Petition challenges ECC for SM Baguio mall project

Petition for Review; CGN, et alii v.
Paje
Republic of the Philippines

SUPREME COURT
Manila
CORDILLERA GLOBAL NETWORK

REPRESENTED BY ITS PRESIDENT
GLORIA ABAEO, et. al.,
Petitioners, G.R. No. 215988
Petition for Review on
Certiorari under Rule 45
-versus- (with prayer
for Temporary Restraining
RAMON J. PAJE, in his capacity Order and Writ of
as Secretary of the Department Preliminary Injunction)
of Environment and Natural Re-
sources, et. al.,
Respondents.
x---------------------------------------------x
JUDY LYN ADAJAR, et. al.,

Petitioners,
-versus-
RAMON J. PAJE, in his capacity

as Secretary of the Department
of Environment and Natural Re-
sources, et. al.,
Respondents,
x---------------------------------------------x
PETITION
COME NOW, Petitioners through counsels, and unto this
Honorable Court, most respectfully aver:
PROLEGOMENA
There are questions and there are answers.
What does a zoning ordinance have to do with the

environment? Nothing. Therefore, a violation of Baguio City’s
zoning ordinance may not be redressed through an
Page 1 of 75
Petition for Review; CGN, et alii v. Paje
environmental action under the 2010 Rules of Procedure in

Environmental Cases.
If a person or entity was never made a party to an

application for environmental compliance certificate or a
building permit, does s/he or it need to exhaust the
administrative remedy of appeal within 15 days upon receipt of
the decision on the application? Yes. Does it apply even if that
person or entity was not notified by the government agency of
such decision? Yes. The non-inclusion of that entity or person “as
a party to the applications for ECC, tree-cutting and
earthballing permit and building permit will not divest the
Secretary of the (Department of Environment and Natural
Resources), the Secretary of the (Department of Public Works
and Highways), or the Office of the President, as the case may
be, of their respective primary jurisdiction.”1
Is the requirement of the Local Government Code for the

conduct of mandatory public consultations on a project that
affects the ecological balance applicable to SM’s proposed
commercial complex which was classified by the DENR as a
project in an environmentally critical area? No. Public
consultations are not required for projects of the private sector.
Is consultation with and indorsement of the appropriate
Sanggunian as provided under Sec. 27 of the Local Government
Code required for such project? No. Sec. 27 requiring
consultation with and prior indorsement of the appropriate
Sanggunian applies only to projects implemented by the
national government. A project of SM does not fit the bill
because SM is a private entity. This is the ruling of the Supreme
Court in Lina v. Pano.2 The doctrine laid down by the Supreme
Court in the 2012c case of Boracay Foundation v. Aklan 3
requiring prior public consultation and prior indorsement by the
appropriate Sanggunian does not apply to SM.
If an entity like SM was able to obtain an ECC a)without

prior consultation with the local government, the public, and
other stakeholders, b) without the indorsement of the
appropriate Sanggunian, c) without proving social
acceptability of the project, and d) with so many attendant
irregularities, may the court invalidate the ECC? No. The issuing
agency is presumed to have regularly issued it. Besides, did the
1 Decision of the Court of Appeals, pp. 17-18; Annex A hereof.

2 Lina v. Pano, GR No. 1209093, 21 August 2001, 364 SCRA 76.
3 Boracay Foundation, Inc. v. The Province of Aklan, GR No. 196870, June 26, 2012.
Page 2 of 75
person questioning it appeal the decision to grant it to the DENR

regardless of the fact that s/he was not a party to the
application and was not notified of the decision?
If a proposed project is non-compliant with Baguio’s zoning

ordinance, may the court, acting as an environmental court,
void the building permit issued by the building official? No. The
building official is presumed to have performed his/her duties
regularly. Besides, a zoning ordinance is not an environmental or
related law, rule, or regulation which may be enforced through
an environmental case. What about a case where the applicant
for building permit made misrepresentations in the application?
It does not matter. Under the law, the grantee of a building
permit is presumed to have complied with all the requirements.
Otherwise, why was it granted a permit?
Who has the burden of proof as regards the presence or

absence of environmental damage from a project certified by
the DENR as one in an environmentally critical in contemplation
of the Rules of Procedure in Environmental Cases which calls for
the application of the Precautionary Principle? It is the party
alleging environmental damage.
If the testimony of a witness in an application for a

temporary environmental protection order (TEPO) was hailed by
the court as the testimony of an “environmental scientist”
“based on his actual experience” as such,4 may the same
testimony offered in the main environmental case be
repudiated by the same court for “not (being) based on his
personal knowledge but on mere predictions5 and “mere
conclusions of fact devoid of any scientific basis or proper
attribution?”6 Yes. In a TEPO application, the issue is whether the
applicants will suffer grave and irreparable injury, which is not
the same issue in the main case. If the testimony of a witness
against a TEPO was rejected and dismissed as unreliable for
being “based merely on theories lifted from literature,”7 may the
same testimony offered in and adopted for the main case be
assessed differently as that of a “tree expert”8 and accepted as
credible for “substantially lifted from scientific literatures?”9 Yes.
The same reasoning applies.
4 Order on the Application for TEPO, p. 2; Annex “E” hereof

5 Decision, p. 10
6 Id.
7 Order on the Application for TEPO, p.2; Annex “E” hereof
8 Id.
9 Decision of Regional Trial Court, p. 10; Annex “C” hereof
Page 3 of 75
There are questions. There are answers. The questions are

fair. The answers are either absurd or non sequitur, or both. Either
way, they are errors under law. These errors were the answers of
the trial court to the questions of Petitioners. These errors were
repeated by the Court of Appeals as its answers to issues raised
by Petitioners on appeal in its Decision, a true copy of which is
hereto appended as Annex A and made an integral part
hereof.
Before this Honorable Court, the Court of final resort,

Petitioners raise the same questions.
THE PARTIES
A. Petitioners
1. Petitioners CORDILLERA GLOBAL NETWORK, CORDILLERA

PEOPLES ALLIANCE, CORDILLERA INDIGENOUS PEOPLES
LEGAL CENTER, CORDILLERA ECOLOGICAL PINE TREE
CENTER, and CENTER FOR ENVIRONMENTAL DEVELOPMENT
AND STUDIES, are juridical entities duly registered under
Philippine law and herein represented by their respective
attorneys-in-fact.
2. Petitioners GABRIELA ALTOMONTE AND AENEAS ALTOMONTE,

KATHLEA FRANCYNN GAWANI D. YAÑGOT; ZACHARY T. DISTOR AND
AGATHA ZITA T. DISTOR, JUSTICE YVONNE D. DONAAL, TRICIA
KATRINA M. ARNEDO, and MARGARET JALREYE M. ARNEDO are
minors represented by their respective parents.
3. All the other petitioners are of legal age and residents of

Baguio City.
4. Individual petitioners are suing in their personal capacities

and in the public interest in their capacities as citizens of
the Philippines to ensure the faithful implementation of
environmental laws by all agencies concerned.
B. Respondents
5. Respondent RAMON J.P. PAJE (PAJE)is of legal age, Filipino,

Secretary of the Department of Environment and Natural
Resources and with office address at Visayas Avenue,
Diliman, 1100 Quezon City. The DENR is primarily mandated
for the conservation, management, development, and
Page 4 of 75
proper use of the country’s environment and natural

resources.
6. Respondent Atty. JUAN MIGUEL CUNA is the Director of the

Environmental Management Bureau of the DENR which
was elevated into a line bureau of the DENR pursuant to
Republic Act No. 7942.
7. Respondent MAURICIO DOMOGAN is the incumbent

Mayor of the City of Baguio.
8. Respondent CLARENCE BAGUILAT was the Regional

Executive Director of the Department of Environment and
Natural Resources-Cordillera Administrative Region when
the acts described herein were committed.
9. Respondent SEC. ROGELIO SINGSON is the Secretary of the

Department of Public Works and Highways (DPWH).
10. Respondents SM INVESTMENT CORPORATION, SM

PRIME HOLDINGS, and SM SUPERMALLS are stock profit-
corporations doing business in the Philippines, all of which
are controlled by Henry Sy. They are hereafter collectively
and individually referred to as SM.
NATURE OF THE CASE AND STATEMENT

THEREOF FOR PETITIONERS
1. This Petition is an Appeal by Certiorari before the Supreme

Court under Rule 45 of the Revised Rules of Court,
questioning the decision of the Honorable Court a quo
affirming the dismissal of the environmental cases filed by
Petitioners against Respondents under the 2010 Rules of
Procedure for Environmental Cases praying that the Court
would set aside as null and void the Environmental
Compliance Certificate and Tree-Cutting/Balling permits
issued by Sec. Paje to SM Prime Holdings or SM Investment
Corporation, and to set aside the building permit issued in
favour of the same respondents, and enjoin permanently
the cutting and/or earthballing of pine trees on Luneta Hill,
Baguio City.
2. The environmental cases arose when SM announced its plan

to expand its existing mall in Baguio’s Central Business District
classified under the City Zoning Ordinance as a Low-Density
Page 5 of 75
Commercial Zone over which neither a large mall or parking

lot or garage facility may be constructed. The expansion
would cover a parcel of land adjacent to SM’s existing mall,
the ownership of which is yet at best unsettled. It would
necessitate the cutting and/or balling of 182 trees, the
remaining tree cover standing on Luneta Hill, which is the
birthplace of Baguio City and therefore is a historical heritage.
3. Although called an expansion project, it is in reality a new

project of colossus proportion – a regional mall consisting of
an aggregate of 11 storeys with a 5-storey parking lot, a sky
garden, commercial spaces, and many more right at the
heart of the city and over its most cherished site.
4. Gods and goddesses in the local and national governments

acted either in conspiracy or individually to make SM’s grand
dream a reality- or almost a reality - until these cases were filed
to protect the integrity of environmental laws, governance,
and of the environment itself.
5. The project was not indorsed by the Baguio Sangguniang

Panglunsod. However, it was indorsed by City Mayor Mauricio
G. Domogan. The City Planning and Development Office
through its Officer-in-Charge Evelyn Cayat issued a
zoning/locational clearance despite the fact that it is of such
nature that it could not be erected in the Central Business
District. Likewise, despite the violation of the Zoning Ordinance
and the City Ordinance limiting buildings to a maximum of six
(6) storeys, the City Building and Architecture Office issued a
building permit.
6. The Department of Environment and Natural Resources

granted the respondent SM Prime Holdings an Environment
Compliance Certificate (ECC) by amending an ECC issued to
another entity, SM Investment Corporation, in 2001. The same
agency issued a tree-cutting and balling permit with the
condition that SM should first secure an ECC. No prior public
consultations were held to determine social acceptability of
the project classified by the DENR as a project in an
Environmentally Critical Area. By law, the co-located project
must undergo the Environmental Impact Assessment process
and secure an ECC which means it would have to conduct
public consultations.
Page 6 of 75
7. While Petitioners respect private property rights, they also

argue that property rights must always yield to police power
to protect the environment and the right of the people to a
healthful ecology, among others. At any rate, SM is not the
owner of the land proposed as site for its project. The
government could not have sold a public land to SM, a
juridical enity, as this would have contravened the
Constitution.
8. Those who do not live in Baguio like the owners of SM cannot

appreciate the attachment of the local people to trees
especially the pine trees which are very much part of the city’s
historical heritage. To the outsider, a pine tree is nothing. It is
an obstacle to development that must be cut or uprooted. To
the Petitioners, however, the pine tree is their history, their past,
their future. It is their lung. While trees should be cut down to
serve human needs, they should never be destroyed in the
name of greed. They invoke environmental justice which is –
the fair treatment and meaningful involvement

of all people...with respect to the development,
implementation, and enforcement of
environmental laws, regulations, and policies.
Fair treatment means that no group of people,
including… ethnic or socioeconomic groups,
should bear a disproportionate share of
negative consequences resulting from industrial,
municipal, and commercial operations or the
execution of... environmental programs and
policies. Meaningful involvement means that:
(1) potentially affected community residents
have an appropriate opportunity to participate
in decisions about a proposed activity that will
affect their environment and/or health; (2) the
public’s contribution can influence the
regulatory agency’s decision; (3) the concerns
of all participants involved will be considered in
the decision-making process; and (4) the
decision-makers seek out and facilitate the
involvement of those potentially affected.10
10U.S. Environmental Protection Agency, Office of Environmental Justice, Guidance to Assessing

and Addressing Allegations of Environmental Injustice, Working Draft, 7 (January 10, 2001).
Page 7 of 75
9. Petitioners believe they have a strong case. The recent

Supreme Court decision in Boracay Foundation v Aklan
applies squarely in their favour.
STATEMENT OF FACTS
10. On 14 June 2011, private respondents-appellees, acting

through one Mr. Bien C. Mateo, Vice-President for Mall
Operations, wrote a letter to the City Government
expressing the company’s desire to expand SM Supermalls
located on Luneta Hill, Baguio City.11
11. Under SM’s plan,12 it would construct an 11-storey

commercial complex which would be called SM Pines
Resort, with a 5-storey parking lot. However, in applying for a
building permit, SM misrepresented that its complex would
have only four storeys.13
12. On 11 July 2011, the City Government of Baguio, through

Mayor Mauricio G. Domogan indorsed the desire of SM to
the office of public respondent Paje.14 The same
indorsement required SM to conduct consultations and to
secure an environmental compliance certificate.
13. The Baguio City Council did not indorse the project making
Mayor Domogan’s act an improper arrogation of the
powers of the Baguio City Council. Four councilors filed
resolutions calling for investigation.15
14. The area on which the private respondents seek to expand

their mall is within the Central Business District which is a low-
density commercial zone under the City Government’s Land
Use Plan and its Zoning Ordinance16 which SM admitted in
its own pleadings.
15. In 2001, respondent SM Investment Corporation was issued

an Environmental Compliance Certificate17 which
supported the construction of the existing SM mall in Baguio.
11 Answer for Respondent SMPH p.2, par.14.

