G.R. No.

131442 July 10, 2003
BANGUS FRY FISHERFOLK, DIWATA MAGBUHOS, ANGELITA BINAY, ELMA GARCIA,
VIRGILIO PANGUIO, ARSENIO CASTILLO, ARIEL PANGUIO, ANTONIO PANGUIO,
ANTONIO BUNQUIN, GENEROSO BUNQUIN, CHARLIE DIMAYACYAC, RENATO
PANGUIO, ATILANO BUNQUIN, CARLOS CHAVEZ, JUAN DIMAYACYAC, FILEMON
BUNQUIN, MARIO MAGBUHOS, MAURO MAGBUHOS, NORA MAGBUHOS, JEOVILYN,
GENALYN and JORVAN QUIMUEL, minors, represented by their parents FELICIANA and
SABINO QUIMUEL, MARICAR MAGBUHOS, minor, represented by her parents
CARMELITA and ANTONIO MAGBUHOS, MARLO BINAY, minor, represented by his
parents EFRENITA and CHARLITO BINAY, and the BANGUS, BANGUS FRY and other
MARINE LIFE OF MINOLO COVE, petitioners,
vs.
THE HONORABLE ENRICO LANZANAS as Judge of the Regional Trial Court of Manila,
Branch VII, THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES —
Region IV, represented by its Regional Executive Director and its Regional Director for
Environment, THE NATIONAL POWER CORPORATION, ORIENTAL MINDORO
ELECTRIC COOPERATIVE, PROVINCIAL GOVERNMENT OF ORIENTAL MINDORO,
herein represented by GOVERNOR RODOLFO VALENCIA, PUERTO GALERA MAYOR
GREGORIO DELGADO, VICE MAYOR ARISTEO ATIENZA, and MEMBERS OF THE
SANGGUNIANG BAYAN OF PUERTO GALERA, JUAN ASCAN, JR., RAFAEL ROMEY,
CENON SALCEDO, JERRY DALISAY, SIMON BALITAAN, RENATO CATAQUIS,
MARCELINO BANAAG, DANIEL ENRIQUEZ, AMELYN MARCO, GABRIEL ILAGAN,
MUNICIPAL ENGINEER RODEL RUBIO, and MUNICIPAL PLANNING and DEVELOPMENT
COORDINATOR WILHELMINA LINESES, respondents.
The mooring facility would serve as the temporary docking site of NAPOCOR's power barge,
which, due to turbulent waters at its former mooring site in Calapan, Oriental Mindoro, required
relocation to a safer site like Minolo Cove. The 14.4 megawatts power barge would provide the
main source of power for the entire province of Oriental Mindoro pending the construction of a
land-based power plant in Calapan, Oriental Mindoro. The ECC for the mooring facility was
valid for two years counted from its date of issuance or until 30 June 1999. 4
Petitioners, claiming to be fisherfolks from Minolo, San Isidro, Puerto Galera, 5 sought
reconsideration of the ECC issuance. RED Principe, however, denied petitioners' plea on 15
July 1997. On 21 July 1997, petitioners filed a complaint with the Regional Trial Court of Manila,
Branch 7, for the cancellation of the ECC and for the issuance of a writ of injunction to stop the
construction of the mooring facility. Impleaded as defendants were the following: (1)
NAPOCOR, (2) RED Principe, (3) DENR Region IV Technical Director for Environment Oscar
Dominguez, (4) Oriental Mindoro Electric Cooperative ("ORMECO"), which is engaged in the
distribution of electricity in Oriental Mindoro, and (5) certain officials of Puerto
Galera.6 Petitioners subsequently amended their complaint to include as additional defendants
the elective officials of Oriental Mindoro represented by then Governor Rodolfo G. Valencia.
Petitioners further prayed for the demolition of mooring structures that respondents had already
built.
On 28 July 1997, prior to the filing of the amended complaint, the trial court issued a 20-day
temporary restraining order enjoining the construction of the mooring facility. However, the trial
court lifted the same on 6 August 1997 on NAPOCOR's manifestation that the provincial
government of Oriental Mindoro was the one undertaking the construction of the mooring
facility.7

CARPIO, J.:
The Case
This is a petition for review1 of the Order2 dated 7 November 1997 of the Regional Trial Court
of Manila, Branch 7 ("Manila RTC"), dismissing petitioners' complaint for lack of cause of action
and lack of jurisdiction.
The Facts
On 30 June 1997, Regional Executive Director Antonio G. Principe ("RED Principe") of Region
IV, Department of Environment and Natural Resources ("DENR"), issued an Environmental
Clearance Certificate ("ECC") in favor of respondent National Power Corporation
("NAPOCOR"). The ECC authorized NAPOCOR to construct a temporary mooring facility in
Minolo Cove, Sitio Minolo, Barangay San Isidro, Puerto Galera, Oriental Mindoro. The
Sangguniang Bayan of Puerto Galera has declared Minolo Cove, a mangrove area and
breeding ground for bangus fry, an eco-tourist zone.3
On 28 August 1997, before filing their answers, respondents ORMECO and the provincial
officials of Oriental Mindoro moved to dismiss the complaint. These respondents claimed that
petitioners failed to exhaust administrative remedies, rendering the complaint without cause of
action. They also asserted that the Manila RTC has no jurisdiction to enjoin the construction of
the mooring facility in Oriental Mindoro, which lies outside the Manila RTC's territorial
jurisdiction.
Petitioners opposed the motion on the ground that there was no need to exhaust administrative
remedies. They argued that the issuance of the ECC was in patent violation of Presidential
Decree No. 1605, 8 Sections 26 and 27 of Republic Act No. 7160,9 and the provisions of DENR
Department Administrative Order No. 96-37 ("DAO 96-37") on the documentation of ECC
applications. Petitioners also claimed that the implementation of the ECC was in patent
violation of its terms.
In its order of 7 November 1997, the trial court granted the motion and dismissed petitioners'
complaint.
1
Hence, this petition.
The Ruling of the Trial Court
The trial court's order dismissing the complaint reads in part:
After careful evaluation and analysis, this Court finds the Motion to Dismiss tenable
and meritorious.
Petitioners have clearly failed to exhaust all administrative remedies before taking this
legal action in Court x x x.
It is x x x worth mentioning that the decision of the Regional Director may still be x x x
elevated to the Office of the Secretary of the DENR to fully comply with the process of
exhaustion of administrative remedies. And well settled is the rule in our jurisdiction
that before bringing an action in or resorting to the Courts of Justice, all remedies of
administrative character affecting or determinative of the controversy at that level
should first be exhausted by the aggrieved party (Pestanas vs. Dyogi, L-25786,
February 27, 1978). And petitioners' failure to exhaust administrative remedies renders
his [sic] petition dismissible (Chia vs. Acting Collector of Customs, 177 SCRA 755).
And a dismissal on the ground of failure to exhaust administrative remedies is
tantamount to a dismissal based on lack of cause of action (Baguiro vs. Basa, Jr., 214
SCRA 437; Pineda vs. CFI of Davao, 111 Phil. 643; Sarabia vs. Secretary of
Agriculture & Natural Resources, L-16002, May 23, 1961; Gone, et al. vs. District
Engineer, et. al., L-22782, August 29, 1975; Abe-Abe, et al. vs. Manta, et. al., L-4827,
May 31, 1979) although it does not affect the jurisdiction of the court over the subject
matter (Mun. of La Trinidad, et al. vs. CFI of Baguio-Benguet, et al., L-33889, June 28,
1983).
Moreover, this Court finds the Opposition of the Petitioners highly untenable and bereft
of merits that the controverted act in question is patently illegal and there was an
immediate need for judicial intervention.
The ECC in question was issued by the Regional Office of the DENR which has
jurisdiction and authority over the same . . .. And corollary to this, the issue as to
whether or not the Minolo Cove is within the enclosed coves and waters embraced by
Puerto Galera bay and protected by Medio island is a clear question of fact which the
DENR may appropriately resolve before resorting to [the] Court[s].
This Court is likewise aware and cognizant of its territorial jurisdiction in the
enforcement of Writ of Injunction. That truly, [a] writ of injunction can only be enforced
within [the] territorial jurisdiction of this Court but not for acts which are being or about
to be committed outside its territorial jurisdiction. Thus, in Philippine National Bank vs.
Pineda, 197 SCRA 1, the Honorable Supreme Court ruled: "Regional Trial Courts can
only enforce their writs of injunction within their respective designated territories.
Furthermore, we find the issuance of the preliminary injunction directed against the
Provincial Sheriff of Negros Occidental a jurisdictional paux [sic] pas (from Black
Dictionary means jurisdictional falsity) as the Courts of First Instance now Regional
Trial Court[s], can only enforce their writs of injunction within their respective
designated territories.
And finally, this Court is not unmindful of the relevant and square application in the
case at bar of Presidential Decree No. 1818, Executive Order No. 380 dated November
27, 1989, and Circular No. 2-91 of the Supreme Court that the National Power
Corporation (NPC) is a public utility, created under special legislation, engaged in the
generation and distribution of electric power and energy. The mooring site of NPC in
Puerto Galera, Oriental Mindoro is one of its infrastructure projects falling within the
mantle of Executive Order No. 380, November 27, 1989 x x x.
And as held by the Supreme Court in the case of National Power Corporation vs.
Honorable Abraham P. Vera, et al., 170 SCRA 721, courts are without jurisdiction to
issue injunctive writs against [the] National Power Corporation. The latter enjoys the
protective mantle of P.D. 1818, (Circular No. 2-91).
xxx xxx xxx
Injunction in this case is not a mere ancillary [sic] writ but the main action itself together
with the Annulment of the Environmental Clearance Certificate (ECC). Even assuming
arguendo that the court [can] annul the ECC how can the latter enforce the same
against the Provincial Government of Oriental Mindoro which was impleaded by the
petitioners as a necessary party together with the Oriental Mindoro Electric
Cooperative and the government officials of Puerto Galera, Oriental Mindoro, whose
acts and functions are being performed outside the territorial jurisdiction of this court?
x x x Indisputably, the injunction and annulment of ECC as prayed for in the petition
are inseparable x x x.
The conclusion, therefore, is inescapable that petitioners have failed to exhaust all the
available administrative remedies and this Court has no jurisdiction to issue the
injunctive writ prayed for in the Amended [Complaint].10
The Issue
The issue is whether the trial court erred in dismissing petitioners' complaint for lack of cause
action and lack of jurisdiction.
The Ruling of the Court
The petition has no merit.
Jurisdiction of the Manila RTC over the Case
Jurisdiction over the subject matter of a case is conferred by law. Such jurisdiction is
determined by the allegations in the complaint, irrespective of whether the plaintiff is entitled to
all or some of the reliefs sought.11
A perusal of the allegations in the complaint shows that petitioners' principal cause of action is
the alleged illegality of the issuance of the ECC. The violation of laws on environmental
protection and on local government participation in the implementation of environmentally
critical projects is an issue that involves the validity of NAPOCOR's ECC. If the ECC is void,
then as a necessary consequence, NAPOCOR or the provincial government of Oriental
Mindoro could not construct the mooring facility. The subsidiary issue of non-compliance with
pertinent local ordinances in the construction of the mooring facility becomes immaterial for
purposes of granting petitioners' main prayer, which is the annulment of the ECC. Thus, if the
court has jurisdiction to determine the validity of the issuance of the ECC, then it has jurisdiction
to hear and decide petitioners' complaint.
Petitioners' complaint is one that is not capable of pecuniary estimation. It falls within the
exclusive and original jurisdiction of the Regional Trial Courts under Section 19(1) of Batas
Pambansa Blg. 129, as amended by Republic Act No. 7691. The question of whether
petitioners should file their complaint in the Regional Trial Court of Manila or Oriental Mindoro
then becomes a matter of venue, to be determined by the residence of the parties. 12
Petitioners' main prayer is the annulment of the ECC. The principal respondent, DENR Region
IV, has its main office at the L & S Building, Roxas Boulevard, Manila. Regional Executive
Director Principe of the DENR Region IV, who issued the ECC, holds office there. Plainly, the
principal respondent resides in Manila, which is within the territorial jurisdiction of the Manila
RTC. Thus, petitioners filed their complaint in the proper venue.
On the other hand, the jurisdiction of Regional Trial Courts to issue injunctive writs is limited to
acts committed or about to be committed within their judicial region. 13 Moreover, Presidential
Decree No. 1818 ("PD No. 1818") prohibited14 courts from issuing injunctive writs against
government infrastructure projects like the mooring facility in the present case. Republic Act
No. 8975 ("RA No. 8975"), which took effect on 26 November 2000, superseded PD No. 1818
and delineates more clearly the coverage of the prohibition, reserves the power to issue such
writs exclusively with this Court, and provides penalties for its violation. 15 Obviously, neither the
Manila RTC nor the Oriental Mindoro RTC can issue an injunctive writ to stop the construction
of the mooring facility. Only this Court can do so under PD No. 1818 and later under RA No.
8975. Thus, the question of whether the Manila RTC has jurisdiction over the complaint
considering that its injunctive writ is not enforceable in Oriental Mindoro is academic.
Clearly, the Manila RTC has jurisdiction to determine the validity of the issuance of the ECC,
although it could not issue an injunctive writ against the DENR or NAPOCOR. However, since
the construction of the mooring facility could not proceed without a valid ECC, the validity of
the ECC remains the determinative issue in resolving petitioners' complaint.
Exhaustion of Administrative Remedies
The settled rule is before a party may seek the intervention of the courts, he should first avail
of all the means afforded by administrative processes. Hence, if a remedy within the
administrative machinery is still available, with a procedure prescribed pursuant to law for an
administrative officer to decide the controversy, a party should first exhaust such remedy before
resorting to the courts. The premature invocation of a court's intervention renders the complaint
without cause of action and dismissible on such ground.16
RED Principe of the DENR Region IV Office issued the ECC based on (1) Presidential Decree
No. 1586 ("PD No. 1586") and its implementing rules establishing the Environmental Impact
Statement System, (2) DAO 96-3717 and (3) the Procedural Manual of DAO 96-37. Section
418 of PD No. 1586 requires a proponent of an environmentally critical project, or a project
located within an environmentally critical area as declared by the President, to secure an ECC
prior to the project's operation.19 NAPOCOR thus secured the ECC because the mooring
facility in Minolo Cove, while not an environmentally critical project, is located within an
environmentally critical area under Presidential Proclamation No. 2146, issued on 14
December 1981.20
The rules on administrative appeals from rulings of the DENR Regional Directors on the
implementation of PD No. 1586 are found in Article VI of DAO 96-37, which provides:
SECTION 1.0. Appeal to the Office of the Secretary. — Any party aggrieved by the
final decision of the RED may, within 15 days from receipt of such decision, file an
appeal with the Office of the Secretary. The decision of the Secretary shall be
immediately executory.
SECTION 2.0. Grounds for Appeal. — The grounds for appeal shall be limited to grave
abuse of discretion and serious errors in the findings of fact which would cause grave
or irreparable injury to the aggrieved party. Frivolous appeals shall not be
countenanced.
SECTION 3.0. Who May Appeal. — The proponent or any stakeholder, including but
not limited to, the LGUs concerned and affected communities, may file an appeal.
The DENR Procedural Manual for DAO 96-37 explains these provisions thus:
Final decisions of the RED may be appealed. These decisions include those relating
to the issuance or non-issuance of an ECC, and the imposition of fines and penalties.
3
 By inference, the decision of the Secretary on the issuance or non-issuance of the ECC
may also be appealed based on this provision. Resort to courts prior to availing of this
remedy would make the appellant's action dismissible on the ground of non-exhaustion
of administrative remedies.
The right to appeal must be exercised within 15 days from receipt by the aggrieved
party of such decision. Failure to file such appeal within the requisite period will result
in the finality of the RED's or Secretary's decision(s), which can no longer be disturbed.
An appeal shall not stay the effectivity of the RED's decision, unless the Secretary
directs otherwise.
The right to appeal does not prevent the aggrieved party from first resorting to the filing
of a motion for reconsideration with the RED, to give the RED an opportunity to re-
evaluate his decision. (Emphasis added)
Instead of following the foregoing procedure, petitioners bypassed the DENR Secretary and
immediately filed their complaint with the Manila RTC, depriving the DENR Secretary the
opportunity to review the decision of his subordinate, RED Principe. Under the Procedural
Manual for DAO 96-37 and applicable jurisprudence, petitioners' omission renders their
complaint dismissible for lack of cause of action.21 Consequently, the Manila RTC did not err in
dismissing petitioners' complaint for lack of cause of action.
On the Alleged Patent Illegality of the ECC
Petitioners nevertheless contend that they are exempt from filing an appeal with the DENR
Secretary because the issuance of the ECC was in patent violation of existing laws and
regulations. These are (1) Section 1 of Presidential Decree No. 1605, as amended, (2) Sections
26 and 27 of Republic Act No. 7160 (Local Government Code of 1991), and (3) the provisions
of DAO 96-37 on the documentary requirements for the zoning permit and social acceptability
of the mooring facility.
Petitioners' contention is without merit. While the patent illegality of an act exempts a party from
complying with the rule on exhaustion Of administrative remedies,22 this does not apply in the
present case.
Presidential Decree No. 1605
Presidential Decree No. 1605 ("PD No. 1605"),23 as amended by Presidential Decrees Nos.
1605-A and 1805, declares as ecologically threatened zone "the coves and waters embraced
by Puerto Galera Bay as protected by Medio Island." This decree provides in part:
Section 1. Any provision of law to the contrary notwithstanding, the construction of
marinas, hotels, restaurants, other commercial structures; commercial or semi-
commercial wharfs [sic]; commercial docking within the enclosed coves of Puerto
Galera; the destruction of its mangrove stands; the devastation of its corals and
coastline by large barges, motorboats, tugboat propellers, and any form of destruction
by other human activities are hereby prohibited.
Section 2. x x x
No permit for the construction of any wharf, marina, hotel, restaurants and other
commercial structures in Puerto Galera shall be issued without prior approval of the
Office of the President upon the recommendation of the Philippine Tourism Authority.
(Emphasis supplied)
NAPOCOR claims that since Minolo Cove lies outside of "Puerto Galera Bay as protected by
Medio Island",24 PD No. 1605 does not apply to this case. However, petitioners assert that
Minolo Cove is one of the "enclosed coves of Puerto Galera"25 and thus protected under PD
No. 1605. This is a question of fact that the DENR Secretary should have first resolved. In any
event, there is no dispute that NAPOCOR will use the mooring facility for its power barge that
will supply 14.4 megawatts of electricity to the entire province of Oriental Mindoro, including
Puerto Galera. The mooring facility is obviously a government-owned public infrastructure
intended to serve a basic need of the people of Oriental Mindoro. The mooring facility is not a
"commercial structure; commercial or semi-commercial wharf or commercial docking" as
contemplated in Section 1 of PD No. 1605. Therefore, the issuance of the ECC does not violate
PD No. 1605 which applies only to commercial structures like wharves, marinas, hotels and
restaurants.
Sections 26 and 27 of RA No. 7160
Congress introduced Sections 26 and 27 in the Local Government Code to emphasize the
legislative concern "for the maintenance of a sound ecology and clean environment."26 These
provisions require every national government agency or government-owned and controlled
corporation to hold prior consultations with the local government unit concerned and to secure
the prior approval of its sanggunian before implementing "any project or program that may
cause pollution, climatic change, depletion of non-renewable resources, loss of cropland,
rangeland, or forest cover and extinction of animal or plant species." Sections 26 and 27
respectively provide:
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 authorized 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, non-governmental
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 Section
. . . 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,27 the Court interpreted these provisions in this manner:
Section 27 of the Code should be read in conjunction with Section 26 thereof x x x.
Thus, the projects and programs mentioned in Section 27 should be interpreted to
mean projects and programs whose effects are among those enumerated in Sections
26 and 27, to wit, those that: (1) may cause pollution; (2) may bring about climatic
change; (3) may cause the depletion of non-renewable resources; (4) may result in
loss of crop land, rangeland, or forest cover; (5) may eradicate certain animal or plant
species; and (6) other projects or programs that may call for the eviction of a particular
group of people residing in the locality where these will be implemented.
Again, Sections 26 and 27 do not apply to this case because as petitioners admit,28 the mooring
facility itself is not environmentally critical and hence does not belong to any of the six types of
projects mentioned in the law. There is no statutory requirement for the
concerned sanggunian to approve the construction of the mooring facility. It is another matter
if the operation of the power barge is at issue. As an environmentally critical project that causes
pollution, the operation of the power barge needs the prior approval of the
concerned sanggunian. However, what is before this Court is only the construction of the
mooring facility, not the operation of the power barge. Thus, the issuance of the ECC does not
violate Sections 26 and 27 of RA No. 7160.
Documentary Requirements for ECC Applications
Under DAO 96-37, an ECC applicant for a project located within an environmentally critical
area is required to submit an Initial Environment Examination, which must contain a brief
description of the environmental setting and a documentation of the consultative process
undertaken, when appropriate.29 As part of the description of the environmental setting, the
ECC applicant must submit a certificate of locational clearance or zoning certificate.
Petitioners further contend that NAPOCOR, in applying for the ECC, did not submit to the
DENR Region IV Office the documents proving the holding of consultations and the issuance
of a locational clearance or zoning certificate. Petitioners assert that this omission renders the
issuance of the ECC patently illegal.
The contention is also without merit. While such documents are part of the submissions
required from a project proponent, their mere absence does not render the issuance of the
ECC patently illegal. To justify non-exhaustion of administrative remedies due to the patent
illegality of the ECC, the public officer must have issued the ECC "[without any] semblance of
compliance, or even an attempt to comply, with the pertinent laws; when manifestly, the officer
has acted without jurisdiction or has exceeded his jurisdiction, or has committed a grave abuse
of discretion; or when his act is clearly and obviously devoid of any color of authority." 30
RED Principe, as chief of DENR Region IV, is the officer duly authorized under DAO 96-3731 to
issue ECCs for projects located within environmentally critical areas. RED Principe issued the
ECC on the recommendation of Amelia Supetran, the Director of the Environmental
Management Bureau. Thus, RED Principe acted with full authority pursuant to DENR
regulations. Moreover, the legal presumption is that he acted with the requisite authority.32 This
clothes RED Principe's acts with presumptive validity and negates any claim that his actions
are patently illegal or that he gravely abused his discretion. While petitioners may present proof
to the contrary, they must do so before the proper administrative forum before resorting to
judicial remedies.
On the Alleged Non-Compliance with the Terms of the ECC
Lastly, petitioners claim that they are justified in immediately seeking judicial recourse because
NAPOCOR is guilty of violating the conditions of the ECC, which requires it to secure a separate
ECC for the operation of the power barge. The ECC also mandates NAPOCOR to secure the
usual local government permits, like zoning and building permits, from the municipal
government of Puerto Galera.
The contention is similarly without merit. The fact that NAPOCOR's ECC is subject to
cancellation for non-compliance with its conditions does not justify petitioners' conduct in
ignoring the procedure prescribed in DAO 96-37 on appeals from the decision of the DENR
Executive Director. Petitioners vigorously insist that NAPOCOR should comply with the
requirements of consultation and locational clearance prescribed in DAO 96-37. Ironically,
petitioners themselves refuse to abide with the procedure for filing complaints and appealing
decisions laid down in DAO 96-37.
DAO 96-37 provides for a separate administrative proceeding to address complaints for the
cancellation of an ECC. Under Article IX of DAO 96-37, complaints to nullify an ECC must
undergo an administrative investigation, after which the hearing officer will submit his report to
the EMB Director or the Regional Executive Director, who will then render his decision. The
aggrieved party may file an appeal to the DENR Secretary, who has authority to issue cease
and desist orders. Article IX also classifies the types of violations covered under DAO 96-37,
5
including projects operating without an ECC or violating the conditions of the ECC. This is the (a) The zero release assumption, which was designed for the limited purpose of individual
applicable procedure to address petitioners' complaint on NAPOCOR's alleged violations and licensing decisions and which is but a single figure in Table S-3, is within the bounds of
not the filing of the instant case in court. reasoned decisionmaking required by the APA. The NRC, in its statement announcing the final
Table S-3 rule, summarized the major uncertainties of long-term storage of nuclear wastes,
A Final Word noted that the probability of intrusion was small, and found the evidence "tentative but
favorable" that an appropriate storage site
The Court commends petitioners for their courageous efforts to safeguard and maintain the
ecological balance of Minolo Cove. This Court recognizes the utmost importance of protecting Page 462 U. S. 88
the environment.33 Indeed, we have called for the vigorous prosecution of violators of
environmental laws.34 Legal actions to achieve this end, however, must be done in accordance could be found. Table S-3 refers interested persons to staff studies that discuss the
with established rules of procedure that were intended, in the first place, to achieve orderly and uncertainties in greater detail. In these circumstances, the NRC complied with NEPA's
efficient administration of justice. requirements of consideration and disclosure of the environmental impacts of its licensing
decisions. It is not the task of this Court to determine what decision it would have reached if it
WHEREFORE, we DENY the petition for lack of merit. had been the NRC. The Court's only task is to determine whether the NRC had considered the
relevant factors and articulated a rational connection between the facts found and the choice
made. Under this standard, the zero release assumption, within the context of Table S-3 as a
SO ORDERED.
whole, was not arbitrary or capricious. Pp. 462 U. S. 97-106.
U.S. Supreme Court Baltimore G. & E. Co. v. NRDC, 462 U.S. 87 (1983)
Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc. (b) It is inappropriate to cast doubt on the licensing proceedings simply because of a minor
No. 82-524 Argued April 19, 1983 ambiguity in the language of an earlier rule as to whether licensing boards were required to
Decided June 6, 1983462 U.S. 87 462 U.S. 87 consider health effects, socioeconomic effects, or cumulative impacts, where there is no
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR evidence that this ambiguity prevented any party from making as full a presentation as desired
THE DISTRICT OF COLUMBIA CIRCUIT or ever affected the decision to license a plant. Pp. 462 U.S. 106-108.

