D.
LAND, SOLID WASTE, OTHERS
1. Laws
1.1. Ecological Solid Waste Management Act of 2000
– Republic Act No. 9003
Introduction
Waste mismanagement has serious environmental
effects making the passage of the Republic Act (RA) 9003
or the Ecological Solid Waste Management Act of 2000 a
landmark environmental legislation in the Philippines.
The law was crafted in response to the looming garbage
problems in the country. RA 9003 declares the policy of
the state in adopting a systematic, comprehensive and
ecological solid waste management program that
ensures the protection of public health and the
environment and the proper segregation, collection,
transport, storage, treatment and disposal of solid waste
through the formulation and adoption of best
environmental practices. Moreover, it illustrates the
potentials and benefits of recycling not only in
addressing waste management problems but also in
alleviating poverty.
RA 9003 was passed by the Philippine Congress on
December 20, 2000 and was subsequently approved by
the Office of the President on January 26, 2001. It
contains seven (7) chapters sub-divided into 66 sections
setting out policy direction for an effective solid waste
management program in the country.
Ecological Solid Waste Management Act of 2000
RA 9003 describes solid waste management as a
discipline associated with the control of generation,
storage, collection, transfer and transport, processing,
and disposal of solid wastes. The manner by which these
activities are conducted shall be in accord with the best
principles of public health, economics, engineering,
conservation, aesthetics, other environmental
considerations, and public attitudes. The Act provides for
a comprehensive ecological solid waste management
program by creating the necessary institutional
mechanisms and incentives, appropriating funds,
declaring certain acts prohibited, and providing
penalties
Institutional Mechanism
The establishment of a National Solid Waste personnel directly dealing with collection of solid waste
Management Commission (NSWMC) and Solid Waste
Management Board (SWMB) in each local government
unit (LGU) is mandated by RA 9003 to be represented by
public officials, in their ex-officio capacity, and the
private sector. The Commission shall serve as the
coordinating body and likewise develop and implement
the National Solid Waste Management Framework. The
SWMB, on the other hand, is directed to formulate a 10-
year local Ecological Solid Waste Management Plans
instituting an effective and sustainable solid waste
management plan with primary emphasis on
implementation of all feasible re-use, recycling and
composting programs. This is pursuant to relevant
provisions under RA 7160 or the Local Government
Code.
Comprehensive Solid Waste Management
Waste Characterization and Segregation. The solid waste
generated within the area of jurisdiction shall be
characterized for initial source reduction and recycling
element of the local waste management plan. A separate
container is required for each type of waste for on-site
collection properly marked as “compostable”, “non-
recyclable”, “recyclable” or “special waste”. Waste
segregation shall primarily be conducted at the source
including household, commercial, industrial and
agricultural sources.
Source Reduction. This refers to the methods by which
the LGUs can reduce a sufficient amount of solid waste
disposed within five (5) years. LGUs are expected to
divert at least 25% of all solid waste from waste disposal
facilities through re-use, recycling and composting
activities. The rate of waste diversion is set to increase
every three (3) years.
Collection and Transport of Solid Waste. The geographic
subdivisions are taken into account in the coverage of the
solid waste collection area in every barangay ensuring
100% collection efficiency within 24 hours from all
sources. The plan shall define and identify specific
strategies and activities taking into account the
availability and provision of properly designed
containers in selected collection points while awaiting
collection and transfer, segregation of different types of
waste, hauling and transfer of solid waste from collection
points to final disposal sites, issuance and enforcement
of ordinances for effective implementation, and
provision of properly trained officers and workers. All
must be equipped with personal protective gears for
their protection.
Recycling Program. The Department of Trade and
Industry (DTI), in coordination with other concerned
agencies, is directed to publish an inventory of existing
markets for recyclable materials, product standards for
recyclable and recycled materials, and a proposal to
stimulate demand for the production of recycled
materials and products. Moreover, a coding system for
eco-labeling is expected from DTI. Non-environmentally
acceptable products shall be allowed within one (1) year
after public notice as alternatives available to consumers
but at cost not exceeding ten (10) percent of the
disposable product. The use of non-environmentally
acceptable packaging is strictly prohibited by the Act.
LGUs are mandated to establish Materials Recovery
Facility (MRF) in each barangay or cluster of barangays
designed to receive, sort, process and store compostable
and recyclable materials efficiently. The residual wastes
shall then be transferred to a long-term storage or
disposal facility or sanitary landfill. All solid waste
disposal facilities or sites in the country shall be
published by the Department of Natural Environment
and Natural Resources (DENR). No open dumps nor any
practice or disposal of solid waste that constitutes open
dumps for solid waste shall be allowed. The Act further
provides for conversion of existing open dumps to
controlled dumps within three (3) years.
Composting. The Department of Agriculture (DA) shall
publish an inventory of existing markets and demands
for composts that is updated annually. These composts
intended for commercial distribution should conform to
the standards set by the DA for organic fertilizers.
Local Government Solid Waste Management
To encourage and facilitate the development of local
plans, NSWMC is mandated to publish guidelines for
identification of areas with common waste management
problems and appropriate units for clustering solid
waste management services. This is to reinforce
provisions of the Local Government Code for all
provinces, cities, municipalities and barangays to
consolidate or coordinate efforts, services and resources
to establish common waste treatment and disposal
facilities.
1
Incentive Scheme
An incentive scheme, pursuant to Omnibus Investment
Code, is provided by the Act to encourage participation
of individuals, private organizations and entities,
including non-government organizations,in developing
outstanding and innovative projects, technologies,
processes and techniques or activities in re-use,
recycling and reduction. This includes 10-year tax and
duty exemption on imported capital equipment, vehicles,
legacies, gifts and donations used for collection of solid
waste and tax credit equivalent to 50% of the national
internal revenue taxes and custom duties. Non-fiscal
incentives are granted to businesses and industries
engaged in recycling of waste in the form of simplified
procedures for importation of equipment, spare parts,
new materials and supplies, and for the export of
processed products.
Other forms of incentives include extension of financial
services to individuals, enterprises or private entities
engaged in solid waste management and grant
entitlement to outstanding LGUs. Those LGUs who host
common waste management facilities can likewise
receive incentives.
Penal Provisions
Chapter 6 provides a comprehensive list of prohibited
acts including: (1) littering, throwing, dumping of waste
matters in public places; (2) undertaking activities in
violation of sanitation operation; (3) open burning of
solid waste; (4) causing non-segregated waste; (5)
squatting in open dumps and landfills; (6) open
dumping, burying of biodegradable materials in flood-
prone areas; (7) unauthorized removal of recyclable
material; (8) mixing of source-separated recyclable
material with other solid waste; (9) establishment or
operation of open-dumps; (10) manufacturing,
distributing, using, and importing consumer products
that are non-environmentally-friendly materials; (11)
importing toxic wastes misrepresented as “recyclable”
or “with recyclable content”; (12) transporting and
dumping in bulk in areas other than facility centers; (13)
site preparation, construction, expansion or operation of
waste management facilities without an Environmental
Compliance Certificate and not conforming with the land
use plan of LGUs; (14) construction of establishment
within 200 meters from dump sites or sanitary landfills;
and (15) operation of waste disposal facility on any
aquifer, groundwater reservoir or watershed area.
Financing Solid Waste Management
The Act provided a special account in the National
Treasury called the Solid Waste Management Fund. This
will be sourced from fines and penalties imposed,
proceeds of permits and licenses, donations,
endowments, grants and contributions and amount
allocated under the annual General Appropriations Act.
The Fund will be utilized to finance products, facilities,
technologies, and processes that would enhance proper
solid waste management; awards and incentives;
research programs; information, education,
communication and monitoring activities; technical
assistance; and capability building activities.
(src:
http://ap.fftc.agnet.org/ap_db.php?id=153&print=1)
1.2. Toxic Substances & Hazardous & Nuclear Wastes
Control Act of 1990 – Republic Act No. 6969
Under the Act, manufacturers and importers of new
substances are required to notify the Department of
Environment and Natural Resources (DENR) of
substances they intend to use, if they are not listed on the
Philippine Inventory of Chemicals and Chemical
Substances (PICCS).
The DENR is the implementing agency and the Act was
approved in October 1990.
DENR Administrative Order No 29 is the implementing
regulation for RA 6969. The Order was last revised in
1992.
It covers the import, manufacture, processing, handling,
storage, transportation, sale, distribution, use and
disposal of all unregulated chemical substances and
mixtures in the Philippines.
The Order outlines:
pre-manufacture requirements for new chemicals,
including notification;
the establishment of a national chemicals inventory;
plans for a priority chemicals list;
how chemicals must be tested and assessed; and
exemptions.
(src: https://chemicalwatch.com/asiahub/57392/ra-
6969-toxic-substances-and-hazardous-and-nuclear-
wastes-control-act-1990)
1.3. Executive Order No. 192, Series of 1987, Section
16
SECTION 16. Environmental Management Bureau. There
is hereby created an Environmental Management
Bureau. The National Environmental Protection Council
(NEPC), the National Pollution Control Commission
(NPCC) and the Environmental Center of the Philippines
(ECP), are hereby abolished and their powers and
functions are hereby integrated into the Environmental
Management Bureau in accordance with Section 24 (c)
hereof, subject to Section 19 hereof. The Environmental
Management Bureau shall be headed by a Director and
assisted by an Assistant Director who shall advise the
Secretary on matters relating to environmental
management, conservation, and pollution control. The
Environmental Management Bureau shall have the
following functions:
(a) Recommend possible legislations, policies and
programs for environmental management and pollution
control;
(b) Advise the Regional Offices in the efficient and
effective implementation of policies, programs, and
projects for the effective and efficient environmental
management and pollution control;
(c) Formulate environmental quality standards such as
the quality standards for water, air, land, noise and
radiations;
(d) Recommend rules and regulations for environmental
impact assessments and provide technical assistance for
their implementation and monitoring;
(e) Formulate rules and regulations for the proper
disposition of solid wastes, toxic and hazardous
substances;
(f) Advise the Secretary on the legal aspects of
environmental management and pollution control and
assist in the conduct of public hearings in pollution cases;
(g) Provide secretariat assistance to the Pollution
Adjudication Board, created under Section 19 hereof;
2

(h) Coordinate the inter-agency committees that may be
created for the preparation of the State of the Philippine
Environment Report and the National Conservation
Strategy;
(i) Provide assistance to the Regional Offices in the
formulation and dissemination of information on
environmental and pollution matters to the general
public;
(j) Assist the Secretary and the Regional Officers by
providing technical assistance in the implementation of
environmental and pollution laws;
(k) Provide scientific assistance to the Regional Offices in
the conduct of environmental research programs.
IV. Rules of Procedure for Environmental Cases, A.M.
No. 09-6-8-SC, April 13, 2010
1. Scope and applicability of the rule – Sec. 2
RULE 1. 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) P.D. No. 705, Revised Forestry Code;
(c) P.D. No. 856, Sanitation Code;
(d) P.D. No. 979, Marine Pollution Decree;
(e) P.D. No. 1067, Water Code;
(f) P.D. No. 1151, Philippine Environmental Policy of
1977;
(g) P.D. No. 1433, Plant Quarantine Law of 1978;
(h) P.D. No. 1586, Establishing an Environmental Impact
Statement System Including Other Environmental
Management Related Measures and for Other Purposes;
(i) R.A. 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) R.A. No. 4850, Laguna Lake Development Authority
Act;
(k) R.A. No. 6969, Toxic Substances and Hazardous
Waste Act;
(l) R.A. No. 7076, People’s Small-Scale Mining Act;
(m) R.A. No. 7586, National Integrated Protected Areas
System Act including all laws, decrees, orders,
proclamations and issuances establishing protected
areas;
(n) R.A. No. 7611, Strategic Environmental Plan for
Palawan Act;
(o) R.A. No. 7942, Philippine Mining Act;
(p) R.A. No. 8371, Indigenous Peoples Rights Act;
(q) R.A. No. 8550, Philippine Fisheries Code;
(r) R.A. No. 8749, Clean Air Act;
(s) R.A. No. 9003, Ecological Solid Waste Management
Act;
(t) R.A. No. 9072, National Caves and Cave Resource
Management Act;
(u) R.A. No. 9147, Wildlife Conservation and Protection
Act;
(v) R.A. No. 9175, Chainsaw Act;
(w) R.A. No. 9275, Clean Water Act;
(x) R.A. No. 9483, Oil Spill Compensation Act of 2007;
And
(y) Provisions in C.A. No. 141, The Public Land Act; R.A.
No. 6657, Comprehensive Agrarian Reform Law of 1988;
R.A. No. 7160, Local Government Code of 1991; R.A. No.
7161, Tax Laws Incorporated in the Revised Forestry
Code and Other Environmental Laws
(Amending the NIRC); R.A. No. 7308, Seed Industry
Development Act of 1992; R.A. No. 7900, High-Value
Crops Development Act; R.A. No. 8048, Coconut
Preservation Act; R.A. No. 8435, Agriculture and
Fisheries Modernization Act of 1997; R.A. No. 9522, The
Philippine Archipelagic Baselines Law; R.A. No. 9593,
Renewable Energy Act of 2008; R.A. No. 9637, Philippine
Biofuels Act; and other existing laws that relate to the
conservation, development, preservation, protection
and utilization of the environment and natural resources.
Scope versus jurisdiction. It must be noted that the Rules
remain consistent with prevailing jurisprudence
regarding the doctrine of exhaustion of administrative
remedies and primary jurisdiction.
Laws, rules and regulations. These Rules apply to
environmental cases arising from laws that relate to the
conservation, development, preservation, protection
and utilization of the environment and natural resources.
These may include environmental laws and those laws
that may contain provisions that relate to the
environment but are not environmental laws per se (e.g.
C.A. No. 141, “The Public Land Act”; R.A. No. 7160, “The
Local Government Code of 1990”, etc…). While this
section includes a list of such applicable laws, it is not
meant to be exhaustive.
In addition, since this section covers “civil, criminal and
special civil actions…involving enforcement or violations
of environmental and other related laws” (emphasis
added), these Rules may apply in other suits not
necessarily based on environmental laws or laws
containing environmental provisions. Specifically, for
example, if a defendant in a civil damages or defamation
suit (the case of which is governed by the regular rules of
civil/criminal procedure) invokes a SLAPP defense (see
Rule 6 and 19 infra.), then these Rules shall apply insofar
as the SLAPP defense is concerned.
The courts referred to in this section are those
designated as special courts to try hear, try and decide
environmental cases under Administrative Order No. 23-
20081 and those that may be designated as such
thereafter. (src: Philja RPEC Annotation)
2. Special Remedies:
3
 o Strategic lawsuit against public participation
(SLAPP) * RULE 6
Strategic lawsuit against public participation (SLAPP)
refers to an action whether civil, criminal or
administrative, brought against any person, institution
or any government agency or local government unit or
its officials and employees, with the intent to harass, vex,
exert undue pressure or stifle any legal recourse that
such person, institution or government agency has taken
or may take in the enforcement of environmental laws,
protection of the environment or assertion of
environmental rights.
SLAPP. The SLAPP provisions under these Rules are
innovations of the doctrine first introduced by Dr.
George W. Pring, as well as doctrines and practices in
other jurisdictions. The main purpose of a SLAPP suit is
to harass, vex, exert undue pressure or stifle any legal
recourse on any person, including the government from
enforcing environmental laws or protecting or asserting
environmental rights.
This provision applies not only to suits that have been
filed in the form of a countersuit, but also to suits that are
about to be filed with the intention of discouraging the
aggrieved person from bringing a valid environmental
complaint before the court. Specific SLAPP provisions in
these Rules are directed separately, against civil and
criminal actions. The Rules pertaining to each, however,
are interrelated.
o Writ of Kalikasan * RULE 7 (Part III, Special Civil
Actions)
SEC. 1. Nature of the writ. – The writ is a remedy available
to a natural or juridical person, entity authorized by law,
people’s organization, non-governmental organization,
or any public interest group accredited by or registered
with any government agency, on behalf of persons whose
constitutional right to a balanced and healthful ecology
is violated, or threatened with violation by an unlawful
act or omission of a public official or employee, or private
individual or entity, involving environmental damage of
such magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or
provinces.*
Extraordinary remedy. The underlying emphasis in the
Writ of Kalikasan is magnitude as it deals with damage
that transcends political and territorial boundaries.
Magnitude is thus measured according to the
qualification set forth in this Rule — when there is
environmental damage that prejudices the life, health or
property of inhabitants in two or more cities or
provinces.
Who may avail of the writ. The petition for the issuance
of a Writ of Kalikasan can be filed by any of the following:
(1) a natural or juridical person;
(2) entity authorized by law; or
(3) people’s organization, non-governmental
organization, or any public interest group
accredited by or registered with any
government agency “on behalf of persons
whose constitutional right to a balanced and
healthful ecology is violated… involving
environmental damage of such magnitude as to
prejudice the life, health or property of
inhabitants in two or more cities or provinces.”
Those who may file for this remedy must represent the
inhabitants prejudiced by the environmental damage
subject of the writ. The requirement of accreditation of a
group or organization is for the purpose of verifying its
existence. The accreditation is a mechanism to prevent
“fly by night” groups from abusing the writ.
Acts covered by the writ. The Writ of Kalikasan is a
special remedy available against an unlawful act or
omission of a public official or employee, or private
individual or entity, involving environmental damage of
such magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or
provinces.
o Writ of continuing mandamus * RULE 8
Continuing mandamus is a writ issued by a court in an
environmental case directing any agency or
instrumentality of the government or officer thereof to
perform an act or series of acts decreed by final judgment
which shall remain effective until judgment is fully
satisfied.
RULE 8, SEC. 1. Petition for continuing mandamus. –
When any agency or instrumentality of the government
or officer thereof unlawfully neglects the performance of
an act which the law specifically enjoins as a duty
resulting from an office, trust or station in connection
with the enforcement or violation of an environmental
law rule or regulation or a right therein, or unlawfully
excludes another from the use or enjoyment of such right
and there is no other plain, speedy and adequate remedy
in the ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper court,
alleging the facts with certainty, attaching thereto
supporting evidence, specifying that the petition
concerns an environmental law, rule or regulation, and
praying that judgment be rendered commanding the
respondent to do an act or series of acts until the
judgment is fully satisfied, and to pay damages sustained
by the petitioner by reason of the malicious neglect to
perform the duties of the respondent, under the law,
rules or regulations. The petition shall also contain a
sworn certification of non-forum shopping.
Writ of Continuing Mandamus. This rule integrates the
ruling in Concerned Residents of Manila Bay v. MMDA
and the existing rule on the issuance of the writ of
mandamus. Procedurally, its filing before the courts is
similar to the filing of an ordinary writ of mandamus.
However, the issuance of a Temporary Environmental
Protection Order is made available as an auxiliary
remedy prior to the issuance of the writ itself.
As a special civil action, the Writ of Continuing
Mandamus may be availed of to compel the performance
of an act specifically enjoined by law. It permits the court
to retain jurisdiction after judgment in order to ensure
the successful implementation of the reliefs mandated
under the court’s decision. For this purpose, the court
may compel the submission of compliance reports from
the respondent government agencies as well as avail of
other means to monitor compliance with its decision.
Its availability as a special civil action likewise
complements its role as a final relief in environmental
civil cases and in the Writ of Kalikasan, where continuing
mandamus may likewise be issued should the facts merit
such a relief.
*Definition of terms RPEC Rule 1 Sec. 4
 Metropolitan Manila Development Authority v.
Concerned Residents of Manila Bay, G.R. Nos. 171947-48,
December 18, 2008
Syllabus:
4
The writ of mandamus lies to require the execution of a
ministerial duty. A ministerial duty is one that “requires
neither the exercise of official discretion nor judgment.”
It connotes an act in which nothing is left to the
discretion of the person executing it. It is a “simple,
definite duty arising under conditions admitted or
proved to exist and imposed by law.” Mandamus is
available to compel action, when refused, on matters
involving discretion, but not to direct the exercise of
judgment or discretion one way or the other.
RA No. 9003 is a sweeping piece of legislation enacted to
radically transform and improve wastemanagement. It
implements Section 16, Article II of the 1987
Constitution, which explicitly provides that the State
shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the
rhythm and harmony of nature. So it was in Oposa v.
Factoran, Jr. that the Court stated that the right to a
balanced and healthful ecology need not even be written
in the Constitution for it is assumed, like other civil and
political rights guaranteed in the Bill of Rights, to exist
from the inception of mankind and it is an issue of
transcendental importance with intergenerational
implications.
Facts:
The government agencies namely, MWSS, LWUA, DENR,
PPA, MMDA, DA, DBM, DPWH, DOH, DECS, and PNP did
not take notice of the present danger to public health and
the depletion and contamination of the marine life of
Manila Bay. According to the Concerned Citizens, the
respondents in this case, the water quality of the Manila
Bay had fallen way below the standard of water quality
in a manner that makes swimming unallowable. Thus,
the Regional Trial Court ordered the government
agencies to participate in cleaning the Bay.
The Regional Trial Court involved in this case conducted
hearings and ocular inspections of the Manila Bay.
Authorities from DENR and MWSS testified in favor of
the petitioners that the bay is in safelevel bathing and
that they are doing their function in reducing pollution.
However, the Regional Trial Court decided in favor of the
respondents and ordered the government agencies in
violation of PD No. 1152 to rehabilitate the bay. The
petitioners went to the Court of Appeals and argued that
PD No. 1152’s provisions only pertain to the cleaning of
specific pollution incidents and do not cover cleaning in
general.
However, the Court of Appeals affirmed the Regional
Trial Court decision.
Issues:
(1) Whether the cleaning of Manila Bay is a ministerial
act that can be induced by mandamus.
(2) Whether Sections 17 and 20 of PD No. 1152 only
pertain to the cleaning of the polluted areas.
Ruling:
(1) Yes. The cleaning of Manila Bay is a ministerial act
which may be compelled by mandamus.
The cleaning and rehabilitation of Manila Bay can be
compelled by mandamus. The MMDA is duty-bound to
comply with Section 41 of the Ecological Solid Waste
Management Act (RA No. 9003) which prescribes the
minimum criteria for the establishment of sanitary
landfills and Section 42 which provides the minimum
operating requirements that each site operator shall
maintain in the operation of a sanitary landfill. Based on
their charters, it is clear that these government agencies
are also mandated to perform certain functions relating
directly or indirectly to the cleanup, rehabilitation,
protection, and preservation of the Manila Bay.
(2) No. Sections 17 and 20 also include general cleaning.
Section 17 provides that in case the water quality has
deteriorated, the government agencies concerned shall
act on it to bring back the standard quality of water.
Section 20, on the other hand, mandates the government
agencies concerned to take action in cleaning up in case
the polluters failed to do their part. The succeeding
Section 62(g) and (h) of the same Code which provides
that oil-spilling is the cause of pollution that should be
corrected in cleanup operations, actually expanded the
coverage of Section 20 because it included oil-spilling as
one of the causes of pollution that need to be cleaned up
by the government agencies concerned. Moreover,
Section 17 emphasizes that government agencies should
clean that water for the sake of meeting and maintaining
the right quality standard. This presupposes that the
government agencies concerned have the duty of
cleaning the water in general and not only at times when
there is a specific pollution incident.
