FIRST DIVISION Resources ("DENR"), issued an Environmental
G.R. No. 131442 July 10, 2003 Clearance Certificate ("ECC") in favor of
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.
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
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
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
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.
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. 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, including projects operating
without an ECC or violating the conditions of the
ECC. This is the applicable procedure to address
petitioners' complaint on NAPOCOR's alleged
violations and not the filing of the instant case in
court.
A Final Word
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
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 with established rules
of procedure that were intended, in the first place,
to achieve orderly and efficient administration of
justice.
WHEREFORE, we DENY the petition for lack of
merit. SO ORDERED.
EN BANC
G.R. No. 196870 June 26, 2012
BORACAY FOUNDATION, INC., Petitioner,
vs.
THE PROVINCE OF AKLAN, REPRESENTED BY
GOVERNOR CARLITO S. MARQUEZ, THE
PHILIPPINE RECLAMATION AUTHORITY, AND
THE DENR-EMB (REGION VI), Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
In resolving this controversy, the Court took into
consideration that all the parties involved share
common goals in pursuit of certain primordial
State policies and principles that are enshrined in
the Constitution and pertinent laws, such as the
protection of the environment, the empowerment
of the local government units, the promotion of
tourism, and the encouragement of the
participation of the private sector. The Court seeks
to reconcile the respective roles, duties and
responsibilities of the petitioner and respondents
in achieving these shared goals within the context
of our Constitution, laws and regulations.
Nature of the Case
This is an original petition for the issuance of an
Environmental Protection Order in the nature of a
continuing mandamus under A.M. No. 09-6-8-SC,
otherwise known as the Rules of Procedure for
Environmental Cases, promulgated on April 29,
2010.
The Parties
Petitioner Boracay Foundation, Inc. (petitioner) is
a duly registered, non-stock domestic corporation.
Its primary purpose is "to foster a united,
concerted and environment-conscious
development of Boracay Island, thereby preserving
and maintaining its culture, natural beauty and
ecological balance, marking the island as the
crown jewel of Philippine tourism, a prime tourist
destination in Asia and the whole world."1 It counts
among its members at least sixty (60) owners and
representatives of resorts, hotels, restaurants, and
similar institutions; at least five community
organizations; and several environmentally-
conscious residents and advocates.2
Respondent Province of Aklan (respondent
Province) is a political subdivision of the
government created pursuant to Republic Act No.
1414, represented by Honorable Carlito S.
Marquez, the Provincial Governor (Governor
Marquez).
Respondent Philippine Reclamation Authority
(respondent PRA), formerly called the Public
Estates Authority (PEA), is a government entity
created by Presidential Decree No. 1084,3 which
states that one of the purposes for which
respondent PRA was created was to reclaim land,
including foreshore and submerged areas. PEA
eventually became the lead agency primarily
responsible for all reclamation projects in the
country under Executive Order No. 525, series of
1979. In June 2006, the President of the
Philippines issued Executive Order No. 543,
delegating the power "to approve reclamation
projects to PRA through its governing Board,
subject to compliance with existing laws and rules
and further subject to the condition that
reclamation contracts to be executed with any
person or entity (must) go through public
bidding."4
Respondent Department of Environment and
Natural Resources – Environmental Management
Bureau (DENR-EMB), Regional Office VI
(respondent DENR-EMB RVI), is the government
agency in the Western Visayas Region authorized
to issue environmental compliance certificates
regarding projects that require the environment’s
protection and management in the region.5
Summary of Antecedent Facts
Boracay Island (Boracay), a tropical paradise
located in the Western Visayas region of the
Philippines and one of the country’s most popular
tourist destinations, was declared a tourist zone
and marine reserve in 1973 under Presidential
Proclamation No. 1801.6 The island comprises the
barangays of Manoc-manoc, Balabag, and Yapak,
all within the municipality of Malay, in the province
of Aklan.7
Petitioner describes Boracay as follows:
Boracay is well-known for its distinctive powdery
white-sand beaches which are the product of the
unique ecosystem dynamics of the area. The
island itself is known to come from the uplifted
remnants of an ancient reef platform. Its beaches,
the sandy land strip between the water and the
area currently occupied by numerous
establishments, is the primary draw for domestic
and international tourists for its color, texture and
other unique characteristics. Needless to state, it
is the premier domestic and international tourist
destination in the Philippines.8
More than a decade ago, respondent Province built
the Caticlan Jetty Port and Passenger Terminal at
Barangay Caticlan to be the main gateway to
Boracay. It also built the corresponding Cagban
Jetty Port and Passenger Terminal to be the
receiving end for tourists in Boracay. Respondent
Province operates both ports "to provide structural
facilities suited for locals, tourists and guests and
to provide safety and security measures."9
In 2005, Boracay 2010 Summit was held and
participated in by representatives from national
government agencies, local government units
(LGUs), and the private sector. Petitioner was one
of the organizers and participants thereto. The
Summit aimed "to re-establish a common vision of
all stakeholders to ensure the conservation,
restoration, and preservation of Boracay Island"
and "to develop an action plan that [would allow]
all sectors to work in concert among and with each
other for the long term benefit and sustainability
of the island and the community."10 The Summit
yielded a Terminal Report11 stating that the
participants had shared their dream of having
world-class land, water and air infrastructure, as
well as given their observations that government
support was lacking, infrastructure was poor, and,
more importantly, the influx of tourists to Boracay
was increasing. The Report showed that there was
a need to expand the port facilities at Caticlan due
to congestion in the holding area of the existing
port, caused by inadequate facilities, thus tourists
suffered long queues while waiting for the boat
ride going to the island.12
Respondent Province claimed that tourist arrivals
to Boracay reached approximately 649,559 in
2009 and 779,666 in 2010, and this was expected
to reach a record of 1 million tourist arrivals in the
years to come. Thus, 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
On April 27, 2010, DENR-EMB RVI issued to
respondent Province ECC-R6-1003-096-7100
(the questioned ECC) for Phase 1 of the
Reclamation Project to the extent of 2.64 hectares
to be done along the Caticlan side beside the
existing jetty port.40
On May 17, 2010, respondent Province entered
into a MOA41 with respondent PRA. Under Article
III, the Project was described therein as follows:
The proposed Aklan Beach Zone Restoration and
Protection Marina Development Project involves
the reclamation and development of
approximately forty (40) hectares of foreshore and
offshore areas of the Municipality of Malay x x x.
The land use development of the reclamation
project shall be for commercial, recreational and
institutional and other applicable
uses.42 (Emphases supplied.)
It was at this point that respondent Province
deemed it necessary to conduct a series of what it
calls "information-education campaigns," which
provided the venue for interaction and dialogue
with the public, particularly the Barangay and
Municipal officials of the Municipality of Malay, the
residents of Barangay Caticlan and Boracay, the
stakeholders, and the non-governmental
organizations (NGOs). The details of the campaign
are summarized as follows43 :
a. June 17, 2010 at Casa Pilar Beach Resort,
Boracay Island, Malay, Aklan;44
b. July 28, 2010 at Caticlan Jetty Port and
Passenger Terminal;45
c. July 31, 2010 at Barangay Caticlan
Plaza;46
d. September 15, 2010 at the Office of the
Provincial Governor with Municipal Mayor of
Malay – Mayor John P. Yap;47
e. October 12, 2010 at the Office of the
Provincial Governor with the Provincial
Development Council Executive
Committee;48 and
f. October 29, 2010 at the Office of the
Provincial Governor with Officials of LGU-
Malay and Petitioner.49
Petitioner claims that during the "public
consultation meeting" belatedly called by
respondent Province on June 17, 2010,
respondent Province presented the Reclamation
Project and only then detailed the actions that it
had already undertaken, particularly: the issuance
of the Caticlan Super Marina Bonds; the execution
of the MOA with respondent PRA; the alleged
conduct of an Environmental Impact Assessment
(EIA) study for the reclamation project; and the
expansion of the project to forty (40) hectares
from 2.64 hectares.50
In Resolution No. 046, Series of 2010, adopted on
June 23, 2010, the Malay Municipality reiterated
its strong opposition to respondent Province’s
project and denied its request for a favorable
endorsement of the Marina Project.51
The Malay Municipality subsequently issued
Resolution No. 016, Series of 2010, adopted on
August 3, 2010, to request respondent PRA "not to
grant reclamation permit and notice to proceed to
the Marina Project of the [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.
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 Report87 dated October 18, 2010, which
was in turn the basis of the issuance of the Notice
to Proceed dated October 19, 2010, because the
project’s financial component is ₱260,000,000.00
only. Said Evaluation Report indicates that the
implementation of the other phases of the project
including site 2, which consists of the other
portions of the 40-hectare area that includes a
portion in Boracay, is still within the 10-year period
and will depend largely on the availability of funds
of respondent Province.88
So, even if respondent PRA approved an area that
would total up to 40 hectares, it was divided into
phases in order to determine the period of its
implementation. Each phase was separate and
independent because the source of funds was also
separate. The required documents and
requirements were also specific for each phase.
The entire approved area of 40 hectares could be
implemented within a period of 10 years but this
would depend solely on the availability of funds.89
As far as respondent Province understands it,
additional reclamations not covered by the ECC,
which only approved 2.64 hectares, should
undergo another EIA. If respondent Province
intends to commence the construction on the
other component of the 40 hectares, then it agrees
that it is mandated to secure a new ECC.90
Respondent Province admits that it dreamt of a
40-hectare project, even if it had originally planned
and was at present only financially equipped and
legally compliant to undertake 2.64 hectares of
the project, and only as an expansion of its old jetty
port.91
Respondent Province claims that it has complied
with all the necessary requirements for securing
an ECC. On the issue that the reclamation project
is within an ECA requiring the performance of a full
or programmatic EIA, respondent Province
reiterates that the idea of expanding the area to 40
hectares is only a future plan. It only secured an
ECC for 2.64 hectares, based on the limits of its
funding and authority. From the beginning, its
intention was to rehabilitate and expand the
existing jetty port terminal to accommodate an
increasing projected traffic. The subject project is
specifically classified under DENR DAO 2003-30
on its Project Grouping Matrix for Determination of
EIA Report Type considered as Minor Reclamation
Projects falling under Group II – Non ECP in an
ECA. Whether 2.64 or 40 hectares in area, the
subject project falls within this classification.
Consequently, respondent Province claims that
petitioner erred in considering the ongoing
reclamation project at Caticlan, Malay, Aklan, as
co-located within an ECA.
Respondent Province, likewise argues that the
2.64-hectare project is not a component of the
approved 40-hectare area as it is originally
planned for the expansion site of the existing
Caticlan jetty port. At present, it has no definite
conceptual construction plan of the said portion in
Boracay and it has no financial allocation to
initiate any project on the said Boracay portion.
Furthermore, respondent Province contends that
the present project is located in Caticlan while the
alleged component that falls within an ECA is in
Boracay. Considering its geographical location,
the two sites cannot be considered as a
contiguous area for the reason that it is separated
by a body of water – a strait that traverses
between the mainland Panay wherein Caticlan is
located and Boracay. Hence, it is erroneous to
consider the two sites as a co-located project
within an ECA. Being a "stand alone project" and
an expansion of the existing jetty port, respondent
DENR-EMB RVI had required respondent Province
to perform an EPRMP to secure an ECC as
sanctioned by Item No. 8(b), page 7 of DENR DAO
2003-30.
Respondent Province contends that even if,
granting for the sake of argument, it had
erroneously categorized its project as Non-ECP in
an ECA, this was not a final determination.
Respondent DENR-EMB RVI, which was the
administrator of the EIS system, had the final
decision on this matter. Under DENR DAO 2003-
30, an application for ECC, even for a Category B2
project where an EPRMP is conducted, shall be
subjected to a review process. Respondent DENR-
EMB RVI had the authority to deny said
application. Its Regional Director could either
issue an ECC for the project or deny the
application. He may also require a more
comprehensive EIA study. The Regional Director
issued the ECC based on the EPRMP submitted by
respondent Province and after the same went
through the EIA review process.
Thus, respondent Province concludes that
petitioner’s allegation of this being a "co-located
project" is premature if not baseless as the bigger
reclamation project is still on the
conceptualization stage. Both respondents PRA
and Province are yet to complete studies and
feasibility studies to embark on another project.
Respondent Province claims that an ocular survey
of the reclamation project revealed that it had
worked within the limits of the ECC.92
With regard to petitioner’s allegation that
respondent Province failed to get the favorable
endorsement of the concerned LGUs in violation of
the Local Government Code, respondent Province
contends that consultation vis-à-vis the favorable
endorsement from the concerned LGUs as
contemplated under the Local Government Code
are merely tools to seek advice and not a power
clothed upon the LGUs to unilaterally approve or
disapprove any government projects.
Furthermore, such endorsement is not necessary
for projects falling under Category B2 unless
required by the DENR-EMB RVI, under Section 5.3
of DENR DAO 2003-30.
Moreover, DENR Memorandum Circular No. 08-
2007 no longer requires the issuance of permits
and certifications as a pre-requisite for the
issuance of an ECC. Respondent Province claims
to have conducted consultative activities with
LGUs in connection with Sections 26 and 27 of the
Local Government Code. The vehement and
staunch objections of both the Sangguniang
Barangay of Caticlan and the Sangguniang Bayan
of Malay, according to respondent Province, were
not rooted on its perceived impact upon the people
and the community in terms of environmental or
ecological balance, but due to an alleged conflict
with their "principal position to develop, utilize and
reap benefits from the natural resources found
within its jurisdiction."93 Respondent Province
argues that these concerns are not within the
purview of the Local Government Code.
Furthermore, the Preliminary Geohazard
Assessment Report and EPRMP as well as
Sangguniang Panlalawigan Resolution Nos. 2010-
022 and 2010-034 should address any
environmental issue they may raise.
Respondent Province posits that the spirit and
intent of Sections 26 and 27 of the Local
Government Code is to create an avenue for
parties, the proponent and the LGU concerned, to
come up with a tool in harmonizing its views and
concerns about the project. The duty to consult
does not automatically require adherence to the
opinions during the consultation process. It is
allegedly not within the provisions to give the full
authority to the LGU concerned to unilaterally
approve or disapprove the project in the guise of
requiring the proponent of securing its favorable
endorsement. In this case, petitioner is calling a
halt to the project without providing an alternative
resolution to harmonize its position and that of
respondent Province.
Respondent Province claims that the
EPRMP94 would reveal that:
[T]he area fronting the project site is practically
composed of sand. Dead coral communities may
be found along the vicinity. Thus, fish life at the
project site is quite scarce due to the absence of
marine support systems like the sea grass beds
and coral reefs.
x x x [T]here is no coral cover at the existing
Caticlan jetty port. [From] the deepest point of jetty
to the shallowest point, there was no more coral
patch and the substrate is sandy. It is of public
knowledge that the said foreshore area is being
utilized by the residents ever since as berthing or
anchorage site of their motorized banca. There will
be no possibility of any coral development therein
because of its continuous utilization. Likewise, the
activity of the strait that traverses between the
main land Caticlan and Boracay Island would also
be a factor of the coral development. Corals [may]
only be formed within the area if there is scientific
human intervention, which is absent up to the
present.
In light of the foregoing premise, it casts serious
doubt on petitioner’s allegations pertaining to the
environmental effects of Respondent-LGU’s 2.64
hectares reclamation project. The alleged
environmental impact of the subject project to the
beaches of Boracay Island remains unconfirmed.
Petitioner had unsuccessfully proven that the
project would cause imminent, grave and
irreparable injury to the community.95
Respondent Province prayed for the dissolution of
the TEPO, claiming that the rules provide that the
TEPO may be dissolved if it appears after hearing
that its issuance or continuance would cause
irreparable damage to the party or person
enjoined, while the applicant may be fully
compensated for such damages as he may suffer
and subject to the posting of a sufficient bond by
the party or person enjoined. Respondent Province
contends that the TEPO would cause irreparable
damage in two aspects:
a. Financial dislocation and probable
bankruptcy; and
b. Grave and imminent danger to safety and
health of inhabitants of immediate area,
including tourists and passengers serviced
by the jetty port, brought about by the abrupt
cessation of development works.
As regards financial dislocation, the arguments of
respondent Province are summarized below:
 1. This project is financed by bonds which
the respondent Province had issued to its
creditors as the financing scheme in funding
the present project is by way of credit
financing through bond flotation.
2. The funds are financed by a Guarantee
Bank – getting payment from bonds, being
sold to investors, which in turn would be paid
by the income that the project would realize
or incur upon its completion.
3. While the project is under construction,
respondent Province is appropriating a
portion of its Internal Revenue Allotment
(IRA) budget from the 20% development
fund to defray the interest and principal
amortization due to the Guarantee Bank.
4. The respondent Province’s IRA, regular
income, and/or such other revenues or
funds, as may be permitted by law, are being
used as security for the payment of the said
loan used for the project’s construction.
5. The inability of the subject project to earn
revenues as projected upon completion will
compel the Province to shoulder the full
amount of the obligation, starting from year
2012.
6. Respondent province is mandated to
assign its IRA, regular income and/or such
other revenues or funds as permitted by law;
if project is stopped, detriment of the public
welfare and its constituents.96
As to the second ground for the dissolution of the
TEPO, respondent Province argues:
1. Non-compliance with the guidelines of the
ECC may result to environmental hazards
most especially that reclaimed land if not
properly secured may be eroded into the sea.
2. The construction has accomplished 65.26
percent of the project. The embankment that
was deposited on the project has no proper
concrete wave protection that might be
washed out in the event that a strong
typhoon or big waves may occur affecting
the strait and the properties along the
project site. It is already the rainy season and
there is a big possibility of typhoon
occurrence.
3. If said incident occurs, the aggregates of
the embankment that had been washed out
might be transferred to the adjoining
properties which could affect its natural
environmental state.
4. It might result to the total alteration of the
physical landscape of the area attributing to
environmental disturbance.
5. The lack of proper concrete wave
protection or revetment would cause the
total erosion of the embankment that has
been dumped on the accomplished area.97
Respondent Province claims that petitioner will
not stand to suffer immediate, grave and
irreparable injury or damage from the ongoing
project. The petitioner’s perceived fear of
environmental destruction brought about by its
erroneous appreciation of available data is
unfounded and does not translate into a matter of
extreme urgency. Thus, under the Rules of
Procedure on Environmental Cases, the TEPO may
be dissolved.
Respondent PRA filed its Comment98 on June 22,
2011. It alleges that on June 24, 2006, Executive
Order No. 543 delegated the power "to approve
reclamation projects to respondent PRA through
its governing Board, subject to compliance with
existing laws and rules and further subject to the
condition that reclamation contracts to be
executed with any person or entity (must) go
through public bidding."
Section 4 of respondent PRA’s Administrative
Order No. 2007-2 provides for the approval
process and procedures for various reclamation
projects to be undertaken. Respondent PRA
prepared an Evaluation Report on November 5,
200999 regarding Aklan’s proposal to increase its
project to 40 hectares.
Respondent PRA contends that it was only after
respondent Province had complied with the
requirements under the law that respondent PRA,
through its Board of Directors, approved the
proposed project under its Board Resolution No.
4094.100 In the same Resolution, respondent PRA
Board authorized the General Manager/CEO to
execute a MOA with the Aklan provincial
government to implement the reclamation project
under certain conditions.
The issue for respondent PRA was whether or not
it approved the respondent Province’s 2.64-
hectare reclamation project proposal in willful
disregard of alleged "numerous irregularities" as
claimed by petitioner.101
Respondent PRA claims that its approval of the
Aklan Reclamation Project was in accordance with
law and its rules. Indeed, it issued the notice to
proceed only after Aklan had complied with all the
requirements imposed by existing laws and
regulations. It further contends that the 40
hectares involved in this project remains a plan
insofar as respondent PRA is concerned. What has
been approved for reclamation by respondent PRA
thus far is only the 2.64-hectare reclamation
project. Respondent PRA reiterates that it
approved this reclamation project after
extensively reviewing the legal, technical,
financial, environmental, and operational aspects
of the proposed reclamation.102
One of the conditions that respondent PRA Board
imposed before approving the Aklan project was
that no reclamation work could be started until
respondent PRA has approved the detailed
engineering plans/methodology, design and
specifications of the reclamation. Part of the
required submissions to respondent PRA includes
the drainage design as approved by the Public
Works Department and the ECC as issued by the
DENR, all of which the Aklan government must
submit to respondent PRA before starting any
reclamation works.103 Under Article IV(B)(3) of the
MOA between respondent PRA and Aklan, the
latter is required to submit, apart from the ECC, the
following requirements for respondent PRA’s
review and approval, as basis for the issuance of a
Notice to Proceed (NTP) for Reclamation Works:
(a) Land-form plan with technical
description of the metes and bounds of the
same land-form;
(b) Final master development and land use
plan for the project;
(c) Detailed engineering studies, detailed
engineering design, plans and specification
for reclamation works, reclamation plans
and methodology, plans for the sources of fill
materials;
(d) Drainage plan vis-a-vis the land-form
approved by DPWH Regional Office to
include a cost effective and efficient
drainage system as may be required based
on the results of the studies;
(e) Detailed project cost estimates and
quantity take-off per items of work of the
rawland reclamation components, e.g.
reclamation containment structures and soil
consolidation;
(f) Organizational chart of the construction
arm, manning table, equipment schedule for
the project; and,
(g) Project timetable (PERT/CPM) for the
entire project construction period.104
In fact, respondent PRA further required
respondent Province under Article IV (B)(24) of the
MOA to strictly comply with all conditions of the
DENR-EMB-issued ECC "and/or comply with
pertinent local and international commitments of
the Republic of the Philippines to ensure
environmental protection."105
In its August 11, 2010 letter,106 respondent PRA
referred for respondent Province’s appropriate
action petitioner’s Resolution 001, series of 2010
and Resolution 46, series of 2010, of the
Sangguniang Bayan of Malay. Governor Marquez
wrote respondent PRA107 on September 16, 2010
informing it that respondent Province had already
met with the different officials of Malay, furnishing
respondent PRA with the copies of the minutes of
such meetings/presentations. Governor Marquez
also assured respondent PRA that it had complied
with the consultation requirements as far as Malay
was concerned.
Respondent PRA claims that in evaluating
respondent Province’s project and in issuing the
necessary NTP for Phase 1 of Site 1 (2.64
hectares) of the Caticlan Jetty Port expansion and
modernization, respondent PRA gave considerable
weight to all pertinent issuances, especially the
ECC issued by DENR-EMB RVI.108 Respondent PRA
stresses that its earlier approval of the 40-hectare
reclamation project under its Resolution No. 4094,
series of 2010, still requires a second level of
compliance requirements from the proponent.
Respondent Province could not possibly begin its
reclamation works since respondent PRA had yet
to issue an NTP in its favor.
Respondent PRA alleges that prior to the issuance
of the NTP to respondent Province for Phase 1 of
Site 1, it required the submission of the following
pre-construction documents:
(a) Land-Form Plan (with technical
description);
(b) Site Development Plan/Land Use Plan
including,
(i) sewer and drainage systems and
(ii) waste water treatment;
(c) Engineering Studies and Engineering
Design;
(d) Reclamation Methodology;
(e) Sources of Fill Materials, and,
(f) The ECC.109
Respondent PRA claims that it was only after the
evaluation of the above submissions that it issued
to respondent Province the NTP, limited to the
2.64-hectare reclamation project. Respondent
PRA even emphasized in its evaluation report that
should respondent Province pursue the other
phases of its project, it would still require the
submission of an ECC for each succeeding phases
before the start of any reclamation works.110
Respondent PRA, being the national government’s
arm in regulating and coordinating all reclamation
projects in the Philippines – a mandate conferred
by law – manifests that it is incumbent upon it, in
the exercise of its regulatory functions, to
diligently evaluate, based on its technical
competencies, all reclamation projects submitted
to it for approval. Once the reclamation project’s
requirements set forth by law and related rules
have been complied with, respondent PRA is
mandated to approve the same. Respondent PRA
claims, "[w]ith all the foregoing rigorous and
detailed requirements submitted and complied
with by Aklan, and the attendant careful and
meticulous technical and legal evaluation by
respondent PRA, it cannot be argued that the
reclamation permit it issued to Aklan is ‘founded
upon numerous irregularities;’ as recklessly and
baselessly imputed by BFI."111
In its Comment112 dated July 1, 2011, respondent
DENR-EMB RVI asserts that its act of issuing the
ECC certifies that the project had undergone the
proper EIA process by assessing, among others,
the direct and indirect impact of the project on the
biophysical and human environment and ensuring
that these impacts are addressed by appropriate
environmental protection and enhancement
measures, pursuant to Presidential Decree No.
1586, the Revised Procedural Manual for DENR
DAO 2003-30, and the existing rules and
regulations.113
Respondent DENR-EMB RVI stresses that the
declaration in 1978 of several islands, which
includes Boracay as tourist zone and marine
reserve under Proclamation No. 1801, has no
relevance to the expansion project of Caticlan
Jetty Port and Passenger Terminal for the very
reason that the project is not located in the Island
of Boracay, being located in Barangay Caticlan,
Malay, which is not a part of mainland Panay. It
admits that the site of the subject jetty port falls
within the ECA under Proclamation No. 2146
(1981), being within the category of a water body.
This was why respondent Province had faithfully
secured an ECC pursuant to the Revised
Procedural Manual for DENR DAO 2003-30 by
submitting the necessary documents as contained
in the EPRMP on March 19, 2010, which were the
bases in granting ECC No. R6-1003-096-7100
(amended) on April 27, 2010 for the expansion of
Caticlan Jetty Port and Passenger Terminal,
covering 2.64 hectares.114
Respondent DENR-EMB RVI claims that the issues
raised by the LGUs of Caticlan and Malay had been
considered by the DENR-Provincial Environment
and Natural Resources Office (PENRO), Aklan in
the issuance of the Order115 dated January 26,
2010, disregarding the claim of the Municipality of
Malay, Aklan of a portion of the foreshore land in
Caticlan covered by the application of the Province
of Aklan; and another Order of Rejection dated
February 5, 2010 of the two foreshore
applications, namely FLA No. 060412-43A and
FLA No. 060412-43B, of the Province of Aklan.116
Respondent DENR-EMB RVI contends that the
supporting documents attached to the EPRMP for
the issuance of an ECC were merely for the
expansion and modernization of the old jetty port
in Barangay Caticlan covering 2.64 hectares, and
not the 40-hectare reclamation project in
Barangay Caticlan and Boracay. The previous
letter of respondent Province dated October 14,
2009 addressed to DENR-EMB RVI Regional
Executive Director, would show that the
reclamation project will cover approximately 2.6
hectares.117 This application for ECC was not
officially accepted due to lack of requirements or
documents.
Although petitioner insists that the project
involves 40 hectares in two sites, respondent
DENR-EMB RVI looked at the documents
submitted by respondent Province and saw that
the subject area covered by the ECC application
and subsequently granted with ECC-R6-1003-
096-7100 consists only of 2.64 hectares; hence,
respondent DENR-EMB RVI could not comment on
the excess area.118
Respondent DENR-EMB RVI admits that as
regards the classification of the 2.64-hectare
reclamation project under "Non ECP in ECA," this
does not fall within the definition of a co-located
project because the subject project is merely an
expansion of the old Caticlan Jetty Port, which had
a previously issued ECC (ECC No. 0699-1012-171
on October 12, 1999). Thus, only an EPRMP, not a
PEIS or PEPRMP, is required.119
Respondent Province submitted to respondent
DENR-EMB RVI the following documents
contained in the EPRMP:
a. The Observations on the Floor Bottom and
its Marine Resources at the Proposed Jetty
Ports at Caticlan and Manok-manok,
Boracay, Aklan, conducted in 1999 by the
Bureau of Fisheries Aquatic Resources
(BFAR) Central Office, particularly in Caticlan
site, and
 b. The Study conducted by Dr. Ricarte S.
Javelosa, Ph. D, Mines and Geosciences
Bureau (MGB), Central Office and Engr.
Roger Esto, Provincial Planning and
Development Office (PPDO), Aklan in 2009
entitled "Preliminary Geo-hazard
Assessment for the Enhancement of the
Existing Caticlan Jetty Port Terminal through
Beach Zone Restoration and Protective
Marina Development in Malay, Aklan."
Respondent DENR-EMB RVI claims that the above
two scientific studies were enough for it to arrive
at a best professional judgment to issue an
amended ECC for the Aklan Marina Project
covering 2.64 hectares.120 Furthermore, to confirm
that the 2.64-hectare reclamation has no
significant negative impact with the surrounding
environment particularly in Boracay, a more recent
study was conducted, and respondent DENR-EMB
RVI alleges that "[i]t is very important to highlight
that the input data in the [MERF- UPMSI] study
utilized the [40-hectare] reclamation and [200-
meter] width seaward using the tidal and wave
modelling."121 The study showed that the
reclamation of 2.64 hectares had no effect to the
hydrodynamics of the strait between Barangay
Caticlan and Boracay.
Respondent DENR-EMB RVI affirms that no
permits and/or clearances from National
Government Agencies (NGAs) and LGUs are
required pursuant to the DENR Memorandum
Circular No. 2007-08, entitled "Simplifying the
Requirements of ECC or CNC Applications;" that
the EPRMP was evaluated and processed based on
the Revised Procedural Manual for DENR DAO
2003-30 which resulted to the issuance of ECC-
R6-1003-096-7100; and that the ECC is not a
permit per se but a planning tool for LGUs to
consider in its decision whether or not to issue a
local permit.122
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;
WHEREAS, as a condition for the grant of this
endorsement and to address all issues and
concerns, this Honorable Council necessitates a
sincere commitment from the Provincial
Government of Aklan to the end that:
1. To allocate an office space to LGU-Malay
within the building in the reclaimed area;
2. To convene the Cagban and Caticlan Jetty
Port Management Board before the
resumption of the reclamation project;
3. That the reclamation project shall be
limited only to 2.6 hectares in Barangay
Caticlan and not beyond;
4. That the local transportation
operators/cooperatives will not be
displaced; and
5. The Provincial Government of Aklan
conduct a simultaneous comprehensive
study on the environmental impact of the
reclamation project especially during
Habagat and Amihan seasons and put in
place as early as possible mitigating
measures on the effect of the project to the
environment.