12 TSN September 25, 2012 (Testimony of Bien Mateo)
13 TSN September 27, 2012 (Tetimony of Engineer Oscar Flores), B
14 Exhibit 30 of Respondent SM Prime Holdings
15
16 Exhibit TT of Plaintiffs-Appellants and are Annexes “4” and “5” in the respective Answers of
Respondents SMIC and SM Prime Holdings
17 Exhibit 5 for Respondent SMPH
Page 8 of 75
16. Subsequently, using the illegal indorsement by the City

Mayor of the SM expansion plan and treating it as the
indorsement of the same project by the City of Baguio, SM
applied for a permit to cut and earth-ball Benguet pine and
alnus trees over a parcel of land on Luneta Hill which is still
part of the public domain but which SMIC is falsely claiming
to be its property despite the absence of any
unquestionable paper or certificate of title to back up its
claims.
17. In September 2011, respondent DENR official Juan Miguel

Cuna issued to appellee SM Prime Holdings an Amended
ECC18 dated 22 September 2011. This was a mere revision of
the 2002 ECC issued in favour of SMIC, a different entity. The
amended ECC authorized the construction of additional
parking levels, retail shops and restaurants. From the
language of the amended ECC, it is clear that it was SMPH
and not SMIC which applied for the amendment.
18. SM’s project was classified by DENR as a Category B-

Project19 or “a project which may cause negative
environmental impacts because they are located in
Environmentally Critical Areas (ECA’s).”20
19. All that the DENR required from SMPH was the submission of
Environmental Performance Report and Management Plan
(EPRMP)21 despite the fact that the proposed expansion is
not a single project.
20. The project is a co-located project defined by DAO 2003-

30 as “(a project), or series of similar projects or a project
subdivided to several phases and/or stages by the same
proponent, located in contiguous areas” as it will entail the
construction in three phases22 of a 500-room hotel, a 5-storey
parking lot, an aggregate of retail stores, restaurants, and
more commercial spaces as described in its EPRMP and its
supporting documents submitted to the Court and testified
to by its witnesses.23
18 Exhibit H for the Plaintiffs; admitted by all the parties and in the Answers.
19 Admitted by Private Respondent Appellee’s Answer; also in the Decision
20 Section 4(3) DAO 2003-30
21 Annex 10, Answer of SMIC; also noted by the Regional Trial Court in its Decision, p. 13
22 Page 33 of EPRMP, Exhibit 45 for SMPH
23 Also see TSN, Testimony of Oscar Flores, 27 September 2012; pp. 7, 15.
Page 9 of 75
21. Under DAO 2003-30,24 the proponent of a co-located

project under the Category B classification must submit a
Programmatic Environmental Performance Report and
Management Plan (PEPRMP) or a “documentation of
actual cumulative environmental impacts of co-located
projects with proposals for expansions” which “should also
describe the effectiveness of current environmental
mitigation measures and plans for performance
improvement.”25 Such PEPRMP was not required by DENR of
SM, nor was one submitted prior to the issuance of an
amended ECC.
22. Respondent Paje approved the application through a

Memorandum dated 17 October 2011. The permit granted
SM the authority to cut down 43 alnus trees and earthball 97
naturally grown Benguet pine trees including 42 saplings of
Benguet pine and alnus trees. Consequently, Dir. Clarence
Baguilat, then Regional Executive Director of DENR-CAR,
wrote a letter dated October 27, 2011 addressed to Engr.
Bien C. Mateo, VP-Operations SM Super Malls, Baguio City,
informing the latter of the approval of the application for a
tree cutting and earthballing.
23. No environmental impact assessment was conducted prior

to the issuance of the permit to cut and ball trees. Neither
was one conducted after. No public consultations were
conducted to determine social acceptability.
24. Subsequently, Engr. Oscar Flores, Baguio City Building and

Architecture Official, acting as an officer of the Department
of Public Works and Highways issued a building permit in
favour of SM.26
25. Prior to their questioned actions, the DENR and the DPWH
did not consult the Baguio City Local Government through
the Sangguniang Panlungsod, the barangay local
government units proximate to SM, nongovernmental
organizations and other sectors concerned about the
expansion of SM27 as required by Sections 26 and 27 of the
Local Government Code.
24 As contained in its Environmental Procedural Manual for the Implementation of the

Environmental Impact Assessment of the DENR submitted as Exhibit LL for the Plaintiffs.
25 Id.
26 Exhibit 22 of Respondent SMPH
27 Exhibits UU and JJ for Plaintiffs.
Page 10 of 75
26. One of the conditions in the tree cutting and/or

earthballing permit is that SM should “conduct meetings or
public consultations with LGUs, NGOS, and other
stakeholders in the area and obtain the necessary
environmental compliance certificate.”28 However, no
public announcement of any consultation was ever made
to invite the public and concerned civil society organizations
to participate. Petitioners who are “stakeholders in the
area” being residents of Baguio City who frequent the
Central Business District have not read or heard of a notice
to a consultation in which they could have participated. If
ever there were consultations with groups or individuals,
these were done clandestinely and are not even to be
regarded as substantial compliance with the mandatory
public consultation requirement under the Local
Government Code,29 the Constitution and even
international law.
27. Upon learning about the expansion project and the

cutting and balling of trees, various groups and residents in
the city expressed their opposition.
28. SM then started consulting small groups. One meeting was

held on 17 January 2012 and another one was held on
January 20, 2012. 30
29. On 20 January 2012, a huge rally was staged by Baguio

residents to demonstrate public opposition to the project.
This was one of the biggest mass actions ever to take place
in the city of Baguio in its century-old history. The sheer size
and determination of the crowd compelled the City
Government to deploy several members of the police force
to secure SMIC from unfounded suspicions that the people
would take over the mall. Various mass actions were likewise
staged subsequently by residents to express opposition to
SM’s project. All of these plainly indicate that SM’s plan is not
acceptable to the people of Baguio City.
30. SM did not obtain an ECC to cut and ball trees as required
under its tree-cutting permit.
28 Exhibit “C” for Plaintiffs, particularly item no.1, hereto attached as Annex “F”
29Particularly Chapter III Article I, Sec. 26.
30 Admitted during the Pre Trial.
Page 11 of 75
31. Neither did SM obtain an ECC for its expansion project

which violates PD 1121 and PD 1586. The ECC SM Prime
Holdings and SM Supermalls used to support the SM
expansion is a 2001 ECC which was issued in favour of SM
Investment Corporation (SMIC), another corporation. This
was amended by respondent Dir. Cuna of the
Environmental Management Bureau of the DENR.
32. Petitioners and many others staged various protests

hoping to make public respondents rectify their illegal
decisions. The instant environmental cases were eventually
filed versus Paje, Cuna, Singson and SMIC.
33. While the first case was pending, a public announcement

was made by SM’s lawyer on local television that no tree
cutting or earthballing activity would take place while the
said Civil Case is pending.
34. Yet, SM started felling and cutting trees on 9 April 2012.31

This was made with the blessings of Sec. Paje and other DENR
officials who had a meeting with SM –obviously an act
constituting graft and corruption- where they noted that the
pendency of a case but still agreed that tree cutting should
be implemented after the Holy Week of 2012.
35. Even as trees were being felled, Dir. Baguilat did not lift a
finger nor did he at least send representatives from his office
to ensure that tree cutting was being done scientifically and
with the least damage to the environment, assuming that
the cutting was in accordance with law.
36. Furthermore, notwithstanding the issuance of a 72-hour

Temporary Environmental Protection Order in the aforecited
Civil Case, SM, in blatant defiance, still proceeded to cut
trees in the dead of night. It also erected fences to obstruct
human view of its illegal activities. However, several people
still managed to witness the cutting of trees and attempted
to stop SM’s act but they were assaulted by SM’s security
guards.
SUMMARY OF PROCEEDINGS
31 This led to the filing of Civil Case 7526-R for Contempt which the Judge also disposed of in the
assailed Decision
Page 12 of 75
37. On February 27, 2012, Petitioners in Civil Case No. 7595-R

filed for Injunction before the Environmental Court of Baguio
City against herein Respondents-Appellees
38. In the same Complaint, they prayed for the issuance of a

Temporary Environmental Protection Order enjoining the
private Respondents from cutting and/or earthballing the
pine and alnus trees, and after a summary hearing, to
extend the TEPO until the termination of this case.
39. On the same day, they filed an urgent motion for the
issuance of a TEPO.
40. Instead of issuing a TEPO, Judge Antonio Esteves of the

Environmental Court set the application for hearing.
41. Despite the termination of the hearings, the Court did not
issue a TEPO.
42. At midnight on 9 April 2012, Petitioners in Civil Case No.

7595-R were alarmed when SM started cutting/balling trees,
even without the required ECC for doing so.
43. On 10 April 2012, Petitioners filed an urgent motion for the

issuance of a TEPO with a prayer for the conduct of an
ocular inspection.
44. Judge Esteves of the Environmental Court did not report to

his office. However, a TEPO was eventually issued by his
pairing judge, Hon. Cleto Villacorta III. A copy of the TEPO
was served on SM in its Baguio Office.
45. Arguing that the Baguio Office was not authorized to

receive notices and orders for the Fortun Law Office acting
on behalf of SM Investment Corporation, and that an order
against SMIC did not apply to SM Prime Holdings which is
allegedly the project developer and is separate and distinct
from SMIC, SM proceeded to cut/ball trees at night.
46. When more almost fifty trees were already cut/balled, SM

stopped its activities.
47. On 13 April 2012, Petitioners filed an Urgent Motion to

Extend the TEPO Issued on 10 April 2012 with Motion to
Page 13 of 75
Resolve. In the urgent motion, the Court was asked to resolve

the application for TEPO.
48. The Court issued an order granting the TEPO Application.
49. Meantime, Civil Case No. 7629-R, the second

environmental case was filed on 13 April 2012. Substantially
similar to the first Complaint, it impleaded as Respondents
SM Supermalls, SM Prime Holdings and DENR Cordillera
Director Baguilat as Respondents.
50. A Plaintiff-Appellant also filed a complaint to cite

Respondent Apellee SMIC and its representatives for
contempt for violating the TEPO when it proceeded to
cut/ball trees despite receipt of the Order. A hearing was
held where Judge Esteves said that no contempt was
committed. That was the end of the case.
51. Both cases were consolidated. Answers were filed and

issues were consolidated. Subsequently, hearings were held.
52. When all the parties rested their cases, the two complaints
were submitted for decision.
53. Petitioners filed their Memorandum on 29 November 2012.

Thereafter, the Court issued a decision dismissing the
Complaints.
54. On 27 December 2012, Petitioners in both cases filed their

Notice of Appeal.
55. The parties then filed their respective appeal briefs32.
56. After almost two years, the Court of Appeals dismissed the
appeal, siding with the respondents on all issues.
MATERIAL DATES
57. On 22 January 2015, Petitioners, through counsel, received

the decision of the Court of Appeals.
58. Within the reglementary period to file an appeal, counsels

for Petitioners moved for extension of time until 23 February
32
Appeal Brief for Petitioners, Annex B hereof
Page 14 of 75
2015 to file their appeal. This was foremost because of the

difficulty in contacting many of the original Petitioners to
discuss the decision with them, and consult them on the
ensuing course/s of action.
59. This appeal is being instituted within the extended period

sought for.
STATEMENT OF THE ISSUES
60. The issues in these cases are the following:
A. WHETHER OR NOT THE HONORABLE COURT A QUO

GRAVELY ERRED UNDER LAW WHEN IT HELD THAT A
ZONING ORDINANCE IS NOT AN ENVIRONMENTAL OR
RELATED LAW, RULE, OR REGULATION ENFORCEABLE
UNDER THE RULES OF PROCEDURE IN ENVIRONMENTAL
CASES.
B. WHETHER OR NOT THE HONORABLE COURT A QUO

GRAVELY ERRED UNDER LAW WHEN IT HELD THAT THE RULE
ON THE EXHAUSTION OF ADMINISTRATIVE REMEDIES IS
APPLICABLE IN CHALLENGES TO THE ISSUANCES OF AN
ENVIRONMENTAL COMPLIANCE CERTIFICATE, A BUILDING
PERMIT, AND A TREE CUTTING PERMIT WHERE THE
CHALLENGERS WERE NOT MADE PARTIES IN THE
APPLICATION THEREFOR.
C. WHETHER OR NOT THE HONORABLE COURT A QUO

GRAVELY ERRED UNDER LAW IN RULING THAT SEC. 27 OF
THE LOCAL GOVERNMENT CODE MANDATING PUBLIC
CONSULTATIONS DOES NOT APPLY TO PROJECTS
INITIATED BY THE PRIVATE SECTOR AS ALLEGEDLY RULED BY
THE SUPREME COURT IN LINA V. PANO.33
D. WHETHER OR NOT THE HONORABLE COURT A QUO

GRAVELY ERRED UNDER LAW IN RELYING ON THE
PRESUMPTION OF REGULARITY OF IN THE PERFORMANCE
OF DUTIES DESPITE OVERWHELMING EVIDENCE TO THE
CONTRARY AS BASIS FOR UPHOLDING ALL PERMITS
AND/OR CLEARANCES IN FAVOR OF PRIVATE
RESPONDENTS.
33 Lina, supra., n.2.
Page 15 of 75
E. WHETHER OR NOT THE HONORABLE COURT A QUO

GRAVELY ERRED UNDER LAW WHEN IT DID NOT NULLIFY
THE AMENDED ENVIRONMENTAL COMPLIANCE
CERTIFICATE, TREE CUTTING PERMIT, AND BUILDING PERMIT
ISSUED IN FAVOR OF SM DESPITE EVIDENCE THAT THEY
WERE ISSUED IRREGULARLY, WITH A MERE BLANKET
INVOCATION OF THE PRESUMPTION OF REGULARITY OF
OFFICIAL DUTIES WITHOUT EXPLAINING WHY PETITIONERS’
EVIDENCE MUST FAIL.
F. WHETHER OR NOT THE COURT A QUO ERRED UNDER LAW

WHEN IN WEIGHING THE PROBATIVE VALUE OF THE
PARTIES’ RESPECTIVE EVIDENCE AS REGARDS DAMAGE TO
THE ENVIRONMENT, IT DISREGARDED THE PRECAUTIONARY
PRINCIPLE BY SHIFTING THE BURDEN OF PROOF ON THE
PETITIONERS.
G. WHETHER OR NOT THE COURT A QUO GRAVELY ERRED

UNDER LAW WHEN IT WHEN IT ASSESSED THE CREDIBILITY
AND RELIABILITY OF TESTIMONIES IN THE MAIN CASE
CONTRADICTORILY TO HOW THEY WERE ASSESSED IN THE
APPLICATION FOR TEPO IN WHICH THEY WERE FIRST
OFFERED.
SUBMISSIONS
61. Petitioners make the following submissions:
A. The Court of Appeals gravely erred under law in holding that

a zoning ordinance is not an environmental law or regulation
and thus its violation may not be raised in an environmental
case.
B. The Court of Appeals gravely erred under law in sustaining

the Regional Trial Court in holding that Petitioners-Appellees’
failed to exhaust administrative remedies to question the
assailed amended ECC, the tree-cutting permit, and the
building permit issued to SM by way of appeal even if the
Petitioners were not made parties to SM’s applications for the
said government clearances/permits.
i. It ignored the ruling in Boracay v. Aklan which

applies squarely to this case. In that case as
Page 16 of 75
in this case, the Petitioners were not made

parties to the application for ECC.
ii. Sec. 6 of DAO 2003-30 and Sec. 1 of DAO

1990-87 cited by the Court, which provides
appeal to the Secretary of the DENR as a
remedy of a party who wants to challenge
the issuance/non-issuance of an ECC, apply
only to cases where complainant/s received
a copy of the decision on the ECC
application or tree-cutting permit. Petitioners
were never made parties by the DENR to the
ECC and tree-cutting permit applications of
SM.
iii. Sec. 307 of the National Building Code, the

basis of the RTC’s ruling that Petitioners should
have exhausted administrative remedies to
question the building permit which was
sustained by the Court a quo applies only to
a case where the applicant for a building
permit seeks the reversal of the decision of the
Building Officer. Petitioners were not the
applicants for building permit.
C. The Court of Appeals gravely erred under law in holding that

public consultations as mandated under Section 27 of the
Local Government Code are not required for projects of the
private sector. Lina v. Pano on which the court relied is not
applicable since it did not deal with a project affecting the
environment and ecological balance which must be
subjected to public consultation under Section 26 of the same
Code.
i. Sec. 27 of the Local Government Code

requiring the endorsement of the appropriate
Sanggunian of all projects implemented by
the national government contemplates that
such projects include those authorized the
national government even if actually
undertaken by another entity pursuant to the
ruling in Boracay.
ii. Sec. 26 of the Local Government Code

contemplates that the DENR, as the agency
Page 17 of 75
that authorized the SM project, must conduct

consultations with the local government of
Baguio prior to the issuance of an ECC to the
project proponent.
D. The Court of Appeals gravely erred under law in relying on the

presumption of regularity of in the performance of duties
despite overwhelming evidence to the contrary as basis for
upholding all permits and/or clearances in favor of private
respondents.
E. The Court of Appeals gravely erred under law when it did not
nullify the building permit, amended environmental
compliance certificate, and tree cutting/balling permit
issued in favor of SM despite evidence that they were issued
irregularly with a mere blanket invocation of the presumption
of regularity of official duties without explaining why
petitioners’ evidence must fail.
i. SM’s project to be built in the Central Business