 Hernandez v. Placer Dome, Inc., G.R. No. 195482, June
21, 2011
 Boracay Foundation, Inc. v. Province of Aklan, G.R. No.
196870, June 26, 2012
 Environmental Protection Order
Environmental protection order (EPO) refers to an order
issued by the court directing or enjoining any person or
government agency to perform or desist from
performing an act in order to protect, preserve or
rehabilitate the environment. *
1.3.1. Temporary Environmental Protection Order
(TEPO)
RULE 2 SEC. 8. Issuance of Temporary Environmental
Protection Order (TEPO). – If it appears from the verified
complaint with a prayer for the issuance of an
Environmental Protection Order (EPO) that the matter is
of extreme urgency and the applicant will suffer grave
injustice and irreparable injury, the executive judge of
the multiple-sala court before raffle or the presiding
judge of a single-sala court as the case may be, may issue
ex parte a TEPO effective for only seventy-two (72) hours
from date of the receipt of the TEPO by the party or
person enjoined. Within said period, the court where the
case is assigned, shall conduct a summary hearing to
determine whether the TEPO may be extended until the
termination of the case.
The court where the case is assigned, shall periodically
monitor the existence of acts that are the subject matter
of the TEPO even if issued by the executive judge, and
may lift the same at any time as circumstances may
warrant. The applicant shall be exempted from the
posting of a bond for the issuance of a TEPO.
TEPO. The temporary environmental protection order
(TEPO) integrates both prohibitive and mandatory
reliefs in order to appropriately address the factual
circumstances surrounding the case. This is derived from
the nature of an EPO, which, as defined, is an “order
issued by the court directing or enjoining any person
or government agency to perform or desist from
performing an act in order to protect, preserve, or
rehabilitate the environment.”20
The procedure for the issuance of the TEPO stems from
the same procedure for the issuance of a Temporary
5
Restraining Order, as it appears in Sections 5 and 6 of
Rule 58 of the Rules of Court.
*** Rule 58 of the Rules of Court, Sec 5 and 6
Sec. 5. Preliminary injunction not granted without
notice; exception. — No preliminary injunction shall be
granted without hearing and prior notice to the party or
person sought to be enjoined. If it shall appear from facts
shown by affidavits or by the verified application that
great or irreparable injury would result to the applicant
before the matter can be heard on notice, the court to
which the application for preliminary injunction was
made, may issue ex parte a temporary restraining order
to be effective only for a period of twenty (20) days from
service on the party or person sought to be enjoined,
except as herein provided. Within the said twentyday
period, the court must order said party or person to
show cause, at a specified time and place, why the
injunction should not be granted, determine within the
same period whether or not the preliminary injunction
shall be granted, and accordingly issue the
corresponding order.
However, and subject to the provisions of the preceding
sections, if the matter is of extreme urgency and the
applicant will suffer grave injustice and irreparable
injury, the executive judge of a multiple-sala court or the
presiding judge of a single-sala court may issue ex parte
a temporary restraining order effective for only seventy-
two (72) hours from issuance but he shall immediately
comply with the provisions of the next preceding section
as to service of summons and the documents to be served
therewith. Thereafter, within the aforesaid seventy-two
(72) hours, the judge before whom the case is pending
shall conduct a summary hearing to determine whether
the temporary restraining order shall be extended until
the application for preliminary injunction can be heard.
In no case shall the total period of effectivity of the
temporary restraining order exceed twenty (20) days,
including the original seventy-two hours provided
herein.
In the event that the application for preliminary
injunction is denied or not resolved within the said
period, the temporary restraining order is deemed
automatically vacated. The effectivity of a temporary
restraining order is not extendible without need of any
judicial declaration to that effect and no court shall have
authority to extend or renew the same on the same
ground for which it was issued.However, if issued by the
Court of Appeals or a member thereof, the temporary
restraining order shall be effective for sixty (60) days
from service on the party or person sought to be
enjoined. A restraining order issued by the Supreme
Court or a member thereof shall be effective until further
orders.
SEC. 6. Grounds for objection to, or for motion of
dissolution of, injunction or restraining order. — The
application for injunction or restraining order may be
denied, upon a showing of its insufficiency. The
injunction or restraining order may also be denied, or, if
granted, may be dissolved, on other grounds upon
affidavits of the party or person enjoined, which may be
opposed by the applicant also by affidavits. It may
further be denied, or, if granted, may be dissolved, if it
appears after hearing that although the applicant is
entitled to the injunction or restraining order, the
issuance or continuance thereof, as the case may be,
would cause irreparable damage to the party or person
enjoined while the applicant can be fully compensated
for such damages as he may suffer, and the former files a
bond in an amount fixed by the court conditioned that he
will pay all damages which the applicant may suffer by
the denial or the dissolution of the injunction or
restraining order. If it appears that the extent of the
preliminary injunction or restraining order granted is
too great, it may be modified.
• West Tower Condominium Corp. v. First Philippine
Industrial Corp., G.R. No. 194239, May 31, 2011
1.3.2. Permanent Environmental Protection Order
3. Civil procedure
4. Criminal procedure
6
EN BANC
G.R. Nos. 171947-48 December 18, 2008
METROPOLITAN MANILA DEVELOPMENT
AUTHORITY, DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES, DEPARTMENT OF
EDUCATION, CULTURE AND SPORTS,1 DEPARTMENT
OF HEALTH, DEPARTMENT OF AGRICULTURE,
DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS,
DEPARTMENT OF BUDGET AND MANAGEMENT,
PHILIPPINE COAST GUARD, PHILIPPINE NATIONAL
POLICE MARITIME GROUP, and DEPARTMENT OF
THE INTERIOR AND LOCAL
GOVERNMENT, petitioners,
vs.
CONCERNED RESIDENTS OF MANILA BAY,
represented and joined by DIVINA V. ILAS,
SABINIANO ALBARRACIN, MANUEL SANTOS, JR.,
DINAH DELA PEÑA, PAUL DENNIS QUINTERO, MA.
VICTORIA LLENOS, DONNA CALOZA, FATIMA
QUITAIN, VENICE SEGARRA, FRITZIE TANGKIA,
SARAH JOELLE LINTAG, HANNIBAL AUGUSTUS
BOBIS, FELIMON SANTIAGUEL, and JAIME AGUSTIN
R. OPOSA, respondents.
DECISION
VELASCO, JR., J.:
The need to address environmental pollution, as a cause
of climate change, has of late gained the attention of the
international community. Media have finally trained
their sights on the ill effects of pollution, the destruction
of forests and other critical habitats, oil spills, and the
unabated improper disposal of garbage. And rightly so,
for the magnitude of environmental destruction is now
on a scale few ever foresaw and the wound no longer
simply heals by itself.2 But amidst hard evidence and
clear signs of a climate crisis that need bold action, the
voice of cynicism, naysayers, and procrastinators can
still be heard.
This case turns on government agencies and their
officers who, by the nature of their respective offices or
by direct statutory command, are tasked to protect and
preserve, at the first instance, our internal waters, rivers,
shores, and seas polluted by human activities. To most of
these agencies and their official complement, the
pollution menace does not seem to carry the high
national priority it deserves, if their track records are to
be the norm. Their cavalier attitude towards solving, if
not mitigating, the environmental pollution problem, is a
sad commentary on bureaucratic efficiency and
commitment.
At the core of the case is the Manila Bay, a place with a
proud historic past, once brimming with marine life and,
for so many decades in the past, a spot for different
contact recreation activities, but now a dirty and slowly
dying expanse mainly because of the abject official
indifference of people and institutions that could have
otherwise made a difference.
This case started when, on January 29, 1999,
respondents Concerned Residents of Manila Bay filed a
complaint before the Regional Trial Court (RTC) in Imus,
Cavite against several government agencies, among them
the petitioners, for the cleanup, rehabilitation, and
protection of the Manila Bay. Raffled to Branch 20 and
docketed as Civil Case No. 1851-99 of the RTC, the
complaint alleged that the water quality of the Manila
Bay had fallen way below the allowable standards set by
law, specifically Presidential Decree No. (PD) 1152 or the
Philippine Environment Code. This environmental
aberration, the complaint stated, stemmed from:
x x x [The] reckless, wholesale, accumulated
and ongoing acts of omission or commission [of
the defendants] resulting in the clear and
present danger to public health and in the
depletion and contamination of the marine life
of Manila Bay, [for which reason] ALL
defendants must be held jointly and/or
solidarily liable and be collectively ordered to
clean up Manila Bay and to restore its water
quality to class B waters fit for swimming, skin-
diving, and other forms of contact recreation.3
In their individual causes of action, respondents alleged
that the continued neglect of petitioners in abating the
pollution of the Manila Bay constitutes a violation of,
among others:
(1) Respondents’ constitutional right to life,
health, and a balanced ecology;
(2) The Environment Code (PD 1152);
(3) The Pollution Control Law (PD 984);
(4) The Water Code (PD 1067);
(5) The Sanitation Code (PD 856);
(6) The Illegal Disposal of Wastes Decree (PD
825);
(7) The Marine Pollution Law (PD 979);
(8) Executive Order No. 192;
(9) The Toxic and Hazardous Wastes Law
(Republic Act No. 6969);
(10) Civil Code provisions on nuisance and
human relations;
(11) The Trust Doctrine and the Principle of
Guardianship; and
(12) International Law
Inter alia, respondents, as plaintiffs a quo, prayed that
petitioners be ordered to clean the Manila Bay and
submit to the RTC a concerted concrete plan of action for
the purpose.
The trial of the case started off with a hearing at the
Manila Yacht Club followed by an ocular inspection of the
Manila Bay. Renato T. Cruz, the Chief of the Water Quality
Management Section, Environmental Management
Bureau, Department of Environment and Natural
Resources (DENR), testifying for petitioners, stated that
water samples collected from different beaches around
the Manila Bay showed that the amount of fecal coliform
content ranged from 50,000 to 80,000 most probable
number (MPN)/ml when what DENR Administrative
Order No. 34-90 prescribed as a safe level for bathing and
other forms of contact recreational activities, or the "SB"
level, is one not exceeding 200 MPN/100 ml.4
Rebecca de Vera, for Metropolitan Waterworks and
Sewerage System (MWSS) and in behalf of other
7
petitioners, testified about the MWSS’ efforts to reduce
pollution along the Manila Bay through the Manila
Second Sewerage Project. For its part, the Philippine
Ports Authority (PPA) presented, as part of its evidence,
its memorandum circulars on the study being conducted
on ship-generated waste treatment and disposal, and its
Linis Dagat (Clean the Ocean) project for the cleaning of
wastes accumulated or washed to shore.
The RTC Ordered Petitioners to Clean Up and
Rehabilitate Manila Bay
On September 13, 2002, the RTC rendered a Decision5 in
favor of respondents. The dispositive portion reads:
WHEREFORE, finding merit in the complaint,
judgment is hereby rendered ordering the
abovenamed defendant-government agencies,
jointly and solidarily, to clean up and
rehabilitate Manila Bay and restore its waters
to SB classification to make it fit for swimming,
skin-diving and other forms of contact
recreation. To attain this, defendant-agencies,
with defendant DENR as the lead agency, are
directed, within six (6) months from receipt
hereof, to act and perform their respective
duties by devising a consolidated, coordinated
and concerted scheme of action for the
rehabilitation and restoration of the bay.
In particular:
Defendant MWSS is directed to install, operate
and maintain adequate [sewerage] treatment
facilities in strategic places under its
jurisdiction and increase their capacities.
Defendant LWUA, to see to it that the water
districts under its wings, provide, construct
and operate sewage facilities for the proper
disposal of waste.
Defendant DENR, which is the lead agency in
cleaning up Manila Bay, to install, operate and
maintain waste facilities to rid the bay of toxic
and hazardous substances.
Defendant PPA, to prevent and also to treat the
discharge not only of ship-generated wastes
but also of other solid and liquid wastes from
docking vessels that contribute to the pollution
of the bay.
Defendant MMDA, to establish, operate and
maintain an adequate and appropriate sanitary
landfill and/or adequate solid waste and liquid
disposal as well as other alternative garbage
disposal system such as re-use or recycling of
wastes.
Defendant DA, through the Bureau of Fisheries
and Aquatic Resources, to revitalize the marine
life in Manila Bay and restock its waters with
indigenous fish and other aquatic animals.
Defendant DBM, to provide and set aside an
adequate budget solely for the purpose of
cleaning up and rehabilitation of Manila Bay.
Defendant DPWH, to remove and demolish
structures and other nuisances that obstruct
the free flow of waters to the bay. These
nuisances discharge solid and liquid wastes
which eventually end up in Manila Bay. As the
construction and engineering arm of the
government, DPWH is ordered to actively
participate in removing debris, such as carcass
of sunken vessels, and other non-
biodegradable garbage in the bay.
Defendant DOH, to closely supervise and
monitor the operations of septic and sludge
companies and require them to have proper
facilities for the treatment and disposal of fecal
sludge and sewage coming from septic tanks.
Defendant DECS, to inculcate in the minds and
hearts of the people through education the
importance of preserving and protecting the
environment.
Defendant Philippine Coast Guard and the PNP
Maritime Group, to protect at all costs the
Manila Bay from all forms of illegal fishing.
No pronouncement as to damages and costs.
SO ORDERED.
The MWSS, Local Water Utilities Administration
(LWUA), and PPA filed before the Court of Appeals (CA)
individual Notices of Appeal which were eventually
consolidated and docketed as CA-G.R. CV No. 76528.
On the other hand, the DENR, Department of Public
Works and Highways (DPWH), Metropolitan Manila
Development Authority (MMDA), Philippine Coast Guard
(PCG), Philippine National Police (PNP) Maritime Group,
and five other executive departments and agencies filed
directly with this Court a petition for review under Rule
45. The Court, in a Resolution of December 9, 2002, sent
the said petition to the CA for consolidation with the
consolidated appeals of MWSS, LWUA, and PPA,
docketed as CA-G.R. SP No. 74944.
Petitioners, before the CA, were one in arguing in the
main that the pertinent provisions of the Environment
Code (PD 1152) relate only to the cleaning of specific
pollution incidents and do not cover cleaning in general.
And apart from raising concerns about the lack of funds
appropriated for cleaning purposes, petitioners also
asserted that the cleaning of the Manila Bay is not a
ministerial act which can be compelled by mandamus.
The CA Sustained the RTC
By a Decision6 of September 28, 2005, the CA denied
petitioners’ appeal and affirmed the Decision of the RTC
in toto, stressing that the trial court’s decision did not
require petitioners to do tasks outside of their usual
basic functions under existing laws.7
Petitioners are now before this Court praying for the
allowance of their Rule 45 petition on the following
ground and supporting arguments:
THE [CA] DECIDED A QUESTION OF
SUBSTANCE NOT HERETOFORE PASSED UPON
BY THE HONORABLE COURT, I.E., IT
AFFIRMED THE TRIAL COURT’S DECISION
DECLARING THAT SECTION 20 OF [PD] 1152
REQUIRES CONCERNED GOVERNMENT
AGENCIES TO REMOVE ALL POLLUTANTS
8
 SPILLED AND DISCHARGED IN THE WATER
SUCH AS FECAL COLIFORMS.
ARGUMENTS
I disposal systems necessarily involves policy evaluation
[SECTIONS] 17 AND 20 OF [PD] 1152 RELATE
ONLY TO THE CLEANING OF SPECIFIC
POLLUTION INCIDENTS AND [DO] NOT COVER
CLEANING IN GENERAL
II
THE CLEANING OR REHABILITATION OF THE
MANILA BAY IS NOT A MINISTERIAL ACT OF
PETITIONERS THAT CAN BE COMPELLED BY
MANDAMUS.
The issues before us are two-fold. First, do Sections 17
and 20 of PD 1152 under the headings, Upgrading of
Water Quality and Clean-up Operations, envisage a
cleanup in general or are they limited only to the cleanup
of specific pollution incidents? And second, can
petitioners be compelled by mandamus to clean up and
rehabilitate the Manila Bay?
On August 12, 2008, the Court conducted and heard the
parties on oral arguments.
Our Ruling
We shall first dwell on the propriety of the issuance of
mandamus under the premises.
The Cleaning or Rehabilitation of Manila Bay
Can be Compelled by Mandamus
Generally, the writ of mandamus lies to require the
execution of a ministerial duty.8 A ministerial duty is one
that "requires neither the exercise of official discretion
nor judgment."9 It connotes an act in which nothing is left
to the discretion of the person executing it. It is a "simple,
definite duty arising under conditions admitted or
proved to exist and imposed by law."10 Mandamus is
available to compel action, when refused, on matters
involving discretion, but not to direct the exercise of
judgment or discretion one way or the other.
Petitioners maintain that the MMDA’s duty to take
measures and maintain adequate solid waste and liquid
and the exercise of judgment on the part of the agency
concerned. They argue that the MMDA, in carrying out its
mandate, has to make decisions, including choosing
where a landfill should be located by undertaking
feasibility studies and cost estimates, all of which entail
the exercise of discretion.
Respondents, on the other hand, counter that the
statutory command is clear and that petitioners’ duty to
comply with and act according to the clear mandate of
the law does not require the exercise of discretion.
According to respondents, petitioners, the MMDA in
particular, are without discretion, for example, to choose
which bodies of water they are to clean up, or which
discharge or spill they are to contain. By the same token,
respondents maintain that petitioners are bereft of
discretion on whether or not to alleviate the problem of
solid and liquid waste disposal; in other words, it is the
MMDA’s ministerial duty to attend to such services.
We agree with respondents.
First off, we wish to state that petitioners’ obligation to
perform their duties as defined by law, on one hand, and
how they are to carry out such duties, on the other, are
two different concepts. While the implementation of the
MMDA’s mandated tasks may entail a decision-making
process, the enforcement of the law or the very act of
doing what the law exacts to be done is ministerial in
nature and may be compelled by mandamus. We said so
in Social Justice Society v. Atienza11 in which the Court
directed the City of Manila to enforce, as a matter of
ministerial duty, its Ordinance No. 8027 directing the
three big local oil players to cease and desist from
operating their business in the so-called "Pandacan
Terminals" within six months from the effectivity of the
ordinance. But to illustrate with respect to the instant
case, the MMDA’s duty to put up an adequate and
appropriate sanitary landfill and solid waste and liquid
disposal as well as other alternative garbage disposal
systems is ministerial, its duty being a statutory
imposition. The MMDA’s duty in this regard is spelled out
in Sec. 3(c) of Republic Act No. (RA) 7924 creating the
MMDA. This section defines and delineates the scope of
the MMDA’s waste disposal services to include:
Solid waste disposal and management which
include formulation and implementation of
policies, standards, programs and projects for
proper and sanitary waste disposal. It shall
likewise include the establishment and
operation of sanitary land fill and related
facilities and the implementation of other
alternative programs intended to reduce, reuse
and recycle solid waste. (Emphasis added.)
The MMDA is duty-bound to comply with Sec. 41 of the
Ecological Solid Waste Management Act (RA 9003)
which prescribes the minimum criteria for the
establishment of sanitary landfills and Sec. 42 which
provides the minimum operating requirements that each
site operator shall maintain in the operation of a sanitary
landfill. Complementing Sec. 41 are Secs. 36 and 37 of RA
9003,12 enjoining the MMDA and local government units,
among others, after the effectivity of the law on February
15, 2001, from using and operating open dumps for solid
waste and disallowing, five years after such effectivity,
the use of controlled dumps.
The MMDA’s duty in the area of solid waste disposal, as
may be noted, is set forth not only in the Environment
Code (PD 1152) and RA 9003, but in its charter as well.
This duty of putting up a proper waste disposal system
cannot be characterized as discretionary, for, as earlier
stated, discretion presupposes the power or right given
by law to public functionaries to act officially according
to their judgment or conscience.13 A discretionary duty is
one that "allows a person to exercise judgment and
choose to perform or not to perform."14 Any suggestion
that the MMDA has the option whether or not to perform
its solid waste disposal-related duties ought to be
dismissed for want of legal basis.
A perusal of other petitioners’ respective charters or like
enabling statutes and pertinent laws would yield this
conclusion: these government agencies are enjoined, as
a matter of statutory obligation, to perform certain
functions relating directly or indirectly to the cleanup,
rehabilitation, protection, and preservation of the Manila
Bay. They are precluded from choosing not to perform
these duties. Consider:
9
(1) The DENR, under Executive Order No. (EO) 192,15 is
the primary agency responsible for the conservation,
management, development, and proper use of the
country’s environment and natural resources. Sec. 19 of
the Philippine Clean Water Act of 2004 (RA 9275), on the
other hand, designates the DENR as the primary
government agency responsible for its enforcement and
implementation, more particularly over all aspects of
water quality management. On water pollution, the
DENR, under the Act’s Sec. 19(k), exercises jurisdiction
"over all aspects of water pollution, determine[s] its
location, magnitude, extent, severity, causes and effects
and other pertinent information on pollution, and [takes]
measures, using available methods and technologies, to
prevent and abate such pollution."
The DENR, under RA 9275, is also tasked to prepare a
National Water Quality Status Report, an Integrated
Water Quality Management Framework, and a 10-year
Water Quality Management Area Action Plan which is
nationwide in scope covering the Manila Bay and
adjoining areas. Sec. 19 of RA 9275 provides:
Sec. 19 Lead Agency.––The [DENR] shall be the
primary government agency responsible for
the implementation and enforcement of this
Act x x x unless otherwise provided herein. As
such, it shall have the following functions,
powers and responsibilities:
a) Prepare a National Water Quality Status
report within twenty-four (24) months from
the effectivity of this Act: Provided, That the
Department shall thereafter review or revise
and publish annually, or as the need arises, said
report;
b) Prepare an Integrated Water Quality
Management Framework within twelve (12)
months following the completion of the status
report;
c) Prepare a ten (10) year Water Quality
Management Area Action Plan within 12
months following the completion of the
framework for each designated water
management area. Such action plan shall be
reviewed by the water quality management
area governing board every five (5) years or as
need arises.
The DENR has prepared the status report for the period
2001 to 2005 and is in the process of completing the
preparation of the Integrated Water Quality
Management Framework.16 Within twelve (12) months
thereafter, it has to submit a final Water Quality
Management Area Action Plan.17 Again, like the MMDA,
the DENR should be made to accomplish the tasks
assigned to it under RA 9275.
Parenthetically, during the oral arguments, the DENR
Secretary manifested that the DENR, with the assistance
of and in partnership with various government agencies
and non-government organizations, has completed, as of
December 2005, the final draft of a comprehensive action
plan with estimated budget and time frame,
denominated as Operation Plan for the Manila Bay
Coastal Strategy, for the rehabilitation, restoration, and
rehabilitation of the Manila Bay.
The completion of the said action plan and even the
implementation of some of its phases should more than
ever prod the concerned agencies to fast track what are
assigned them under existing laws.