Syllabus 222 U.S.App.D.C. 9, 685 F.2d 459, reversed.

Section 102(2)(C) of the National Environmental Policy Act (NEPA) requires federal agencies O'CONNOR, J., delivered the opinion of the Court, in which all other Members joined, except
POWELL, J., who took no part in the consideration or decision of the cases.
to consider the environmental impact of any major federal action. The dispute in these cases
concerns the adoption by the Nuclear Regulatory Commission (NRC) of a series of generic
rules to evaluate the environmental effects of a nuclear powerplant's fuel cycle. In these rules, Page 462 U. S. 89
the NRC decided that licensing boards should assume, for purposes of NEPA, that the
permanent storage of certain nuclear wastes would have no significant environmental impact JUSTICE O'CONNOR delivered the opinion of the Court.
(the so-called "zero release" assumption), and thus should not affect the decision whether to
license a particular nuclear powerplant. At the heart of each rule is Table S-3, a numerical Section 102(2)(C) of the National Environmental Policy Act of 1969, 83 Stat. 853, 42 U.S.C. §
compilation of the estimated resources used and effluents released by fuel cycle activities 4332(2)(C) (NEPA), requires federal agencies to consider the environmental impact of any
supporting a year's operation of a typical light-water reactor. Challenges to the rules ultimately major federal action. [Footnote 1] As part of its generic rulemaking proceedings to evaluate the
resulted in a decision by the Court of Appeals, on a petition for review of the final version of the environmental effects of the nuclear fuel cycle for nuclear powerplants, the Nuclear
rules, that the rules were arbitrary and capricious and inconsistent with NEPA because the
NRC had not factored the consideration of uncertainties surrounding the zero release
Page 462 U. S. 90
assumption into the licensing process in such a manner that the uncertainties could potentially
affect the outcome of any decision to license a plant.
Regulatory Commission (Commission) [Footnote 2] decided that licensing boards should
assume, for purposes of NEPA, that the permanent storage of certain nuclear wastes would
Held: The NRC complied with NEPA, and its decision is not arbitrary or capricious within the
have no significant environmental impact, and thus should not affect the decision whether to
meaning of § 10(e) of the Administrative Procedure Act (APA). Pp. 462 U. S. 97-108.
license a particular nuclear powerplant. We conclude that the Commission complied with
NEPA, and that its decision is not arbitrary or capricious within the meaning of § 10(e) of the
Administrative Procedure Act (APA), 5 U.S.C. § 706. [Footnote 3]
I In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.
The environmental impact of operating a light-water nuclear powerplant [Footnote 4]includes
the effects of off-site activities necessary to provide fuel for the plant ("front end" activities), and
of off-site activities necessary to dispose of the highly toxic and long-lived nuclear wastes
generated by the plant ("back end" activities). The dispute in these cases concerns
Page 462 U. S. 91
the Commission's adoption of a series of generic rules to evaluate the environmental effects of
a nuclear powerplant's fuel cycle. At the heart of each rule is Table S-3, a numerical compilation
of the estimated resources used and effluents released by fuel cycle activities supporting a
year's operation of a typical light-water reactor. [Footnote 5] The three versions of Table S-3
contained similar numerical values, although the supporting documentation has been amplified
during the course of the proceedings.
The Commission first adopted Table S-3 in 1974, after extensive informal rulemaking
proceedings. 39 Fed.Reg. 14188 et seq. (1974). This "original" rule, as it later came to be
described, declared that in environmental reports and impact statements for individual licensing
proceedings the environmental costs of the fuel cycle "shall be as set forth" in Table S-3, and
that "[n]o further discussion of such environmental effects shall be required." Id. at 14191.
[Footnote 6] The original Table S-3 contained no numerical entry for the long-term
Page 462 U. S. 92
environmental effects of storing solidified transuranic and high-level wastes, [Footnote 7]
because the Commission staff believed that technology would be developed to isolate the
wastes from the environment. The Commission and the parties have later termed this
assumption of complete repository integrity as the "zero release" assumption: the
reasonableness of this assumption is at the core of the present controversy.
The Natural Resources Defense Council (NRDC), a respondent in the present cases,
challenged the original rule and a license issued under the rule to the Vermont Yankee Nuclear
Power Corp. The Court of Appeals for the District of Columbia Circuit affirmed Table S-3's
treatment of the "front end" of the fuel cycle, but vacated and remanded the portion of the rule
relating to the "back end" because of perceived inadequacies in the rulemaking
procedures. Natural Resources Defense Council, Inc. v. NRC, 178 U.S.App.D.C. 336, 547
F.2d 633 (1976). Judge Tamm disagreed that the procedures were inadequate, but concurred
on the ground that the record on waste storage was inadequate to support the zero release
assumption. Id. at 361, 547 F.2d at 658.
S. 519 (1978), this Court unanimously reversed the Court of Appeals' decision that the
Commission had used inadequate procedures, finding that the Commission had done all that
was required by NEPA and the APA and determining that courts generally lack the authority to
impose "hybrid" procedures greater than those contemplated by the governing statutes. We
remanded for review of whether the original rule was adequately supported by the
administrative record, specifically
Page 462 U. S. 93
stating that the court was free to agree or disagree with Judge Tamm's conclusion that the rule
pertaining to the "back end" of the fuel cycle was arbitrary and capricious within the meaning
of § 10(e) of the APA, 5 U.S.C. § 706. Id. at 536, n. 14.
While Vermont Yankee was pending in this Court, the Commission proposed a new "interim"
rulemaking proceeding to determine whether to adopt a revised Table S-3. The proposal
explicitly acknowledged that the risks from long-term repository failure were uncertain, but
suggested that research should resolve most of those uncertainties in the near future. 41
Fed.Reg. 45850-45851 (1976). After further proceedings, the Commission promulgated the
interim rule in March 1977. Table S-3 now explicitly stated that solidified high-level and
transuranic wastes would remain buried in a federal repository, and therefore would have no
effect on the environment. 42 Fed.Reg. 13807 (1977). Like its predecessor, the interim rule
stated that "[n]o further discussion of such environmental effects shall be required." Id. at
13806. The NRDC petitioned for review of the interim rule, challenging the zero release
assumption and faulting the Table S-3 rule for failing to consider the health, cumulative, and
socioeconomic effects of the fuel cycle activities. The Court of Appeals stayed proceedings
while awaiting this Court's decision in Vermont Yankee. In April, 1978, the Commission
amended the interim rule to clarify that health effects were not covered by Table S-3 and could
be litigated in individual licensing proceedings. 43 Fed.Reg. 15613 et seq. (1978).
In 1979, following further hearings, the Commission adopted the "final" Table S-3 rule. 44
Fed.Reg. 45362 et seq. (1979). Like the amended interim rule, the final rule expressly stated
that Table S-3 should be supplemented in individual proceedings by evidence about the health,
socioeconomic, and cumulative aspects of fuel cycle activities. The Commission also continued
to adhere to the zero release
Page 462 U. S. 94
7
assumption that the solidified waste would not escape and harm the environment once the
repository was sealed. It acknowledged that this assumption was uncertain because of the
remote possibility that water might enter the repository, dissolve the radioactive materials, and
transport them to the biosphere. Nevertheless, the Commission predicted that a bedded-salt
repository would maintain its integrity, and found the evidence "tentative but favorable" that an
appropriate site would be found. Id. at 45368. The Commission ultimately determined that any
undue optimism in the assumption of appropriate selection and perfect performance of the
repository is offset by the cautious assumption, reflected in other parts of the Table, that all
radioactive gases in the spent fuel would escape during the initial 6- to 20-year period that the
repository remained open, ibid., and thus did not significantly reduce the overall conservatism
of Table S-3. Id. at 45369.
The Commission rejected the option of expressing the uncertainties in Table S-3 or permitting
licensing boards, in performing the NEPA analysis for individual nuclear plants, to consider
those uncertainties. It saw no advantage in reassessing the significance of the uncertainties in
individual licensing proceedings:
"In view of the uncertainties noted regarding waste disposal, the question then arises whether
these uncertainties can or should be reflected explicitly in the fuel cycle rule. The Commission
has concluded that the rule should not be so modified. On the individual reactor licensing level,
where the proceedings deal with fuel cycle issues only peripherally, the Commission sees no
advantage in having licensing boards repeatedly weigh for themselves the effect of
uncertainties on the selection of fuel cycle impacts for use in cost-benefit balancing. This is a
generic question properly dealt with in the rulemaking as part of choosing what impact values
should go into the fuel cycle rule. The Commission concludes, having
Page 462 U. S. 95
noted that uncertainties exist, that, for the limited purpose of the fuel cycle rule, it is reasonable
to base impacts on the assumption which the Commission believes the probabilities
favor, i.e., that bedded-salt repository sites can be found which will provide effective isolation
of radioactive waste from the biosphere."
Id. at 45369.
The NRDC and respondent State of New York petitioned for review of the final rule. The Court
of Appeals consolidated these petitions for all purposes with the pending challenges to the
initial and interim rules. [Footnote 8] By a divided panel, [Footnote 9] the court concluded that
the Table S-3 rules were arbitrary and capricious and inconsistent with NEPA because the
Commission had not factored the consideration of uncertainties surrounding the zero release
assumption into the licensing process in such a manner that the uncertainties could potentially
affect the outcome of any decision to license a particular plant. Natural Resources Defense
Council, Inc. v. NRC, 222 U.S.App.D.C. 9, 685 F.2d 459 (1982). The court first reasoned that
NEPA requires an agency to consider all significant environmental risks from its proposed
action. If the zero release assumption is taken as a finding that long-term storage poses no
significant environmental
Page 462 U. S. 96
risk, which the court acknowledged may not have been the Commission's intent, it found that
the assumption represents a self-evident error in judgment, and is thus arbitrary and capricious.
As the evidence in the record reveals and the Commission itself acknowledged, the zero
release assumption is surrounded with uncertainty.
Alternatively, reasoned the Court of Appeals, the zero release assumption could be
characterized as a decisionmaking device whereby the Commission, rather than individual
licensing boards, would have sole responsibility for considering the risk that long-lived wastes
will not be disposed of with complete success. The court recognized that the Commission could
use generic rulemaking to evaluate environmental costs common to all licensing decisions.
Indeed, the Commission could use generic rulemaking to balance generic costs and benefits
to produce a generic "net value." These generic evaluations could then be considered together
with case-specific costs and benefits in individual proceedings. The key requirement of NEPA,
however, is that the agency consider and disclose the actual environmental effects in a manner
that will ensure that the overall process, including both the generic rulemaking and the
individual proceedings, brings those effects to bear on decisions to take particular actions that
significantly affect the environment. The Court of Appeals concluded that the zero release
assumption was not in accordance with this NEPA requirement, because the assumption
prevented the uncertainties -- which were not found to be insignificant or outweighed by other
generic benefits -- from affecting any individual licensing decision. Alternatively, by requiring
that the licensing decision ignore factors that are relevant under NEPA, the zero release
assumption is a clear error in judgment, and thus arbitrary and capricious.
We granted certiorari. 459 U.S. 1034 (1982). We reverse.
Page 462 U. S. 97
II
We are acutely aware that the extent to which this Nation should rely on nuclear power as a
source of energy is an important and sensitive issue. Much of the debate focuses on whether
development of nuclear generation facilities should proceed in the face of uncertainties about
their long-term effects on the environment. Resolution of these fundamental policy questions
lies, however, with Congress and the agencies to which Congress has delegated authority, as
well as with state legislatures and, ultimately, the populace as a whole. Congress has assigned
the courts only the limited, albeit important, task of reviewing agency action to determine
whether the agency conformed with controlling statutes. As we emphasized in our earlier
encounter with these very proceedings,
"[a]dministrative decisions should be set aside in this context, as in every other, only for
substantial procedural or substantive reasons as mandated by statute . . . , not simply because
the court is unhappy with the result reached."
Vermont Yankee, 435 U.S. at 435 U. S. 558.
The controlling statute at issue here is NEPA. NEPA has twin aims. First, it "places upon an
agency the obligation to consider every significant aspect of the environmental impact of a
proposed action." Vermont Yankee, supra, at 435 U. S. 553. Second, it ensures that the
agency will inform the public that it has indeed considered environmental concerns in its
decisionmaking process. Weinberger v. Catholic Action of Hawaii/Peace Education
Project, 454 U. S. 139, 454 U. S. 143 (1981). Congress in enacting NEPA, however, did not
require agencies to elevate environmental concerns over other appropriate
considerations. See Stryckers' Bay Neighborhood Council v. Karlen, 444 U. S. 223, 444 U. S.
227 (1980) (per curiam). Rather, it required only that the agency take a "hard look" at the
environmental consequences before taking a major action. See Kleppe v. Sierra Club, 427 U.
S. 390, 427 U. S. 410, n. 21 (1976). The role of the courts is simply to ensure that the
Page 462 U. S. 98
agency has adequately considered and disclosed the environmental impact of its actions, and
that its decision is not arbitrary or capricious. See generally Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U. S. 402, 401 U. S. 415-417 (1971).
In its Table S-3 rule here, the Commission has determined that the probabilities favor the zero
release assumption, because the Nation is likely to develop methods to store the wastes with
no leakage to the environment. The NRDC did not challenge, and the Court of Appeals did not
decide, the reasonableness of this determination, 222 U.S.App.D.C. at 28, n. 96, 685 F.2d at
478, n. 96, and no party seriously challenges it here. The Commission recognized, however,
that the geological, chemical, physical, and other data it relied on in making this prediction were
based, in part, on assumptions which involve substantial uncertainties. Again, no one suggests
that the uncertainties are trivial or the potential effects insignificant if time proves the zero
release assumption to have been seriously wrong. After confronting the issue, though, the
Commission has determined that the uncertainties concerning the development of nuclear
waste storage facilities are not sufficient to affect the outcome of any individual licensing
decision. [Footnote 10]
It is clear that the Commission, in making this determination, has made the careful
consideration and disclosure required by NEPA. The sheer volume of proceedings before the
Commission is impressive. [Footnote 11] Of far greater importance,
Page 462 U. S. 99
the Commission's Statement of Consideration announcing the final Table S-3 rule shows that
it has digested this mass of material and disclosed all substantial risks. 44 Fed.Reg. 45367-
45369 (1979). The Statement summarizes the major uncertainty of long-term storage in
bedded-salt repositories, which is that water could infiltrate the repository as a result of such
diverse factors as geologic faulting, a meteor strike, or accidental or deliberate intrusion by
man. The Commission noted that the probability of intrusion was small, and that the plasticity
of salt would tend to heal some types of intrusions. The Commission also found the evidence
"tentative but favorable" that an appropriate site could be found. Table S-3 refers interested
persons to staff studies that discuss the uncertainties in greater detail. [Footnote 12] Given this
record
Page 462 U. S. 100
and the Commission's statement, it simply cannot be said that the Commission ignored or failed
to disclose the uncertainties surrounding its zero release assumption.
Congress did not enact NEPA, of course, so that an agency would contemplate the
environmental impact of an action as an abstract exercise. Rather, Congress intended that the
"hard look" be incorporated as part of the agency's process of deciding whether to pursue a
particular federal action. It was on this ground that the Court of Appeals faulted the
Commission's action, for failing to allow the uncertainties potentially to "tip the balance" in a
particular licensing decision. As a general proposition, we can agree with the Court of Appeals'
determination that an agency must allow all significant environmental risks to be factored into
the decision whether to undertake a proposed action. We think, however, that the Court of
Appeals erred in concluding that the Commission had not complied with this standard.
As Vermont Yankee made clear, NEPA does not require agencies to adopt any particular
internal decisionmaking structure. Here, the agency has chosen to evaluate generically
Page 462 U. S. 101
the environmental impact of the fuel cycle and inform individual licensing boards, through the
Table S-3 rule, of its evaluation. The generic method chosen by the agency is clearly an
appropriate method of conducting the "hard look" required by NEPA. See Vermont
Yankee, 435 U.S. at 435 U. S. 535, n. 13. The environmental effects of much of the fuel cycle
are not plant-specific, for any plant, regardless of its particular attributes, will create additional
wastes that must be stored in a common long-term repository. Administrative efficiency and
consistency of decision are both furthered by a generic determination of these effects without
needless repetition of the litigation in individual proceedings, which are subject to review by the
Commission in any event. See generally Ecology Action v. AEC, 492 F.2d 998, 1002, n. 5
(CA2 1974) (Friendly, J.) (quoting Administrative Conference Proposed Recommendation 73-
6).
9
The Court of Appeals recognized that the Commission has discretion to evaluate generically
the environmental effects of the fuel cycle and require that these values be "plugged into"
individual licensing decisions. The court concluded that the Commission nevertheless violated
NEPA by failing to factor the uncertainty surrounding long-term storage into Table S-3 and
precluding individual licensing decisionmakers from considering it.
The Commission's decision to affix a zero value to the environmental impact of long-term
storage would violate NEPA, however, only if the Commission acted arbitrarily and capriciously
in deciding generically that the uncertainty was insufficient to affect any individual licensing
decision. In assessing whether the Commission's decision is arbitrary and capricious, it is
crucial to place the zero release assumption in context. Three factors are particularly important.
First is the Commission's repeated emphasis that the zero release assumption -- and, indeed,
all of the Table S-3 rule -- was made for a limited purpose. The Commission expressly noted
its intention to supplement the rule with an explanatory narrative. [Footnote 13]
Page 462 U. S. 102
It also emphasized that the purpose of the rule was not to evaluate or select the most effective
long-term waste disposal technology or develop site selection criteria. A separate an
comprehensive series of programs has been undertaken to serve these broader purposes.
[Footnote 14] In the proceedings before us, the Commission's staff did not attempt to evaluate
the environmental effects of all possible methods of disposing of waste. Rather, it chose to
analyze intensively the most probable long-term waste disposal method -- burial in a bedded-
salt repository several hundred meters below ground -- and then "estimate its impacts
conservatively, based on the best available information and analysis." 44 Fed.Reg. 45363
(1979). [Footnote 15] The zero release assumption cannot be evaluated in isolation. Rather, it
must be assessed in relation to the limited purpose for which the Commission made the
assumption.
Second, the Commission emphasized that the zero release assumption is but a single figure
in an entire Table, which the
Page 462 U. S. 103
Commission expressly designed as a risk-averse estimate of the environmental impact of the
fuel cycle. It noted that Table S-3 assumed that the fuel storage canisters and the fuel rod
cladding would be corroded before a repository is closed, and that all volatile materials in the
fuel would escape to the environment. [Footnote 16] Given that assumption, and the
improbability that materials would escape after sealing, the Commission determined that the
overall Table represented a conservative (i.e., inflated) statement of environmental impacts. It
is not unreasonable for the Commission to counteract the uncertainties in post-sealing releases
by balancing them with an overestimate of pre-sealing releases. [Footnote 17] A reviewing
court should not magnify a single line item beyond its significance as only part of a larger Table.
Third, a reviewing court must remember that the Commission is making predictions, within its
area of special expertise, at the frontiers of science. When examining this kind of scientific
determination, as opposed to simple findings of fact, a reviewing court must generally be at its
most deferential. See, e.g., Industrial Union Dept. v. American Petroleum Institute, 448 U. S.
607, 448 U. S. 656 (1980) (plurality opinion); id.at 448 U. S. 705-706 (MARSHALL, J.,
dissenting).
Page 462 U. S. 104
With these three guides in mind, we find the Commission's zero release assumption to be within
the bounds of reasoned decisionmaking required by the APA. We have already noted that the
Commission's Statement of Consideration detailed several areas of uncertainty, and discussed
why they were insubstantial for purposes of an individual licensing decision. The Table S-3 rule
also refers to the staff reports, public documents that contain a more expanded discussion of
the uncertainties involved in concluding that long-term storage will have no environmental
effects. These staff reports recognize that rigorous verification of long-term risks for waste
repositories is not possible, but suggest that data and extrapolation of past experience allow
the Commission to identify events that could produce repository failure, estimate the probability
of those events, and calculate the resulting consequences. NUREG-0116 at 4-86. [Footnote
18] The Commission staff also modeled the consequences of repository failure by tracing the
flow of contaminated water, and found them to be insignificant. Id. at 4-89 through 4-94.
Ultimately, the staff concluded that
"[t]he radiotoxic hazard index analyses and the modeling studies that have been done indicate
that consequences of all but the most improbable events will be small.
Page 462 U. S. 105
Risks (probabilities times consequences) inherent in the long-term for geological disposal will
therefore also be small."
Id. at 2-11.
We also find significant the separate views of Commissioners Bradford and Gilinsky. These
Commissioners expressed dissatisfaction with the zero release assumption, and yet
emphasized the limited purpose of the assumption and the overall conservatism of Table S-3.
Commissioner Bradford characterized the bedded-salt repository as a responsible working
assumption for NEPA purposes, and concurred in the zero release figure because it does not
appear to affect Table S-3's overall conservatism. 44 Fed.Reg. 45372 (1979). Commissioner
Gilinsky was more critical of the entire Table, stating that the Commission should confront
directly whether it should license any nuclear reactors in light of the problems of waste disposal,
rather than hide an affirmative conclusion to this issue behind a table of numbers. He
emphasized that the "waste confidence proceeding," see n 14, supra, should provide the
Commission an appropriate vehicle for a thorough evaluation of the problems involved in the
Government's commitment to a waste disposal solution. For the limited purpose of individual
licensing proceedings, however, Commissioner Gilinsky found it "virtually inconceivable" that
the Table should affect the decision whether to license, and characterized as "naive" the notion
that the fuel cycle effluents could tip the balance in some cases and not in others. 44 Fed.Reg.
45374 (1979).
In sum, we think that the zero release assumption -- a policy judgment concerning one line in
a conservative Table designed for the limited purpose of individual licensing decisions -- is
within the bounds of reasoned decisionmaking. It is not our task to determine what decision
we, as Commissioners, would have reached. Our only task is to determine whether the
Commission has considered the relevant factors and articulated a rational connection between
the facts found and the choice made. Bowman Transportation, Inc. v.
Page 462 U. S. 106
Arkansas-Best Freight System, Inc., 419 U. S. 281, 419 U. S. 285-286 (1974); Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402 (1971). Under this standard, we think the
Commission's zero release assumption, within the context of Table S-3 as a whole, was not
arbitrary and capricious.
III
As we have noted, n 5, supra, Table S-3 describes effluents and other impacts in technical
terms. The Table does not convert that description into tangible effects on human health or
other environmental variables. The original and interim rules declared that
"the contribution of the environmental effects of . . . fuel cycle activities . . . shall be as set forth
in the following Table S-3 [and] [n]o further discussion of such environmental effects shall be
required."
39 Fed.Reg. 14191 (1974); 42 Fed.Reg. 13806 (1977). Since the Table does not specifically
mention health effects, socioeconomic impacts, or cumulative impacts, this declaration does
not clearly require or preclude their discussion. The Commission later amended the interim rule
to clarify that health effects were not covered by Table S-3 and could be litigated in individual
licensing proceedings. In the final rule, the Commission expressly required licensing boards to
consider the socioeconomic and cumulative effects in addition to the health effects of the
releases projected in the Table. 44 Fed.Reg. 45371 (1979). [Footnote 19]
The Court of Appeals held that the original and interim rules violated NEPA by precluding
licensing boards from considering the health, socioeconomic, and cumulative effects of the
environmental impacts stated in technical terms. As does the Commission, we agree with the
Court of Appeals that NEPA requires an EIS to disclose the significant health, socioeconomic,
and cumulative consequences of the environmental
Page 462 U. S. 107
impact of a proposed action. See Metropolitan Edison Co. v. People Against Nuclear
Energy, 460 U. S. 766(1983); Kleppe v. Sierra Club, 427 U.S. at 427 U. S. 410; 40 CFR §§
1508.7, 1508.8 (1982). We find no basis, however, for the Court of Appeals' conclusion that
the Commission ever precluded a licensing board from considering these effects.
It is true, as the Commission pointed out in explaining why it modified the language in the earlier
rules, that the original Table S-3 rule "at least initially was apparently interpreted as cutting off"
discussion of the effects of effluent releases. 44 Fed.Reg. 45364 (1979). But even the notice
accompanying the earlier versions stated that the Table was "to be used as a basis
for evaluating the environmental effects in a cost-benefit analysis for a reactor," 39 Fed.Reg.
14190 (1974) (emphasis added), suggesting that individual licensing boards were to assess
the consequences of effluent releases. And when, operating under the initial rule, the Atomic
Safety and Licensing Appeal Board suggested the desirability of discussing health effects for
comparing nuclear with coal plants, In re Tennessee Valley Authority (Hartsville Nuclear Plant
Units), 5 N.R.C. 92, 103, n. 52 (1977), the Commission staff was allowed to introduce evidence
of public health consequences. Cf. In re Public Service Company of Indiana (Marble Hill
Nuclear Generating Station), 7 N.R.C. 179, 187 (1978).
Respondents have pointed to no case where evidence concerning health or other
consequences of the data in Table S-3 was excluded from licensing proceedings. We think our
admonition in Vermont Yankee applies with equal force here:
"[W]hile it is true that NEPA places upon an agency the obligation to consider every significant
aspect of the environmental impact of a proposed action, it is still incumbent upon intervenors
who wish to participate to structure their participation so that it is meaningful, so that it alerts
the agency to the intervenors' position and contentions."
435 U.S. at 435 U. S. 553.
Page 462 U. S. 108
In short, we find it totally inappropriate to cast doubt on licensing proceedings simply because
of a minor ambiguity in the language of the earlier rule under which the environmental impact
statement was made, when there is no evidence that this ambiguity prevented any party from
making as full a presentation as desired, or ever affected the decision to license the plant.
IV
For the foregoing reasons, the judgment of the Court of Appeals for the District of Columbia
Circuit is
11
Reversed. [Footnote 2]