WHEREAS, having presented these stipulations,
failure to comply herewith will leave this August
Body no choice but to revoke this endorsement,
hence faithful compliance of the commitment of
the Provincial Government is highly appealed
for[.]135 (Emphases added.)
The Sangguniang Bayan of Malay obviously
imposed explicit conditions for respondent
Province to comply with on pain of revocation of
its endorsement of the project, including the need
to conduct a comprehensive study on the
environmental impact of the reclamation project,
which is the heart of the petition before us.
Therefore, the contents of the two resolutions
submitted by respondent Province do not support
its conclusion that the subsequent favorable
endorsement of the LGUs had already addressed
all the issues raised and rendered the instant
petition moot and academic.
On the issue of failure to exhaust administrative
remedies
Respondents, in essence, argue that the present
petition should be dismissed for petitioner’s
failure to exhaust administrative remedies and
even to observe the hierarchy of courts.
Furthermore, as the petition questions the
issuance of the ECC and the NTP, this involves
factual and technical verification, which are more
properly within the expertise of the concerned
government agencies.
Respondents anchor their argument on Section 6,
Article II of DENR DAO 2003-30, which provides:
Section 6. Appeal
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:
Where to file the
Deciding Authority
appeal
EMB Regional Office Office of the EMB
Director Director
EMB Central Office Office of the DENR
Director Secretary
DENR Secretary Office of the President
(Emphases supplied.)
Respondents argue that since there is an
administrative appeal provided for, then petitioner
is duty bound to observe the same and may not be
granted recourse to the regular courts for its
failure to do so.
We do not agree with respondents’ appreciation of
the applicability of the rule on exhaustion of
administrative remedies in this case. We are
reminded of our ruling in Pagara v. Court of
Appeals,136 which summarized our earlier
decisions on the procedural requirement of
exhaustion of administrative remedies, to wit:
The rule regarding exhaustion of administrative
remedies is not a hard and fast rule. It is not
applicable (1) where the question in dispute is
purely a legal one, or (2) where the controverted
act is patently illegal or was performed without
jurisdiction or in excess of jurisdiction; or (3)
where the respondent is a department secretary,
whose acts as an alter ego of the President bear
the implied or assumed approval of the latter,
unless actually disapproved by him, or (4) where
there are circumstances indicating the urgency of
judicial intervention, - Gonzales vs. Hechanova, L-
21897, October 22, 1963, 9 SCRA 230; Abaya vs.
Villegas, L-25641, December 17, 1966, 18 SCRA;
Mitra vs. Subido, L-21691, September 15, 1967,
21 SCRA 127.
Said principle may also be disregarded when it
does not provide a plain, speedy and adequate
remedy, (Cipriano vs. Marcelino, 43 SCRA 291),
when there is no due process observed (Villanos
vs. Subido, 45 SCRA 299), or where the protestant
has no other recourse (Sta. Maria vs. Lopez, 31
SCRA 637).137 (Emphases supplied.)
As petitioner correctly pointed out, the appeal
provided for under Section 6 of DENR DAO 2003-
30 is only applicable, based on the first sentence
thereof, if the person or entity charged with the
duty to exhaust the administrative remedy of
appeal to the appropriate government agency has
been a party or has been made a party in the
proceedings wherein the decision to be appealed
was rendered. It has been established by the facts
that petitioner was never made a party to the
proceedings before respondent DENR-EMB RVI.
Petitioner was only informed that the project had
already been approved after the ECC was already
granted.138 Not being a party to the said
proceedings, it does not appear that petitioner was
officially furnished a copy of the decision, from
which the 15-day period to appeal should be
reckoned, and which would warrant the application
of Section 6, Article II of DENR DAO 2003-30.
Although petitioner was not a party to the
proceedings where the decision to issue an ECC
was rendered, it stands to be aggrieved by the
decision,139 because it claims that the reclamation
of land on the Caticlan side would unavoidably
adversely affect the Boracay side, where
petitioner’s members own establishments
engaged in the tourism trade. As noted earlier,
petitioner contends that the declared objective of
the reclamation project is to exploit Boracay’s
tourism trade because the project is intended to
enhance support services thereto; however, this
objective would not be achieved since the white-
sand beaches for which Boracay is famous might
be negatively affected by the project. Petitioner’s
conclusion is that respondent Province, aided and
abetted by respondents PRA and DENR-EMB RVI,
ignored the spirit and letter of our environmental
laws, and should thus be compelled to perform
their duties under said laws.
The new Rules of Procedure for Environmental
Cases, A.M. No. 09-6-8-SC, provides a relief for
petitioner under the writ of continuing mandamus,
which is a special civil action that may be availed
of "to compel the performance of an act
specifically enjoined by law"140 and which provides
for the issuance of a TEPO "as an auxiliary remedy
prior to the issuance of the writ itself."141 The
Rationale of the said Rules explains the writ in this
wise:
Environmental law highlights the shift in the focal-
point from the initiation of regulation by Congress
to the implementation of regulatory programs by
the appropriate government agencies.
Thus, a government agency’s inaction, if any, has
serious implications on the future of
environmental law enforcement. Private
individuals, to the extent that they seek to change
the scope of the regulatory process, will have to
rely on such agencies to take the initial incentives,
which may require a judicial component.
Accordingly, questions regarding the propriety of
an agency’s action or inaction will need to be
analyzed.
This point is emphasized in the availability of the
remedy of the writ of mandamus, which allows for
the enforcement of the conduct of the tasks to
which the writ pertains: the performance of a legal
duty.142 (Emphases added.)
The writ of continuing mandamus "permits the
court to retain jurisdiction after judgment in order
to ensure the successful implementation of the
reliefs mandated under the court’s decision" and,
in order to do this, "the court may compel the
submission of compliance reports from the
respondent government agencies as well as avail
of other means to monitor compliance with its
decision."143
According to petitioner, respondent Province
acted pursuant to a MOA with respondent PRA that
was conditioned upon, among others, a properly-
secured ECC from respondent DENR-EMB RVI. For
this reason, petitioner seeks to compel respondent
Province to comply with certain environmental
laws, rules, and procedures that it claims were
either circumvented or ignored. Hence, we find
that the petition was appropriately filed with this
Court under Rule 8, Section 1, A.M. No. 09-6-8-SC,
which reads:
SECTION 1. Petition for continuing mandamus.—
When any agency or instrumentality of the
government or officer thereof unlawfully neglects
the performance of an act which the law
specifically enjoins as a duty resulting from an
office, trust or station in connection with the
enforcement or violation of an environmental law
rule or regulation or a right therein, or unlawfully
excludes another from the use or enjoyment of
such right and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the
person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with
certainty, attaching thereto supporting evidence,
specifying that the petition concerns an
environmental law, rule or regulation, and praying
that judgment be rendered commanding the
respondent to do an act or series of acts until the
judgment is fully satisfied, and to pay damages
sustained by the petitioner by reason of the
malicious neglect to perform the duties of the
respondent, under the law, rules or regulations.
The petition shall also contain a sworn
certification of non-forum shopping.
SECTION 2. Where to file the petition.—The
petition shall be filed with the Regional Trial Court
exercising jurisdiction over the territory where the
actionable neglect or omission occurred or with
the Court of Appeals or the Supreme Court.
Petitioner had three options where to file this case
under the rule: the Regional Trial Court exercising
jurisdiction over the territory where the actionable
neglect or omission occurred, the Court of
Appeals, or this Court.
Petitioner had no other plain, speedy, or adequate
remedy in the ordinary course of law to determine
the questions of unique national and local
importance raised here that pertain to laws and
rules for environmental protection, thus it was
justified in coming to this Court.
Having resolved the procedural issue, we now
move to the substantive issues.
On the issues of whether, based on the scope and
classification of the project, a full EIA is required
by laws and regulations, and whether respondent
Province complied with all the requirements under
the pertinent laws and regulations
Petitioner’s arguments on this issue hinges upon
its claim that the reclamation project is
misclassified as a single project when in fact it is
co-located. Petitioner also questions the
classification made by respondent Province that
the reclamation project is merely an expansion of
the existing jetty port, when the project
descriptions embodied in the different documents
filed by respondent Province describe commercial
establishments to be built, among others, to raise
revenues for the LGU; thus, it should have been
classified as a new project. Petitioner likewise
cries foul to the manner by which respondent
Province allegedly circumvented the documentary
requirements of the DENR-EMB RVI by the act of
connecting the reclamation project with its
previous project in 1999 and claiming that the new
project is a mere expansion of the previous one.
As previously discussed, respondent Province filed
a Manifestation and Motion stating that the ECC
issued by respondent DENR-EMB RVI covered an
area of 2,691 square meters in Caticlan, and its
application for reclamation of 40 hectares with
respondent PRA was conditioned on its
submission of specific documents within 120
days. Respondent Province claims that its failure
to comply with said condition indicated its waiver
to pursue the succeeding phases of the
reclamation project and that the subject matter of
this case had thus been limited to 2.64 hectares.
Respondent PRA, for its part, declared through its
General Manager that the "Aklan Beach Zone
Restoration and Protection Marine Development
Project will now be confined to the reclamation
and development of the 2.64 hectares, more or
less."144
The Court notes such manifestation of respondent
Province. Assuming, however, that the area
involved in the subject reclamation project has
been limited to 2.64 hectares, this case has not
become moot and academic, as alleged by
respondents, because the Court still has to check
whether respondents had complied with all
applicable environmental laws, rules, and
regulations pertaining to the actual reclamation
project.
We recognize at this point that the DENR is the
government agency vested with delegated powers
to review and evaluate all EIA reports, and to grant
or deny ECCs to project proponents.145 It is the
DENR that has the duty to implement the EIS
system. It appears, however, that respondent
DENR-EMB RVI’s evaluation of this reclamation
project was problematic, based on the valid
questions raised by petitioner.
Being the administrator of the EIS System,
respondent DENR-EMB RVI’s submissions bear
great weight in this case. However, the following
are the issues that put in question the wisdom of
respondent DENR-EMB RVI in issuing the ECC:
1. Its approval of respondent Province’s
classification of the project as a mere
expansion of the existing jetty port in
Caticlan, instead of classifying it as a new
project;
2. Its classification of the reclamation
project as a single instead of a co-located
project;
3. The lack of prior public consultations and
approval of local government agencies; and
4. The lack of comprehensive studies
regarding the impact of the reclamation
project to the environment.
The above issues as raised put in question the
sufficiency of the evaluation of the project by
respondent DENR-EMB RVI.
Nature of the project
The first question must be answered by
respondent DENR-EMB RVI as the agency with the
expertise and authority to state whether this is a
new project, subject to the more rigorous
environmental impact study requested by
petitioner, or it is a mere expansion of the existing
jetty port facility.
The second issue refers to the classification of the
project by respondent Province, approved by
respondent DENR-EMB RVI, as single instead of
co-located. Under the Revised Procedural Manual,
the "Summary List of Additional Non-
Environmentally-Critical Project (NECP) 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.
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."
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.
EN BANC
G.R. No. 209271 July 26, 2016
INTERNATIONAL SERVICE FOR THE ACQUISITION
OF AGRI-BIOTECH APPLICATIONS,
INC., Petitioner
 vs.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES),
MAGSASAKA AT SIYENTIPIKO SA
PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG),
REP. TEODORO CASINO, DR. BEN MALAYANG III,
DR. ANGELINA GALANG, LEONARDO AVILA III,
CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA,
JUANITO MODINA, DAGOHOY MAGAWAY, DR.
ROMEO QUIJANO, DR. WENCESLAO KIAT, JR.,
ATTY. H. HARRY ROQUE., JR., FORMER SEN.
ORLANDO MERCADO, NOEL CABANGON, MAYOR
EDWARD S. HAGEDORN, and EDWIN MARTHINE
LOPEZ, Respondents.
CROP LIFE PHILIPPINES, INC., Petitioner-in-
Intervention
x-----------------------x
G.R. No. 209276
ENVIRONMENTAL MANAGEMENT BUREAU OF
THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES, BUREAU OF PLANT
INDUSTRY AND THE FERTILIZER AND PESTICIDE
AUTHORITY OF THE DEPARTMENT OF
AGRICULTURE, Petitioners,
vs.
COURT OF APPEALS, GREENPEACE SOUTHEAST
ASIA (PHILIPPINES), MAGSASAKA AT
SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA (MASIPAG), REP. TEODORO
CASINO, DR. BEN MALAYANG III, DR. ANGELINA
GALANG, LEONARDO AVILA III, CATHERINE
UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO
MODINA, DAGOHOY MAGAWAY, DR. ROMEO
QUIJANO, DR. WENCESLAO
KIAT, JR., ATTY. H. HARRY ROQUE, JR., FORMER
SEN. ORLANDO MERCADO, NOEL CABANGON,
MAYOR EDWARD S. HAGEDORN, and EDWIN
MARTHINE LOPEZ, Respondents.
CROP LIFE PHILIPPINES, INC., Petitioner-in-
Intervention.
x-----------------------x
G.R. No. 209301
UNIVERSITY OF THE PHILIPPINES LOS BANOS
FOUNDATION, INC., Petitioner,
vs.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES),
MAGSASAKA AT SIYENTIPIKO SA
PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG),
REP. TEODORO CASINO, DR. BEN MALAYANG III,
DR. ANGELINA GALANG, LEONARDO AVILA III,
CATHERINE UNTALAN, ATTY. MARIA PAZLUNA,
JUANITO MODINA, DAGOHOY MAGAWAY, DR.
ROMEO QUIJANO, DR. WENCESLAO KIAT, JR.,
ATTY. H. HARRY L. ROQUE, JR., FORMER SEN.
ORLANDO MERCADO, NOEL CABANGON, MAYOR
EDWARD S. HAGEDORN, and EDWIN MARTHINE
LOPEZ, Respondents.
x-----------------------x
G.R. No. 209430
UNIVERSITY OF THE PHILIPPINES LOS
BAÑOS, Petitioner,
vs.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES),
MAGSASAKA AT SIYENTIPIKO SA
PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG),
REP. TEODORO CASINO, DR. BEN MALAYANG III,
DR. ANGELINA GALANG, LEONARDO AVILA III,
CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA,
JUANITO MODINA, DAGOHOY MAGAWAY, DR.
ROMEO QUIJANO, DR. WENCESLAO KIAT, JR.,
ATTY. H. HARRY L. ROQUE, JR., FORMER SEN.
ORLANDO MERCADO, NOEL CABANGON, MAYOR
EDWARD S. HAGEDORN, and EDWIN MARTHINE
LOPEZ, Respondents.
RESOLUTION
PERLAS-BERNABE, J.:
Before the Court are nine (9) Motions for
Reconsideration1 assailing the Decision2 dated
December 8, 2015 of the Court (December 8, 2015
Decision), which upheld with modification the
Decision3 dated May 17, 2013 and the
Resolution4 dated September 20, 2013 of the
Court of Appeals (CA) in CA-G.R. SP No. 00013.
The Facts
The instant case arose from the conduct of field
trials for "bioengineered eggplants," known
as Bacillus thuringiensis (Bt) eggplant (Bt
talong), administered pursuant to the
Memorandum of Undertaking5 (MOU) entered into
by herein petitioners University of the Philippines
Los Baños Foundation, Inc. (UPLBFI) and
International Service for the Acquisition of Agri-
Biotech Applications, Inc. (ISAAA), and the
University of the Philippines Mindanao
Foundation, Inc. (UPMFI), among others. Bt
talong contains the crystal toxin genes from the
soil bacterium Bt, which produces
the CrylAc protein that is toxic to target insect
pests. The Cry1Ac protein is said to be highly
specific to lepidopteran larvae such as the fruit
and shoot borer, the most destructive insect pest
to eggplants.6
From 2007 to 2009, petitioner University of the
Philippines Los Banos (UPLB), the implementing
institution of the field trials, conducted a
contained experiment on Bt talong under the
supervision of the National Committee on
Biosafety of the Philippines (NCBP).7 The NCBP,
created under Executive Order No. (EO) 430,8 is the
regulatory body tasked to: (a) "identify and
evaluate potential hazards involved in initiating
genetic engineering experiments or the
introduction of new species and genetically
engineered organisms and recommend measures
to minimize risks"; and (b) ''formulate and review
national policies and guidelines on biosafety, such
as the safe conduct of work on genetic
engineering, pests and their genetic materials for
the protection of public health, environment[,] and
personnel[,] and supervise the implementation
thereof."9 Upon the completion of the contained
experiment, the NCBP issued a On May 2, 2012, the Court issued24 a Writ
Certificate10 therefor stating that all biosafety
measures were complied with, and no untoward
incident had occurred.11
On March 16, 2010 and June 28, 2010, the Bureau
of Plant Industries (BPI) issued two (2)-year
Biosafety Permits12 for field testing of Bt
talong13after UPLB's field test proposal
satisfactorily completed biosafety risk
assessment for field testing pursuant to the
Department of Agriculture's (DA) Administrative
Order No. 8, series of 200214 (DAO 08-
2002),15 which provides for the rules and
regulations for the importation and release into the
environment of plants and plant products derived
from the use of modern
biotechnology.16 Consequently, field testing
proceeded in approved trial sites in North
Cotabato, Pangasinan, Camarines Sur, Davao City,
and Laguna.17
On April 26, 2012, respondents Greenpeace
Southeast Asia (Philippines)
(Greenpeace), Magsasaka at Siyentipiko sa
Pagpapaunlad ng Agrikultura (MASIPAG), and
others (respondents) filed before the Court a
Petition for Writ of Continuing Mandamus and Writ
of Kalikasan with Prayer for the Issuance of a
Temporary Environmental Protection Order
(TEPO)18 (petition for Writ of Kalikasan) against
herein petitioners the Environmental Management
Bureau (EMB) of the Department of Environment
and Natural Resources (DENR), the BPI and the
Fertilizer and Pesticide Authority (FPA) of the DA,
UPLBFI, and ISAAA, and UPMFI, alleging that
the Bt talong field trials violated their
constitutional right to health and a balanced
ecology considering, among others, that: (a) the
Environmental Compliance Certificate (ECC), as
required by Presidential Decree No. (PD)
1151,19 was not secured prior to the field
trials;20 (b) the required public consultations under
the Local Government Code (LGC) were not
complied with;21 and (c) as a regulated article
under DAO 08-2002, Bt talong is presumed
harmful to human health and the environment, and
that there is no independent, peer-reviewed study
showing its safety for human consumption and the
environment.22 Further, they contended that since
the scientific evidence as to the safety of Bt
talong remained insufficient or uncertain, and that
preliminary scientific evaluation shows
reasonable grounds for concern, the precautionary
principle should be applied and, thereby, the field
trials be enjoined.23
of Kalikasan against petitioners (except UPLB25)
and UPMFI, ordering them to make a verified return
within a non-extendible period of ten (10) days, as
provided for in Section 8, Rule 7 of the Rules of
Procedure for Environmental Cases.26 Thus, in
compliance therewith, ISAAA, EMB/BPI/FPA,
UPLBFI, and UPMFI27 filed their respective verified
returns,28 and therein maintained that: (a) all
environmental laws were complied with, including
the required public consultations in the affected
communities; (b) an ECC was not required for the
field trials as it will not significantly affect the
environment nor pose a hazard to human health;
(c) there is a plethora of scientific works and
literature, peer-reviewed, on the safety of Bt
talong for human consumption; (d) at any rate, the
safety of Bt talong for human consumption is
irrelevant because none of the eggplants will be
consumed by humans or animals and all materials
not used for analyses will be chopped, boiled, and
buried following the conditions of the Biosafety
Permits; and (e) the precautionary principle could
not be applied as the field testing was only a part
of a continuing study to ensure that such trials
have no significant and negative impact on the
environment.29
On July 10, 2012, the Court issued a
Resolution30 referring the case to the Court of
Appeals for acceptance of the return of the writ
and for hearing, reception of evidence, and
rendition of judgment.31 In a hearing before the CA
on August 14, 2012, UPLB was impleaded as a
party to the case and was furnished by
respondents a copy of their petition. Consequently
the CA directed UPLB to file its comment to the
petition32 and, on August 24, 2012, UPLB filed its
Answer33 adopting the arguments and allegations
in the verified return filed by UPLBFI. On the other
hand, in a Resolution34 dated February 13, 2013,
the CA discharged UPMFI as a party to the case
pursuant to the Manifestation and Motion filed by
respondents in order to expedite the proceedings
and resolution of the latter's petition.
The CA Ruling
In a Decision35 dated May 17, 2013, the CA ruled in
favor of respondents and directed petitioners to
pem1anently cease and desist from conducting
the Bt talong field trials.36 At the outset, it did not
find merit in petitioners' contention that the case
should be dismissed on the ground of mootness,
noting that the issues raised by the latter were
"capable of repetition yet evading review" since
the Bt talong field trial was just one of the phases
or stages of an overall and bigger study that is
being conducted in relation to the said genetically-
modified organism.37 It then held that the
precautionary principle set forth under Section
1,38 Rule 20 of the Rules of Procedure for
Environmental Cases39 is relevant, considering the
Philippines' rich biodiversity and uncertainty
surrounding the safety of Bt talong. It noted the
possible irreversible effects of the field trials and
the introduction of Bt talong to the market, and
found the existing regulations issued by the DA
and the Department of Science and Technology
(DOST) insufficient to guarantee the safety of the
environment and the health of the people.40
Aggrieved, petitioners separately moved for
reconsideration.41 However, in
Resolution42 dated September 20, 2013, the CA
denied the same and remarked that introducing
genetically modified plant into the ecosystem is an
ecologically imbalancing act.43 Anent UPLB 's
argument that the Writ of Kalikasan violated its
right to academic freedom, the CA emphasized
that the writ did not stop the research on Bt
talong but only the procedure employed in
conducting the field trials, and only at this time
when there is yet no law ensuring its safety when
introduced to the environment.44
Dissatisfied, petitioners filed their respective
petitions for review on certiorari before this Court.
The Proceedings Before the Court
In a Decision45 dated December 8, 2015, the Court
denied the petitions and accordingly, affinned with
modification the ruling of the CA.46 Agreeing with
the CA, the Court held that the precautionar;
principle applies in this case since the risk of harm
from the field trials of Bt talong remains uncertain
and there exists a possibility of serious and
irreversible harm. The Court observed that
eggplants are a staple vegetable in the country
that is mostly grown by small-scale farmers who
are poor and marginalized; thus, given the
country's rich biodiversity, the consequences of
contamination and genetic pollution would be
disastrous and irreversible.47
The Court likewise agreed with the CA in not
dismissing the case for being moot and academic
despite the completion and termination of the Bt
talong field trials, on account of the following
exceptions to the mootness principle: (a) the
exceptional character of the situation and the
paramount public interest is involved; and (b) the
case is capable of repetition yet evading review.48
Further, the Court noted that while the provisions
of DAO 08-2002 were observed, the National
Biosafety Framework (NBF) established under EO
514, series of 200649 which requires public
participation in all stages of biosafety decision-
making, pursuant to the Cartagena Protocol on
Biosafety50 which was acceded to by the
Philippines in 2000 and became effective locally in
2003, was not complied with.51 Moreover, the field
testing should have been subjected to
Environmental Impact Assessment (EIA),
considering that it involved new technologies with
uncertain results.52
Thus, the Court permanently enjoined the field
testing of Bt talong. In addition, it declared DAO
08-2002 null and void for failure to consider the
provisions of the NBF. The Court also temporarily
a enjoined any application for contained use, field
testing, propagation, commercialization, and
importation of genetically modified organisms
until a new administrative order is promulgated in
accordance with law.53
The Issues Presented in the Motions for
Reconsideration
Undaunted, petitioners moved for
reconsideration,54 arguing, among others, that: (a)
the case should have been dismissed for
mootness in view of the completion and
termination of the Bt talong field trials and the
expiration of the Biosafety Permits;55 (b) the Court
should not have ruled on the validity of DAO 08-
2002 as it was not raised as an issue;56 and (c) the
Court erred in relying on the studies cited in the
December 8, 2015 Decision which were not
offered in evidence and involved Bt corn, not Bt
talong.57
In their Consolidated Comments,58 respondents
maintain, in essence, that: (a) the case is not
mooted by the completion of the field trials since
field testing is part of the process of
commercialization and will eventually lead to
propagation, commercialization, and consumption
of Bt talong as a consumer product;59 (b) the
validity of DAO 08-2002 was raised by
respondents when they argued in their petition for
Writ of Kalikasan that such administrative
issuance is not enough to adequately protect the
Constitutional right of the people to a balanced
and healthful ecology;60 and (c) the Court correctly
took judicial notice of the scientific studies
showing the negative effects of Bt technology and
applied the precautionary principle.61
The Court's Ruling
The Court grants the motions for reconsideration
on the ground of mootness.
As a rule, the Court may only adjudicate actual,
ongoing controversies.62 The requirement of the
existence of a "case" or an "actual controversy" for
the proper exercise of the power of judicial review
proceeds from Section 1, Article VIII of the 1987
Constitution:
Section 1. The judicial power shall be vested in one
Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the comis of
justice to settle actual controversies involving
rights which are legally demandable and
enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.
(Emphasis supplied)
Accordingly, the Court is not empowered to decide
moot questions or abstract propositions, or to
declare principles or rules of law which cannot
affect the result as to the thing in issue in the case
before it. In other words, when a case is moot, it
becomes non-justiciable.63
An action is considered "moot" when it no longer
presents a justiciable controversy because the
issues involved have become academic or dead or
when the matter in dispute has already been
resolved and hence, one is not entitled to judicial
intervention unless the issue is likely to be raised
again between the parties. There is nothing for the
court to resolve as the determination thereof has
been overtaken by subsequent events.64
Nevertheless, case law states that the Court will
decide cases, otherwise moot, if: first, there is a
grave violation of the Constitution; second, the
exceptional character of the situation and the
paramount public interest are
involved; third, when the constitutional issue
raised requires formulation of controlling
principles to guide the bench, the bar, and the
public; and fourth, the case is capable of repetition
yet evading review.65 Thus, jurisprudence
recognizes these four instances as exceptions to
the mootness principle.
In the December 8, 2015 Decision of the Court, it
was held that (a) the present case is of exceptional
character and paramount public interest is
involved, and (b) it is likewise capable of repetition
yet evading review. Hence, it was excepted from
the mootness principle.66 However, upon a closer
scrutiny of the parties' arguments, the Court
reconsiders its ruling and now finds merit in
petitioners' assertion that the case should have
been dismissed for being moot and academic, and
that the aforesaid exceptions to the said rule
should not have been applied.
I. On the paramount public interest exception.
Jurisprudence in this jurisdiction has set no hard-
and-fast rule in determining whether a case
involves paramount public interest in relation to
the mootness principle. However, a survey of
cases would show that, as a common guidepost
for application, there should be some perceivable
benefit to the public which demands the Court to
proceed with the resolution of otherwise moot
questions.
In Gonzales v. Commission on Elections,67an
action for declaratory judgment assailing the
validity of Republic Act No. (RA) 4880,68 which
prohibits the early nomination of candidates for
elective offices and early election campaigns or
partisan political activities became moot by
reason of the holding of the 1967 elections before
the case could be decided. Nonetheless, the Court
treated the petition as one for prohibition and
rendered judgment in view of "the paramount
public interest and the undeniable necessity for a
ruling, the national elections [of 1969] being barely
six months away."69
In De Castro v. Commission on Elections,70 the
Court proceeded to resolve the election protest
subject of that case notwithstanding the
supervening death of one of the contestants.
According to the Court, in an election contest,
there is a paramount need to dispel the uncertainty
that beclouds the real choice of the electorate.71
In David v. Macapagal-Arroyo,72the Court ruled on
the constitutionality of Presidential Proclamation
No. 1017, s. 2006,73 which declared a state of
National Emergency, even though the same was
lifted before a decision could be rendered. The
Court explained that the case was one of
exceptional character and involved paramount
public interest, because the people's basic rights
to expression, assembly, and of the press were at
issue.74
In Constantino v. S'andiganbayan,75 both of the
accused were found guilty of graft and corrupt
practices under Section 3 (e) of RA 3019.76 One of
the accused appealed the conviction, while the
other filed a petition for certiorari before the Court.
While the appellant died during the pendency of his
appeal, the Court still ruled on the merits thereof
considering the exceptional character of the
appeals in relation to each other, i.e., the two
petitions were so intertwined that the absolution of
the deceased was determinative of the absolution
of the other accused.77
More recently, in Funa v. Manila Economic and
Cultural Office (MECO),78the petitioner prayed that
the Commission on Audit (COA) be ordered to audit
the MECO which is based in Taiwan, on the
premise that it is a government-owned and
controlled corporation.79 The COA argued that the
case is already moot and should be dismissed,
since it had already directed a team of auditors to
proceed to Taiwan to audit the accounts of
MECO.80 Ruling on the merits, the Court explained
that the case was of paramount public interest
because it involved the COA's performance of its
constitutional duty and because the case concerns
the legal status of MECO, i.e., whether it may be
considered as a government agency or not, which
has a direct bearing on the country's commitment
to the One China Policy of the People's Republic of
China.81
In contrast to the foregoing cases, no perceivable
benefit to the public - whether rational or practical
- may be gained by resolving respondents' petition
for Writ of Kalikasan on the merits.
To recount, these cases, which stemmed from
herein respondents petition for Writ
of Kalikasan, were mooted by the undisputed
expiration of the Biosafety Permits issued by the
BPI and the completion and termination of the Bt
talong field trials subject of the same.82 These
incidents effectively negated the necessity for the
reliefs sought by respondents in their petition for
Writ of Kalikasan as there was no longer any field
test to enjoin. Hence, at the time the CA rendered
its Decision dated May 17, 2013, the reliefs
petitioner sought and granted by the CA were no
longer capable of execution.
At this juncture, it is important to understand that
the completion and termination of the field tests
do not mean that herein petitioners may inevitably
proceed to commercially propagate Bt
talong.83 There are three (3) stages before
genetically-modified organisms (GMOs) may
become commercially available under DAO 08-
200284 and each stage is distinct, such that
"[s]ubsequent stages can only proceed if the prior
stage/s [is/]are completed and clearance is given
to engage in the next regulatory
stage."85 Specifically, before a genetically
modified organism is allowed to be propagated
under DAO 08-2002: (a) a permit for propagation
must be secured from the BPI; (b) it can be shown
that based on the field testing conducted in the
Philippines, the regulated article will not pose any
significant risks to the environment; (c) food
and/or feed safety studies show that the regulated
article will not pose any significant risks to human
and animal health; and (d) if the regulated article
is a pest-protected plant, its transformation event
has been duly registered with the FPA.86
As the matter never went beyond the field testing
phase, none of the foregoing tasks related to
propagation were pursued or the requirements
therefor complied with. Thus, there are no
guaranteed after-effects to the already
concluded Bt talong field trials that demand an
adjudication from which the public may
perceivably benefit. Any future threat to the right
,of herein respondents or the public in general to a
healthful and balanced ecology is therefore more
imagined than real.