(2) The MWSS, under Sec. 3 of RA 6234,18 is vested with
jurisdiction, supervision, and control over all
waterworks and sewerage systems in the territory
comprising what is now the cities of Metro Manila and
several towns of the provinces of Rizal and Cavite, and
charged with the duty:
(g) To construct, maintain, and operate such
sanitary sewerages as may be necessary for the
proper sanitation and other uses of the cities
and towns comprising the System; x x x
(3) The LWUA under PD 198 has the power of
supervision and control over local water districts. It can
prescribe the minimum standards and regulations for
the operations of these districts and shall monitor and
evaluate local water standards. The LWUA can direct
these districts to construct, operate, and furnish facilities
and services for the collection, treatment, and disposal of
sewerage, waste, and storm water. Additionally, under
RA 9275, the LWUA, as attached agency of the DPWH, is
tasked with providing sewerage and sanitation facilities,
inclusive of the setting up of efficient and safe collection,
treatment, and sewage disposal system in the different
parts of the country.19 In relation to the instant petition,
the LWUA is mandated to provide sewerage and
sanitation facilities in Laguna, Cavite, Bulacan,
Pampanga, and Bataan to prevent pollution in the Manila
Bay.
(4) The Department of Agriculture (DA), pursuant to the
Administrative Code of 1987 (EO 292),20 is designated as
the agency tasked to promulgate and enforce all laws and
issuances respecting the conservation and proper
utilization of agricultural and fishery resources.
Furthermore, the DA, under the Philippine Fisheries
Code of 1998 (RA 8550), is, in coordination with local
government units (LGUs) and other concerned sectors,
in charge of establishing a monitoring, control, and
surveillance system to ensure that fisheries and aquatic
resources in Philippine waters are judiciously utilized
and managed on a sustainable basis.21 Likewise under
RA 9275, the DA is charged with coordinating with the
PCG and DENR for the enforcement of water quality
standards in marine waters.22 More specifically, its
Bureau of Fisheries and Aquatic Resources (BFAR) under
Sec. 22(c) of RA 9275 shall primarily be responsible for
the prevention and control of water pollution for the
development, management, and conservation of the
fisheries and aquatic resources.
(5) The DPWH, as the engineering and construction arm
of the national government, is tasked under EO 29223 to
provide integrated planning, design, and construction
services for, among others, flood control and water
resource development systems in accordance with
national development objectives and approved
government plans and specifications.
In Metro Manila, however, the MMDA is authorized by
Sec. 3(d), RA 7924 to perform metro-wide services
relating to "flood control and sewerage management
which include the formulation and implementation of
policies, standards, programs and projects for an
integrated flood control, drainage and sewerage system."
On July 9, 2002, a Memorandum of Agreement was
entered into between the DPWH and MMDA, whereby
MMDA was made the agency primarily responsible for
flood control in Metro Manila. For the rest of the country,
DPWH shall remain as the implementing agency for flood
control services. The mandate of the MMDA and DPWH
10
on flood control and drainage services shall include the
removal of structures, constructions, and encroachments
built along rivers, waterways, and esteros (drainages) in
violation of RA 7279, PD 1067, and other pertinent laws.
(6) The PCG, in accordance with Sec. 5(p) of PD 601, or
the Revised Coast Guard Law of 1974, and Sec. 6 of PD
979,24 or the Marine Pollution Decree of 1976, shall have
the primary responsibility of enforcing laws, rules, and
regulations governing marine pollution within the
territorial waters of the Philippines. It shall promulgate
its own rules and regulations in accordance with the
national rules and policies set by the National Pollution
Control Commission upon consultation with the latter
for the effective implementation and enforcement of PD
979. It shall, under Sec. 4 of the law, apprehend violators
who:
a. discharge, dump x x x harmful substances
from or out of any ship, vessel, barge, or any
other floating craft, or other man-made
structures at sea, by any method, means or
manner, into or upon the territorial and inland
navigable waters of the Philippines;
b. throw, discharge or deposit, dump, or cause,
suffer or procure to be thrown, discharged, or
deposited either from or out of any ship, barge,
or other floating craft or vessel of any kind, or
from the shore, wharf, manufacturing
establishment, or mill of any kind, any refuse
matter of any kind or description whatever
other than that flowing from streets and sewers
and passing therefrom in a liquid state into
tributary of any navigable water from which
the same shall float or be washed into such
navigable water; and
c. deposit x x x material of any kind in any place
on the bank of any navigable water or on the
bank of any tributary of any navigable water,
where the same shall be liable to be washed
into such navigable water, either by ordinary or
high tides, or by storms or floods, or otherwise,
whereby navigation shall or may be impeded or
obstructed or increase the level of pollution of
such water.
(7) When RA 6975 or the Department of the Interior and
Local Government (DILG) Act of 1990 was signed into
law on December 13, 1990, the PNP Maritime Group was
tasked to "perform all police functions over the
Philippine territorial waters and rivers." Under Sec. 86,
RA 6975, the police functions of the PCG shall be taken
over by the PNP when the latter acquires the capability
to perform such functions. Since the PNP Maritime Group
has not yet attained the capability to assume and
perform the police functions of PCG over marine
pollution, the PCG and PNP Maritime Group shall
coordinate with regard to the enforcement of laws, rules,
and regulations governing marine pollution within the
territorial waters of the Philippines. This was made clear
in Sec. 124, RA 8550 or the Philippine Fisheries Code of
1998, in which both the PCG and PNP Maritime Group
were authorized to enforce said law and other fishery
laws, rules, and regulations.25
(8) In accordance with Sec. 2 of EO 513, the PPA is
mandated "to establish, develop, regulate, manage and
operate a rationalized national port system in support of
trade and national development."26 Moreover, Sec. 6-c of
EO 513 states that the PPA has police authority within
the ports administered by it as may be necessary to carry
out its powers and functions and attain its purposes and
objectives, without prejudice to the exercise of the
functions of the Bureau of Customs and other law
enforcement bodies within the area. Such police
authority shall include the following:
xxxx
b) To regulate the entry to, exit from, and
movement within the port, of persons and
vehicles, as well as movement within the port
of watercraft.27
Lastly, as a member of the International Marine
Organization and a signatory to the International
Convention for the Prevention of Pollution from Ships, as
amended by MARPOL 73/78,28 the Philippines, through
the PPA, must ensure the provision of adequate
reception facilities at ports and terminals for the
reception of sewage from the ships docking in Philippine
ports. Thus, the PPA is tasked to adopt such measures as
are necessary to prevent the discharge and dumping of
solid and liquid wastes and other ship-generated wastes
into the Manila Bay waters from vessels docked at ports
and apprehend the violators. When the vessels are not
docked at ports but within Philippine territorial waters,
it is the PCG and PNP Maritime Group that have
jurisdiction over said vessels.
(9) The MMDA, as earlier indicated, is duty-bound to put
up and maintain adequate sanitary landfill and solid
waste and liquid disposal system as well as other
alternative garbage disposal systems. It is primarily
responsible for the implementation and enforcement of
the provisions of RA 9003, which would necessary
include its penal provisions, within its area of
jurisdiction.29
Among the prohibited acts under Sec. 48, Chapter VI of
RA 9003 that are frequently violated are dumping of
waste matters in public places, such as roads, canals
or esteros, open burning of solid waste, squatting in open
dumps and landfills, open dumping, burying of
biodegradable or non- biodegradable materials in flood-
prone areas, establishment or operation of open dumps
as enjoined in RA 9003, and operation of waste
management facilities without an environmental
compliance certificate.
Under Sec. 28 of the Urban Development and Housing
Act of 1992 (RA 7279), eviction or demolition may be
allowed "when persons or entities occupy danger areas
such as esteros, railroad tracks, garbage dumps,
riverbanks, shorelines, waterways, and other public
places such as sidewalks, roads, parks and playgrounds."
The MMDA, as lead agency, in coordination with the
DPWH, LGUs, and concerned agencies, can dismantle and
remove all structures, constructions, and other
encroachments built in breach of RA 7279 and other
pertinent laws along the rivers, waterways,
and esteros in Metro Manila. With respect to rivers,
waterways, and esteros in Bulacan, Bataan, Pampanga,
Cavite, and Laguna that discharge wastewater directly or
eventually into the Manila Bay, the DILG shall direct the
concerned LGUs to implement the demolition and
removal of such structures, constructions, and other
encroachments built in violation of RA 7279 and other
applicable laws in coordination with the DPWH and
concerned agencies.
(10) The Department of Health (DOH), under Article 76
of PD 1067 (the Water Code), is tasked to promulgate
rules and regulations for the establishment of waste
disposal areas that affect the source of a water supply or
a reservoir for domestic or municipal use. And under Sec.
11
8 of RA 9275, the DOH, in coordination with the DENR,
DPWH, and other concerned agencies, shall formulate
guidelines and standards for the collection, treatment,
and disposal of sewage and the establishment and
operation of a centralized sewage treatment system. In
areas not considered as highly urbanized cities, septage
or a mix sewerage-septage management system shall be
employed.
In accordance with Sec. 7230 of PD 856, the Code of
Sanitation of the Philippines, and Sec. 5.1.131 of Chapter
XVII of its implementing rules, the DOH is also ordered to
ensure the regulation and monitoring of the proper
disposal of wastes by private sludge companies through
the strict enforcement of the requirement to obtain an
environmental sanitation clearance of sludge collection
treatment and disposal before these companies are
issued their environmental sanitation permit.
(11) The Department of Education (DepEd), under the
Philippine Environment Code (PD 1152), is mandated to
integrate subjects on environmental education in its
school curricula at all levels.32 Under Sec. 118 of RA
8550, the DepEd, in collaboration with the DA,
Commission on Higher Education, and Philippine
Information Agency, shall launch and pursue a
nationwide educational campaign to promote the
development, management, conservation, and proper
use of the environment. Under the Ecological Solid Waste
Management Act (RA 9003), on the other hand, it is
directed to strengthen the integration of environmental
concerns in school curricula at all levels, with an
emphasis on waste management principles.33
(12) The Department of Budget and Management (DBM)
is tasked under Sec. 2, Title XVII of the Administrative
Code of 1987 to ensure the efficient and sound utilization
of government funds and revenues so as to effectively
achieve the country’s development objectives.34
One of the country’s development objectives is
enshrined in RA 9275 or the Philippine Clean Water Act
of 2004. This law stresses that the State shall pursue a
policy of economic growth in a manner consistent with
the protection, preservation, and revival of the quality of
our fresh, brackish, and marine waters. It also provides
that it is the policy of the government, among others, to
streamline processes and procedures in the prevention,
control, and abatement of pollution mechanisms for the
protection of water resources; to promote
environmental strategies and use of appropriate
economic instruments and of control mechanisms for the
protection of water resources; to formulate a holistic
national program of water quality management that
recognizes that issues related to this management
cannot be separated from concerns about water sources
and ecological protection, water supply, public health,
and quality of life; and to provide a comprehensive
management program for water pollution focusing on
pollution prevention.
Thus, the DBM shall then endeavor to provide an
adequate budget to attain the noble objectives of RA
9275 in line with the country’s development objectives.
All told, the aforementioned enabling laws and issuances
are in themselves clear, categorical, and complete as to
what are the obligations and mandate of each
agency/petitioner under the law. We need not belabor
the issue that their tasks include the cleanup of the
Manila Bay.
Now, as to the crux of the petition. Do Secs. 17 and 20 of
the Environment Code encompass the cleanup of water
pollution in general, not just specific pollution incidents?
Secs. 17 and 20 of the Environment Code
Include Cleaning in General
The disputed sections are quoted as follows:
Section 17. Upgrading of Water Quality.––
Where the quality of water has deteriorated to
a degree where its state will adversely affect its
best usage, the government agencies
concerned shall take such measures as may be
necessary to upgrade the quality of such water
to meet the prescribed water quality standards.
Section 20. Clean-up Operations.––It shall be
the responsibility of the polluter to contain,
remove and clean-up water pollution incidents
at his own expense. In case of his failure to do
so, the government agencies concerned shall
undertake containment, removal and clean-up
operations and expenses incurred in said
operations shall be charged against the persons
and/or entities responsible for such pollution.
When the Clean Water Act (RA 9275) took effect, its Sec.
16 on the subject, o, amended the counterpart provision
(Sec. 20) of the Environment Code (PD 1152). Sec. 17 of
PD 1152 continues, however, to be operational.
The amendatory Sec. 16 of RA 9275 reads:
SEC. 16. Cleanup Operations.––
Notwithstanding the provisions of Sections 15
and 26 hereof, any person who causes pollution
in or pollutes water bodies in excess of the
applicable and prevailing standards shall be
responsible to contain, remove and clean up
any pollution incident at his own expense to the
extent that the same water bodies have been
rendered unfit for utilization and beneficial
use: Provided, That in the event emergency
cleanup operations are necessary and the
polluter fails to immediately undertake the
same, the [DENR] in coordination with other
government agencies concerned, shall
undertake containment, removal and cleanup
operations. Expenses incurred in said
operations shall be reimbursed by the persons
found to have caused such pollution under
proper administrative determination x x x.
Reimbursements of the cost incurred shall be
made to the Water Quality Management Fund
or to such other funds where said
disbursements were sourced.
As may be noted, the amendment to Sec. 20 of the
Environment Code is more apparent than real since the
amendment, insofar as it is relevant to this case, merely
consists in the designation of the DENR as lead agency in
the cleanup operations.
Petitioners contend at every turn that Secs. 17 and 20 of
the Environment Code concern themselves only with the
matter of cleaning up in specific pollution incidents, as
opposed to cleanup in general. They aver that the twin
provisions would have to be read alongside the
succeeding Sec. 62(g) and (h), which defines the terms
"cleanup operations" and "accidental spills," as follows:
12
 g. Clean-up Operations [refer] to activities
conducted in removing the pollutants
discharged or spilled in water to restore it to
pre-spill condition.
h. Accidental Spills [refer] to spills of oil or
other hazardous substances in water that
result from accidents such as collisions and
groundings.
Petitioners proffer the argument that Secs. 17 and 20 of
PD 1152 merely direct the government agencies
concerned to undertake containment, removal, and
cleaning operations of a specific polluted portion or
portions of the body of water concerned. They maintain
that the application of said Sec. 20 is limited only to
"water pollution incidents," which are situations that
presuppose the occurrence of specific, isolated pollution
events requiring the corresponding containment,
removal, and cleaning operations. Pushing the point
further, they argue that the aforequoted Sec. 62(g)
requires "cleanup operations" to restore the body of
water to pre-spill condition, which means that there
must have been a specific incident of either intentional
or accidental spillage of oil or other hazardous
substances, as mentioned in Sec. 62(h).
As a counterpoint, respondents argue that petitioners
erroneously read Sec. 62(g) as delimiting the application
of Sec. 20 to the containment, removal, and cleanup
operations for accidental spills only. Contrary to
petitioners’ posture, respondents assert that Sec. 62(g),
in fact, even expanded the coverage of Sec. 20.
Respondents explain that without its Sec. 62(g), PD 1152
may have indeed covered only pollution accumulating
from the day-to-day operations of businesses around the
Manila Bay and other sources of pollution that slowly
accumulated in the bay. Respondents, however,
emphasize that Sec. 62(g), far from being a delimiting
provision, in fact even enlarged the operational scope of
Sec. 20, by including accidental spills as among the water
pollution incidents contemplated in Sec. 17 in relation to
Sec. 20 of PD 1152.
To respondents, petitioners’ parochial view on
environmental issues, coupled with their narrow reading
of their respective mandated roles, has contributed to
the worsening water quality of the Manila Bay.
Assuming, respondents assert, that petitioners are
correct in saying that the cleanup coverage of Sec. 20 of
PD 1152 is constricted by the definition of the phrase
"cleanup operations" embodied in Sec. 62(g), Sec. 17 is
not hobbled by such limiting definition. As pointed out,
the phrases "cleanup operations" and "accidental spills"
do not appear in said Sec. 17, not even in the chapter
where said section is found.
Respondents are correct. For one thing, said Sec. 17 does
not in any way state that the government agencies
concerned ought to confine themselves to the
containment, removal, and cleaning operations when a
specific pollution incident occurs. On the contrary, Sec.
17 requires them to act even in the absence of a specific
pollution incident, as long as water quality "has
deteriorated to a degree where its state will adversely
affect its best usage." This section, to stress, commands
concerned government agencies, when appropriate, "to
take such measures as may be necessary to meet the
prescribed water quality standards." In fine, the
underlying duty to upgrade the quality of water is not
conditional on the occurrence of any pollution incident.
For another, a perusal of Sec. 20 of the Environment
Code, as couched, indicates that it is properly applicable
to a specific situation in which the pollution is caused by
polluters who fail to clean up the mess they left behind.
In such instance, the concerned government agencies
shall undertake the cleanup work for the polluters’
account. Petitioners’ assertion, that they have to perform
cleanup operations in the Manila Bay only when there is
a water pollution incident and the erring polluters do not
undertake the containment, removal, and cleanup
operations, is quite off mark. As earlier discussed, the
complementary Sec. 17 of the Environment Code comes
into play and the specific duties of the agencies to clean
up come in even if there are no pollution incidents
staring at them. Petitioners, thus, cannot plausibly
invoke and hide behind Sec. 20 of PD 1152 or Sec. 16 of
RA 9275 on the pretext that their cleanup mandate
depends on the happening of a specific pollution
incident. In this regard, what the CA said with respect to
the impasse over Secs. 17 and 20 of PD 1152 is at once
valid as it is practical. The appellate court wrote: "PD
1152 aims to introduce a comprehensive program of
environmental protection and management. This is
better served by making Secs. 17 & 20 of general
application rather than limiting them to specific
pollution incidents."35
Granting arguendo that petitioners’ position thus
described vis-à-vis the implementation of Sec. 20 is
correct, they seem to have overlooked the fact that the
pollution of the Manila Bay is of such magnitude and
scope that it is well-nigh impossible to draw the line
between a specific and a general pollution incident. And
such impossibility extends to pinpointing with
reasonable certainty who the polluters are. We note that
Sec. 20 of PD 1152 mentions "water pollution incidents"
which may be caused by polluters in the waters of the
Manila Bay itself or by polluters in adjoining lands and in
water bodies or waterways that empty into the bay. Sec.
16 of RA 9275, on the other hand, specifically adverts to
"any person who causes pollution in or pollutes water
bodies," which may refer to an individual or an
establishment that pollutes the land mass near the
Manila Bay or the waterways, such that the contaminants
eventually end up in the bay. In this situation, the water
pollution incidents are so numerous and involve
nameless and faceless polluters that they can validly be
categorized as beyond the specific pollution incident
level.
Not to be ignored of course is the reality that the
government agencies concerned are so undermanned
that it would be almost impossible to apprehend the
numerous polluters of the Manila Bay. It may perhaps
not be amiss to say that the apprehension, if any, of the
Manila Bay polluters has been few and far between.
Hence, practically nobody has been required to contain,
remove, or clean up a given water pollution incident. In
this kind of setting, it behooves the Government to step
in and undertake cleanup operations. Thus, Sec. 16 of RA
9275, previously Sec. 20 of PD 1152, covers for all intents
and purposes a general cleanup situation.
The cleanup and/or restoration of the Manila Bay is only
an aspect and the initial stage of the long-term solution.
The preservation of the water quality of the bay after the
rehabilitation process is as important as the cleaning
phase. It is imperative then that the wastes and
contaminants found in the rivers, inland bays, and other
bodies of water be stopped from reaching the Manila
Bay. Otherwise, any cleanup effort would just be a futile,
cosmetic exercise, for, in no time at all, the Manila Bay
water quality would again deteriorate below the ideal
minimum standards set by PD 1152, RA 9275, and other
relevant laws. It thus behooves the Court to put the heads
of the petitioner-department-agencies and the bureaus
and offices under them on continuing notice about, and
13
to enjoin them to perform, their mandates and duties
towards cleaning up the Manila Bay and preserving the
quality of its water to the ideal level. Under what other
judicial discipline describes as "continuing
mandamus,"36 the Court may, under extraordinary
circumstances, issue directives with the end in view of
ensuring that its decision would not be set to naught by
administrative inaction or indifference. In India, the
doctrine of continuing mandamus was used to enforce
directives of the court to clean up the length of the
Ganges River from industrial and municipal pollution.37
The Court can take judicial notice of the presence of
shanties and other unauthorized structures which do not
have septic tanks along the Pasig-Marikina-San Juan
Rivers, the National Capital Region (NCR) (Parañaque-
Zapote, Las Piñas) Rivers, the Navotas-Malabon-
Tullahan-Tenejeros Rivers, the Meycuayan-Marilao-
Obando (Bulacan) Rivers, the Talisay (Bataan) River, the
Imus (Cavite) River, the Laguna De Bay, and other minor
rivers and connecting waterways, river banks, and
esteros which discharge their waters, with all the
accompanying filth, dirt, and garbage, into the major
rivers and eventually the Manila Bay. If there is one
factor responsible for the pollution of the major river
systems and the Manila Bay, these unauthorized
structures would be on top of the list. And if the issue of
illegal or unauthorized structures is not seriously
addressed with sustained resolve, then practically all
efforts to cleanse these important bodies of water would
be for naught. The DENR Secretary said as much.38
Giving urgent dimension to the necessity of removing
these illegal structures is Art. 51 of PD 1067 or the Water
Code,39 which prohibits the building of structures within
a given length along banks of rivers and other
waterways. Art. 51 reads:
The banks of rivers and streams and the
shores of the seas and lakes throughout
their entire length and within a zone of
three (3) meters in urban areas, twenty (20)
meters in agricultural areas and forty (40)
meters in forest areas, along their margins,
are subject to the easement of public use in
the interest of recreation, navigation,
floatage, fishing and salvage. No person
shall be allowed to stay in this zone longer
than what is necessary for recreation,
navigation, floatage, fishing or salvage or to
build structures of any kind. (Emphasis
added.)
Judicial notice may likewise be taken of factories and
other industrial establishments standing along or near
the banks of the Pasig River, other major rivers, and
connecting waterways. But while they may not be
treated as unauthorized constructions, some of these
establishments undoubtedly contribute to the pollution
of the Pasig River and waterways. The DILG and the
concerned LGUs, have, accordingly, the duty to see to it
that non-complying industrial establishments set up,
within a reasonable period, the necessary waste water
treatment facilities and infrastructure to prevent their
industrial discharge, including their sewage waters, from
flowing into the Pasig River, other major rivers, and
connecting waterways. After such period, non-
complying establishments shall be shut down or asked to
transfer their operations.
At this juncture, and if only to dramatize the urgency of
the need for petitioners-agencies to comply with their
statutory tasks, we cite the Asian Development Bank-
commissioned study on the garbage problem in Metro
Manila, the results of which are embodied in the The
Garbage Book. As there reported, the garbage crisis in the
metropolitan area is as alarming as it is shocking. Some
highlights of the report:
1. As early as 2003, three land-filled dumpsites
in Metro Manila - the Payatas, Catmon and
Rodriquez dumpsites - generate an alarming
quantity of lead and leachate or liquid run-off.
Leachate are toxic liquids that flow along the
surface and seep into the earth and poison the
surface and groundwater that are used for
drinking, aquatic life, and the environment.
2. The high level of fecal coliform confirms the
presence of a large amount of human waste in
the dump sites and surrounding areas, which is
presumably generated by households that lack
alternatives to sanitation. To say that Manila
Bay needs rehabilitation is an understatement.
