Author: Alyssa Rodriguez
2.64 hectares of foreshore area in
BORACAY FOUNDATION,
INC. v. THE PROVINCE OF
AKLAN [G.R. No. 196870, June
26, 2012]
Petition: This 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
Petitioner: Boracay Foundation, Inc. (It is a
duly registered, non- stock domestic
corporation. 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. It
stands to be aggrieved by the decision
because it claims that the reclamation of
land on the Caticlan side (for the
improvement of the port) would unavoidably
adversely affect the Boracay side, where
petitioner’s members own establishments
engaged in the tourism trade.
Respondent: The Province of Aklan,
Represented by Governor Carlito S.
Marquez, The Philippine Reclamation
Authority, and the DENR-EMB (Region VI)
Ponencia: Leonardo-De Castro, J.
DOCTRINE: This case establishes the role
of private sector in maintaining order in
society. In this case, the Boracay
Foundation, Inc. (a private entitiy) brought
this case to the SC in its complaint against
the Province of Aklan in its non-consultative
and violative nature in securing permits for
jetty port renovation project, as well as in the
project’s implementation. (As such, please
pay attention Subsection iii, of No 3. of the
Ruling + Ratio)
FACTS:
1. In reply to the influx of tourists
visiting the Boracay island
“respondent Province
conceptualized the expansion of the
port facilities at Barangay Caticlan.”
2. May 7, 2009 - Pursuing this, the
Sangguniang Panlalawigan of Aklan
“authorized Governor Marquez to
file an application to reclaim the
Caticlan, Municipality of Malay,
Aklan” with respondent PRA
(Philippine Reclamation Authority –
the gov’t agency given the authority
to permit the reclaiming of land,
including foreshore and submerged
areas)  it was granted
3. July 22, 2009 – On the other hand,
the “Sangguniang Bayan of the
Municipality of Malay expressed its
strong opposition to the intended
foreshore lease application”
claiming that it would lead to the
degradation of the white sands of
Boracay
4. Governor Marquez sought to secure
an Environmental Compliance
Certificate (ECC), as required, from
the Department of Environment and
Natural Resources – Environmental
Management Bureau (DENR-EMB)
 it was granted
5. November 19, 2009 - the
Sangguniang Panlalawigan
authorized 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 (Boracay side,
supposedly converting the project
from being a mere “single project” to
a “co-located” one) in the areas
adjacent to the jetty ports at
Barangay Caticlan and Barangay
Manoc-manoc.
6. Respondent Province then
conducted a series of what it
calls “information-education
campaigns” (a mere act to inform,
rather than to consult, as alleged by
the petitioners) with the concerned
Municipality of Malay, residents,
stakeholders, NGOs, etc.
Municipality of Malay claims that
respondent violated 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. because for the
 petitioners, what the respondent
Province conducted were mere
“project presentations.”
7. June 23, 2010 - Municipality of
Malay continued to be in opposition
of the project and denied its request
for a favorable endorsement for the
Marina Project.
8. June 1, 2011 – petitioner filed the
instant Petition for Environmental
Protection Order/Issuance of the
Writ of Continuing Mandamus on
the grounds that respondent
province failed to comply with
relevant rules and regulations in the
acquisition of the ECC
(Environmental Compliance
Certificate) and that the reclamation
of these lands would adversely
affect the fail ecological balance of
the area.
9. June 7, 2011 - this court issued a
Temporary Environmental
Protection Order (TEPO) and
ordered the respondents to file their
respective comments to the petition.
The project was halted.
10. February 13, 2012 –The Barangay
Council of Caticlan, Malay, Aklan
enacted Resolution No. 003, series
of 2012 favorably endorsing the
2.6 Hectares Reclamation/MARINA
Project and that the Sangguniang
Bayan of the Municipality of Malay,
Aklan enacted Resolution No. 020,
series of 2012, also favorably
endorsing the same.
11. Respondents now pray for the court
to dismiss the TEPO and that they
may continue with the project as all
requirements have been fulfilled.
ISSUES:
Procedural Issues
1. WoN the petition should be dismissed for
having been rendered moot and academic
petitioner in the CA and IAC existing before
E.O. No. 33
2. WoN the petition is premature because
petitioner failed to exhaust administrative
remedies before filing this case
Substantive Issues
3. WoN respondent Province failed to
perform a full Environmental Impact
Assessment as required by laws and
regulations based on the scope and
classification of the project
4. WoN there was proper, timely, and
sufficient public consultation for the project
PROVISION:
Rules of Procedure for Environmental Cases
(A.M. No. 09-6-8-SC)
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.
“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.”
RULING + RATIO:
1. NO. This case is not rendered moot
and academic.
Respondents claim that since both the
Sangguniang Barangay of Caticlan and the
Sangguniang Bayan of the Municipality of
Malay, have already published resolutions in
favorable endorsement of the reclamation
project, all the issues raised by petitioner had
already been addressed, and this petition should
be dismissed for being moot and academic.
This court rules in favor of the petitioners in
observing that the resolutions passed by the
Sangguniang Barangay of Caticlan and the
Sangguniang Bayan of the Municipality of
Malay merely approved for the
reclamation of the 2.64 hectares and not the
entire project that includes the construction of a
commercial building and wellness center, and
other tourism-related facilities.
2. NO. The petition for the TEPO was not
made prematurely.
Respondents claim that the present petition
should be dismissed for petitioner’s
failure to exhaust administrative
remedies and even to observe the
hierarchy of courts.
This Court rules, as it did in Pagara v. Court
of Appeals where it said that “The rule
regarding exhaustion of administrative
remedies is not a hard and fast rule.”
Exemptions can be made and one of these
would be if the circumstance indicates the
urgency of judicial intervention. 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.
3. The Court chooses to remand these
following 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 Environmental
Impact Report (EIA):
i. To reassess whether 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 is proper.
ii. To reassess whether its classification of
the reclamation project as a single instead of
a co-located project. (Respondent claims
that the improvement of the Boracay side is
a “mere future plan.”
iii. To conduct further comprehensive
studies regarding the impact of the
reclamation project to the environment
should the final classification of the project
under items i and ii above deem a a more
comprehensive type of EIA study required
under the Revised Procedural Manual.
The Court requires respondent DENR-EMB
RVI to complete its study and submit a
report within a non-extendible period of
three months. And should be able to
establish in court, why Environmental
Compliance Certificate (ECC) already
issued for the subject project should not be
cancelled.
4. NO. There was no sufficient public
consultation for the project.
Respondent violated Section 27 of the Local
Government Code when it commenced the
implementation project, which states
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.”
DISPOSITION: Petition partially granted.
The TEPO issued by this Court is hereby
converted into a writ of continuing
mandamus.
*Respondent Department of Environment
and Natural Resources- Environmental
Management Bureau Regional Office VI
shall revisit and review the matters as
abovestated in No. 3 of Ratio + Ruling
*Respondent Province of Aklan shall
fully cooperate with respondent
DENR-EMB RVI in its review of the
reclamation project and shall 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.
*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, should it be
deemed needed basing from the results of
the studies of the DENR.
*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.