In fact, it would appear to be more beneficial to the
public to stay a verdict on the safeness of Bt
talong - or GMOs, for that matter - until an actual
and justiciable case properly presents itself before
the Court. In his Concurring Opinion87 on the main,
Associate Justice Marvic M.V.F. Leonen (Justice
Leonen) had aptly pointed out that "the findings
[resulting from the Bt talong field trials] should be
the material to provide more rigorous scientific
analysis of the various claims made in relation
to Bt talong."88 True enough, the concluded field
tests ·- like those in these cases – would yield data
that may prove useful for future studies and
analyses. If at all, resolving the petition for Writ
of Kalikasan would unnecessarily arrest the
results of further research and testing on Et
talong, and even GMOs in general, and hence, tend
to hinder scientific advancement on the subject
matter.
More significantly, it is clear that no benefit would
be derived by the public in assessing the merits of
field trials whose parameters are not only unique
to the specific type of Bt talong tested, but are
now, in fact, rendered obsolete by the supervening
change in the regulatory framework applied to
GMO field testing. To be sure, DAO 08-2002 has
already been superseded by Joint Department
Circular No. 1, series of 201689 (JDC 01-2016),
issued by the Department of Science and
Technology (DOST), the DA, the DENR, the
Department of Health (DOH), and the Department
of Interior and Local Government (DILG), which
provides a substantially different regulatory
framework from that under DAO 08-2002 as will
be detailed below. Thus, to resolve respondents'
petition for Writ of Kalikasan on its merits, would
be tantamount to an unnecessary scholarly
exercise for the Court to assess alleged violations
of health and environmental rights that arose from
a past test case whose bearings do not find any -
if not minimal -- relevance to cases operating
under today's regulatory framework.
Therefore, the paramount public interest exception
to the mootness rule should not have been
applied.1âwphi1
II. The case is not one capable of repetition vet
evading review.
Likewise, contrary to the Court's earlier
ruling,90 these cases do not fall under the "capable
of repetition yet evading review" exception.
The Court notes that the petition for Writ
of Kalikasan specifically raised issues only
against the field testing of Bt talong under the
premises 'of DAO 08,..2002,91 i.e., that herein
petitioners failed to: (a) fully inform the eople
regarding the health, environment, and other
hazards involved;92 and (b) conduct any valid risk
assessment before conducting the field trial.93 As
further pointed out by Justice Leonen, the reliefs
sought did not extend far enough to enjoin the use
of the results of the field trials that have been
completed. Hence, the petition's specificity
prevented it from falling under the above exception
to the mootness rule.94
More obviously, the supersession of DAO 08-2002
by JDC 01-2016 clearly prevents this case from
being one capable of repetition so as to warrant
review despite its mootness. To contextualize,
JDC 01-2016 states that:
Section 1. Applicability. This Joint Department
Circular shall apply to the research, development,
handling and use, transboundary movement,
release into the environment, and management of
genetically-modified plant and plant products
derived from the use of modern technology,
included under "regulated articles."
As earlier adverted to, with the issuance of JDC
01-2016, a new regulatory framework in the
conduct of field testing now applies.
Notably, the new framework under JDC 01-2016 is
substantially different from that under DAO 08-
2002. In fact, the new parameters in JDC 01-2016
pertain to provisions which prompted the Court to
invalidate D'AO 08-2002. In the December 8, 2015
Decision of the Court, it was observed that: (a) DAO
08-2002 has no mechanism to mandate
compliance with inten1ational biosafety
protocols;95 (b) DAO 08-2002 does not comply
with the transparency and public participation
requirements under the NBF;96 and (c) risk
assessment is conducted by an informal group,
called the Biosafety Advisory Team of the DA,
composed of representatives from the BPI, Bureau
of Animal Industry, FPA, DENR, DOH, and DOST.97
Under DAO 08-2002, no specific guidelines were
used in the conduct of risk assessment, and the DA
was allowed to consider the expert advice of, and
guidelines developed by, relevant inteniational
organizations and regulatory authorities of
countries with significant experience in the
regulatory supervision of the regulated
article.98 However, under JDC 01-2016, the
CODEX Alimentarius Guidelines was adopted to
govern the risk assessment of activities involving
the research, development, handling and use,
transboundary movement, release into the
environment, and management of genetically
modified plant and plant products derived from the
use of modem biotechnology.99 Also, whereas
DAO 08-2002 was limited to the DA's authority in
regulating the importation and release into the
environment of plants and plant products derived
from the use of modern biotechnology,100 under
JDC 01-2016, various relevant government
agencies such as the DOST, DOH, DENR, and the
DILG now participate in all stages of the biosafety
decision-making process, with the DOST being the
central and lead agency.101
JDC 01-2016 also provides for a more
comprehensive avenue for public participation in
cases involving field trials and requires
applications for permits and permits already
issued to be made public by posting them online in
the websites of the NCBP and the BPI.102 The
composition of the Institutional Biosafety
Committee (IBC) has also been modified to include
an elected local official in the locality where the
field testing will be conducted as one of the
community representatives.103 Previously, under
DAO 08-2002, the only requirement for the
community representatives is that they shall not
be affiliated with the applicant and shall be in a
position to represent the interests of the
communities where the field testing is to be
conducted.104
JDC 01-2016 also prescribes additional
Section 2 Agencies Consistent
qualifications for the members of the Scientific
Coverage with the NBF and the
and Technical Review Panel (STRP), the pool of
A. Scope - This Order laws granting their
scientists that evaluates the risk assessment
covers the powers and
submitted by the applicant for field trial,
importation or functions, national
commercial propagation, or direct use of regulated
release into the government agencies
articles. Aside from not being an official, staff or
environment of: 1. shall have the
employee of the DA or any of its attached agencies,
Any plant which has following roles:
JDC 01-2016 requires that members of the
been altered or A. [DA]. As the
STRP: (a) must not be directly or indirectly
produced through the principal agency of
employed or engaged by a company or institution
use of modem the Philippine
with pending applications for pennits under JDC
biotechnology if the Government
01-2016; (b) must possess technical expertise in
donor organism, host responsible for the
food and nutrition, toxicology, ecology, crop
organism, or vector promotion of
protection, environmental science, molecular
or vector agent agricultural and rural
biology and biotechnology, genetics, plant
belongs to any of the growth and
breeding, or animal nutrition; and (c) must be well-
genera or taxa development so as to
respected in the scientific community.105
classified by BPI as ensure food security
Below is a tabular presentation of the differences
meeting the definition and to contribute to
between the relevant portions of DAO 08-2002
of plant pest or is a poverty
and JDC 01-2016:
medium for the alleviation, the DA
DAO 08-2002 JDC 01-2016 introduction of shall take the lead in
noxious weeds; or addressing biosafety
1. As to coverage and government 2. Any plant or plant issues related to the
participation product altered or country's agricultural
produced through the productivity and food
WHEREAS, under Title ARTICLE I. GENERAL use of modern security.x x x.
IV, Chapter 4, Section PROVISIONS biotechnology which B. [DOST]. As the
19 of the Section may pose significant premier science and
Administrative Code 1. Applicability. This risks to human health technology body in
of 1987, the Joint Department and the environment the country, the DOST
Department of Circular shall apply to based on available shall take the lead in
Agriculture, through the research, scientific and ensuring that the best
the Bureau of Plant development, technical available science is
Industry, is handling and use, information. utilized and applied in
responsible for the transboundary B. Exceptions. - This adopting biosafety
production of movement, release Order shall not apply policies, measures
improved planting into the environment, to the contained use and guidelines, and in
materials and and management of of a regulated article, making biosafety
protection of genetically-modified which is within the decision.
agricultural crops plant and plant regulatory x xx.
from pests and products derived supervision of NCBP. C. [DENR]. As the
diseases; and from the use of primary government
xxxx modern agency responsible
PART I biotechnology, for the conservation
GENERAL included under management,
PROVISIONS "regulated articles." development and
xxxx xxxx proper use of the
PART I ARTICLE III. country's
GENERAL ADMINISTRATIVE environment and
PROVISIONS FRAMEWORK natural resources, the
xxxx Section 4. Role of DENR shall ensure
National Government that environmental
 assessments are Order. The following policies and
done and impacts principles shall be standards on risk
identified in biosafety followed when assessment issued
decisions. x x x. performing a risk by the NCBP; and
D. [DOH]. The DOH, assessment to guided by Annex III of
as the principal determine whether a the Cartagena
authority on health, regulated article Protocol on
shall formulate poses significant Biosafety. Pursuant
guidelines in risks to human health to the NBF, the
assessing the health and the environment: following principles
impacts posed by 1. The risk shall be followed
modern assessment shall be when performing a
biotechnology and its carried out in a risk assessment to
applications. x x x. scientifically sound determine whether a
E. [DILG]. The DILG and transparent regulated article
shall coordinate with manner based on poses significant
the DA, DOST, DENR available scientific risks to human health
and DOH in and technical and the environment.
overseeing the information. The 1. The risk
implementation of expert advice of, and assessment shall be
this Circular in guidelines developed carried out in a
relation to the by, relevant scientifically sound
activities that are to international and transparent
be implemented in organizations and manner based on
specific LGUs, regulatory authorities available scientific
particulady in relation of countries with and technical
to the conduct of significant experience information. The
public consultations in the regulatory expert advice of and
as required under the supervision of the guidelines developed
Local Government regulated article shall by, relevant
Code. x x x. be taken into account international
in the conduct of risk organizations,
2. As to guidelines in risk assessment assessment. including
x x xx intergovernmental
PART I ARTICLE II. bodies, and
BIOSAFETY regulatory authorities
DECISIONS of countries with
significant experience
GENERAL Section 3. Guidelines in the regulatory
PROVISIONS in Making Biosafety supervision of the
xxxx Decisions regulated article shall
Section 3 The principles under be taken into
Risk Assessment the NBF shall guide account. In the
A. Principles of Risk concerned agencies conduct of risk
Assessment - No in making biosafety assessment, CODEX
regulated article shall decisions, including: Alimentarius
be allowed to be xxxx Guidelines on the
imported or released B. Risk Assessment. Food Safety
into the environment Risk assessment Assessment of Foods
without the conduct shall be mandatory Derived from the
of a risk assessment and central in making Recombinant-DNA
performed in biosafety decisions, Plants shall
accordance with this consistent with internationally
 adopted as well as posting. It shall be m
other internationally a language
accepted consensus understood in the
documents. community. During
x x x x (Underscoring the comment period,
supplied) any interested person
may submit to BPI
3. As to public participation written comments
regarding the
PART III ARTICLE V. FIELD application. The
APPROVAL PROCESS TRIAL OF applicant shall
FOR FIELD TESTING REGULATED submit proof of
OF REGULATE ARTICLES posting in the form of
ARTICLES Section 12. Public certifications from
xxxx Participation for Field the concerned
Section 8 Trial barangay captains
Requirements for A. The BPI shall make and city/municipal
Field Testing public all applications mayors or an affidavit
xxxx and Biosafety stating the dates and
G. Public Permits for Field Trial places of posting duly
Consultation. - The through posting on executed by the
applicant, acting the NCBP and BPI responsible officer or
through its IBC, shall websites, and in the his duly authorized
notity and invite offices of the DA and representative.
comments on the DOST in the province,
field testing proposal city, or municipality 4. As to membership in the Institutional
from the barangays where the field trial Biosafety Committee
and city/municipal will be conducted.
governments with x x xx PART I ARTICLE III.
jurisdiction over the GENERAL ADMINISTRATIVE
field test sites. The PROVISIONS FRAMEWORK
IBC shall post for Section 1 xxxx
three (3) consecutive Definition of Terms Section 6.
weeks copies of xxxx Institutional
the Public L. "IBC" means the Biosafety Committee
Information Sheet for Institutional The company or
Field Biosafety Committee institution applying
Testing approved by established by an for and granted
the BPI in at least applicant in permits under this
three (3) conspicuous preparation for the Circular shall
places in each of the field testing of a constitute an IBC
concerned barangay regulated article and prior to the contained
and city/municipal whose membership use, confined test, or
halls. The Public has been approved by field trial of a
Information Sheet for BPI. The JBC shall be regulated article. The
Field Testing shall, responsible for the membership of the
among others, invite initial evaluation of IBC shall be approved
interested parties to the risk assessment by the DOST-BC for
send their comments and risk management contained use or
on the proposed field strategies of the confined test, or by
testing to BPI within applicant for field the DA-BC for field
a period of thirty (30) testing. It shall be trial. The IBC is
days from the date of composed of at least responsible for the
five (5) members, conduct of the risk be selected from the
three (3) of whom assessment and residents who are
shall be designated preparation of risk members of the Civil
as "scientist- management Society Organizations
members" who shall strategies of the represented in the
possess scientific applicant for Local Poverty
and technological contained use, Reduction Action
knowledge and confined test, or field Team, pursuant to
expertise sufficient to trial. It shall make DILG Memorandum
enable them to sure that the Circular No. 2015-
evaluate and monitor environment and 45. For multi-location
properly any work of human health are trials, community
the applicant relating safeguarded in the representatives of the
to the field testing of conduct of any IBC shall be
a regulated activity involving designated per site. x
article. The other regulated articles. x x. (Underscoring
members, who shall The IBC shall be supplied)
be designated as composed of at least
"community five (5) members, 5. As to the composition and qualifications of
representatives", three (3) of whom the members of the Scientific and Technical
shall not be affiliated shall be designated, Review
with the applicant as scientist-members Panel
apart from being and two (2) members
members of its IBC shall be community PART I ARTICLE III.
and shall be in a representatives. All GENERAL ADMINISTRATIVE
position to represent scientist-members PROVISIONS FRAMEWORK
the interests of the must possess Section 1 xxxx
communities where scientific or Definition of Terms Section 7. Scientific
the field testing is to technological xxxx and Technical Review
be conducted. For the knowledge and EE. "STRP" means the Panel (STRP) The DA
avoidance of doubt, expertise sufficient to Scientific and shall create a
NCBP shall be enable them to Technical Review Scientific and
responsible for property evaluate and Panel created by BPI Technical Review
approving the monitor any work as an advisory body, Panel composed of a
membership of the involving regulated composed of at least pool of non-DA
IBC for contained use articles conducted by three (3) reputable scientists with
of a regulated article. the applicant. and independent expertise in the
x x x x (Underscoring The community scientists who shall evaluation of the
supplied) regresentative must not be employees of potential risks of
not be affiliated with the Department and regulated articles to
the applicant, and who have the relevant the environment and
must be in a position professional health. x x x
to regresent the background xxxx
interests of the necessary to evaluate The DA shall select
communities where the potential risks of scientists/experts in
the activities are to the proposed activity the STRP, who shall
be conducted. One of to human health and meet the following
the community the environment qualifications:
regresentatives shall based on available A. Must not be an
be an elected official scientific and official, staff or
of the LGU. The other technical employee of the DA
community information. or any of its attached
representative shall agencies;
 General Appropriations Act, known as the Priority
x x x x (Underscoring B. Must not be
Development Assistance Fund (PDAF), was
supplied) directly or indirectly
assailed. In that case, the Court rejected the view
employed or engaged
that the issues related thereto had been rendered
by a company or
moot and academic by the reforms undertaken by
institution with
the Executive Department and former President
pending applications
Benigno Simeon S. Aquino III's declaration that he
for permits covered
had already "abolished the PDAF." Citing the
by this Circular;
historical evolution of the ubiquitous Pork Barrel
C. Possess technical
System, which was the source of the PDAF, and the
expertise in at least
fact that it has always been incorporated in the
one of the following
national budget which is enacted annually, the
fields: food and
Court ruled that it is one capable of repetition yet
nutrition; toxicology,
evading review, thus:
ecology, crop
Finally, the application of the fourth exception [to
protection,
the rule on mootness] is called for by
environmental
the recognition that the preparation and passage
science, molecular
of the national budget is, by constitutional
biology and
imprimatur, an affair of annual occurrence. The
biotechnology,
relevance of the issues before the Court does not
genetics, plant
cease with the passage of a "PDAF-free budget for
breeding, animal
2014." The evolution of the "Pork Barrel System,"
nutrition; and
by its multifarious iterations throughout the
D. Well-respected in
course of history, lends a semblance of truth to
the scientific
petitioners' claim that "the same dog will just
community as
resurface wearing a different collar." In Sanlakas
evidenced by
v. Executive Secretary, the government had
positions held in
already backtracked on a previous course of action
science-based
yet the Court used the "capable of repetition but
organizations,
evading review" exception in order "[t]o prevent
awards and
similar questions from re-emerging." The situation
recognitions,
similarly holds true to these cases. Indeed, the
publications in local
myriad of issues underlying the manner in which
and international
certain public funds are spent, if not resolved at
peer-reviewed
this most opportune time, are capable of repetition
scientific journals.
and hence; must not evade judicial
x x x x (Underscoring
review.107 (Emphases supplied)
supplied)
Evidently, the "frequent" and "routinary" nature of
Based on the foregoing, it is apparent that the the Pork Barrel Funds and the PDAF are wanting
regulatory framework now applicable in herein. To reiterate, the issues in these cases
conducting risk assessment in matters involving involve factual considerations which are peculiar
the research, development, handling, movement, only to the controversy at hand since the petition
and release into the environment of genetically for Writ of Kalikasan is specific to the field testing
modified plant and plant products derived from the of Bt talong and does not involve other GMOs.
use of modem biotechnology is substantially At this point, the Court discerns that there are two
different from that which was applied to the (2) factors to be considered before a case is
subject field trials. In this regard, it cannot be said deemed one capable of repetition yet evading
that the present case is one capable of repetition review: (1) the challenged action was in its
yet evading review. duration too short to be fully litigated prior to its
The essence of cases capable of repetition yet cessation or expiration; and (2) there was a
evading review was succinctly explained by the reasonable expectation that the same complaining
Court in Belgica v. Ochoa, Jr.,106 where the party would be subjected to the same action.
constitutionality of the Executive Department's Here, respondents cannot claim that the duration
lump-sum, discretionary funds under the 2013 of the subject field tests was too short to be fully
litigated. It must be emphasized that the Biosafety
Permits for the subject field tests were issued on
March 16, 2010 and June 28, 2010, and were valid
for two (2) years. However, as aptly pointed out by
Justice Leonen, respondents filed their petition for
Writ of Kalikasan only on April 26, 2012 - just a
few months before the Biosafety Permits expired
and when the field testing activities were already
over.108 Obviously, therefore, the cessation of the
subject field tests before the case could be
resolved was due to respondents' own inaction.
Moreover, the situation respondents complain of is
not susceptible' to repetition. As discussed above,
DAO 08-2002 has already been superseded by
JDC 01-2016. Hence, future applications for field
testing will be governed by JDC 01-2016 which, as
illustrated, adopts a regulatory framework that is
substantially different from that of DAO 08-2002.
Therefore, it was improper for the Court to resolve
the merits of the case which had become moot in
view of the absence of any valid exceptions to the
rule on mootness, and to thereupon rule on the
objections against the validity and consequently
nullify DAO 08-2002 under the premises of the
precautionary principle.
In fact, in relation to the latter, it is observed that
the Court should not have even delved into the
constitutionality of DAO 08-2002 as it was
merely collaterally challenged by respondents,
based on the constitutional precepts of the
people's rights to infonnation on matters of public
concern, to public participation, to a balanced and
healthful ecology, and to health.109 A cursory
perusal of the petition for Writ of Kalikasan filed by
respondents on April 26, 2012 before the Court
shows that they essentially assail herein
petitioners' failure to: (a) fully infom1 the people
regarding the health, environment, and other
hazards involved;110 and (b) conduct any valid risk
assessment before conducting the field
trial.111 However, while the provisions of DAO 08-
2002 were averred to be inadequate to
protect (a) the constitutional right of the people to
a balanced and healthful ecology since "said
regulation failed, among others, to anticipate 'the
public implications caused by the importation of
GMOs in the Philippines"';112and (b) "the people
from the potential harm these genetically modified
plants and genetically modified organisms may
cause human health and the environment, [and]
thus, x x x fall short of Constitutional
compliance,"113 respondents merely prayed for
its amendment, as well as that of the NBF, to
define or incorporate "an independent,
transparent, and comprehensive scientific and
socio-economic risk assessment, public
information, consultation, and participation, and
providing for their effective implementation, in
accord with international safety
standards[.]"114 This attempt to assail the
constitutionality of the public info1mation and
consultation requirements under DAO 08-2002
and the NBF constitutes a collateral attack on the
said provisions of law that runs afoul of the
wdlsettled rule that the constitutionality of a
statute cannot be collaterally attacked as
constitutionality issues must be pleaded directly
and not collaterally.115 Verily, the policy of the
courts is to avoid ruling on constitutional
questions and to presume that the acts of the
political departments are valid, absent a clear and
unmistakable showing to the contrary, in
deference to the doctrine of separation of powers.
This means that the measure had first been
carefuliy studied by the executive department and
found to be in accord with the Constitution before
it was finally enacted and approved.116
All told, with respondents' petition for Writ of
Kalikasan already mooted by the expiration of the
Biosafoty Permits and the completion of the field
trials subject of these cases, and with none of the
exceptions to the mootness principle properly
attending, the Court grants the instant motions for
reconsideration and hereby dismisses the
aforesaid petition. With this pronouncement, no
discussion on the substantive merits of the same
should be made.
WHEREFORE, the motions for reconsideration
are GRANTED. The Decision dated December 8,
2015 of the Court, which affirmed with
modification the Decision dated May 17, 2013 and
the Resolution dated September 20, 2013 of the
Court of Appeals in CA-G.R. SP No. 00013, is
hereby SET ASIDE for the reasons above-
explained. A new one is ENTERED DISMISSING the
Petition for Writ of Continuing Mandamus and Writ
of Kalikasan with Prayer for the Issuance of a
Temporary Environmental Protection Order (TEPO)
filed by respondents Greenpeace Southeast Asia
(Philippines), Magsasaka at Siyentipiko sa
Pagpapaunlad ng Agrikultura, and others on the
ground of mootness. SO ORDERED.
EN BANC
G.R. No. 207257 February 3, 2015
HON. RAMON JESUS P. PAJE, in his capacity as
SECRETARY OF THE DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES
 (DENR), Petitioner,
vs.
HON. TEODORO A. CASIÑO, HON. RAYMOND V.
PALATINO, HON. RAFAEL V. MARIANO, HON.
EMERENCIANA A. DE JESUS, CLEMENTE G.
BAUTISTA, JR., HON. ROLEN C. PAULINO, HON.
EDUARDO PIANO, HON. JAMES DE LOS REYES,
HON. AQUILINO Y. CORTEZ, JR., HON. SARAH
LUGERNA LIPUMANO-GARCIA, NORAIDA
VELARMINO, BIANCA CHRISTINE GAMBOA
ESPINOS, CHARO SIMONS, GREGORIO LLORCA
MAGDARAOG, RUBELH PERALTA, ALEX CORPUS
HERMOSO, RODOLFO SAMBAJON, REV. FR.
GERARDO GREGORIO P. JORGE, CARLITO A.
BALOY, OFELIA D. PABLO, MARIO ESQUILLO,
ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ,
JOHN CARLO DELOS REYES, Respondents.
x-----------------------x
G.R. No. 207276
REDONDO PENINSULA ENERGY, INC., Petitioner,
vs.
HON. TEODORO A. CASIÑO, HON. RAYMOND V.
PALATINO, HON. RAFAEL V. MARIANO, HON.
EMERENCIANA A. DE JESUS, CLEMENTE G.
BAUTISTA, JR., HON. ROLEN C. PAULINO, HON.
EDUARDO PIANO, HON. JAMES DE LOS REYES,
HON. AQUILINO Y. CORTEZ, JR., HON. SARAH
LUGERNA LIPUMANO-GARCIA, NORAIDA
VELARMINO, BIANCA CHRISTINE GAMBOA
ESPINOS, CHARO SIMONS, GREGORIO LLORCA
MAGDARAOG, RUBELH PERALTA, ALEX CORPUS
HERMOSO, RODOLFO SAMBAJON, REV. FR.
GERARDO GREGORIO P. JORGE, CARLITO A.
BALOY, OFELIA D. PABLO, MARIO ESQUILLO,
ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ,
JOHN CARLO DELOS REYES, RAMON JESUS P.
PAJE, in his capacity as SECRETARY OF THE
DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES AND SUBIC BAY METROPOLITAN
AUTHORITY, Respondents.
x-----------------------x
G.R. No. 207282
HON. TEODORO A. CASIÑO, HON. RAYMOND V.
PALATINO, HON. EMERENCIANA A. DE JESUS,
CLEMENTE G. BAUTISTA, JR., HON. RAFAEL V.
MARIANO, HON. ROLEN C. PAULINO, HON.
EDUARDO PIANO, HON. JAMES DE LOS REYES,
HON. AQUILINO Y. CORTEZ, JR., HON. SARAH
LUGERNA LIPUMANO-GARCIA, NORAIDA
VELARMINO, BIANCA CHRISTINE GAMBOA
ESPINOS, CHARO SIMONS, GREGORIO LLORCA
MAGDARAOG, RUBELH PERALTA, ALEX CORPUS
HERMOSA, RODOLFO SAMBAJON, ET
AL., Petitioners,
vs.
RAMON JESUS P. PAJE in his capacity as
SECRETARY OF THE DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES,
SUBIC BAY METROPOLITAN AUTHORITY, AND
REDONDO PENINSULA ENERGY,
INC., Respondents.
x-----------------------x
G.R. No. 207366
SUBIC BAY METROPOLITAN
AUTHORITY, Petitioner,
vs.
HON. TEODORO A. CASIÑO, HON. RAYMOND V.
PALATINO, HON. RAFAEL V. MARIANO, HON.
EMERENCIANA A. DE JESUS, HON. ROLEN C.
PAULINO, HON EDUARDO PIANO, HON. JAMES
DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR.,
HON. SARAH LUGERNA LIPUMANOGARCIA,
NORAIDA VELARMINO, BIANCA CHRISTINE
GAMBOA, GREGORIO LLORCA MAGDARAOG,
RUBELHPERALTA, ALEX CORPUS HERMOSO,
RODOLFO SAMBAJON, REV. FR. GERARDO
GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA
D. PABLO, MARIO ESQUILLO, ELLE·LATINAZO, EV
ANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS
REYES, HON. RAMON JESUS P. PAJE, in his
capacity as SECRETARY OF THE DEPARTMENT
OF ENVIRONMENT AND NATURAL RESOURCES
AND REDONDO PENINSULA ENERGY,
INC., Respondents.
DECISION
DEL CASTILLO, J.:
Before this Court are consolidated Petitions for
Review on Certiorari1 assailing the Decision2 dated
January 30, 2013 and the Resolution3 dated May
22, 2013 of the Court of Appeals (CA) in CA-G.R.
SP No. 00015, entitled "Hon. Teodoro A. Casiño, et
al. v. Hon. Ramon Jesus P. Paje, et al."
Factual Antecedents
In February 2006, Subic Bay Metropolitan
Authority· (SBMA), a government agency
organized and established under Republic Act No.
(RA) 7227,4 and Taiwan Cogeneration Corporation
(TCC) entered into a Memorandum of
Understanding (MOU) expressing their intention to
build a power plant in Subic Bay which would
supply reliable and affordable power to Subic Bay
Industrial Park (SBIP).5
On July 28, 2006, SBMA and TCC entered into
another MOU, whereby TCC undertook to build and
operatea coal-fired power plant.6 In the said MOU,
TCC identified 20 hectares of land at
SitioNaglatore, Mt. Redondo, Subic Bay Freeport
Zone (SBFZ) as the suitable area for the project
and another site of approximately 10 hectares
tobe used as an ash pond.7 TCC intends to lease
the property from SBMA for a term of 50 years with
rent fixed at$3.50 per square meter, payable in 10
equal 5-year installments.8
On April 4, 2007, the SBMA Ecology Center issued
SBFZ Environmental Compliance Certificate (ECC)
No. EC-SBFZ-ECC-69-21-500 in favor of Taiwan
Cogeneration International Corporation (TCIC), a
subsidiary of TCC,9 for the construction,
installation,and operation of 2x150-MW
Circulating Fluidized Bed (CFB) Coal-Fired
Thermal Power Plant at Sitio Naglatore.10
On June 6, 2008, TCC assigned all its rights and
interests under the MOU dated July 28, 2006 to
Redondo Peninsula Energy, Inc. (RP Energy),11 a
corporation duly organized and existing under the
laws of the Philippines with the primary purpose of
building, owning, and operating powerplants in the
Philippines, among others.12 Accordingly, an
Addendum to the said MOU was executed by
SBMA and RP Energy.13
RP Energy then contracted GHD Pty, Ltd. (GHD) to
prepare an Environmental Impact Statement (EIS)
for the proposed coal-fired power plant and to
assist RP Energy in applying for the issuance ofan
ECC from the Department of Environment and
Natural Resources (DENR).14 On August 27, 2008,
the Sangguniang Panglungsodof Olongapo City
issued Resolution No. 131, Series of 2008,
expressing the city government’s objection to the
coal-fired power plant as an energy source and
urging the proponent to consider safer alternative
sources ofenergy for Subic Bay.15
On December 22, 2008, the DENR, through former
Secretary Jose L. Atienza, Jr., issued an ECC for
the proposed 2x150-MW coal-fired power plant.16
Sometime thereafter, RP Energy decided to include
additional components in its proposed coal-fired
power plant. Due to the changes in the project
design, which involved the inclusion of a barge
wharf, seawater intake breakwater, subsea
discharge pipeline, raw water collection system,
drainage channel improvement, and a 230kV
double-circuit transmission line,17 RP Energy
requested the DENR Environmental Management
Bureau(DENR-EMB) to amend its ECC.18 In support
of its request, RP Energy submitted to the DENR-
EMBan Environmental Performance Report and
Management Plan (EPRMP), which was prepared
by GHD.19
On June 8, 2010, RP Energy and SBMA entered
into a Lease and Development Agreement (LDA)
over a 380,004.456-square meter parcel of land to
be used for building and operating the coal-fired
power plant.20
On July 8, 2010, the DENR-EMBissued an
amended ECC (first amendment) allowing the
inclusion ofadditional components, among
others.21
Several months later, RP Energy again requested
the DENR-EMB to amend the ECC.22 Instead of
constructing a 2x150-MW coal-fired power plant,
as originally planned, it now sought toconstruct a
1x300-MWcoal-fired power plant.23 In support of
its request, RP Energy submitted a Project
Description Report (PDR) to the DENR-EMB.24
On May 26, 2011, the DENR-EMB granted the
request and further amended the ECC (second
amendment).25
On August 1, 2011, the Sangguniang
Panglalawiganof Zambales issued Resolution No.