3. Most of the deadly leachate, lead and other
dangerous contaminants and possibly strains
of pathogens seeps untreated into ground
water and runs into the Marikina and Pasig
River systems and Manila Bay.40
Given the above perspective, sufficient sanitary landfills
should now more than ever be established as prescribed
by the Ecological Solid Waste Management Act (RA
9003). Particular note should be taken of the blatant
violations by some LGUs and possibly the MMDA of Sec.
37, reproduced below:
Sec. 37. Prohibition against the Use of Open
Dumps for Solid Waste.––No open dumps shall
be established and operated, nor any practice
or disposal of solid waste by any person,
including LGUs which [constitute] the use of
open dumps for solid waste, be allowed after
the effectivity of this Act: Provided, further
that no controlled dumps shall be allowed
(5) years following the effectivity of this Act.
(Emphasis added.)
RA 9003 took effect on February 15, 2001 and the
adverted grace period of five (5) years which ended on
February 21, 2006 has come and gone, but no single
sanitary landfill which strictly complies with the
prescribed standards under RA 9003 has yet been set up.
In addition, there are rampant and repeated violations of
Sec. 48 of RA 9003, like littering, dumping of waste
matters in roads, canals, esteros, and other public places,
operation of open dumps, open burning of solid waste,
and the like. Some sludge companies which do not have
proper disposal facilities simply discharge sludge into
the Metro Manila sewerage system that ends up in the
Manila Bay. Equally unabated are violations of Sec. 27 of
RA 9275, which enjoins the pollution of water bodies,
groundwater pollution, disposal of infectious wastes
from vessels, and unauthorized transport or dumping
into sea waters of sewage or solid waste and of Secs. 4
and 102 of RA 8550 which proscribes the introduction
by human or machine of substances to the aquatic
environment including "dumping/disposal of waste and
other marine litters, discharge of petroleum or residual
products of petroleum of carbonaceous
materials/substances [and other] radioactive, noxious or
harmful liquid, gaseous or solid substances, from any
water, land or air transport or other human-made
structure."
14
In the light of the ongoing environmental degradation,
the Court wishes to emphasize the extreme necessity for
all concerned executive departments and agencies to
immediately act and discharge their respective official
duties and obligations. Indeed, time is of the essence;
hence, there is a need to set timetables for the
performance and completion of the tasks, some of them
as defined for them by law and the nature of their
respective offices and mandates.
The importance of the Manila Bay as a sea resource,
playground, and as a historical landmark cannot be over-
emphasized. It is not yet too late in the day to restore the
Manila Bay to its former splendor and bring back the
plants and sea life that once thrived in its blue waters.
But the tasks ahead, daunting as they may be, could only
be accomplished if those mandated, with the help and
cooperation of all civic-minded individuals, would put
their minds to these tasks and take responsibility. This
means that the State, through petitioners, has to take the
lead in the preservation and protection of the Manila Bay.
The era of delays, procrastination, and ad hoc measures
is over. Petitioners must transcend their limitations, real
or imaginary, and buckle down to work before the
problem at hand becomes unmanageable. Thus, we must
reiterate that different government agencies and
instrumentalities cannot shirk from their mandates; they
must perform their basic functions in cleaning up and
rehabilitating the Manila Bay. We are disturbed by
petitioners’ hiding behind two untenable claims: (1) that
there ought to be a specific pollution incident before they
are required to act; and (2) that the cleanup of the bay is
a discretionary duty.
RA 9003 is a sweeping piece of legislation enacted to
radically transform and improve waste management. It
implements Sec. 16, Art. II of the 1987 Constitution,
which explicitly provides that the State shall protect and
advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and
harmony of nature.
So it was that in Oposa v. Factoran, Jr. the Court stated
that the right to a balanced and healthful ecology need
not even be written in the Constitution for it is assumed,
like other civil and political rights guaranteed in the Bill
of Rights, to exist from the inception of mankind and it is
an issue of transcendental importance with
intergenerational implications.41 Even assuming the
absence of a categorical legal provision specifically
prodding petitioners to clean up the bay, they and the
men and women representing them cannot escape their
obligation to future generations of Filipinos to keep the
waters of the Manila Bay clean and clear as humanly as
possible. Anything less would be a betrayal of the trust
reposed in them.
WHEREFORE, the petition is DENIED. The September
28, 2005 Decision of the CA in CA-G.R. CV No. 76528 and
SP No. 74944 and the September 13, 2002 Decision of the
RTC in Civil Case No. 1851-99 are AFFIRMED but
with MODIFICATIONS in view of subsequent
developments or supervening events in the case.
The fallo of the RTC Decision shall now read:
WHEREFORE, judgment is hereby rendered
ordering the abovenamed defendant-
government agencies to clean up, rehabilitate,
and preserve Manila Bay, and restore and
maintain its waters to SB level (Class B sea
waters per Water Classification Tables under
DENR Administrative Order No. 34 [1990]) to
make them fit for swimming, skin-diving, and
other forms of contact recreation.
In particular:
(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as
the primary agency responsible for the conservation,
management, development, and proper use of the
country’s environment and natural resources, and Sec.
19 of RA 9275, designating the DENR as the primary
government agency responsible for its enforcement and
implementation, the DENR is directed to fully implement
its Operational Plan for the Manila Bay Coastal
Strategy for the rehabilitation, restoration, and
conservation of the Manila Bay at the earliest possible
time. It is ordered to call regular coordination meetings
with concerned government departments and agencies
to ensure the successful implementation of the aforesaid
plan of action in accordance with its indicated
completion schedules.
(2) Pursuant to Title XII (Local Government) of the
Administrative Code of 1987 and Sec. 25 of the Local
Government Code of 1991,42 the DILG, in exercising the
President’s power of general supervision and its duty to
promulgate guidelines in establishing waste
management programs under Sec. 43 of the Philippine
Environment Code (PD 1152), shall direct all LGUs in
Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga,
and Bataan to inspect all factories, commercial
establishments, and private homes along the banks of the
major river systems in their respective areas of
jurisdiction, such as but not limited to the Pasig-
Marikina-San Juan Rivers, the NCR (Parañaque-Zapote,
Las Piñas) Rivers, the Navotas-Malabon-Tullahan-
Tenejeros Rivers, the Meycauayan-Marilao-Obando
(Bulacan) Rivers, the Talisay (Bataan) River, the Imus
(Cavite) River, the Laguna De Bay, and other minor rivers
and waterways that eventually discharge water into the
Manila Bay; and the lands abutting the bay, to determine
whether they have wastewater treatment facilities or
hygienic septic tanks as prescribed by existing laws,
ordinances, and rules and regulations. If none be found,
these LGUs shall be ordered to require non-complying
establishments and homes to set up said facilities or
septic tanks within a reasonable time to prevent
industrial wastes, sewage water, and human wastes from
flowing into these rivers, waterways, esteros, and the
Manila Bay, under pain of closure or imposition of fines
and other sanctions.
(3) As mandated by Sec. 8 of RA 9275,43 the MWSS is
directed to provide, install, operate, and maintain the
necessary adequate waste water treatment facilities in
Metro Manila, Rizal, and Cavite where needed at the
earliest possible time.
(4) Pursuant to RA 9275,44 the LWUA, through the local
water districts and in coordination with the DENR, is
ordered to provide, install, operate, and maintain
sewerage and sanitation facilities and the efficient and
safe collection, treatment, and disposal of sewage in the
provinces of Laguna, Cavite, Bulacan, Pampanga, and
Bataan where needed at the earliest possible time.
(5) Pursuant to Sec. 65 of RA 8550,45 the DA, through the
BFAR, is ordered to improve and restore the marine life
of the Manila Bay. It is also directed to assist the LGUs in
Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga,
and Bataan in developing, using recognized methods, the
fisheries and aquatic resources in the Manila Bay.
(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the
PNP Maritime Group, in accordance with Sec. 124 of RA
8550, in coordination with each other, shall apprehend
violators of PD 979, RA 8550, and other existing laws and
15
regulations designed to prevent marine pollution in the
Manila Bay.
(7) Pursuant to Secs. 2 and 6-c of EO 51346 and the
International Convention for the Prevention of Pollution
from Ships, the PPA is ordered to immediately adopt
such measures to prevent the discharge and dumping of
solid and liquid wastes and other ship-generated wastes
into the Manila Bay waters from vessels docked at ports
and apprehend the violators.
(8) The MMDA, as the lead agency and implementor of
programs and projects for flood control projects and
drainage services in Metro Manila, in coordination with
the DPWH, DILG, affected LGUs, PNP Maritime Group,
Housing and Urban Development Coordinating Council
(HUDCC), and other agencies, shall dismantle and
remove all structures, constructions, and other
encroachments established or built in violation of RA
7279, and other applicable laws along the Pasig-
Marikina-San Juan Rivers, the NCR (Parañaque-Zapote,
Las Piñas) Rivers, the Navotas-Malabon-Tullahan-
Tenejeros Rivers, and connecting waterways and esteros
in Metro Manila. The DPWH, as the principal
implementor of programs and projects for flood control
services in the rest of the country more particularly in
Bulacan, Bataan, Pampanga, Cavite, and Laguna, in
coordination with the DILG, affected LGUs, PNP Maritime
Group, HUDCC, and other concerned government
agencies, shall remove and demolish all structures,
constructions, and other encroachments built in breach
of RA 7279 and other applicable laws along the
Meycauayan-Marilao-Obando (Bulacan) Rivers, the
Talisay (Bataan) River, the Imus (Cavite) River, the
Laguna De Bay, and other rivers, connecting waterways,
and esteros that discharge wastewater into the Manila
Bay.
In addition, the MMDA is ordered to establish, operate,
and maintain a sanitary landfill, as prescribed by RA
9003, within a period of one (1) year from finality of this
Decision. On matters within its territorial jurisdiction
and in connection with the discharge of its duties on the
maintenance of sanitary landfills and like undertakings,
it is also ordered to cause the apprehension and filing of
the appropriate criminal cases against violators of the
respective penal provisions of RA 9003,47 Sec. 27 of RA
9275 (the Clean Water Act), and other existing laws on
pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and
Sec. 8 of RA 9275, within one (1) year from finality of this
Decision, determine if all licensed septic and sludge
companies have the proper facilities for the treatment
and disposal of fecal sludge and sewage coming from
septic tanks. The DOH shall give the companies, if found
to be non-complying, a reasonable time within which to
set up the necessary facilities under pain of cancellation
of its environmental sanitation clearance.
(10) Pursuant to Sec. 53 of PD 1152,48 Sec. 118 of RA
8550, and Sec. 56 of RA 9003,49 the DepEd shall integrate
lessons on pollution prevention, waste management,
environmental protection, and like subjects in the school
curricula of all levels to inculcate in the minds and hearts
of students and, through them, their parents and friends,
the importance of their duty toward achieving and
maintaining a balanced and healthful ecosystem in the
Manila Bay and the entire Philippine archipelago.
(11) The DBM shall consider incorporating an adequate
budget in the General Appropriations Act of 2010 and
succeeding years to cover the expenses relating to the
cleanup, restoration, and preservation of the water
quality of the Manila Bay, in line with the country’s
development objective to attain economic growth in a
manner consistent with the protection, preservation,
and revival of our marine waters.
(12) The heads of petitioners-agencies MMDA, DENR,
DepEd, DOH, DA, DPWH, DBM, PCG, PNP Maritime Group,
DILG, and also of MWSS, LWUA, and PPA, in line with the
principle of "continuing mandamus," shall, from finality
of this Decision, each submit to the Court a quarterly
progressive report of the activities undertaken in
accordance with this Decision.
No costs.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
16
EN BANC
[G.R. No. 195482 : June 21, 2011]
ELIZA M. HERNANDEZ, ET AL. V. PLACER DOME, INC.
Sirs/Mesdames:
Please take notice that the Court en banc issued a
Resolution dated JUNE 21, 2011, which reads as follows:
"G.R. No. 195482 (ELIZA M. HERNANDEZ, ET AL. v.
PLACER DOME, INC.)
RESOLUTION
In the Resolution dated 8 March 2011, the Court granted
petitioners' prayer for the issuance of a Writ of Kalikasan
and for the service of said writ as well as the summons
issued in the case, by their counsel and representative,
Civic Action Group Ltd./APS International, Ltd. In the
same resolution, the Court likewise ordered respondents
Placer Dome, Inc. (PDI) and Barrick Gold Corporation
(BGC) to make a verified return of the same writ and
referred the case to the Court of Appeals (CA) for
hearing, reception of evidence and rendition of
judgment. On 29 March 2011, the Court additionally
issued a resolution granting petitioners' motion for the
inclusion of AI Legal Service & Training Ltd. and Select
Document Services among those authorized to serve
summons on respondents, on the ground that Civic
Action Group Ltd./APS International, Ltd. had limited
their services to the United States of America.
Subsequent to its filing of a 29 March 2011 Urgent
Motion to Suspend Filing of Return, BGC filed a 31 March
2011 Urgent Motion for Ruling on Jurisdiction,
questioning the constitutionality of Rule 7 of the Rules of
Procedure for Environmental Cases (AMC No. 09-6-8-SC)
as well as the validity of the issuance and service of
summons in the case. On 4 April 2011, BGC also filed a
Return Ad Cautelam, accompanied by a Manifestation
dated 4 April 2011, undertaking to submit within a
reasonable time the authenticated copies of the sworn
statements attached to said Return in view of time
constraints. On 12 April 2011, the Court issued a
Resolution noting the foregoing motions and incidents
and requiring petitioners to file their comment to BGC's
Urgent Motion for Ruling on Jurisdiction.
On 12 April 2011, petitioners also filed an Urgent Motion
of even date, seeking leave to serve summons upon
respondents through any of in the means provided under
Section 12, Rule 14 of the Rules of Court. As amended by
A.M. No. 11-3-6-SC which was issued on 15 March 2011,
said provision allows service of summons through any of
the following means to a foreign private juridical entity
not registered in the Philippines or without a resident
agent, viz.: (a) by personal service coursed through the
appropriate court in the foreign country with the
assistance of the Department of Foreign Affairs; (b) by
publication once in a newspaper of general circulation in
the country where the defendant may be found and by
serving a copy of the summons and the court order by
registered mail at the last known address of the
defendant; (c) by facsimile or any recognized electronic
means that could generate proof of service; and, (d) by
such other means as the court may in its discretion
direct.
On 18 April 2011, petitioners filed a Manifestation and
Compliance dated 15 April 2011, submitting the affidavit
executed by Brian Nolan of the Civic Action Group
Ltd./APS International, Ltd. attesting to the 25 March
2011 service of summons on BGC. Without prejudice to
the Urgent Motion for Ruling on Jurisdiction it earlier
filed, BGC in turn filed a Submission dated 19 April 2011,
proffering the original authenticated copies of the
affidavits executed by Debra Bilous and James Donald
Robertson and reiterating its commitment to submit
within a reasonable time the authenticated copies of the
other affidavits attached to its Return Ad Cautelam. On 6
May 2011, Sycip Salazar Hernandez and Gatmaitan,
BGC's counsel of record, filed a Manifestation dated 5
May 2011 stating, among other matters, that they have
been served with copies of petitioners' Notice of
Deposition, Interrogatories and Motion for Production of
Inspection of Documents (Discovery Papers) intended
for their client, in connection with the proceedings
pending before the CA as CA-G.R. SP No. 00001; that
being for the limited purpose of raising constitutional
and jurisdictional issues, their special appearance is not
of such nature as would authorize them to receive said
Discovery Papers for and in behalf of BCG.
On 12 May 2011, petitioners filed their Manifestation
with Reiterated Motion dated 11 May 2011, alleging that
they have received a copy of the 3 May 2011
Manifestation and Motion filed before the CA by the
Office of the Solicitor General (OSG) on behalf of the
Department of Trade and Industry (DTI), praying that
petitioners be directed to manifest whether they have
already caused the service of summons upon PDI and, if
not, to coordinate with the OSG with respect to the mode
of service as well as the manner of payment thereof; that
although it had been served with copies of their petition
and its annexes by registered mail, PDI has yet to be
served with summons; and, that while they are willing to
coordinate with the OSG regarding the mode and manner
of payment for the service of summons to PDI, the Court
has yet to resolve their motions for the inclusion of AI
Legal Service & Training Ltd. and Select Document
Services among those authorized to serve summons on
respondents and for the service of summons in
accordance with Section 12, Rule 15 of the Rules of Court,
as amended.
On 17 May 2011, BGC filed a Clarificatory Manifestation
dated 16 May 2011, alleging that it received the
Resolution dated 4 May 2011 issued by the CA's First
Division in CA-G.R. SP No. 00001, the decretal portion of
which states:
"ACTING on the pending incidents, We hereby resolve as
follows:
1) In order to attain a judicious determination of the
Urgent Motion for Ruling on Jurisdiction, the
petitioners are DIRECTED to submit their
COMMENT within ten (10) days from receipt
hereof. Perforce, Our resolution on petitioners'
Motion for Production and Inspection of
Documents is held in abeyance;
2) Petitioners are ORDERED to manifest whether or
not respondent Placer Dome has been served with
Summons and if none had been served yet, to
coordinate with the DTI, through the OSG, for the
implementation thereof.
SO ORDERED."
BGC calls the attention of the Court to the fact, among
other matters, that the foregoing resolution is in conflict
with our resolution dated 12 April 2011 which required
petitioners to file their comment to its Urgent Motion for
Ruling on Jurisdiction; and, that consequently, there is a
need to clarify which court exercises jurisdiction over
the case in order to shed light to the procedural paths
available to the parties. Subsequent to its filing of a
Submission dated 18 May 2011 submitting the original
of the authenticated affidavit of Geoffrey Marlow, BGC
filed a Manifestation dated 6 June 2011 reiterating the
need for said clarification, in view of petitioners' filing on
17
2 June 2011 of their Opposition to its Urgent Motion for
Ruling on Jurisdiction.
Pursuant to Section 3, Rule VII of the Rules of Procedure
for Environmental Cases, petitions for the Writ of
Kalikasan "shall be filed with the Supreme Court or with
any of the stations of the Court of Appeals." It was in
consonance with this provision that, on 8 March 2011,
the Court issued the Resolution which, after granting the
Writ of Kalikasan sought by petitioners, referred the case
to the CA for hearing, reception of evidence and rendition
of judgment. Considering said referral of the case to the
CA, its re-docketing of the petition as CA-G.R. SP No.
00001 and its conduct of proceedings relative thereto, it
is imperative that the various motions and incidents filed
by the parties, together with the entire records of the
case, be likewise referred to said Court in observance of
the doctrine of hierarchy of courts and in the interest of
the orderly and expeditious conduct of the proceedings
in the case. With respect to petitioners' Manifestation
with Reiterated Motion dated 11 May 2011, attention is,
however, called to the fact that the motion for the
inclusion of AI Legal Service & Training Ltd. and Select
Document Services among those authorized to serve
summons on respondents had already been granted in
the Court's 29 March 2011 Resolution.
WHEREFORE, premises considered, the records of the
case are REFERRED to the CA, for appropriate action on
the various motions and incidents filed by the parties."
Very truly yours,
Nota Bien:
If you were to search this case using the above-
cited G.R. No., you will see a mere resolution of the Court
without any defined statement of facts, issues or ruling.
So what I did was to research on the factual antecedents
which culminated into this petition. Please, verify it if you
cannot understand the following discussions.
Antecedent Facts:
Placer Dome is the parent corporation of
Marcopper Mining Company. It is engaged in the mining
operations in Marinduque from 1964 – 1997. In May
2006, Placer Dome merged with Barrick Gold
Corporation, a foreign entity.
In March 1996, the disaster came about. A
fracture in the drainage tunnel of a large pit containing
leftover mine tailings led to a discharge of toxic mine
waste into the Makulapnit-Boac river system and caused
flash floods in areas along the river. Barangay Hinapulan,
was buried in six feet of muddy floodwater, causing
damage to people and their families, as well as livestock,
marine resources and maritime life.
Placer Dome entered into a contract with then
President Fidel V. Ramos to rehabilitate the waters of
Marinduque. It did not reach fruition.
Start of Court Process:
After receiving the resolution issued by CA,
Barrick Gold, currently the owner of Placer Dome, filed a
Clarificatory Manifestation to clarify which court
exercises jurisdiction over the case in order to shed light
to the procedural paths available to the parties.
Supreme Court Resolution
Pursuant to Section 3, Rule VII of the Rules of Procedure
for Environmental Cases, petitions for the Writ of
Kalikasan "shall be filed with the Supreme Court or with
any of the stations of the Court of Appeals." It was in
consonance with this provision that, on 8 March 2011,
the Court issued the Resolution which, after granting the
Writ of Kalikasan sought by petitioners, referred the case
to the CA for hearing, reception of evidence and rendition
of judgment. Considering said referral of the case to the
CA, its re-docketing of the petition as CA-G.R. SP No.
00001 and its conduct of proceedings relative thereto, it
is imperative that the various motions and incidents filed
by the parties, together with the entire records of the
case, be likewise referred to said Court in observance of
the doctrine of hierarchy of courts and in the interest of
the orderly and expeditious conduct of the proceedings
in the case.

In 2011, three residents of Marinduque, Eliza

M. Hernandez, Mamerto M. Lanete and Godofredo L.
(Sgd.) ENRIQUETA E. VIDAL Manoy, represented by Father Joaquin Bernas, filed a
petition for writ of kalikasan. In their petition, they
Clerk of Court
argued that said Placer Dome should be held liable for
expelling some 2 million cubic meters of toxic industrial
waste into the Boac river when a drainage plug holding
**** toxic mining waste from its operations ruptured.

EN BANC The writ of Kalikasan was granted. In March

[G.R. No. 195482 : June 21, 2011]
ELIZA M. HERNANDEZ, ET AL. V. PLACER DOME, INC.
"G.R. No. 195482 (ELIZA M. HERNANDEZ, ET AL. v.
PLACER DOME, INC.)
2011, the Court issued a resolution which referred the
case to the Court of Appeals for hearing, reception of
evidence, and rendition of judgment. CA then issued a
resolution requiring the petitioners to issue a sub poena
against Placer Dome.

Issue:

18
EN BANC
G.R. No. 196870 June 26, 2012
BORACAY FOUNDATION, INC., Petitioner,
vs.
THE PROVINCE OF AKLAN, REPRESENTED BY
GOVERNOR CARLITO S. MARQUEZ, THE PHILIPPINE
RECLAMATION AUTHORITY, AND THE DENR-EMB
(REGION VI), Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
In resolving this controversy, the Court took into
consideration that all the parties involved share common
goals in pursuit of certain primordial State policies and
principles that are enshrined in the Constitution and
pertinent laws, such as the protection of the
environment, the empowerment of the local government
units, the promotion of tourism, and the encouragement
of the participation of the private sector. The Court seeks
to reconcile the respective roles, duties and
responsibilities of the petitioner and respondents in
achieving these shared goals within the context of our
Constitution, laws and regulations.
Nature of the Case
This is an original petition for the issuance of an
Environmental Protection Order in the nature of a
continuing mandamus under A.M. No. 09-6-8-SC,
otherwise known as the Rules of Procedure for
Environmental Cases, promulgated on April 29, 2010.