District classified under the Zoning Ordinance
as a Low Density Commercial Area is a large
mall or a supermall. Under the said ordinance,
large malls and supermalls allowed only in
high density commercial zones and not in the
central business district.
ii. SM’s proposed project includes a 5-storey

parking lot which under the Baguio Zoning
Ordinance and Comprehensive Land Use
Plan allowed in Medium-Density
Commercial Zones but not in Low-Density
Commercial Zones such as the Central
Business District.
iii. SM is not the legitimate owner of the land on

which the expansion project would be built.
iv. The ECC was issued even without social

acceptability of the project.
v. Consultations -which were even inadequate-

as required by law were conducted after
Page 18 of 75
the ECC was issued, a classic case of

putting the cart before the horse.
vi. There was no prior endorsement of the Baguio

City Council which, according to the doctrine
laid down in Boracay, is mandatory for the
issuance of an ECC.
vii. Appellee SMIC’s ECC in 2001 was amended

in favor of Respondent SMPH in 2011.
Amendment in this case is illegal for two
reasons: a) the two entities are distinct; and
b) the proposed expansion project is a new
one that requires a different ECC.
viii. SM did not obtain an environmental

compliance certificate in violation of the
condition set by the DENR in granting its tree
cutting and balling permit.
F. The Court of Appeals erred under law when in weighing the

probative value of the parties’ respective evidence as
regards damage to the environment, it disregarded the
precautionary principle enshrined in the Rules of Procedure in
Environmental Cases by shifting the burden of proof on the
petitioners.
G. The Court of Appeals gravely erred under law when it

assessed the credibility and reliability of testimonies in the
main case contradictorily to how they were assessed in the
application for TEPO where they were first offered.
DISCUSSION
THE COURT OF APPEALS ERRED IN HOLDING

THAT A ZONING ORDINANCE IS NOT AN
ENVIRONMENTAL OR RELATED LAW, RULE,
OR REGULATION AND THUS ITS VIOLATION
MAY NOT BE RAISED IN AN
ENVIRONMENTAL CASE.
62. Of all the preposterous pronouncements of the Court of
Appeals, the declaration that a zoning ordinance is not an
environmental or related law, rule, or regulation34 tops them
34 Decision, Court of Appeals, pp. 25-27; Annex A hereof.
Page 19 of 75
all. The Court cited Section 2 of the Rules of Procedure on

Environmental Cases and declared that a zoning ordinance
is not among those laws, rules, and regulations which may
be enforced through an environmental action.35 For clarity,
Petitioners reproduce said provision.
SEC. 2: Scope. – These Rules shall govern the

procedure in civil, criminal and special civil actions
before the Regional Trial Courts, Metropolitan Trial
Courts, Municipal Trial Courts in Cities, Municipal Trial
Courts and Municipal Circuit Trial Courts involving
enforcement or violations of environmental and other
related laws, rules and regulations such as but not
limited to the following:
(a) Act No. 3572, Prohibition Against Cutting of
Tindalo, Akli, and Molave Trees;
(b) Presidential Decree No. 705, Revised Forestry
Code;
(c) Presidential Decree No. 856, Sanitation
Code;
(d) Presidential Decree No. 979, Marine Pollution
Decree;
(e) Presidential Decree No. 1067, Water Code;
(f) Presidential Decree No. 1151, Philippine
Environmental Policy of 1977;
(g) Presidential Decree No. 1433, Plant
Quarantine Law of 1978;
(h) Presidential Decree No. 1586, Establishing an
Environmental Impact Statement System
Including Other Environmental Management
Related Measures and for Other Purposes;
(i) Republic Act No. 3571, Prohibition Against the
Cutting, Destroying or Injuring of Planted or
Growing Trees, Flowering Plants and Shrubs or
Plants of Scenic Value along Public Roads, in
Plazas, Parks, School Premises or in any Other
Public Ground;
(j) Republic Act No. 4850, Laguna Lake
Development Authority Act;
(k) Republic Act No. 6969, Toxic Substances and
Hazardous Waste Act;
(l) Republic Act No. 7076, People’s Small-Scale
Mining Act;
35 Id.
Page 20 of 75
(m) Republic Act No. 7586, National Integrated

Protected Areas System Act including all laws,
decrees, orders, proclamations and issuances
establishing protected areas;
(n) Republic Act No. 7611, Strategic
Environmental Plan for Palawan Act;
(o) Republic Act No. 7942, Philippine Mining Act;
(p) Republic Act No. 8371, Indigenous Peoples
Rights Act;
(q) Republic Act No. 8550, Philippine Fisheries
Code;
(r) Republic Act No. 8749, Clean Air Act;
(s) Republic Act No. 9003, Ecological Solid Waste
Management Act;
(t) Republic Act No. 9072, National Caves and
Cave Resource Management Act;
(u) Republic Act No. 9147, Wildlife Conservation
and Protection Act;
(v) Republic Act No. 9175, Chainsaw Act;
(w) Republic Act No. 9275, Clean Water Act;
(x) Republic Act No. 9483, Oil Spill Compensation
Act of 2007; and
(y) Provisions in Commonwealth Act No. 141, The
Public Land Act; Republic Act No.
6657,Comprehensive Agrarian Reform Law of
1988; Republic Act No. 7160, Local Government
Code of1991; Republic Act No. 7161, Tax Laws
Incorporated in the Revised Forestry Code and
Other Environmental Laws (Amending the
NIRC); Republic Act No. 7308, Seed Industry
Development Act of 1992; Republic Act No.
7900, High-Value Crops Development Act;
Republic Act No. 8048, Coconut Preservation
Act; Republic Act No. 8435, Agriculture and
Fisheries Modernization Act of 1997; Republic
Act No. 9522, The Philippine Archipelagic
Baselines Law; Republic Act No. 9593 [9513],
Renewable Energy Act of 2008; Republic Act
No. 9637 [9367], Philippine Biofuels Act; and
other existing laws that relate to the
conservation, development, preservation,
protection and utilization of the environment
and natural resources.
Page 21 of 75
63. Since a zoning ordinance is not an environmental law,

rule, or regulation, it follows that an action for its violation
cannot be instituted under the Rules on Environmental
Procedure. So says the Court of Appeals.
64. Strongly, Petitioners disagree. The list of laws, rules, and

regulations that may be enforced through the Rules is not
exhaustive. Sec. 2 clearly provides that the Rules may be
resorted to for the “enforcement or violations of
environmental and other related laws, rules and regulations
such as but not limited to” the list as cited above. The Court
of Appeals in its decision conveniently ignored the phrase
“such as but not limited to.” It also conveniently passed over
the modifier “related” in “environmental or related law, rule,
or regulation.”
65. Zoning involves as basic decisions as whether piggeries and

poultry farms should be allowed in residential areas, whether
plastic factories may be established in the university belts, or
whether a concrete structure may be erected on a sandy
land. Considerations for such decisions include
environmental matters. A zoning ordinance or more
particularly, Baguio’s zoning ordinance, is an “environmental
or related law, rule, or regulation.
66. Land use plans and zoning were recognized as

environmental concerns under Presidential Decree No. 1152,
otherwise known as the Philippine Environment Code,
Republic Act 7586 otherwise known as the National
Integrated Protected Areas System Act and other
environmental laws.
67. And so Petitioners were correct when they questioned, via

environmental complaints, the issuance of a building permit
to SM when its project site is classified as a Low-Density
Commercial Zone under Baguio City’s Zoning Ordinance No
51, Series of 2001.36 The project is also a large mall or a
supermall consisting of 11 storeys, five storeys of which will
be a parking lot.
68. In its Environmental Impact Statement,37 SM described its

existing mall which it proposes to expand as the largest of its
36 Exhibit 120 SMPH for Respondent SMPH, 75-1-P for Public Respondents. Hereto attached as
Annex “ G”
37 Exhibit 45 for Respondent SMPH
Page 22 of 75
malls “in the Cordillera Autonomous (sic) Region,” clearly

showing that it is a regional mall.
69. Furthermore, it stated in its EPRMP38 that its expansion

project would have the following major components: Phase
1: a) Hotel with 500 rooms, b) Shopping Mall; and c) Carpark;
Phase 2: Service apartments and b) Multipurpose center.
70. Baguio City’s Zoning Ordinance expressly provides that a

regional or large mall may only be erected on a High-
Density Commercial Zone while a parking lot may only be
constructed in the Medium-Density Commercial Zone. The
Zoning Ordinance exclusively enumerates in Sec. 10 the
allowable structures in the High Density Commercial Zone as
follows:
71. Assuming that SM is not a regional shopping mall and is not

a candidate for the high-density commercial zone, the fact
that it has a parking lot component with 5-storeys as per plan
submitted to the City Building Official39 qualifies it for the
medium-density commercial zone under the City
Ordinance.
72. This is how SM describes the parking lot component of its

complex in its Environmental Impact Statement which it
submitted as Exhibit 43-SMPH40 (by Respondent SMPH) and
adopted as Exhibit 3-P by public respondents.
73. Similarly, when Engr. Flores testified41 in these cases, he said

that SM’s structure would include a 5-storey parking lot. Here
were his exact words:
38 Page 33, EPRMP

39 TSN, 27 September 2012, p. 7
40 Page 8, EPRMP, Exh. 43 for Respondent SMPH
41 TSN, p. 7, September 27, 2012.
Page 23 of 75
74. Likewise, SM, in its own environmental impact assessment,

says that
the security and accessibility of SM City Baguio

makes it attractive and convenient for tourists
visiting Baguio to use the parking area of the
mall, thus resulting to (sic) increased demand for
a parking area.
…The proposed project is envisioned to provide

more parking and commercial spaces at SM
City Baguio.42
75. Parking lots are on the list of activities and uses allowed in
the C-2 or Medium-Density Commercial Zones. The list is as
follows:
42 Exhibit 45 for Respondent SMPH.
Page 24 of 75
76. All of the above, and more, were raised by Petitioners

before the Regional Trial Court and subsequently in their
appeal to the Court of Appeals.
77. How did the courts below respond? They should have
nullified SM’s building permit because its project is non-
compliant under the local government’s zoning ordinance
and the ordinance on building height. Instead, the Court of
Appeals said that the violation of a zoning ordinance is not
actionable under the Rules of Procedure in Environmental
cases.
78. It also invoked the presumption of validity of the building

permit. Again, the Court a quo deliberately misapplied the
teachings of this Honorable Court to support SM. It lifted
what this Honorable Court in Ombusdman v Espiritu43 on a
dissimilar case said, which is actually inapplicable without
even proper citation and attribution of the statement to the
source (in short, plagiarism):
From the foregoing provisions, it is clear, however,

that the requirements to be complied with for the
issuance of building permits are not limited to those
mentioned in the National Building Code. As can be
gleaned therefrom, clearances from various
government authorities exercising and enforcing
regulatory functions affecting buildings/structures,
like local government units, may be required before
a building permit may be issued. Thus, as long as the
additional requirements being asked for by these
government authorities are reasonable, we rule that
the applicant must comply and submit these other
requirements. Failure to do so is enough justification
for the denial of the application for the issuance of
the building permit.44
79. The above is not instructive in the Court a quo’s

decision. The Honorable Supreme Court’s ruling
applied to a case where a building permit was denied
by the building official because the applicant did not
comply with all requirements which “are not limited to
those mentioned in the National Building Code” but
includes “clearances from various government
43 Ombudsman v Espiritu, G.R. No. 174826, 8 April 2008.
44 Decision, Court of Appeals, p. 24.: Annex A hereof.
Page 25 of 75
authorities exercising and enforcing regulatory

functions affecting buildings/structures, like local
government units…”
THE COURT OF APPEALS GRAVELY ERRED IN

SUSTAINING THE REGIONAL TRIAL COURT’S
CONCLUSION THAT PLAINTIFFS-APPELLEES’
FAILED TO EXHAUST ADMINISTRATIVE
REMEDIES TO QUESTION THE ASSAILED
AMENDED ECC AND THE BUILDING PERMIT
ISSUED TO SM BY WAY OF APPEAL EVEN IF
THE PETITIONERS WERE NOT MADE PARTIES
TO SM’S APPLICATIONS FOR THE SAID
GOVERNMENT CLEARANCES AND/OR
PERMITS.
80. Before the Regional Trial Court, SM made the preposterous

claim –and the Court a quo erroneously sustained it- that
Petitioners’ complaints must fail because a) they neglected
to exhaust administrative remedies to challenge the ECC,
and b) they did not appeal the grant of a building permit to
SM. The pertinent pronouncement45 of the Regional Court is
hereby reproduced for clarity:
81. Sustaining the RTC, the Court of Appeals said that “the fact
that appellants were not parties to the applications for ECC,
tree-cutting and earth-balling permit and building permit will
not divest the secretary of the DENR, the secretary of the
45 Decision, Regional Trial Court. p. 9; Annex “C” hereof.
Page 26 of 75
DPWH or the Office of the President, as the case maybe of

their respective primary jurisdiction.”46
82. How could Petitioners question the issued ECC, tree-

cutting and earth-balling permit before the DENR which
holds primary jurisdiction over such matters when they,
Petitioners, had no knowledge of the issuance of said ECC
and permit, let alone the SM project?
83. The law is on Petitioners’ side. Incidentally, laws cited by the

Regional Trial Court whose decision was affirmed by the
Court a quo are the very same laws that fortify Petitioners’
position and hurl serious questions on the courts’ rulings.
Sec. 6 of DAO 2003-30 and Sec. 1 of DAO 1990-

87 cited by the trial court, which provides
appeal to the Secretary of the DENR as an
administrative remedy of a party who wants to
challenge the issuance/non-issuance of an
ECC, apply only to cases where complainant/s
received a copy of the decision on the ECC
application or tree-cutting permit. Petitioners
were never made parties by the DENR to the ECC
and tree-cutting permit applications of SM.
84. The DAO provision invoked by the trial court provides:
Section 6.Appeal
Any party aggrieved by the final decision

on the ECC / CNC applications may, within
15 days from receipt of such decision, file
an appeal on the following grounds:
a. Grave abuse of discretion on the part of
the deciding authority, or
b. Serious errors in the review findings.
Xxx 47
85. DAO 1990-87 provides:
Sec. 1. Perfection of Appeals. - a) Unless

otherwise provided by law or executive order,
appeals from the decisions/orders of the DENR
46 Decision, Court of Appeals, pp. 17-18; Annex “A” hereof.
47 Sec. 6, DAO 2003-30; Emphasis supplied
Page 27 of 75
Regional Offices shall be perfected within fifteen