JUSTICE POWELL took no part in the consideration or decision of these cases. The original Table S-3 rule was promulgated by the Atomic Energy Commission (AEC).
Congress abolished the AEC in the Energy Reorganization Act of 1974, 42 U.S.C. § 5801 et
Page 462 U. S. 109 seq., and transferred its licensing and regulatory functions to the Nuclear Regulatory
Commission (NRC). The interim and final rules were promulgated by the NRC. This opinion
APPENDIX TO THE OPINION OF THE COURT will use the term "Commission" to refer to both the NRC and the predecessor AEC.

Table S-3 -- Table of Uranium Fuel Cycle Environmental Data[1] [Footnote 3]

[Normalized to model LWR annuel fuel requirement [WASH-1248] Title 5 U.S.C. § 706 states in part:

or reference reactor year [NUREG-0116]] "The reviewing court shall -- "

[Table omitted] "(2) hold unlawful and set aside agency action, findings, and conclusions found to be -- "

* Together with No. 82-545, United States Nuclear Regulatory Commission et al. v. Natural "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
Resources Defense Council, Inc., et al.; and No. 82-551, Commonwealth Edison Co. et al. v.
Natural Resources Defense Council, Inc., et al., also on certiorari to the same court. [Footnote 4]

[Footnote 1] A light-water nuclear powerplant is one that uses ordinary water (H^20), as opposed to heavy
water (D^20), to remove the heat generated in the nuclear core. See Van Nostrand's Scientific
Encyclopedia 1998, 2008 (D. Considine & G. Considine eds., 6th ed.1983). The bulk of the
Section 102(2)(C) provides:
reactors in the United States are light-water nuclear reactors. NRC Ann. Rep. Appendix 6
(1980).
"The Congress authorizes and directs that, to the fullest extent possible . . . (2) all agencies of
the Federal Government shall -- "
[Footnote 5]
****
For example, the tabulated impacts include the acres of land committed to fuel cycle activities,
the amount of water discharged by such activities, fossil fuel consumption, and chemical and
"(c) include in every recommendation or report on proposals for legislation and other major radiological effluents (measured in curies), all normalized to the annual fuel requirement for a
Federal actions significantly affecting the quality of the human environment, a detailed model 1,000 megawatt light-water reactor. See Table S-3, reprinted in the
statement by the responsible official on -- " Appendix, infra [omitted].

"(i) the environmental impact of the proposed action," [Footnote 6]