The Parties
Petitioner Boracay Foundation, Inc. (petitioner) is a duly
registered, non-stock domestic corporation. Its primary
purpose is "to foster a united, concerted and
environment-conscious development of Boracay Island,
thereby preserving and maintaining its culture, natural
beauty and ecological balance, marking the island as the
crown jewel of Philippine tourism, a prime tourist
destination in Asia and the whole world."1 It counts
among its members at least sixty (60) owners and
representatives of resorts, hotels, restaurants, and
similar institutions; at least five community
organizations; and several environmentally-conscious
residents and advocates.2
Respondent Province of Aklan (respondent Province) is
a political subdivision of the government created
pursuant to Republic Act No. 1414, represented by
Honorable Carlito S. Marquez, the Provincial Governor
(Governor Marquez).
Respondent Philippine Reclamation Authority
(respondent PRA), formerly called the Public Estates
Authority (PEA), is a government entity created by
Presidential Decree No. 1084,3 which states that one of
the purposes for which respondent PRA was created was
to reclaim land, including foreshore and submerged
areas. PEA eventually became the lead agency primarily
responsible for all reclamation projects in the country
under Executive Order No. 525, series of 1979. In June
2006, the President of the Philippines issued Executive
Order No. 543, delegating the power "to approve
reclamation projects to PRA through its governing
Board, subject to compliance with existing laws and rules
and further subject to the condition that reclamation
contracts to be executed with any person or entity
(must) go through public bidding."4
Respondent Department of Environment and Natural
Resources – Environmental Management Bureau
(DENR-EMB), Regional Office VI (respondent DENR-EMB
RVI), is the government agency in the Western Visayas
Region authorized to issue environmental compliance
certificates regarding projects that require the
environment’s protection and management in the
region.5
Summary of Antecedent Facts
Boracay Island (Boracay), a tropical paradise located in
the Western Visayas region of the Philippines and one of
the country’s most popular tourist destinations, was
declared a tourist zone and marine reserve in 1973
under Presidential Proclamation No. 1801.6 The island
comprises the barangays of Manoc-manoc, Balabag, and
Yapak, all within the municipality of Malay, in the
province of Aklan.7
Petitioner describes Boracay as follows:
Boracay is well-known for its distinctive powdery white-
sand beaches which are the product of the unique
ecosystem dynamics of the area. The island itself is
known to come from the uplifted remnants of an ancient
reef platform. Its beaches, the sandy land strip between
the water and the area currently occupied by numerous
establishments, is the primary draw for domestic and
international tourists for its color, texture and other
unique characteristics. Needless to state, it is the premier
domestic and international tourist destination in the
Philippines.8
More than a decade ago, respondent Province built the
Caticlan Jetty Port and Passenger Terminal at Barangay
Caticlan to be the main gateway to Boracay. It also built
the corresponding Cagban Jetty Port and Passenger
Terminal to be the receiving end for tourists in Boracay.
Respondent Province operates both ports "to provide
structural facilities suited for locals, tourists and guests
and to provide safety and security measures."9
In 2005, Boracay 2010 Summit was held and
participated in by representatives from national
government agencies, local government units (LGUs),
and the private sector. Petitioner was one of the
organizers and participants thereto. The Summit aimed
"to re-establish a common vision of all stakeholders to
ensure the conservation, restoration, and preservation of
Boracay Island" and "to develop an action plan that
[would allow] all sectors to work in concert among and
with each other for the long term benefit and
sustainability of the island and the community."10 The
Summit yielded a Terminal Report11 stating that the
participants had shared their dream of having world-
class land, water and air infrastructure, as well as given
their observations that government support was lacking,
infrastructure was poor, and, more importantly, the
influx of tourists to Boracay was increasing. The Report
showed that there was a need to expand the port
facilities at Caticlan due to congestion in the holding area
of the existing port, caused by inadequate facilities, thus
tourists suffered long queues while waiting for the boat
ride going to the island.12
Respondent Province claimed that tourist arrivals to
Boracay reached approximately 649,559 in 2009 and
779,666 in 2010, and this was expected to reach a record
of 1 million tourist arrivals in the years to come. Thus,
19
respondent Province conceptualized the expansion of
the port facilities at Barangay Caticlan.13
The Sangguniang Barangay of Caticlan, Malay
Municipality, issued Resolution No. 13, s. 200814 on April
25, 2008 stating that it had learned that respondent
Province had filed an application with the DENR for a
foreshore lease of areas along the shorelines of Barangay
Caticlan, and manifesting its strong opposition to said
application, as the proposed foreshore lease practically
covered almost all the coastlines of said barangay,
thereby technically diminishing its territorial
jurisdiction, once granted, and depriving its constituents
of their statutory right of preference in the development
and utilization of the natural resources within its
jurisdiction. The resolution further stated that
respondent Province did not conduct any consultations
with the Sangguniang Barangay of Caticlan regarding the
proposed foreshore lease, which failure the Sanggunian
considered as an act of bad faith on the part of
respondent Province.15
On November 20, 2008, the Sangguniang Panlalawigan of
respondent Province approved Resolution No. 2008-
369,16 formally authorizing Governor Marquez to enter
into negotiations towards the possibility of effecting self-
liquidating and income-producing development and
livelihood projects to be financed through bonds,
debentures, securities, collaterals, notes or other
obligations as provided under Section 299 of the Local
Government Code, with the following priority projects:
(a) renovation/rehabilitation of the Caticlan/Cagban
Passenger Terminal Buildings and Jetty Ports; and (b)
reclamation of a portion of Caticlan foreshore for
commercial purposes.17 This step was taken as
respondent Province’s existing jetty port and passenger
terminal was funded through bond flotation, which was
successfully redeemed and paid ahead of the target date.
This was allegedly cited as one of the LGU’s Best
Practices wherein respondent Province was given the
appropriate commendation.18
Respondent Province included the proposed expansion
of the port facilities at Barangay Caticlan in its 2009
Annual Investment Plan,19 envisioned as its project site
the area adjacent to the existing jetty port, and identified
additional areas along the coastline of Barangay Caticlan
as the site for future project expansion.20
Governor Marquez sent a letter to respondent PRA on
March 12, 200921 expressing the interest of respondent
Province to reclaim about 2.64 hectares of land along the
foreshores of Barangay Caticlan, Municipality of Malay,
Province of Aklan.
Sometime in April 2009, respondent Province entered
into an agreement with the Financial Advisor/Consultant
that won in the bidding process held a month before, to
conduct the necessary feasibility study of the proposed
project for the Renovation/Rehabilitation of the Caticlan
Passenger Terminal Building and Jetty Port,
Enhancement and Recovery of Old Caticlan Coastline,
and Reclamation of a Portion of Foreshore for
Commercial Purposes (the Marina Project), in Malay,
Aklan.22
Subsequently, on May 7, 2009, the Sangguniang
Panlalawigan of respondent Province issued Resolution
No. 2009–110,23 which authorized Governor Marquez to
file an application to reclaim the 2.64 hectares of
foreshore area in Caticlan, Malay, Aklan with respondent
PRA.
Sometime in July 2009, the Financial Advisor/Consultant
came up with a feasibility study which focused on the
land reclamation of 2.64 hectares by way of beach
enhancement and recovery of the old Caticlan coastline
for the rehabilitation and expansion of the existing jetty
port, and for its future plans – the construction of
commercial building and wellness center. The financial
component of the said study was Two Hundred Sixty
Million Pesos (₱260,000,000.00). Its suggested financing
scheme was bond flotation.24
Meanwhile, the Sangguniang Bayan of the Municipality of
Malay expressed its strong opposition to the intended
foreshore lease application, through Resolution No.
044,25 approved on July 22, 2009, manifesting therein
that respondent Province’s foreshore lease application
was for business enterprise purposes for its benefit, at
the expense of the local government of Malay, which by
statutory provisions was the rightful entity "to develop,
utilize and reap benefits from the natural resources
found within its jurisdiction."26
In August 2009, a Preliminary Geohazard
Assessment27 for the enhancement/expansion of the
existing Caticlan Jetty Port and Passenger Terminal
through beach zone restoration and Protective Marina
Developments in Caticlan, Malay, Aklan was completed.
Thereafter, Governor Marquez submitted an
Environmental Performance Report and Monitoring
Program (EPRMP)28 to DENR-EMB RVI, which he had
attached to his letter29 dated September 19, 2009, as an
initial step for securing an Environmental Compliance
Certificate (ECC). The letter reads in part:
With the project expected to start its construction
implementation next month, the province hereby
assures your good office that it will give preferential
attention to and shall comply with whatever comments
that you may have on this EPRMP.30 (Emphasis added.)
Respondent Province was then authorized to issue
"Caticlan Super Marina Bonds" for the purpose of
funding the renovation of the Caticlan Jetty Port and
Passenger Terminal Building, and the reclamation of a
portion of the foreshore lease area for commercial
purposes in Malay, Aklan through Provincial Ordinance
No. 2009-013, approved on September 10, 2009. The
said ordinance authorized Governor Marquez to
negotiate, sign and execute agreements in relation to the
issuance of the Caticlan Super Marina Bonds in the
amount not exceeding ₱260,000,000.00.31
Subsequently, the Sangguniang Panlalawigan of the
Province of Aklan issued Provincial Ordinance No. 2009-
01532 on October 1, 2009, amending Provincial
Ordinance No. 2009-013, authorizing the bond flotation
of the Province of Aklan through Governor Marquez to
fund the Marina Project and appropriate the entire
proceeds of said bonds for the project, and further
authorizing Governor Marquez to negotiate, sign and
execute contracts or agreements pertinent to the
transaction.33
Within the same month of October 2009, respondent
Province deliberated on the possible expansion from its
original proposed reclamation area of 2.64 hectares to
forty (40) hectares in order to maximize the utilization
of its resources and as a response to the findings of the
Preliminary Geohazard Assessment study which showed
that the recession and retreat of the shoreline caused by
coastal erosion and scouring should be the first major
concern in the project site and nearby coastal area. The
study likewise indicated the vulnerability of the coastal
20
zone within the proposed project site and the nearby
coastal area due to the effects of sea level rise and climate
change which will greatly affect the social, economic, and
environmental situation of Caticlan and nearby Malay
coastal communities.34
In his letter dated October 22, 2009 addressed to
respondent PRA, Governor Marquez wrote:
With our substantial compliance with the requirements
under Administrative Order No. 2007-2 relative to our
request to PRA for approval of the reclamation of the
[proposed Beach Zone Restoration and Protection
Marine Development in Barangays Caticlan and Manoc-
Manoc] and as a result of our discussion during the
[meeting with the respondent PRA on October 12, 2009],
may we respectfully submit a revised Reclamation
Project Description embodying certain
revisions/changes in the size and location of the areas to
be reclaimed. x x x.
On another note, we are pleased to inform your Office
that the bond flotation we have secured with the Local
Government Unit Guarantee Corporation (LGUGC) has
been finally approved last October 14, 2009. This will
pave the way for the implementation of said project.
Briefly, the Province has been recognized by the Bureau
of Local Government Finance (BLGF) for its capability to
meet its loan obligations. x x x.
With the continued increase of tourists coming to
Boracay through Caticlan, the Province is venturing into
such development project with the end in view of
protection and/or restoring certain segments of the
shoreline in Barangays Caticlan (Caticlan side) and
Manoc-manoc (Boracay side) which, as reported by
experts, has been experiencing tremendous coastal
erosion.
For the project to be self-liquidating, however, we will be
developing the reclaimed land for commercial and
tourism-related facilities and for other complementary
uses.35 (Emphasis ours.)
Then, on November 19, 2009, the Sangguniang
Panlalawigan enacted Resolution No. 2009-
29936 authorizing Governor Marquez to enter into a
Memorandum of Agreement (MOA) with respondent
PRA in the implementation of the Beach Zone
Restoration and Protection Marina Development Project,
which shall reclaim a total of 40 hectares in the areas
adjacent to the jetty ports at Barangay Caticlan and
Barangay Manoc-manoc. The Sangguniang Panlalawigan
approved the terms and conditions of the necessary
agreements for the implementation of the bond flotation
of respondent Province to fund the
renovation/rehabilitation of the existing jetty port by
way of enhancement and recovery of the Old Caticlan
shoreline through reclamation of an area of 2.64 hectares
in the amount of ₱260,000,000.00 on December 1,
2009.37
Respondent Province gave an initial presentation of the
project with consultation to the Sangguniang Bayan of
Malay38 on December 9, 2009.
Respondent PRA approved the reclamation project on
April 20, 2010 in its Resolution No. 4094 and authorized
its General Manager/Chief Executive Officer (CEO) to
enter into a MOA with respondent Province for the
implementation of the reclamation project.39
On April 27, 2010, DENR-EMB RVI issued to respondent
Province ECC-R6-1003-096-7100 (the questioned ECC)
for Phase 1 of the Reclamation Project to the extent of
2.64 hectares to be done along the Caticlan side beside
the existing jetty port.40
On May 17, 2010, respondent Province entered into a
MOA41 with respondent PRA. Under Article III, the
Project was described therein as follows:
The proposed Aklan Beach Zone Restoration and
Protection Marina Development Project involves the
reclamation and development of approximately forty
(40) hectares of foreshore and offshore areas of the
Municipality of Malay x x x.
The land use development of the reclamation project
shall be for commercial, recreational and institutional
and other applicable uses.42 (Emphases supplied.)
It was at this point that respondent Province deemed it
necessary to conduct a series of what it calls
"information-education campaigns," which provided the
venue for interaction and dialogue with the public,
particularly the Barangay and Municipal officials of the
Municipality of Malay, the residents of Barangay Caticlan
and Boracay, the stakeholders, and the non-
governmental organizations (NGOs). The details of the
campaign are summarized as follows43 :
a. June 17, 2010 at Casa Pilar Beach Resort,
Boracay Island, Malay, Aklan;44
b. July 28, 2010 at Caticlan Jetty Port and
Passenger Terminal;45
c. July 31, 2010 at Barangay Caticlan Plaza;46
d. September 15, 2010 at the Office of the
Provincial Governor with Municipal Mayor of
Malay – Mayor John P. Yap;47
e. October 12, 2010 at the Office of the
Provincial Governor with the Provincial
Development Council Executive
Committee;48 and
f. October 29, 2010 at the Office of the
Provincial Governor with Officials of LGU-
Malay and Petitioner.49
Petitioner claims that during the "public consultation
meeting" belatedly called by respondent Province on
June 17, 2010, respondent Province presented the
Reclamation Project and only then detailed the actions
that it had already undertaken, particularly: the issuance
of the Caticlan Super Marina Bonds; the execution of the
MOA with respondent PRA; the alleged conduct of an
Environmental Impact Assessment (EIA) study for the
reclamation project; and the expansion of the project to
forty (40) hectares from 2.64 hectares.50
In Resolution No. 046, Series of 2010, adopted on June
23, 2010, the Malay Municipality reiterated its strong
opposition to respondent Province’s project and denied
its request for a favorable endorsement of the Marina
Project.51
The Malay Municipality subsequently issued Resolution
No. 016, Series of 2010, adopted on August 3, 2010, to
request respondent PRA "not to grant reclamation
permit and notice to proceed to the Marina Project of the
21
[respondent] Provincial Government of Aklan located at
Caticlan, Malay, Aklan."52
In a letter53 dated October 12, 2010, petitioner informed
respondent PRA of its opposition to the reclamation
project, primarily for the reason that, based on the
opinion of Dr. Porfirio M. Aliño, an expert from the
University of the Philippines Marine Science Institute
(UPMSI), which he rendered based on the documents
submitted by respondent Province to obtain the ECC, a
full EIA study is required to assess the reclamation
project’s likelihood of rendering critical and lasting effect
on Boracay considering the proximity in distance,
geographical location, current and wind direction, and
many other environmental considerations in the area.
Petitioner noted that said documents had failed to deal
with coastal erosion concerns in Boracay. It also noted
that respondent Province failed to comply with certain
mandatory provisions of the Local Government Code,
particularly, those requiring the project proponent to
conduct consultations with stakeholders.
Petitioner likewise transmitted its Resolution No. 001,
Series of 2010, registering its opposition to the
reclamation project to respondent Province, respondent
PRA, respondent DENR-EMB, the National Economic
Development Authority Region VI, the Malay
Municipality, and other concerned entities.54
Petitioner alleges that despite the Malay Municipality’s
denial of respondent Province’s request for a favorable
endorsement, as well as the strong opposition
manifested both by Barangay Caticlan and petitioner as
an NGO, respondent Province still continued with the
implementation of the Reclamation Project.55
On July 26, 2010, the Sangguniang Panlalawigan of
respondent Province set aside Resolution No. 046, s.
2010, of the Municipality of Malay and manifested its
support for the implementation of the aforesaid project
through its Resolution No. 2010-022.56
On July 27, 2010, the MOA was confirmed by respondent
PRA Board of Directors under its Resolution No. 4130.
Respondent PRA wrote to respondent Province on
October 19, 2010, informing the latter to proceed with
the reclamation and development of phase 1 of site 1 of
its proposed project. Respondent PRA attached to said
letter its Evaluation Report dated October 18, 2010.57
Petitioner likewise received a copy of respondent PRA’s
letter dated October 19, 2010, which authorized
respondent Province to proceed with phase 1 of the
reclamation project, subject to compliance with the
requirements of its Evaluation Report. The reclamation
project was described as:
"[A] seafront development involving reclamation of an
aggregate area of more or less, forty (40) hectares in two
(2) separate sites both in Malay Municipality, Aklan
Province. Site 1 is in Brgy. Caticlan with a total area of
36.82 hectares and Site 2 in Brgy. Manoc-Manoc, Boracay
Island with a total area of 3.18 hectares. Sites 1 and 2 are
on the opposite sides of Tabon Strait, about 1,200 meters
apart. x x x." 58 (Emphases added.)
The Sangguniang Panlalawigan of Aklan, through
Resolution No. 2010-034,59 addressed the
apprehensions of petitioner embodied in its Resolution
No. 001, s. 2010, and supported the implementation of
the project. Said resolution stated that the
apprehensions of petitioner with regard to the economic,
social and political negative impacts of the projects were
mere perceptions and generalities and were not
anchored on definite scientific, social and political
studies.
In the meantime, a study was commissioned by the
Philippine Chamber of Commerce and Industry-Boracay
(PCCI-Boracay), funded by the Department of Tourism
(DOT) with the assistance of, among others, petitioner.
The study was conducted in November 2010 by several
marine biologists/experts from the Marine
Environmental Resources Foundation (MERF) of the
UPMSI. The study was intended to determine the
potential impact of a reclamation project in the
hydrodynamics of the strait and on the coastal erosion
patterns in the southern coast of Boracay Island and
along the coast of Caticlan.60
After noting the objections of the respective LGUs of
Caticlan and Malay, as well as the apprehensions of
petitioner, respondent Province issued a notice to the
contractor on December 1, 2010 to commence with the
construction of the project.61
On April 4, 2011, the Sangguniang Panlalawigan of Aklan,
through its Committee on Cooperatives, Food,
Agriculture, and Environmental Protection and the
Committee on Tourism, Trade, Industry and Commerce,
conducted a joint committee hearing wherein the study
undertaken by the MERF-UPMSI was discussed.62 In
attendance were Mr. Ariel Abriam, President of PCCI-
Boracay, representatives from the Provincial
Government, and Dr. Cesar Villanoy, a professor from the
UPMSI. Dr. Villanoy said that the subject project,
consisting of 2.64 hectares, would only have insignificant
effect on the hydrodynamics of the strait traversing the
coastline of Barangay Caticlan and Boracay, hence, there
was a distant possibility that it would affect the Boracay
coastline, which includes the famous white-sand beach
of the island.63
Thus, on April 6, 2011, the Sangguniang Panlalawigan of
Aklan enacted Resolution No. 2011-06564 noting the
report on the survey of the channel between Caticlan and
Boracay conducted by the UPMSI in relation to the effects
of the ongoing reclamation to Boracay beaches, and
stating that Dr. Villanoy had admitted that nowhere in
their study was it pointed out that there would be an
adverse effect on the white-sand beach of Boracay.
During the First Quarter Regular Meeting of the Regional
Development Council, Region VI (RDC-VI) on April 16,
2011, it approved and supported the subject project
(covering 2.64 hectares) through RDC-VI Resolution No.
VI-26, series of 2011.65
Subsequently, Mr. Abriam sent a letter to Governor
Marquez dated April 25, 2011 stating that the study
conducted by the UPMSI confirms that the water flow
across the Caticlan-Boracay channel is primarily tide-
driven, therefore, the marine scientists believe that the
2.64-hectare project of respondent Province would not
significantly affect the flow in the channel and would
unlikely impact the Boracay beaches. Based on this,
PCCI-Boracay stated that it was not opposing the 2.64-
hectare Caticlan reclamation project on environmental
grounds.66
On June 1, 2011, petitioner filed the instant Petition for
Environmental Protection Order/Issuance of the Writ of
Continuing Mandamus. On June 7, 2011, this Court issued
a Temporary Environmental Protection Order (TEPO)
22
and ordered the respondents to file their respective
comments to the petition.67
After receiving a copy of the TEPO on June 9, 2011,
respondent Province immediately issued an order to the
Provincial Engineering Office and the concerned
contractor to cease and desist from conducting any
construction activities until further orders from this
Court.
The petition is premised on the following grounds:
I.
The respondent Province, proponent of the reclamation
project, failed to comply with relevant rules and
regulations in the acquisition of an ECC.
A. The reclamation project is co-located within
environmentally critical areas requiring the
performance of a full, or programmatic,
environmental impact assessment.
B. Respondent Province failed to obtain the
favorable endorsement of the LGU concerned.
C. Respondent Province failed to conduct the
required consultation procedures as required
by the Local Government Code.
D. Respondent Province failed to perform a full
environmental impact assessment as required
by law and relevant regulations.
II.
The reclamation of land bordering the strait between
Caticlan and Boracay shall adversely affect the frail
ecological balance of the area.68
Petitioner objects to respondent Province’s classification
of the reclamation project as single instead of co-located,
as "non-environmentally critical," and as a mere
"rehabilitation" of the existing jetty port. Petitioner
points out that the reclamation project is on two sites
(which are situated on the opposite sides of Tabon Strait,
about 1,200 meters apart):
 36.82 hectares – Site 1, in Bgy. Caticlan
 3.18 hectares – Site 2, in Manoc-manoc,
Boracay Island69
Phase 1, which was started in December 2010 without
the necessary permits,70 is located on the Caticlan side of
a narrow strait separating mainland Aklan from Boracay.
In the implementation of the project, respondent
Province obtained only an ECC to conduct Phase 1,
instead of an ECC on the entire 40 hectares. Thus,
petitioner argues that respondent Province abused and
exploited the Revised Procedural Manual for DENR
Administrative Order No. 30, Series of 2003 (DENR DAO
2003-30)71 relating to the acquisition of an ECC by:
1. Declaring the reclamation project under
"Group II Projects-Non-ECP (environmentally
critical project) in ECA (environmentally
critical area) based on the type and size of the
area," and
2. Failing to declare the reclamation project as
a co-located project application which would
have required the Province to submit a
Programmatic Environmental Impact
Statement (PEIS)72 or Programmatic
Environmental [Performance] Report
Management Plan (PE[P]RMP).73 (Emphases
ours.)