(15) days after receipt of a copy of the
decision/order complained of by the party
adversely affected, by filing with the Regional
Office which adjudicated the case a notice of
appeal, serving copies thereof upon the
prevailing party and the Office of the Secretary,
and paying the required fees.
86. Under both administrative orders, the appeal must be

perfected within 15 days after receipt of the copy of the
decision or order complained of by the party adversely
affected.
87. None of the Petitioners received a copy of the DENR

decision on any ECC application by SM. The DENR did not
issue any public notice of the amendment of SM’s ECC to
allow its expansion project.
88. Petitioners maintain that SM, Domogan, and the DENR did
things clandestinely and ensured that the public would be
left out so that they could accomplish their objective of
making sure the former would expand its mall. This was
made clear by Petitioners in Court, in their complaints48 as
well as during the hearing. Respondents/Appellees did not
show proof to the contrary. And yet, the Court a quo
sustained them.
Boracay v. Aklan does not support the Court a

quo’s ruling as it holds that a person or entity not
made party to an ECC application need not
exhaust administrative remedies.
89. In Boracay Foundation v. Aklan49 which is an environmental

case with similar facts, respondents claimed that the petition
questioning the validity of the ECC must be dismissed
because, like Petitioners herein, the petitioner did not
exhaust administrative remedies as provided under DENR
DAO-2003-30.
90. The Supreme Court said,
48 Complaint in Civil Case No. 7595-R and Complaint in Civil Case No. 7596-R, hereto attached as
Annex “H” {,both complaints containing basically the same allegations.
49 Boracay, supra., n. 3.
Page 28 of 75
As petitioner correctly pointed out, the appeal

provided for under Section 6 of DENR DAO 2003-30 is
only applicable, based on the first sentence thereof,
if the person or entity charged with the duty to
exhaust the administrative remedy of appeal to the
appropriate government agency has been a party or
has been made a party in the proceedings wherein
the decision to be appealed was rendered. It has
been established by the facts that petitioner was
never made a party to the proceedings before
respondent DENR-EMB RVI. Petitioner was only
informed that the project had already been
approved after the ECC was already granted. Not
being a party to the said proceedings, it does not
appear that petitioner was officially furnished a copy
of the decision, from which the 15-day period to
appeal should be reckoned, and which would
warrant the application of Section 6, Article II of DENR
DAO 2003-30.50
Sec. 307 of the National Building Code, the

basis of the RTC’s ruling that Petitioners should
have exhausted administrative remedies
which was sustained by the Court a quo
applies only to a case where the applicant for
a building permit seeks the reversal of the
decision of the Building Officer. Petitioners
were not the applicants for building permit.
91. Not content with wrongly invoking Sec. 6 of DAO 2003-30

against Petitioners, the Respondents-Appellees and the
Regional Trial Court deliberately misapplied Art. 307 of the
National Building Code to favor SM. The provision states:
Section 307. Appeal. Within fifteen (15) days

from the date of receipt of advice of the non-
issuance, suspension or revocation of permits, the
applicant/permittee may file an appeal with the
Secretary who shall render his decision within fifteen
days from date of receipt of notice of appeal. The
decision of the Secretary shall be final subject only to
review by the Office of the President.(Emphasis
supplied)
50 Citations removed.
Page 29 of 75
92. There is no way the above provision could be read to arrive

at the interpretation that the remedy of appeal it provides
applies to a person other than the permittee/applicant.
Unfortunately, Judge Antonio Esteves who signed the
Decision is no longer alive to shed light on the matter and
people can only speculate as to why it was written as it was.
93. But in our system of justice, we have appellate courts to

review patently erroneous decisions. Hence, Petitioners
raised the deliberate twisting of the law before the Court a
quo believing that a fair assessment of their issue was still
viable.
94. However, it appears the Honorable Court a quo

eschewed its important role in our system of justice and
made its voice the echo of SM’s. Despite the glaring
misapplication of the principle of exhaustion of
administrative remedies, it chose to repeat the arguments of
SM
95. At any rate, assuming that Petitioners did not exhaust
administrative remedies, the present case involves strong
public interest and the act of the DENR is patently illegal.
Jurisprudence would show that there is no need to exhaust
administrative remedies when the act of the agency is
patently illegal,51 a fact which is crystal clear in this case. As
held by the this Honorable Court,
(T)here are a number of instances when the doctrine

(of exhaustion of administrative remedies) may be
dispensed with and judicial action validly resorted to
immediately. Among these exceptional cases are: 1)
when the question raised is purely legal;52 2) when the
administrative body is in estoppel;53 3) when the act
complained of is patently illegal;54 4) when there is
urgent need for judicial intervention;55 5) when the
claim involved is small;56 6) when irreparable damage
will be suffered;57 7) when there is no other plain,
speedy and adequate remedy;58 8) when strong
51 Sunville Timber Products v. Abad, G.R. No. 85502, February 24, 1992
52 Citing Valmonte v. Belmonte, 170 SCRA 256
53 Citing Tan v. Veterans Backpay Commission, 105 Phil. 377
54 Citing Laganapan v. Asedillo, 154 SCRA 377
55 Citing Aquino v. Luntok, 184 SCRA 177
56 Citing Cipriano v. Marcelino, 43 SCRA 291
57 Citing De Lara v. Cloribel, 14 SCRA 269
58 Citing National Development Company v. Collector of Customs, 9 SCRA 429
Page 30 of 75
public interest is involved;59 9) when the subject of the

controversy is private land;60 and 10) in quo
warranto proceedings.61
96. Similarly in Boracay, this Honorable Court held:
We do not agree with respondents’ appreciation of

the applicability of the rule on exhaustion of
administrative remedies in this case. We are reminded
of our ruling in Pagara v. Court of Appeals, ]which
summarized our earlier decisions on the procedural
requirement of exhaustion of administrative remedies,
to wit:
The rule regarding exhaustion of administrative

remedies is not a hard and fast rule. It is not
applicable (1) where the question in dispute is purely
a legal one, or (2) where the controverted act is
patently illegal or was performed without jurisdiction
or in excess of jurisdiction; or (3) where the respondent
is a department secretary, whose acts as an alter ego
of the President bear the implied or assumed
approval of the latter, unless actually disapproved by
him, or (4) where there are circumstances indicating
the urgency of judicial
intervention. ( Gonzales vs. Hechanova, L-21897,
October 22, 1963, 9 SCRA 230; Abaya vs. Villegas, L-
25641, December 17, 1966, 18 SCRA; Mitra vs. Subido,
L-21691, September 15, 1967, 21 SCRA 127.
Said principle may also be disregarded when

it does not provide a plain, speedy and adequate
remedy, (Cipriano vs. Marcelino, 43 SCRA 291), when
there is no due process observed (Villanos vs. Subido,
45 SCRA 299), or where the protestant has no other
recourse (Sta. Maria vs.Lopez, 31 SCRA
637). (Emphases supplied.) 62
THE COURT OF APPEALS ERRED IN HOLDING

THAT PUBLIC CONSULTATIONS AS
MANDATED UNDER SECTION 27 OF THE
59 Citing Arrow Transportation Corporation v. Board of Transportation, 63 SCRA 193

60 Citing Soto v. Jareno, 144 SCRA 116
61 Citing Corpus v. Cuaderno, 4 SCRA 749
Page 31 of 75
LOCAL GOVERNMENT CODE ARE NOT

REQUIRED FOR PROJECTS OF THE PRIVATE
SECTOR. LINA V. PANO ON WHICH THE
COURT RELIED IS NOT APPLICABLE SINCE IT
DID NOT DEAL WITH A PROJECT AFFECTING
THE ENVIRONMENT AND ECOLOGICAL
BALANCE WHICH MUST BE SUBJECTED TO
PUBLIC CONSULTATION UNDER SECTION 26
OF THE SAME CODE.
_________________________________________
97. The Court a quo did not disagree to Petitioners’ claim that
no public consultations were conducted on the SM project.
Neither did it disagree that such consultations should
precede the issuance of an ECC. Finally, neither did it
disagree that the SM project was not indorsed by the
Sangguniang Panlungsod of Baguio.
98. However, the Court a quo claimed that prior local

government indorsement through the relevant Sanggunian
required under Art. 27 of the Local Government Codes does
not apply to projects initiated by the private sector such as
SM,63 citing Lina v. Pano64 as the authority. The Court said
that since SM, a private entity, is the project proponent, it is
not correct to say that the national government is the
implementor.65
99. The Court of Appeals stretched this Honorable Court’s

ruling in Lina to favor SM. This Honorable Court never said in
Lina that a privately initiated project does not require public
consultation. What it said is that a lotto project of the
Philippine Charity Sweepstakes Office need not be
endorsed by the local government where the project would
be implemented.
100. The Court a quo’s lifting some statements of this

Honorable Court in Lina to support SM and deliberately not
presenting what It said that supports Petitioners is likened to
a cult leader’s act of twisting the Bible by selecting passages
from it seemingly supporting his/her concocted version of
gospel truth to deceive followers .
63 Lina, supra., n. 2.
64 Id.
Page 32 of 75
101. In Lina, this Honorable Court clarified:

Section 27 of the Code should be read in conjunction
with Section 26 thereof x x x.
Thus, the projects and programs mentioned in Section
27 should be interpreted to mean projects and
programs whose effects are among those
enumerated in Sections 26 and 27, to wit, those that:
(1) may cause pollution; (2) may bring about climatic
change; (3) may cause the depletion of non-
renewable resources; (4) may result in loss of crop
land, rangeland, or forest cover; (5) may eradicate
certain animal or plant species; and (6) other projects
or programs that may call for the eviction of a
particular group of people residing in the locality
where these will be implemented.66
102. The lotto project questioned in Lina is not the same as
SM’s which is classified as a Category B project under DENR’s
C DAO 2003-30. A lotto project does not affect the rhythm
and harmony of nature.
Sec. 27 of the Local Government Code

requiring the endorsement of the appropriate
Sanggunian of all projects implemented by the
national government contemplates that such
projects include those authorized the national
government even if actually undertaken by
another entity pursuant to the ruling in
Boracay.
103. The Court a quo chides Petitioners for invoking

Boracay Foundation v Aklan.67 But it is THE controlling case,
not Lina which precedes Boracay by more than a decade.
Under Boracay, any project authorized by the national
government even if carried out by a private entity is a
project implemented by the said government agency.
104. Interpreting Sec. 27 of the Local Government Code,

Boracay informs us that projects implemented by the
national government include those which it authorizes and
not only those that it actually undertakes.
66 Lina, supra., n. 2.
67 Boracay, supra. n. 3.
Page 33 of 75
105. It bears reproducing the exact language of this

Honorable Court speaking in Boracay to interpret Sec. 27,
thus:
In the case before us, the national agency

involved is respondent PRA. Even if the project
proponent is the local government of Aklan, it is
respondent PRA which authorized the
reclamation, being the exclusive agency of the
government to undertake reclamation
nationwide. Hence, it was necessary for
respondent Province to go through respondent
PRA and to execute a MOA, wherein
respondent PRA’s authority to reclaim was
delegated to respondent
Province. Respondent DENR-EMB RVI, regional
office of the DENR, is also a national government
institution which is tasked with the issuance of
the ECC that is a prerequisite to projects
covered by environmental laws such as the one
at bar.
This project can be classified as a national

project that affects the environmental and
ecological balance of local communities, and is
covered by the requirements found in the Local
Government Code provisions that are quoted
below:
Section 26. xxx
Section 27. Prior Consultations Required. -

No project or program shall be implemented by
government authorities unless the consultations
mentioned in Sections 2 (c) and 26 hereof are
complied with, and prior approval of the
Sanggunian concerned is obtained: Provided,
That occupants in areas where such projects are
to be implemented shall not be evicted unless
appropriate relocation sites have been
provided, in accordance with the provisions of
the Constitution.68
68 Id.
Page 34 of 75
106. The same decision said:
Under the Local Government Code,

therefore, two requisites must be met before a
national project that affects the environmental
and ecological balance of local communities
can be implemented: prior consultation with the
affected local communities, and
prior approval of the project by the
appropriate Sanggunian. Absent either of these
mandatory requirements, the project’s
implementation is illegal. (Emphasis supplied)
69
107. Likewise, the decision is consistent with the Local

Government Code which declares as a State policy the
requirement for “all national agencies and offices to
conduct periodic consultations with appropriate local
government units, non−governmental and people's
organizations, and other concerned sectors of the
community before any project or program is implemented
in their respective jurisdictions.”70 The phrase “any project or
program” makes no distinction between private or
government projects.
Sec. 26 of the Local Government Code

contemplates that the DENR, as the agency that
authorized the SM project, must conduct
consultations with the local government of
Baguio prior to the issuance of an ECC to the
project proponent.
108. It is very telling that the Court a quo eschewed

delving into Sec. 26 of the Code even if it was raised by the
Petitioners. The provision reads:
Section 26. Duty of National Government

Agencies in the Maintenance of Ecological
Balance. - It shall be the duty of every national
agency or government-owned or controlled
corporation authorizing or involved in the
planning and implementation of any project or
program that may cause pollution, climatic
change, depletion of non-renewable resources,
69 Id.
70 Sec. 2 (c), Declaration of Policy.
Page 35 of 75
loss of crop land, rangeland, or forest cover, and

extinction of animal or plant species, to consult
with the local government units,
nongovernmental organizations, and other
sectors concerned and explain the goals and
objectives of the project or program, its impact
upon the people and the community in terms of
environmental or ecological balance, and the
measures that will be undertaken to prevent or
minimize the adverse effects thereof.
109. To say that private projects need not be subjected to

public consultations is to render nugatory the police power
delegated to local government units to promote ecological
balance. Any private entity would then have unbridled
liberty to embark on projects that can generate externalities
deleterious to the environment.
110. But such is not the case. Sec. 26 clearly requires public
consultation where the project affects the ecological
balance REGARDLESS OF WHO THE IMPLEMENTOR IS, PRIVATE
OR PUBLIC.
111. Does the SM project to expand its mall affect the

ecological balance? It does. It is no wonder the private
respondents had to apply for an ECC. It is no wonder the
mall expansion was classified by the DENR as a Category B
project under the agency’s DAO 2003-30. SM’s expansion
project, by its own assertion in its pleadings,71 as well as
during the pre-trial,72 is a Category B project or “a project in
an Environmentally Critical Area (ECA). Under Presidential
Proclamation No. 2146, all environmentally critical projects
(Category A projects) and all projects in environmentally
critical areas (Category B projects) are classified “as
environmentally critical and within the scope of the
Environmental Impact Statement System.”73
The Local Government Code is not the only

legal basis for the requirement of public
consultations as consistently pointed out by
Petitioners.
71 Answer, SM Investment Corporation, p. 12.