"(ii) any adverse environmental effects which cannot be avoided should the proposal be Under the Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U.S.C. § 2011 et seq., a
implemented, [and]" utility seeking to construct and operate a nuclear powerplant must obtain a separate permit or
license at both the construction and the operation stage of the project. After the Commission's
**** staff has examined the application for a construction license, which includes a review of
possible environmental effects as required by NEPA, a three-member Atomic Safety and
"(v) any irreversible and irretrievable commitments of resources which would be involved in the Licensing Board conducts a public adjudicatory hearing and reaches a decision which can be
proposed action should it be implemented." appealed to the Atomic Safety and Licensing Appeal Board and, in the Commission's
discretion, to the Commission itself. The final agency decision may be appealed to the courts
of appeals. A similar procedure occurs when the utility applies for an operating license, except
that a hearing need be held only in contested cases. See Vermont Yankee Nuclear Power
Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 435 U. S. 526-527 (1978).
[Footnote 7]
High-level wastes, which are highly radioactive, are produced in liquid form when spent fuel is
reprocessed. Transuranic wastes, which are also highly toxic, are nuclides heavier than
uranium that are produced in the reactor fuel. See Natural Resources Defense Council, Inc. v.
NRC, 222 U.S.App.D.C. 9, 16, n. 11, 685 F.2d 459, 466, n. 11 (1982).
[Footnote 8]
In Vermont Yankee, we indicated that the Court of Appeals could consider any additions made
to the record by the Commission, and could consolidate review of the initial review with review
of later rules. 435 U.S. at 435 U. S. 537, n. 14. Consistent with this direction, the parties
stipulated that all three versions of the rule could be reviewed on the basis of the whole
record. See 222 U.S.App.D.C. at 21, n. 39, 685 F.2d at 471, n. 39.
[Footnote 9]
Judge Bazelon wrote the opinion for the court. Judge Wilkey joined the section of the opinion
that rejected New York's argument that the waste disposal technology assumed for calculation
of certain effluent release values was economically infeasible. That issue is not before us.
Judge Wilkey filed a dissenting opinion on the issues that are under review here. Judge
Edwards of the Court of Appeals for the Sixth Circuit, sitting by designation, joined these
sections of Judge Bazelon's opinion, and also filed a separate opinion concurring in part and
dissenting on the economic infeasibility issue.
[Footnote 10]
As the Court of Appeals recognized, 222 U.S.App.D.C. at 31, n. 118, 685 F.2d at 481, n. 118,
the Commission became increasingly candid in acknowledging the uncertainties underlying
permanent waste disposal. Because all three versions of Table S-3 use the same zero release
assumption, and the parties stipulated that the entire record be used in reviewing all three
versions, see n 8, supra, we need review only the propriety of the final Table S-3 rule. We
leave for another day any general concern with an agency whose initial Environmental Impact
Statement (EIS) is insufficient but who later adequately supplements its consideration and
disclosure of the environmental impact of its action.
[Footnote 11]
The record includes more than 1,100 pages of prepared direct testimony, two rounds of
questions by participants and several hundred pages of responses, 1,200 pages of oral
hearings, participants' rebuttal testimony, concluding statements, the 137-page report of the
hearing board, further written statements from participants, and oral argument before the
Commission. The Commission staff has prepared three studies of the environmental effects of
the fuel cycle: Environmental Survey of the Uranium Fuel Cycle, WASH-1248 (Apr.1974);
Environmental Survey of the Reprocessing and Waste Management Portions of the LWR Fuel
Cycle, NUREG-0116 (Supp. I to WASH-1248) (Oct.1976) (hereinafter cited as NUREG-0116);
and Public Comments and Task Force Responses Regarding the Environmental Survey of the
Reprocessing and Waste Management Portions of the LWR Fuel Cycle, NUREG-0216 (Supp.
2 to WASH-1248) (Mar.1977).
[Footnote 12]
We are reviewing here only the Table S-3 rulemaking proceedings, and do not have before us
an individual EIS that incorporates Table S-3. It is clear that the Statement of Consideration
supporting the Table S-3 rule adequately discloses the environmental uncertainties considered
by the Commission. However, Table S-3 itself refers to other documents, but gives only brief
descriptions of the environmental effects it encapsulates. There is some concern with an EIS
that relies too heavily on separate documents, rather than addressing the concerns directly.
Although we do not decide whether they have binding effect on an independent agency such
as the Commission, it is worth noting that the guidelines from the Council on Environmental
Quality in effect during these proceedings required that
"care should be taken to ensure that the statement remains an essentially self-contained
instrument, capable of being understood by the reader without the need for undue cross
reference."
38 Fed.Reg. 20554 (1973), 40 CFR § 1500.8(b) (1974). The present regulations state that
incorporation by reference is permissible if it will not "imped[e] agency and public review of the
action. The incorporated material shall be cited in the statement and its content briefly
described." 40 CFR § 1502.21 (1982). The Court of Appeals noted that NEPA "requires an
agency to do more than to scatter its evaluation of environmental damage among various public
documents," 222 U.S.App.D.C. at 34, 685 F.2d at 484, but declined to find that the incorporation
of other documents by reference would invalidate an EIS that used Table S-3 to describe the
environmental impact of the fuel cycle. The parties here do not treat this insufficient disclosure
argument as a separate argument and, like the Court of Appeals, we decline to strike down the
rule on this ground. We do not deny the value of an EIS that can be understood without
extensive cross-reference. The staff documents referred to in Table S-3 are public documents,
however, and we note that the Commission has proposed an explanatory narrative to
accompany Table S-3, which would be included in an individual EIS, that may alleviate some
of the concerns of incorporation. See n 13, infra.
13
[Footnote 13]
In March 1981, the Commission submitted a version of the explanatory narrative for public
comment as a proposed amendment to the final fuel cycle rule. 46 Fed.Reg. 15154 (1981).
The Commission has not yet adopted a final narrative.
[Footnote 14]
In response to Minnesota v. NRC, 195 U.S.App.D.C. 234, 602 F.2d 412 (1979), the
Commission has initiated a "waste confidence" proceeding to consider the most recent
evidence regarding the likelihood that nuclear waste can be safely disposed of and when that,
or some other off-site storage solution, can be accomplished. 44 Fed.Reg. 61372 et
seq. (1979). See id. at 45363. The recently enacted Nuclear Waste Policy Act of 1982, Pub.L.
97-425, 96 Stat. 2201, 42 U.S.C. § 10101 et seq. (1982 ed.), has set up a schedule for
identifying site locations and a funding mechanism for development of permanent waste
repositories. The Environmental Protection Agency has also proposed standards for future
waste repositories, 47 Fed.Reg. 58196 et seq. (1982).
[Footnote 15]
For example, Table S-3 assumes that plutonium will not be recycled. The Commission noted
that, in response to a Presidential directive, it had terminated separate proceedings concerning
the possibility of recycling plutonium in mixed oxide fuel. 44 Fed.Reg. 45369, n. 28 (1979). See
In re Mixed Oxide Fuel, 6 N.R.C. 861 (1977); In re Mixed Oxide Fuel, 7 N.R.C. 711 (1978).
[Footnote 16]
The Commission also increased the overall conservatism of the Table by overestimating the
amount of fuel consumed by a reactor, underestimating the amount of electricity produced, and
then underestimating the efficiency of filters and other protective devices. See Conclusions
and Recommendations of the Hearing Board Regarding the Environmental Effects of the
Uranium Fuel Cycle, Docket No. Rm 50-3, App. to Pet. for Cert. in No. 82-524, pp. 282a-293a.
Additionally, Table S-3, which analyzes both a uranium-recycle and no-recycle system,
conservatively lists, for each effluent, the highest of the two releases that would be expected
under each cycle. 41 Fed.Reg. 45849, 45850 (1976).
[Footnote 17]
The Court of Appeals recognized that the Commission could weigh certain generic costs and
benefits of reactors against each other to produce a generic "net value" to be used in individual
licensing proceedings. 222 U.S.App.D.C. at 32, 685 F.2d at 482. We see no reason why the
Commission does not have equal discretion to evaluate certain environmental costs together
to produce a generic net cost.
[Footnote 18]
For example, using this approach, the staff estimated that a meteor the size necessary to
damage a repository would hit a given square kilometer of the earth's surface only once every
50 trillion years, and that geologic faulting through the Delaware Basin in southeast New
Mexico (assuming that were the site of the repository) would occur once in 25 billion years.
NUREG-0116 at 4-87. The staff determined that a surface burst of a 50 megaton nuclear
weapon, far larger than any currently deployed, would not breach the repository. Ibid. The staff
also recognized the possibility that heat generated by the waste would damage the repository,
but suggested this problem could be alleviated by decreasing the density of the stored waste.
In recognition that this suggestion would increase the size of the repository, the Commission
amended Table S-3 to reflect the greater acreage required under these assumptions. See 44
Fed.Reg. 45369 (1979).
[Footnote 19]
Of course, just as the Commission has discretion to evaluate generically aspects of the
environmental impact of the fuel cycle, it has discretion to have other aspects of the issue
decided in individual licensing decisions.
Calvert Cliffs' Coordinating Committee, Inc., et al., Petitioners, v. United States Atomic Energy
Commission and United States of America, Respondents,baltimore Gas and Electric Company,
Intervenor.calvert Cliffs' Coordinating Committee, Inc., et al., Petitioners, v. United States
Atomic Energy Commission and United States of America, Respondents, 449 F.2d 1109 (D.C.
Cir. 1971)
U.S. Court of Appeals for the District of Columbia Circuit - 449 F.2d 1109 (D.C. Cir. 1971)
Argued April 16, 1971 Decided July 23, 1971
COPYRIGHT MATERIAL OMITTED Mr. Anthony Z. Roisman, Washington, D. C., with whom
Messrs. Myron M. Cherry, Chicago, Ill., and Lewis Drain, Grand Rapids, Mich., were on the
brief, for petitioners.
Mr. Marcus A. Rowden, Solicitor, Atomic Energy Commission, with whom Messrs. Howard K.
Shapar, Asst. Gen. Counsel, Licensing and Regulation, Atomic Energy Commission, and
Edmund Clark, Atty., Department of Justice, were on the brief, for respondents. Mr. William C.
Parler, Atty., Atomic Energy Commission, also entered an appearance for respondent Atomic
Energy Commission.
Mr. George F. Trowbridge, Washington, D. C., with whom Mr. Jay E. Silberg, Washington, D.
C., was on the brief, for intervenor in No. 24,839.
Messrs. George D. Gibson and Arnold H. Quint, Washington, D. C., filed a brief on behalf of
Duke Power Company et al. as amici curiae in No. 24,871.
Mr. Roy B. Snapp, Washington, D. C., filed a brief on behalf of Arkansas Power and Light
Company as amicus curiae in No. 24,871.
Messrs. Arvin E. Upton, Leonard M. Trosten and Henry V. Nickel, Washington, D. C., filed a
brief on behalf of Consolidated Edison Company as amicus curiae in No. 24,871.
Mr. Jerome E. Sharfman, Washington, D. C., filed a brief on behalf of Consumers Power
Company as amicus curiae in No. 24,871.
Messrs. H. Edward Dunkelberger, Jr., Christopher M. Little and Peter M. Phillipes, Washington,
D. C., filed a brief on behalf of Indiana and Michigan Electric Company and Portland General
Electric Company as amici curiae in No. 24,871.
Before WRIGHT, TAMM and ROBINSON, Circuit Judges.
These cases are only the beginning of what promises to become a flood of new litigation —
litigation seeking judicial assistance in protecting our natural environment. Several recently
enacted statutes attest to the commitment of the Government to control, at long last, the
destructive engine of material "progress."1 But it remains to be seen whether the promise of
this legislation will become a reality. Therein lies the judicial role. In these cases, we must for
the first time interpret the broadest and perhaps most important of the recent statutes: the
National Environmental Policy Act of 1969 (NEPA).2 We must assess claims that one of the
agencies charged with its administration has failed to live up to the congressional mandate.
Our duty, in short, is to see that important legislative purposes, heralded in the halls of
Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy.
NEPA, like so much other reform legislation of the last 40 years, is cast in terms of a general
mandate and broad delegation of authority to new and old administrative agencies. It takes the
major step of requiring all federal agencies to consider values of environmental preservation in
their spheres of activity, and it prescribes certain procedural measures to ensure that those
values are in fact fully respected. Petitioners argue that rules recently adopted by the Atomic
Energy Commission to govern consideration of environmental matters fail to satisfy the rigor
demanded by NEPA. The Commission, on the other hand, contends that the vagueness of the
NEPA mandate and delegation leaves much room for discretion and that the rules challenged
by petitioners fall well within the broad scope of the Act. We find the policies embodied in NEPA
to be a good deal clearer and more demanding than does the Commission. We conclude that
the Commission's procedural rules do not comply with the congressional policy. Hence we
remand these cases for further rule making.
* We begin our analysis with an examination of NEPA's structure and approach and of the
Atomic Energy Commission rules which are said to conflict with the requirements of the Act.
The relevant portion of NEPA is Title I, consisting of five sections. 3 Section 101 sets forth the
Act's basic substantive policy: that the federal government "use all practicable means and
measures" to protect environmental values. Congress did not establish environmental
protection as an exclusive goal; rather, it desired a reordering of priorities, so that
environmental costs and benefits will assume their proper place along with other
considerations. In Section 101(b), imposing an explicit duty on federal officials, the Act provides
that "it is the continuing responsibility of the Federal Government to use all practicable means,
consistent with other essential considerations of national policy," to avoid environmental
degradation, preserve "historic, cultural, and natural" resources, and promote "the widest range
of beneficial uses of the environment without * * * undesirable and unintended consequences."
Thus the general substantive policy of the Act is a flexible one. It leaves room for a responsible
exercise of discretion and may not require particular substantive results in particular
problematic instances. However, the Act also contains very important "procedural" provisions
— provisions which are designed to see that all federal agencies do in fact exercise the
substantive discretion given them. These provisions are not highly flexible. Indeed, they
establish a strict standard of compliance.
NEPA, first of all, makes environmental protection a part of the mandate of every federal agency
and department. The Atomic Energy Commission, for example, had continually asserted, prior
to NEPA, that it had no statutory authority to concern itself with the adverse environmental
effects of its actions.4 Now, however, its hands are no longer tied. It is not only permitted, but
compelled, to take environmental values into account. Perhaps the greatest importance of
NEPA is to require the Atomic Energy Commission and other agencies
to consider environmental issues just as they consider other matters within their mandates.
This compulsion is most plainly stated in Section 102. There, "Congress authorizes and directs
that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United
States shall be interpreted and administered in accordance with the policies set forth in this Act
* * *." Congress also "authorizes and directs" that "(2) all agencies of the Federal Government
shall" follow certain rigorous procedures in considering environmental values.5 Senator
Jackson, NEPA's principal sponsor, stated that " [n]o agency will [now] be able to maintain that
it has no mandate or no requirement to consider the environmental consequences of its
actions."6 He characterized the requirements of Section 102 as "action-forcing" and stated that
" [o]therwise, these lofty declarations [in Section 101] are nothing more than that."7
The sort of consideration of environmental values which NEPA compels is clarified in Section
102(2) (A) and (B). In general, all agencies must use a "systematic, interdisciplinary approach"
to environmental planning and evaluation "in decisionmaking which may have an impact on
man's environment." In order to include all possible environmental factors in the decisional
equation, agencies must "identify and develop methods and procedures * * * which will insure
that presently unquantified environmental amenities and values may be given appropriate
consideration in decisionmaking along with economic and technical
considerations."8 "Environmental amenities" will often be in conflict with "economic and
15
technical considerations." To "consider" the former "along with" the latter must involve a
balancing process. In some instances environmental costs may outweigh economic and
technical benefits and in other instances they may not. But NEPA mandates a rather finely
tuned and "systematic" balancing analysis in each instance.9
To ensure that the balancing analysis is carried out and given full effect, Section 102(2) (C)
requires that responsible officials of all agencies prepare a "detailed statement" covering the
impact of particular actions on the environment, the environmental costs which might be
avoided, and alternative measures which might alter the cost-benefit equation. The apparent
purpose of the "detailed statement" is to aid in the agencies' own decision making process and
to advise other interested agencies and the public of the environmental consequences of
planned federal action. Beyond the "detailed statement," Section 102(2) (D) requires all
agencies specifically to "study, develop, and describe appropriate alternatives to recommended
courses of action in any proposal which involves unresolved conflicts concerning alternative
uses of available resources." This requirement, like the "detailed statement" requirement,
seeks to ensure that each agency decision maker has before him and takes into proper account
all possible approaches to a particular project (including total abandonment of the project)
which would alter the environmental impact and the cost-benefit balance. Only in that fashion
is it likely that the most intelligent, optimally beneficial decision will ultimately be made.
Moreover, by compelling a formal "detailed statement" and a description of alternatives, NEPA
provides evidence that the mandated decision making process has in fact taken place and,
most importantly, allows those removed from the initial process to evaluate and balance the
factors on their own.
Of course, all of these Section 102 duties are qualified by the phrase "to the fullest extent
possible." We must stress as forcefully as possible that this language does not provide an
escape hatch for footdragging agencies; it does not make NEPA's procedural requirements
somehow "discretionary." Congress did not intend the Act to be such a paper tiger. Indeed, the
requirement of environmental consideration "to the fullest extent possible" sets a high standard
for the agencies, a standard which must be rigorously enforced by the reviewing courts.
Unlike the substantive duties of Section 101(b), which require agencies to "use all practicable
means consistent with other essential considerations," the procedural duties of Section 102
must be fulfilled to the "fullest extent possible."10 This contrast, in itself, is revealing. But the
dispositive factor in our interpretation is the expressed views of the Senate and House
conferees who wrote the "fullest extent possible" language into NEPA. They stated: 11
"* * * The purpose of the new language is to make it clear that each agency of the Federal
Government shall comply with the directives set out in * * * [Section 102(2)] unless the existing
law applicable to such agency's operations expressly prohibits or makes full compliance with
one of the directives impossible. * * * Thus, it is the intent of the conferees that the provision
`to the fullest extent possible' shall not be used by any Federal agency as a means of avoiding
compliance with the directives set out in section 102. Rather, the language in section 102 is
intended to assure that all agencies of the Federal Government shall comply with the directives
set out in said section `to the fullest extent possible' under their statutory authorizations and
that no agency shall utilize an excessively narrow construction of its existing statutory
authorizations to avoid compliance."
Thus the Section 102 duties are not inherently flexible. They must be complied with to the fullest
extent, unless there is a clear conflict of statutory authority.12 Considerations of administrative
difficulty, delay or economic cost will not suffice to strip the section of its fundamental
importance.
We conclude, then, that Section 102 of NEPA mandates a particular sort of careful and
informed decisionmaking process and creates judicially enforceable duties. The reviewing
courts probably cannot reverse a substantive decision on its merits, under Section 101, unless
it be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly
gave insufficient weight to environmental values. But if the decision was reached procedurally
without individualized consideration and balancing of environmental factors — conducted fully
and in good faith — it is the responsibility of the courts to reverse. As one District Court has
said of Section 102 requirements: "It is hard to imagine a clearer or stronger mandate to the
Courts."13
In the cases before us now, we do not have to review a particular decision by the Atomic Energy
Commission granting a construction permit or an operating license. Rather, we must review
the Commission's recently promulgated rules which govern consideration of environmental
values in all such individual decisions.14 The rules were devised strictly in order to comply with
the NEPA procedural requirements — but petitioners argue that they fall far short of the
congressional mandate.
The period of the rules' gestation does not indicate overenthusiasm on the Commission's part.
NEPA went into effect on January 1, 1970. On April 2, 1970 — three months later — the
Commission issued its first, short policy statement on implementation of the Act's procedural
provisions.15 After another span of two months, the Commission published a notice of
proposed rule making in the Federal Register.16 Petitioners submitted substantial comments
critical of the proposed rules. Finally, on December 3, 1970, the Commission terminated its
long rule making proceeding by issuing a formal amendment, labelled Appendix D, to its
governing regulations.17 Appendix D is a somewhat revised version of the earlier proposal and,
at last, commits the Commission to consider environmental impact in its decision making
process.
The procedure for environmental study and consideration set up by the Appendix D rules is as
follows: Each applicant for an initial construction permit must submit to the Commission his
own "environmental report," presenting his assessment of the environmental impact of the
planned facility and possible alternatives which would alter the impact. When construction is
completed and the applicant applies for a license to operate the new facility, he must again
submit an "environmental report" noting any factors which have changed since the original
report. At each stage, the Commission's regulatory staff must take the applicant's report and
prepare its own "detailed statement" of environmental costs, benefits and alternatives. The
statement will then be circulated to other interested and responsible agencies and made
available to the public. After comments are received from those sources, the staff must prepare
a final "detailed statement" and make a final recommendation on the application for a
construction permit or operating license.
Up to this point in the Appendix D rules petitioners have raised no challenge. However, they do
attack four other, specific parts of the rules which, they say, violate the requirements of Section
102 of NEPA. Each of these parts in some way limits full consideration and individualized
balancing of environmental values in the Commission's decision making process. (1) Although
environmental factors must be considered by the agency's regulatory staff under the rules, such
factors need not be considered by the hearing board conducting an independent review of staff
recommendations, unless affirmatively raised by outside parties or staff members. (2) Another
part of the procedural rules prohibits any such party from raising nonradiological environmental
issues at any hearing if the notice for that hearing appeared in the Federal Register before
March 4, 1971. (3) Moreover, the hearing board is prohibited from conducting an independent
evaluation and balancing of certain environmental factors if other responsible agencies have
already certified that their own environmental standards are satisfied by the proposed federal
action. (4) Finally, the Commission's rules provide that when a construction permit for a facility
has been issued before NEPA compliance was required and when an operating license has
yet to be issued, the agency will not formally consider environmental factors or require
modifications in the proposed facility until the time of the issuance of the operating license.
Each of these parts of the Commission's rules will be described at greater length and evaluated
under NEPA in the following sections of this opinion.
II
NEPA makes only one specific reference to consideration of environmental values in agency
review processes. Section 102(2) (C) provides that copies of the staff's "detailed statement"
and comments thereon "shall accompany the proposal through the existing agency review
processes." The Atomic Energy Commission's rules may seem in technical compliance with
the letter of that provision. They state:
"12. If any party to a proceeding * * * raises any [environmental] issue * * * the Applicant's
Environmental Report and the Detailed Statement will be offered in evidence. The atomic safety
and licensing board will make findings of fact on, and resolve, the matters in controversy among
the parties with regard to those issues. Depending on the resolution of those issues, the permit
or license may be granted, denied, or appropriately conditioned to protect environmental
values.
"13. When no party to a proceeding * * * raises any [environmental] issue * * * such issues will
not be considered by the atomic safety and licensing board. Under such circumstances,
although the Applicant's Environmental Report, comments thereon, and the Detailed Statement
will accompany the application through the Commission's review processes, they will not be
received in evidence, and the Commission's responsibilities under the National Environmental
Policy Act of 1969 will be carried out in toto outside the hearing process."18
The question here is whether the Commission is correct in thinking that its NEPA
responsibilities may "be carried out in toto outside the hearing process" — whether it is enough
that environmental data and evaluations merely "accompany" an application through the review
process, but receive no consideration whatever from the hearing board.
We believe that the Commission's crabbed interpretation of NEPA makes a mockery of the Act.
What possible purpose could there be in the Section 102 (2) (C) requirement (that the "detailed
statement" accompany proposals through agency review processes) if "accompany" means no
more than physical proximity — mandating no more than the physical act of passing certain
folders and papers, unopened, to reviewing officials along with other folders and papers? What
possible purpose could there be in requiring the "detailed statement" to be before hearing
boards, if the boards are free to ignore entirely the contents of the statement? NEPA was meant
to do more than regulate the flow of papers in the federal bureaucracy. The word "accompany"
in Section 102(2) (C) must not be read so narrowly as to make the Act ludicrous. It must, rather,
be read to indicate a congressional intent that environmental factors, as compiled in the
"detailed statement," be considered through agency review processes.19
Beyond Section 102(2) (C), NEPA requires that agencies consider the environmental impact
of their actions "to the fullest extent possible." The Act is addressed to agencies as a whole,
not only to their professional staffs. Compliance to the "fullest" possible extent would seem to
demand that environmental issues be considered at every important stage in the decision
making process concerning a particular action — at every stage where an overall balancing of
environmental and nonenvironmental factors is appropriate and where alterations might be
made in the proposed action to minimize environmental costs. Of course, consideration which
is entirely duplicative is not necessarily required. But independent review of staff proposals by
hearing boards is hardly a duplicative function. A truly independent review provides a crucial
check on the staff's recommendations. The Commission's hearing boards automatically
consider nonenvironmental factors, even though they have been previously studied by the staff.
Clearly, the review process is an appropriate stage at which to balance conflicting factors
against one another. And, just as clearly, it provides an important opportunity to reject or
significantly modify the staff's recommended action. Environmental factors, therefore, should
not be singled out and excluded, at this stage, from the proper balance of values envisioned
by NEPA.
The Commission's regulations provide that in an uncontested proceeding the hearing board
shall on its own "determine whether the application and the record of the proceeding contain
sufficient information, and the review of the application by the Commission's regulatory staff
has been adequate, to support affirmative findings on" various nonenvironmental
factors.20 NEPA requires at least as much automatic consideration of environmental factors.
In uncontested hearings, the board need not necessarily go over the same ground covered in
the "detailed statement." But it must at least examine the statement carefully to determine
whether "the review * * * by the Commission's regulatory staff has been adequate." And it must
independently consider the final balance among conflicting factors that is struck in the staff's
recommendation.
The rationale of the Commission's limitation of environmental issues to hearings in which
parties affirmatively raise those issues may have been one of economy. It may have been
supposed that, whenever there are serious environmental costs overlooked or uncorrected by
the staff, some party will intervene to bring those costs to the hearing board's attention. Of