2011-149, opposing the establishment of a coal-
fired thermal power plant at SitioNaglatore, Brgy.
Cawag, Subic, Zambales.26
On August 11, 2011, the Liga ng mga Barangayof
Olongapo City issued Resolution No. 12, Series of
2011, expressing its strong objection to the coal-
fired power plant as an energy source.27
On July 20, 2012, Hon. Teodoro A. Casiño, Hon.
Raymond V. Palatino, Hon. Rafael V. Mariano, Hon.
Emerenciana A. De Jesus, Clemente G. Bautista,
Jr., Hon. Rolen C. Paulino,Hon. Eduardo Piano,
Hon. James de los Reyes, Hon. Aquilino Y. Cortez,
Jr., Hon. Sarah Lugerna Lipumano-Garcia, Noraida
Velarmino, Bianca Christine Gamboa Espinos,
Charo Simons, Gregorio Llorca Magdaraog, Rubelh
Peralta, Alex Corpus Hermoso,Rodolfo Sambajon,
Rev. Fr. Gerardo Gregorio P. Jorge, Carlito A. Baloy,
Ofelia D. Pablo, Mario Esquillo, Elle Latinazo,
Evangeline Q. Rodriguez, and John Carlo delos
Reyes (Casiño Group) filed before this Court a
Petition for Writ of Kalikasan against RP Energy,
SBMA, and Hon. Ramon Jesus P. Paje, in his
capacity as Secretary of the DENR.28
On July 31, 2012, this Court resolved, among
others, to: (1) issue a Writ of Kalikasan; and (2)
refer the case to the CA for hearing and reception
of evidence and rendition of judgment.29 While the
case was pending, RP Energy applied for another
amendment to its ECC (third amendment) and
submitted another EPRMP to the DENR-EMB,
proposing the construction and operation of a
2x300-MW coal-fired power plant.30
On September 11, 2012, the Petition for Writ of
Kalikasanwas docketed as CA-G.R. SP No. 00015
and raffled to the Fifteenth Division of the CA.31 In
the Petition, the Casiño Group alleged, among
others, that the power plant project would cause
grave environmental damage;32 that it would
adversely affect the health of the residents of the
municipalities of Subic,Zambales, Morong,
Hermosa, and the City of Olongapo;33 that the ECC
was issued and the LDA entered into without the
prior approval of the concerned sanggunians as
required under Sections 26 and 27 of the Local
Government Code (LGC);34 that the LDA was
entered into without securing a prior certification
from the National Commission on Indigenous
Peoples (NCIP) as required under Section 59 of
RA8371 or the Indigenous Peoples’ Rights Act of
1997 (IPRA Law);35 that Section 8.3 of DENR
Administrative Order No. 2003-30 (DAO 2003-30)
which allowsamendments of ECCs is ultra
viresbecause the DENR has no authority to decide
on requests for amendments of previously issued
ECCs in the absence of a new EIS;36 and that due
to the nullity of Section 8.3 of DAO 2003-30, all
amendments to RP Energy’s ECC are null and
void.37
On October 29, 2012, the CA conducted a
preliminary conference wherein the parties, with
their respective counsels, appeared except for
Hon. Teodoro A. Casiño, Hon. Rafael V. Mariano,
Hon. Emerencia A. De Jesus, Clemente G. Bautista,
Mario Esquillo, Elle Latinazo,Evangeline Q.
Rodriguez, and the SBMA.38 The matters taken up
during the preliminary conference were embodied
in the CA’s Resolution dated November 5, 2012, to
wit:
I. ISSUES
A. Petitioners (Casiño Group)
1. Whether x x x the DENR Environmental
Compliance Certificate (‘ECC’ x x x) in favor
of RP Energy for a 2x150 MW Coal-Fired
Thermal Power Plant Project (‘Power Plant,’
x x x ) and its amendment to 1x300 MW
Power Plant, and the Lease and
Development Agreement between SBMA
and RP Energy complied with the
Certification Precondition as required under
Section 59 of Republic Act No. 8371 or the
Indigenous People’s Rights Act of 1997
(‘IPRA Law,’ x x x);
2. Whether x x x RP Energy can proceed
with the construction and operation of the
1x300 MW Power Plant without prior
consultation with and approval of the
concerned local government units (‘LGUs,’ x
x x ), pursuant to Sections 26 and 27 of
Republic Act No. 7160 or the Local
Government Code;
3. Whether x x x Section 8.3 of
DENRAdministrative Order No. 2003-30
(‘DAO No. 2003-30,’ x x x ) providing for the
amendment of an ECC is null and void for
being ultra vires; and
4. Whether x x x the amendment of
RPEnergy’s ECC under Section 8.3 of DAO
No. 2003-30 is null and void.
B. Respondent RP Energy
1. Whether x x x Section 8.3 of DAO No.
2003-30 can be collaterally attacked;
1.1 Whether x x x the same is valid
until annulled;
2. Whether x x x petitioners exhausted their
administrative remedies with respect to the
amended ECC for the 1x300 MW Power
Plant;
2.1 Whether x x x the instant Petition
is proper;
3. Whether x x x RP Energycomplied with all
the procedures/requirements for the
issuance of the DENR ECC and its
amendment;
3.1 Whether x x x a Certificate of Non-
Overlap from the National
Commission on Indigenous Peoples is
applicable in the instant case;
4. Whether x x x the LGU’s approval under
Sections 26 and 27 of the Local
Government Code is necessaryfor the
issuance of the DENR ECC and its
amendments, and what constitutes LGU
approval;
5. Whether x x x there is a threatened or
actual violation of environmental laws to
justify the Petition;
5.1 Whether x x x the approved 1x300
MW Power Plant complied with the
accepted legal standards on thermal
pollution of coastal waters, air
pollution, water pollution, and acid
deposits on aquatic and terrestrial
ecosystems; and
6. Whether x x x the instant Petition should
be dismissed for failure to comply with the
requirements of properverification and
certification of nonforum shopping with
respect to some petitioners.
C. Respondent DENR Secretary Paje
1. Whether x x x the issuance of the DENR
ECC and its amendment in favor of RP
Energy requires compliance with Section 59
 of the IPRA Law, as well as Sections 26 and
27 of the Local Government Code;
2. Whether x x x Section 8.3 of DAO No.
2003-30 can be collaterally attacked in this
proceeding; and
3. Whether x x x Section 8.3 of DAO No.
2003-30 is valid.
II. ADMISSIONS/DENIALS
Petitioners, through Atty. Ridon, admittedall the
allegations in RP Energy’s Verified Return, except
the following:
1. paragraphs 1.4 to 1.7;
2. paragraphs 1.29 to 1.32; and
3. paragraphs 1.33 to 1.37.
Petitioners made no specific denial withrespect to
the allegations of DENR Secretary Paje’s Verified
Return. x x x
Respondent RP Energy proposed the following
stipulations, which were all admitted by
petitioners, through Atty. Ridon, viz:
1. The 1x300 MW Power Plant is not yet
operational;
2. At present, there is no environmental
damage;
3. The 1x300 MW Power Plant project is
situated within the Subic Special Economic
Zone; and
4. Apart from the instant case, petitioners
have not challenged the validity of Section
8.3 of DAO No. 2003-30.
Public respondent DENR Secretary Paje did not
propose any matter for stipulation.39
Thereafter, trial ensued.
The Casiño Group presented three witnesses,
namely: (1) Raymond V. Palatino, a two-term
representativeof the KabataanPartylist in the
House of Representatives;40 (2) Alex C. Hermoso,
the convenor of the Zambales-Olongapo City Civil
Society Network,a director of the
PREDA41 Foundation, and a member of the
Zambales Chapter of the Kaya NatinMovement
and the Zambales Chapter of the People Power
Volunteers for Reform;42 and (3) Ramon Lacbain,
the ViceGovernor of the Province of Zambales.43
RP Energy presented five witnesses,namely: (1)
JunisseP. Mercado (Ms. Mercado), an employee of
GHD and the Project Directorof ongoing projects
for RP Energy regarding the proposed power plant
project;44 (2) Juha Sarkki (Engr. Sarkki), a Master
of Science degree holder inChemical
Engineering;45 (3) Henry K. Wong, a degree holder
of Bachelor of Science Major in Mechanical
Engineering from Worcester Polytechnic
Institute;46 (4) Dr. Ely Anthony R. Ouano (Dr.
Ouano), a licensed Chemical Engineer, Sanitary
Engineer, and Environmental Planner in the
Philippines;47 and (5) David C. Evangelista (Mr.
Evangelista), a Business Development Analyst
working for RP Energy.48
SBMA, for its part, presented its Legal Department
Manager, Atty. Von F. Rodriguez (Atty.
Rodriguez).49
The DENR, however, presented no evidence.50
Meanwhile, on October 31, 2012, a Certificate of
Non-Overlap (CNO) was issued in connection with
RP Energy’s application for the 2x300-MW coal-
fired power plant.51
On November 15, 2012, the DENR-EMB granted RP
Energy’s application for the third amendment to its
ECC, approving the construction and operation of
a 2x300-MW coal-fired power plant, among
others.52
Ruling of the Court of Appeals
On January 30, 2013, the CA rendereda Decision
denying the privilege of the writ of kalikasanand
the application for an environment protection
order due to the failure of the Casiño Group to
prove that its constitutional right to a balanced
and healthful ecology was violated or
threatened.53 The CA likewise found no reason to
nullify Section 8.3 ofDAO No. 2003-30. It said that
the provision was not ultra vires,as the express
power of the Secretary of the DENR, the Director
and Regional Directors of the EMB to issue an ECC
impliedly includes the incidental power to amend
the same.54 In any case, the CA ruled that the
validity of the said section could not becollaterally
attacked in a petition for a writ of kalikasan.55
Nonetheless, the CA resolved to invalidate the ECC
dated December 22, 2008 for non-compliance
with Section 59 of the IPRA Law56 and Sections 26
and 27 of the LGC57 and for failure of Luis Miguel
Aboitiz (Mr. Aboitiz), Director of RP Energy, to affix
his signature in the Sworn Statement of Full
Responsibility, which is an integral part of the
ECC.58 Also declared invalid were the ECC first
amendment dated July 8, 2010 and the ECC
second amendment dated May 26, 2011 in view of
the failure of RP Energy to comply with the
restrictions set forth in the ECC, which specifically
require that "any expansion of the project beyond
the project description or any change in the
activity x x x shall be subject to a new
Environmental Impact Assessment."59 However,
as to the ECC third amendment dated November
15, 2012, the CA decided not to rule on its validity
since it was not raised as an issue during the
preliminary conference.60
The CA also invalidated the LDA entered into by
SBMA and RP Energy as it was issued without the
prior consultation and approval of all the
sanggunians concerned as required under
Sections 26 and 27 of the LGC,61 and in violation
of Section 59, Chapter VIII ofthe IPRA Law, which
enjoins all departments and other governmental
agencies from granting any lease without a prior
certification that the area affected does not
overlap with any ancestral domain.62 The CA noted
that no CNO was secured from the NCIP prior to
the execution of the LDA,63 and that the CNO dated
October 31, 2012 was secured during the
pendency of the case and was issued in
connection with RP Energy’s application for a
2x300-MW coalfired power plant.64
Thus, the CA disposed of the case in this wise:
WHEREFORE, premises considered, judgment is
hereby rendered DENYING the privilege of the writ
of kalikasan and the application for an
environmental protection order. The prayer to
declare the nullity of Section 8.3 of the DENR
Administrative Order No. 2003-30 for being ultra
vires is DENIED; and the following are all declared
INVALID:
1. The Environmental Compliance Certificate
(ECC Ref. Code: 0804-011-4021) dated 22
December 2008 issued in favor of
respondent Redondo Peninsula Energy, Inc.
by former Secretary Jose L. Atienza, Jr. of
the Department of Environment and Natural
Resources;
2. The ECC first amendment dated 08 July
2010 and ECC second amendment dated 26
May 2011, both issued in favor ofrespondent
Redondo Peninsula Energy, Inc. by OIC
Director Atty. Juan Miguel T. Cunaof the
Department of Environment and Natural
Resources, Environmental Management
Bureau; and
3. The Lease and Development Agreement
dated 08 June 2010 entered into by
respondents Subic Bay Metropolitan
Authority and Redondo Peninsula Energy,
Inc. involving a parcel of land consisting of
₱380,004.456 square meters.
SO ORDERED.65
The DENR and SBMA separately moved for
reconsideration.66 RP Energy filed a Motion for
Partial Reconsideration,67 attaching thereto a
signed Statement of Accountability.68 The Casiño
Group, on the other hand, filed Omnibus Motions
for Clarification and Reconsideration.69
On May 22, 2013, the CAissued a
Resolution70 denying the aforesaid motions for
lack of merit. The CA opined that the reliefs it
granted in its Decision are allowed under Section
15, Rule 7 of the Rules of Procedure for
Environmental Cases as the reliefs enumerated
therein are broad, comprehensive, and
nonexclusive.71 In fact, paragraph (e) of the
saidprovision allows the granting of "such other
reliefs" in consonance with the objective, purpose,
and intent of the Rules.72 SBMA’s contention that
the stoppage of a project for non-compliance with
Section 59 of the IPRA Law may only be done by
the indigenous cultural communities or
indigenous peoples was also brushed aside by the
CA as the Casiño Group did not file a case under
the IPRA Law but a Petition for a Writ of Kalikasan,
which is available to all natural or juridical persons
whose constitutional right to a balanced and
healthful ecology is violated, or threatened to be
violated.73 As to RP Energy’s belated submission
of a signed Statement of Accountability, the CA
gaveno weight and credenceto it as the belated
submission of such document, long after the
presentation of evidence of the parties had been
terminated, is not in accord with the rules of fair
play.74 Neither was the CA swayed by the
argument that the omitted signature of Luis Miguel
Aboitiz is a mere formal defect, which does not
affect the validity of the entire document.75 The
dispositive portion of the Resolution reads:
WHEREFORE,premises considered, respondents
Subic Bay Metropolitan Authority’s Motion for
Reconsideration dated 18 February 2013,
Department of Environment and Natural
Resources Secretary Ramon Jesus P. Paje’s
Motion for Reconsideration dated 19 February
2013, and Redondo Peninsula Energy, Inc.’s
Motion for Partial Reconsideration dated 22
February 2013, as well as petitioners’
OmnibusMotions for Clarification and
Reconsideration dated 25 February 2013,are all
DENIED for lack of merit.
SO ORDERED.76
Unsatisfied, the parties appealed to this Court.
The Casiño Group’s arguments
The Casiño Group, in essence, argues that it is
entitled to a Writ of Kalikasan as it was able to
prove that the operation of the power plant would
cause environmental damage and pollution, and
that thiswould adversely affect the residents of the
provinces of Bataan and Zambales, particularly the
municipalities of Subic, Morong, Hermosa, and the
City of Olongapo. It cites as basis RP Energy’s EIS,
which allegedly admits that acid rain may occur in
the combustion of coal;77 that the incidence of
asthma attacks among residents in the vicinity of
the project site may increasedue to exposure to
suspended particles from plant operations;78 and
that increased sulfur oxides (SOx) and nitrogen
oxides (NOx) emissions may occur during plant
operations.79 It also claims that when the SBMA
conducted Social Acceptability Policy
Consultations with different stakeholders on the
proposed power plant, the results indicated that
the overall persuasion of the participants was a
clear aversion to the project due to environmental,
health, economic and socio-cultural
concerns.80 Finally, it contends that the ECC third
amendment should also be nullified for failure to
comply with the procedures and requirements for
the issuance of the ECC.81
The DENR’s arguments
The DENR imputes error on the CAin invalidating
the ECC and its amendments, arguing that the
determination of the validity of the ECC as well as
its amendments is beyond the scope of a Petition
for a Writ of Kalikasan.82 And even if it is within the
scope, there is no reason to invalidate the ECC and
its amendments as these were issued in
accordance with DAO No. 2003-30.83 The DENR
also insists that contrary to the view of the CA, a
new EIS was no longer necessary since the first EIS
was still within the validity period when the first
amendment was requested, and that this is
precisely the reason RP Energy was only required
to submit an EPRMP in support of its application
for the first amendment.84 As to the second
amendment, the DENR-EMB only required RP
Energy to submit documents to support the
proposed revision considering that the change in
configuration of the power plant project, from
2x150MW to 1x300MW, was not
substantial.85 Furthermore, the DENR argues that
no permits, licenses, and/or clearances from other
government agencies are required in the
processing and approval of the ECC.86 Thus, non-
compliance with Sections 26 and 27 of the LGC as
well as Section 59 ofthe IPRA Law is not a ground
to invalidate the ECC and its amendments.87 The
DENR further posits that the ECC is not a
concession, permit, or license but is a document
certifying that the proponent has complied with all
the requirements of the EIS System and has
committed to implement the approved
Environmental Management Plan.88 The DENR
invokes substantial justice so that the belatedly
submitted certified true copy of the ECC
containing the signature of Mr. Aboitiz on the
Statement of Accountability may be accepted and
accorded weight and credence.89
SBMA’s arguments
For its part, SBMA asserts that since the CA did not
issue a Writ of Kalikasan, it should not have
invalidated the LDA and that in doing so, the CA
acted beyond its powers.90 SBMA likewise puts in
issue the legal capacity of the Casiño Group to
impugn the validity of the LDA91 and its failure to
exhaust administrative remedies.92 In any case,
SBMA contends that there is no legal basis to
invalidate the LDA as prior consultation under
Sections 26 and 27 of the LGC is not required in
this case considering that the area is within the
SBFZ.93 Under RA 7227, it is the SBMA which has
exclusive jurisdiction over projects and leases
within the SBFZ and that in case of conflict
between the LGC and RA 7227, it is the latter, a
special law, which must prevail.94 Moreover, the
lack of prior certification from the NCIP is alsonot
a ground to invalidate a contract.95 If at all, the
only effect of non-compliance with the said
requirement under Section 59 of the IPRA Law is
the stoppage or suspension of the
project.96 Besides, the subsequent issuance of a
CNO has cured any legal defect found in the LDA.97
RP Energy’s arguments
RP Energy questions the proprietyof the reliefs
granted by the CA considering that it did not issue
a writ of kalikasanin favor of the Casiño
Group.98 RP Energy is of the view that unless a writ
of kalikasanis issued, the CA has no power to grant
the reliefs prayed for in the Petition.99 And even if
it does, the reliefs are limited to those enumerated
in Section 15, Rule 7 of the Rules of Procedure for
Environmental Cases and that the phrase "such
other reliefs" in paragraph (e) should be limited
only to those of the same class or general nature
as the four other reliefs enumerated.100 As to the
validity of the LDA, the ECC and its amendments,
the arguments of RP Energy are basically the same
arguments interposed by SBMA and the DENR. RP
Energy maintains that the ECC and its
amendments were obtained in compliance with
the DENR rules and regulations;101 that a CNO is
not necessary in the execution of anLDA and in the
issuance of the ECC and its amendments;102 and
that prior approval of the local governments, which
may be affected by the project, are not required
because under RA 7227, the decision of the SBMA
shall prevail in matters affecting the Subic Special
Economic Zone (SSEZ), except in matters involving
defense and security.103 RP Energy also raises the
issue of non-exhaustion of administrative
remedies on the part of the Casiño
Group.104 Preliminaries
This case affords us an opportunity to expound on
the nature and scope of the writ of kalikasan. It
presents some interesting questions about law
and justice in the context of environmental cases,
which we will tackle in the main body of this
Decision.
But we shall first address some preliminary
matters, in view of the manner by which the
appellate court disposed of this case.
The Rules on the Writ of Kalikasan,105 which is Part
III of the Rules of Procedure for Environmental
Cases,106 was issued by the Court pursuant to its
power to promulgate rules for the protection and
enforcement of constitutional rights,107 in
particular, the individual’s rightto a balanced and
healthful ecology.108 Section 1 of Rule 7 provides:
Section 1. Nature of the writ.- The writ is a
remedy available to a natural or juridical
person, entity authorized by law, people’s
organization, nongovernmental
organization, or any public interest group
accredited by or registered with any
government agency, on behalf of persons
whose constitutional right to a balanced and
healthful ecology is violated, or threatened
with violation by an unlawful act or omission
of a public official or employee, or private
individual or entity, involving environmental
damage of such magnitude as to prejudice
the life, health or property of inhabitants in
two or more cities or provinces.
The writ is categorized as a special civil action and
was, thus, conceptualized as an extraordinary
remedy,which aims to provide judicial relief from
threatened or actual violation/s of the
constitutional right to a balanced and healthful
ecology of a magnitude or degree of damage that
transcends political and territorial
boundaries.109 It is intended "to provide a
strongerdefense for environmental rights through
judicial efforts where institutional arrangements of
enforcement, implementation and legislation have
fallen short"110 and seeks "to address the
potentially exponential nature of large-scale
ecological threats."111
Under Section 1 of Rule 7, the following requisites
must be present to avail of this extraordinary
remedy: (1) there is an actual or threatened
violation of the constitutional right to a balanced
and healthful ecology; (2) the actual or threatened
violation arises from an unlawful act or omission
of a public official or employee, or private
individual or entity; and (3) the actual or
threatened violation involves or will lead to an
environmental damage of such magnitude as to
prejudice the life, health or property ofinhabitants
in two or more cities or provinces.
Expectedly, the Rules do not definethe exact
nature or degree of environmental damage but
only that it must be sufficientlygrave, in terms of
the territorial scope of such damage, so as tocall
for the grant ofthis extraordinary remedy. The
gravity ofenvironmental damage sufficient to
grant the writ is, thus, to be decided on a case-to-
case basis.
If the petitioner successfully proves the foregoing
requisites, the court shall render judgment
granting the privilege of the writ of kalikasan.
Otherwise, the petition shall be denied. If the
petition is granted, the court may grant the reliefs
provided for under Section 15of Rule 7, to wit:
Section 15. Judgment.- Within sixty (60) daysfrom
the time the petition is submitted for decision, the
court shall render judgment granting or denying
the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are
the following:
(a) Directing respondent to permanently
cease and desist from committing acts or
neglecting the performance of a duty in
violation of environmental laws resulting in
environmental destruction or damage;
(b) Directing the respondent public official,
government agency, private person or entity
to protect, preserve, rehabilitate or restore
the environment;
(c) Directing the respondent public official,
government agency, private person or entity
to monitor strict compliance with the
decision and orders of the court;
(d) Directing the respondent public official,
government agency, or private person or
entity to make periodic reports on the
execution of the final judgment; and
(e) Such other reliefs which relate to the right
of the people to a balanced and healthful
ecology or to the protection, preservation,
rehabilitation or restoration of the
environment, except the award of damages
to individual petitioners.
It must be noted, however,that the above
enumerated reliefs are non-exhaustive. The reliefs
that may be granted under the writ are broad,
comprehensive and non-exclusive.112
Prescinding from the above, the DENR, SBMA and
RP Energy are one in arguing that the reliefs
granted by the appellate court, i.e.invalidating the
ECC and its amendments, are improper because it
had deniedthe Petition for Writ of Kalikasanupon a
finding that the Casiño Group failed to prove the
alleged environmental damage, actual or
threatened, contemplated under the Rules.
Ordinarily, no reliefs could and should be granted.
But the question may be asked, could not the
appellate court have granted the Petition for Writ
of Kalikasanon the ground of the invalidity of the
ECC for failure to comply with certain laws and
rules?
This question is the starting point for setting up
the framework of analysis which should govern
writ of kalikasan cases.
In their Petition for Writ of Kalikasan,113 the Casiño
Group’s allegations, relative to the actual or
threatened violation of the constitutional right to a
balanced and healthful ecology, may be grouped
into two.
The first set of allegations deals withthe actual
environmental damage that will occur if the power
plant project isimplemented. The Casiño Group
claims that the construction and operation of the
power plant will result in (1) thermal pollution of
coastal waters, (2) air pollution due to dust and
combustion gases, (3) water pollution from toxic
coal combustion waste, and (4) acid deposition in
aquatic and terrestrial ecosystems, which will
adversely affect the residents of the Provinces of
Bataan and Zambales, particularly the
Municipalities of Subic, Morong and Hermosa, and
the City of Olongapo.
The second set of allegations deals with the
failureto comply with certain laws and rules
governing or relating to the issuance ofan ECC and
amendments thereto. The Casiño Group claims
that the ECC was issued in violation of (1) the
DENR rules on the issuance and amendment of an
ECC, particularly, DAO 2003-30 and the Revised
Procedural Manual for DAO 2003-30 (Revised
Manual), (2) Section 59 of the IPRA Law,and (3)
Sections 26 and 27 of the LGC. In addition, it
claims that the LDA entered into between SBMA
and RP Energy violated Section 59 of the IPRA
Law.
As to the first set of allegations, involving actual
damage to the environment, it is not difficult to
discern that, if they are proven, then the Petition
for Writ of Kalikasan could conceivably be granted.
However, as to the second set of allegations, a
nuanced approach is warranted. The power of the
courts to nullify an ECC existed even prior to the
promulgation of the Rules on the Writ of
Kalikasanfor judicial review of the acts of
administrative agencies or bodies has long been
recognized114 subject, of course, to the doctrine of
exhaustion of administrative remedies.115
But the issue presented before us is nota simple
case of reviewing the acts of an administrative
agency, the DENR, which issued the ECC and its
amendments. The challenge to the validity ofthe
ECC was raised in the context of a writ of
kalikasancase. The question then is, can the
validity of an ECC be challenged viaa writ of
kalikasan?
We answer in the affirmative subject to certain
qualifications.
As earlier noted, the writ of kalikasanis principally
predicated on an actual or threatened violation of
the constitutional right to a balanced and healthful
ecology, which involves environmental damage of
a magnitude that transcends political and
territorial boundaries. A party, therefore, who
invokes the writ based on alleged defects or
irregularities in the issuance of an ECC must not
only allege and prove such defects or irregularities,
but mustalso provide a causal link or, at least, a
reasonable connection between the defects or
irregularities in the issuance of an ECC and the
actual or threatened violation of the constitutional
right to a balanced and healthful ecology of the
magnitude contemplated under the Rules.
Otherwise, the petition should be dismissed
outright and the action re-filed before the proper
forum with due regard to the doctrine of
exhaustion of administrative remedies. This must
be so ifwe are to preserve the noble and laudable
purposes of the writ against those who seek to
abuse it.
An example of a defect or an irregularity in the
issuance of an ECC, which could conceivably
warrant the granting of the extraordinary remedy
of the writ of kalikasan, is a case where there are
serious and substantial misrepresentations or
fraud in the application for the ECC, which, if not
immediately nullified, would cause actual negative
environmental impacts of the magnitude
contemplated under the Rules, because the
government agenciesand LGUs, with the final
authority to implement the project, may
subsequently rely on such substantially defective
or fraudulent ECC in approving the implementation
of the project.
To repeat, in cases of defects or irregularities in
the issuance of an ECC, it is not sufficient to merely
allege such defects or irregularities, but to show a
causal link or reasonable connection with the
environmental damage of the magnitude
contemplated under the Rules. In the case at bar,
no such causal link or reasonable connection was
shown or even attempted relative to the aforesaid
second set of allegations. It is a mere listing of the
perceived defects or irregularities in the issuance
of the ECC. This would havebeen sufficient reason
to disallow the resolution of such issues in a writ
of kalikasan case.
However, inasmuch as this is the first time that we
lay down this principle, we have liberally examined
the alleged defects or irregularities in the issuance
of the ECC and find that there is only one group of
allegations, relative to the ECC, that can be
reasonably connected to anenvironmental
damageof the magnitude contemplated under the
Rules. This is withrespect to the allegation that
there was no environmental impact assessment
relative to the first and second amendments to the
subject ECC. If this were true, then the
implementation of the project can conceivably
actually violate or threaten to violate the right to a
healthful and balanced ecology of the inhabitants
near the vicinity of the power plant. Thus, the
resolution of such an issue could conceivably be
resolved in a writ of kalikasan case provided that
the case does not violate, or is anexception to the
doctrine of exhaustion of administrative remedies
and primary jurisdiction.116
As to the claims that the issuance of the ECC
violated the IPRA Law and LGC and that the LDA,
likewise, violated the IPRA Law, we find the same
not to be within the coverage of the writ of
kalikasanbecause, assuming there was non-
compliance therewith, no reasonable connection
can be made to an actual or threatened violation of
the right to a balanced and healthful ecology of the
magnitude contemplated under the Rules.
To elaborate, the alleged lackof approval of the
concerned sanggunians over the subject project
would not lead toor is not reasonably connected
with environmental damage but, rather, it is an
affront to the local autonomy of LGUs. Similarly,
the alleged lack of a certificate precondition that
the project site does not overlap with an ancestral
domain would not result inor is not reasonably
connected with environmental damage but, rather,
it is an impairment of the right of Indigenous
Cultural Communities/Indigenous Peoples
(ICCs/IPs) to their ancestral domains. These
alleged violationscould be the subject of
appropriate remedies before the proper
administrative bodies (like the NCIP) or a separate
action to compel compliance before the courts, as
the case may be. However, the writ of kalikasan
would not be the appropriate remedy to address
and resolve such issues.