72 TSN, Pre-Trial, 12 July 2012, p. 19.
73 Presidential Decree No. 2146.
Page 36 of 75
112. Other laws require public consultations.
113. The Constitution itself states that “(t)he right of the

people and their organizations to effective and reasonable
participation at all levels of social, political, and economic
decision-making shall not be abridged. The State shall, by
law, facilitate the establishment of adequate consultation
mechanisms.”74
114. In ratifying the United Nations Framework Convention

on Climate Change, the Philippines pledged to “promote
and facilitate at the national and, as appropriate, sub-
regional and regional levels, and in accordance with
national laws and regulations, and within their respective
capacities... public participation in addressing climate
change and its effects and developing adequate
responses...” And even DAO 2003-30 provides that social
75
acceptability needs to be based on informed public

participation, and that the project proponent must disclose
all relevant information.76
115. Under Sec. 4(4.4) of DAO 2003-30, “(p)roponents of

co-located or single projects that fall under Category A and
B are required to secure ECC.”
116. As a Category B project, SM’s expansion project

proponents needed to secure an ECC, a requisite to its
issuance being to conduct public consultations.
117. Under the same DAO, “(p)roponents 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.”77
THE COURT OF APPEALS GRAVELY ERRED

UNDER LAW WHEN IT DID NOT NULLIFY THE
BUILDING PERMIT, ENVIRONMENTAL
COMPLIANCE CERTIFICATE, AND TREE
CUTTING PERMIT ISSUED IN FAVOR OF SM
74 Sec. 16, Art. XIII.

75 See Art. 6.
76 Sec. 1, DAO 2003-30.
77 DAO 2003-30, Sec. 5, 5.3.
Page 37 of 75
DESPITE EVIDENCE THAT THEY WERE ISSUED

IRREGULARLY, WITH A MERE BLANKET
INVOCATION OF THE PRESUMPTION OF
REGULARITY OF OFFICIAL DUTIES WITHOUT
EXPLAINING WHY PETITIONERS’ EVIDENCE
MUST FAIL.
Anent the Building Permit:
SM’s project to be built in the Central

Business District classified under the Zoning
Ordinance as a Low Density Commercial
Area is a large mall or a supermall. Under
the said ordinance, large malls and
supermalls allowed only in high density
commercial zones and not in the central
business district.
118. As earlier pointed out, SM’s project to be built in the

Central Business District classified under the Zoning
Ordinance as a Low Density Commercial Area is a large mall
or a supermall. Under the said ordinance, large malls and
supermalls are allowed only in high density commercial
zones and not in the central business district.
119. Likewise pointed out earlier is that SM’s proposed

project includes a 5-storey parking lot which, under the
Baguio Zoning Ordinance and Comprehensive Land Use
Plan, is allowed in Medium-Density Commercial Zones but
not in Low-Density Commercial Zones such as the Central
Business District.
120. How did the Court a quo respond to the allegation of

non-compliance with the Zoning Ordinance? If the building
official granted the building permit, SM must have complied
with all the requirements.78 All claims of Petitioners to the
contrary must be bare allegations.
SM is not the legitimate owner of the land

on which the expansion project would be
built.
Page 38 of 75
121. The Court a quo dodged the issue of ownership

which Petitioners raised before the RTC and on appeal.
Petitioners argued that SM has no title to the land and could
therefore not be a building permittee.
122. During the pre-trial, the parties agreed that one of the
issues to be resolved was:
Whether or not the proposed site is validly

owned by SM INVESTMENT CORPORATION. It is to
be noted however that the issue of ownership is
limited only for the purpose of proving the
alleged irregularity in the issuance of the subject
permits, amendments, and certificates.79
123. If SM was the owner of the land, it could validly be a

building permitee. Otherwise, it needed authority from the
owner to build on the land. SM did not produce any
evidence showing valid ownership of the land. The Office of
the Register of Deeds certified that neither SM nor any entity
associated with it has a title over the lot in question.80 SM did
not contest this. In fact, it admitted that neither SM-Baguio,
SMIC, nor SMPH has a Transfer Certificate of Title over the
area in question and the land is not yet covered by the
Torrens system.81
124. SM also started paying its real estate taxes on the

property only in 2011 as borne out by the certification of the
City Treasurer’s Office. But a tax declaration is not equivalent
to a title.
125. The only document upon which SM relies is the Deed

of Sale in 201182 which is highly irregular. It was signed by
Exec. Secretary Paquito Ochoa not by authority of the
President but as himself. Worse, he signed over the name of
President Benigno S. Aquino and not over his name. Here is
a reproduction of the part of the Deed of Sale that shows
this:
79 Pre-Trial Order.
80 Exhibit B for Plaintiffs.
81 TSN, June 26, 2012 pp. 32, 33.
82 Exhibit 55 for Respondent SMPH. Hereto attached as Annex “I”
Page 39 of 75
126. The President’s signature is a matter of public notice.

His purported signature above is not genuine. It is Ochoa’s
judging from the acknowledgment page of the same Deed
of Sale which states that it was he who appeared before the
Notary Public.
127. If it was a regular document, the President himself

should have signed above his name, or Mr. Ochoa should
have signed above his own name, acting for and on behalf
of the President under the principle of qualified political
agency or the alter-ego doctrine. The Deed of Sale could
hardly be the basis of any Certificate of Title that the Register
of Deeds should issue for SMIC.
128. Besides, assuming there was such a sale in favour of

SM by the Philippine government, this is unconstitutional as it
militates against Art. XII, Sec. 3 which states:
Lands of the public domain are classified into

agricultural, forest or timber, mineral lands and
national parks. Agricultural lands of the public
domain may be further classified by law
according to the uses to which they may be
devoted. Alienable lands of the public domain
shall be limited to agricultural lands. Private
corporations or associations may not hold such
alienable lands of the public domain except by
lease, for a period not exceeding twenty-five
Page 40 of 75
years, renewable for not more than twenty-five

years, and not to exceed one thousand
hectares in area. Citizens of the Philippines may
lease not more than five hundred hectares, or
acquire not more than twelve hectares thereof,
by purchase, homestead, or grant. Taking into
account the requirements of conservation,
ecology, and development, and subject to the
requirements of agrarian reform, the Congress
shall determine, by law, the size of lands of the
public domain which may be acquired,
developed, held, or leased and the conditions
therefor.
129. Under the language of the Philippine Constitution,

commercial lands like Luneta Hill qualify under agricultural
lands which may not be sold but may only be leased to
corporations like SM. For this and other reasons earlier
pointed out, the Deed of Sale in favour of SM is congenitally
flawed. These explain why SM- with all its money and the
bureaucracy under its thumb- could not have its claim
registered hence it could not present a certificate of title in
the court whereas Petitioners were able to show the
certification of the Office of the Register of Deeds that SM’s
alleged title is registered.83 The anomaly is so patent that
even a pliant bureaucracy apparently could not allow it.
Anent the Amended Environmental

Compliance Certificate
130. In ruling that SM’s ECC is valid, the Court a quo said
that Petitioners have not rebutted the presumption of
regularity of official acts.84 As for the assertion that prior
indorsement by the local government through its
Sanggunian and public consultations are mandatory for the
issuance of an ECC, it asserted such applies only to projects
implemented by the national government, not by a private
entity like SM.85
131. The said Court did not consider the following

irregularities raised and substantiated before the trial court
and once more before it as rebuttals:
83 Hereto Attached as Annex “J”

84 Decision, Court of Appeals, p. 19; Annex A hereof.
85 id
Page 41 of 75
i. The ECC was issued even without social acceptability

of the project.
ii. Consultations -which were even inadequate- as

required by law were conducted after the ECC
was issued, a classic case of putting the cart before
the horse.
iii. There was no prior indorsement by the appropriate

Sanggunian.
iv. Appellee SMIC’s ECC in 2001 was amended in favor of

Respondent SMPH in 2011. Amendment in this case is
illegal for two reasons: a) the two entities are distinct;
and b) the proposed expansion project is a new one
that requires a different ECC.
The project covered by the ECC is not

socially acceptable.
132. No public consultations were conducted prior to the

issuance of an ECC. Thus, there was no way to determine
social acceptability.
133. Petitioners consistently maintained that social

acceptability is required before an ECC may be issued’
while SM continually asserted that a project need not meet
social acceptability before an ECC may be issued in its
favour. The Regional Trial Court likewise remained in tandem
with SM in making this claim even while the case was being
heard. The Court said in its Decision: 86
86 Decision, Regional Trial Court, p 13.
Page 42 of 75
134. Petitioners will again raise their arguments which they

repeatedly articulated below.
135. The reason public consultations are required under PD

and DENR Administrative Order 2003-30 is to ensure that a
project is socially acceptable. The same DAO requires the
project proponent to prove that the project is socially
acceptable. Specifically, the DAO provides:
SECTION 1. Basic Policy and Operating

Principles. –
Consistent with the principles of sustainable

development, it is the policy of the DENR to
implement a systems-oriented and integrated
approach to the LIS system to ensure a rational
balance between socio-economic
development and environmental protection for
the benefit of present and future generations.
The following are the key operating principles in

the implementation of the Philippine
(Environmental Impact Statement) System:
xxxxxxx
(d) The review of the EIS by EMB shall be guided by

three general criteria: (1) that environmental
considerations are integrated into the overall
Page 43 of 75
project planning, (2) that the assessment is

technically sound and proposed environmental
mitigation, measures are effective, and (3) that,
social acceptability is based on informed public
participation;
Xxxxxxxx
(f) The social acceptability of a project is a result

of meaningful public participation, which shall
be assessed as part of the Environmental
Compliance Certificate (ECC) application,
based on concerns related to the project’s
environmental impacts.
136. Even SM’s own witness testified in open court that

consultations are conducted to determine social
acceptability,87 pointedly contradicting the respondents’
and the Honorable Judge’s position that social
acceptability is not required by law, a point the judge
emphasized even during trial.88 Engr. Donaal, for
Respondents, testified that:
xxxxxxxxxx
Court:
Q. While Public Hearing should be conducted,
what is the purpose for a public hearing for a
particular project?
A. Your Honor, specifically for Environmentally

Critical Project which requires an environmental
impact statement documents, it is noted here
that there must be public inform such that if you
have to undertake that, the requisite of the
public participation is on public hearing and the
conduct of public consultation or both.
Q. What is the purpose?
A. That is for the Social Acceptability your honor.
xxxxxxxxxxx
87 TSN, Engr. Nestor Donaal, September 26, 2012, page 19.

88 TSN Karlo ALtomonte, July 31, 2012, page 6.
Page 44 of 75
137. Furthermore, the same DAO provides in Sec.

5.4.2 that the proposed development project should
bear social acceptability. But as SM itself admitted,
there is a very strong opposition to proposed
expansion.89 How was it issued an ECC?
138. The ECC should not have been issued because there
was no prior determination of project social acceptability.
Consultations -which were even

inadequate- as required by law were
conducted after the ECC was issued, a
classic case of putting the cart before
the horse.
139. The Court a quo did not disagree that public

consultations were not conducted. What it said is that public
consultations are not required for projects of the private
sector.90
140. Public consultations play an important province in the

protection of the environment. Under the DENR’s own
Manual of Procedure on DAO 2003-30, the project
proponent must consult all stakeholders including non-
government organizations and individuals impacted by the
project. The same DAO Manual of Procedure requires that
there should be notices of public hearing which shall also
provide information on how the public can access the
Environmental Impact Assessment Report. Prior to the
hearing or consultations, the proponent must furnish copies
of the EIA report to the DENR, the LGUs and other
stakeholders to ensure that participants in the hearing or
consultation are well-informed.
141. Did SM comply with these? A perusal of its EPRMP91

shows that it met with a handful of individuals who raised
environment issues that were not resolved. SM’s own
documentation of the process reveals that the few who
attended its meeting expressed apprehension about
possible environmental impact. Is that singular meeting the
one contemplated by law? Hardly so.
89
90 Decision, Court of Appeals, p. 21; Annex “A” hereof.
91 Page 8, EPRMP; Exhibit 43-SMPH and adopted as Exhibit 3-P.
Page 45 of 75
142. Was there meaningful public consultation? The fact

that there is strong public opposition to SM’s project speaks
for itself. The Petitioners –all residents of Baguio- were caught
flat-footed when SM’s plan to expand its mall was revealed.
Since then, public demonstrations have been held- a fact
which SM itself had to admit. Are the Petitioners
stakeholders? Yes, they are. Since its establishment in the
City, the mall has generated traffic issues which affect every
resident of Baguio. It is also located in the Central Business
District where what happens affects every Baguio resident
who has no choice but frequent it for commercial activities.
143. The University of the Philippines-Baguio is within two

hundred meters from SM’s expansion area. The said
educational institution was not consulted by SM regarding
its expansion plan.92 The same thing is true with the Baguio
City National High School.93 The barangays of Military Cut
Off, Engineers Hill, Harrison Road, and Salud Mitra are within
two hundred meters from the SM mall; yet, neither of these
local governments were consulted SM regarding the
expansion of its mall. No public announcement of any
consultation on its expansion was ever made by SM to invite
the public and concerned civil society organizations to
participate.
144. During the pre-trial, SM also admitted that it

conducted a consultation meeting with individuals in
Governor Pack Road on January 17, 2012 months after it was
issued an ECC. The pertinent part of the TSN is hereby
reproduced:
92 Judicial Affidavit of Prof. Celia Austria.

93 Exhibit “JJ” for plaintiffs.
Page 46 of 75
145. It also submitted to the Court a document94

purporting to be the result of a meeting on 20 January 2012
it had in Kalapaw restaurant with a few individuals including
some members of the City Council. What were these
meetings for when SM already had an amended ECC issued
in 2011? Was it not for the purpose of quelling the public
opposition which by then had erupted?
146. These two consultations after the issuance on an ECC

were not made public and none of the more than 200
Petitioners was aware of such public hearings or
consultations. And in fact a great percentage of the people
consulted expressed opposition to the project as SM’s own
documents95 will show.
147. The consultation of small groups of selected

individuals and city officials conducted by SM after the
issuance of the ECC does not ratify the irregularity in the
issuance of the ECC as held by the Supreme Court in
Boracay96 as will be discussed below.
There was no prior endorsement of the

Baguio City Council which, according to
the doctrine laid down in Boracay, is
mandatory for the issuance of an ECC.
148. Not even Baguio City’s Sanggunian was consulted.