course, independent review of the "detailed statement" and independent balancing of factors
in an uncontested hearing will take some time. If it is done properly, it will take a significant
amount of time. But all of the NEPA procedures take time. Such administrative costs are not
enough to undercut the Act's requirement that environmental protection be considered "to the
17
fullest extent possible," see text at page 1114, supra. It is, moreover, unrealistic to assume that
there will always be an intervenor with the information, energy and money required to challenge
a staff recommendation which ignores environmental costs. NEPA establishes environmental
protection as an integral part of the Atomic Energy Commission's basic mandate. The primary
responsibility for fulfilling that mandate lies with the Commission. Its responsibility is not simply
to sit back, like an umpire, and resolve adversary contentions at the hearing stage. Rather, it
must itself take the initiative of considering environmental values at every distinctive and
comprehensive stage of the process beyond the staff's evaluation and recommendation.21
III
Congress passed the final version of NEPA in late 1969, and the Act went into full effect on
January 1, 1970. Yet the Atomic Energy Commission's rules prohibit any consideration of
environmental issues by its hearing boards at proceedings officially noticed before March 4,
1971.22 This is 14 months after the effective date of NEPA. And the hearings affected may go
on for as much as a year longer until final action is taken. The result is that major federal actions
having a significant environmental impact may be taken by the Commission, without full NEPA
compliance, more than two years after the Act's effective date. In view of the importance of
environmental consideration during the agency review process, see Part II supra, such a time
lag is shocking.
The Commission explained that its very long time lag was intended "to provide an orderly period
of transition in the conduct of the Commission's regulatory proceedings and to avoid
unreasonable delays in the construction and operation of nuclear power plants urgently needed
to meet the national requirements for electric power."23 Before this court, it has claimed
authority for its action, arguing that "the statute did not lay down detailed guidelines and
inflexible timetables for its implementation; and we find in it no bar to agency provisions which
are designed to accommodate transitional implementation problems."24
Again, the Commission's approach to statutory interpretation is strange indeed — so strange
that it seems to reveal a rather thoroughgoing reluctance to meet the NEPA procedural
obligations in the agency review process, the stage at which deliberation is most open to public
examination and subject to the participation of public intervenors. The Act, it is true, lacks an
"inflexible timetable" for its implementation. But it does have a clear effective date, consistently
enforced by reviewing courts up to now. Every federal court having faced the issues has held
that the procedural requirements of NEPA must be met in order to uphold federal action taken
after January 1, 1970.25 The absence of a "timetable" for compliance has never been held
sufficient, in itself, to put off the date on which a congressional mandate takes effect. The
absence of a "timetable," rather, indicates that compliance is required forthwith.
The only part of the Act which even implies that implementation may be subject, in some cases,
to some significant delay is Section 103. There, Congress provided that all agencies must
review "their present statutory authority, administrative regulations, and current policies and
procedures for the purpose of determining whether there are any deficiencies or
inconsistencies therein which prohibit full compliance" with NEPA. Agencies finding some such
insuperable difficulty are obliged to "propose to the President not later than July 1, 1971, such
measures as may be necessary to bring their authority and policies into conformity with the
intent, purposes, and procedures set forth in this Act."
The Commission, however, cannot justify its time lag under these Section 103 provisions.
Indeed, it has not attempted to do so; only intervenors have raised the argument. Section 103
could support a substantial delay only by an agency which in fact discovered an insuperable
barrier to compliance with the Act and required time to formulate and propose the needed
reformative measures. The actual review of existing statutory authority and regulations cannot
be a particularly lengthy process for experienced counsel of a federal agency. Of course, the
Atomic Energy Commission discovered no obstacle to NEPA implementation. Although it did
not report its conclusion to the President until October 2, 1970, that nine-month delay (January
to October) cannot justify so long a period of noncompliance with the Act. It certainly cannot
justify a further delay of compliance until March 4, 1971.
No doubt the process formulating procedural rules to implement NEPA takes some time.
Congress cannot have expected that federal agencies would immediately begin considering
environmental issues on January 1, 1970. But the effective date of the Act does set a time for
agencies to begin adopting rules and it demands that they strive, "to the fullest extent possible,"
to be prompt in the process. The Atomic Energy Commission has failed in this
regard.26 Consideration of environmental issues in the agency review process, for example, is
quite clearly compelled by the Act.27 The Commission cannot justify its 11-month delay in
adopting rules on this point as part of a difficult, discretionary effort to decide whether or not its
hearing boards should deal with environmental questions at all.
Even if the long delay had been necessary, however, the Commission would not be relieved of
all NEPA responsibility to hold public hearings on the environmental consequences of actions
taken between January 1, 1970 and final adoption of the rules. Although the Act's effective date
may not require instant compliance, it must at least require that NEPA procedures, once
established, be applied to consider prompt alterations in the plans or operations of facilities
approved without compliance.28 Yet the Commission's rules contain no such provision. Indeed,
they do not even apply to the hearings still being conducted at the time of their adoption on
December 3, 1970 — or, for that matter, to hearings initiated in the following three months. The
delayed compliance date of March 4, 1971, then, cannot be justified by the Commission's long
drawn out rule making process.
Strangely, the Commission has principally relied on more pragmatic arguments. It seems an
unfortunate affliction of large organizations to resist new procedures and to envision massive
roadblocks to their adoption. Hence the Commission's talk of the need for an "orderly transition"
to the NEPA procedures. It is difficult to credit the Commission's argument that several months
were needed to work the consideration of environmental values into its review process. Before
the enactment of NEPA, the Commission already had regulations requiring that hearings
include health, safety and radiological matters.29 The introduction of environmental matters
cannot have presented a radically unsettling problem. And, in any event, the obvious sense of
urgency on the part of Congress should make clear that a transition, however "orderly," must
proceed at a pace faster than a funeral procession.
In the end, the Commission's long delay seems based upon what it believes to be a pressing
national power crisis. Inclusion of environmental issues in pre-March 4, 1971 hearings might
have held up the licensing of some power plants for a time. But the very purpose of NEPA was
to tell federal agencies that environmental protection is as much a part of their responsibility as
is protection and promotion of the industries they regulate. Whether or not the spectre of a
national power crisis is as real as the Commission apparently believes, it must not be used to
create a blackout of environmental consideration in the agency review process. NEPA compels
a case-by-case examination and balancing of discrete factors. Perhaps there may be cases in
which the need for rapid licensing of a particular facility would justify a strict time limit on a
hearing board's review of environmental issues; but a blanket banning of such issues until
March 4, 1971 is impermissible under NEPA.
IV
The sweep of NEPA is extraordinarily broad, compelling consideration of any and all types of
environmental impact of federal action. However, the Atomic Energy Commission's rules
specifically exclude from full consideration a wide variety of environmental issues. First, they
provide that no party may raise and the Commission may not independently examine any
problem of water quality — perhaps the most significant impact of nuclear power plants. Rather,
the Commission indicates that it will defer totally to water quality standards devised and
administered by state agencies and approved by the federal government under the Federal
Water Pollution Control Act.30 Secondly, the rules provide for similar abdication of NEPA
authority to the standards of other agencies:
"With respect to those aspects of environmental quality for which environmental quality
standards and requirements have been established by authorized Federal, State, and regional
agencies, proof that the applicant is equipped to observe and agrees to observe such standards
and requirements will be considered a satisfactory showing that there will not be a significant,
adverse effect on the environment. Certification by the appropriate agency that there is
reasonable assurance that the applicant for the permit or license will observe such standards
and requirements will be considered dispositive for this purpose."31
The most the Commission will do is include a condition in all construction permits and operating
licenses requiring compliance with the water quality or other standards set by such
agencies.32 The upshot is that the NEPA procedures, viewed by the Commission as
superfluous, will wither away in disuse, applied only to those environmental issues wholly
unregulated by any other federal, state or regional body.
We believe the Commission's rule is in fundamental conflict with the basic purpose of the Act.
NEPA mandates a case-by-case balancing judgment on the part of federal agencies. In each
individual case, the particular economic and technical benefits of planned action must be
assessed and then weighed against the environmental costs; alternatives must be considered
which would affect the balance of values. See text at page 1113 supra. The magnitude of
possible benefits and possible costs may lie anywhere on a broad spectrum. Much will depend
on the particular magnitudes involved in particular cases. In some cases, the benefits will be
great enough to justify a certain quantum of environmental costs; in other cases, they will not
be so great and the proposed action may have to be abandoned or significantly altered so as
to bring the benefits and costs into a proper balance. The point of the individualized balancing
analysis is to ensure that, with possible alterations, the optimally beneficial action is finally
taken.
Certification by another agency that its own environmental standards are satisfied involves an
entirely different kind of judgment. Such agencies, without overall responsibility for the
particular federal action in question, attend only to one aspect of the problem: the magnitude
of certain environmental costs. They simply determine whether those costs exceed an
allowable amount. Their certification does not mean that they found no environmental damage
whatever. In fact, there may be significant environmental damage (e. g., water pollution), but
not quite enough to violate applicable (e. g., water quality) standards. Certifying agencies do
not attempt to weigh that damage against the opposing benefits. Thus the balancing analysis
remains to be done. It may be that the environmental costs, though passing prescribed
standards, are nonetheless great enough to outweigh the particular economic and technical
benefits involved in the planned action. The only agency in a position to make such a judgment
is the agency with overall responsibility for the proposed federal action — the agency to which
NEPA is specifically directed.
The Atomic Energy Commission, abdicating entirely to other agencies' certifications, neglects
the mandated balancing analysis. Concerned members of the public are thereby precluded
from raising a wide range of environmental issues in order to affect particular Commission
decisions. And the special purpose of NEPA is subverted.
Arguing before this court, the Commission has made much of the special environmental
expertise of the agencies which set environmental standards. NEPA did not overlook this
consideration. Indeed, the Act is quite explicit in describing the attention which is to be given to
the views and standards of other agencies. Section 102 (2) (C) provides:
"Prior to making any detailed statement, the responsible Federal official shall consult with and
obtain the comments of any Federal agency which has jurisdiction by law or special expertise
with respect to any environmental impact involved. Copies of such statement and the
comments and views of the appropriate Federal, State, and local agencies, which are
authorized to develop and enforce environmental standards, shall be made available to the
President, the Council on Environmental Quality and to the public * * *."
Thus the Congress was surely cognizant of federal, state and local agencies "authorized to
develop and enforce environmental standards." But it provided, in Section 102(2) (C), only for
full consultation. It most certainly did not authorize a total abdication to those agencies. Nor did
it grant a license to disregard the main body of NEPA obligations.
Of course, federal agencies such as the Atomic Energy Commission may have specific duties,
under acts other than NEPA, to obey particular environmental standards. Section 104 of NEPA
makes clear that such duties are not to be ignored:
"Nothing in Section 102 or 103 shall in any way affect the specific statutory obligations of any
Federal agency (1) to comply with criteria or standards of environmental quality, (2) to
coordinate or consult with any other Federal or State agency, or (3) to act, or refrain from acting
contingent upon the recommendations or certification of any other Federal or State agency."
On its face, Section 104 seems quite unextraordinary, intended only to see that the general
procedural reforms achieved in NEPA do not wipe out the more specific environmental controls
19
imposed by other statutes. Ironically, however, the Commission argues that Section 104 in fact statements indicate that Section 104 was the product of a compromise intended to eliminate
allows other statutes to wipe out NEPA. any conflict between the two bills then in the Senate. The overriding purpose was to prevent
NEPA from eclipsing obedience to more specific standards under WQIA. Senator Muskie,
Since the Commission places great reliance on Section 104 to support its abdication to
distrustful of "self-policing by Federal agencies which pollute or license pollution," was
standard setting agencies, we should first note the section's obvious limitation. It deals only
particularly concerned that NEPA not undercut the independent role of standard setting
with deference to such agencies which is compelled by "specific statutory obligations." The
agencies.36 Most of his and Senator Jackson's comments stop short of suggesting that NEPA
Commission has brought to our attention one "specific statutory obligation": the Water Quality
would have no application in water quality matters; their goal was to protect WQIA, not to
Improvement Act of 1970 (WQIA).33 That Act prohibits federal licensing bodies, such as the
undercut NEPA. Our interpretation of Section 104 is perfectly consistent with that purpose.
Atomic Energy Commission, from issuing licenses for facilities which pollute "the navigable
waters of the United States" unless they receive a certification from the appropriate agency that Yet the statements of the two Senators occasionally indicate they were willing to go farther, to
compliance with applicable water quality standards is reasonably assured. Thus Section 104 permit agencies such as the Atomic Energy Commission to forego at least some NEPA
applies in some fashion to consideration of water quality matters. But it definitely cannot support procedures in consideration of water quality. Senator Jackson, for example, said, "The
— indeed, it is not even relevant to — the Commission's wholesale abdication to the standards compromise worked out between the bills provides that the licensing agency will not have to
and certifications of any and all federal, state and local agencies dealing with matters other make a detailed statement on water quality if the State or other appropriate agency has made
than water quality. a certification pursuant to [WQIA]."37 Perhaps Senator Jackson would have required some
consideration and balancing of environmental costs — despite the lack of a formal detailed
As to water quality, Section 104 and WQIA clearly require obedience to standards set by other
statement — but he did not spell out his views. No Senator, other than Senators Jackson and
agencies. But obedience does not imply total abdication. Certainly, the language of Section
Muskie, addressed himself specifically to the problem during floor discussion. Nor did any
104 does not authorize an abdication. It does not suggest that other "specific statutory
member of the House of Representatives.38 The section-by-section analysis of NEPA
obligations" will entirely replace NEPA. Rather, it ensures that three sorts of "obligations" will
submitted to the Senate clearly stated the overriding purpose of Section 104: that "no agency
not be undermined by NEPA: (1) the obligation to "comply" with certain standards, (2) the
may substitute the procedures outlined in this Act for more restrictive and specific procedures
obligation to "coordinate" or "consult" with certain agencies, and (3) the obligation to "act, or
established by law governing its activities."39 The report does not suggest there that NEPA
refrain from acting contingent upon" a certification from certain agencies. WQIA imposes the
procedures should be entirely abandoned, but rather that they should not be "substituted" for
third sort of obligation. It makes the granting of a license by the Commission "contingent upon"
more specific standards. In one rather cryptic sentence, the analysis does muddy the waters
a water quality certification. But it does not require the Commission to grant a license once a
somewhat, stating that " [i]t is the intention that where there is no more effective procedure
certification has been issued. It does not preclude the Commission from demanding water
already established, the procedure of this act will be followed." 40 Notably, however, the
pollution controls from its licensees which are more strict than those demanded by the
sentence does not state that in the presence of "more effective procedures" the NEPA
applicable water quality standards of the certifying agency.34 It is very important to understand
procedure will be abandoned entirely. It seems purposefully vague, quite possibly meaning that
these facts about WQIA. For all that Section 104 of NEPA does is to reaffirm other "specific
obedience to the certifications of standard setting agencies must alter, by supplementing,
statutory obligations." Unless those obligations are plainly mutually exclusive with the
the normal "procedure of this act."
requirements of NEPA, the specific mandate of NEPA must remain in force. In other words,
Section 104 can operate to relieve an agency of its NEPA duties only if other "specific statutory This rather meager legislative history, in our view, cannot radically transform the purport of the
obligations" clearly preclude performance of those duties. plain words of Section 104. Had the Senate sponsors fully intended to allow a total abdication
of NEPA responsibilities in water quality matters — rather than a supplementing of them by
Obedience to water quality certifications under WQIA is not mutually exclusive with the NEPA
strict obedience to the specific standards of WQIA — the language of Section 104 could easily
procedures. It does not preclude performance of the NEPA duties. Water quality certifications
have been changed. As the Supreme Court often has said, the legislative history of a statute
essentially establish a minimum condition for the granting of a license. But they need not end
(particularly such relatively meager and vague history as we have here) cannot radically affect
the matter. The Commission can then go on to perform the very different operation of balancing
its interpretation if the language of the statute is clear. See, e. g., Packard Motor Car Co. v.
the overall benefits and costs of a particular proposed project, and consider alterations (above
NLRB, 330 U.S. 485, 67 S. Ct. 789, 91 L. Ed. 1040 (1947); Kuehner v. Irving Trust Co., 299
and beyond the applicable water quality standards) which would further reduce environmental
U.S. 445, 57 S. Ct. 298, 81 L. Ed. 340 (1937); Fairport, Painesville & Eastern R. Co. v.
damage. Because the Commission can still conduct the NEPA balancing analysis, consistent
Meredith, 292 U.S. 589, 54 S. Ct. 826, 78 L. Ed. 1446 (1934); Wilbur v. United States ex rel.
with WQIA, Section 104 does not exempt it from doing so. And it, therefore, must conduct the
Vindicator Consolidated Gold Mining Co., 284 U.S. 231, 52 S. Ct. 113, 76 L. Ed. 261 (1931).
obligatory analysis under the prescribed procedures.
In a recent case interpreting a veterans' act, the Court set down the principle which must govern
We believe the above result follows from the plain language of Section 104 of NEPA and WQIA. our approach to the case before us:
However, the Commission argues that we should delve beneath the plain language and adopt
"Having concluded that the provisions of § 1 are clear and unequivocal on their face, we find
a significantly different interpretation. It relies entirely upon certain statements made by Senator
no need to resort to the legislative history of the Act. Since the State has placed such heavy
Jackson and Senator Muskie, the sponsors of NEPA and WQIA respectively. 35 Those
reliance upon that history, however, we do deem it appropriate to point out that this history is
at best inconclusive. It is true, as the State points out, that Representative Rankin, as Chairman
of the Committee handling the bill on the floor of the House, expressed his view during the
course of discussion of the bill on the floor that the 1941 Act would not apply to [the sort of case
in question] * * *. But such statements, even when they stand alone, have never been regarded
as sufficiently compelling to justify deviation from the plain language of a statute. * * *" United
States v. Oregon, 366 U.S. 643, 648, 81 S. Ct. 1278, 1281, 6 L. Ed. 2d 575 (1961). (Footnotes
omitted.) It is, after all, the plain language of the statute which all the members of both houses
of Congress must approve or disapprove. The courts should not allow that language to be
significantly undercut. In cases such as this one, the most we should do to interpret clear
statutory wording is to see that the overriding purpose behind the wording supports its plain
meaning. We have done that here. And we conclude that Section 104 of NEPA does not permit
the sort of total abdication of responsibility practiced by the Atomic Energy Commission.
V of the Act. See page 1114 supra. The procedural duties, the duties to give full consideration to
Petitioners' final attack is on the Commission's rules governing a particular set of nuclear
facilities: those for which construction permits were granted without consideration of
environmental issues, but for which operating licenses have yet to be issued. These facilities,
still in varying stages of construction, include the one of most immediate concern to one of the
petitioners: the Calvert Cliffs nuclear power plant on Chesapeake Bay in Maryland.
The Commission's rules recognize that the granting of a construction permit before NEPA's
effective date does not justify bland inattention to environmental consequences until the
operating license proceedings, perhaps far in the future. The rules require that measures be
taken now for environmental protection. Specifically, the Commission has provided for three
such measures during the pre-operating license stage. First, it has required that a condition be
added to all construction permits, "whenever issued," which would oblige the holders of the
permits to observe all applicable environmental standards imposed by federal or state law.
Second, it has required permit holders to submit their own environmental report on the facility
under construction. And third, it has initiated procedures for the drafting of its staff's "detailed
environmental statement" in advance of operating license proceedings. 41
The one thing the Commission has refused to do is take any independent action based upon
the material in the environmental reports and "detailed statements." Whatever environmental
damage the reports and statements may reveal, the Commission will allow construction to
proceed on the original plans. It will not even consider requiring alterations in those plans
(beyond compliance with external standards which would be binding in any event), though the
"detailed statements" must contain an analysis of possible alternatives and may suggest
relatively inexpensive but highly beneficial changes. Moreover, the Commission has, as a
blanket policy, refused to consider the possibility of temporarily halting construction in particular
cases pending a full study of a facility's environmental impact. It has also refused to weigh the
pros and cons of "backfitting" for particular facilities (alteration of already constructed portions
of the facilities in order to incorporate new technological developments designed to protect the
environment). Thus reports and statements will be produced, but nothing will be done with
them. Once again, the Commission seems to believe that the mere drafting and filing of papers
is enough to satisfy NEPA.
The Commission appears to recognize the severe limitation which its rules impose on
environmental protection. Yet it argues that full NEPA consideration of alternatives and
independent action would cause too much delay at the pre-operating license stage. It justifies
its rules as the most that is "practicable, in the light of environmental needs and `other essential
considerations of national policy'."42 It cites, in particular, the "national power crisis" as a
consideration of national policy militating against delay in construction of nuclear power
facilities.
The Commission relies upon the flexible NEPA mandate to "use all practicable means
consistent with other essential considerations of national policy." As we have previously pointed
out, however, that mandate applies only to the substantive guidelines set forth in Section 101
environmental protection, are subject to a much more strict standard of compliance. By now,
the applicable principle should be absolutely clear. NEPA requires that an agency must — to
the fullest extent possible under its other statutory obligations — consider alternatives to its
actions which would reduce environmental damage. That principle establishes that
consideration of environmental matters must be more than a pro forma ritual. Clearly, it is
pointless to "consider" environmental costs without also seriously considering action to avoid
them. Such a full exercise of substantive discretion is required at every important, appropriate
and nonduplicative stage of an agency's proceedings. See text at page 1114 supra.
The special importance of the pre-operating license stage is not difficult to fathom. In cases
where environmental costs were not considered in granting a construction permit, it is very
likely that the planned facility will include some features which do significant damage to the
environment and which could not have survived a rigorous balancing of costs and benefits. At
the later operating license proceedings, this environmental damage will have to be fully
considered. But by that time the situation will have changed radically. Once a facility has been
completely constructed, the economic cost of any alteration may be very great. In the language
of NEPA, there is likely to be an "irreversible and irretrievable commitment of resources," which
will inevitably restrict the Commission's options. Either the licensee will have to undergo a major
expense in making alterations in a completed facility or the environmental harm will have to be
tolerated. It is all too probable that the latter result would come to pass.
By refusing to consider requirement of alterations until construction is completed, the
Commission may effectively foreclose the environmental protection desired by Congress. It
may also foreclose rigorous consideration of environmental factors at the eventual operating
license proceedings. If "irreversible and irretrievable commitment [s] of resources" have already
been made, the license hearing (and any public intervention therein) may become a hollow
exercise. This hardly amounts to consideration of environmental values "to the fullest extent
possible."
A full NEPA consideration of alterations in the original plans of a facility, then, is both important
and appropriate well before the operating license proceedings. It is not duplicative if
21
environmental issues were not considered in granting the construction permit. And it need not
be duplicated, absent new information or new developments, at the operating license stage. In
order that the pre-operating license review be as effective as possible, the Commission should
consider very seriously the requirement of a temporary halt in construction pending its review
and the "backfitting" of technological innovations. For no action which might minimize
environmental damage may be dismissed out of hand. Of course, final operation of the facility
may be delayed thereby. But some delay is inherent whenever the NEPA consideration is
conducted — whether before or at the license proceedings. It is far more consistent with the
purposes of the Act to delay operation at a stage where real environmental protection may
come about than at a stage where corrective action may be so costly as to be impossible.
Thus we conclude that the Commission must go farther than it has in its present rules. It must
consider action, as well as file reports and papers, at the pre-operating license stage. As the
Commission candidly admits, such consideration does not amount to a retroactive application
of NEPA. Although the projects in question may have been commenced and initially approved
before January 1, 1970, the Act clearly applies to them since they must still pass muster before
going into full operation.43 All we demand is that the environmental review be as full and fruitful
as possible.
VI
We hold that, in the four respects detailed above, the Commission must revise its rules
governing consideration of environmental issues. We do not impose a harsh burden on the
Commission. For we require only an exercise of substantive discretion which will protect the
environment "to the fullest extent possible." No less is required if the grand congressional
purposes underlying NEPA are to become a reality.
Remanded for proceedings consistent with this opinion.
APPENDIX
Public Law 91-190 91st Congress, S. 1075 January 1, 1970 An Act
To establish a national policy for the environment, to provide for the establishment of a Council
on Environmental Quality, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in
