare an “environmental the problem.
report” assessing the likely impacts of the nuclear
facility on the environment. Upon receipt of the  A local environmental group (CCCC) sued
report, the Commission would then draft its own AEC, arguing that AEC's regulations
“detailed statement” to accompany the applicant’s violated NEPA because they did not
report. However, under the rules, neither document require AEC to independently assess
would be considered by the licensing board or environmental impacts.
received into evidence. Calvert Cliffs Coordinating  The Appellate Court found for CCCC and
Committee (Calvert) (plaintiff) filed a petition in the remanded back to AEC for further
court of appeals against the Commission seeking rulemaking to improve their regulations.
review of the rules as arguing the Commission’s
process was contrary to the text and intent of NEPA. o The Appellate Court noted
that NEPA §102(2)(E) requires that
Calvert Cliffs Coordinating Committee v. all Federal agencies must
United States Atomic Energy Commission considered NEPA "to the fullest
449 F.2d 1109 (D.C. Cir. 1971) extent possible."
 The US AEC (forerunner of the
Department of Energy) was encouraging o The Appellate Court found that
utilities to build nuclear power plants. compliance "to the fullest extent
Baltimore Gas and Electric decided to build possible" demands that
one in rural Maryland. environmental issues be considered
 Two years after construction began, the
at every important stage of the
Federal government passed the National decision-making process.
Environmental Policy Act (aka NEPA) 42  The preparation of the EIS
U.S.C. §§4321-4370. must be more than simply a
o NEPA §102(2)(C) requires pro forma ritual.
preparation of an Environmental o Therefore, the Appellate Court
Impact Statement (EIS). found that AEC procedural rules did
 AEC issued a regulation requiring permit not comply with Congressional
applicants to prepare EISs. However, they policy as enunciated in NEPA.
felt that they did not have to consider the  This case established that NEPA has
conclusions of the report unless parties judicially enforceable duties.
raised specific challenges to it during the
licensing process. o At this point, NEPA was new, and
the concept that individual people
o Basically, AEC was treating the EIS could use it to get the judiciary to
as just more paperwork. The EIS tell the executive branch what to do
needed to be prepared and filed, but was a pretty radical idea.
it was not considered within AEC's
licensing board process to decide Calvert Cliffs Coordinating Committee v. U.S. Atomic
whether to issue a permit or not. Energy Comm., (1971); pg. 422 Supp., briefed 9/8/96
 No one at AEC would look Facts: The Atomic Energy Commission (AEC)
at the EIS unless an
4
promulgated a set of rules which they contended delay in finding a new site outweighed any adverse
brought them into compliance with the requirements social environmental impact (i.e. the racial and
of NEPA that an environmental impact statement (EIS) economic problems associated with concentration of
be prepared prior to the licensing of a new nuclear low-income housing in a single high-rise building). The
power plant. The rules provided that an District Court found that HUD’s conclusion was neither
“environmental report” would be prepared, upon arbitrary nor capricious, and done in good faith. The
which the AEC would draft its own “detailed court of appeals vacated and remanded again, holding
statement”, and both would “accompany” the that mere “consideration” of the environmental impact
application for the new license throughout the review is insufficient under NEPA, and that the 2-year delay
process. However, the report would not be considered should have been given less weight.
by the licensing authority unless environmental issues
Issue: Whether the court may make a substantive
were raised by a party to the proceeding.
review of a decision to go ahead with a project given
Procedural Posture: CCCC sued claiming that AEC’s that they have considered the environmental impact.
rules did not comply with the NEPA requirement that
Holding: No.
the environmental impact of their actions be
considered “to the fullest extent possible.” Reasoning: In Vermont Yankee, the court held that
NEPA imposes duties on agencies which are
Issue: Whether the EIS must be considered by the
“essentially procedural”, and that NEPA was designed
ultimate licensing authority.
to insure a fully informed and well considered decision,
Holding: Yes. but not necessarily one which the members of the
courts would have reached on the same facts. Thus,
Reasoning: The EIS procedure is a mechanism to
the court of appeals was wrong in requiring that the
ensure compliance with the general requirements of
HUD elevate environmental considerations over
NEPA. The EIS procedure must be complied with to the
schedule considerations. NEPA requires nothing more
fullest extent possible - a high standard which is
than the agency fully considers the environmental
enforceable by the court. Although the courts probably
consequences of its proposed decisions.
may not reverse a substantive decision which
considered the EIS unless it was arbitrary, failing to
consider a good faith EIS is reversible. Merely having
7. Dissent: [Marshall] Vermont Yankee is being read
the EIS physically “accompany” the license application
too broadly here, and out of context. This is not the
is an unreasonable interpretation of the NEPA
type of case for summary disposition. There should at
requirements. The word “accompany” in section 102
least be a plenary hearing.
must be interpreted to mean that the environmental
factors be considered at every important stage in the
decision making process.
8. Notes: 1. Strycker’s Bay is generally believed to
Strycker’s Bay Neighborhood Council, Inc. v. Karlen, stand for the proposition that a court may not find an
(1980); pg. 847, briefed 9/8/96 agency decision arbitrary and capricious on the merits
because the agency relied on a totally unsatisfactory
impact statement. 2. However, in Sierra Club v. Corps
Facts: The HUD planned to build some lower income of Engineers II, the court held that the EIS was
housing on a lot in N.Y. city. inadequate because it failed to reveal that the
proposed landfill area was an important winter habitat
Procedural Posture: A local organization (Trinity for juvenile striped bass. When the Corps of Engineers
School) sued to enjoin the construction. The District prepared a new report, and decided to proceed with
Court held that HUD had not violated NEPA. On appeal, the landfill anyway, the court found that the decision
the court affirmed, holding that HUD did not have was “arbitrary and capricious” because the reasons for
prepare a full EIS under 102(2)(C), but that they still giving the permit did not “reasonably connect the data
had to consider alternatives under 102(2)(E), and found by the federal defendants to the choice they
remanded the case for HUD to conduct further study. made.” 3. Separation of powers considerations
The HUD study concluded that the unacceptable 2-year prevent the judiciary from performing a rigorous
5
substantive review if the EIS has been prepared,
leaving them with the “arbitrary and capricious”
standard of the Administrative Procedures Act (APA).
4. Although some commentators have claimed that EIS
statements are typically self-serving, defensive efforts
that prevent any real change in an agency’s behavior,
other have stated that the EIS has at least some
positive impact on agency activities, even if there are
some procedural roadblocks.