Thus, it did not endorse the project as was proven during the
trial and which Respondents never denied. At least four
members of the City Council filed resolutions seeking
clarifications and investigations.
149. As pointed out by Petitioners before the trial court and

the court a quo , consulting the city government would have
been obviously fundamental considering the magnitude of
the project which would expand what SM calls its largest
mall in the “Cordillera Autonomous Region. Besides, the
project would be built on the birthplace of the City of
Baguio. Baguio City was named the Summer Capital of the
Philippines due to its cool climate owing to its altitude and
the Benguet pine which is indigenous to the place.
94 Exhibit 60-SMPH; Annex “D” hereof

95 Exhibits 43-SMPH (EIS), Exhibit 45-SMPH (EPRMP)
96 Id.
Page 47 of 75
Historically, it evolved into the City of Pines. Although there is

no official designation as such, it is an identity that the
national government and the entire Filipino people
recognize. Needless to state, this identity is derived from its
pine trees which are part of the city’s heritage. This heritage
is collectively owned by the people and the whole country
in view of the city’s designation as the Summer Capital of the
entire Philippines under the Act of the Philippine Commission
on 1 June 1903 not the least because of the pine trees that
keep its temperature cool. This consideration alone should
have made the Respondents decide to consult the City
Government. But they did not consider the City Council’s
voice necessary or desirable and audaciously flouted it.
150. And so no national government office could have

validly made decisions without consulting the Baguio City
Government including the Baguio City Council as this
violates the Local Government Code.
151. City Mayor Domogan’s endorsement does not and

cannot be considered the equivalent of substantial
compliance with the legal requirement of consultation.
Clearly, such act by Domogan was not the result of a public
consultation with LGUs and the public contemplated under
the Local Government Code, but was a unilateral act of the
Mayor who usurped the city council’s powers and jumped
the gun on other government agencies concerned.
152. These matters were raised during the trial and on

appeal but the courts below invoked the presumption of
regularity in the issuance of the ECC.
153. In Boracay,97 a case which concerned in part the

conduct of public consultations after the issuance of an ECC
on a reclamation project in Boracay, the Supreme Court
emphasized the provisions of the Local Government Code
requiring prior consultations with the affected local
communities, and prior approval of the project by the
appropriate Sanggunian of a national project –which
embraces one authorized by the national government- that
affects the environmental and ecological balance of local
communities. The Court said:
97 Boracay Foundation, Inc. v. The Province of Aklan, GR No. 196870, June 26, 2012
Page 48 of 75
Accordingly, the information dissemination

conducted (by the Province) months after the
ECC had already been issued was insufficient to
comply with this requirement under the Local
Government Code. Had they been conducted
properly, the prior public consultation should
have considered the ecological or
environmental concerns of the stakeholders and
studied measures alternative to the projects, to
avoid or minimize adverse environmental
impact or damage.98
The amendment of the ECC involved

a major change which under the law
necessitated a new application.
154. In 2001, respondent SM Investment Corporation was

issued an Environmental Compliance Certificate which
supported the construction of the existing SM mall in Baguio.
155. In September 2011, respondent DENR official Juan

Miguel Cuna issued to appellee SM Prime Holdings (SMPH)
an amended ECC99 dated 22 September 2011. This was a
mere revision of the 2001 ECC issued in favour of SMIC, a
different entity. The amended ECC authorized the
construction of additional parking levels, retail shops, and
restaurants.100
156. In the EPRMP and testimonies of the private

respondents-appellees in court, the project was described in
more detail to embrace a total of 11 storeys with a 5-storey
parking lot, a 500-room hotel, restaurants and commercial
spaces.
157. Clearly such additional structures involve major

changes not subject to amendment under DAO 2003-30
Section 8.3 of DAO 2003-30, in relation to the Procedural
Manual for DAO 2003-30, which provide the parameters for
amending an ECC, as follows:
98 Id.
99 Exh. H for Plaintiffs; admitted by all the parties and attached to their Answers. Hereto attached as
Annex “K”
100 Id.
Page 49 of 75
A. Categories of ECC Amendments
The request for amendment is considered a

major amendment if it such involves
modifications as:
 Expansion of land/project area
 Increase in production capacity
 Major change/s in process flow or technology to
be used
It should be noted that the ECC is a project- and

location-specific document. As such, any
change in project location will necessitate a
new application. On the other hand, major
change/s in process flow or technology to be
used may drastically affect the validity of the EIA
finding/s. In such event, the EMB office
concerned shall require the proponent to submit
a new application.
On the other hand, request for amendment is

considered minor if it only involves:
 typographical error
 extension of deadlines for submission of post-
ECC requirement/s
 extension of ECC validity
 change in company name/ownership
 decrease in land/project area or production
capacity.101 (Emphasis supplied)
158. Since SM’s ‘expansion’ is major and is virtually a

new project, it is a major deviation from the project
covered by the 2001 ECC, and would necessitate
major changes in process flow, if not technology.
Therefore, no ECC amendment should have been
allowed and new ECC application should have been
required.
The ECC in favour of SMPH was an

amendment of a 2001 ECC issued in
favour of SMIC, a different entity,
upon application of SMPH.
101 Section 4.9, Procedural Manual
Page 50 of 75
159. From the language of the amended ECC, it is clear it

was SMPH and not SMIC which applied for the amendment.
160. SM did not explain how the amendment happened

without SMIC seeking it being the entity to whom the 2001
ECC was issued.
161. If SMIC is different from SMPH, why was the

amendment issued in favor of the latter upon its application
and not by SMIC? The ECC does not explain that nor did the
respondents clarify this in court. Is SM the sacred cow of the
Philippine bureaucracy that anything goes for it and laws
may be bent in its favor? SMIC and SMPH, regardless of the
fact that they are controlled by the same person, are two
entities that are separate and distinct. The projects are also
separate and distinct. A new ECC should have been applied
for by SMPH.
The amended ECC is an amendment

of an ECC issued in 2001 which did
not contemplate the present location
of the project. Under PD and DENR
Administrative Order No. 3-2003,
ECCs are project-and-location
specific and may not be amended to
cover a different location.
162. An amendment as was done in this case violated the

DAO 2003-30, particularly Section 8.3 of DAO 2003-30, in
relation to the Procedural Manual for DAO 2003-30. Under
the Procedural Manual, it is provided: “It should be noted
that the ECC is a project-and-location specific document.
As such, any change in project location will necessitate a
new application.”
163. The ECC issued in 2001 cannot include the present

area. Assuming that SM’s purchase of the land from the
government is valid, it became owner only in 2011 when a
Deed of Sale was executed in its favour by Mr Paquito
Ochoa affixing his signature over the name of the President
of the Philippines.
164. Since it was not the owner in 2001 when it got an ECC,
the area could not have been contemplated in the 2001
Page 51 of 75
ECC. The ECC in 2001 could have been in reference to a title

that SM had at that time and was therefore specific for that
location. Being “a project- and location- specific
document,” it cannot apply to a parcel of land different
than that it covered in 2001.
165. Now if the 2001 ECC also covered the present area in
dispute, then it is void. The DENR could not capriciously issue
an ECC in 2001 over a parcel of land over which the
applicant has no valid title or right to introduce
improvements.
Since the questioned project is a co-

located project in an environmentally
critical area, the project proponent
should have been required to file a
totally new application for ECC as
held in Boracay and should have
been required to submit a
Programmatic Environmental
Performance Report and
Management Plan and not just a
Environmental Performance Report
and Management Plan.
166. Although the proposed expansion is labelled an

‘expansion,’ it is actually a co-located project which is a
major deviation from the plan contemplated under the 2001
ECC amended to allow the present project.
167. A perusal of the documents and testimonies of

private respondents in open Court clearly point out that the
project descriptions embodied in the different documents
describe a a) 500-room hotel, b) a 5-storey parking lot which
SM euphemistically called ‘carpark’ avoiding the ‘parking
lot’ language of Baguio City’s Zoning Ordinance which
prohibits parking lots in the Central Business District, c)
apartments, and d) various commercial spaces to be built
on a single location, among others, thus, it should have
been classified as a new project and SM should have been
required to file a new ECC application.
168. Under Sec. 4(4.4) of DAO 2003-30, “(p)roponents of

co-located or single projects that fall under Category A and
B are required to secure ECC.” SM’s expansion project was
Page 52 of 75
classified by DENR as a Category B-project102 or “a project

which may cause negative environmental impacts because
they are located in Environmentally Critical Areas (ECA's).”103
169. All that the DENR required from SMPH was the
submission of Environmental Performance Report and
Management Plan (EPRMP).104 No Environmental Impact
Assessment was conducted. But the Court a quo said that
the concerned officials of the DENR are presumed to have
regularly performed their duties.
170. Yet, under DAO 2003-30,105 the proponent of a co-

located project under the Category B classification must
submit a Programmatic Environmental Performance Report
and Management Plan (PEPRMP) or a “documentation of
actual cumulative environmental impacts of co-located
projects with proposals for expansions” which “should also
describe the effectiveness of current environmental
mitigation measures and plans for performance
improvement.”106 Such PEPRMP was not required by DENR of
SM, nor was one submitted prior to the issuance of an
amended ECC.
171. The instant case is similar in many ways to the

recently decided case of Boracay Foundation, Inc. v. The
Province of Aklan.107 The reclamation project involving
Boracay was treated by the DENR-Environmental Bureau as
a mere expansion project and not as a new project. The
Supreme Court described this “problematic.” The court of
final resort further ruled that the issue of whether the
reclamation is a new project or a mere expansion of the
existing jetty port facility must have been determined by the
DENR. This would have been decisive of whether or not there
was a need for a new ECC. The Court questioned the
classification of the project as a mere expansion and said
that a new ECC application should have been required.
Anent the Tree Cutting and Balling Permit
102 Admitted in private appellees’ Answers; also in the Decision, RTC: Annex “C.”
103 Section 4(3), DAO 2003-30.
104 Annex 10, Answer of SMIC; also noted by the Court in its Decision, Regional Trial Court, p. 13.:
Annex “3”,hereof.
105 As contained in its Environmental Procedural Manual for the Implementation of the
Environmental Impact Assessment submitted as Exhibit LL for the Plaintiffs.

106 Id.
Page 53 of 75
SM did not obtain an environmental

compliance certificate in violation of
the condition set by the DENR in
granting its tree cutting and balling
permit.
172. It is worth stressing that SM needed two EECs: a) one

for the expansion project, and b) another for the tree-
cutting. ). It got an ECC – a void one as Petitioners
demonstrated- for the expansion project, but it did not get
one for the tree-cutting/treeballing. To be sure, an ECC had
to be required of private respondents-appellees for the
expansion project because it is a project in an
environmentally critical area under PD 1586 and DAO 2003-
30. Another ECC was required of private respondents for the
tree cutting and balling because such activity by and in
themselves are environmentally critical projects that can
pose hazards to the environment within the contemplation
of PD 1586.
173. That a separate ECC was required for the tree-cutting

is clear from Sec. Paje’s own memorandum to Dir. Baguilat
authorizing the issuance of a tree-cutting permit subject to
the following terms, among others:
1. The permittee shall endeavour to conduct

meetings or consultations with LGUs and
NGOs, and other stakeholders in the area to
discuss the importance of the
project,replacement of trees to be
harvested, environment and social issues
and other related concerns for their
information;108
2. The permittee (should) secure an

Environmental Compliance Certificate
before the start of any tree cutting and
earth-balling operations that SM would have
to get an ECC.109
108Admitted by Respondent SMIC and SMPH in their Answers; Exh. C for Plaintiffs
109Exh. D for Plaintiffs; Attached as Exhibit of Private Appellees’ Answers, hereto attached as Annex
“L”
Page 54 of 75
174. The above conditions were imposed by Dir Baguilat

on SM in his letter dated October 27, 2011110 to SM
authorizing tree-cutting or balling. This was subsequent to the
issuance by DENR of the amended ECC111 for the SM
expansion project, a fact all the parties stipulated on during
the pre-trial.112
175. In fact in several communications by the DENR-CAR

to the representatives of SM, they required SM to submit
proof that a public consultation with LGUs, NGOs and other
stakeholders in the area was conducted by them.113
176. Yet, the trial court said in its Decision that SM

presented proof of public consultations on the cutting of
trees.114
177. These consultations referred to by the trial court were

conducted on 17 January 2012 and 20 January 2012, or
SUBSEQUENT to the issuance of the tree-cutting permit, when
public protests were already starting.
178. It is also clear that the EPRMP115 which became the

basis of the issuance of the ECC for the expansion did not
tackle the issue of trees being cut or balled, although one
small column is devoted to trees being planted by SM. The
ECC for the expansion cannot be deemed to be the ECC
for the tree-cutting and this is clearly the intent of the DENR
itself.
179. Despite not conducting consultations and not

obtaining an ECC, SM proceeded to cut and/or ball trees
over the opposition of Petitioners and notwithstanding the
issuance of a TEPO in their favour which SM chose to ignore.
The only reason SM was not able to kill all the existing trees is
because it was eventually forced to honor the TEPO. The act
of SM is a violation of its tree-cutting permit for which it should
be revoked.
180. From the documents116 submitted by SM to the trial
court, when SM learned about the opposition to its tree-
110 Exhibit 26-P

111
Id.
112 TSN PRE-TRIAL PROCEEDINGS JULY 10, 2012 AM SESSION
113 Exhibit D for Plaintiffs
114 Decision, Regional Trial Court, p. 12.
115 Exhibit 43-1-SMPH
116 Exhibits 43-SMPH (EIS), Exhibit 45-SMPH (EPRMP)
Page 55 of 75
cutting, it suddenly started conducting consultations and in

fact held two- one on 17 January 2012117 and another on 20
January 2012.118
181. To its Answer, SM attached the supposed

attendance119 to a consultation it conducted on 17 January
2012 on the trees, which was graced by less than 40 people.