Congress assembled, That this Act may be cited as the "National Environmental Policy Act of
1969."
PURPOSE
Sec. 2. The purposes of this Act are: To declare a national policy which will encourage
productive and enjoyable harmony between man and his environment; to promote efforts which
will prevent or eliminate damage to the environment and biosphere and stimulate the health
and welfare of man; to enrich the understanding of the ecological systems and natural
resources important to the Nation; and to establish a Council on Environmental Quality.
TITLE I
DECLARATION OF NATIONAL ENVIRONMENTAL POLICY
Sec. 101. (a) The Congress, recognizing the profound impact of man's activity on the
interrelations of all components of the natural environment, particularly the profound influences
of population growth, high-density urbanization, industrial expansion, resource exploitation,
and new and expanding technological advances and recognizing further the critical importance
of restoring and maintaining environmental quality to the overall welfare and development of
man, declares that it is the continuing policy of the Federal Government, in co-operation with
State and local governments, and other concerned public and private organizations, to use all
practicable means and measures, including financial and technical assistance, in a manner
calculated to foster and promote the general welfare, to create and maintain conditions under
which man and nature can exist in productive harmony, and fulfill the social, economic, and
other requirements of present and future generations of Americans.
(b) In order to carry out the policy set forth in this Act, it is the continuing responsibility of the
Federal Government to use all practicable means, consistent with other essential
considerations of national policy, to improve and coordinate Federal plans, functions,
programs, and resources to the end that the Nation may —
(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding
generations;
(2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing
surroundings;
(3) attain the widest range of beneficial uses of the environment without degradation, risk to
health or safety, or other undesirable and unintended consequences;
(4) preserve important historic, cultural, and natural aspects of our national heritage, and
maintain, wherever possible, an environment which supports diversity and variety of individual
choice;
(5) achieve a balance between population and resource use which will permit high standards
of living and a wide sharing of life's amenities; and
(6) enhance the quality of renewable resources and approach the maximum attainable
recycling of depletable resources.
(c) The Congress recognizes that each person should enjoy a healthful environment and that
each person has a responsibility to contribute to the preservation and enhancement of the
environment.
Sec. 102. The Congress authorizes and directs that, to the fullest extent possible: (1) the
policies, regulations, and public laws of the United States shall be interpreted and administered
in accordance with the policies set forth in this Act, and (2) all agencies of the Federal
Government shall —
(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the
natural and social sciences and the environmental design arts in planning and in
decisionmaking which may have an impact on man's environment;
(B) identify and develop methods and procedures, in consultation with the Council on
Environmental Quality established by title II of this Act, which will insure that presently
unquantified environmental amenities and values may be given appropriate consideration in
decisionmaking along with economic and technical considerations;
(C) include in every recommendation or report on proposals for legislation and other major
Federal actions significantly affecting the quality of the human environment, a detailed
statement by the responsible official on —
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be
implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's environment and the maintenance
and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the
proposed action should it be implemented.
Prior to making any detailed statement, the responsible Federal official shall consult with and
obtain the comments of any Federal agency which has jurisdiction by law or special expertise
with respect to any environmental impact involved. Copies of such statement and the
comments and views of the appropriate Federal, State, and local agencies, which are
authorized to develop and enforce environmental standards, shall be made available to the
President, the Council on Environmental Quality and to the public as provided by section 552
of title 5, United States Code, and shall accompany the proposal through the existing agency
review processes;
(D) study, develop, and describe appropriate alternatives to recommended courses of action in
any proposal which involves unresolved conflicts concerning alternative uses of available
resources;
(E) recognize the worldwide and long-range character of environmental problems and, where
consistent with the foreign policy of the United States, lend appropriate support to initiatives,
resolutions, and programs designed to maximize international cooperation in anticipating and
preventing a decline in the quality of mankind's world environment;
(F) make available to States, counties, municipalities, institutions, and individuals, advice and
information useful in restoring, maintaining, and enhancing the quality of the environment;
(G) initiate and utilize ecological information in the planning and development of resource-
oriented projects; and
(H) assist the Council on Environmental Quality established by title II of this Act.
Sec. 103. All agencies of the Federal Government shall review their present statutory authority,
administrative regulations, and current policies and procedures for the purpose of determining
whether there are any deficiencies or inconsistencies therein which prohibit full compliance with
the purposes and provisions of this Act and shall propose to the President not later than July
1, 1971, such measures as may be necessary to bring their authority and policies into
conformity with the intent, purposes, and procedures set forth in this Act.
Sec. 104. Nothing in Section 102 or 103 shall in any way affect the specific statutory obligations
of any Federal agency (1) to comply with criteria or standards of environmental quality, (2) to
coordinate or consult with any other Federal or State agency, or (3) to act, or refrain from acting
contingent upon the recommendations or certification of any other Federal or State agency.
Sec. 105. The policies and goals set forth in this Act are supplementary to those set forth in
existing authorizations of Federal agencies.
U.S. Supreme Court
Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223 (1980)
Strycker's Bay Neighborhood Council, Inc. v. Karlen No. 79-168
Decided January 7, 1980444 U.S. 223ast|>* 444 U.S. 223
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Syllabus
Held: The Court of Appeals erred in concluding that, when the Department of Housing and
Urban Development (HUD) considered alternative sites before redesignating a proposed site
for middle-income housing as one for low-income housing it should have given determinative
weight to environmental factors such as crowding low-income housing into a concentrated area
and should not have considered the delay that would occur in developing an alternative site as
an overriding factor. Once an agency has made a decision subject to the procedural
requirements of the National Environmental Policy Act of 1969, the only role for a court is to
insure that the agency has considered the environmental consequences; it cannot interject
itself within the area of discretion of the executive as to the choice of the action to be taken.
Here, there is no doubt that HUD considered the environmental consequences of its decision
to re-designate the proposed site for low-income housing, and the Act requires no more.
Certiorari granted; 590 F.2d 39, reversed.
23
PER CURIAM.
The protracted nature of this litigation is perhaps best illustrated by the identity of the original
federal defendant, "George Romney, Secretary of the Department of Housing and Urban
Development." At the center of this dispute is the site of a proposed low-income housing project
to be constructed on Manhattan's Upper West Side. In 1962, the New York City Planning
Commission (Commission), acting in conjunction with the United States Department of Housing
and Urban Development (HUD), began formulating a
Page 444 U. S. 224
plan for the renewal of 20 square blocks known as the "West Side Urban Renewal Area"
(WSURA) through a joint effort on the part of private parties and various government agencies.
As originally written, the plan called for a mix of 70% middle-income housing and 30% low-
income housing and designated the site at issue here as the location of one of the middle-
income projects. In 1969, after substantial progress toward completion of the plan, local
agencies in New York determined that the number of low-income units proposed for WSURA
would be insufficient to satisfy an increased need for such units. In response to this shortage,
the Commission amended the plan to designate the site as the future location of a high-rise
building containing 160 units of low-income housing. HUD approved this amendment in
December, 1972.
Meanwhile, in October, 1971, the Trinity Episcopal School Corp. (Trinity), which had
participated in the plan by building a combination school and middle-income housing
development at a nearby location, sued in the United States District Court for the Southern
District of New York to enjoin the Commission and HUD from constructing low-income housing
on the site. The present respondents, Roland N. Karlen, Alvin C. Hudgins, and the Committee
of Neighbors To Insure a Normal Urban Environment (CONTINUE), intervened as plaintiffs,
while petitioner Strycker's Bay Neighborhood Council, Inc., intervened as a defendant.
The District Court entered judgment in favor of petitioners. See Trinity Episcopal School Corp.
v. Romney, 387 F. Supp. 1044 (1974). It concluded, inter alia, that petitioners had not violated
the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq.
On respondents' appeal, the Second Circuit affirmed all but the District Court's treatment of the
NEPA claim. See Trinity Episcopal School Corp. v. Romney, 523 F.2d 88
Page 444 U. S. 225
(1975). While the Court of Appeals agreed with the District Court that HUD was not required to
prepare a full-scale environmental impact statement under § 102(2)(C) of NEPA, 42 U.S.C. §
4332(2)(C), it held hat HUD had not complied with § 102(2)(E), [Footnote 1] which requires an
agency to
"study, develop, and describe appropriate alternatives to recommended courses of action in
any proposal which involves unresolved conflicts concerning alternative uses of available
resources."
42 U.S.C. § 4332(2)(E). See 523 F.2d at 995. According to the Court of Appeals, any
consideration by HUD of alternatives to placing low-income housing on the site "was either
highly limited or nonexistent." Id. at 94. Citing the "background of urban environmental factors"
behind HUD's decision, the Court of Appeals remanded the case, requiring HUD to prepare a
"statement of possible alternatives, the consequences thereof and the facts and reasons for
and against. . . ." Ibid. The statement was not to reflect "HUD's concept or the Housing
Authority's views as to how these agencies would choose to resolve the city's low income group
housing situation," but rather was to explain
"how, within the framework of the Plan, its objective of economic integration can best be
achieved with a minimum of adverse environmental impact."
Ibid. The Court of Appeals believed that, given such an assessment of alternatives, "the
agencies with the cooperation of the interested parties should be able to arrive at an equitable
solution." Id. at 95.
On remand, HUD prepared a lengthy report entitled Special Environmental Clearance (1977).
After marshaling the data, the report asserted that,
"while the choice of Site 30 for development as a 100 percent low-income project has raised
Page 444 U. S. 226
valid questions about the potential social environmental impacts involved, the problems
associated with the impact on social fabric and community structures are not considered so
serious as to require that this component be rated as unacceptable."
Special Environmental Clearance Report 42. The last portion of the report incorporated a study
wherein the Commission evaluated nine alternative locations for the project, and found none
of them acceptable. While HUD's report conceded that this study may not have considered all
possible alternatives, it credited the Commission's conclusion that any relocation of the units
would entail an unacceptable delay of two years or more. According to HUD,
"[m]easured against the environmental costs associated with the minimum two-year delay, the
benefits seem insufficient to justify a mandated substitution of sites."
Id. at 54.
After soliciting the parties' comments on HUD's report, the District Court again entered
judgment in favor of petitioners. See Trinity Episcopal School Corp. v. Harris, 445 F. Supp.
204 (1978). The court was "impressed with HUD's analysis as being thorough and
exhaustive," id. at 209-210, and found that "HUD's consideration of the alternatives was neither
arbitrary nor capricious"; on the contrary, "[i]t was done in good faith and in full accordance with
the law." Id. at 220.
On appal, the Second Circuit vacated and remanded again. Karlen v. Harris, 590 F.2d 39
(1978). The appellate court focused upon that part of HUD's report where the agency
considered and rejected alternative sites, and in particular upon HUD's reliance on the delay
such a relocation would entail. The Court of Appeals purported to recognize that its role in
reviewing HUD's decision was defined by the Administrative Procedure Act (APA), 5 U.S.C. §
706(2)(A), which provides that agency actions should be set aside if found to be "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law. . . ." Additionally,
Page 444 U. S. 227
however, the Court of Appeals looked to "[t]he provisions of NEPA" for "the substantive
standards necessary to review the merits of agency decisions. . . ." 590 F.2d at 43. The Court
of Appeals conceded that HUD had "given consideration' to alternatives" to redesignating the
site. Id. at 44. Nevertheless, the court believed that "`consideration' is not an end in
itself." Ibid. Concentrating on HUD's finding that development of an alternative location would
entail an unacceptable delay, the appellate court held that such delay could not be "an
overriding factor" in HUD's decision to proceed with the development. Ibid. According to the
court, when HUD considers such projects, "environmental factors, such as crowding low-
income housing into a concentrated area, should be given determinative weight." Ibid. The
Court of Appeals therefore remanded the case to the District Court, instructing HUD to attack
the shortage of low-income housing in a manner that would avoid the "concentration" of such
housing on Site 30. Id. at 45. In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U. S.
519, 435 U. S. 558 (1978), we stated that NEPA, while establishing "significant substantive
goals for the Nation," imposes upon agencies duties that are "essentially procedural." As we
stressed in that case, NEPA was designed "to insure a fully informed and well considered
decision," but not necessarily "a decision the judges of the Court of Appeals or of this Court
would have reached had they been members of the decisionmaking unit of the
agency." Ibid. Vermont Yankee cuts sharply against the Court of Appeals' conclusion that an
agency, in selecting a course of action, must elevate environmental concerns over other
appropriate considerations. On the contrary, once an agency has made a decision subject to
NEPA's procedural requirements, the only role for a court is to insure that the agency has
considered the environmental consequences; it cannot " 'interject itself within the area of
discretion of the executive as to the choice of the action to
Page 444 U. S. 228
be taken.'" Kleppe v. Sierra Club, 427 U. S. 390, 427 U. S. 410, n. 21 (1976). See also FPC
v. Transcontinental Gas Pipe Line Corp., 423 U. S. 326 (1976). [Footnote 2]
In the present litigation, there is no doubt that HUD considered the environmental
consequences of its decision to redesignate the proposed site for low-income housing. NEPA
requires no more. The petitions for certiorari are granted, and the judgment of the Court of
Appeals is therefore
Reversed.
* Together with No. 79-181, City of New York v. Karlen et al.; and No. 79-184, Secretary of
Housing and Urban Development v. Karlen et al., also on petitions for certiorari to the same
court.
[Footnote 1]
At the time of the Court of Appeals' decision, this section was numbered 102(2)(D) and was
codified at 42 U.S.C. § 4332(2)(D) (1970 ed.). Congress redesignated it two weeks
later. See Act of Aug. 9, 1975, Pub.L. 94-83, 89 Stat. 424.
[Footnote 2]
If we could agree with the dissent that the Court of Appeals held that HUD had acted "arbitrarily"
in redesignating the site for low-income housing, we might also agree that plenary review is
warranted. But the District Court expressly concluded that HUD had not acted arbitrarily or
capriciously, and our reading of the opinion of the Court of Appeals satisfies us that it did not
overturn that finding. Instead, the appellate court required HUD to elevate environmental
concerns over other, admittedly legitimate, considerations. Neither NEPA nor the APA provides
any support for such a reordering of priorities by a reviewing court.
MR. JUSTICE MARSHALL, dissenting.
The issue raised by these cases is far more difficult than the per curiam opinion suggests. The
Court of Appeals held that the Secretary of Housing and Urban Development (HUD) had acted
arbitrarily in concluding that prevention of a delay in the construction process justified the
selection of a housing site which could produce adverse social environmental effects, including
racial and economic concentration. Today the majority responds that,
"once an agency has made a decision subject to NEPA's procedural requirements, the only
role for a court is to insure that the agency has considered the environmental consequences,"
and that, in this litigation,
"there is no doubt that HUD considered the environmental consequences of its decision to
redesignate the proposed site for low-income housing. NEPA requires no more."
25
The majority finds support for this conclusion in the closing paragraph
Page 444 U. S. 229
of our decision in Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U. S. 519, 435 U. S.
558 (1978).
Vermont Yankee does not stand for the broad proposition that the majority advances today.
The relevant passage in that opinion was meant to be only a "further observation of some
relevance to this case," id. at 435 U. S. 557. That "observation" was a response to this Court's
perception that the Court of Appeals in that case was attempting, "under the guise of judicial
review of agency action," to assert its own policy judgment as to the desirability of developing
nuclear energy as an energy source for this Nation, a judgment which is properly left to
Congress. Id. at 435 U. S. 558. The Court of Appeals had remanded the case to the agency
because of "a single alleged oversight on a peripheral issue, urged by parties who never fully
cooperated or indeed raised the issue below," ibid. It was in this context that the Court
remarked that "NEPA does set forth significant substantive goals for the Nation, but its mandate
to the agencies is essentially procedural." Ibid.(emphasis supplied). Accordingly,
"[a]dministrative decisions should be set aside in this context, as in every other, only for
substantial procedural or substantive reasons as mandated by statute,"
ibid. (emphasis supplied). Thus, Vermont Yankee does not stand for the proposition that a
court reviewing agency action under NEPA is limited solely to the factual issue of whether the
agency "considered" environmental consequences. The agency's decision must still be set
aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law," 5 U.S.C. § 706(2)(A), and the reviewing court must still insure that the agency "has taken
a hard look' at environmental consequences," Kleppe v. Sierra Club,427 U. S. 390, 427 U. S.
410, n. 21 (1976).
In the present case, the Court of Appeals did not "substitute its judgment for that of the agency
as to the environmental consequences of its actions," ibid., for HUD, in its
Page 444 U. S. 230
Special Environmental Clearance Report, acknowledged the adverse environmental
consequences of its proposed action:
"the choice of Site 30 for development as a 100 percent low-income project has raised valid
questions about the potential social environmental impacts involved."
These valid questions arise from the fact that 68% of all public housing units would be sited on
only one cross-town axis in this area of New York City. As the Court of Appeals observed, the
resulting high concentration of low-income housing would hardly further racial and economic
integration. The environmental "impact . . . on social fabric and community structures" was
given a B rating in the report, indicating that, from this perspective, the project is "questionable"
and ameliorative measures are "mandated." The report lists 10 ameliorative measures
necessary to make the project acceptable. The report also discusses two alternatives, Sites 9
and 41, both of which are the appropriate size for the project and require "only minimal"
amounts of relocation and clearance. Concerning Site 9, the report explicitly concludes that
"[f]rom the standpoint of social environmental impact, this location would be superior to Site 30
for the development of low-rent public housing." The sole reason for rejecting the
environmentally superior site was the fact that, if the location were shifted to Site 9, there would
be a projected delay of two years in the construction of the housing.
The issue before the Court of Appeals, therefore, was whether HUD was free under NEPA to
reject an alternative acknowledged to be environmentally preferable solely on the ground that
any change in sites would cause delay. This was hardly a "peripheral issue" in the case.
Whether NEPA, which sets forth "significant substantive goals," Vermont Yankee Nuclear
Power Corp. v. NRDC, supra at 435 U. S. 558, permits a projected 2-year time difference to
be controlling over environmental superiority is by no means clear. Resolution of the issue,
however, is certainly within the normal scope of review of agency action to determine if it is
arbitrary,
Page 444 U. S. 231
capricious, or an abuse of discretion.* The question whether HUD can make delay the
paramount concern over environmental superiority is essentially a restatement of the question
whether HUD in considering the environmental consequences of its proposed action gave
those consequences a "hard look," which is exactly the proper question for the reviewing court
to ask. Kleppe v. Sierra Club, supra at 427 U. S. 410, n. 21.
The issue of whether the Secretary's decision was arbitrary or capricious is sufficiently difficult
and important to merit plenary consideration in this Court. Further, I do not subscribe to the
Court's apparent suggestion that Vermont Yankee limits the reviewing court to the essentially
mindless task of determining whether an agency "considered" environmental factors even if
that agency may have effectively decided to ignore those factors in reaching its conclusion.
Indeed, I cannot believe that the Court would adhere to that position in a different factual setting.
Our cases establish that the "arbitrary or capricious" standard prescribes a "searching and
careful" judicial inquiry designed to ensure that the agency has not exercised its discretion in
an unreasonable manner. Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U. S.
402, 401 U. S. 416 (1971). Believing that today's summary reversal represents a departure
from that principle, I respectfully dissent.
It is apparent to me that this is not the type of case for a summary disposition. We should at
least have a plenary hearing.
* The Secretary concedes that, if an agency gave little or no weight to environmental values,
its decision might be arbitrary or capricious. Pet. for Cert. in No. 7184, p. 15, n. 16.
FIRST DIVISION [G.R. No. 148622. September 12, 2002.]
REPUBLIC OF THE PHILIPPINES, represented by HON. HEHERSON T. ALVAREZ, in his
capacity as Secretary of the DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES (DENR), CLARENCE L. BAGUILAT, in his capacity as the Regional
Executive Director of DENR-Region XI and ENGR. BIENVENIDO L. LIPAYON, in his
capacity as the Regional Director of the DENR-ENVIRONMENTAL MANAGEMENT
BUREAU (DENR-EMB), Region XI, Petitioners,
v. THE CITY OF DAVAO, represented by BENJAMIN C. DE GUZMAN, City
Mayor, Respondent.
DECISION
YNARES-SANTIAGO, J.:
Before us is a petition for review 1 on certiorari assailing the decision 2 dated May 28, 2001 of
the Regional Trial Court of Davao City, Branch 33, which granted the writ of mandamus and
injunction in favor of respondent, the City of Davao, and against petitioner, the Republic,
represented by the Department of Environment and Natural Resources (DENR). The trial court
also directed petitioner to issue a Certificate of Non-Coverage in favor
of Respondent.chanrob1es virtua1 1aw 1ibrary
The antecedent facts of the case are as follows:chanrob1es virtual 1aw library
On August 11, 2000, respondent filed an application for a Certificate of Non-Coverage (CNC)
for its proposed project, the Davao City Artica Sports Dome, with the Environmental
Management Bureau (EMB), Region XI. Attached to the application were the required
documents for its issuance, namely, a) detailed location map of the project site; b) brief project
description; and c) a certification from the City Planning and Development Office that the project
is not located in an environmentally critical area (ECA). The EMB Region XI denied the
application after finding that the proposed project was within an environmentally critical area
and ruled that, pursuant to Section 2, Presidential Decree No. 1586, otherwise known as the
Environmental Impact Statement System, in relation to Section 4 of Presidential Decree No.
1151, also known as the Philippine Environment Policy, the City of Davao must undergo the
environmental impact assessment (EIA) process to secure an Environmental Compliance
Certificate (ECC), before it can proceed with the construction of its project.
Believing that it was entitled to a Certificate of Non-Coverage, respondent filed a petition for
mandamus and injunction with the Regional Trial Court of Davao, docketed as Civil Case No.
28, 133-2000. It alleged that its proposed project was neither an environmentally critical project
nor within an environmentally critical area; thus it was outside the scope of the EIS system.
Hence, it was the ministerial duty of the DENR, through the EMB-Region XI, to issue a CNC in
favor of respondent upon submission of the required documents.
The Regional Trial Court rendered judgment in favor of respondent, the dispositive portion of
which reads as follows:chanrob1es virtual 1aw library
WHEREFORE, finding the petition to be meritorious, judgment granting the writ of mandamus
and injunction is hereby rendered in favor of the petitioner City of Davao and against
respondents Department of Environment and Natural Resources and the other respondents
by:chanrob1es virtual 1aw library
1) directing the respondents to issue in favor of the petitioner City of Davao a Certificate of
Non-Coverage, pursuant to Presidential Decree No. 1586 and related laws, in connection with
the construction by the City of Davao of the Artica Sports Dome;
2) making the preliminary injunction issued on December 12, 2000 permanent. Costs de oficio.
SO ORDERED.
The trial court ratiocinated that there is nothing in PD 1586, in relation to PD 1151 and Letter
of Instruction No. 1179 (prescribing guidelines for compliance with the EIA system), which
requires local government units (LGUs) to comply with the EIS law. Only agencies and
instrumentalities of the national government, including government owned or controlled
corporations, as well as private corporations, firms and entities are mandated to go through the
EIA process for their proposed projects which have significant effect on the quality of the
environment. A local government unit, not being an agency or instrumentality of the National
Government, is deemed excluded under the principle of expressio unius est exclusio alterius.
The trial court also declared, based on the certifications of the DENR-Community Environment
and Natural Resources Office (CENRO)-West, and the data gathered from the Philippine
Institute of Volcanology and Seismology (PHIVOLCS), that the site for the Artica Sports Dome
was not within an environmentally critical area. Neither was the project an environmentally
critical one. It therefore becomes mandatory for the DENR, through the EMB Region XI, to
approve respondent’s application for CNC after it has satisfied all the requirements for its
issuance. Accordingly, petitioner can be compelled by a writ of mandamus to issue the CNC, if
it refuses to do so.
Petitioner filed a motion for reconsideration, however, the same was denied. Hence, the instant
petition for review.
With the supervening change of administration, respondent, in lieu of a comment, filed a
manifestation expressing its agreement with petitioner that, indeed, it needs to secure an ECC
for its proposed project. It thus rendered the instant petition moot and academic. However, for
the guidance of the implementors of the EIS law and pursuant to our symbolic function to
educate the bench and bar, 4 we are inclined to address the issue raised in this petition.
27
Section 15 of Republic Act 7160, 5 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. 6 Proprietary functions are those that
seek to obtain special corporate benefits or earn pecuniary profit and intended for private
advantage and benefit. 7 When exercising governmental powers and performing governmental
duties, an LGU is an agency of the national government. 8 When engaged in corporate
activities, it acts as an agent of the community in the administration of local affairs. 9
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. 10 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.chanrob1es virtua1 1aw 1ibrary
Further, it is a rule of statutory construction that every part of a statute must be interpreted with
reference to the context, i.e., that every part must be considered with other parts, and kept
subservient to the general intent of the enactment. 11 The trial court, in declaring local
government units as exempt from the coverage of the EIS law, failed to relate Section 2 of PD
1586 12 to the following provisions of the same law:chanrob1es virtual 1aw library
WHEREAS, the pursuit of a comprehensive and integrated environmental protection program
necessitates the establishment and institutionalization of a system whereby the exigencies of
socio-economic undertakings can be reconciled with the requirements of environmental quality;
. . . and not within a declared watershed area; and
Section 1. Policy. — It is hereby declared the policy of the State to attain and maintain a rational
and orderly balance between socio-economic growth and environmental protection.
x x x from a fault zone.
Section 4. Presidential Proclamation of Environmentally Critical Areas and Projects. — The
President of the Philippines may, on his own initiative or upon recommendation of the National
Environmental Protection Council, by proclamation declare certain projects, undertakings or