Petitioner further alleges that the Revised Procedural
Manual (on which the classification above is based,
which merely requires an Environmental Impact
Statement [EIS] for Group II projects) is patently ultra
vires, and respondent DENR-EMB RVI committed grave
abuse of discretion because the laws on EIS, namely,
Presidential Decree Nos. 1151 and 1586, as well as
Presidential Proclamation No. 2146, clearly indicate that
projects in environmentally critical areas are to be
immediately considered environmentally critical.
Petitioner complains that respondent Province applied
for an ECC only for Phase 1; hence, unlawfully
evading the requirement that co-located
projects74 within Environmentally Critical Areas (ECAs)
must submit a PEIS and/or a PEPRMP.
Petitioner argues that respondent Province fraudulently
classified and misrepresented the project as a Non-ECP
in an ECA, and as a single project instead of a co-located
one. The impact assessment allegedly performed gives a
patently erroneous and wrongly-premised appraisal of
the possible environmental impact of the reclamation
project. Petitioner contends that respondent Province’s
choice of classification was designed to avoid a
comprehensive impact assessment of the reclamation
project.
Petitioner further contends that respondent DENR-EMB
RVI willfully and deliberately disregarded its duty to
ensure that the environment is protected from harmful
developmental projects because it allegedly performed
only a cursory and superficial review of the documents
submitted by the respondent Province for an ECC, failing
to note that all the information and data used by
respondent Province in its application for the ECC were
all dated and not current, as data was gathered in the late
1990s for the ECC issued in 1999 for the first jetty port.
Thus, petitioner alleges that respondent DENR-EMB RVI
ignored the environmental impact to Boracay, which
involves changes in the structure of the coastline that
could contribute to the changes in the characteristics of
the sand in the beaches of both Caticlan and Boracay.
Petitioner insists that reclamation of land at the Caticlan
side will unavoidably adversely affect the Boracay side
and notes that the declared objective of the reclamation
project is for the exploitation of Boracay’s tourist trade,
since the project is intended to enhance support services
thereto. But, petitioner argues, the primary reason for
Boracay’s popularity is its white-sand beaches which will
be negatively affected by the project.
Petitioner alleges that respondent PRA had required
respondent Province to obtain the favorable
endorsement of the LGUs of Barangay Caticlan and Malay
Municipality pursuant to the consultation procedures as
required by the Local Government Code.75 Petitioner
asserts that the reclamation project is in violation not
only of laws on EIS but also of the Local Government
Code as respondent Province failed to enter into proper
consultations with the concerned LGUs. In fact, the Liga
23
ng mga Barangay-Malay Chapter also expressed strong
opposition against the project.76
Petitioner cites Sections 26 and 27 of the Local
Government Code, which require consultations if the
project or program may cause pollution, climactic
change, depletion of non-renewable resources, etc.
According to petitioner, respondent Province ignored
the LGUs’ opposition expressed as early as 2008. Not
only that, respondent Province belatedly called for public
"consultation meetings" on June 17 and July 28, 2010,
after an ECC had already been issued and the MOA
between respondents PRA and Province had already
been executed. As the petitioner saw it, these were not
consultations but mere "project presentations."
Petitioner claims that respondent Province, aided and
abetted by respondents PRA and DENR-EMB, ignored the
spirit and letter of the Revised Procedural Manual,
intended to implement the various regulations
governing the Environmental Impact Assessments
(EIAs) to ensure that developmental projects are in line
with sustainable development of natural resources. The
project was conceptualized without considering
alternatives.
Further, as to its allegation that respondent Province
failed to perform a full EIA, petitioner argues that while
it is true that as of now, only the Caticlan side has been
issued an ECC, the entire project involves the Boracay
side, which should have been considered a co-located
project. Petitioner claims that any project involving
Boracay requires a full EIA since it is an ECA. Phase 1 of
the project will affect Boracay and Caticlan as they are
separated only by a narrow strait; thus, it should be
considered an ECP. Therefore, the ECC and permit issued
must be invalidated and cancelled.
Petitioner contends that a study shows that the flow of
the water through a narrower channel due to the
reclamation project will likely divert sand transport off
the southwest part of Boracay, whereas the
characteristic coast of the Caticlan side of the strait
indicate stronger sediment transport.77 The white-sand
beaches of Boracay and its surrounding marine
environment depend upon the natural flow of the
adjacent waters.
Regarding its claim that the reclamation of land
bordering the strait between Caticlan and Boracay shall
adversely affect the frail ecological balance of the area,
petitioner submits that while the study conducted by the
MERF-UPMSI only considers the impact of the
reclamation project on the land, it is undeniable that it
will also adversely affect the already frail ecological
balance of the area. The effect of the project would have
been properly assessed if the proper EIA had been
performed prior to any implementation of the project.
According to petitioner, respondent Province’s intended
purposes do not prevail over its duty and obligation to
protect the environment. Petitioner believes that
rehabilitation of the Jetty Port may be done through
other means.
In its Comment78 dated June 21, 2011, respondent
Province claimed that application for reclamation of 40
hectares is advantageous to the Provincial Government
considering that its filing fee would only cost
Php20,000.00 plus Value Added Tax (VAT) which is also
the minimum fee as prescribed under Section 4.2 of
Administrative Order No. 2007-2.79
Respondent Province considers the instant petition to be
premature; thus, it must necessarily fail for lack of cause
of action due to the failure of petitioner to fully exhaust
the available administrative remedies even before
seeking judicial relief. According to respondent Province,
the petition primarily assailed the decision of
respondent DENR-EMB RVI in granting the ECC for the
subject project consisting of 2.64 hectares and sought the
cancellation of the ECC for alleged failure of respondent
Province to submit proper documentation as required
for its issuance. Hence, the grounds relied upon by
petitioner can be addressed within the confines of
administrative processes provided by law.
Respondent Province believes that under Section 5.4.3 of
DENR Administrative Order No. 2003-30 (DAO 2003-
30),80 the issuance of an ECC81 is an official decision of
DENR-EMB RVI on the application of a project
proponent.82 It cites Section 6 of DENR DAO 2003-30,
which provides for a remedy available to the party
aggrieved by the final decision on the proponent’s ECC
applications.
Respondent Province argues that the instant petition is
anchored on a wrong premise that results to petitioner’s
unfounded fears and baseless apprehensions. It is
respondent Province’s contention that its 2.64-hectare
reclamation project is considered as a "stand alone
project," separate and independent from the approved
area of 40 hectares. Thus, petitioner should have
observed the difference between the "future
development plan" of respondent Province from its
"actual project" being undertaken.83
Respondent Province clearly does not dispute the fact
that it revised its original application to respondent PRA
from 2.64 hectares to 40 hectares. However, it claims
that such revision is part of its future plan, and
implementation thereof is "still subject to availability of
funds, independent scientific environmental study,
separate application of ECC and notice to proceed to be
issued by respondent PRA."84
Respondent Province goes on to claim that "[p]etitioner’s
version of the Caticlan jetty port expansion project is a
bigger project which is still at the conceptualization
stage. Although this project was described in the Notice
to Proceed issued by respondent PRA to have two
phases, 36.82 hectares in Caticlan and 3.18 hectares in
Boracay [Island,] it is totally different from the [ongoing]
Caticlan jetty port expansion project."85
Respondent Province says that the Accomplishment
Report86 of its Engineering Office would attest that the
actual project consists of 2.64 hectares only, as originally
planned and conceptualized, which was even reduced to
2.2 hectares due to some construction and design
modifications.
Thus, respondent Province alleges that from its
standpoint, its capability to reclaim is limited to 2.64
hectares only, based on respondent PRA’s Evaluation
Report87 dated October 18, 2010, which was in turn the
basis of the issuance of the Notice to Proceed dated
October 19, 2010, because the project’s financial
component is ₱260,000,000.00 only. Said Evaluation
Report indicates that the implementation of the other
phases of the project including site 2, which consists of
the other portions of the 40-hectare area that includes a
portion in Boracay, is still within the 10-year period and
24
will depend largely on the availability of funds of
respondent Province.88
So, even if respondent PRA approved an area that would
total up to 40 hectares, it was divided into phases in
order to determine the period of its implementation.
Each phase was separate and independent because the
source of funds was also separate. The required
documents and requirements were also specific for each
phase. The entire approved area of 40 hectares could be
implemented within a period of 10 years but this would
depend solely on the availability of funds.89
As far as respondent Province understands it, additional
reclamations not covered by the ECC, which only
approved 2.64 hectares, should undergo another EIA. If
respondent Province intends to commence the
construction on the other component of the 40 hectares,
then it agrees that it is mandated to secure a new ECC.90
Respondent Province admits that it dreamt of a 40-
hectare project, even if it had originally planned and was
at present only financially equipped and legally
compliant to undertake 2.64 hectares of the project, and
only as an expansion of its old jetty port.91
Respondent Province claims that it has complied with all
the necessary requirements for securing an ECC. On the
issue that the reclamation project is within an ECA
requiring the performance of a full or programmatic EIA,
respondent Province reiterates that the idea of
expanding the area to 40 hectares is only a future plan. It
only secured an ECC for 2.64 hectares, based on the limits
of its funding and authority. From the beginning, its
intention was to rehabilitate and expand the existing
jetty port terminal to accommodate an increasing
projected traffic. The subject project is specifically
classified under DENR DAO 2003-30 on its Project
Grouping Matrix for Determination of EIA Report Type
considered as Minor Reclamation Projects falling under
Group II – Non ECP in an ECA. Whether 2.64 or 40
hectares in area, the subject project falls within this
classification.
Consequently, respondent Province claims that
petitioner erred in considering the ongoing reclamation
project at Caticlan, Malay, Aklan, as co-located within an
ECA.
Respondent Province, likewise argues that the 2.64-
hectare project is not a component of the approved 40-
hectare area as it is originally planned for the expansion
site of the existing Caticlan jetty port. At present, it has
no definite conceptual construction plan of the said
portion in Boracay and it has no financial allocation to
initiate any project on the said Boracay portion.
Furthermore, respondent Province contends that the
present project is located in Caticlan while the alleged
component that falls within an ECA is in Boracay.
Considering its geographical location, the two sites
cannot be considered as a contiguous area for the reason
that it is separated by a body of water – a strait that
traverses between the mainland Panay wherein Caticlan
is located and Boracay. Hence, it is erroneous to consider
the two sites as a co-located project within an ECA. Being
a "stand alone project" and an expansion of the existing
jetty port, respondent DENR-EMB RVI had required
respondent Province to perform an EPRMP to secure an
ECC as sanctioned by Item No. 8(b), page 7 of DENR DAO
2003-30.
Respondent Province contends that even if, granting for
the sake of argument, it had erroneously categorized its
project as Non-ECP in an ECA, this was not a final
determination. Respondent DENR-EMB RVI, which was
the administrator of the EIS system, had the final
decision on this matter. Under DENR DAO 2003-30, an
application for ECC, even for a Category B2 project where
an EPRMP is conducted, shall be subjected to a review
process. Respondent DENR-EMB RVI had the authority
to deny said application. Its Regional Director could
either issue an ECC for the project or deny the
application. He may also require a more comprehensive
EIA study. The Regional Director issued the ECC based on
the EPRMP submitted by respondent Province and after
the same went through the EIA review process.
Thus, respondent Province concludes that petitioner’s
allegation of this being a "co-located project" is
premature if not baseless as the bigger reclamation
project is still on the conceptualization stage. Both
respondents PRA and Province are yet to complete
studies and feasibility studies to embark on another
project.
Respondent Province claims that an ocular survey of the
reclamation project revealed that it had worked within
the limits of the ECC.92
With regard to petitioner’s allegation that respondent
Province failed to get the favorable endorsement of the
concerned LGUs in violation of the Local Government
Code, respondent Province contends that consultation
vis-à-vis the favorable endorsement from the concerned
LGUs as contemplated under the Local Government Code
are merely tools to seek advice and not a power clothed
upon the LGUs to unilaterally approve or disapprove any
government projects. Furthermore, such endorsement is
not necessary for projects falling under Category B2
unless required by the DENR-EMB RVI, under Section 5.3
of DENR DAO 2003-30.
Moreover, DENR Memorandum Circular No. 08-2007 no
longer requires the issuance of permits and certifications
as a pre-requisite for the issuance of an ECC. Respondent
Province claims to have conducted consultative activities
with LGUs in connection with Sections 26 and 27 of the
Local Government Code. The vehement and staunch
objections of both the Sangguniang Barangay of Caticlan
and the Sangguniang Bayan of Malay, according to
respondent Province, were not rooted on its perceived
impact upon the people and the community in terms of
environmental or ecological balance, but due to an
alleged conflict with their "principal position to develop,
utilize and reap benefits from the natural resources
found within its jurisdiction."93 Respondent Province
argues that these concerns are not within the purview of
the Local Government Code. Furthermore, the
Preliminary Geohazard Assessment Report and EPRMP
as well as Sangguniang Panlalawigan Resolution Nos.
2010-022 and 2010-034 should address any
environmental issue they may raise.
Respondent Province posits that the spirit and intent of
Sections 26 and 27 of the Local Government Code is to
create an avenue for parties, the proponent and the LGU
concerned, to come up with a tool in harmonizing its
views and concerns about the project. The duty to
consult does not automatically require adherence to the
opinions during the consultation process. It is allegedly
not within the provisions to give the full authority to the
LGU concerned to unilaterally approve or disapprove the
project in the guise of requiring the proponent of
securing its favorable endorsement. In this case,
petitioner is calling a halt to the project without
25
providing an alternative resolution to harmonize its
position and that of respondent Province.
Respondent Province claims that the EPRMP94 would
reveal that:
[T]he area fronting the project site is practically
composed of sand. Dead coral communities may be
found along the vicinity. Thus, fish life at the project site
is quite scarce due to the absence of marine support
systems like the sea grass beds and coral reefs.
x x x [T]here is no coral cover at the existing Caticlan jetty
port. [From] the deepest point of jetty to the shallowest
point, there was no more coral patch and the substrate is
sandy. It is of public knowledge that the said foreshore
area is being utilized by the residents ever since as
berthing or anchorage site of their motorized banca.
There will be no possibility of any coral development
therein because of its continuous utilization. Likewise,
the activity of the strait that traverses between the main
land Caticlan and Boracay Island would also be a factor
of the coral development. Corals [may] only be formed
within the area if there is scientific human intervention,
which is absent up to the present.
In light of the foregoing premise, it casts serious doubt
on petitioner’s allegations pertaining to the
environmental effects of Respondent-LGU’s 2.64
hectares reclamation project. The alleged environmental
impact of the subject project to the beaches of Boracay
Island remains unconfirmed. Petitioner had
unsuccessfully proven that the project would cause
imminent, grave and irreparable injury to the
community.95
Respondent Province prayed for the dissolution of the
TEPO, claiming that the rules provide that the TEPO may
be dissolved if it appears after hearing that its issuance
or continuance would cause irreparable damage to the
party or person enjoined, while the applicant may be
fully compensated for such damages as he may suffer and
subject to the posting of a sufficient bond by the party or
person enjoined. Respondent Province contends that the
TEPO would cause irreparable damage in two aspects:
a. Financial dislocation and probable
bankruptcy; and
b. Grave and imminent danger to safety and
health of inhabitants of immediate area,
including tourists and passengers serviced by
the jetty port, brought about by the abrupt
cessation of development works.
As regards financial dislocation, the arguments of
respondent Province are summarized below:
1. This project is financed by bonds which the
respondent Province had issued to its creditors
as the financing scheme in funding the present
project is by way of credit financing through
bond flotation.
2. The funds are financed by a Guarantee Bank
– getting payment from bonds, being sold to
investors, which in turn would be paid by the
income that the project would realize or incur
upon its completion.
3. While the project is under construction,
respondent Province is appropriating a portion
of its Internal Revenue Allotment (IRA) budget
from the 20% development fund to defray the
interest and principal amortization due to the
Guarantee Bank.
4. The respondent Province’s IRA, regular
income, and/or such other revenues or funds,
as may be permitted by law, are being used as
security for the payment of the said loan used
for the project’s construction.
5. The inability of the subject project to earn
revenues as projected upon completion will
compel the Province to shoulder the full
amount of the obligation, starting from year
2012.
6. Respondent province is mandated to assign
its IRA, regular income and/or such other
revenues or funds as permitted by law; if
project is stopped, detriment of the public
welfare and its constituents.96
As to the second ground for the dissolution of the TEPO,
respondent Province argues:
1. Non-compliance with the guidelines of the
ECC may result to environmental hazards most
especially that reclaimed land if not properly
secured may be eroded into the sea.
2. The construction has accomplished 65.26
percent of the project. The embankment that
was deposited on the project has no proper
concrete wave protection that might be washed
out in the event that a strong typhoon or big
waves may occur affecting the strait and the
properties along the project site. It is already
the rainy season and there is a big possibility of
typhoon occurrence.
3. If said incident occurs, the aggregates of the
embankment that had been washed out might
be transferred to the adjoining properties
which could affect its natural environmental
state.
4. It might result to the total alteration of the
physical landscape of the area attributing to
environmental disturbance.
5. The lack of proper concrete wave protection
or revetment would cause the total erosion of
the embankment that has been dumped on the
accomplished area.97
Respondent Province claims that petitioner will not
stand to suffer immediate, grave and irreparable injury
or damage from the ongoing project. The petitioner’s
perceived fear of environmental destruction brought
about by its erroneous appreciation of available data is
unfounded and does not translate into a matter of
extreme urgency. Thus, under the Rules of Procedure on
Environmental Cases, the TEPO may be dissolved.
Respondent PRA filed its Comment98 on June 22, 2011. It
alleges that on June 24, 2006, Executive Order No. 543
delegated the power "to approve reclamation projects to
respondent PRA through its governing Board, subject to
compliance with existing laws and rules and further
subject to the condition that reclamation contracts to be
26
executed with any person or entity (must) go through
public bidding."
Section 4 of respondent PRA’s Administrative Order No.
2007-2 provides for the approval process and
procedures for various reclamation projects to be
undertaken. Respondent PRA prepared an Evaluation
Report on November 5, 200999 regarding Aklan’s
proposal to increase its project to 40 hectares.
Respondent PRA contends that it was only after
respondent Province had complied with the
requirements under the law that respondent PRA,
through its Board of Directors, approved the proposed
project under its Board Resolution No. 4094.100 In the
same Resolution, respondent PRA Board authorized the
General Manager/CEO to execute a MOA with the Aklan
provincial government to implement the reclamation
project under certain conditions.
The issue for respondent PRA was whether or not it
approved the respondent Province’s 2.64-hectare
reclamation project proposal in willful disregard of
alleged "numerous irregularities" as claimed by
petitioner.101
Respondent PRA claims that its approval of the Aklan
Reclamation Project was in accordance with law and its
rules. Indeed, it issued the notice to proceed only after
Aklan had complied with all the requirements imposed
by existing laws and regulations. It further contends that
the 40 hectares involved in this project remains a plan
insofar as respondent PRA is concerned. What has been
approved for reclamation by respondent PRA thus far is
only the 2.64-hectare reclamation project. Respondent
PRA reiterates that it approved this reclamation project
after extensively reviewing the legal, technical, financial,
environmental, and operational aspects of the proposed
reclamation.102
One of the conditions that respondent PRA Board
imposed before approving the Aklan project was that no
reclamation work could be started until respondent PRA
has approved the detailed engineering
plans/methodology, design and specifications of the
reclamation. Part of the required submissions to
respondent PRA includes the drainage design as
approved by the Public Works Department and the ECC
as issued by the DENR, all of which the Aklan government
must submit to respondent PRA before starting any
reclamation works.103 Under Article IV(B)(3) of the MOA
between respondent PRA and Aklan, the latter is
required to submit, apart from the ECC, the following
requirements for respondent PRA’s review and
approval, as basis for the issuance of a Notice to Proceed
(NTP) for Reclamation Works:
(a) Land-form plan with technical description
of the metes and bounds of the same land-form;
(b) Final master development and land use
plan for the project;
(c) Detailed engineering studies, detailed
engineering design, plans and specification for
reclamation works, reclamation plans and
methodology, plans for the sources of fill
materials;
(d) Drainage plan vis-a-vis the land-form
approved by DPWH Regional Office to include a
cost effective and efficient drainage system as
may be required based on the results of the
studies;
(e) Detailed project cost estimates and quantity
take-off per items of work of the rawland
reclamation components, e.g. reclamation
containment structures and soil consolidation;
(f) Organizational chart of the construction
arm, manning table, equipment schedule for
the project; and,
(g) Project timetable (PERT/CPM) for the
entire project construction period.104
In fact, respondent PRA further required respondent
Province under Article IV (B)(24) of the MOA to strictly
comply with all conditions of the DENR-EMB-issued ECC
"and/or comply with pertinent local and international
commitments of the Republic of the Philippines to
ensure environmental protection."105
In its August 11, 2010 letter,106 respondent PRA referred
for respondent Province’s appropriate action
petitioner’s Resolution 001, series of 2010 and
Resolution 46, series of 2010, of the Sangguniang Bayan
of Malay. Governor Marquez wrote respondent
PRA107 on September 16, 2010 informing it that
respondent Province had already met with the different
officials of Malay, furnishing respondent PRA with the
copies of the minutes of such meetings/presentations.
Governor Marquez also assured respondent PRA that it
had complied with the consultation requirements as far
as Malay was concerned.
Respondent PRA claims that in evaluating respondent
Province’s project and in issuing the necessary NTP for
Phase 1 of Site 1 (2.64 hectares) of the Caticlan Jetty Port
expansion and modernization, respondent PRA gave
considerable weight to all pertinent issuances, especially
the ECC issued by DENR-EMB RVI.108 Respondent PRA
stresses that its earlier approval of the 40-hectare
reclamation project under its Resolution No. 4094, series
of 2010, still requires a second level of compliance
requirements from the proponent. Respondent Province
could not possibly begin its reclamation works since
respondent PRA had yet to issue an NTP in its favor.