Be that as it may, we shall resolve both the issues
proper in a writ of kalikasan case and those which
are not, commingled as it were here, because of
the exceptional character of this case. We take
judicial notice of the looming power crisis that our
nation faces. Thus, the resolution of all the issues
in this case is of utmost urgency and necessity in
order to finally determine the fate of the project
center of this controversy. If we were to resolve
only the issues proper in a writ of kalikasancase
and dismiss those not proper therefor, that will
leave such unresolved issues open to another
round of protracted litigation. In any case, we find
the records sufficient to resolve all the issues
presented herein. We also rule that, due to the
extreme urgency of the matter at hand, the present
case is an exception to the doctrine of exhaustion
of administrative remedies.117 As we have often
ruled, in exceptional cases, we can suspend the
rules of procedure in order to achieve substantial
justice, and to address urgent and paramount
State interests vital to the life of our nation.
Issues
In view of the foregoing, we shall resolve the
following issues:
1. Whether the Casiño Group was able to
prove that the construction and operation of
the power plant will cause grave
environmental damage.
1.1. The alleged thermal pollution of
coastal waters, air pollution due to
dust and combustion gases, water
pollution from toxic coal combustion
waste, and acid deposition to aquatic
and terrestrial ecosystems that will
becaused by the project.
1.2. The alleged negative
environmental assessment of the
project by experts in a report generated
during the social acceptability
consultations.
1.3. The alleged admissions of grave
environmental damage in the EIS itself
of the project.
2. Whether the ECC is invalid for lackof
signature of Mr. Luis Miguel Aboitiz, as
representative of RP Energy, in the
Statement of Accountability of the ECC.
 3. Whether the first and second amendments
to the ECC are invalid for failure to undergo a
new environmental impact assessment (EIA)
because of the utilization of inappropriate
EIA documents.
4. Whether the Certificate of Non-Overlap,
under Section 59 of the IPRA Law, is a
precondition to the issuanceof an ECC and
the lack of its prior issuance rendered the
ECC invalid.
5. Whether the Certificate of Non-Overlap,
under Section 59 of the IPRA Law, is a
precondition to the consummation of the
Lease and Development Agreement (LDA)
between SBMA and RPEnergy and the lack of
its prior issuance rendered the LDA invalid.
6. Whether compliance with Section 27, in
relation to Section 26, of the LGC (i.e.,
approval of the concerned
sanggunianrequirement) is necessary prior
to the implementation of the power plant
project.
7. Whether the validity of the third
amendment to the ECC can be resolved in
this case.
Ruling
The parties to this case appealed from the decision
of the appellate court pursuant to Section 16,
Rule7 of the Rules of Procedure for Environmental
Cases, viz:
Section 16. Appeal.- Within fifteen (15) days from
the date of notice of the adverse judgment or
denialof motion for reconsideration, any party may
appeal to the Supreme Court under Rule45 of the
Rules of Court. The appeal may raise questions of
fact. (Emphasis supplied)
It is worth noting that the Rules on the Writ of
Kalikasan allow the parties to raise, on appeal,
questions of fact— and, thus, constitutes an
exception to Rule 45 of the Rules of Court—
because ofthe extraordinary nature of the
circumstances surrounding the issuance of a writ
of kalikasan.118 Thus, we shall review both
questions of law and fact in resolving the issues
presented in this case.
We now rule on the above-mentioned issues in
detail.
I.
Whether the Casiño Group was able to prove that
the construction and operation of the power plant
will cause grave environmental damage.
The alleged thermal pollution of coastal
waters, air pollution due to dust and
combustion gases, water pollution from
toxic coal combustion waste, and acid
deposition in aquatic and terrestrial
ecosystems that will be caused by the project.
As previously noted, the Casiño Group alleged that
the construction and operation of the power plant
shall adversely affect the residents of the
Provinces of Bataan and Zambales, particularly,
the Municipalities of Subic, Morong and Hermosa,
and the City of Olongapo, as well as the sensitive
ecological balance of the area. Their claims of
ecological damage may be summarized as
follows:
1. Thermal pollution of coastal waters. Due
to the discharge of heated water from the
operation of the plant, they claim that the
temperature of the affected bodies of water
will rise significantly. This will have adverse
effects on aquatic organisms. It will also
cause the depletion of oxygen in the water.
RP Energy claims that there will beno more
than a 3°C increase in water temperature but
the Casiño Group claims that a 1°C to 2°C
rise can already affect the metabolism and
other biological functions of aquatic
organisms such asmortality rate and
reproduction.
2. Air pollution due to dust and combustion
gases. While the Casiño Group admits that
Circulating Fluidized Bed (CFB) Coal
technology, which will be used in the power
plant, is a clean technology because it
reduces the emission of toxic gases, it
claims that volatile organic compounds,
specifically, polycyclic aromatic
hydrocarbons (PAHs) will also be emitted
under the CFB. PAHs are categorized as
pollutants with carcinogenic and mutagenic
characteristics. Carbon monoxide, a
poisonous gas, and nitrous oxide, a lethal
global warming gas, will also be produced.
3. Water pollution from toxic coal
combustion waste. The waste from coal
combustion or the residues from burning
pose serious environmental risk because
they are toxic and may cause cancer and
birth defects. Their release to nearby bodies
of water will be a threatto the marine
ecosystem of Subic Bay. The project is
located in a flood-prone area and is near
three prominent seismic faults as identified
by Philippine Institute of Volcanology and
Seismology. The construction of an ash
pond in an area susceptible to flooding and
earthquake also undermines SBMA’s duty to
 prioritize the preservation of the water
quality in Subic Bay.
4. Acid deposition in aquatic and terrestrial
ecosystems. The power plant will release
1,888 tons of nitrous oxides and 886 tons of
sulfur dioxide per year. These oxides are
responsible for acid deposition. Acid
deposition directly impacts aquatic
ecosystems. It is toxic to fish and other
aquatic animals. It will also damage the
forests near Subic Bay as well as the wildlife
therein. This will threaten the stability of the
biological diversity of the Subic Bay Freeport
which was declared as one of the ten priority
sites among the protected areas in the
Philippines and the Subic Watershed and
Forest Reserve. This will also have an
adverse effect on tourism.119
In its January 30, 2013 Decision, the appellate
court ruled that the Casiño Group failed to prove
the above allegations.
We agree with the appellate court.
Indeed, the three witnesses presented by the
Casiño Group are not experts on the CFB
technology or on environmental matters. These
witnesses even admitted on cross-examination
that theyare not competent to testify on the
environmental impact of the subject project. What
is wanting in their testimonies is their technical
knowledgeof the project design/implementation
or some other aspects of the project, even those
not requiring expertknowledge, vis-à-vis the
significant negative environmental impacts which
the Casiño Group alleged will occur. Clearly, the
Casiño Group failed to carry the onusof proving the
alleged significant negative environmental
impacts of the project. In comparison, RP Energy
presented several experts to refute the allegations
of the Casiño Group.
As aptly and extensively discussed by the
appellate court:
Petitioners120 presented three (3) witnesses,
namely, Palatino, Hermoso, and Lacbain, all of
whom are not experts on the CFB technology or
even on environmental matters. Petitioners did not
present any witness from Morong or Hermosa.
Palatino, a former freelance writer and now a
Congressman representing the Kabataan Partylist,
with a degree of BS Education major in Social
Studies, admitted that he is not a technical expert.
Hermoso, a Director of the PREDA foundation
which is allegedly involved on environmental
concerns, and a member of Greenpeace, is not an
expert on the matter subject of this case. He is a
graduate of BS Sociology and a practicing
business director involved in social development
and social welfare services. Lacbain, incumbent
ViceGovernor of the Province of Zambales,
anaccounting graduate with a Master in Public
Administration, was a former BancoFilipino teller,
entertainment manager, disco manager,
marketing manager and college instructor, and is
also not an expert on the CFB technology. Lacbain
also admitted that he is neither a scientist nor an
expert on matters of the environment.
Petitioners cited various scientific studies or
articles and websites culled from the internet.
However, the said scientific studiesand articles
including the alleged Key Observations and
Recommendations on the EIS of the Proposed RPE
Project by Rex Victor O. Cruz (Exhibit "DDDDD")
attached to the Petition, were not testified to by an
expert witness, and are basically hearsay in nature
and cannot be given probative weight. The article
purportedly written by Rex Victor O. Cruz was not
even signed by the said author, which fact was
confirmed by Palatino. Petitioners’ witness,
Lacbain, admitted that he did not personally
conduct any study on the environmental or health
effects of a coal-firedpower plant, but only
attended seminars and conferences pertaining to
climate change; and that the scientific studies
mentioned in the penultimate whereas clause of
Resolution No. 2011-149 (Exhibit "AAAAA") of the
Sangguniang Panlalawiganof Zambales is based
on what he read on the internet, seminars he
attended and what he heard from unnamed
experts in the field of environmental protection.
In his Judicial Affidavit (Exhibit "HHHHH"),
Palatino stated that he was furnished by the
concerned residents the Key Observations and
Recommendations on the EIS of Proposed RPE
Project by Rex Victor O. Cruz, and that he merely
received and read the five (5) scientific studies and
articles which challenge the CFB technology.
Palatino also testified that: he was only furnished
by the petitioners copies of the studies mentioned
in his Judicial Affidavit and he did not participate
in the execution, formulation or preparation of any
of the said documents; he does not personally
know Rex Cruz or any of the authors of the studies
included in his Judicial Affidavit; he did not read
other materials about coal-fired power plants; he
is not aware of the acceptable standards as far as
the operation of a coal-fired power plant is
concerned; petitioner Velarmino was the one who
furnished him copies of the documents in
reference to the MOU and some papers related to
the case; petitioner Peralta was the one who e-
mailed to him the soft copy ofall the documents
[letters (a) to (o) of his Judicial Affidavit], except
the LGU Resolutions; and he has never been at the
actual Power Plant projectsite. It must be noted
that petitioners Velarmino and Peralta were never
presented as witnesses in this case. In addition,
Palatino did not identify the said studies but
simplyconfirmed that the said studies were
attached to the Petition.
Indeed, under the rules of evidence, a witness can
testify only to those facts which the witness knows
of his orher personal knowledge, that is, which are
derived from the witness’ own perception.
Concomitantly, a witness may not testify on
matters which he or she merely learned from
others either because said witness was told or
read or heard those matters. Such testimony is
considered hearsay and may not be received as
proof of the truth of what the witness has learned.
This is known as the hearsay rule. Hearsay is
notlimited to oral testimony or statements; the
general rule that excludes hearsay as evidence
applies to written, as well as oral statements.
There are several exceptions to the hearsay rule
under the Rules of Court, among which are learned
treatises under Section 46 of Rule 130, viz:
"SEC. 46. Learned treatises. -A published treatise,
periodical or pamphlet on a subjectof history, law,
science, or art is admissible as tending to prove
the truth of a matter stated therein if the court
takes judicial notice, or a witness expert in the
subject testifies, that the writer of the statement in
the treatise, periodical or pamphlet is recognized
in his profession or calling as expert in the
subject."
The alleged scientific studies mentioned in the
Petition cannot be classified as learned treatises.
We cannot take judicial notice of the same, and no
witness expert in the subjectmatter of this case
testified, that the writers of the said scientific
studies are recognized in their profession or
calling as experts in the subject.
In stark contrast, respondent RP Energy presented
several witnesses on the CFB technology.
In his Judicial Affidavit, witness Wong stated that
he obtained a Bachelor of Science, Major in
Mechanical Engineering from Worcester
Polytechnic Institute; he is a Consulting Engineer
of Steam Generators of URS; he was formerly
connected with Foster Wheeler where he held the
positions of site commissioning engineer, testing
engineer, instrumentation and controls engineer,
mechanical equipment department manager,
director of boiler performance and mechanical
design engineering and pulverized coal product
director. He explained that: CFB stands for
Circulating Fluidized Bed; it is a process by which
fuel is fed to the lower furnace where it is burned
in an upward flow of combustion air; limestone,
which is used as sulfur absorbent, is also fed to the
lower furnace along with the fuel; the mixture
offuel, ash, and the boiler bed sorbent material is
carried to the upper part of the furnace and into a
cyclone separator; the heavier particles which
generally consist of the remaining uncombusted
fuel and absorbent material are separated in the
cyclone separator and are recirculated to the lower
furnace to complete the combustion of any
unburned particles and to enhance SO2 capture by
the sorbent; fly ash and flue gas exit the cyclone
and the fly ash is collected in the electrostatic
precipitator; furnace temperature is maintained in
the range of 800° to 900° C by suitable heat
absorbing surface; the fuel passes through a
crusher that reduces the size to an appropriate
size prior to the introduction into the lower furnace
along with the limestone; the limestone is used as
a SO2 sorbent which reacts with the sulfur oxides
to form calcium sulfate, an inert and stable
material; air fans at the bottom of the furnace
create sufficient velocity within the steam
generator to maintain a bed of fuel, ash, and
limestone mixture; secondary air is also
introduced above the bed to facilitate circulation
and complete combustion of the mixture; the
combustion process generates heat, which then
heats the boiler feedwater flowing through boiler
tube bundles under pressure; the heat generated in
the furnace circuit turns the water to saturated
steam which is further heated to superheated
steam; this superheated steam leaves the CFB
boiler and expands through a steam turbine; the
steam turbine is directly connected to a generator
that turns and creates electricity; after making its
way through the steam turbine, the low-pressure
steam is exhausted downwards into a condenser;
heat is removed from the steam, which cools and
condenses into water (condensate); the
condensate is then pumped back through a train
of feedwater heaters to gradually increase its
temperature beforethis water is introduced to the
boiler to start the process all over again; and CFB
technology has advantagesover pulverized coal
firing without backend cleanup systems, i.e.,
greater fuel flexibility, lower SO2 and NOx
emissions. Moreover, Wong testified, inter alia,
that: CFBs have a wider range of flexibility so they
can environmentally handle a wider range of fuel
constituents, mainly the constituent sulfur; and is
capable of handling different types of coal within
the range of the different fuelconstituents; since
CFB is the newer technology than the PC or stalker
fire, it has better environmental production; 50
percent ofthe electric generation in the United
States is still produced by coal combustion; and
the CFB absorbs the sulfur dioxide before it is
emitted; and there will be a lower percentage of
emissions than any other technology for the coal.
In his Judicial Affidavit, Sarrki, stated that: he is
the Chief Engineer for Process Concept in
FosterWheeler; he was a Manager of Process
Technology for Foster Wheeler from 1995 to 2007;
and he holds a Master of Science degree in
Chemical Engineering.He explained that: CFB
boilers will emit PAHs but only in minimal
amounts, while BFB will produce higher PAH
emissions; PAH is a natural product of any
combustion process; even ordinary burning, such
as cooking or driving automobiles, will have some
emissions that are not considered harmful; it is
only when emissions are of a significant level that
damage may be caused; a CFB technology has
minimal PAH emissions; the high combustion
efficiency of CFB technology, due to long
residence time of particles inside the boiler, leads
to minimal emissions of PAH; other factors such
as increase in the excess air ratio[,] decrease in
Ca/S, as well as decrease in the sulfur and chlorine
contents of coal will likewise minimize PAH
production; and CFB does not cause emissions
beyond scientificallyacceptable levels. He
testified, inter alia, that: the CFB technology is
used worldwide; they have a 50% percent share of
CFB market worldwide; and this will be the first
CFB by Foster Wheeler in the Philippines; Foster
Wheeler manufactures and supplies different
type[s] of boilers including BFB, but CFB is always
applied on burning coal, so they do not apply any
BFB for coal firing; CFB has features which have
much better combustion efficiency, much lower
emissions and it is more effective as a boiler
equipment; the longer the coal stays inthe
combustion chamber, the better it is burned; eight
(8) seconds is already beyond adequate but it
keeps a margin; in CFB technology, combustion
technology is uniform throughout the combustion
chamber; high velocity is used in CFB technology,
that is vigorous mixing or turbulence; turbulence is
needed to get contact between fuel and
combustion air; and an important feature of CFB is
air distribution.
In his Judicial Affidavit, Ouano stated that: he is a
licensed Chemical Engineer, Sanitary Engineer and
Environmental Planner in the Philippines; he is
also a chartered Professional Engineer inAustralia
and a member of the colleges of environmental
engineers and chemical engineers of the
Institution of Engineers (Australia); he completed
his Bachelor in Chemical Engineering in 1970,
Master of Environmental Engineering in 1972 and
Doctor of Environmental Engineering in 1974; he
also graduated from the University of Sydney Law
School with the degree of Master of Environmental
Law in 2002 and PhD in Law from Macquarie
University in 2007. He explained in his Judicial
Affidavit that: the impacts identified and analyzed
in the EIA process are all potential or likely
impacts; there are a larger number of EIA
techniques for predicting the potential
environmental impacts; it is important to note that
all those methods and techniques are only for
predicting the potential environmental impacts,
not the real impacts; almost all environmental
systems are non-linear and they are subject to
chaotic behavior that even the most sophisticated
computer could not predict accurately; and the
actual or real environmental impact could only be
established when the project is in actual operation.
He testified, inter alia, that: the higher the
temperature the higher the nitrous oxide emitted;
in CFB technology, the lower the temperature, the
lower is the nitrogen oxide; and it still has a
nitrogen oxide but not as high as conventional
coal; the CFB is the boiler; from the boiler
itself,different pollution control facilities are going
to be added; and for the overall plant with the
pollution control facilities, the particulate matters,
nitrogen oxide and sulfur dioxide are under
control. (Citations omitted)121
We also note that RP Energy controverted in detail
the afore-summarized allegations of the Casiño
Group on the four areas of environmental damage
that will allegedly occur upon the construction and
operation of the power plant:
1. On thermal pollution of coastal waters.
As to the extent of the expected rise in water
temperature once the power plant is operational,
Ms. Mercado stated in her JudicialAffidavit thus:
Q: What was the result of the Thermal Plume
Modeling that was conducted for RP Energy?
A: The thermal dispersion modeling results show
that largest warming change (0.95°C above
ambient) is observed in the shallowest (5 m)
discharge scenario. The warmest surface
temperature change for the deepest (30 m)
scenario is 0.18°C. All the simulated scenarios
comply with the DAO 90-35 limit for temperature
rise of 3°C within the defined 70 x 70 m mixing
zone. The proposed power plant location is near
the mouth of Subic Bay, thus the tidal currents
influence the behavior of thermal discharge plume.
Since the area is well-flushed, mixing and dilution
of the thermal discharge is expected.
It also concluded that corals are less likely to be
affected by the cooling water discharge as corals
may persist in shallow marine waterswith
temperatures ranging from 18°C to 36°C. The
predicted highest temperature of 30.75°C, from
the 0.95°C increase in ambient in the shallowest (5
m) discharge scenario, is within this range.122
In the same vein, Dr. Ouano stated in his Judicial
Affidavit:
Q: In page 41, paragraph 99 of the Petition, it was
alleged that: "x x x a temperature change of 1°C to
2°C canalready affect the metabolism and other
biological functions of aquatic organisms such as
mortality rate and reproduction." What is your
expert opinion, if any, on this matter alleged by the
Petitioners?
A: Living organisms have proven time and again
that they are very adaptable to changes in the
environment. Living organisms have been isolated
in volcanic vents under the ocean living on the
acidic nutrient soup of sulfur and other minerals
emitted by the volcano to sub-freezing
temperature in Antarctica. Asa general rule,
metabolism and reproductive activity [increase]
with temperature until a maximum is reached after
which [they decline]. For this reason, during winter,
animals hibernate and plants become dormant
after shedding their leaves. It is on the onset of
spring that animals breed and plants bloom when
the air and water are warmer. At the middle of
autumn when the temperature drops to single
digit, whales, fish, birds and other living
organisms, which are capable of migrating, move
to the other end of the globe where spring is just
starting. In the processes of migration, those
migratory species have to cross the tropics where
the temperature is not just one or two degrees
warmer but 10 to 20 degrees warmer. When
discussing the impact of 1 to 2 degrees
temperature change and its impact on the
ecosystem, the most important factors to consider
are – (1) Organism Type – specifically its
tolerance to temperature change (mammals have
higher tolerance); (2) Base Temperature – it is the
temperature over the optimum temperature such
that an increasewill result in the decline in number
of the organisms; (3) Mobility or Space for
Migration (i.e., an aquarium with limited space or
an open ocean that the organism can move to a
space more suited to [a] specific need, such as the
migratory birds); and (4) Ecosystem Complexity
and Succession. The more complex the ecosystem
the more stable it is as succession and adaptation
[are] more robust.
Normally, the natural variation in water
temperature between early morning to late
afternoon could be several degrees (four to five
degrees centigrade and up to ten degrees
centigrade on seasonal basis). Therefore, the less
than one degree centigrade change predicted by
the GHD modeling would have minimal impact.123
On cross-examination, Dr. Ouano further
explained—
ATTY. AZURA:
x x x When you say Organism Type – you
mentioned that mammals have a higher tolerance
for temperature change?
DR. OUANO:
Yes.
ATTY. AZURA:
What about other types of organisms, Dr. Ouano?
Fish for example?
DR. OUANO:
Well, mammals have high tolerance because
mammals are warm[- ]blooded. Now, when it
comes to cold[-]blooded animals the tolerance is
much lower. But again when you are considering x
x x fish [e]specially in open ocean you have to
remember that nature by itself is x x x very brutal x
x x where there is always the prey-predator
relationship. Now, most of the fish that we have in
open sea [have] already a very strong adaptability
mechanism.And in fact, Kingman back in 1964 x x
x studied the coal reefaround the gulf of Oman
where the temperature variation on day to day
basis varied not by 1 degree to 2 degrees but by
almost 12 degrees centigrade. Now, in the Subic
Bay area which when you’re looking at it between
daytime variation, early dawn when it is cold, the
air is cold, the sea temperature, sea water is quite
cold. Then by 3:00 o’clock in the afternoon it starts
to warm up. Sothe variation [in the] Subic Bay area
is around 2 to 4 degrees by natural variation from
the sun as well as from the current that goes
around it. So when you are talking about what the
report has said of around 1 degree change, the
total impact x x x on the fishes will be minimal. x x
x
ATTY. AZURA:
x x x So, you said, Dr. Ouano, that fish, while they
have a much lower tolerance for temperature
variation, are still very adaptable. What about
other sea life, Dr. Ouano, for example, sea reptiles?
DR. OUANO:
That’s what I said. The most sensitive part of the
marine ecology is physically the corals because
corals are non-migratory, they are fix[ed].
Second[ly] x x x corals are also highly dependent
on sunlight penetration. If they are exposed out of
the sea, they die; if theyare so deep, they die. And
that is why I cited Kingman in his studies of coral
adaptability [in] the sea ofOman where there was a
very high temperature variation, [they] survived.
ATTY. AZURA:
Would you be aware, Dr. Ouano, if Kingman has
done any studies in Subic Bay?
DR. OUANO:
Not in Subic Bay but I have reviewedthe
temperature variation, natural temperature
variation from the solar side, the days side as well
as the seasonal variation. There are two types of
variation since temperatures are very critical. One
is the daily, which means from early morning to
around 3:00 o’clock, and the other one is seasonal
variation because summer, December, January,
February are the cold months and then by April,
May we are having warm temperature where the
temperature goes around 32-33 degrees;
Christmas time, it drops to around 18 to 20
degrees so it[']sa variation of around seasonal
variation of 14 degrees although some of the fish
might even migrate and that is why I was trying to
put in corals because they are the ones that are
really fix[ed]. They are not in a position to migrate
in this season.
ATTY. AZURA:
To clarify. You said that the most potentially
sensitive part of the ecosystem would be the
corals. DR. OUANO:
Or threatened part because they are the ones [that]
are not in a position to migrate.
ATTY AZURA:
In this case, Dr. Ouano, with respectto this project
and the projected temperature change, will the
corals in Subic Bay be affected?
DR. OUANO:
As far as the outlet is concerned, they have
established it outside the coral area. By the time it
reaches the coral area the temperature variation,
as per the GHD study is very small, it[’]s almost
negligible.
ATTY AZURA:
Specifically, Dr. Ouano, what does negligible
mean, what level of variation are we talking about?
DR. OUANO:
If you are talking about a thermometer, you might
be talking about, normally about .1 degrees
centigrade. That’sthe one that you could more or
less ascertain. x x x
ATTY. AZURA:
Dr. Ouano, you mentioned in youranswer to the
same question, Question 51, that there is a normal
variation in water temperature. In fact, you said
there is a variation throughout the day, daily and
also throughout the year, seasonal. Just to clarify,
Dr. Ouano. When the power plant causes the
projected temperature change of 1 degree to 2
degrees Celsius this will be in addition to existing
variations? What I mean, Dr. Ouano, just so I can
understand, how will that work? How will the
temperature change caused by the power plant
work with the existing variation? DR. OUANO:
There is something like what we call the zonal
mixing. This is an area of approximately one or two
hectares where the pipe goes out, the hot water
goes out. So that x x x, we have to accept x x x that
[throughout it] the zone will be a disturb[ed] zone.
After that one or two hectares park the water
temperature is well mixed [so] that the
temperature above the normal existing variation
now practically drops down to almost the normal
level.124
2. On air pollution due to dust and combustion
gases.
To establish that the emissions from the operation
of the power plant would be compliant with the
standards under the Clean Air Act,125 Ms. Mercado
stated in her Judicial Affidavit thus:
271. Q: What was the result of the Air Dispersion
Modeling that was conducted for RP Energy?
A: The Air Dispersion Modeling predicted that the
Power Plant Project will produce the following
emissions, which [are] fully compliant with the
standards set by DENR:
Predicted National Ambient
GLC126 for 1-hr Air Quality
averaging period Guideline Values
SO2 45.79 µg/Nm3 340 µg/Nm3
NO2 100.8 µg/Nm3 260 µg/Nm3
CO 10 µg/Nm3 35 µg/Nm3
 Predicted GLC for National Ambient It means there are more emissions that could
8-hr averaging Air Quality potentially be released when it is under upset
period Guideline Values condition.
ATTY. AZURA:
CO 0.19 mg/ncm 10 µg/Nm3 I also noticed, Ms. Mercado, at the bottom part of
this chart there are Receptor IDs, R1, R2, R3 and so
forth and on page 188 of this same document,
Predicted GLC for National Ambient Annex "9-Mercado," there is a list identifying these
24-hr averaging Air Quality receptors, for example, Receptor 6, Your Honor,
period Guideline Values appears to have been located in Olongapo City,
Poblacion. Just so I can understand, Ms. Mercado,
SO2 17.11 µg/Nm3 180 µg/Nm3 does that mean that if upset condition[s] were to
occur, the Olongapo City Poblacion will be affected
NO2 45.79 µg/Nm3 150 µg/Nm3
by the emissions? MS. MERCADO:
All it means is that there will be higher emissions
Predicted GLC for National Ambient and a higher ground concentration. But you might
1-yr averaging Air Quality want to alsopay attention to the "y axis," it says
period Guideline Values there GLC/CAA [Ground Level
Concentration/Clean Air Act limit]. So it means
SO2 6.12 µg/Nm3 80 µg/Nm3 that even under upset conditions… say for R6, the
ground level concentration for upset condition is
NO2 No standard --- still around .1 or 10% percent only of the Clean Air
Act limit. So it’s still much lower than the limit.
CO No standard --- ATTY. AZURA:
272. Q: What other findings resulted from the Air But that would mean, would it not, Ms. Mercado,
Dispersion Modeling, if any? that in the event of upset conditions[,]
A: It also established that the highest GLC to emissionswould increase in the Olongapo City
CleanAir Act Standards ratio among possible Poblacion?
receptors was located 1.6 km North NorthEast MS. MERCADO:
("NNE") of the Power Plant Project. Further, this Not emissions will increase. The emissions will be
ratio was valued only at 0.434 or less than half of the same but the ground level concentration, the
the upper limit set out in the Clean Air Act. This GLC, will be higher if you compare normal versus
means that the highest air ambient quality upset. But even if it[’]s under upset conditions, it is
disruption will happen only 1.6 km NNE of the still only around 10% percent of the Clean Air Act
Power Plant Project, and that such disruption Limit.
would still be compliant with the standards xxxx
imposed by the Clean Air Act.127 J. LEAGOGO:
The Casiño Group argued, however, that, as stated So you are trying to impress upon this Court that
inthe EIS, during upset conditions, significant even if the plant is in an upset condition, it will emit
negative environmental impact will result from the less than what the national standards dictate?
emissions. This claim was refuted by RP Energy’s MS. MERCADO:
witness during cross-examination: Yes, Your Honor.128
ATTY. AZURA: With respect to the claims that the powerplant will
If I may refer you to another page of the same release dangerous PAHs and CO, Engr. Sarrki
annex, Ms. Mercado, that’s page 202 of the same stated in his Judicial Affidavit thus:
document, the August 2012. Fig. 2-78 appears to Q: In page 42, paragraph 102 of the Petition, the
show, there’s a Table, Ms. Mercado, the first table, Petitioners alleged that Volatile Organic
the one on top appears to show a comparison in Compounds ("VOC") specifically Polycyclic
normal and upset conditions. I noticed, Ms. Aromatic Hydrocarbon ("PAH") will be emitted
Mercado, that the black bars are much higher than even by CFB boilers. What can you say about this?
the bars in normal condition. Can you state what A: Actually, the study cited by the Petitioners does
this means? not apply to the present case because it does not
MS. MERCADO: refer to CFB technology. The study refers to a
laboratory-scale tubular Bubbling Fluidized Bed
("BFB") test rig and not a CFB. CFB boilers will emit
PAHs but only in minimal amounts. Indeed, a BFB
will produce higher PAH emissions.
xxxx
Q: Why can the study cited by Petitioners not apply
in the present case?
A: The laboratory-scale BFB used in the study only
has one (1) air injection point and does not
replicate the staged-air combustion process of the
CFB that RP Energy will use. Thisstaged-air
process includes the secondary air. Injecting
secondary air into the system will lead to more
complete combustion and inhibits PAH
production. There is a study entitled "Polycyclic
Aromatic Hydrocarbon (PAH) Emissions from a
Coal-Fired Pilot FBC System" byKunlei Liu, Wenjun
Han, Wei-Ping Pan, John T. Riley found in the
Journal of Hazardous Materials B84 (2001) where
the findings are discussed.
Also, the small-scale test rig utilized in the study
does not simulate the process conditions
(hydrodynamics, heat transfer characteristics,
solid and gas mixing behavior, etc.) seen in a large
scale utility boiler, like those which would be
utilized by the Power Plant Project.
xxxx
Q: Aside from residence time of particles and
secondary air, what other factors, if any, reduce
PAH production?