areas in the country as environmentally critical. 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. For the proper management of said critical project or area, the
President may by his proclamation reorganize such government offices, agencies, institutions,
corporations or instrumentalities including the realignment of government personnel, and their
specific functions and responsibilities.
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." 13 The Civil Code defines a person as either natural or juridical. The state and
its political subdivisions, i.e., the local government units 14 are juridical persons. 15
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.
The foregoing arguments, however, presuppose that a project, for which an Environmental
Compliance Certificate is necessary, is environmentally critical or within an environmentally
critical area. In the case at bar, respondent has sufficiently shown that the Artica Sports Dome
will not have a significant negative environmental impact because it is not an environmentally
critical project and it is not located in an environmentally critical area. In support of this
contention, respondent submitted the following:chanrob1es virtual 1aw library
1. Certification from the City Planning and Development Office that the project is not located in
an environmentally critical area;
2. Certification from the Community Environment and Natural Resources Office (CENRO-West)
that the project area is within the 18-30% slope, is outside the scope of the NIPAS (R.A. 7586),
3. Certification from PHILVOCS that the project site is thirty-seven (37) kilometers southeast of
the southernmost extension of the Davao River Fault and forty-five (45) kilometers west of the
Eastern Mindanao Fault; and is outside the required minimum buffer zone of five (5) meters
The trial court, after a consideration of the evidence, found that the Artica Sports Dome is not
within an environmentally critical area. Neither is it an environmentally critical project. It is
axiomatic that factual findings of the trial court, when fully supported by the evidence on record,
are binding upon this Court and will not be disturbed on appeal. 17 This Court is not a trier of
facts. 18
There are exceptional instances when this Court may disregard factual findings of the trial
court, namely: a) when the conclusion is a finding grounded entirely on speculations, surmises,
or conjectures; b) when the inference made is manifestly mistaken, absurd, or impossible; c)
where there is a grave abuse of discretion; d) when the judgment is based on a
misapprehension of facts; e) when the findings of fact are conflicting; f) when the Court of
Appeals, in making its findings, went beyond the issues of the case and the same are contrary
to the admissions of both appellant and appellee; g) when the findings of the Court of Appeals
are contrary to those of the trial court; h) when the findings of fact are conclusions without
citation of specific evidence on which they are based; i) when the finding of fact of the Court of the Environmental Impact Statement System, shall be by Presidential Proclamation, in
Appeals is premised on the supposed absence of evidence but is contradicted by the evidence accordance with Section 4 of PD 1586 quoted above.
on record; and j) when the Court of Appeals manifestly overlooked certain relevant facts not
disputed by the parties and which, if properly considered, would justify a different conclusion. Pursuant thereto, Proclamation No. 2146 was issued on December 14, 1981, proclaiming the
19 None of these exceptions, however, obtain in this case. following areas and types of projects as environmentally critical and within the scope of the
Environmental Impact Statement System established under PD 1586:chanrob1es virtual 1aw
The Environmental Impact Statement System, which ensures environmental protection and library
regulates certain government activities affecting the environment, was established by
Presidential Decree No. 1586. Section 2 thereof states:chanrob1es virtual 1aw library A. Environmentally Critical Projects
I. Heavy Industries
There is hereby established an Environmental Impact Statement System founded and based a. Non-ferrous metal industries
on the environmental impact statement required under Section 4 of Presidential Decree No. b. Iron and steel mills
1151, of all agencies and instrumentalities of the national government, including government- c. Petroleum and petro-chemical industries including oil and gas
owned or controlled corporations, as well as private corporations, firms and entities, for every d. Smelting plants
proposed project and undertaking which significantly affect the quality of the environment. II. Resource Extractive Industries
a. Major mining and quarrying project
Section 4 of PD 1151, on the other hand, provides:chanrob1es virtual 1aw library b. Forestry projects
1. Logging
Environmental Impact Statements. — Pursuant to the above enunciated policies and goals, all 2. Major wood processing projects
agencies and instrumentalities of the national government, including government-owned or 3. Introduction of fauna (exotic-animals) in public/private forests
controlled corporations, as well as private corporations, firms and entities shall prepare, file and 4. Forest occupancy
include in every action, project or undertaking which significantly affects the quality of the 5. Extraction of mangrove products
environment a detailed statement on — 6. Grazing
c. Fishery Projects
(a) the environmental impact of the proposed action, project or undertaking 1. Dikes for/and fishpond development projects
III. Infrastructure Projects
(b) any adverse environmental effect which cannot be avoided should the proposal be a. Major dams
implemented b. Major power plants (fossil-fueled, nuclear fueled, hydroelectric or geothermal)
c. Major reclamation projects
(c) alternative to the proposed action d. Major roads and bridges
B. Environmentally Critical Areas
(d) a determination that the short-term uses of the resources of the environment are consistent 1. All areas declared by law as national parks, watershed reserves, wildlife preserves and
with the maintenance and enhancement of the long-term productivity of the same; and sanctuaries;
2. Areas set aside as aesthetic potential tourist spots;
(e) whenever a proposal involves the use of depletable or nonrenewable resources, a finding 3. Areas which constitute the habitat for any endangered or threatened species of indigenous
must be made that such use and commitment are warranted. Philippine Wildlife (flora and fauna);
4. Areas of unique historic, archaeological, or scientific interests;
Before an environmental impact statement is issued by a lead agency, all agencies having 5. Areas which are traditionally occupied by cultural communities or tribes;
jurisdiction over, or special expertise on, the subject matter involved shall comment on the draft 6. Areas frequently visited and/or hard-hit by natural calamities (geologic hazards, floods,
environmental impact statement made by the lead agency within thirty (30) days from receipt typhoons, volcanic activity, etc.);
of the same. 7. Areas with critical slopes;
8. Areas classified as prime agricultural lands;
Under Article II, Section 1, of the Rules and Regulations Implementing PD 1586, the declaration 9. Recharged areas of aquifers;
of certain projects or areas as environmentally critical, and which shall fall within the scope of 10. Water bodies characterized by one or any combination of the following conditions;
29
a. tapped for domestic purposes
b. within the controlled and/or protected areas declared by appropriate authorities
c. which support wildlife and fishery activities
11. Mangrove areas characterized by one or any combination of the following conditions:
a. with primary pristine and dense young growth;
b. adjoining mouth of major river systems;
c. near or adjacent to traditional productive fry or fishing grounds;
d. which act as natural buffers against shore erosion, strong winds and storm floods;
e. on which people are dependent for their livelihood.
12. Coral reefs, characterized by one or any combinations of the following conditions:
a. with 50% and above live coralline cover;
b. spawning and nursery grounds for fish;
c. which act as natural breakwater of coastlines.
In this connection, Section 5 of PD 1586 expressly states:
Environmentally Non-Critical Projects. — All other projects, undertakings and areas not
declared by the President as environmentally critical shall be considered as non-critical and
shall not be required to submit an environmental impact statement. The National Environmental
Protection Council, thru the Ministry of Human Settlements may however require non-critical
projects and undertakings to provide additional environmental safeguards as it may deem
necessary.
The Artica Sports Dome in Langub does not come close to any of the projects or areas
enumerated above. Neither is it analogous to any of them. It is clear, therefore, that the said
project is not classified as environmentally critical, or within an environmentally critical area.
Consequently, the DENR has no choice but to issue the Certificate of Non-Coverage. It
becomes its ministerial duty, the performance of which can be compelled by writ of mandamus,
such as that issued by the trial court in the case at bar.chanrob1es virtua1 1aw 1ibrary
WHEREFORE, in view of the foregoing, the instant petition is DENIED. The decision of the
Regional Trial Court of Davao City, Branch 33, in Civil Case No. 28,133-2000, granting the writ
of mandamus and directing the Department of Environment and Natural Resources to issue in
favor of the City of Davao a Certificate of Non-Coverage, pursuant to Presidential Decree No.
1586 and related laws, in connection with the construction of the Artica Sports Dome, is
AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., Vitug and Carpio, JJ., concur.
G.R. No. 160932 January 14, 2013
SPECIAL PEOPLE, INC. FOUNDATION, REPRESENTED BY ITS CHAIRMAN, ROBERTO
P. CERICOS, Petitioner,
vs.
NESTOR M. CANDA, BIENVENIDO LIPA YON, JULIAN D. AMADOR, BOHOL PROVINCIAL
CHIEF, REGIONAL DIRECTOR, AND NATIONAL DIRECTOR, RESPECTIVELY,
ENVIRONMENTAL MANAGEMENT BUREAU, DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES, AND THE SECRETARY OF THE DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES, ALL SUED IN BOTH THEIR OFFICIAL AND
PRIVATE CAPACITIES, Respondents.
DECISION
BERSAMIN, J.:
The peremptory writ of mandamus is an extraordinary remedy that is issued only in extreme
necessity, and the ordinary course of procedure is powerless to afford an adequate and speedy
relief to one who has a clear legal right to the performance of the act to be compelled.
Antecedents
The petitioner was a proponent of a water-resource development and utilization project in
Barangay Jimilia-an in the Municipality of Loboc, Bohol that would involve the tapping and
purifying of water from the Loboc River, and the distribution of the purified water to the residents
of Loboc and six other municipalities. The petitioner applied for a Certificate of Non-Coverage
(CNC) with the Environmental Management Bureau (EMB) of the Department of Environment
and Natural Resources (DENR), Region 7, seeking to be exempt from the requirement of the
Environmental Compliance Certificate (ECC) under Section 4 of Presidential Decree No. 1586
on the following justifications, to wit:
1) The whole project simply involves tapping of water from the Loboc River, filtering
and purifying it, and distributing the same to the consumers in the covered towns;
2) From the source to the filtration plant, then to the purifier stations, then finally to the
consumers’ households, water flows through steel pipes;
3) The filtration and purifying process employs the latest technology—
"electrocatalytic"—internationally accepted for safety and environment friendliness;
4) No waste is generated, as the electrocatalytic process dissolves all impurities in the
water;
 5) The project involves no destruction [n]or harm to the environment. On the other
hand, it is environment friendly.1
Upon evaluating the nature and magnitude of the environmental impact of the project,
respondent Nestor M. Canda, then Chief of EMB in Bohol, rendered his findings in a letter
dated December 4, 2001, as follows:
1) The project is located within a critical area; hence, Initial Environmental Examination
is required.
2) The project is socially and politically sensitive therefore proof of social acceptability
should be established. Proper indorsement from the Protected Area Management
Bureau or PAMB should be secured.2 (Emphasis supplied)
On January 11, 2002, the petitioner appealed Canda’s findings to respondent EMB Region 7
Director Bienvenido L. Lipayon (RD Lipayon), claiming that it should also be issued a CNC
because the project was no different from the Loboc-Loay waterworks project of the
Department of Public Works and Highways (DPWH) that had recently been issued a CNC. 3
On April 3, 2002, RD Lipayon notified the petitioner that its documents substantially complied
with the procedural aspects of the EMB’s review, and that the application was assigned EMB-
DENR-7 Control No. CNC-02-080 for easy reference in case of follow-up and submission of
additional requirements.4
Later on, RD Lipayon informed the petitioner that an Initial Environmental Examination
document was required for the project due to its significant impact in the area. 5
On August 26, 2002, RD Lipayon required the petitioner to submit the following documents to
enable the EMB to determine whether the project was within an environmentally critical area
or not, to wit:
1. Certification from DENR, Provincial Environment and Natural Resources Office
(PENRO) that it is not within areas declared by law as national parks, watershed
reserves, wildlife preservation area, sanctuaries and not within the purview of Republic
Act No. 7586 or the National Integrated Protected Areas System (NIPAS) Act, and
other issuances including international commitments and declarations;
2. Certification from the DENR Regional Office/ PENRO [that] the areas within the
project do not constitute the habitat for any endangered or threatened species or
indigenous wildlife (Flora and Fauna).
3. Certification from the following:
3.1. Philippine Atmospheric Geophysical and Astronomical Services
Administration (PAGASA) that the area is not frequently visited or hard-hit by
typhoons. This shall refer to all areas where typhoon signal no. 3 not hoisted
for at least twice a year during the last five (5) years prior to the year of
reckoning. Years to be considered shall be from January 1995 to December
2001.
3.2. Philippine Institute of Volcanology and Seismology (PHIVOLCS) that the
area was not subjected to an earthquake of at least intensity VII in the Rossi-
Forel scale or its equivalent and hit by tsunamis during the period of 1638 until
the year 2001.
3.3. PHIVOLCS that the area was not subjected to earthquakes of at least
intensity VII in the Rossi-Forel scale or its equivalent during the period of 1949
until the year 2001.
3.4. PAGASA that the area is not storm surge-prone.
3.5. Mines and Geosciences Bureau Region 7 (MGB 7) that the area is not
located along fault lines or within fault zones and not located in critical slope.
3.6. City Mayor and/or City Engineers Office that the area is not flood prone.
3.7. Network of Protected Areas for Agriculture (NPAA) of the Bureau of Soils
and Water Management (BSWM) that the area is not classified as Prime
Agricultural Land.
4. Certification from the Provincial Tourism Office or its equivalent office that areas in
your project are not set-aside as aesthetic potential tourist spot.
5. Certification from the National Water Resources Board (NWRB) that areas within
your project are not recharged areas of aquifer.
6. Certification from DENR regional Office and/or Environmental Management Bureau
7 (EMB 7) that Loboc River is not characterized by one or any combination of the
following conditions:
a. Tapped for domestic purposes;
b. With controlled and/or protected areas declared by appropriate authorities;
and
31
 c. Which support wildlife and fishery activities.
A Certificate of Non-Coverage will duly be issued to your foundation once all the above
mentioned required certifications are complied with.
Projects that are covered by P.D. 1586 or the Environmental Impact System (EIS) Law should
not start unless the Project Proponent should secure an Environmental Compliance Certificate
(ECC), otherwise penalties shall be imposed.6 (Emphases supplied)
On January 28, 2003, the petitioner submitted eight certifications, 7 including the certification
issued by the Philippine Institute of Volcanology and Seismology (PHIVOLCS), as follows:
That the project area, Loboc, Bohol was subjected to an earthquake of Intensity VII in the
adapted Rossi-Forel scale of I-IX last February 8, 1990. The magnitude of the earthquake is
6.8 and the highest intensity reported was VIII, based on the Rossi-Forel Intensity Scale. During
the said earthquake, the PMI Academy Building collapsed while minor cracks were sustained
by the municipal hall, public school, town church and some other houses in the town. There
were reports that immediately after the earthquake, the force of the incoming waves from the
sea caused Alijuan River in the town of Duero to flow inland. The report also states that the
waves affected 10-50 meters of the coastal beach of the towns of Jagna, Duero, Guindulman,
Garcia Hernandez and Valencia.8 (Emphases supplied)
The petitioner failed to secure a certification from the Regional Office of the Mines and
Geosciences Bureau (RO-MGB) to the effect that the project area was not located along a fault
line/fault zone or a critical slope because RO-MGB did not have the data and expertise to
render such finding, and thus had to forward the petitioner’s request to the MGB Central Office. 9
Upon the MGB’s advice, the petitioner sought and obtained the required certification from
PHIVOLCS, but the certification did not state whether the project area was within a critical
slope. Instead, the certification stated that the project site was approximately 18 kilometers
west of the East Bohol Fault.10
Given the tenor of the certification from PHIVOLCS, RD Lipayon’s letter dated February 4, 2003
declared that the project was within an environmentally critical area, and that the petitioner was
not entitled to the CNC, viz:
After thorough review of your submitted certifications, it was found out that the area was
subjected to an earthquake of Intensity VII in the adapted Rossi-Forel scale wherein the
magnitude of the earthquake is 6.8 with the highest intensity reported of VIII and you fail to
support certification that the project area is not within critical slope. And based on the Water
Usage and Classification per Department Order (DAO) 34 Series of 1990, subject river system
was officially classified as Class B intended for swimming and bathing purposes. Moreover,
one component of your project involves opening of roadway connected to the barangay road.
Therefore, we reiterate our previous stand that your project is covered by the EIS System
pursuant to P.D. 1586, the Environmental Impact Statement Law.11
On March 27, 2003, the petitioner filed a petition for mandamus and damages in the Regional
Trial Court (RTC) in Loay, Bohol,12 alleging that it was now entitled to a CNC as a matter of
right after having complied with the certification requirements; and that the EMB had earlier
issued a CNC to the DPWH for a similar waterworks project in the same area.
In the decision dated November 18, 2003,13 the RTC dismissed the petition for mandamus
upon the following considerations, namely: (1) PHIVOLCS certified that the project site had
been subjected to an Intensity VII earthquake in 1990; (2) the CNC issued by the EMB to a
similar waterworks project of the DPWH in the same area was only for the construction of a
unit spring box intake and pump house, and the DENR issued a cease and desist order relative
to the DPWH’s additional project to put up a water filtration plant therein; (3) the determination
of whether an area was environmentally critical was a task that pertained to the EMB; (4) the
assignment of a control number by the EMB to the petitioner’s application did not mean that
the application was as good as approved; (5) the RTC would not interfere with the primary
prerogative of the EMB to review the merits of the petitioner’s application for the CNC; and (6)
there was already a pending appeal lodged with the DENR Secretary.
Hence, this appeal brought directly to the Court via petition for review on certiorari.
Issues
The petitioner submits the following issues:
A. WHETHER OR NOT, AFTER PETITIONER’S DUE COMPLIANCE WITH THE
REQUIREMENTS MANDATED BY RESPONDENTS FOR THE ISSUANCE OF THE
CERTIFICATE OF NON-COVERAGE (CNC) APPLIED FOR BY PETITIONER, IT IS
NOW THE RIPENED DUTY OF RESPONDENTS, THROUGH RESPONDENT EMB
REGIONAL DIRECTOR, TO ISSUE SAID DOCUMENT IN FAVOR OF PETITIONER;
B. WHETHER OR NOT PETITIONER HAS EXHAUSTED AVAILABLE
ADMINISTRATIVE REMEDIES THROUGH AN APPEAL TO RESPONDENT DENR
SECRETARY WHO HAS SAT ON SAID APPEAL UP TO THE PRESENT;
C. WHETHER OR NOT PETITIONER IS ENTITLED TO RECOVER DAMAGES FROM
RESPONDENTS IN THEIR PERSONAL CAPACITY.14
The petitioner insists that RD Lipayon already exercised his discretion by finding that the
application substantially complied with the procedural aspects for review and by assigning
Control No. CNC-02-080 to its application; that after the petitioner complied with the
requirements enumerated in the August 26, 2002 letter of RD Lipayon, the EMB became duty-
bound to issue the CNC to the petitioner; that the EMB issued a CNC to a similar project of the
DPWH in the same area; that it filed an appeal with the DENR Secretary, but the appeal
remained unresolved; and that it brought the petition for mandamus precisely as a speedier
recourse.
In their comment, RD Lipayon and Canda aver that the act complained of against them involved
an exercise of discretion that could not be compelled by mandamus; that the petitioner’s
proposed project was located within an environmentally critical area, and the activities to be
done were so significant that they would create massive earth movement and environmental
degradation; that the petitioner violated the rule against forum shopping; and that the petitioner
had no cause of action against them for failure to exhaust administrative remedies.
On his part, the DENR Secretary, through the Solicitor General, contends that the petition
raises questions of fact that are not proper in a petition for review; that the petitioner should
have appealed to the CA under Rule 41 of the Rules of Court; that the grant or denial of a CNC
application is discretionary and cannot be compelled by mandamus; and that the petitioner
failed to exhaust administrative remedies.
Accordingly, the Court is called upon to resolve, firstly, whether the appeal directly to this Court
from the RTC was proper, and, secondly, whether the petition for mandamus was the correct
recourse.
Ruling
The petition for review is denied for its lack of merit.
1.
Petitioner’s appeal is improper under Rule 45, Rules of Court
This appeal by certiorari is being taken under Rule 45, Rules of Court, whose Section 1
expressly requires that the petition shall raise only questions of law which must be distinctly set
forth. Yet, the petitioner hereby raises a question of fact whose resolution is decisive in this
appeal. That issue of fact concerns whether or not the petitioner established that its project was
not located in an environmentally critical area. For this reason, the Court is constrained to deny
due course to the petition for review.
It is a settled rule, indeed, that in the exercise of our power of review, the Court is not a trier of
facts and does not normally undertake the re-examination of the evidence presented by the
contending parties during the trial of the case. The Court relies on the findings of fact of the
Court of Appeals or of the trial court, and accepts such findings as conclusive and binding
unless any of the following exceptions obtains, namely: (a) when the findings are grounded
entirely on speculation, surmises or conjectures; (b) when the inference made is manifestly
mistaken, absurd or impossible; (c) when there is grave abuse of discretion; (d) when the
judgment is based on a misapprehension of facts; (e) when the findings of facts are conflicting;
(f) when in making its findings the Court of Appeals or the trial court went beyond the issues of
the case, or its findings are contrary to the admissions of both the appellant and the appellee;
(g) when the findings are contrary to the trial court; (h) when the findings are conclusions
without citation of specific evidence on which they are based; (i) when the facts set forth in the
petition as well as in the petitioner’s main and reply briefs are not disputed by the respondent;
(j) when the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record; and (k) when the Court of Appeals or the trial court
manifestly overlooked certain relevant facts not disputed by the parties, which, if properly
considered, would justify a different conclusion.15 However, none of the aforementioned
exceptions applies herein.
2.
Mandamus was an improper remedy for petitioner
We dismiss the present recourse because the petitioner failed to exhaust the available
administrative remedies, and because it failed to show that it was legally entitled to demand
the performance of the act by the respondents.
It is axiomatic, to begin with, that a party who seeks the intervention of a court of law upon an
administrative concern should first avail himself of all the remedies afforded by administrative
processes. The issues that an administrative agency is authorized to decide should not be
summarily taken away from it and submitted to a court of law without first giving the agency the
opportunity to dispose of the issues upon due deliberation.16 The court of law must allow the
administrative agency to carry out its functions and discharge its responsibilities within the
specialized areas of its competence.17 This rests on the theory that the administrative authority
is in a better position to resolve questions addressed to its particular expertise, and that errors
committed by subordinates in their resolution may be rectified by their superiors if given a
chance to do so.18
The records show that the petitioner failed to exhaust the available administrative remedies. At
the time RD Lipayon denied the petitioner’s application for the CNC, Administrative Order No.
42 dated November 2, 200219 had just vested the authority to grant or deny applications for the
ECC in the Director and Regional Directors of the EMB. Notwithstanding the lack of a specific
implementing guideline to what office the ruling of the EMB Regional Director was to be
appealed, the petitioner could have been easily guided in that regard by the Administrative
Code of 1987, which provides that the Director of a line bureau, such as the EMB, 20 shall have
supervision and control over all division and other units, including regional offices, under the
bureau.21 Verily, supervision and control include the power to "review, approve, reverse or
modify acts and decisions of subordinate officials or units."22 Accordingly, the petitioner should
have appealed the EMB Regional Director’s decision to the EMB Director, who exercised
supervision and control over the former.
33
It is relevant to mention that the DENR later promulgated Administrative Order No. 2003-3023 in
order to define where appeals should be taken, providing as follows:
Section 6. Appeal
Any party aggrieved by the final decision on the ECC/CNC applications may, within 15 days
from receipt of such decision, file an appeal on the following grounds:
a. Grave abuse of discretion on the part of the deciding authority, or
b. Serious errors in the review findings.
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:
1âwphi1
Deciding Authority Where to file the appeal
EMB Regional Office Director Office of the EMB Director
EMB Central Office Director Office of the DENR Secretary
DENR Secretary Office of the President
Moreover, the petitioner states in its pleadings that it had a pending appeal with the DENR
Secretary.1âwphi1 However, the records reveal that the subject of the appeal of the petitioner
was an undated resolution of the DENR Regional Director, Region VII, denying its application
for the CNC,24 not the decision of RD Lipayon. Nonetheless, even assuming that the pending
appeal with the DENR Secretary had related to RD Lipayon’s decision, the petitioner should
still have waited for the DENR Secretary to resolve the appeal in line with the principle of
exhaustion of administrative remedies. Its failure to do so rendered its resort to mandamus in
the RTC premature. The omission is fatal, because mandamus is a remedy only when there is
no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law. 25
Another reason for denying due course to this review is that the petitioner did not establish that
the grant of its application for the CNC was a purely ministerial in nature on the part of RD
Lipayon. Hence, mandamus was not a proper remedy.
The CNC is a certification issued by the EMB certifying that a project is not covered by the
Environmental Impact Statement System (EIS System) and that the project proponent is not
required to secure an ECC. 26 The EIS System was established by Presidential Decree (P.D.)
No. 1586 pursuant to Section 4 of P.D. No. 1151 (Philippine Environmental Policy) that required
all entities to submit an EIS for projects that would have a significant effect on the environment,
thus:
Section 4. Environmental Impact Statements. – Pursuant to the above enunciated policies and
goals, all agencies and instrumentalities of the national government, including government-
owned or controlled corporations, as well as private corporations, firms and entities shall
prepare, file and include in every action, project or undertaking which significantly affects the
quality of the environment a detailed statement on–
(a) the environmental impact of the proposed action, project or undertaking
(b) any adverse environmental effect which cannot be avoided should the proposal be
implemented
(c) alternative to the proposed action
(d) a determination that the short-term uses of the resources of the environment are
consistent with the maintenance and enhancement of the long-term productivity of the
same; and
(e) whenever a proposal involves the use of depletable or non-renewable resources, a
finding must be made that such use and commitment are warranted.
xxxx
P.D. No. 1586 exempted from the requirement of an EIS the projects and areas not declared
by the President of the Philippines as environmentally critical, 27 thus:
Section 5. Environmentally Non-Critical Projects. - All other projects, undertakings and areas
not declared by the Presidents as environmentally critical shall be considered as non-critical
and shall not be required to submit an environmental impact statement. The National
Environmental Protection Council, thru the Ministry of Human Settlements may however
require non-critical projects and undertakings to provide additional environmental safeguards
as it may deem necessary.
On December 14, 1981, the President issued Proclamation No. 2146 declaring areas and types
of projects as environmentally critical and within the scope of the EIS System, as follows:
A. Environmentally Critical Projects
I. Heavy Industries
a. Non-ferrous metal industries
 b. Iron and steel mills 1. All areas declared by law as national parks, watershed reserves, wildlife
preserves and sanctuaries;
c. Petroleum and petro-chemical industries including oil and gas
2. Areas set aside as aesthetic potential tourist spots;
d. Smelting plants
3. Areas which constitute the habitat for any endangered or threatened species
II. Resource Extractive Industries of indigenous Philippine Wildlife (flora and fauna);