Respondent PRA alleges that prior to the issuance of the
NTP to respondent Province for Phase 1 of Site 1, it
required the submission of the following pre-
construction documents:
(a) Land-Form Plan (with technical
description);
(b) Site Development Plan/Land Use Plan
including,
(i) sewer and drainage systems and
(ii) waste water treatment;
(c) Engineering Studies and Engineering
Design;
(d) Reclamation Methodology;
(e) Sources of Fill Materials, and,
(f) The ECC.109
27
Respondent PRA claims that it was only after the
evaluation of the above submissions that it issued to
respondent Province the NTP, limited to the 2.64-hectare
reclamation project. Respondent PRA even emphasized
in its evaluation report that should respondent Province
pursue the other phases of its project, it would still
require the submission of an ECC for each succeeding
phases before the start of any reclamation works.110
Respondent PRA, being the national government’s arm in
regulating and coordinating all reclamation projects in
the Philippines – a mandate conferred by law – manifests
that it is incumbent upon it, in the exercise of its
regulatory functions, to diligently evaluate, based on its
technical competencies, all reclamation projects
submitted to it for approval. Once the reclamation
project’s requirements set forth by law and related rules
have been complied with, respondent PRA is mandated
to approve the same. Respondent PRA claims, "[w]ith all
the foregoing rigorous and detailed requirements
submitted and complied with by Aklan, and the
attendant careful and meticulous technical and legal
evaluation by respondent PRA, it cannot be argued that
the reclamation permit it issued to Aklan is ‘founded
upon numerous irregularities;’ as recklessly and
baselessly imputed by BFI."111
In its Comment112 dated July 1, 2011, respondent DENR-
EMB RVI asserts that its act of issuing the ECC certifies
that the project had undergone the proper EIA process
by assessing, among others, the direct and indirect
impact of the project on the biophysical and human
environment and ensuring that these impacts are
addressed by appropriate environmental protection and
enhancement measures, pursuant to Presidential Decree
No. 1586, the Revised Procedural Manual for DENR DAO
2003-30, and the existing rules and regulations.113
Respondent DENR-EMB RVI stresses that the declaration
in 1978 of several islands, which includes Boracay as
tourist zone and marine reserve under Proclamation No.
1801, has no relevance to the expansion project of
Caticlan Jetty Port and Passenger Terminal for the very
reason that the project is not located in the Island of
Boracay, being located in Barangay Caticlan, Malay,
which is not a part of mainland Panay. It admits that the
site of the subject jetty port falls within the ECA under
Proclamation No. 2146 (1981), being within the category
of a water body. This was why respondent Province had
faithfully secured an ECC pursuant to the Revised
Procedural Manual for DENR DAO 2003-30 by
submitting the necessary documents as contained in the
EPRMP on March 19, 2010, which were the bases in
granting ECC No. R6-1003-096-7100 (amended) on April
27, 2010 for the expansion of Caticlan Jetty Port and
Passenger Terminal, covering 2.64 hectares.114
Respondent DENR-EMB RVI claims that the issues raised
by the LGUs of Caticlan and Malay had been considered
by the DENR-Provincial Environment and Natural
Resources Office (PENRO), Aklan in the issuance of the
Order115 dated January 26, 2010, disregarding the claim
of the Municipality of Malay, Aklan of a portion of the
foreshore land in Caticlan covered by the application of
the Province of Aklan; and another Order of Rejection
dated February 5, 2010 of the two foreshore
applications, namely FLA No. 060412-43A and FLA No.
060412-43B, of the Province of Aklan.116
Respondent DENR-EMB RVI contends that the
supporting documents attached to the EPRMP for the
issuance of an ECC were merely for the expansion and
modernization of the old jetty port in Barangay Caticlan
covering 2.64 hectares, and not the 40-hectare
reclamation project in Barangay Caticlan and Boracay.
The previous letter of respondent Province dated
October 14, 2009 addressed to DENR-EMB RVI Regional
Executive Director, would show that the reclamation
project will cover approximately 2.6 hectares.117 This
application for ECC was not officially accepted due to lack
of requirements or documents.
Although petitioner insists that the project involves 40
hectares in two sites, respondent DENR-EMB RVI looked
at the documents submitted by respondent Province and
saw that the subject area covered by the ECC application
and subsequently granted with ECC-R6-1003-096-7100
consists only of 2.64 hectares; hence, respondent DENR-
EMB RVI could not comment on the excess area.118
Respondent DENR-EMB RVI admits that as regards the
classification of the 2.64-hectare reclamation project
under "Non ECP in ECA," this does not fall within the
definition of a co-located project because the subject
project is merely an expansion of the old Caticlan Jetty
Port, which had a previously issued ECC (ECC No. 0699-
1012-171 on October 12, 1999). Thus, only an EPRMP,
not a PEIS or PEPRMP, is required.119
Respondent Province submitted to respondent DENR-
EMB RVI the following documents contained in the
EPRMP:
a. The Observations on the Floor Bottom and its
Marine Resources at the Proposed Jetty Ports at
Caticlan and Manok-manok, Boracay, Aklan,
conducted in 1999 by the Bureau of Fisheries
Aquatic Resources (BFAR) Central Office,
particularly in Caticlan site, and
b. The Study conducted by Dr. Ricarte S.
Javelosa, Ph. D, Mines and Geosciences Bureau
(MGB), Central Office and Engr. Roger Esto,
Provincial Planning and Development Office
(PPDO), Aklan in 2009 entitled "Preliminary
Geo-hazard Assessment for the Enhancement
of the Existing Caticlan Jetty Port Terminal
through Beach Zone Restoration and Protective
Marina Development in Malay, Aklan."
Respondent DENR-EMB RVI claims that the above two
scientific studies were enough for it to arrive at a best
professional judgment to issue an amended ECC for the
Aklan Marina Project covering 2.64
hectares.120 Furthermore, to confirm that the 2.64-
hectare reclamation has no significant negative impact
with the surrounding environment particularly in
Boracay, a more recent study was conducted, and
respondent DENR-EMB RVI alleges that "[i]t is very
important to highlight that the input data in the [MERF-
UPMSI] study utilized the [40-hectare] reclamation and
[200-meter] width seaward using the tidal and wave
modelling."121 The study showed that the reclamation of
2.64 hectares had no effect to the hydrodynamics of the
strait between Barangay Caticlan and Boracay.
Respondent DENR-EMB RVI affirms that no permits
and/or clearances from National Government Agencies
(NGAs) and LGUs are required pursuant to the DENR
Memorandum Circular No. 2007-08, entitled
"Simplifying the Requirements of ECC or CNC
Applications;" that the EPRMP was evaluated and
processed based on the Revised Procedural Manual for
DENR DAO 2003-30 which resulted to the issuance of
ECC-R6-1003-096-7100; and that the ECC is not a permit
per se but a planning tool for LGUs to consider in its
decision whether or not to issue a local permit.122
28
Respondent DENR-EMB RVI concludes that in filing this
case, petitioner had bypassed and deprived the DENR
Secretary of the opportunity to review and/or reverse
the decision of his subordinate office, EMB RVI pursuant
to the Revised Procedural Manual for DENR DAO 2003-
30. There is no "extreme urgency that necessitates the
granting of Mandamus or issuance of TEPO that put to
balance between the life and death of the petitioner or
present grave or irreparable damage to environment."123
After receiving the above Comments from all the
respondents, the Court set the case for oral arguments on
September 13, 2011.
Meanwhile, on September 8, 2011, respondent Province
filed a Manifestation and Motion124 praying for the
dismissal of the petition, as the province was no longer
pursuing the implementation of the succeeding phases of
the project due to its inability to comply with Article IV
B.2(3) of the MOA; hence, the issues and fears expressed
by petitioner had become moot. Respondent Province
alleges that the petition is "premised on a serious
misappreciation of the real extent of the contested
reclamation project" as certainly the ECC covered only a
total of 2,691 square meters located in Barangay
Caticlan, Malay, Aklan; and although the MOA spoke of 40
hectares, respondent Province’s submission of
documents to respondent PRA pertaining to said area
was but the first of a two-step process of approval.
Respondent Province claims that its failure to comply
with the documentary requirements of respondent PRA
within the period provided, or 120 working days from
the effectivity of the MOA, indicated its waiver to pursue
the remainder of the project.125 Respondent Province
further manifested:
Confirming this in a letter dated 12 August
2011,126 Governor Marquez informed respondent PRA
that the Province of Aklan is no longer "pursuing the
implementation of the succeeding phases of the project
with a total area of 37.4 hectares for our inability to
comply with Article IV B.2 (3) of the MOA; hence, the
existing MOA will cover only the project area of 2.64
hectares."
In his reply-letter dated August 22,
2011,127 [respondent] PRA General Manager informed
Governor Marquez that the [respondent] PRA Board of
Directors has given [respondent] PRA the authority to
confirm the position of the Province of Aklan that the
"Aklan Beach Zone Restoration and Protection Marine
Development Project will now be confined to the
reclamation and development of the 2.64 hectares, more
or less.
It is undisputed from the start that the coverage of the
Project is in fact limited to 2.64 hectares, as evidenced by
the NTP issued by respondent PRA. The recent exchange
of correspondence between respondents Province of
Aklan and [respondent] PRA further confirms the intent
of the parties all along. Hence, the Project subject of the
petition, without doubt, covers only 2.64 and not 40
hectares as feared. This completely changes the extent of
the Project and, consequently, moots the issues and fears
expressed by the petitioner.128 (Emphasis supplied.)
Based on the above contentions, respondent Province
prays that the petition be dismissed as no further
justiciable controversy exists since the feared adverse
effect to Boracay Island’s ecology had become academic
all together.129
The Court heard the parties’ oral arguments on
September 13, 2011 and gave the latter twenty (20) days
thereafter to file their respective memoranda.
Respondent Province filed another Manifestation and
Motion,130 which the Court received on April 2, 2012
stating that:
1. it had submitted the required documents and
studies to respondent DENR-EMB RVI before
an ECC was issued in its favor;
2. it had substantially complied with the
requirements provided under PRA
Administrative Order 2007-2, which
compliance caused respondent PRA’s Board to
approve the reclamation project; and
3. it had conducted a series of "consultative
[presentations]" relative to the reclamation
project before the LGU of Malay Municipality,
the Barangay Officials of Caticlan, and
stakeholders of Boracay Island.
Respondent Province further manifested that the
Barangay Council of Caticlan, Malay, Aklan enacted on
February 13, 2012 Resolution No. 003, series of 2012,
entitled "Resolution Favorably Endorsing the 2.6
Hectares Reclamation/MARINA Project of the Aklan
Provincial Government at Caticlan Coastline"131 and that
the Sangguniang Bayan of the Municipality of Malay,
Aklan enacted Resolution No. 020, series of 2012,
entitled "Resolution Endorsing the 2.6 Hectares
Reclamation Project of the Provincial Government of
Aklan Located at Barangay Caticlan, Malay, Aklan."132
Respondent Province claims that its compliance with the
requirements of respondents DENR-EMB RVI and PRA
that led to the approval of the reclamation project by the
said government agencies, as well as the recent
enactments of the Barangay Council of Caticlan and the
Sangguniang Bayan of the Municipality of Malay
favorably endorsing the said project, had "categorically
addressed all the issues raised by the Petitioner in its
Petition dated June 1, 2011." Respondent Province prays
as follows:
WHEREFORE, premises considered, it is most
respectfully prayed of this Honorable Court that after
due proceedings, the following be rendered:
1. The Temporary Environmental Protection
Order (TEPO) it issued on June 7, 2011 be
lifted/dissolved.
2. The instant petition be dismissed for being
moot and academic.
3. Respondent Province of Aklan prays for such
other reliefs that are just and equitable under
the premises. (Emphases in the original.)
ISSUES
The Court will now resolve the following issues:
I. Whether or not the petition should be
dismissed for having been rendered moot and
academic
II. Whether or not the petition is premature
because petitioner failed to exhaust
administrative remedies before filing this case
29
 III. Whether or not respondent Province failed
to perform a full EIA as required by laws and
regulations based on the scope and
classification of the project
IV. Whether or not respondent Province
complied with all the requirements under the
pertinent laws and regulations
V. Whether or not there was proper, timely, and
sufficient public consultation for the project
DISCUSSION
On the issue of whether or not the Petition should be
dismissed for having been rendered moot and academic
Respondent Province claims in its Manifestation and
Motion filed on April 2, 2012 that with the alleged
favorable endorsement of the reclamation project by the
Sangguniang Barangay of Caticlan and the Sangguniang
Bayan of the Municipality of Malay, all the issues raised
by petitioner had already been addressed, and this
petition should be dismissed for being moot and
academic.
On the contrary, a close reading of the two LGUs’
respective resolutions would reveal that they are not
sufficient to render the petition moot and academic, as
there are explicit conditions imposed that must be
complied with by respondent Province. In Resolution No.
003, series of 2012, of the Sangguniang Barangay of
Caticlan it is stated that "any vertical structures to be
constructed shall be subject for barangay
endorsement."133 Clearly, what the barangay endorsed
was the reclamation only, and not the entire project that
includes the construction of a commercial building and
wellness center, and other tourism-related facilities.
Petitioner’s objections, as may be recalled, pertain not
only to the reclamation per se, but also to the building to
be constructed and the entire project’s perceived ill
effects to the surrounding environment.
Resolution No. 020, series of 2012, of the Sangguniang
Bayan of Malay134 is even more specific. It reads in part:
WHEREAS, noble it seems the reclamation project to the
effect that it will generate scores of benefits for the Local
Government of Malay in terms of income and
employment for its constituents, but the fact cannot be
denied that the project will take its toll on the
environment especially on the nearby fragile island of
Boracay and the fact also remains that the project will
eventually displace the local transportation
operators/cooperatives;
WHEREAS, considering the sensitivity of the project, this
Honorable Body through the Committee where this
matter was referred conducted several
consultations/committee hearings with concerned
departments and the private sector specifically Boracay
Foundation, Inc. and they are one in its belief that this
Local Government Unit has never been against
development so long as compliance with the law and
proper procedures have been observed and that
paramount consideration have been given to the
environment lest we disturb the balance of nature to the
end that progress will be brought to naught;
WHEREAS, time and again, to ensure a healthy
intergovernmental relations, this August Body requires
no less than transparency and faithful commitment from
the Provincial Government of Aklan in the process of
going through these improvements in the Municipality
because it once fell prey to infidelities in matters of
governance;
WHEREAS, as a condition for the grant of this
endorsement and to address all issues and concerns, this
Honorable Council necessitates a sincere commitment
from the Provincial Government of Aklan to the end that:
1. To allocate an office space to LGU-Malay
within the building in the reclaimed area;
2. To convene the Cagban and Caticlan Jetty
Port Management Board before the resumption
of the reclamation project;
3. That the reclamation project shall be limited
only to 2.6 hectares in Barangay Caticlan and
not beyond;
4. That the local transportation
operators/cooperatives will not be displaced;
and
5. The Provincial Government of Aklan conduct
a simultaneous comprehensive study on the
environmental impact of the reclamation
project especially during Habagat and Amihan
seasons and put in place as early as possible
mitigating measures on the effect of the project
to the environment.
WHEREAS, having presented these stipulations, failure
to comply herewith will leave this August Body no choice
but to revoke this endorsement, hence faithful
compliance of the commitment of the Provincial
Government is highly appealed for[.]135 (Emphases
added.)
The Sangguniang Bayan of Malay obviously imposed
explicit conditions for respondent Province to comply
with on pain of revocation of its endorsement of the
project, including the need to conduct a comprehensive
study on the environmental impact of the reclamation
project, which is the heart of the petition before us.
Therefore, the contents of the two resolutions submitted
by respondent Province do not support its conclusion
that the subsequent favorable endorsement of the LGUs
had already addressed all the issues raised and rendered
the instant petition moot and academic.
On the issue of failure to exhaust administrative
remedies
Respondents, in essence, argue that the present petition
should be dismissed for petitioner’s failure to exhaust
administrative remedies and even to observe the
hierarchy of courts. Furthermore, as the petition
questions the issuance of the ECC and the NTP, this
involves factual and technical verification, which are
more properly within the expertise of the concerned
government agencies.
Respondents anchor their argument on Section 6, Article
II of DENR DAO 2003-30, which provides:
Section 6. Appeal
30
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.
The DENR may adopt alternative conflict/dispute
resolution procedures as a means to settle grievances
between proponents and aggrieved parties to avert
unnecessary legal action. Frivolous appeals shall not be
countenanced.
The proponent or any stakeholder may file an appeal to
the following:
Deciding Authority Where to file the appeal
EMB Regional Office Office of the EMB Director
Director
EMB Central Office Office of the DENR
Director Secretary
DENR Secretary Office of the President
(Emphases supplied.)
Respondents argue that since there is an administrative
appeal provided for, then petitioner is duty bound to
observe the same and may not be granted recourse to the
regular courts for its failure to do so.
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,136 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).137 (Emphases supplied.)
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.138 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.
Although petitioner was not a party to the proceedings
where the decision to issue an ECC was rendered, it
stands to be aggrieved by the decision,139 because it
claims that the reclamation of land on the Caticlan side
would unavoidably adversely affect the Boracay side,
where petitioner’s members own establishments
engaged in the tourism trade. As noted earlier, petitioner
contends that the declared objective of the reclamation
project is to exploit Boracay’s tourism trade because the
project is intended to enhance support services thereto;
however, this objective would not be achieved since the
white-sand beaches for which Boracay is famous might
be negatively affected by the project. Petitioner’s
conclusion is that respondent Province, aided and
abetted by respondents PRA and DENR-EMB RVI,
ignored the spirit and letter of our environmental laws,
and should thus be compelled to perform their duties
under said laws.
The new Rules of Procedure for Environmental Cases,
A.M. No. 09-6-8-SC, provides a relief for petitioner under
the writ of continuing mandamus, which is a special civil
action that may be availed of "to compel the performance
of an act specifically enjoined by law"140 and which
provides for the issuance of a TEPO "as an auxiliary
remedy prior to the issuance of the writ itself."141 The
Rationale of the said Rules explains the writ in this wise:
Environmental law highlights the shift in the focal-point
from the initiation of regulation by Congress to the
implementation of regulatory programs by the
appropriate government agencies.
Thus, a government agency’s inaction, if any, has serious
implications on the future of environmental law
enforcement. Private individuals, to the extent that they
seek to change the scope of the regulatory process, will
have to rely on such agencies to take the initial
incentives, which may require a judicial component.
Accordingly, questions regarding the propriety of an
agency’s action or inaction will need to be analyzed.
This point is emphasized in the availability of the remedy
of the writ of mandamus, which allows for the
enforcement of the conduct of the tasks to which the writ
pertains: the performance of a legal duty.142 (Emphases
added.)
The writ of continuing mandamus "permits the court to
retain jurisdiction after judgment in order to ensure the
successful implementation of the reliefs mandated under
the court’s decision" and, in order to do this, "the court
may compel the submission of compliance reports from
the respondent government agencies as well as avail of
other means to monitor compliance with its decision."143
According to petitioner, respondent Province acted
pursuant to a MOA with respondent PRA that was
conditioned upon, among others, a properly-secured ECC
from respondent DENR-EMB RVI. For this reason,
petitioner seeks to compel respondent Province to
31
comply with certain environmental laws, rules, and
procedures that it claims were either circumvented or
ignored. Hence, we find that the petition was
appropriately filed with this Court under Rule 8, Section
1, A.M. No. 09-6-8-SC, which reads:
SECTION 1. Petition for continuing mandamus.—When
any agency or instrumentality of the government or
officer thereof unlawfully neglects the performance of an
act which the law specifically enjoins as a duty resulting
from an office, trust or station in connection with the
enforcement or violation of an environmental law rule or
regulation or a right therein, or unlawfully excludes
another from the use or enjoyment of such right and
there is no other plain, speedy and adequate remedy in
the ordinary course of law, the person aggrieved thereby
may file a verified petition in the proper court, alleging
the facts with certainty, attaching thereto supporting
evidence, specifying that the petition concerns an
environmental law, rule or regulation, and praying that
judgment be rendered commanding the respondent to
do an act or series of acts until the judgment is fully
satisfied, and to pay damages sustained by the petitioner
by reason of the malicious neglect to perform the duties
of the respondent, under the law, rules or regulations.
The petition shall also contain a sworn certification of
non-forum shopping.
SECTION 2. Where to file the petition.—The petition shall
be filed with the Regional Trial Court exercising
jurisdiction over the territory where the actionable
neglect or omission occurred or with the Court of
Appeals or the Supreme Court.
Petitioner had three options where to file this case under
the rule: the Regional Trial Court exercising jurisdiction
over the territory where the actionable neglect or
omission occurred, the Court of Appeals, or this Court.
Petitioner had no other plain, speedy, or adequate
remedy in the ordinary course of law to determine the
questions of unique national and local importance raised
here that pertain to laws and rules for environmental
protection, thus it was justified in coming to this Court.
Having resolved the procedural issue, we now move to
the substantive issues.
On the issues of whether, based on the scope and
classification of the project, a full EIA is required by laws
and regulations, and whether respondent Province
complied with all the requirements under the pertinent
laws and regulations
Petitioner’s arguments on this issue hinges upon its
claim that the reclamation project is misclassified as a
single project when in fact it is co-located. Petitioner also
questions the classification made by respondent
Province that the reclamation project is merely an
expansion of the existing jetty port, when the project
descriptions embodied in the different documents filed
by respondent Province describe commercial
establishments to be built, among others, to raise
revenues for the LGU; thus, it should have been classified
as a new project. Petitioner likewise cries foul to the
manner by which respondent Province allegedly
circumvented the documentary requirements of the
DENR-EMB RVI by the act of connecting the reclamation
project with its previous project in 1999 and claiming
that the new project is a mere expansion of the previous
one.
As previously discussed, respondent Province filed a
Manifestation and Motion stating that the ECC issued by
respondent DENR-EMB RVI covered an area of 2,691
square meters in Caticlan, and its application for
reclamation of 40 hectares with respondent PRA was
conditioned on its submission of specific documents
within 120 days. Respondent Province claims that its
failure to comply with said condition indicated its waiver
to pursue the succeeding phases of the reclamation
project and that the subject matter of this case had thus
been limited to 2.64 hectares. Respondent PRA, for its
part, declared through its General Manager that the
"Aklan Beach Zone Restoration and Protection Marine
Development Project will now be confined to the
reclamation and development of the 2.64 hectares, more
or less."144
The Court notes such manifestation of respondent
Province. Assuming, however, that the area involved in
the subject reclamation project has been limited to 2.64
hectares, this case has not become moot and academic,
as alleged by respondents, because the Court still has to
check whether respondents had complied with all
applicable environmental laws, rules, and regulations
pertaining to the actual reclamation project.
We recognize at this point that the DENR is the
government agency vested with delegated powers to
review and evaluate all EIA reports, and to grant or deny
ECCs to project proponents.145 It is the DENR that has the
duty to implement the EIS system. It appears, however,
that respondent DENR-EMB RVI’s evaluation of this
reclamation project was problematic, based on the valid
questions raised by petitioner.
Being the administrator of the EIS System, respondent
DENR-EMB RVI’s submissions bear great weight in this
case. However, the following are the issues that put in
question the wisdom of respondent DENR-EMB RVI in
issuing the ECC:
1. Its approval of respondent Province’s
classification of the project as a mere expansion
of the existing jetty port in Caticlan, instead of
classifying it as a new project;
2. Its classification of the reclamation project as
a single instead of a co-located project;
3. The lack of prior public consultations and
approval of local government agencies; and
4. The lack of comprehensive studies regarding
the impact of the reclamation project to the
environment.
The above issues as raised put in question the sufficiency
of the evaluation of the project by respondent DENR-
EMB RVI.
Nature of the project
The first question must be answered by respondent
DENR-EMB RVI as the agency with the expertise and
authority to state whether this is a new project, subject
to the more rigorous environmental impact study
requested by petitioner, or it is a mere expansion of the
existing jetty port facility.