A: Increase in the excess air ratio will also
minimizePAH production. Furthermore, decrease
in Calcium to Sulfur moral ratio ("Ca/S"), as well as
decrease in the sulfur and chlorine contents of
coal will likewise minimize PAH production. This is
also based on the study entitled "Polycyclic
Aromatic Hydrocarbon (PAH) Emissions from a
Coal-Fired Pilot FBC System" by Kunlei Liu,
Wenjun Han, Wei-Ping Pan, John T. Riley.
In RP Energy’s Power Plant Project, the projected
coal to be utilized has low sulfur and chlorine
contents minimizing PAH production. Also, due to
optimum conditions for the in-furnace
SO2capture, the Ca/S will be relatively low,
decreasing PAH production.
Q: In paragraph 104 of the Petition, it was alleged
that "Carbon monoxide (CO), a poisonous,
colorless and odorless gas is also produced when
there is partial oxidation or when there is not
enough oxygen (O2) to form carbon dioxide
(CO2)." What can you say about this?
A: CFB technology reduces the CO emissions of
the Power Plant Project to safe amounts. In fact, I
understand that the projected emissions level of
the Power Plant Project compl[ies]with the
International Finance Corporation ("IFC")
standards. Furthermore, characteristics of CFB
technology such as long residence time, uniform
temperature and high turbulence provide an
effective combustion environment which results
[in] lower and safer CO emissions.
Q: I have no further questions for youat the
moment. Is there anything you wish to add to the
foregoing?
A: Yes. PAH is a natural product of ANY
combustion process. Even ordinary burning, such
as cooking or driving automobiles, will have some
emissions that are not considered harmful. It is
only when emissions are of a significant level that
damage may be caused.
Given that the Power Plant Project will utilize CFB
technology, it will have minimal PAH emissions.
The high combustion efficiency of CFB technology,
due to the long residence time of particles inside
the boiler, leads to the minimal emissions of PAH.
Furthermore,other factors such as increase in the
excess air ratio, decrease in Ca/S, as well as
decrease in the sulfur and chlorine contents of
coal will likewise minimize PAH production. CFB
does not cause emissions beyond scientifically
acceptable levels, and we are confident it will not
result in the damage speculated by the
Petitioners.129
3. On water pollution from toxic coal combustion
waste.
With regard to the claim that coal combustion
waste produced by the plant will endanger the
health of the inhabitants nearby, Dr. Ouano stated
in his Judicial Affidavit thus:
Q: In page 43, paragraph 110 of the Petition, it was
alleged that: "[s]olid coal combustion waste is
highly toxic and is said to cause birth defects and
cancer risks among others x x x." What is your
expert opinion, if any, on this matter alleged by the
Petitioners?
A: Coal is geologically compressed remains of
living organisms that roamed the earth several
million years ago. In the process of compression,
some of the minerals in the soil, rocks or mud, the
geologic media for compression, are also imparted
into the compressed remains. If the compressing
media of mud, sediments and rocks contain high
concentration of mercury, uranium, and other toxic
substances, the coal formed will likewise contain
high concentration of those substances. If the
compressing materials have low concentration of
those substances, then the coal formed will
likewise have low concentration of those
substances. If the coal does not contain excessive
quantities of toxic substances, the solid residues
are even used in agriculture to supply
micronutrients and improve the potency of
fertilizers. It is used freely as a fill material in roads
and other construction activities requiring large
volume of fill and as additive in cement
manufacture. After all, diamonds that people love
to hang around their necks and keep close to the
chest are nothing more than the result of special
geologic action, as those in volcanic pipes on
coal.130
RP Energy further argued, a matter which the
Casiño Group did not rebut or refute, that the waste
generated by the plant will be properly handled, to
wit:
4.1.49 When coal is burned in the boiler
furnace, two by-products are generated -
bottom and fly ash. Bottom ash consists
oflarge and fused particles that fall to the
bottom of the furnace and mix with the bed
media.Fly ash includes finegrained and
powdery particles that are carried away by
flue gas into the electrostatic precipitator,
which is then sifted and collected. These by-
products are non-hazardous materials. In
fact, a coal power plant’s Fly Ash, Bottom
Ash and Boiler Slag have consequent
beneficial uses which "generate significant
environmental, economic, and performance
benefits." Thus, fly ash generated during the
process will be sold and transported to
cement manufacturing facilities or other
local and international industries.
4.1.50 RP Energy shall also install safety
measures to insure that waste from burning
of coal shall be properly handled and stored.
4.1.51 Bottom ash will be continuously
collected from the furnace and transferred
through a series of screw and chain
conveyors and bucket elevator to the bottom
ash silo. The collection and handling system
is enclosed to prevent dust generation.
Discharge chutes will be installed at the base
of the bottom ash silo for unloading. Open
trucks will be used to collect ash through the
discharge chutes. Bottom ash will be sold,
and unsold ash will be stored in ash cells. A
portion of the bottom ash will be reused as
bed materialthrough the installation of a bed
media regeneration system (or ash recycle).
Recycled bottom ash will be sieved using a
vibrating screen and transported to a bed
material surge bin for re-injection into the
boiler.
4.1.52 Fly ash from the electrostatic
precipitator is pneumatically removed from
the collection hopper using compressed air
and transported in dry state to the fly ash
silo. Two discharge chutes will be installed
at the base of the fly ash silo. Fly ash can
either be dry-transferred through a loading
spout into an enclosed lorry or truck for
selling, re-cycling, or wet-transferred
through a wet unloader into open dump
trucks and transported to ash cells. Fly ash
discharge will operate in timed cycles, with
an override function to achievecontinuous
discharge if required. Fly ash isolation valves
in each branch line will prevent leakage and
backflow into non-operating lines.
4.1.53 Approximately 120,000m² will be
required for the construction of the ash cell.
Ash will be stacked along the sloping hill,
within a grid of excavations (i.e. cells) with a
5m embankment. Excavated soils will be
used for embankment construction and
backfill. To prevent infiltration [of] ash
deposits into the groundwater, a clay layer
with minimum depth of400mm will be laid at
the base of each cell. For every 1-m depth of
ash deposit, a 10-cm soil backfill will be
applied to immobilize ash and prevent
migration via wind. Ash cell walls will be
lined with high-density polyethylene to
prevent seepage. This procedure and
treatment method is in fact suitable for
disposal of toxic and hazardous wastes
although fly ash is not classified as toxic and
hazardous materials.131
Anent the claims that the plant is susceptible to
earthquake and landslides, Dr. Ouano testified
thus:
J. LEAGOGO:
In terms of fault lines, did you study whether this
project site is in any fault line?
DR. OUANO:
There are some fault linesand in fact, in the
Philippines it is very difficult to find an area except
Palawan where there is no fault line within 20 to
30 [kilometers]. But then fault lines as well as
earthquakes really [depend] upon your engineering
design. I mean, Sto. Tomas University has
withstood all the potential earthquakes we had in
Manila[,] even sometimes it[’]s intensity 8 or so
because the design for it back in 1600 they are
already using what we call floating foundation. So
if the engineering side for it[,] technology is there
to withstand the expected fault line [movement]. J.
LEAGOGO:
What is the engineering side of the project? You
said UST is floating.
DR. OUANO:
The foundation, that means to say you don’t
break…
J. LEAGOGO:
Floating foundation. What about this, what kind of
foundation?
DR. OUANO:
It will now depend on their engineering design, the
type of equipment…
J. LEAGOGO:
No, but did you read it in their report?
DR. OUANO: It[’]s not there in their report because
it will depend on the supplier, the equipment
supplier.
J. LEAGOGO:
So it[’]s not yet there?
DR. OUANO:
It[’]s not yet there in the site but it is also covered
inour Building Code what are the intensities of
earthquakes expected of the different areas in the
Philippines.
J. LEAGOGO:
Have you checked our geo-hazard maps in the
Philippines to check on this project site?
DR. OUANO:
Yes. It is included there in the EIA Report.
J. LEAGOGO:
It[’]s there?
DR. OUANO:
It[’]s there.132
4. On acid deposition in aquatic and terrestrial
ecosystems.
Relative to the threat of acid rain, Dr. Ouano stated
in his Judicial Affidavit, thus:
Q: In page 44, paragraph 114 of the Petition, it was
alleged that "the coalfired power plant will release
1,888 tons of nitrous oxides (NOx) per year and
886 tons of sulfur dioxide (SO2) per year. These
oxides are the precursors to the formation of
sulfuric acid and nitric acid which are responsible
for acid deposition." Whatis your expert opinion on
this matter alleged by the Petitioners?
A: NO2 is found in the air, water and soil from
natural processes such as lightning, bacterial
activities and geologic activities as well as from
human activities such as power plants and
fertilizer usage in agriculture. SO2 is also found in
air, water and soil from bacterial, geologic and
human activities. NO2 and SO2 in the air are part
of the natural nitrogen and sulfur cycle to widely
redistribute and recycle those essential chemicals
for use by plants. Without the NO2 and SO2 in the
air, plant and animal life would be limited to small
areas of this planet where nitrogen and sulfur are
found in abundance. With intensive agricultural
practices, nitrogen and sulfur are added in the soil
as fertilizers.
Acid rain takes place when the NO2 and SO2
concentration are excessive or beyond those
values set in the air quality standards. NO2 and
SO2 in the air in concentrations lower than those
set in the standards have beneficial effect to the
environment and agriculture and are commonly
known as micronutrients.133
On clarificatory questions from the appellate
court, the matter was further dissected thus:
J. LEAGOGO:
x x x The project will release 1,888 tons of nitrous
oxide per year. And he said, yes; that witness
answered, yes, itwill produce 886 tons of sulfur
dioxide per year. And he also answered yes, that
these oxides are the precursors to the formation of
sulfuric acid and nitric acid. Now my clarificatory
question is, with this kind of releases there will be
acid rain?
DR. OUANO:
No.
J. LEAGOGO:
Why?
DR. OUANO:
Because it[’]s so dilute[d].
J. LEAGOGO:
It will?
DR. OUANO:
Because the acid concentration is so dilute[d] so
that it is not going to cause acid rain.
J. LEAGOGO:
The acid concentration is so diluted that it will not
cause acid rain?
DR. OUANO:
Yes .
J. LEAGOGO:
What do you mean it[’]s so diluted? How will it be
diluted?
DR. OUANO:
Because it[’]s going to be mixed withthe air in the
atmosphere; diluted in the air in the atmosphere.
And besides this 886 tons, this is not released in
one go, it is released almost throughout the year.
J. LEAGOGO:
You also answered in Question No. 61, "acid
raintakes place when the NO2 AND SO2
concentration are excessive." So whendo you
consider it as excessive?
DR. OUANO:
That is something when you are talking about
acid…
J. LEAGOGO:
In terms of tons of nitrous oxide and tons of sulfur
oxide, when do you consider it as excessive?
DR. OUANO:
It is in concentration not on tons weight, Your
Honor.
J. LEAGOGO:
In concentration?
DR. OUANO:
In milligrams per cubic meter, milligrams per
standard cubic meter.
J. LEAGOGO:
So being an expert, whatwill be the concentration
of this kind of 1,888 tons of nitrous oxide? What
will be the concentration in terms of your…?
DR. OUANO:
If the concentration is in excess ofsomething like
8,000 micrograms per standard cubic meters, then
there isalready potential for acid rain.
J. LEAGOGO:
I am asking you, Dr. Ouano, you said it will release
1,888 tons of nitrous oxide?
DR. OUANO:
Yes .
J. LEAGOGO:
In terms of concentration, what will that be?
DR. OUANO:
In terms of the GHD study that will result [in] 19
milligrams per standard cubic meters and the time
when acid rain will start [is when the concentration
gets] around 8,000 milligrams per standard cubic
meters. So we have 19 compared to 8,000. So
weare very, very safe.
J. LEAGOGO:
What about SO2?
DR. OUANO:
SO2, we are talking about ... youwon’t mind if I go
to my codigo. For sulfur dioxide this acid rain most
likely will start at around 7,000 milligrams per
standard cubic meter but then … sorry, it[’]s around
3,400 micrograms per cubic meter. That is the
concentration for sulfur dioxide, and in our plant it
will be around 45 micrograms per standard cubic
meter. So the acid rain will start at 3,400 and the
emission is estimated here to result to
concentration of 45.7 micrograms.
J. LEAGOGO:
That is what GHD said in their report.
DR. OUANO:
Yes. So that is the factor of x x x safety that we
have.134
Apart from the foregoing evidence, wealso note
that the above and other environmental concerns
are extensively addressed in RP Energy’s
Environmental Management Plan or
Program(EMP). The EMP is "a section in the EIS
that details the prevention, mitigation,
compensation, contingency and monitoring
measures to enhance positive impacts and
minimize negative impacts and risks of a proposed
project or undertaking."135 One of the conditions of
the ECC is that RP Energy shall strictly comply with
and implement its approved EMP. The Casiño
Group failed to contest, with proof, the adequacy
of the mitigating measures stated in the aforesaid
EMP.
In upholding the evidence and arguments of RP
Energy, relative to the lack of proof as to the
alleged significant environmental damage that will
be caused by the project, the appellate court relied
mainly on the testimonies of experts, which we
find to be in accord withjudicial precedents. Thus,
we ruled in one case:
Although courts are not ordinarily bound by
testimonies of experts, they may place whatever
weight they choose upon such testimonies in
accordance with the facts of the case. The relative
weight and sufficiency of expert testimony is
peculiarly within the province of the trial court to
decide, considering the ability and character of the
witness, his actions upon the witness stand, the
weight and process of the reasoning by which he
has supported his opinion, his possible bias in
favor of the side for whom he testifies,the fact that
he is a paid witness, the relative opportunities for
study and observation of the matters about which
he testifies, and any other matters which serve to
illuminate his statements. The opinion of the
expert may not be arbitrarily rejected; it isto be
considered by the court in view of all the facts and
circumstances in the case and when common
knowledge utterly fails, the expert opinion may be
given controlling effects (20 Am. Jur., 1056-
1058). The problem of the credibility of the expert
witness and the evaluation of his testimony is left
to the discretion of the trial court whose ruling
thereupon is not reviewable inthe absence of an
abuse of that discretion.136
Hence, we sustain the appellate court’s findings
that the Casiño Group failed to establish the
alleged grave environmental damage which will be
caused by the construction and operation of the
power plant.
In another vein, we, likewise, agree with the
observationsof the appellate court that the type of
coal which shall be used in the power plant has
important implications as to the possible
significant negative environmental impacts of the
subject project.137 However, there is no coal supply
agreement, as of yet, entered into by RP Energy
with a third-party supplier. In accordance with the
terms and conditions of the ECC and in compliance
with existing environmental laws and standards,
RP Energy is obligated to make use of the proper
coal type that will not cause significant negative
environmental impacts.
The alleged negative environmental
assessment of the project by experts in a
report generated during the social
acceptability consultations
The Casiño Group also relies heavily on a report on
the social acceptability process of the power plant
project to bolster itsclaim that the project will
cause grave environmental damage. We purposely
discuss this matter in this separate subsection for
reasons which will be made clear shortly.
But first we shall present the pertinent contents of
this report.
According to the Casiño Group, from December 7
to 9, 2011, the SBMA conducted social
acceptabilitypolicy consultations with different
stakeholders on RP Energy’s proposed 600 MW
coal plant project at the Subic Bay Exhibition and
Convention Center. The results thereof are
contained in a document prepared by SBMA
entitled "Final Report: Social Acceptability Process
for RP Energy, Inc.’s 600-MW Coal Plant Project"
(Final Report). We notethat SBMA adopted the
Final Report as a common exhibit with the Casiño
Group in the course of the proceedings before the
appellate court.
The Final Report stated that there was a clear
aversion to the concept of a coal-fired power plant
from the participants. Their concerns included
environmental, health, economic and socio-
cultural factors. Pertinent to this case is the
alleged assessment, contained in the Final Report,
of the potential effects of the project by three
experts: (1) Dr. Rex Cruz (Dr. Cruz), Chancellor of
the University of the Philippines, Los Baños and a
forest ecology expert, (2) Dr. Visitacion Antonio, a
toxicologist, who related information as to public
health; and (3) Andre Jon Uychiaco, a marine
biologist.
The Final Report stated these experts’alleged
views on the project, thus:
IV. EXPERTS’ OPINION
xxxx
The specialists shared the judgment that the
conditions were not present to merit the operation
of a coal-fired power plant,and to pursue and carry
out the project with confidence and assurance that
the natural assets and ecosystems within the
Freeport area would not be unduly compromised,
or that irreversible damage would not occur and
that the threats to the flora and fauna within the
immediate community and its surroundings would
be adequately addressed. The three experts were
also of the same opinion that the proposed coal
plant project would pose a wide range of negative
impacts on the environment, the ecosystems and
human population within the impact zone.
The specialists likewise deemed the Environment
Impact Assessment (EIA) conducted by RPEI to be
incomplete and limited in scope based on the
following observations:
i. The assessment failed to include areas
10km. to 50km. from the operation site,
although according tothe panel, sulfur
emissions could extend as far as 40-50 km.
ii. The EIA neglected to include other forests
in the Freeport in its scope and that there
were no specific details on the protection of
the endangered flora and endemic fauna in
the area. Soil, grassland, brush land, beach
forests and home gardens were also
apparently not included in the study.
iii. The sampling methods used inthe study
were limited and insufficient for effective
long-term monitoring of surface water,
erosion control and terrestrial flora and
fauna.
The specialists also discussed the potential
effects of an operational coalfired power plant [on]
its environs and the community therein. Primary
among these were the following:
i. Formation of acid rain, which would
adversely affect the trees and vegetation in
the area which, in turn, would diminish forest
cover. The acid rain would apparently
worsen the acidity of the soil in the Freeport.
ii. Warming and acidification of the seawater
in the bay, resulting in the bio-
accumulationof contaminants and toxic
materials which would eventually lead to the
overall reduction of marine productivity.
iii. Discharge of pollutants such as Nitrous
Oxide, Sodium Oxide, Ozone and other heavy
metals suchas mercury and lead to the
surrounding region, which would adversely
affect the health of the populace in the
vicinity.
 V. FINDINGS
Based on their analyses of the subject matter, the
specialists recommended that the SBMA re-
scrutinize the coal-fired power plant project with
the following goals in mind:
i. To ensure its coherence and compatibility
to [the] SBMA mandate, vision, mission and
development plans, including its Protected
Area Management Plan;
ii. To properly determine actual and potential
costs and benefits;
iii. To effectively determine the impacts on
environment and health; and
iv. To ensure a complete and comprehensive
impacts zone study.
The specialists also urged the SBMA to conduct a
Comprehensive Cost And Benefit Analysis Of The
Proposed Coal Plant Project Relative To Each
Stakeholder Which Should Include The
Environment As Provider Of Numerous
Environmental Goods And Services.
They also recommended an
Integrated/Programmatic Environmental Impact
Assessmentto accurately determine the
environmental status of the Freeport ecosystem
as basis and reference in evaluating future similar
projects. The need for a more Comprehensive
Monitoring System for the Environment and
Natural Resourceswas also reiterated by the
panel.138
Of particular interest are the alleged key
observations of Dr. Cruz on the EIS prepared by RP
Energy relative to the project:
Key Observations and Recommendations on the
EIS of Proposed RPE Project
Rex Victor O. Cruz
Based on SBMA SAP on December 7-9, 2011
1. The baseline vegetation analysis was
limited only within the project site and its
immediate vicinity. No vegetation
analysis was done in the brushland areas
in the peninsula which is likely to be
affected in the event acid rain forms due
to emissions from the power plant.
2. The forest in the remaining forests inthe
Freeport was not considered as impact
zone as indicated by the lack
ofdescription of these forests and the
potential impacts the project might have
on these forests. This appears to be a key
omission in the EIS considering that these
forests are well within 40 to 50 km away
from the site and that there are studies
showing that the impacts of sulphur
emissions can extend as far as 40 to 50
km away from the source.
3. There are 39 endemic fauna and 1
endangered plant species (Molave) in the
proposed project site. There will be a need
to make sure that these species are
protected from being damaged
permanently in wholesale. Appropriate
measures such as ex situconservation
and translocation if feasible must be
implemented.
4. The Project site is largely in grassland
interspersed with some trees. These
plants if affected by acid rain or by
sulphur emissions may disappear and
have consequences on the soil properties
and hydrological processes in the area.
Accelerated soil erosion and increased
surface runoff and reduced infiltration of
rainwater into the soil.
5. The rest of the peninsula is covered with
brushland but were never included as part
of the impact zone.
6. There are home gardens along the coastal
areas of the site planted to ornamental
and agricultural crops which are likely to
be affected by acid rain.
7. There is also a beach forest dominated by
aroma, talisai and agoho which will likely
be affectedalso by acid rain.
8. There are no Environmentally Critical
Areas within the 1 km radius from the
project site. However, the
OlongapoWatershed Forest Reserve, a
protected area is approximately 10
kmsouthwest of the projectsite.
Considering the prevailing wind
movement in the area, this forest reserve
is likely to be affected by acid rain if it
occurs from the emission of the power
plant. This forest reserve is however not
included as partof the potential impact
area.
9. Soil in the project site and the peninsula is
thin and highly acidic and deficient in NPK
with moderate to severe erosion
potential. The sparse vegetation cover in
the vicinity of the projectsite is likely a
result of the highly acidic soil and the
nutrient deficiency. Additional acidity
may result from acid rain that may form in
the area which could further make it
harder for the plants to grow in the area
that in turn could exacerbate the already
 severe erosion in the area. 10. There is a
need to review the proposalto ensure that
the proposed project is consistent with
the vision for the Freeport as enunciated
in the SBMA Master Plan and the
Protected Area Management Plan. This
will reinforce the validity and legitimacy
of these plans as a legitimate framework
for screening potential locators in the
Freeport. Itwill also reinforce the trust and
confidence of the stakeholders on the
competence and authority of the SBMA
that would translate in stronger popular
support to the programs implemented in
the Freeport.
11. The EGF and Trust Fund (Table 5.13)
should be made clear that the amounts
are the minimum amount and that
adequate funds will be provided by the
proponent as necessary beyond the
minimum amounts. Furthermore the
basis for the amounts allocated for the
items (public liability and rehabilitation)
in Trust Fund and in EGF (tree planting
and landscaping, artificial reef
establishment) must be clarified. The
specific damages and impacts that will be
covered by the TF and EGF must also be
presented clearly at the outset to avoid
protracted negotiations in the event of
actual impacts occurring in the future.
12. The monitoring plan for terrestrial flora
and fauna is not clear on the frequency of
measurement. More importantly, the
proposed method of measurement
(sampling transect) while adequate for
estimating the diversity of indices for
benchmarking is not sufficient for long[-
]term monitoring. Instead, long[-]term
monitoringplots (at least 1 hectare in
size) should be established to monitor the
long[-]term impacts of the project on
terrestrial flora and fauna.
13. Since the proposed monitoring of
terrestrial flora and fauna is limited to the
vicinity of the project site, it will be useful
not only for mitigating and avoiding
unnecessary adverse impacts ofthe
project but also for improving
management decisions if long[-]term
monitoring plots for the remaining natural
forests in the Freeport are established.
These plots will also be useful for the
study of the dynamic interactions of
terrestrial flora and fauna with climate
change, farming and other human
activities and the resulting influences on
soil, water, biodiversity, and other vital
ecosystem services in the Freeport.139
We agree with the appellate court that the alleged
statements by these experts cannot be given
weight because they are hearsay evidence. None
of these alleged experts testified before the
appellate court to confirm the pertinent contents
of the Final Report. No reason appears in the
records of this case as to why the Casiño Group
failed to present these expert witnesses.
We note, however, that these statements, on their
face, especially the observations of Dr. Cruz, raise
serious objections to the environmental
soundness of the project, specifically, the EIS
thereof.It brings to fore the question of whether
the Court can, on its own, compel the testimonies
of these alleged experts in order to shed light on
these matters in view of the rightat stake— not just
damage to the environment but the health, well-
being and,ultimately, the livesof those who may be
affected by the project.
The Rules of Procedure for Environmental Cases
liberally provide the courts with means and
methods to obtain sufficient information in order
to adequately protect orsafeguard the right to a
healthful and balanced ecology. In Section 6
(l)140 of Rule 3 (Pre-Trial), when there is a failure to
settle, the judge shall, among others, determine
the necessity of engaging the services of a
qualified expert as a friend of the court (amicus
curiae). While, in Section 12141 of Rule 7 (Writ of
Kalikasan), a party may avail of discovery
measures: (1) ocular inspection and (2) production
or inspection of documents or things. The liberality
of the Rules in gathering and even compelling
information, specifically with regard to the Writ of
Kalikasan, is explained in this wise: [T]he writ of
kalikasanwas refashioned as a tool to bridge the
gap between allegation and proof by providing a
remedy for would-be environmental litigants to
compel the production of information within the
custody of the government. The writ would
effectively serve as a remedy for the enforcement
of the right to information about the environment.
The scope of the fact-finding power could be: (1)
anything related to the issuance, grant of a
government permit issued or information
controlled by the government or private entity and
(2) [i]nformation contained in documents such as
environmental compliance certificate (ECC) and
other government records. In addition, the [w]rit
may also be employed to compel the production of
information, subject to constitutional limitations.
This function is analogous to a discovery measure,
and may be availed of upon application for the
writ.142
Clearly, in environmental cases, the power
toappoint friends of the court in order to shed light
on matters requiring special technical expertise as
well as the power to order ocular inspections and
production of documents or things evince the main
thrust of, and the spirit behind, the Rules to allow
the court sufficient leeway in acquiring the
necessary information to rule on the issues
presented for its resolution, to the end that the
right toa healthful and balanced ecology may be
adequately protected. To draw a parallel, in the
protection of the constitutional rights of an
accused, when life or liberty isat stake, the
testimonies of witnesses may be compelled as an
attribute of the Due Process Clause. Here, where
the right to a healthful and balanced ecology of a
substantial magnitude is at stake, should we not
tread the path of caution and prudence by
compelling the testimonies of these alleged
experts?
After due consideration, we find that, based on the
statements in the Final Report, there is no
sufficiently compelling reason to compel the
testimonies of these alleged expert witnesses for
the following reasons.
First, the statementsare not sufficiently
specificto point to us a flaw (or flaws) in the
study or design/implementation (or some
other aspect) of the project which provides a
causal link or, at least, a reasonable
connection between the construction and
operation ofthe project vis-à-vis potential
grave environmental damage. In particular,
they do not explain why the Environmental
Management Plan (EMP) contained in the
EIS of the project will notadequately address
these concerns.
Second, some of the concerns raisedin the
alleged statements, like acid rain, warming
and acidification of the seawater, and
discharge of pollutants were, as previously
discussed, addressed by the evidence
presented by RP Energy before the appellate
court. Again, these alleged statements do
not explain why such concerns are not
adequately covered by the EMP of RP
Energy.
Third, the key observations of Dr. Cruz, while
concededly assailing certain aspects of the
EIS, do not clearly and specifically establish
how these omissions have led to the
issuance of an ECC that will pose significant
negative environmental impacts once the
project is constructed and becomes
operational. The recommendations stated
therein would seem to suggest points for
improvement in the operation and
monitoring of the project,but they do not
clearly show why such recommendations are
indispensable for the project to comply with
existing environmental laws and standards,
or how non-compliance with such
recommendations will lead to an
environmental damage of the magnitude
contemplatedunder the writ of kalikasan.
Again, these statements do not state with
sufficient particularity how the EMP in the
EIS failed to adequately address these
concerns.
Fourth, because the reason for the non-
presentation of the alleged expert witnesses
does not appear on record, we cannot
assume that their testimonies are being
unduly suppressed.
By ruling that we do not find a sufficiently
compelling reason to compel the taking of the
testimonies of these alleged expert witnesses in
relation to their serious objections to the power
plant project, we do not foreclose the possibility
that their testimonies could later on be presented,
in a proper case, to more directly, specifically and
sufficientlyassail the environmental soundness of
the project and establish the requisite magnitude
of actualor threatened environmental damage, if
indeed present. After all, their sense ofcivic duty
may well prevail upon them to voluntarily testify, if
there are truly sufficient reasons tostop the
project, above and beyond their inadequate claims
in the Final Report that the project should not be
pursued. As things now stand,however, we have
insufficient bases to compel their testimonies for
the reasons already proffered.
The alleged admissions of grave environmental
damage in the EIS of the project.
In their Omnibus Motions for Clarification and
Reconsideration before the appellate court and
Petition for Review before thisCourt, the Casiño
Group belatedly claims that the statements in the
EIS prepared by RPEnergy established the
significant negative environmental impacts of the
project. They argue in this manner:
Acid Rain
35. According to RP Energy’s Environmental
Impact Statement for its proposed 2 x 150 MW
Coal-Fired Thermal Power Plant Project, acid rain
may occur in the combustion of coal, to wit – x x x
x (coalhandling systems, Section 3.4.3.3). In
During the operation phase, combustion of coal
will result in emissions of particulates SOx and
NOx. This may contribute to the occurrence of acid
rain due to elevated SO2 levels in the atmosphere.
High levels of NO2 emissions may give rise to
health problems for residents within the impact
area.
xxxx
Asthma Attacks
36. The same EPRMP143 mentioned the incidence
of asthma attacks [as a] result of power plant
operations, to wit –
xxxx
The incidence of asthma attacks among residents
in the vicinity of the project site may increase due
to exposure to suspended particulates from plant
operations.144
RP Energy, however, counters that the above
portions of the EIS were quoted out of context. As
to the subject of acid rain, the EIS states in full:
Operation
During the operation phase, combustion of coal
will result in emissions of particulates, SOx and
NOx. This may contribute to the occurrence of acid
rain due to elevated SO2 levels in the atmosphere.