UNDER LAW IN RELYING ON THE
PRESUMPTION OF REGULARITY IN THE
PERFORMANCE OF DUTIES DESPITE
OVERWHELMING EVIDENCE TO THE
CONTRARY AS BASIS FOR UPHOLDING ALL
PERMITS AND/OR CLEARANCES IN FAVOR
OF PRIVATE RESPONDENTS.
182. The Court a quo used the presumption of regularity in

the performance of official duties in rejecting issues raised by
Petitioners regarding the validity of permits and clearances
issued to SM. The court said that other than their bare
allegations, Petitioners have not rebutted the presumption
despite having proven their cases.
183. Such cavalier dismissal of issues raised by a party to a

case cannot be countenanced and must compel this
Honorable Court to thoroughly review it.
184. Of course, in the trial court and in all pleadings

submitted by them, Petitioners demonstrated why all the
permits or clearances were irregularly issued as earlier
discussed. What more rebuttal did the trial court and the
court a quo demand to be presented?
185. But the trial court’s decision, sustained by the Court a

quo, shows how the presumption of regularity was
misapplied to favor SM. In holding that SM’s expansion
project is compliant with the Baguio City Zoning Ordinance,
the trial court held that Engr Cayat, the Acting City Planning
and Development Officer who was a common witness of
both parties to the case, testified that her office “even gave
117 Exhibit 60-SMPH to 60-1 -SMPH

118 Exhibit 62-SMPH
119 Id.
Page 56 of 75
clearance to the Expansion project…”120 which “means that

the Expansion Project, after evaluation, was found to
conform with the Comprehensive Land Use Plan.”121
186. In their Appeal to the Court of Appeals, Petitioners

labeled this holding of the RTC as a “non-sequitur.” A Zoning
Ordinance cannot be amended by a mere statement of a
city officer. Moreover, regardless of what Engr. Cayat said,
it was for the Court, not Engr Cayat, to interpret the
Ordinance. It was for the court to determine if the expansion
was compliant with land use as authorized under the Zoning
Ordinance.
187. It also said that “(t)he Court will not claim to have
more expertise than the City Planning and Development
Officer whose office was created to implement the zoning
ordinance.” This is so very wrong. What the Court did was to
leave it to the CPDO to interpret the Ordinance which was
clearly its (the Court’s) duty.
188. The Court of Appeals agreed with the RTC.
189. The issue here was whether under the City Ordinance,
a parking lot may be constructed in C-2 or a Medium-Density
Commercial Zone which was clearly for the court to address.
The mere ‘yes’ or ‘no’ of the CPDO should not be the basis
of the Court’s decision as the question is a legal issue.
Besides, the Local Government Code of 1991 does not
empower the CPDO to interpret Zoning Ordinances.
190. In her testimony, Engr. Cayat very evidently revealed

her flawed comprehension of the Ordinance. According to
her, since “in every commercial building, parking is really
required, even in the National Building Code (sic),”122 SM’s
5-storey parking lot does not disqualify the expansion project
from the low-density commercial zone which does not
allow parking lots allowed only in medium-density
commercial zones.
191. If we follow this interpretation as the court did, then

the provision of the Zoning Ordinance that parking lots are
allowed only in C-2 or Medium Density Commercial Zones
120 Decision, Page 16

121 Id.
122 TSN, Engr Evelyn Cayat, 5 October 2012, p. 17. Herteto attached as Annex “M”
Page 57 of 75
would be useless. But in fact, when she was questioned by

the Court, Ms Cayat clearly showed that she is aware that
parking lots are allowed only under C-2 or Medium Density
Commercial Zones, but not under the C-1 of Low Density
Commercial Zone. The TSN speaks best and most reliably for
this:123:
123 Id., p. 19.
Page 58 of 75
192. Upon further examination by the Court and

Petitioners’ counsel, Ms Cayat admitted that she was aware
that what is allowed under the C-2 or Medium Density
Page 59 of 75
Commercial Zone is allowed under the C-1 of Low Density

Commercial Zone. The TSN speaks best for this:124
193. Even if the SM complex is not a C-3 building, still the

fact that it has a five-storey parking lot to respond to “the
increased demand for a parking area” makes it fall under
the C-2 zone and not under a C-1 zone. This is a case of a 5-
storey building, part of an even bigger complex, that is to
124 Id., p. 19.
Page 60 of 75
be operated SOLELY as a parking lot as SM’s own

documents show.
194. Furthermore, this is not a simple and ordinary case of

a commercial complex incidentally providing for a parking
space because it wants to be nice to its guests. The parking
lot is not a “guest relations” endeavour; it is just one of SM’s
commercial ventures.
195. If a parking lot, let alone a five-storey one, may be

built only in a medium-density commercial zone and not in
a low-density zone, why should it be allowable to build a
parking lot as part of a huge mall within a low-density
commercial zone? It is basic that what cannot be done
directly cannot be done indirectly.
THE COURT A QUO IGNORED THE

PRECAUTIONARY PRINCIPLE ENSHRINED IN
THE RULES OF PROCEDURE IN
ENVIRONMENTAL CASES IN APPRECIATING
THE PROBATIVE VALUE OF THE PARTIES’
RESPECTIVE EVIDENCE AS REGARDS
DAMAGE TO THE ENVIRONMENT.
196. Under the Rules of Procedure in Environmental Cases,

the Precautionary Principle is enshrined in this wise:
RULE 20 PRECAUTIONARY PRINCIPLE
SECTION 1. Applicability. – When there is a lack

of full scientific certainty in establishing a causal
link between human activity and environmental
effect, the court shall apply the precautionary
principle in resolving the case before it.
The constitutional right of the people to a

balanced and healthful ecology shall be given
the benefit of the doubt.
197. In appreciating whether or not there would be

damage to the environment, the Court of Appeals ignored
the Principle of Prevention and the Precautionary Principle
and affirmed the trial court’s findings that the cutting or
earth-balling of trees would not result in irreparable injury to
Page 61 of 75
the environment nor would it be detrimental to the residents

of the City of Baguio.
198. This Honorable Court’s own Sourcebook on

Environmental Rights and Legal Remedies discusses the
Principle of Prevention, thus:
The Principle of Prevention aims to stop

environmental damage even before it occurs or
when it is critical and potential damage may
already be irreversible.125
The Principle of Prevention is based on the idea

that it is better to prevent than employ
measures, after harm has occurred, in order to
restore the environment.126
199. In the same Sourcebook, this Honorable Court cited

De Sadeleer, thus:
Curative measures may remediate

environmental damage, but they come too late
to avert it. In contrast, preventive measures do
not depend on the appearance of ecological
problems; they anticipate damage or, where it
has already occurred, try to ensure it does not
spread.127
200. On the other hand, the Precautionary Principle

“advocates that the potential harm should be addressed
even with minimal predictability at hand.”128 Sadeleer further
explains the precautionary principle thus,
In a nutshell, precaution epitomises a

paradigmatic shift. Whereas, under a preventive
approach, the decision-maker intervenes
125 Access to Environmental Justice: Sourcebook on Environmental Rights and Legal Remedies citing
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, ratio., at 44 (citing Nicholas De Sadeleer,
Environmental Principles: From Political Slogans to Legal Rules 61 [2002]).
126 Access to Environmental Justice: Sourcebook on Environmental Rights and Legal Remedies
127 De Sadeleer, Nicolas, “The principles of prevention and precaution in international law: two heads
of the same coin?” in Research Handbook on International Environmental Law ed. by Malgosia
Fitzmaurice, David M. Ong, Panos Merkouris (Cheltenham, UK: Edward Elgar Publishing Limited, 2010)
accessed January 23, 2015 available at
http://www.tradevenvironment.eu/uploads/papers/ResearchHandbookOnInternationalEnvLawCh
ap9.pdf
128 Access to Environmental Justice: Sourcebook on Environmental Rights and Legal Remedies citing
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, ratio., at 46 (citing Nicholas De Sadeleer, supra
note 151, at 18).
Page 62 of 75
provided that the threats to the environment are

tangible, pursuant to the precautionary
principle authorities are prepared to tackle risks
for which there is no definitive proof that there is
a link of causation between the suspected
activity and the harm or whether the suspected
damage will materialise. In other words,
precaution means that the absence of scientific
certainty – or conversely the scientific
uncertainty – as to the existence or the extent of
a risk should henceforward no longer delay the
adoption of preventative measures to protect
the environment. Put simply, the principle can
be understood as the expression of a philosophy
of anticipated action, not requiring that the
entire corpus of scientific proof be collated in
order for a public authority to be able to adopt
a preventive measure.
The point of the precautionary principle is to

anticipate and avoid environmental damage
before it occurs. Its most important – and
debatable - feature is that it shifts the burden of
scientific proof from those who would like to
prohibit or slow down a potentially dangerous
activity to those who conduct the activity.129
201. In short, the precautionary principle says: “In case of

doubt, it is better to be safe than sorry.”
202. When the trial court pitted the probative value of

Petitioners’ evidence as regards damage to the
environment vis-a-vis that of Respondents’ evidence, it
worked on an erroneous premise – that it was Petitioners’
burden to prove that SM’s project would pose harm to the
environment. The same approach was adopted by the
Court a quo.
203. Petitioners posit that the said precautionary principle

adopted by our own Supreme Court in its own Rules of
Procedure in Environmental Cases shifted the burden to
Respondents to prove that SM’s proposed activity/project
129Stevens, Mary. "The Precautionary Principle in the International Arena."Sustainable Development

Law and Policy, Spring/Summer 2002, 13-15 accessed January 23, 2015 available at
http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1278&context=sdlp
Page 63 of 75
as well as the cutting/earthballing of trees would not result

in damage to the environment - a burden that it had not
sufficiently discharged by presenting merely two witnesses.
Respondents presented Dr. Palijon who examined 82 of the
subject trees for a period of merely two months and who
cited studies of urban trees in the United States.130 His
conclusion that the 2,000 trees already planted in Busol
watershed and the 30,000 more trees to be planted within
the next three years could compensate for the loss of the
182 trees131 was at best speculative. It would take years for
these saplings to grow into maturity and produce oxygen. It
would take years before it may actually be determined
whether the measures the private respondents had
undertaken –assuming they had- indeed mitigated the
effects of the loss of 182 trees.
204. Respondents’ other witness Engr. Rivera testified

merely on “mitigation measures” and the Court a quo relied
on his testimony that SM’s cutting of trees would not
adversely affect ecological balance.132
205. The choice of words (mitigation measures) shows that

Respondents’ own witnesses admit/recognize that the
cutting/earthballing of trees would indeed result in damage
to the environment but they carefully packaged their
assessment– Dr. Palijon stated that the damage would not
be substantial133 while Engr. Rivera stated that the damage
would be minimal.134 Both qualified that the damage would
be minimal/insubstantial provided the mitigating measures
are implemented properly.
206. Conversely, therefore, if the so-called mitigating

measures would not be implemented properly or fail, the
damage would be substantial. Under the precautionary
principle, even the potential for damage should prompt the
adoption of measures to protect the environment.
207. Regardless of the Precautionary Principle, Petitioners,

under the rules on evidence were able to demonstrate
damage to the environment based likewise on Palijon’s
testimony as will be shown hereunder.
130Decision, Court of Appeals, p. 29; Annex A hereof.
131 Id.
132 Id., p. 30.
133 Id.
134 Id.
Page 64 of 75

UNDER LAW WHEN IT ASSESSED THE
CREDIBILITY AND RELIABILITY OF
TESTIMONIES IN THE MAIN CASE
CONTRADICTORILY TO HOW THEY WERE
ASSESSED IN THE APPLICATION FOR TEPO
WHERE THEY WERE FIRST OFFERED.
_________________________________________
208. It appears it was the Court a quo’s understanding that

Petitioners’ position is that since they got a TEPO, it means
they were able to show environmental damage in the main
case.
209. What Petitioners asserted- and this is crystal clear from

all pleadings filed in the Court a quo- which they continue to
assert is this: When the credibility of a witness for the TEPO is
held to be more reliable than the witness against it because
the former’s findings are that of an environmental scientist
based on actual studies whereas the latter’s testimony are
merely lifted from scientific literatures, the assessment of the
witnesses’ credibility cannot be contradictory when the
same testimonies are adopted for and offered in the main
case. The court cannot later on call the “environmental
scientist’s” testimony “mere predictions” and put greater
probative value on the other’s testimony BECAUSE it was
lifted from scientific literatures when in the TEPO application,
it was REJECTED for the same reason, i.e., that it was merely
lifted from literature, not on first hand knowledge.
210. During the application for a TEPO, Petitioners

presented Dr. Bengwayan as their witness to show that
cutting and earthballing the trees in SM would be
destructive to the environment. SM presented Dr. Armando
Palijon to prove the contrary.
211. Weighing the testimonies of both parties, the trial

Court held:
The Court has evaluated the positions of the

parties on the basis of the respective evidence and
pleadings adduced herein. It must be stressed that
the respective witnesses of the parties agree in
Page 65 of 75
common affirming the deleterious effect of cutting

and the earth-balling of trees to the environment.
While Dr. Palijon discussed mitigating or alternative
measures to remedy the effect of tree-cutting or
earth-balling, the Court notes that the same is based
merely on theories lifted from literature in contrast to
the testimony of Dr Bengwayan which were based on
his actual experience as an environmental scientist.
Verily, the applicants have proven that the elements
would warrant the issuance of a Temporary
Environmental Protection Order, i.e., that they will
suffer grave injustice and irreparable injury.135
(Emphasis supplied)
212. A few months later, the trial court, weighing the

same testimonies which were adopted for and offered
in the main case for purposes of deciding on the issue
of whether or not the cutting and earthballing of trees
would be environmentally detrimental to Petitioners,
sang a different melody:
While admitting that the cutting or earthballing of

said trees will indeed have a negative effect on the
environment, the evidence adduced by the
respondents would show that it will not result to (sic)
irreparable injury to the environment and detrimental
effects to the residents of Baguio.136
213. Whereas in its earlier evaluation, the trial court

dismissed the testimony of Palijon for being “based merely
on theories lifted from literature”137 in the succeeding
evaluation, it put a higher premium on the same testimony
for being “substantially lifted from scientific literatures.”138
The trial court, affirmed by the Court a quo, now called
Palijon a “tree expert”139 based on his earlier testimony that
it rejected against that of Bengwayan, dubbed by the same
court earlier as the “environmental scientist.”140 “In fact,” the
trial court, later affirmed by the Court a quo, added,
135 Order on the Application for Temporary Environmental Protection Order, p. 2-3 , hereto
attached as Annex “E” hereof.
136 Decision, Regional Trial Court, pp. 9-10; Annex “C” hereof
137 Order on the Application for TEPO, p.2; Annex “E” hereof.
138 Decision, Regional Trial Court, p. 10 (Annex “C” hereof); also in Decision Court of Appeals, p. 29
(Annex A hereof).
139 Id.
140 Id. Decision, Regional Trial Court (Annex “C” hereof).
Page 66 of 75
“(Palijon) studied the actual health of the subject trees.”141

This time, Dr Bengwayan’s statements which were earlier
assessed as credible “being based on his actual experience
as an environmental scientist,”142 were dismissed for being
not based on his personal knowledge but on mere
predictions.143 This “environmental scientist’s” testimony
earlier assessed to be more credible was now “mere
conclusions of fact devoid of any scientific basis or proper
attribution, and consequently failed to prove…that the
cutting and earthballing of the 182 trees will cause
detrimental effects to the environment, the residents of the
City of Baguio, and will eventually result to (sic) irreparable
injury.”144
214. Staring at the stark contrast between the two

evaluations of the same set of facts, one would be tempted
to think that they were not prepared by one person. That, or
justice, like injustice, is like the weather: there is no guarantee
it will not change its face. Under what factors, we can only
speculate.
215. Yet, the Court of Appeals affirmed the Regional Trial

Court’s finding going as far as reproducing that part where
the latter praised SM’s witness for his testimony “substantially
lifted from scientific literatures.”145
216. Besides, Palijon’s published study for that two-month

period which Petitioners presented in the trial court and
before the Court a quo and which was never repudiated
by respondents, supports the Complaint. He stated his
findings in his study, thus:
Suitability of balling and transplanting of Benguet Pine