The second issue refers to the classification of the project
by respondent Province, approved by respondent DENR-
EMB RVI, as single instead of co-located. Under the
Revised Procedural Manual, the "Summary List of
Additional Non-Environmentally-Critical Project (NECP)
32
Types in ECAs Classified under Group II" (Table I-2) lists
"buildings, storage facilities and other structures" as a
separate item from "transport terminal facilities." This
creates the question of whether this project should be
considered as consisting of more than one type of
activity, and should more properly be classified as "co-
located," under the following definition from the same
Manual, which reads:
f) Group IV (Co-located Projects in either ECA or NECA):
A co-located project is a group of single projects, under
one or more proponents/locators, which are located in a
contiguous area and managed by one administrator, who
is also the ECC applicant. The co-located project may be
an economic zone or industrial park, or a mix of projects
within a catchment, watershed or river basin, or any
other geographical, political or economic unit of area.
Since the location or threshold of specific projects within
the contiguous area will yet be derived from the EIA
process based on the carrying capacity of the project
environment, the nature of the project is called
"programmatic." (Emphasis added.)
Respondent DENR-EMB RVI should conduct a thorough
and detailed evaluation of the project to address the
question of whether this could be deemed as a group of
single projects (transport terminal facility, building, etc.)
in a contiguous area managed by respondent Province,
or as a single project.
The third item in the above enumeration will be
discussed as a separate issue.
The answer to the fourth question depends on the final
classification of the project under items 1 and 3 above
because the type of EIA study required under the Revised
Procedural Manual depends on such classification.
The very definition of an EIA points to what was most
likely neglected by respondent Province as project
proponent, and what was in turn overlooked by
respondent DENR-EMB RVI, for it is defined as follows:
An [EIA] is a ‘process that involves predicting and
evaluating the likely impacts of a project (including
cumulative impacts) on the environment during
construction, commissioning, operation and
abandonment. It also includes designing appropriate
preventive, mitigating and enhancement measures
addressing these consequences to protect the
environment and the community’s
welfare.146 (Emphases supplied.)
Thus, the EIA process must have been able to predict the
likely impact of the reclamation project to the
environment and to prevent any harm that may
otherwise be caused.
The project now before us involves reclamation of land
that is more than five times the size of the original
reclaimed land. Furthermore, the area prior to
construction merely contained a jetty port, whereas the
proposed expansion, as described in the EPRMP
submitted by respondent Province to respondent DENR-
EMB RVI involves so much more, and we quote:
The expansion project will be constructed at the north
side of the existing jetty port and terminal that will have
a total area of 2.64 hectares, more or less, after
reclamation. The Phase 1 of the project construction
costing around ₱260 million includes the following:
1. Reclamation - 3,000 sq m (expansion of jetty
port)
2. Reclamation - 13,500 sq m (buildable area)
3. Terminal annex building - 250 sq m
4. 2-storey commercial building – 2,500 sq m
(1,750 sq m of leasable space)
5. Health and wellness center
6. Access road - 12 m (wide)
7. Parking, perimeter fences, lighting and water
treatment sewerage system
8. Rehabilitation of existing jetty port and
terminal
xxxx
The succeeding phases of the project will consist of
[further] reclamation, completion of the commercial
center building, bay walk commercial strip, staff
building, ferry terminal, a cable car system and wharf
marina. This will entail an additional estimated cost of
₱785 million bringing the total investment requirement
to about ₱1.0 billion.147 (Emphases added.)
As may be gleaned from the breakdown of the 2.64
hectares as described by respondent Province above, a
significant portion of the reclaimed area would be
devoted to the construction of a commercial building,
and the area to be utilized for the expansion of the jetty
port consists of a mere 3,000 square meters (sq. m). To
be true to its definition, the EIA report submitted by
respondent Province should at the very least predict the
impact that the construction of the new buildings on the
reclaimed land would have on the surrounding
environment. These new constructions and their
environmental effects were not covered by the old
studies that respondent Province previously submitted
for the construction of the original jetty port in 1999, and
which it re-submitted in its application for ECC in this
alleged expansion, instead of conducting updated and
more comprehensive studies.
Any impact on the Boracay side cannot be totally
ignored, as Caticlan and Boracay are separated only by a
narrow strait. This becomes more imperative because of
the significant contributions of Boracay’s white-sand
beach to the country’s tourism trade, which requires
respondent Province to proceed with utmost caution in
implementing projects within its vicinity.
We had occasion to emphasize the duty of local
government units to ensure the quality of the
environment under Presidential Decree No. 1586 in
Republic of the Philippines v. The City of
Davao,148 wherein we held:
Section 15 of Republic Act 7160, otherwise known as the
Local Government Code, defines a local government unit
as a body politic and corporate endowed with powers to
be exercised by it in conformity with law. As such, it
performs dual functions, governmental and proprietary.
Governmental functions are those that concern the
health, safety and the advancement of the public good or
welfare as affecting the public generally. Proprietary
functions are those that seek to obtain special corporate
benefits or earn pecuniary profit and intended for
private advantage and benefit. When exercising
governmental powers and performing governmental
33
duties, an LGU is an agency of the national government.
When engaged in corporate activities, it acts as an agent
of the community in the administration of local affairs.
Found in Section 16 of the Local Government Code is the
duty of the LGUs to promote the people’s right to a
balanced ecology. Pursuant to this, an LGU, like the City
of Davao, can not claim exemption from the coverage of
PD 1586. As a body politic endowed with governmental
functions, an LGU has the duty to ensure the quality of
the environment, which is the very same objective of PD
1586.
xxxx
Section 4 of PD 1586 clearly states that "no person,
partnership or corporation shall undertake or operate
any such declared environmentally critical project or
area without first securing an Environmental
Compliance Certificate issued by the President or his
duly authorized representative." The Civil Code defines a
person as either natural or juridical. The state and its
political subdivisions, i.e., the local government units are
juridical persons. Undoubtedly therefore, local
government units are not excluded from the coverage of
PD 1586.
Lastly, very clear in Section 1 of PD 1586 that said law
intends to implement the policy of the state to achieve a
balance between socio-economic development and
environmental protection, which are the twin goals of
sustainable development. The above-quoted first
paragraph of the Whereas clause stresses that this can
only be possible if we adopt a comprehensive and
integrated environmental protection program where all
the sectors of the community are involved, i.e., the
government and the private sectors. The local
government units, as part of the machinery of the
government, cannot therefore be deemed as outside the
scope of the EIS system.149 (Emphases supplied.)
The Court chooses to remand these matters to
respondent DENR-EMB RVI for it to make a proper study,
and if it should find necessary, to require respondent
Province to address these environmental issues raised
by petitioner and submit the correct EIA report as
required by the project’s specifications. The Court
requires respondent DENR-EMB RVI to complete its
study and submit a report within a non-extendible
period of three months. Respondent DENR-EMB RVI
should establish to the Court in said report why the ECC
it issued for the subject project should not be canceled.
Lack of prior public consultation
The Local Government Code establishes the duties of
national government agencies in the maintenance of
ecological balance, and requires them to secure prior
public consultation and approval of local government
units for the projects described therein.
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. 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, 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.
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.
In Lina, Jr. v. Paño,150 we held that Section 27 of the Local
Government Code applies only to "national programs
and/or projects which are to be implemented in a
particular local community"151 and that it should be read
in conjunction with Section 26. We held further in this
manner:
Thus, the projects and programs mentioned in Section 27
should be interpreted to mean projects and programs
whose effects are among those enumerated in Section 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, range-land, or forest cover; (5) may
eradicate certain animal or plant species from the face of
the planet; 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.
Obviously, none of these effects will be produced by the
introduction of lotto in the province of
Laguna.152 (Emphasis added.)
During the oral arguments held on September 13, 2011,
it was established that this project as described above
falls under Section 26 because the commercial
establishments to be built on phase 1, as described in the
EPRMP quoted above, could cause pollution as it could
generate garbage, sewage, and possible toxic fuel
discharge.153
Our ruling in Province of Rizal v. Executive Secretary154 is
instructive:
We reiterated this doctrine in the recent case of Bangus
Fry Fisherfolk v. Lanzanas, where we held that there was
no statutory requirement for the sangguniang bayan of
Puerto Galera to approve the construction of a mooring
34
facility, as Sections 26 and 27 are inapplicable to projects
which are not environmentally critical.
Moreover, Section 447, which enumerates the powers,
duties and functions of the municipality, grants
the sangguniang bayan the power to, among other
things, "enact ordinances, approve resolutions and
appropriate funds for the general welfare of the
municipality and its inhabitants pursuant to Section 16
of th(e) Code." These include:
(1) Approving ordinances and passing
resolutions to protect the environment and
impose appropriate penalties for acts which
endanger the environment, such as dynamite
fishing and other forms of destructive fishing,
illegal logging and smuggling of logs, smuggling
of natural resources products and of
endangered species of flora and fauna, slash
and burn farming, and such other activities
which result in pollution, acceleration of
eutrophication of rivers and lakes, or of
ecological imbalance; [Section 447 (1)(vi)]
(2) Prescribing reasonable limits and restraints
on the use of property within the jurisdiction of
the municipality, adopting a comprehensive
land use plan for the municipality, reclassifying
land within the jurisdiction of the city, subject
to the pertinent provisions of this Code,
enacting integrated zoning ordinances in
consonance with the approved comprehensive
land use plan, subject to existing laws, rules and
regulations; establishing fire limits or zones,
particularly in populous centers; and
regulating the construction, repair or
modification of buildings within said fire limits
or zones in accordance with the provisions of
this Code; [Section 447 (2)(vi-ix)]
(3) Approving ordinances which shall ensure
the efficient and effective delivery of the basic
services and facilities as provided for under
Section 17 of this Code, and in addition to said
services and facilities, …providing for the
establishment, maintenance, protection, and
conservation of communal forests and
watersheds, tree parks, greenbelts, mangroves,
and other similar forest development projects
…and, subject to existing laws, establishing and
providing for the maintenance, repair and
operation of an efficient waterworks system to
supply water for the inhabitants and purifying
the source of the water supply; regulating the
construction, maintenance, repair and use of
hydrants, pumps, cisterns and reservoirs;
protecting the purity and quantity of the water
supply of the municipality and, for this purpose,
extending the coverage of appropriate
ordinances over all territory within the
drainage area of said water supply and within
one hundred (100) meters of the reservoir,
conduit, canal, aqueduct, pumping station, or
watershed used in connection with the water
service; and regulating the consumption, use or
wastage of water." [Section 447 (5)(i) & (vii)]
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.155 (Emphasis added.)
Based on the above, therefore, prior consultations and
prior approval are required by law to have been
conducted and secured by the respondent Province.
Accordingly, the information dissemination conducted
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
project, to avoid or minimize adverse environmental
impact or damage. In fact, respondent Province once
tried to obtain the favorable endorsement of the
Sangguniang Bayan of Malay, but this was denied by the
latter.
Moreover, DENR DAO 2003-30 provides:
5.3 Public Hearing / Consultation Requirements
For projects under Category A-1, the conduct of public
hearing as part of the EIS review is mandatory unless
otherwise determined by EMB. For all other
undertakings, a public hearing is not mandatory unless
specifically required by EMB.
Proponents should initiate public consultations early in
order to ensure that environmentally relevant concerns
of stakeholders are taken into consideration in the EIA
study and the formulation of the management plan. All
public consultations and public hearings conducted
during the EIA process are to be documented. The public
hearing/consultation Process report shall be validated
by the EMB/EMB RD and shall constitute part of the
records of the EIA process. (Emphasis supplied.)
In essence, the above-quoted rule shows that in cases
requiring public consultations, the same should be
initiated early so that concerns of stakeholders could be
taken into consideration in the EIA study. In this case,
respondent Province had already filed its ECC
application before it met with the local government units
of Malay and Caticlan.
The claim of respondent DENR-EMB RVI is that no
permits and/or clearances from National Government
Agencies (NGAs) and LGUs are required pursuant to the
DENR Memorandum Circular No. 2007-08. However, we
still find that the LGC requirements of consultation and
approval apply in this case. This is because a
Memorandum Circular cannot prevail over the Local
Government Code, which is a statute and which enjoys
greater weight under our hierarchy of laws.
Subsequent to the information campaign of respondent
Province, the Municipality of Malay and the Liga ng mga
Barangay-Malay Chapter still opposed the project. Thus,
when respondent Province commenced the
implementation project, it violated Section 27 of the LGC,
which clearly enunciates that "[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."
The lack of prior public consultation and approval is not
corrected by the subsequent endorsement of the
reclamation project by the Sangguniang Barangay of
Caticlan on February 13, 2012, and the Sangguniang
Bayan of the Municipality of Malay on February 28, 2012,
which were both undoubtedly achieved at the urging and
35
insistence of respondent Province. As we have
established above, the respective resolutions issued by
the LGUs concerned did not render this petition moot
and academic.
It is clear that both petitioner and respondent Province
are interested in the promotion of tourism in Boracay
and the protection of the environment, lest they kill the
proverbial hen that lays the golden egg. At the beginning
of this decision, we mentioned that there are common
goals of national significance that are very apparent from
both the petitioner’s and the respondents’ respective
pleadings and memoranda.
The parties are evidently in accord in seeking to uphold
the mandate found in Article II, Declaration of Principles
and State Policies, of the 1987 Constitution, which we
quote below:
SECTION 16. The State shall protect and advance the
right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.
xxxx
SECTION 20. The State recognizes the indispensable role
of the private sector, encourages private enterprise, and
provides incentives to needed investments.
The protection of the environment in accordance with
the aforesaid constitutional mandate is the aim, among
others, of Presidential Decree No. 1586, "Establishing an
Environmental Impact Statement System, Including
Other Environmental Management Related Measures
and For Other Purposes," which declared in its first
Section that it is "the policy of the State to attain and
maintain a rational and orderly balance between socio-
economic growth and environmental protection."
The parties undoubtedly too agree as to the importance
of promoting tourism, pursuant to Section 2 of Republic
Act No. 9593, or "The Tourism Act of 2009," which reads:
SECTION 2. Declaration of Policy. – The State declares
tourism as an indispensable element of the national
economy and an industry of national interest and
importance, which must be harnessed as an engine of
socioeconomic growth and cultural affirmation to
generate investment, foreign exchange and employment,
and to continue to mold an enhanced sense of national
pride for all Filipinos. (Emphasis ours.)
The primordial role of local government units under the
Constitution and the Local Government Code of 1991 in
the subject matter of this case is also unquestionable. The
Local Government Code of 1991 (Republic Act No. 7160)
pertinently provides:
Section 2. Declaration of Policy. - (a) It is hereby declared
the policy of the State that the territorial and political
subdivisions of the State shall enjoy genuine and
meaningful local autonomy to enable them to attain their
fullest development as self-reliant communities and
make them more effective partners in the attainment of
national goals. Toward this end, the State shall provide
for a more responsive and accountable local government
structure instituted through a system of decentralization
whereby local government units shall be given more
powers, authority, responsibilities, and resources. The
process of decentralization shall proceed from the
national government to the local government
units.156 (Emphases ours.)
As shown by the above provisions of our laws and rules,
the speedy and smooth resolution of these issues would
benefit all the parties. Thus, respondent Province’s
cooperation with respondent DENR-EMB RVI in the
Court-mandated review of the proper classification and
environmental impact of the reclamation project is of
utmost importance.
WHEREFORE, premises considered, the petition is
hereby PARTIALLY GRANTED.1âwphi1 The TEPO issued
by this Court is hereby converted into a writ of
continuing mandamus specifically as follows:
1. Respondent Department of Environment and
Natural Resources-Environmental
Management Bureau Regional Office VI shall
revisit and review the following matters:
a. its classification of the reclamation
project as a single instead of a co-
located project;
b. its approval of respondent
Province’s classification of the project
as a mere expansion of the existing
jetty port in Caticlan, instead of
classifying it as a new project; and
c. the impact of the reclamation
project to the environment based on
new, updated, and comprehensive
studies, which should forthwith be
ordered by respondent DENR-EMB
RVI.
2. Respondent Province of Aklan shall perform
the following:
a. fully cooperate with respondent
DENR-EMB RVI in its review of the
reclamation project proposal and
submit to the latter the appropriate
report and study; and
b. secure approvals from local
government units and hold proper
consultations with non-governmental
organizations and other stakeholders
and sectors concerned as required by
Section 27 in relation to Section 26 of
the Local Government Code.
3. Respondent Philippine Reclamation
Authority shall closely monitor the submission
by respondent Province of the requirements to
be issued by respondent DENR-EMB RVI in
connection to the environmental concerns
raised by petitioner, and shall coordinate with
respondent Province in modifying the MOA, if
necessary, based on the findings of respondent
DENR-EMB RVI.
4. The petitioner Boracay Foundation, Inc. and
the respondents The Province of Aklan,
represented by Governor Carlito S. Marquez,
The Philippine Reclamation Authority, and The
DENR-EMB (Region VI) are mandated to
submit their respective reports to this Court
regarding their compliance with the
requirements set forth in this Decision no later
than three (3) months from the date of
promulgation of this Decision.
36
 5. In the meantime, the respondents, their
concerned contractor/s, and/or their agents,
representatives or persons acting in their place
or stead, shall immediately cease and desist
from continuing the implementation of the
project covered by ECC-R6-1003-096-7100
until further orders from this Court. For this
purpose, the respondents shall report within
five (5) days to this Court the status of the
project as of their receipt of this Decision, copy
furnished the petitioner.

This Decision is immediately executory.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

37
[G.R. No. 194239, May 31, 2011]
WEST TOWER CONDOMINIUM CORPORATION, ON
BEHALF OF THE RESIDENTS OF WEST TOWER CONDO.,
AND IN REPRESENTATION OF BARANGAY BANGKAL,
AND OTHERS, INCLUDING MINORS AND GENERATIONS
YET UNBORN V. FIRST PHILIPPINE INDUSTRIAL
CORPORATION, FIRST GEN CORPORATION AND THEIR
RESPECTIVE BOARD OF DIRECTORS AND OFFICERS,
JOHN DOES AND RICHARD ROES
Sirs/Mesdames:
Please take notice that the Court en banc issued a
Resolution dated May 31, 2011which reads as follows:
"G.R. No. 194239 (West Tower Condominium
Corporation, on behalf of the Residents of West Tower
Condo., and in representation of Barangay Bangkal, and
others, including minors and generations yet unborn v.
First Philippine Industrial Corporation, First Gen
Corporation and their respective Board of Directors and
Officers, John Does and Richard Roes)
RESOLUTION
I the While Oil Pipeline System (WOPL System).
On November 15, 2010, petitioners filed their Petition
for Issuance of a Writ ofKalikasan.[1]
On November 19, 2010, Chief Justice Renato C. Corona
issued a Writ of Kalikasan[2]with a Temporary
Environmental Protection Order (TEPO), requiring the
First Philippine Industrial Corporation (FPIC) and First
Gen Corporation (FGC) to make a Verified Return within
a non-extendible period of ten (10) days from receipt
thereof pursuant to Section 8, Rule 7 of the Rules of
Procedure for Environmental Cases. The TEPO enjoined
FPIC and FGC to: (a) cease and desist from operating the
pipeline until further orders; (b) check the structural
integrity of The whole span of the 117-kilometer pipeline
while implementing sufficient measures to prevent and
avert any untoward incidents that may result from any
leak of the pipeline; and (c) make a Report thereon
within 60 days from receipt thereof.
Consequent to the Court's issuance of the Writ of
Kalikasan and the accompanying TEPO, FPIC ceased
operations on both (a) the White Oil Pipeline System
(WOPL System), which extends 117 kilometers from
Batangas to Pandacan Terminal in Manila and transports
diesel, gasoline, jet fuel and kerosene; and (b) the Black
Oil Pipeline System (BOPL System), which extends 105
kilometers and transports bunker fuel from Batangas to
a depot in Sucat, Parañaque City.
Through a letter dated May 9, 2011, Department of
Energy (DOE) Undersecretary Atty. Jose M. Layug, Jr.
seeks clarification and confirmation on the coverage of
the Writ of Kalikasan and the accompanying TEPO, i.e.,
whether they cover both the WOPL and the BOPL.
It is apparent from the Petition for Issuance of a Writ of
Kalikasan that what petitioners sought to stop operating
is the WOPL, where the leak was found, affecting the
vicinity of West Tower Condominium. Only the WOPL is
covered by the Writ ofKalikasan and the TEPO.
WHEREFORE, the Court hereby clarifies and confirms
that what is covered by the November 19, 2010 Writ of
Kalikasan and TEPO is only the WOPL System of
respondent FPIC. Consequently, the FPIC can resume
operation of its BOPL System.
II
On March 29, 2011, the Court issued a Resolution setting
the conduct of an ocular inspection on April 15, 2011 of
On April 15, 2011, the ocular inspection in the vicinity
and basement of West Tower Condominium was
conducted in the presence of counsels of the parties,
officers of respondent First Philippine Industrial
Corporation (FP1C), and residents of petitioner West
Tower Condominium, among others.
As required by the Court, representatives of the
University of the Philippines-National Institute of
Geological Sciences (UP-NIGS) and the UP Institute of
Civil Engineering attended the ocular inspection. After
the ocular inspection, the Court asked the
representatives of UP-N1GS and the UP Institute of Civil
Engineering for their opinions and recommendations
through a report, among others, on (1) the issue of
whether to grant FPIC's urgent motion to temporarily lift
the Temporary Environmental Protection Order for a
period of not more than 48 hours in order to conduct
pressure controlled leak tests to check the structural
integrity of the WOPL which entails running a scraper pig
to eliminate air gaps within the pipeline prior to the
conduct of said test, as recommended by the
international technical consultant of the Department of
Energy; and (2) testing procedures that may be used by
the FPIC regarding the maintenance and checking of the
structural integrity of the WOPL.
On May 10, 2011, the UP Institute of Civil Engineering
sent a letter to the Court asking pertinent documents
from FPIC relative to testing protocols undertaken by
FPIC and other proposals, and that it be given one week
within which to file its report after receipt of the
documents.
WHEREFORE, finding the request of the UP Institute of
Civil Engineering to be meritorious, FPIC is hereby
DIRECTED to submit documents regarding testing
protocols it has undertaken to check for leaks and the
structural integrity of the WOPL, the results thereof and
other related proposals it has committed to undertake to
the UP Institute of: Civil Engineering within five (5) days
from notice. The UP Institute of Civil Engineering is
granted one (1) week from receipt of the requested
documents from FPIC within which to file its report.
The Court further Resolved to
(a) NOTE the Manifestation with Motion dated April 14,
2011 filed by counsel for petitioners, relative to the
resolution of March 29, 2011;
(b) NOTE the Letter (Report) dated April 21, 2011 of Dr.
Carlo A. Arcilla, Director, National Institute of Geological
Sciences, College of Science University of the Philippines,
Diliman, Quezon City, in compliance with the resolution
of March 29, 2011; and
(c) NOTE the Letter dated May 24, 2011 of Atty. Justin
Christopher C. Mendoza of Poblador Bautista & Reyes
Law Offices, counsel for First Philippine Industrial
Corporation, and GRANT his request for a copy of Dr.
Carlo Arcilla's April 21, 2011 Report filed in compliance
with the resolution of March 29, 2011."
38