High levels of NO2 emissions may give rise to
health problems for residents within the impact
area. Emissions may also have an effect
onvegetation (Section 4.1.4.2). However, the use
of CFBC technology is a built-in measure that
results in reduced emission concentrations. SOx
emissions will beminimised by the inclusion of a
desulfurisation process, whilst NOx emissions will
be reduced as the coal is burned at a temperature
lower than that required to oxidise
nitrogen.145 (Emphasis supplied)
As to the subject of asthma attacks, the EIS states
in full:
The incidence of asthma attacks among
residents in the vicinity of the project site
may increase due to exposureto suspended
particulates from plant operations. Coal and
ash particulates may also become
suspended and dispersed into the air during
unloading and transport, depending on wind
speed and direction. However, effect on air
quality due to windblown coal particulates
will be insignificant as the coal handling
system will have enclosures (i.e. enclosed
conveyors and coal dome) to eliminate the
exposure of coal to open air, and therefore
greatly reduce the potential for particulates
from being carried away by wind
addition, the proposed process will include
an electrostaticprecipitator that will remove
fly ash from the flue gas prior to its release
through the stacks, and so particulates
emissions will be minimal.146 (Emphasis
supplied)
We agree with RP Energy that, while the EIS
discusses the subjects of acid rain and asthma
attacks, it goes on to state that there are
mitigating measures that will be put in place to
prevent these ill effects. Quite clearly, the Casiño
Group quoted piecemeal the EIS in sucha way as
to mislead this Court as to its true and full
contents.
We deplore the way the Casiño Group has argued
this point and we take this time to remind it that
litigants should not trifle withcourt processes.
Along the same lines, we note how the Casiño
Group has made serious allegations in its Petition
for Writ of Kalikasanbut failed to substantiate the
same in the course of the proceedings before the
appellate court. In particular, during the
preliminary conference of this case, the Casiño
Group expressly abandoned its factual claims on
the alleged grave environmental damage that will
be caused by the power plant (i.e., air, water and
land pollution) and, instead, limited itself to legal
issues regarding the alleged non-compliance of
RP Energy with certain laws and rules in the
procurement of the ECC.147 We also note how the
Casiño Group failed to comment on the subject
Petitions before this Court, which led this Court to
eventually dispense with its comment.148 We must
express our disapproval over the way it has
prosecuted itsclaims, bordering as it does on
trifling with court processes. We deem itproper,
therefore, to admonishit to be more circumspect in
how it prosecutesits claims.
In sum, we agree with the appellate court that the
Casiño Group failed to substantiate its claims
thatthe construction and operation of the power
plant will cause environmental damage of the
magnitude contemplated under the writ of
kalikasan. The evidence it presented is inadequate
to establish the factual bases of its claims.
II.
Whether the ECC is invalid for lack of signature of
Mr. Luis Miguel Aboitiz (Mr. Aboitiz), as
 representative of RP Energy, in the Statement of
Accountability of the ECC.
The appellate court ruled that the ECC is invalid
because Mr. Aboitiz failed to sign the Statement of
Accountability portion of the ECC.
We shall discuss the correctness ofthis ruling on
both procedural and substantive grounds.
Procedurally, we cannot fault the DENR for
protesting the manner by which the appellate court
resolved the issue of the aforesaid lack of
signature. We agree with the DENR that this issue
was not among those raised by the Casiño Group
in its Petition for Writ of Kalikasan.149 What is
more, this was not one of the triable issues
specificallyset during the preliminary conference
of this case.150
How then did the issue oflack of signature arise?
A review of the voluminous records indicates that
the matterof the lack of signature was discussed,
developed or surfaced only inthe course of the
hearings, specifically, on clarificatory questions
from the appellate court, to wit:
J. LEAGOGO:
I would also show to you your ECC, that’s page 622
of the rollo. I am showing to you this
Environmental Compliance Certificate dated
December 22, 2008 issued by Sec. Jose L. Atienza,
Jr. of the DENR. This is your "Exhibit "18." Would
you like to go over this? Are you familiar with this
document?
MS. MERCADO:
Yes, it[’]s my Annex "3," Your Honor.
J. LEAGOGO:
I would like to refer you to page 3 of the ECC dated
December 22, 2008. Page 2 refers to the
Environmental Compliance Certificate, ECC Ref.
No. 0804-011-4021. That’s page 2 of the letter
dated December 22, 2008. And on page 3, Dr.
Julian Amador recommended approval and it was
approved by Sec. Atienza. You see that on page 3?
MS. MERCADO:
Yes, Your Honor.
J. LEAGOGO:
Okay. On the same page, page 3, there’s a
Statement of Accountability.
MS. MERCADO:
Yes, Your Honor.
J. LEAGOGO:
Luis, who is Luis Miguel Aboitiz?
MS. MERCADO:
During that time he was the authorized
representative of RP Energy,
Your Honor.
J. LEAGOGO:
Now, who is the authorized representative of RP
Energy?
MS. MERCADO:
It would be Mr. Aaron Domingo, I believe.
J. LEAGOGO:
Please tell the Court why this was not signed by
Mr. Luis Miguel Aboitiz, the Statement of
Accountability?
Because the Statement of Accountability says,
"Mr. Luis Miguel Aboitiz, Director, representing
Redondo Peninsula Energy with office address
located at 110 Legaspi Street, Legaspi Village,
Makati City, takes full responsibility in complying
with all conditions in thisEnvironmental
Compliance Certificate [ECC][.]" Will you tell this
Court why this was not signed?
MS. MERCADO:
It was signed, Your Honor, but this copy wasn’t
signed. My apologies, I was the one who provided
this, I believe, to the lawyers. This copy was not
signed because during….
J. LEAGOGO:
But this is your exhibit, this is yourExhibit "18" and
this is not signed. Do you agree with me that your
Exhibit "18" is not signed by Mr. Aboitiz?
MS. MERCADO:
That’s correct, Your Honor.151
We find this line of questioning inadequate to
apprise the parties that the lack of signature would
be a key issue in this case; as in fact it became
decisive in the eventual invalidation of the ECC by
the appellate court.
Concededly, a court has the power to suspend its
rules of procedure in order to attain substantial
justice so that it has the discretion, in exceptional
cases, to take into consideration matters not
originally within the scope of the issues raised in
the pleadings or set during the preliminary
conference, in order to prevent a miscarriage of
justice. In the case at bar, the importance of the
signature cannot be seriously doubted because it
goes into the consent and commitment of the
project proponent to comply with the conditions of
the ECC, which is vital to the protection of the right
to a balanced and healthful ecology of those who
may be affected by the project. Nonetheless, the
power of a court tosuspend its rules of procedure
in exceptional cases does not license it to foist a
surprise on the parties in a given case. To
illustrate, in oral arguments before this Court,
involving sufficiently important public interest
cases, we note that individual members of the
Court, from time to time, point out matters that
may not have been specifically covered by the
advisory (the advisory delineates the issues to be the rest of the requirements
argued and decided). However, a directive is given are in terms of EMB office of
to the concerned parties to discuss the aforesaid application, endorsing and
matters in their memoranda. Such a procedure decision authorities, duration
ensures that, at the very least, the parties are of processing.
apprised that the Court has taken an interest in
such matters and may adjudicate the case on the 2.0 SCOPING Scopingis a Proponent-driven
basis thereof. Thus, the parties are given an multi-sectoral formal process
opportunity to adequately argue the issue or meet of determining the focused
the issue head-on. We, therefore, find that the Terms of Reference of the EIA
appellate court should have, at the very least, Study. Scoping identifies the
directed RP Energy and the DENR to discuss and most significant
elaborate on the issue of lack of signature in the issues/impacts of a proposed
presentation of their evidence and memoranda, project, and then, delimits the
beforemaking a definitive ruling that the lack extent of baseline information
thereof invalidated the ECC.This is in keeping with to those necessary to
the basic tenets of due process. evaluate and mitigate the
At any rate, we shall disregard the procedural impacts. The need for and
defect and rule directly on whether the lack of scope of an Environmental
signature invalidated the ECC in the interest of Risk Assessment (ERA) is also
substantial justice. done during the scoping
The laws governing the ECC, i.e., session. Scoping is done with
PresidentialDecree No. (PD) 1151 and PD 1586, do the local community through
not specifically state that the lack of signature in Public Scoping and with a
the Statement of Accountability has the effect of third party EIA Review
invalidating the ECC. Unlike in wills or donations, Committee (EIARC) through
where failure to comply withthe specific form Technical Scoping, both with
prescribed by law leads to its nullity,152 the the participation of the DENR-
applicable laws here are silentwith respect to the EMB. The process results in a
necessity of a signature in the Statement of signed Formal Scoping
Accountability and the effect of the lack thereof. Checklist by the review team,
This is, of course, understandable because the with final approval by the EMB
Statement of Accountability is a mere off-shoot of Chief.
the rule-making powers of the DENR relative tothe
implementation of PD 1151 and PD 1586. To EIA STUDY The EIA Studyinvolves a
determine, therefore, the effect of the lack of and description of the proposed
signature, we must look atthe significance thereof 3.0 REPORT project and its alternatives,
under the Environmental Impact Assessment (EIA) PREPARATION characterization of the project
Rules of the DENR and the surrounding environment, impact
circumstances of this case. identification and prediction,
To place this issue in its proper context, a helpful evaluation of impact
overview of the stages of the EIA process, taken significance, impact
from the Revised Manual, is reproduced below: mitigation, formulation of
Figure 1-3 Overview of Stages of the Philippine Environmental Management
EIA Process153 and Monitoring Plan,
withcorresponding cost
1.0 Screeningdetermines if a
estimates and institutional
SCREENING project is covered or not
support commitment. The
covered by the PEISS.154 If a
study results are presented in
project is covered, screening
an EIA Reportfor which an
further determines what
outline is prescribed by EMB
document type the project
for every major document
should prepare to secure the
type
needed approval, and what
EIA REPORT Review of EIA
4.0 REPORT Reportsnormally entails an
and EMB procedural screening for
EVALUATION compliance with minimum
requirements specified during
Scoping, followed by a
substantive review of either
composed third party experts
commissioned by EMB as the
EIA Review Committee for
PEIS/EIS-based applications,
or DENR/EMB internal
specialists, the Technical
Committee, for IEE-based
applications. EMB evaluates
the EIARC recommendations
and the public’s inputs during
public consultations/hearings
in the process of
recommending a decision on
the application. The EIARC
Chair signs EIARC
recommendations including
issues outside the mandate of
the EMB. The entire EIA
review and evaluation process
is summarized in the Review
Process Report (RPR) of the
EMB, which includes a draft
decision document.
5.0 DECISION Decision Making involves
MAKING evaluation of EIA
recommendations and the
draft decision document,
resulting to the issuance of an
ECC, CNC or Denial Letter.
When approved, a covered
project is issued its certificate
of Environmental Compliance
Commitment (ECC) while an
application of a non-covered
project is issued a Certificate
of Non-Coverage (CNC).
Endorsing and deciding
authorities are designated by
AO 155 42, and further
detailed in this Manual for
every report type. Moreover,
the Proponent signs a sworn
statement of full
responsibility on
implementation of its
commitments prior to the
release of the ECC. 156 The
ECC is then transmitted to
concerned LGUs and other
GAs for integration into their
decisionmaking process. The
regulated part of EIA Review
is limited to the processes
within EMB control. The
timelines for the issuance of
decision documents provided
for in AO 42 and DAO 2003-
30 are applicable only from
the time the EIA Report is
accepted for substantive
review to the time a decision
is issued on the application.
MONITORING. Monitoring, Validation and
6.0 Evaluation/Audit stage
VALIDATION, assesses performance of the
and Proponent against the ECC
EVALUATION/ and itscommitments in the
AUDIT Environmental Management
and Monitoring Plans to
ensure actual impacts of the
project are adequately
prevented or mitigated.
The signing of the Statement of Accountability
takes placeat the Decision Making Stage. After a
favorable review of its ECC application, the project
proponent, through its authorized representative,
is made to sign a sworn statement of full
responsibility on the implementation ofits
commitments prior to the official release of the
ECC.
The definition of the ECC in the Revised Manual
highlights the importance of the signing of the
Statement of Accountability:
Environmental Compliance Certificate (ECC) - a
certificate of Environmental Compliance
Commitment to which the Proponent conforms
with, after DENR-EMB explains the ECC conditions,
by signing the sworn undertaking of full
responsibility over implementation of specified
measures which are necessary to comply with
existing environmental regulations or to operate
within best environmental practices that are not
currently covered by existing laws. It is a
document issued by the DENR/EMB after a
positive review of an ECC application, certifying
that the Proponent has complied with all the
requirements of the EIS System and has
committed to implement its approved
Environmental Management Plan. The ECC also
provides guidance to other agencies and to LGUs
on EIA findings and recommendations, which need
to be considered in their respective decision-
making process.157 (Emphasis supplied)
As can be seen, the signing of the Statement of
Accountabilityis an integral and significant
component of the EIA process and the ECC itself.
The evident intention is to bind the project
proponentto the ECC conditions, which will ensure
that the project will not cause significant negative
environmental impacts by the "implementation of
specified measures which are necessary to comply
with existing environmental regulations or
tooperate within best environmental practices that
are not currently covered by existing laws." Indeed,
the EIA process would be a meaningless exercise
if the project proponent shall not be strictly bound
to faithfully comply withthe conditions necessary
toadequately protect the right of the people to a
healthful and balanced ecology.
Contrary to RP Energy’s position, we, thus, find
that the signature of the project proponent’s
representative in the Statement of Accountability
is necessary for the validity of the ECC. It is not, as
RP Energy would have it, a mere formality and its
absence a mere formal defect.
The question then is, was the absence of the
signature of Mr. Aboitiz, as representative of RP
Energy, in the Statement of Accountability
sufficient ground to invalidate the ECC?
Viewed within the particular circumstances of this
case, we answer in the negative.
While it is clear that the signing of the Statement
of Accountability is necessary for the validity ofthe
ECC, we cannot close oureyes to the particular
circumstances of this case. So often have we ruled
that this Court is not merely a court of law but a
court of justice. We find that there are several
circumstances present in this case which militate
against the invalidation of the ECC on this ground.
We explain.
First, the reason for the lack of signature was not
adequately taken into consideration by the
appellate court. To reiterate, the matter surfaced
during the hearing of this case on clarificatory
questions by the appellate court, viz:
J. LEAGOGO:
Please tell the Court why this was not signed by
Mr. Luis Miguel Aboitiz, the Statement of
Accountability?
Because the Statement of Accountability says,
"Mr. Luis Miguel Aboitiz, Director, representing
Redondo Peninsula Energy with office address
located at 110 Legaspi Street, Legaspi Village,
Makati City, takes full responsibility in complying
with all conditions in this Environmental
Compliance Certificate [ECC][.]" Will you tell this
Court why this was not signed?
MS. MERCADO:
It was signed, Your Honor, but this copy wasn’t
signed. My apologies, I was the one who provided
this, I believe, to the lawyers. This copy was not
signed because during…
J. LEAGOGO:
But this is your exhibit, this is yourExhibit "18" and
this is not signed. Do you agree with me that your
Exhibit "18" is not signed by Mr. Aboitiz?
MS. MERCADO:
That’s correct, Your Honor.158 (Emphasis supplied)
Due to the inadequacy of the transcriptand the
apparent lack of opportunity for the witness to
explain the lack of signature, we find that the
witness’ testimony does not, by itself, indicate that
there was a deliberate or malicious intent not to
sign the Statement of Accountability.
Second, as previously discussed, the concerned
parties to this case, specifically, the DENR and RP
Energy, werenot properly apprised that the issue
relative to the lack of signature would be decisive
inthe determination of the validity of the ECC.
Consequently, the DENR and RPEnergy cannot be
faulted for not presenting proof during the course
ofthe hearings to squarely tackle the issue of lack
of signature.
Third, after the appellate court ruled in its January
30, 2013 Decision that the lack of signature
invalidated the ECC,RP Energy attached, to its
Motion for Partial Reconsideration, a certified true
copy of the ECC, issued by the DENREMB, which
bore the signature of Mr. Aboitiz. The certified true
copy of the ECC showed that the Statement of
Accountability was signed by Mr. Aboitiz on
December 24, 2008.159
The authenticity and veracity of this certified true
copy of the ECC was not controverted by the
Casiño Group in itscomment on RP Energy’s
motion for partial reconsideration before the
appellate court nor in their petition before this
Court. Thus, in accordance with the presumption
of regularity in the performance of official duties,
it remains uncontroverted that the ECC on file with
the DENR contains the requisite signature of Mr.
Aboitiz in the Statement of Accountability portion.
As previously noted, the DENR and RPEnergy were
not properly apprised that the issue relative to the
lack ofsignature would be decisive in the
determination of the validity of the ECC. As a
result, we cannot fault RP Energy for submitting
the certified true copy of the ECC only after it
learned that the appellate court had invalidated the
ECC on the ground of lack ofsignature in its
January 30, 2013 Decision.
We note, however, that, as previously discussed,
the certified true copy of the Statement of
Accountability was signed by Mr. Aboitiz on
December 24, 2008 or two days after the ECC’s
official release on December 22, 2008. The
aforediscussed rules under the Revised Manual,
however, state that the proponent shall sign the
sworn statement of full responsibility on
implementation of its commitments priorto the
release of the ECC. Itwould seem that the ECC was
first issued, then it was signed by Mr. Aboitiz, and
thereafter, returned to the DENR to serve as its file
copy. Admittedly, there is lack of strict compliance
with the rules although the signature ispresent. Be
thatas it may, we find nothing in the records to
indicate that this was done with bad faith or
inexcusable negligence because of the inadequacy
of the evidence and arguments presented, relative
to the issue of lack of signature, in view of the
manner this issue arose in this case, as previously
discussed. Absent such proof, we are not prepared
to rule that the procedure adopted by the DENR
was done with bad faithor inexcusable negligence
but we remind the DENR to be more circumspect
in following the rules it provided in the Revised
Manual. Thus, we rule that the signature
requirement was substantially complied with pro
hac vice.
Fourth, we partly agree with the DENRthat the
subsequent letter-requests for amendments to the
ECC, signed by Mr. Aboitiz on behalf of RP Energy,
indicate its implied conformity to the ECC
conditions. In practical terms, if future litigation
should occur due to violations of the ECC
conditions, RP Energy would be estopped from
denying its consent and commitment to the ECC
conditions even if there was no signature in the
Statement of Accountability. However, we note
that the Statement of Accountability precisely
serves to obviate any doubt as to the consent and
commitment of the project proponent to the ECC
conditions. At any rate, the aforesaid letter-
requests do additionally indicate RP Energy’s
conformity to the ECC conditions and, thus, negate
a pattern to maliciously evade accountability for
the ECC conditions or to intentionally create a
"loophole" in the ECC to be exploited in a possible
futurelitigation over non-compliance with the ECC
conditions.
In sum, we rule that the appellate court erred when
it invalidated the ECC on the ground of lack of
signature of Mr. Aboitiz in the ECC’s Statement of
Accountability relative to the copy of the ECC
submitted by RP Energy to the appellate court.
While the signature is necessary for the validity of
the ECC, the particular circumstances of this case
show that the DENR and RP Energy were not
properly apprised of the issue of lack ofsignature
in order for them to present controverting evidence
and arguments on this point, as the matter only
developed during the course of the proceedings
upon clarificatory questions from the appellate
court. Consequently, RP Energy cannot be faulted
for submitting the certified true copy of the ECC
only after it learned that the ECC had been
invalidated on the ground of lack of signature in
the January 30, 2013 Decision of the appellate
court.
The certified true copy of the ECC, bearing the
signature of Mr. Aboitiz in the Statement of
Accountability portion, was issued by the DENR-
EMB and remains uncontroverted. Itshowed that
the Statement of Accountability was signed by Mr.
Aboitiz on December 24, 2008. Although the
signing was done two days after the official
release of the ECC on December 22, 2008, absent
sufficient proof, we are not prepared to rule that
the procedure adoptedby the DENR was done with
bad faith or inexcusable negligence. Thus, werule
that the signature requirement was substantially
complied with pro hac vice.
III.
Whether the first and second amendments to the
ECC are invalid for failure to undergo a new
environmental impact assessment (EIA) because
of the utilization of inappropriate EIA documents.
Upholding the arguments of the Casiño Group, the
appellate court ruled that the first and second
amendments tothe ECC were invalid because the
ECC contained an express restriction that any
expansion of the project beyond the project
description shall be the subject of a new EIA. It
found that both amendments failed to comply with
the appropriate EIA documentary requirements
under DAO 2003-30 and the Revised Manual. In
particular, it found that the Environmental
Performance Report and Management Plan
(EPRMP) and Project Description Report (PDR),
which RP Energy submitted tothe DENR, relative to
the application for the first and second
amendments, respectively, were not the proper EIA
document type. Hence, the appellate court ruled
that the aforesaid amendments were invalid.
Preliminarily, we must state that executive actions
carry presumptive validity so that the burden of
proof is on the Casiño Group to show that the
procedure adopted bythe DENR in granting the
amendments to the ECC were done with grave
abuse of discretion. More so here because the
administration of the EIA process involves special
technical skill or knowledge which the law has
specifically vested in the DENR.
After our own examination of DAO 2003-30 and
the Revised Manual as well as the voluminous EIA
documents of RP Energy appearing in the records
of this case, we find that the appellate court made
an erroneous interpretation and application of the
pertinent rules.
We explain.
As a backgrounder, PD 1151 set the Philippine
Environment Policy. Notably, this law recognized
the right ofthe people to a healthful
environment.160 Pursuant thereto, in every action,
project or undertaking, which significantly affects
the quality of the environment, all agencies and
instrumentalities of the national government,
including government-owned or -controlled
corporations, as well as private corporations,
firms, and entities were required to prepare, file
and include a statement (i.e., Environmental
Impact Statement or EIS) containing:
(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 longterm 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.161
To further strengthen and develop the EIS, PD1586
was promulgated, which established the Philippine
Environmental Impact Statement System (PEISS).
The PEISS is "a systems-oriented and integrated
approach to the EIS system to ensure a rational
balance between socio-economic development
and environmental protection for the benefit of
present and future generations."162 The ECC
requirement ismandated under Section 4 thereof:
SECTION 4. Presidential Proclamation
ofEnvironmentally 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 dulyauthorized representative. x x x (Emphasis
supplied)
The PEISS consists of the Environmental Impact
Assessment (EIA) process, which is mandatory for
private orpublic projects thatmay significantly
affect the quality of the environment. It involves
evaluating and predicting the likely impacts of the
project on the environment, designing appropriate
preventive, mitigating and enhancement measures
addressing these consequences to protect the
environment and the community’s welfare.163
PD 1586 was implemented by DAO 2003-30
which, in turn, set up a system or procedure to
determine when a project is required to secure an
ECC and when it is not. When an ECC is not
required, the project proponent procures a
Certificate of Non-Coverage (CNC).164 As part of
the EIA process, the project proponent is required
to submit certain studies or reports (i.e., EIA
document type) to the DENR-EMB, which willbe
used in the review process in assessing the
environmental impact of the project and the
adequacy of the corresponding environmental
management plan or program to address such
environmental impact. This will then be part of the
bases to grant or deny the application for an ECC
or CNC, as the case may be.
Table 1-4 of the Revised Manual summarizes the
required EIA document type for each project
category. It classifies a project as belonging to
group I, II, III, IV or V, where:
I- Environmentally Critical Projects (ECPs) in
either Environmentally Critical Area (ECA) or
Non-Environmentally Critical Area (NECA),
II- Non-Environmentally Critical Projects
(NECPs) in ECA,
III- NECPs in NECA,
IV- Co-located Projects, and
V- Unclassified Projects.
The aforesaid table then further classifies a
project, as pertinent to this case, as belonging to
category A,B or C, where:
 A- new;
B- existing projects for modification or re-
start up; and
C- operating projects without an ECC.
Finally, the aforesaid table considers whether the
project is single or co-located.165 After which, it
states the appropriateEIA document typeneeded
for the application for an ECC or CNC, as the case
may be.
The appropriate EIA document type vis-à-vis a
particular project depends on the potential
significant environmental impact of the project. At
the highest level would be an ECP, such as the
subject project. The hierarchy of EIA document
type, based on comprehensiveness and detail of
the study or report contained therein, insofar as
single projects are concerned, is as follows:
1. Environmental Impact Statement166 (EIS),
2. Initial Environmental Examination167 (IEE)
Report,
3. Initial Environmental Examination168 (IEE)
Checklist Report,
4. Environmental Performance Report and
Management Plan169 (EPRMP), and
5. Project Description170 (PD) or Project
Description Report (PDR).
Thus, in the course of RP Energy’s application for
anECC, it was required by the DENR-EMB to submit
an EIS because the subject project is: an ECP, new
and a single project.
The present controversy, however, revolves
around, not an application for an ECC, but
amendments thereto.
RP Energy requested the subject first amendment
to its ECC due to its desire to modify the project
design through the inclusion of a barge wharf,
seawater intake breakwater, subsea discharge
pipeline, raw water collection system, drainage
channel improvement and a 230-kV double
transmission line. The DENR-EMB determined that
this was a major amendment and, thus, required
RP Energy to submit an EPRMP.
The Casiño Group argued, and the appellate court
sustained, that an EPRMP is not the correct EIA
document type based on the definition of an
EPRMP in DAO 2003-30 and the Revised Manual.
In DAO 2003-30, an EPRMP is defined as:
Environmental Performance Report and
Management Plan (EPRMP) — documentation of
the actual cumulative environmental impacts and
effectiveness of current measures for single
projects that are already operating but without
ECC's, i.e., Category A-3. For Category B-3
projects, a checklist form of the EPRMP would
suffice;171 (Emphasis supplied)
Further, the table in Section 5 of DAO 2003-30
states that an EPRMP is required for "A-2: Existing
and to beexpanded (including undertakings that
have stopped operations for more than 5 years and
plan to re-start with or without expansion) and A-
3: Operating without ECC."
On the other hand, the Revised Manual delineates
when an EPRMP is the proper EIA document type,
thus:
For operating projects with previous ECCs but
planning or applying for clearance to
modify/expand or re-start operations, or for
projects operating without an ECCbut applying to
secure one to comply with PD 1586 regulations,
the appropriate document is not an EIS but an EIA
Report incorporating the project’s environmental
performance and its current Environmental
Management Plan. This report isx x x anx x x
Environmental Performance Report and
Management Plan (EPRMP) for single project
applications x x x172 (Emphasis supplied)
In its "Glossary," the Revised Manual defines an
EPRMP as:
Environmental Performance Report and
Management Plan (EPRMP) - documentation of
the actual cumulative environmental impacts and
effectiveness of current measures for single
projects that are already operating but without
ECCs.173 (Emphasis supplied)
Finally, Table 1-4, in the Revised Manual, states
that an EPRMP is required for "Item I-B: Existing
Projects for Modification or Re-start up (subject to
conditions in Annex 2-1c) and I-C: Operating
without ECC."
From these definitions and tables, an EPRMP is,
thus, the required EIA document type for an ECP-
single project which is:
1. Existing and to be expanded (including
undertakings that have stopped operations
for more than 5 years and plan to re-start
with or without expansion);
2. Operating but without ECCs;
3. Operating projects with previous ECCs but
planning or applying for clearance to
modify/expand orre-start operations; and
4. Existing projects for modification or re-
start up.
It may be observed that, based from the above,
DAO2003-30 and the Revised Manual appear to
use the terms "operating"and "existing"
interchangeably. In the case at bar, the subject
project has not yet been constructed although
there have been horizontal clearing operations at of requirements for project modifications,
the project site. particularly for delineating which application
On its face, therefore, the theory of the Casiño scenarios will require EPRMP (which will be
Group, as sustained by the appellate court — that subject to Figure 2-1 process) or other support
the EPRMP is not the appropriate EIA document documentations (which will be subject to Figure 2-
type— seems plausible because the subject 4 process). Figure 2-4, in turn, provides:
project is not: (1) operating/existing with a Figure 2-4. Flowchart on Request for ECC
previous ECC but planning or applying for Amendments175
modification or expansion, or (2) operating but Scenario 1: Scenario 2: Request for Major
without an ECC. Instead, the subject project is an Request for Amendments
unimplemented or a non-implemented, Minor 1. Expansion of project area
hence,non-operating project with a previous ECC Amendment w/in catchment described in EIA
but planning for modification or expansion. s 2. Increase in production
The error in the above theory lies in the failure to 1. capacity or auxiliary component
consider or trace the applicable provisions of DAO Typographic of the original project
2003-30 and the Revised Manual on amendments al error 3. Change/s in process flow or
to an ECC. 2. Extension technology
The proper starting point in determining the of deadlines 4. Addition of new product
validity of the subject first amendment, for 5. Integration of ECCs for similar
specifically, the propriety of the EIA document type submission or dissimilar but contiguous
(i.e., EPRMP) which RP Energy submitted in of post-ECC projects (NOTE: ITEM#5 IS
relation to its application for the aforesaid requirement PROPONENT’S OPTION, NOT
amendment, must of necessity be the rules on /s EMB’S)
amendments to an ECC.174 This is principally 3. Extension 6. Revision/Reformatting of ECC
found in Section 8.3,Article II of DAO 2003-03, viz: of ECC Conditions
8.3 Amending an ECC validity 7. Other amendments deemed
Requirements for processing ECC amendments 4. Change in "major" at the discretion of the
shall depend on the nature of the request but shall company EMB CO/RO Director
be focused on the information necessary to assess name/owne
the environmental impact of such changes. rship
8.3.1. Requests for minor changes to ECCs 5. Decrease
such as extension of deadlines for in
submission of post-ECC requirements shall land/project
be decided upon by the endorsing authority. area or
8.3.2. Requests for major changes to ECCs production
shall be decided upon by the deciding capacity
authority. 6. Other
8.3.3. For ECCs issued pursuant to an IEE or amendment
IEE checklist, the processing of the s deemed
amendment application shall not exceed "minor" at
thirty (30) working days; and for ECCs issued the
pursuant to an EIS, the processing shall not discretion
exceed sixty (60) working days. Provisions of the
on automatic approval related to prescribed EMB CO/RO
timeframes under AO 42 shall also apply for Director
the processing of applications to amend
ECCs. (Emphasis supplied) 1 [Start] 1[Start]
Implementing the afore-quoted section, the
Revised Manual pertinently states in Section 2.2, Within three Within three (3) years from ECC
paragraph 16: (3) years issuance (for projects not
16) Application Process for ECC Amendments from ECC started)177 OR at any time during
Figure 2-4 presents how Proponents may request issuance project implementation, the
for minor or major changes in their ECCs. Annex 2- (for projects Proponent prepares and submits
1c provides a decision chart for the determination not to the ECC-endorsing DENR-
started)176 O EMB office a LETTER- Authority decides on Letter
R at any REQUESTfor ECC amendments, decides on Requests/EPRMP/PEPRMP/Oth
time during including data/information, the Letter- er documents based on EMB CH
project reports or documents to Request, and/or Tech/Review Committee
implementa substantiate the requested based on recommendations.
tion, the revisions. CH
Proponent recommend
prepares 2 ation
and submits
For projects that have started Maximum Max Processing Time to
to the ECC-
implementation, EMB evaluates Processing Issuance of Decision
endorsing
request based on Annex 2-1cfor Time to
DENR-EMB
various scenarios of project Issuance of
office a
modification. Documentary Decision
LETTER-
requirements may range from a
REQUEST
Letter-Request to an EPRMP to E 7 CO CO RO RO
for ECC
the EMB CO/RO while for those M workd PEPR EPRM PEPR EPRM
amendment,
with Programmatic ECC, a B ays MP P MP P
including
PEPRMP may need to be CO
data/inform
submitted to the EMB CO to
ation, E 7 120 90 60 30
support the request. It is
reports or M workd workd workd workd workd
important to note that for
documents B ays ays ays ays ays
operating projects, the
to RO
appropriate document is not an
substantiat
EIS but an EIA Report
e the Other document applications:
incorporating the project’s
requested max 30 workdays (EMB CO and
historical environmental
revisions. RO)
performance and its current
EMP, subject to specific
documentary requirements
detailed in Annex 2-1cfor every
modification scenario.