a. Major mining and quarrying projects 4. Areas of unique historic, archaeological, or scientific interests;

b. Forestry projects 5. Areas which are traditionally occupied by cultural communities or tribes;

1. Logging 6. Areas frequently visited and/or hard-hit by natural calamities (geologic

hazards, floods, typhoons, volcanic activity, etc.);
2. Major wood processing projects
7. Areas with critical slopes;
3. Introduction of fauna (exotic-animals) in public/private forests
8. Areas classified as prime agricultural lands;
4. Forest occupancy
9. Recharged areas of aquifers;
5. Extraction of mangrove products
10. Water bodies characterized by one or any combination of the following
6. Grazing conditions;

a. tapped for domestic purposes

c. Fishery Projects

1. Dikes for fishpond development projects b. within the controlled and/or protected areas declared by appropriate
authorities
III. Infrastructure Projects
c. which support wildlife and fishery activities
a. Major dams
11. Mangrove areas characterized by one or any combination of the following
conditions:
b. Major power plants (fossil-fueled, nuclear fueled, hydroelectric or
geothermal)
a. with primary pristine and dense young growth;
c. Major reclamation projects
b. adjoining mouth of major river systems;
d. Major roads and bridges.
c. near or adjacent to traditional productive fry or fishing grounds;
B. Environmentally Critical Areas
35
 d. which act as natural buffers against shore erosion, strong winds and
storm floods;
e. on which people are dependent for their livelihood.
12. Coral reef, characterized by one or any combination of the following
conditions:
a. with 50% and above live coralline cover;
b. spawning and nursery grounds for fish;
c. which act as natural breakwater of coastlines.
Projects not included in the foregoing enumeration were considered non-critical to the
environment and were entitled to the CNC.
The foregoing considerations indicate that the grant or denial of an application for ECC/CNC is
not an act that is purely ministerial in nature, but one that involves the exercise of judgment
and discretion by the EMB Director or Regional Director, who must determine whether the
project or project area is classified as critical to the environment based on the documents to be
submitted by the applicant.
The petitioner maintains that RD Lipayon already exercised his discretion in its case when he
made his finding that the application substantially complied with the procedural requirements
for review. As such, he was then obliged to issue the CNC once the petitioner had submitted
the required certifications.
The petitioner errs on two grounds.
Firstly, RD Lipayon had not yet fully exercised his discretion with regard to the CNC application
when he made his finding. It is clear that his finding referred to the "procedural requirements
for review" only. He had still to decide on the substantive aspect of the application, that is,
whether the project and the project area were considered critical to the environment. In fact,
this was the reason why RD Lipayon required the petitioner to submit certifications from the
various government agencies concerned. Surely, the required certifications were not mere
formalities, because they would serve as the bases for his decision on whether to grant or deny
the application.
Secondly, there is no sufficient showing that the petitioner satisfactorily complied with the
requirement to submit the needed certifications. For one, it submitted no certification to the
effect that the project site was not within a critical slope. Also, the PHIVOLCS’s certification
showed that the project site had experienced an Intensity VII earthquake in 1990, a fact that
sufficed to place the site in the category of "areas frequently visited and/or hard-hit by natural
calamities." Clearly, the petitioner failed to establish that it had the legal right to be issued the
CNC applied for, warranting the denial of its application.
It is not amiss for us to observe, therefore, that the petitioner grossly misunderstood the nature
of the remedy of mandamus. To avoid similar misunderstanding of the remedy hereafter, a
short exposition on the nature and office of the remedy is now appropriate.
The writ of mandamus is of very ancient and obscure origin. It is believed that the writ was
originally part of the class of writs or mandates issued by the English sovereign to direct his
subjects to perform a particular act or duty.28 The earliest writs were in the form of letters
missive, and were mere personal commands. The command was a law in itself, from which
there was no appeal. The writ of mandamus was not only declaratory of a duty under an existing
law, but was a law in itself that imposed the duty, the performance of which it
commanded.29 The King was considered as the fountain and source of justice, and when the
law did not afford a remedy by the regular forms of proceedings, the prerogative powers of the
sovereign were invoked in aid of the ordinary powers of the courts.30
A judicial writ of mandamus, issued in the King’s name out of the court of King’s Bench that
had a general supervisory power over all inferior jurisdictions and officers, gradually supplanted
the old personal command of the sovereign.31 The court of King’s Bench, acting as the general
guardian of public rights and in the exercise of its authority to grant the writ, rendered the writ
of mandamus the suppletory means of substantial justice in every case where there was no
other specific legal remedy for a legal right, and ensured that all official duties were fulfilled
whenever the subject-matter was properly within its control.32 Early on, the writ of mandamus
was particularly used to compel public authorities to return the petitioners to public offices from
which they had been unlawfully removed.33
Mandamus was, therefore, originally a purely prerogative writ emanating from the King himself,
superintending the police and preserving the peace within the realm.34 It was allowed only in
cases affecting the sovereign, or the interest of the public at large.35 The writ of mandamus
grew out of the necessity to compel the inferior courts to exercise judicial and ministerial powers
invested in them by restraining their excesses, preventing their negligence and restraining their
denial of justice.36
Over time, the writ of mandamus has been stripped of its highly prerogative features and has
been assimilated to the nature of an ordinary remedy. Nonetheless, the writ has remained to
be an extraordinary remedy in the sense that it is only issued in extraordinary cases and where
the usual and ordinary modes of proceeding and forms of remedy are powerless to afford
redress to a party aggrieved, and where without its aid there would be a failure of justice. 37
The writ of mandamus has also retained an important feature that sets it apart from the other
remedial writs, i.e., that it is used merely to compel action and to coerce the performance of a
pre-existing duty.38 In fact, a doctrine well-embedded in our jurisprudence is that mandamus
will issue only when the petitioner has a clear legal right to the performance of the act sought
to be compelled and the respondent has an imperative duty to perform the same.39 The
petitioner bears the burden to show that there is such a clear legal right to the performance of
the act, and a corresponding compelling duty on the part of the respondent to perform the act.40
A key principle to be observed in dealing with petitions for mandamus is that such extraordinary
remedy lies to compel the performance of duties that are purely ministerial in nature, not those
that are discretionary.41 A purely ministerial act or duty is one that an officer or tribunal performs
in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal
authority, without regard to or the exercise of its own judgment upon the propriety or impropriety
of the act done. The duty is ministerial only when its discharge requires neither the exercise of
official discretion or judgment.42
The petitioner's disregard of the foregoing fundamental requisites for mandamus rendered its
petition in the RTC untenable and devoid of merit.
WHEREFORE, the Court DENIES the petition for review on certiorari; and ORDERS the
petitioner to pay the costs of suit.
SO ORDERED.
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
37
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, 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
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
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 follows 43 :
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 [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) 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.
41
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 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 Report 87 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 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
43
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
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
45
subject to the condition that reclamation contracts to be 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 PRA 107 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
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
47
 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
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
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;
49
WHEREAS, as a condition for the grant of this endorsement and to address all issues and Any party aggrieved by the final decision on the ECC / CNC applications may, within 15 days
concerns, this Honorable Council necessitates a sincere commitment from the Provincial from receipt of such decision, file an appeal on the following grounds:
Government of Aklan to the end that:
a. Grave abuse of discretion on the part of the deciding authority, or
1. To allocate an office space to LGU-Malay within the building in the reclaimed area;
b. Serious errors in the review findings.
2. To convene the Cagban and Caticlan Jetty Port Management Board before the
resumption of the reclamation project; 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.
3. That the reclamation project shall be limited only to 2.6 hectares in Barangay Frivolous appeals shall not be countenanced.
Caticlan and not beyond;
The proponent or any stakeholder may file an appeal to the following:
4. That the local transportation operators/cooperatives will not be displaced; and
Deciding Authority Where to file the appeal
5. The Provincial Government of Aklan conduct a simultaneous comprehensive study
on the environmental impact of the reclamation project especially during Habagat and EMB Regional Office Director Office of the EMB Director
Amihan seasons and put in place as early as possible mitigating measures on the
effect of the project to the environment. EMB Central Office Director Office of the DENR Secretary

WHEREAS, having presented these stipulations, failure to comply herewith will leave this DENR Secretary Office of the President
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.)
(Emphases supplied.)

The Sangguniang Bayan of Malay obviously imposed explicit conditions for respondent
Respondents argue that since there is an administrative appeal provided for, then petitioner is
Province to comply with on pain of revocation of its endorsement of the project, including the
duty bound to observe the same and may not be granted recourse to the regular courts for its
need to conduct a comprehensive study on the environmental impact of the reclamation project,
failure to do so.
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 We do not agree with respondents’ appreciation of the applicability of the rule on exhaustion of
petition moot and academic. 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:
On the issue of failure to exhaust administrative remedies
The rule regarding exhaustion of administrative remedies is not a hard and fast rule. It is not
Respondents, in essence, argue that the present petition should be dismissed for petitioner’s
applicable (1) where the question in dispute is purely a legal one, or (2) where the controverted
failure to exhaust administrative remedies and even to observe the hierarchy of courts.
act is patently illegal or was performed without jurisdiction or in excess of jurisdiction; or (3)
Furthermore, as the petition questions the issuance of the ECC and the NTP, this involves
where the respondent is a department secretary, whose acts as an alter ego of the President
factual and technical verification, which are more properly within the expertise of the concerned
bear the implied or assumed approval of the latter, unless actually disapproved by him, or (4)
government agencies.
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
Respondents anchor their argument on Section 6, Article II of DENR DAO 2003-30, which 17, 1966, 18 SCRA; Mitra vs. Subido, L-21691, September 15, 1967, 21 SCRA 127.
provides:
Said principle may also be disregarded when it does not provide a plain, speedy and adequate
Section 6. Appeal 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 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.
51
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) 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
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.
53
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 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."
55
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 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.

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.

57