Pines including our own Benguet Pine and Mindoro
Pine (Pinusmerkusii) are very sensitive species. They
can hardly respond to balling and transplanting. They
are generally classified as the least adaptable
species for balling and transplanting by James (1983)
and Harris (1999).
141 Decision, Regional Trial Court, p. 10 (Annex “C” hereof); also, Decision, Court of Appeals, p.
29,Annex A hereof.
142 Order on the Application for TEPO, p. 2, Annex “E”hereof.
143 Decision, Regional Trial Court, p. 10 (Annex “C”hereof).
144 Id.
145 Decision of the Trial Court, p. 10; also, Decision, Court of Appeals, p. 29,Annex A hereof.
Page 67 of 75
The typical root system of Benguet Pine is well

developed tap root and long laterals which put down
a series of vertical sinker roots (Cooling, 1967). This
characteristic makes Benguet Pine sensitive to balling
and makes balling difficult if the correct size of root
ball has to be followed. The roots and crown of
Benguet Pine when pruned do not regenerate even
with the application of root and shoot promoting
hormones unlike broadleaf tree species.146
217. He also admitted in open court that pine trees do not

have high survival rate when earthballed.147
The Regional Trial Court based its decision

on hearsay.
218. In holding that Palijon for the private respondents was

more credible than Bengwayan for the Petitioners, the
Regional Trial Court cited the study, presented by Palijon and
authored by Nowak and Crane and which delves on
oxygen production by urban trees in the United States.148
219. On the basis of the said study, Palijon concluded that

the loss of 182 trees would not result in substantial diminution
of oxygen supply.
220. It bears noting again that the RTC earlier dismissed

this testimony as inferior to Dr Bengwayan’s contrary claim
since the latter is an actual environmental scientist, and as
he testified to in open court, he built a pine forest with his
extensive experience in taking care of the forest, has
become acquainted with the behavior of the Benguet pine
tree.
221. The RTC’s reasoning was erroneous and the Court a

quo was wrong to affirm it. Palijon’s testimony based on the
Nowak study is hearsay. Section 36 of Rule 130 of the Rules
of Court provides for the rule on hearsay evidence, thus:
146 Exh. HH for Plaintiffs; Also see, In fairness to pine and alnus trees, The Freeman, updated 4 May
2012; available at http://www.philstar.com/cebu-news/803132/fairness-pine-and-alnus-trees,
Hereto attached as Annex “N”
147 Pp. 35, TSN March 28, 2012,Testimony of Armando Palijon; hereto attached as Annex “O”
148 Decision of the Trial Court, p. 10; also, Decision, Court of Appeals, p. 30,Annex A hereof.
Page 68 of 75
Sec. 36. Testimony generally confined to personal

knowledge; hearsay excluded. - A witness can testify
only to those facts which he knows of his personal
knowledge; that is, which are derived from his own
perception, except as otherwise provided in these
rules.
222. The above rule precludes any evidence — whether

oral or documentary — not based on the personal
knowledge of the witness for being hearsay. Nowak’s
statement, or the statement of any other person that Palijon
introduced in court cannot be evidence to prove SM’s
claim.
223. While failure to object to hearsay testimony may result in

the admission of the same,149 “it does not necessarily follow
that the same should be given evidentiary weight”150
since “(a)dmissibility of evidence should not be equated
with weight of evidence.”151
224. This Honorable Court held that “although hearsay evidence

may be admitted because of lack of objection by the
adverse party’s counsel, it is nonetheless without probative
value”152 unless the proponent can show that the evidence
falls within the exception to the hearsay evidence rule.153 SM
has not shown that the hearsay statements made by its
witness Palijon have probative value under the exceptions
detailed in Arts. 37-47 of Rule 130 of the Rules of Court.
225. Assuming that the Nowak study cited by Palijon and

which gave his testimony a credible complexion may be
given probative value, such is nil. Nowak, et alii, did not
conduct their study in Baguio City where the climate is not
the same as in the United States. As acknowledged by the
Court a quo, 154the findings of the Nowak study were based
on the study of urban trees in the United States. They could
not possibly apply to the Philippines. It is basic under the
scientific method that when variables differ, the result will
likewise differ. Besides, what is under consideration in the
Nowak study is not the behavior of the Benguet pine and
149 Cabugao v. People of the Philippines, G.R. No. 158033, July 30, 2004, 435 SCRA 624, 633.
150 Bayani v People, GR No. 155619, 14 August 2007
151 People of the Philippines v. Parungao, 332 Phil. 917, 924 (1996).
152152
De la Torre v. Court of Appeals, 355 Phil. 826, 638 (1998).
153 PNOC Shipping and Transport Corporation v. Court of Appeals, 358 Phil. 38, 54 (1998).
154 Decision, Court of Appeals, p.30.
Page 69 of 75
alnus trees, but of some other trees indigenous to the locale

of the study.
226. Standing on its own, what does Palijon’s testimony

establish? Nothing except his claim that he studied pine
trees for two months prior to his testimony.155 Is the study
period sufficient for him to claim expertise on the behavior
of pine trees and for the Court to accept his statement hook,
line, and sinker? Besides, as earlier shown, in fairness to him,
his own study during that two-month period proved that
earthballed mature pine trees have very low survival rate
and he published his findings. Petitioners offered this study in
open court. Respondents never disowned it.
227. Like Nowak, Palijon did not conduct extensive study

of the Benguet pine tree in Baguio unlike Bengwayan who
has always been based in Baguio and the Cordillera
growing forests and planting trees. Experience, and not
necessarily academic credentials, is the best teacher.
228. The Court a quo ignored this.
ALLEGATIONS TO SUPPORT PRAYERS FOR

PROVISIONAL REMEDIES
229. Petitioners hereby replead the foregoing allegations.
230. The assailed Decision of the Court a quo dated 12

December 2014 was released around the same time in
January 2015 that the DENR issued a new tree cutting permit
or at least publicly admitted so.
231. As soon as SM got hold of the Decision, it immediately

cut down more than 60 trees in the dead of night. This was
made while the Baguio City Council was deliberating on the
City’s annual budget and could have not, by express
provision of the Local Government Code, discussed other
matters (including the cutting of trees allegedly under a new
tree cutting permit passed without City Council
endorsement).
155 Judicial Affidavit of Palijon
Page 70 of 75
232. Meantime, Mayor Domogan publicly defended SM

saying its acts are legal. While enjoying political support in its
moves, SM began levelling activities and commenced the
construction of concrete posts on the site of the expansion
project, now cleared of trees. Photographs of the said
activities are hereto attached as ANNEX “TRO-A” and series.
233. Why are Respondents audaciously proceeding with

the expansion project when the assailed decision of the
Court a quo has not attained finality? What if they lose?
Where is the overconfidence coming from?
234. Petitioners are afraid- and reasonably so- that the

acts of SM and the other respondent seem to show that
losing the instant cases could not and should not be a
possibility for them. But Petitioners believe that the rule of
justice will prevail at the of end of the day when the errors of
law of the Court a quo are set straight.
235. Petitioners and the public will suffer grave and

irreparable injury if the acts of Respondents are not enjoined.
These instant cases will be futile, if not render the entire cause
of action of Petitioners moot and academic. While 60 or
more trees have been cut, SM has not actually dispelled the
fact that it will continue to cut the remaining trees in Luneta
Hill. A great probability that SM will cut the remaining trees.
This Honorable Supreme Court cannot dismiss the chance
that SM will thoroughly clean the hill, for its propensity to spit
at the law with manifest impunity was tested the moment it
cut the trees without waiting for the Decision of the Court of
Appeals to lapse into finality. SM’s propensity to be a scoff-
law is obvious at the most.
236. Given the foregoing, this Petition shows that great or

irreparable injury would result to the Petitioners before the
entire matter can be heard on notice. Therefore, a prayer
for the issuance of a Temporary Restraining Order ex parte
coming from this Honorable Supreme Court is warranted to
prevent SM or any of the Respondents from performing any
act that would affect the status of the remaining trees in
Luneta Hill.
237. In filing these cases, Petitioners are working not only

for their personal interest, but also for the public interest of
the present and future generations.
Page 71 of 75
238. Mindful of intergenerational justice or equity

enshrined in our Constitution as interpreted by the Supreme
Court in Oposa v. Factoran,156 Petitioners filed these cases to
ensure that Baguio City’s Zoning Ordinance,
Comprehensive Land Use policies, and the complementary
national laws and international treaty obligations of the
Philippines are respected and complied with. In seeking the
intervention of the judiciary, they are carrying with them
Baguio’s bitter experience on 16 July 1990 when the City was
hit by a very strong earthquake that, especially if zoning and
land use ordinances and policies put in place to bar a
repeat of such bitter experiences are disregarded to
accommodate big business.
239. They are also carrying with them their duty as citizens
and residents to protect Baguio City’s glory which lies in its
being the Summer Capital of the Philippines. The pine tree is
central to its identity; hence it is called the City of Pines. Pine
trees should be preserved and protected from any human
activity that does not serve the general welfare. This duty to
protect is more compelling when these trees are among the
remaining forest covers of the Central Business District.
240. The undersigned counsels are also working and have

worked on these cases pro bono.
241. On account of the nature of this Petition and the

causes of action involved, Petitioners respectfully pray of this
Honorable Court to waive the bond re quired for a writ of
preliminary mandatory and prohibitory injunction and/or
temporary restraining order.
RELIEFS PRAYED FOR
WHEREFORE, premises considered, the Petitioners pray

that this Honorable Court
1. GIVE this Petition due course;
2. ISSUE a Preliminary Mandatory or Prohibitive

Injunction and Temporary Restraining Order
156 Oposa v Factoran, G.R. No. 101083 July 30, 1993.
Page 72 of 75
against Respondents to stop the assailed

expansion plan while these cases are pending and
waive the bond therefor;
3. REVERSE the assailed Decision of the Court a quo

and:
1. Declare the building permit issued in favour of

SM null and void;
2. Declare the Environmental Compliance

Certificate covering SM’s expansion project
null and void;
3. Permanently enjoin the cutting and balling of

trees on Luneta Hill; and
4. Make the injunctive writs permanent
4. GRANT such other reliefs as warranted under the

premises.
Respectfully submitted this 23rd day of February 2015;

Baguio City for Manila, Philippines.
THE NATIONAL UNION OF PEOPLES LAWYERS

Counsel for Petitioners
No. 57 Lower Rock Quarry
Baguio City 2600
Philippines;
By
CHERYL L. DAYTEC-YANGOT
Roll of Attorneys No. 45429
IBP Lifetime Roll No. 012884; Baguio-Benguet Chapter
PTR NO. 2102085; 20 January 2015; Baguio City
MCLE Exemption No. IV-001729
Valid until 14 April 2016
09277367946
Page 73 of 75
CHRISTOPHER D. DONAAL
Privilege Tax Receipt No. 1553496; 17 December 2014
IBP Lifetime No. 06875, Mt. Province Chapter
Roll of Attorneys No. 52587; 12 May 2006
MCLE Compliance No. IV-0020927; 20 June 2013
09176254331
JANSEN T. NACAR
ROLL No. 59172; April 15, 2011
IBP Lifetime No. 955218, June 30, 2014, Baguio City
PTR No. 2015259; January 5, 2015, Baguio City
MCLE Compliance No. V-0000160, June 20, 2013
Ortigas Center, Pasig City, Philippines
0930 615 0737/0927 670 1925
JADO RAFAEL A. BOGNEDON

Roll No. 57876
IBP OR No. 2009677, January 5, 2015, Baguio City
PTR No. 0980573, January 5, 2015, Baguio City
MCLE Compliance No. IV-0021593, 5 August 2013
09178905236
EXPLANATION
Copy of this pleading is sent to the Honorable Court of
Appeals 12th Division, counsels for Respondent SMIC, SMPH and
The Office of the Solicitor General via registered mail due to
distance and lack of personnel to effect personal service. It is for
the same reason that copies hereof are being filed before the
Honourable Supreme Court in the same manner.
ATTY. CHRISTOPHER D. DONAAL
Page 74 of 75
Copy Furnished:
COURT OF APPEALS Registry Return No. _______

12th Division
Ermita, Manila
FORTUN NARVASA & SALAZAR Registry Return No. _______

Counsel for Respondent SMIC
23RD Floor, Multinational Bancorporation Centre
6805 Ayala Ave., City of Makati
ACCRA Law Office Registry Return No. _______

Counsel For Respondent SMPH
22/F ACCRALAW TOWER
2nd Ave. Corner 30th St..
Crescent Park West
Bonifacio Global City
0399 Taguig, Metro Manila
Office of the Solicitor General Registry Return No. _______

Counsel for the Public Respondents
OSG Building, 134 Amorsolo St. Legaspi Village
Makati City, Philippines 1229
Page 75 of 75

Petition challenges ECC for SM Baguio mall project

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Petition challenges ECC for SM Baguio mall project

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Petition for Review; CGN, et alii v.

Republic of the Philippines

CORDILLERA GLOBAL NETWORK

JUDY LYN ADAJAR, et. al.,

RAMON J. PAJE, in his capacity

There are questions and there are answers.

What does a zoning ordinance have to do with the

environmental action under the 2010 Rules of Procedure in

If a person or entity was never made a party to an

Is the requirement of the Local Government Code for the

If an entity like SM was able to obtain an ECC a)without

1 Decision of the Court of Appeals, pp. 17-18; Annex A hereof.

person questioning it appeal the decision to grant it to the DENR

If a proposed project is non-compliant with Baguio’s zoning

Who has the burden of proof as regards the presence or

If the testimony of a witness in an application for a

4 Order on the Application for TEPO, p. 2; Annex “E” hereof

There are questions. There are answers. The questions are

Before this Honorable Court, the Court of final resort,

1. Petitioners CORDILLERA GLOBAL NETWORK, CORDILLERA

2. Petitioners GABRIELA ALTOMONTE AND AENEAS ALTOMONTE,

3. All the other petitioners are of legal age and residents of

4. Individual petitioners are suing in their personal capacities

5. Respondent RAMON J.P. PAJE (PAJE)is of legal age, Filipino,

proper use of the country’s environment and natural

6. Respondent Atty. JUAN MIGUEL CUNA is the Director of the

7. Respondent MAURICIO DOMOGAN is the incumbent

8. Respondent CLARENCE BAGUILAT was the Regional

9. Respondent SEC. ROGELIO SINGSON is the Secretary of the

10. Respondents SM INVESTMENT CORPORATION, SM

NATURE OF THE CASE AND STATEMENT

1. This Petition is an Appeal by Certiorari before the Supreme

2. The environmental cases arose when SM announced its plan

Commercial Zone over which neither a large mall or parking

3. Although called an expansion project, it is in reality a new

4. Gods and goddesses in the local and national governments

5. The project was not indorsed by the Baguio Sangguniang

6. The Department of Environment and Natural Resources

7. While Petitioners respect private property rights, they also

8. Those who do not live in Baguio like the owners of SM cannot

the fair treatment and meaningful involvement

10U.S. Environmental Protection Agency, Office of Environmental Justice, Guidance to Assessing

9. Petitioners believe they have a strong case. The recent

10. On 14 June 2011, private respondents-appellees, acting

11. Under SM’s plan,12 it would construct an 11-storey

12. On 11 July 2011, the City Government of Baguio, through

14. The area on which the private respondents seek to expand

15. In 2001, respondent SM Investment Corporation was issued

11 Answer for Respondent SMPH p.2, par.14.

16. Subsequently, using the illegal indorsement by the City

17. In September 2011, respondent DENR official Juan Miguel

18. SM’s project was classified by DENR as a Category B-

20. The project is a co-located project defined by DAO 2003-

21. Under DAO 2003-30,24 the proponent of a co-located

22. Respondent Paje approved the application through a

23. No environmental impact assessment was conducted prior

24. Subsequently, Engr. Oscar Flores, Baguio City Building and

24 As contained in its Environmental Procedural Manual for the Implementation of the

26. One of the conditions in the tree cutting and/or

27. Upon learning about the expansion project and the

28. SM then started consulting small groups. One meeting was

29. On 20 January 2012, a huge rally was staged by Baguio

31. Neither did SM obtain an ECC for its expansion project