2 Noteworthy in the above, which is pertinent to the
3 issue at hand, is that the amendment process
squarely applies to projects not started, such as
the subject project, based on the phrase "[w]ithin
three (3) years from ECC issuance (for projects not
The ECC- For EPRMP/PEPRMP-based started) x x x".
endorsing requests, EMB forms a Annex 2-1c, in turn, provides a "Decision Chart for
EMB office Technical/Review Committee to Determination of Requirements For Project
assigns a evaluate the request. For other Modification." We reproduce below the first three
Case requests, a Case Handler may columns of Annex 2-1c, as are pertinent to the
Handler to solely undertake the evaluation. issue at hand:
evaluate the EMB CO and RO will process ANNEX 2-1c
request P/EPRMP for PECC/ECC under DECISION CHART FOR DETERMINATION OF
Groups I and II respectively. (Go REQUIREMENTS FOR PROJECT MODIFICATION178
to Figure 2-1) Proposed Analysis Resulting
Modifications of Proposed Decision
3 4
to the Current Modifications Document/
Project Type of EIA
Report
ECC- ECC-endorsing/issuing Required
endorsing Authority (per Table 1-4)
 Operational 3. Increase in Non- ECC
projects, or capacity exceedance of Amendmen
those or PDR (non t /Letter
which have auxiliary covered Request
stopped for componen project) with brief
≤5 years t of the threshold is description
and plan to original assumed that of
re-start project impacts are additional
which will not capacity or
For Groups eithernot significant; component
I and II entail Modification
EISbased exceedanc scenario and
Projects e of PDR decision
with an ECC (non- process are
applying for covered applicable to
modificatio project) both
n thresholds nonimplement
or EMP & ed and
1. Expansion Since the ECC
ERA can operating
of modification Amendmen
still projects
land/proje will be in an t /Letter
address issued ECCs
ct area area already Request
impacts &
w/in described and with brief
risks
catchment evaluated in description
arising
or the original of activities
from
environme EIA Report, in the
modificati
nt incremental additional
on
described impacts from area
in the additional land 4. Increase in Exceedance of ECC
original development capacity PDR (non- Amendmen
EIA Report will have been or covered) t
addressed in auxiliary threshold is /Environme
the approved componen assumed that ntal
EMP t of the impacts may Performanc
original be potentially e Report
2. Expansion It is assumed ECC
project significant, and
of the Amendmen
which will particularly if Manageme
land/proje modification t
either modification nt Plan
ct area proposal may /Environme
exceed will result to a (EPRMP)
OUTSIDE have ntal
PDR next higher
catchment significant Performanc
(noncover level of
or potential e Report
ed project) threshold
environme impacts due to and
thresholds range
nt absence of Manageme
, or EMP & Modification
described prior nt Plan
ERA scenario and
in the assessment (EPRMP)
cannot decision
original as to how the
address process are
EIA Report project may
impacts applicable to
affect the
and risks both
proposed
arising nonimplement
expansion
from ed and
area
modificati operating
on projects with
 or without area or impacts; may of ECC
issued ECCs other units result to lower Commitme
of project nts
5. Change/s EMP and ERA ECC measure threshold or (Conversion
in process can still Amendmen of may result to to CNC):
flow or address t /Letter thresholds non-coverage /Letter-
technolog impacts & Request limits Request
y risks arising with brief only
from process
modification description 8. Conversio Considered New ECC
n to new new /EIS
EMP and ERA ECC project application
cannot Amendmen type (e.g. but with lesser
address t bunker- data
impacts & /Environme fired plant requirements
risks arising ntal to gas- since most
from Performanc fired) facilities are
modification e Report established;
and environmental
Manageme performance
nt Plan in the past will
(EPRMP) serve as
baseline;
6. Additional Activity is ECC
However, for
componen directly Amendmen
operating
t or lessening or t /Letter
projects, there
products mitigating the Request
may be need
which will project’s with
to request for
enhance impacts on the consolidate
Relief from
the environment. d Project
ECC
environme However, to Description
Commitment
nt (e.g. ensure there is Report of
prior to
due to no component new project
applying for
complianc in the component
new project
e to new modification and
type to ensure
stringent which fall integrated
no balance of
requireme under covered EMP
environmental
nts) or project types,
accountabilitie
lessen EMB will
s from the
impacts require
current project
on the disclosure of
environme the 9. Integration No physical ECC
nt (e.g. description of of ECCs change in Amendmen
thru the for similar project t /Letter
utilization components or size/area; no Request
of waste and process contiguou change in with
into new with which the s projects process/techn consolidate
products) new product (Note: ology but d Project
will be Integration improved Description
developed. of ECCs is management Report and
at the of continuous integrated
7. Downgrad No From ECC
option of projects by EMP
e project incremental Amendmen
the having an
size or adverse t to Relief
Proponent integrated
 to planning 7. Other amendments deemed "major at the
request/ap document in discretion of the EMB CO/RO Director
ply) the form or an The Casiño Group does not controvert this finding
integrated ECC by the DENR-EMB and we find the same
(ECC reasonably supported by the evidence on record
conditions will considering that, among others, the construction
be harmonized of a 230-kVdouble transmission line would result
across in major activities outside the project site which
projects; could have significant environmental impacts.
conditions Consequently, the amendment was considered
relating to asfalling under Item#4 of Annex 2-1c, and, thus,
requirements the appropriate EIA document typeis an EPRMP,
within other viz:
agencies’ 4 Increase Exceedance of ECC
mandates will . in capacity PDR (non- Amendment
be deleted) or covered) /Environmen
auxiliary thresholds is tal
1 Revision/ No physical ECC componen assumed that Performance
0. Reformatti change on the Amendmen t of the impacts may Report and
ng of ECC project but t /Letter original be potentially Management
Conditions ECC Request project significant, Plan
conditions only which will particularly if (EPRMP)182
relating to either modification
requirements exceed will result to a
within other PDR (non- next higher
agencies’ covered level of
mandates will project) threshold
be deleted thresholds range
We now apply these provisions to the case at bar. , or EMP & Modification
To reiterate, the first amendment to the ECC was ERA scenario and
requested by RP Energy due to its planned change cannot decision
of project design involving the inclusion of a barge address process are
wharf, seawater intake breakwater, impacts applicable to
subseadischarge pipeline, raw water collection and risks both
system, drainage channel improvement and a arising nonimplement
230-kV double transmission line. The DENR-EMB from ed and
determined179 that the proposed modifications modificati operating
involved a major amendment because it will result on projects with
in anincrease in capacity or auxiliary component, or without
as per Scenario 2,Item #2 of Figure 2-4: issued
Scenario 2: Request for Major Amendments ECCs181
1. Expansion of project area w/in catchment Note that the Chart expressly states that,
described in EIA "[m]odification scenario and decision process are
2. Increase in production capacity or applicable to both non-implementedand operating
auxiliary component of the original projects withor without ECCs."183 To recall, the
project180 subject project has not been constructed and is
3. Change/s in process flow or technology not yet operational, although horizontal clearing
4. Addition of new product activities have already been undertaken at the
5. Integration of ECCs for similar or project site. Thus, the subject project may be
dissimilar but contiguous projects (NOTE: reasonably classified as a non-implemented
ITEM#5 IS PROPONENT’S OPTION, NOT project with an issued ECC, which falls under
EMB’S) Item#4 and, hence, an EPRMP is the appropriate
6. Revision/Reformatting of ECC Conditions EIA document type.
This lengthy explanation brings us toa simple
conclusion. The definitions in DAO 2003-30 and
the Revised Manual, stating that the EPRMP is
applicable to (1) operating/existing projectswith a
previous ECC but planning or applying for
modification or expansion, or (2) operating
projects but without an ECC, were not an exclusive
list.
The afore-discussed provisions of Figure 2-4, in
relation to Annex 2-1c, plainly show that the
EPRMP can, likewise, be used as an appropriate
EIA document type for a single, non-implemented
project applying for a major amendment to its ECC,
involving an increase in capacity or auxiliary
component, which will exceed PDR (non-covered
project) thresholds, or result in the inability of the
EMP and ERA to address the impacts and risks
arising from the modification, such as the subject
project.
That the proposed modifications in the subject
project fall under this class or type of amendment
was a determination made by the DENR-EMBand,
absent a showing of grave abuse of discretion, the
DENR-EMB’s findings are entitled to great respect
because it is the administrative agency with the
special competence or expertise to administer or
implement the EIS System. The apparent
confusion of the Casiño Group and the appellate
court is understandable. They had approached the
issue with a legal training mindset or background.
As a general proposition, the definition of terms in
a statute or rule is controlling as to its nature and
scope within the context of legal or judicial
proceedings. Thus, since the procedure adopted
by the DENR-EMB seemed to contradict or go
beyond the definition of terms in the relevant
issuances, the Casiño Group and the appellate
court concluded that the procedure was infirm.
However, a holistic reading of DAO2003-30 and
the Revised Manual will show that such a legalistic
approach inits interpretation and application is
unwarranted. This is primarily because the EIA
process is a system, not a set of rigid rules and
definitions. In the EIA process, there is much room
for flexibility in the determination and use ofthe
appropriate EIA document type as the foregoing
discussion has shown.184 To our mind, whatshould
be controlling is the guiding principle set in DAO
2003-30 in the evaluation of applications for
amendments to ECCs, as stated in Section 8.3
thereof: "[r]equirements for processing ECC
amendments shall depend on the nature of the
requestbut shall be focused on theinformation
necessary to assess the environmental impact of
such changes."185
This brings us to the next logicalquestion, did the
EPRMP provide the necessary information in order
for the DENR-EMB to assess the environmental
impact of RP Energy’s request relative to the first
amendment?
We answer in the affirmative.
In the first place, the Casiño Group never
attempted to prove that the subject EPRMP,
submitted by RP Energy to the DENR-EMB, was
insufficient for purposes of evaluating the
environmental impact of the proposed
modifications to the original project design. There
is no claim that the data submitted were falsified
or misrepresented. Neither was there an attempt
to subpoena the review process documents of the
DENR to establish thatthe grant of the amendment
to the ECC was done with grave abuse of discretion
or to the grave prejudice of the right to a healthful
environment of those who will beaffected by the
project. Instead, the Casiño Group relied solely on
the definition of terms in DAO 2003-30 and the
Revised Manual, which approach, as previously
discussed,was erroneous.
At any rate, we have examined the contents of the
voluminous EPRMP submitted by RP Energy and
wefind therein substantial sections explaining the
proposed changes as well as the adjustments that
will be made in the environmental management
plan in order to address the potential
environmental impacts of the proposed
modifications to the original project design. These
are summarized in the "Project Fact Sheet"186 of
the EPRMP and extensively discussed in Section
4187 thereof. Absent any claim or proof to the
contrary, we have no bases to conclude that these
data were insufficient to assess the environmental
impact of the proposed modifications. In
accordance with the presumption of regularity in
the performance of official duties, the DENR-EMB
must be deemed to have adequately assessed the
environmental impact of the proposed changes,
before granting the request under the first
amendment to the subject ECC.
In sum, the Revised Manual permits the use of an
EPRMP, as the appropriate EIA document type, for
major amendments to an ECC, even for an
unimplemented or non-implementedproject with a
previous ECC, such as the subject project.
Consequently, we find that the procedure adopted
by the DENR, in requiring RP Energy to submitan
EPRMP in order to undertake the environmental
impact assessment of the planned modifications
to the original project design, relative to the first
amendment to the ECC, suffers from no infirmity.
We apply the same framework of analysis in
determining the propriety of a PDR, as the
appropriate EIA document type, relative to the
second amendment to the subject ECC.
Again, the Casiño Group, as sustained by the
appellate court, relied on the definitions of a PDR
in DAO 2003-30 and the Revised Manual:
Project Description (PD) — document, which may
also be a chapter in an EIS, that describes the
nature, configuration, use of raw materials and
natural resources, production system, waste or
pollution generation and control and the activities
of a proposed project. It includes a description of
the use of human resources as well as activity
timelines, during the pre-construction,
construction, operation and abandonment phases.
It is tobe used for reviewing co-located and single
projects under Category C, aswell as for Category
D projects.188
xxxx
a) For new projects: x x x For non-covered projects
in Groups II and III, a x x x Project Description
Report (PDR) is the appropriate document to
secure a decision from DENR/EMB. The PDR is a
"must" requirement for environmental
enhancement and mitigation projects in both ECAs
(Group II) and NECAs (Group III) to allow EMB to
confirm the benign nature of proposed operations
for eventual issuance of a Certificate ofNon-
Coverage (CNC). All other Group III (non-covered)
projects do not need to submit PDRs – application
is at the option of the Proponent should it need a
CNC for its own purposes, e.g. financing pre-
requisite. For Group V projects, a PDR is required
to ensure new processes/technologies or any new
unlisted project does not pose harm to the
environment. The Group V PDR is a basis for either
issuance of a CNC or classification of the project
into its proper project group.
b) For operating projects with previous ECCs but
planning or applying for clearance to
modify/expand or re-start operations, or for
projects operating without an ECC but applying to
secure oneto comply with PD 1586 regulations,
the appropriate document is not an EIS but an EIA
Report incorporating the project’s environmental
performance and its current Environmental
Management Plan. This report is either an (6)
Environmental Performance Report and
Management Plan (EPRMP) for single project
applications or a (7) Programmatic EPRMP
(PEPRMP) for co-located project applications.
However, for small project modifications, an
updating of the project description or the
Environmental Management Plan with the use of
the proponent’s historical performance and
monitoring records may suffice.189
xxxx
Project Description (PD) - document, which may
also be a chapter in an EIS, that describes the
nature, configuration, use of raw materials and
natural resources, production system, waste or
pollution generation and control and the activities
of a proposed project. It includes a description of
the use of human resources as well as activity
timelines, during the pre-construction,
construction, operation and abandonment
phases.190
We will no longer delve intothe details of these
definitions. Suffice it to state, similar to the
discussion on the EPRMP, that if we go by the
strict limits of these definitions, the PDR relative to
the subject second amendment would not fall
squarely under any of the above.
However, again, these are not the only provisions
governing the PDR in the Revised Manual.
After the favorable grant of the first amendment,
RP Energy applied for another amendment to its
ECC, this time inconsideration of its plan to change
the configuration of the project from 2 x 150 MWto
1 x 300 MW. In practical terms, this meant that the
subject project will still produce 300 MW of
electricity but will now make use of only one boiler
(instead of two) to achieve greater efficiency in the
operations of the plant. The DENR-EMB
determined191 this amendment to be minor, under
Scenario 1, Item#6 of Figure 2-4:
Scenario 1: Request for Minor
Amendments
1. Typographical error
2. Extension of deadlines for
submission of post-ECC
requirement/s
3. Extension of ECC validity
4. Change in company
name/ownership
5. Decrease in land/project area or
production capacity
6. Other amendments deemed "minor"
at the discretion of the EMB CO/RO
Director192
— because (1) there is no increase in capacity; (2)
it does not constitute any significant impact; and
(3) its EMP and ERA as specified in the submitted
EPRMP remain the same.193 Relative to Annex 2-
1c, the requested amendment was, in turn, to submit a PDR in order to assess the
determinedto fall under Item#3: environmental impact of the planned
3 Increase in Non- ECC modifications relative to the second amendment.
. capacity or exceedance Amendment In their Petition before this Court, the Casiño Group
auxiliary of PDR (non /Letter boldly asserts that "[t]here is nothing in the Project
component covered Request with Description Report that provides an environmental
of the project) brief impact assessment of the effects of constructing
original thresholds description and operating a single 300-MW generating
project is assumed of additional unit."196 However, to our dismay, as in their other
which will that impacts capacity or serious allegations in their Petition for Writ
either not are not component19 ofKalikasan, the same is, likewise, baseless. Apart
entail significant; 5 from such a sweeping claim, the Casiño Group has
exceedance Modification provided no evidence or argument to back up the
of PDR scenario same.
(non- and decision An examination of the PDR readily reveals that it
covered process are contains the details of the proposed
project) applicable modifications197 and an express finding that no
thresholds to both non- significant environmental impact will be generated
or EMP & implemente bysuch modifications, as in fact it is expected that
ERA can d and the operation of the power plant will become more
still address operating efficient as a result of the change from 2 x 150 MW
impacts & projects to 1 x 300 MW configuration.198 Consequently, the
risks arising issued PDR merely reiterates the same mitigating
from ECCs194 measures that will presumably address the minor
modificatio modifications to the project design. Again, no
n evidence was presented to show substantial errors
or misrepresentations in these data or their
We make the same observation, as before, that the inadequacy for providing the bases for the DENR-
above applies to an unimplemented or non- EMB to assess the environmental impact of the
implemented project with a previous ECC, like the proposed modifications under the second
subject project. Although it may be noted thatthe amendment.
proposed modification does not squarely fall In fine, absent proof to the contrary, bearing in
under Item#3, considering that, as previously mind that allegations are not proof, we sustain the
mentioned,there will be no increase in capacity procedure adoptedby the DENR-EMB in requiring
relative to the second amendment, still, we find RP Energy to submit a PDR and, on the basis
nothing objectionable to this classification by the thereof, approving the request for the second
DENR-EMB, for it seems plain enough that this amendment.
classification was used because the modification In another vein, we note that the appellate court
was deemed too minor to require a detailed project proceeded from the erroneous premise that the EIA
study like an EIS or EPRMP. Since this is the is a document, when it repeatedly stated that the
classification most relevant and closely related to amendments to the ECC require a new EIA, and not
the intended amendment, following the basic merely an EPRMP or PDR. The appellate court
precept that the greater includes the lesser, the relied on the provisoin the ECC, which stated that
DENR-EMB reasonably exercised its discretion in "[a]ny expansion of the project beyond the project
merely requiring a letter request with a brief description or any change in the activity or transfer
description of the modification. of location shall besubject to a new Environmental
As earlier noted, the PDR is the EIA document type Impact Assessment."199
with the least detail, and, thus, applicable to such However, as correctly pointed out by the DENR and
minor modifications. Thus, the DENR-EMB cannot RP Energy, the EIA is not a document but a
be faulted for requiring RPEnergy to submit a PDR process:
relative to its application for the second Environmental Impact Assessment (EIA) —
amendment. Consequently, as before, we findthat processthat involves evaluating and predicting the
the Revised Manual supports the procedure likely impacts of a project (including cumulative
adopted by the DENR-EMB in requiring RP Energy 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.The
process is undertaken by, among others, the
project proponent and/orEIA Consultant, EMB, a
Review Committee, affected communities and
other stakeholders.200 (Emphasis supplied)
When the provisoin the ECC, therefore, states that
a new EIA shall beconducted, this simply means
that the project proponent shall be required to
submit such study or report, as warranted by the
DENR Rules and circumstances, which will
sufficiently aid the DENR in making a new EIA and,
thus, determine whether to grant the proposed
amendment (or project modification). Aswe have
seen, consistent with DAO 2003-30 and the
Revised Manual, the DENR required RP Energy to
submit an EPRMP and a PDR relative to the latter’s
request involving the first and second
amendments, respectively, which led to the new
EIA of the project in compliance with the provisoof
the ECC.
Verily, the various EIA documents, such as the
EPRMP and PDR, are mere tools used by the DENR
to assess the environmental impact of a particular
project. These documents are flexibly used by the
DENR, as the circumstances warrant, in order to
adequately assess the impacts of a new project or
modifications thereto. Being the administrative
agency entrusted with the determination of which
EIA document type applies to a particular
application for an amendment to an ECC, falling as
it does within its particular technical expertise,
wemust accord great respect to its determination,
absent a showing of grave abuse of discretion or
patent illegality.
In sum, we find that the appellate court erred when
it ruled that the first and second amendments to
the subject ECC wereinvalid for failure to comply
with a new EIA and for violating DAO 2003-30 and
the Revised Manual. The appellate court failed to
properly consider the applicable provisions in DAO
2003-30 and the Revised Manual on amendments
to ECCs. Our examination of the provisions on
amendments to ECCs, as well as the EPRMP and
PDR themselves, shows that the DENR reasonably
exercised its discretion in requiring an EPRMP and
a PDR for the first and second amendments,
respectively. Through these documents, which the
DENR reviewed, a new EIA was conducted relative
to the proposed project modifications. Hence,
absent sufficient showing of grave abuse of
discretion or patent illegality, relative to both the
procedure and substance of the amendment
process, we uphold the validity of these
amendments.
IV.
Whether the Certificate of Non-Overlap (CNO),
under Section 59 of the IPRA Law, is a
precondition to the issuance of anECC and the
lack of its prior issuance rendered the ECC
invalid.
The appellate court ruled that the ECC issued in
favor of RP Energy on December 22, 2008 is
invalid because the CNO covering the subject
project was issued only on October 31, 2012 or
almost fouryears from the timeof issuance of the
ECC. Thus, the ECC was issued in violation of
Section 59 of the IPRA Law and its implementing
rules which require that a CNO be obtained prior to
the issuance of a government agency of, among
others, a license or permit. In so ruling, the
appellate court implicitly upheld the Casiño
Group’s argument that the ECC is a form of
government license or permit pursuant to Section
4 of PD 1586 which requires all entities to
securean ECC before (1) engaging in an
environmentally critical project or (2)
implementing a project within an environmentally
critical area.
The DENR and RP Energy, however, argue that an
ECC is not the license or permit contemplated
under Section 59 of the IPRA Law and its
implementing rules as may be deduced from the
definition, nature and scope of an ECC under DAO
2003-03 and the Revised Manual. The DENR
explains that the issuance of an ECC does not
exempt the project proponent from securing other
permits and clearances as required under existing
laws, including the CNO, and that the final decision
on whether a project will be implemented lies with
the concerned local government unit/s or the lead
government agency which has sectoral mandate
to promote the government programwhere the
project belongs.
We agree with the DENR and RP Energy.
Section 59, Chapter VIII of the IPRA Law provides:
SEC. 59. Certification Precondition. All
departments and other governmental agencies
shall henceforth be strictly enjoined from issuing,
renewing, or granting any concession,license or
lease, or entering into any production-sharing
agreement, without prior certification from the
NCIP that the area affected does not overlap with
any ancestral domain.Such certification shall only
be issued after a field-based investigation is
conducted by the Ancestral Domains Office of the
area concerned: Provided, That no certification
shall be issued by the NCIP without the free and
prior informed and written consent of ICCs/IPs
concerned: Provided, further, That no department,
government agency or government-owned or -
controlled corporation may issue new concession,
license, lease, or production sharing agreement
while there is a pending application for a CADT:
Provided, finally, That the ICCs/IPs shall have the
right to stop or suspend, in accordance with this
Act, any project that has not satisfied the
requirement of this consultation process.
(Emphasis supplied)
While Section 9, Part II, Rule VIII of National
Commission on Indigenous Peoples (NCIP)
Administrative Order No. 01-98201 states:
SECTION 9. Certification Precondition Prior to
Issuance of any Permits or Licenses. —
a. Need for Certification. No department of
government or other agencies shall issue,
renew or grant anyconcession, license,
lease, permit, or enter into any production
sharing agreement without a prior
certification from the NCIP that the area
affected does not overlap any ancestral
domain.
b. Procedure for Issuance ofCertification by
NCIP.
1) The certification, above mentioned,
shall be issued by the Ancestral
Domain Office, only after a field based
investigation that such areas are not
within any certified or claimed
ancestral domains.
2) The certification shall be issued only
upon the free, prior, informed and
written consent of the ICCs/IPs who
will be affected by the operation of
such concessions, licenses or leases
or production-sharing agreements. A
written consent for the issuance of
such certification shall be signed by at
least a majority of the representatives
of all the households comprising the
concerned ICCs/IPs. (Emphasis
supplied)
As may be deduced from its subtitle, Section 59
requires as a precondition, relative to the issuance
of any concession, license, lease or agreement
over natural resources, a certification issued by
the NCIP that the area subject thereof does not lie
within any ancestral domain.202 This is in keeping
with the State policy to protect the rights of
Indigenous Cultural Communities/Indigenous
Peoples (ICCs/IPs) to their ancestral domains in
order to ensure their economic, social and cultural
well-being as well as to recognize the applicability
of customary laws governing property rights or
relations in determining the ownership and extent
of such ancestral domain.203
The IPRA Law and its implementing rules do not
define the terms "license" and "permit" so that
resort to their plain or ordinary meaning in relation
to the intendment of the law is appropriate.
A "license" has been defined as "a governmental
permission to perform a particular act (such as
getting married), conduct a particular business or
occupation, operate machinery or vehicles after
proving capacity and ability to do so safely, or use
property for a certain purpose"204 while a "permit"
has been defined as "a license or other document
given by an authorized public official or agency
(building inspector, department ofmotor vehicles)
to allow a person or business to perform certain
acts."205
The evident intention of Section 59, in requiring
the CNO prior to the issuance of a license or
permit, is to prevent the implementation of a
project that may impair the right of ICCs/IPs to
their ancestral domains. The law seeks to ensure
that a project willnot overlap with any ancestral
domain prior to its implementation and thereby
pre-empt any potential encroachment of, and/or
damage to the ancestral domains of ICCs/IPs
without their prior and informed consent.
With these considerationsin mind, we now look
atthe definition, nature and scope of an ECC in
order to determine if it falls within the ambit of a
"license" or "permit" to which the CNO
requirement, under Section 59 of the IPRA Law and
its implementing rules, finds application. Section 4
of PD 1586 provides, in part:
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
suchdeclared environmentally critical project or
area without first securing an Environmental
Compliance Certificate issued by the President
orhis 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 re-
alignment of government personnel, and their
specific functionsand responsibilities. (Emphasis
supplied)
While the above statutory provision reveals that
the ECC is an indispensable requirement before (1)
the conduct of an environmentally critical project
or (2) the implementation of a project inan
environmentally critical area, it does not follow
that the ECC is the "license" or "permit"
contemplated under Section 59 of the IPRA Law
and its implementing rules.
Section 3(d), Article I of DAO 2003-03 defines an
ECC in this wise:
SECTION 3. Definition of Terms. —
For the purpose of this Order, the following
definitions shall be applied:
xxxx
d. Environmental Compliance Certificate (ECC) —
document issued by the DENR/EMB after a
positive review of an ECC application, certifying
that based on the representations of the
proponent, the proposed project or undertaking
will not cause significant negative environmental
impact. The ECC also certifies that the proponent
has complied with all the requirements of the EIS
System and has committed to implement its
approved Environmental Management Plan. The
ECC contains specific measures and conditions
that the project proponent has to undertake
beforeand during the operation of a project, and in
some cases, during the project's abandonment
phase to mitigate identified environmental
impacts.
In turn, Section 1.0, paragraphs 3 and 6 of the
Revised Manual provide, in part:
3) Purpose of the EIA Process
As a basic principle, EIA is used to enhance
planning and guide decisionmaking. In this
Manual, EIA is primarily presented in the context of
a requirement to integrate environmental
concerns in the planning process of projects at the
feasibility stage. Through the EIA Process, adverse
environmental impacts of proposed actions are
considerably reduced through a reiterative review
process of project siting, design and other
alternatives, and the subsequent formulation of
environmental management and monitoring plans.
A positive determination by the DENR-EMB results
to the issuance of an Environmental Compliance
Commitment (ECC) document, to be conformed to
by the Proponent and represents the project’s
Environmental Compliance Certificate. The release
of the ECC allows the project to proceed to the next
stage of project planning, which is the acquisition
of approvals from other government agencies and
LGUs, after which the project can start
implementation.
xxxx
6) The EIA Process inRelation to Other Agencies’
Requirements It is inherent upon the EIA Process
to undertake a comprehensive and integrated
approach in the review and evaluation of
environment-related concerns of government
agencies (GAs), local government units (LGUs) and
the general public. The subsequent EIA findings
shall provide guidance and recommendations to
these entities as a basis for their decision making
process.
a) An Inter-agency MOA on EIS Streamlining
was entered into in 1992 by 29 government
agencies wherein ECC of covered projects
was agreed to be a prerequisite of all other
subsequent government approvals;
b) DENR Memo Circular No. 2007-08 issued
on 13 July 2007 reiterates in effect the intent
of the MOA and reinforces the role of the
ECC/CNC as a guidance document to other
agencies and LGUs, as follows:
i) "No permits and/or clearances
issued by other National Government
Agencies and Local Government Units
shall be required in the processing of
ECC or CNC applications.
ii) The findings and recommendations
ofthe EIA shall be transmitted to
relevant government agencies for
them to integrate in their decision
making prior to the issuance of
clearances, permits and licenses under
their mandates.
iii) The issuance of an ECC or CNC for
a project under the EIS System does
not exempt the Proponent from
securing other government permits
and clearances as required by other
laws. The current practice of requiring
various permits, clearancesand
licenses only constrains the EIA
evaluation process and negates the
purpose and function of the EIA."
iv) Henceforth, all related previous
instructions and other issuances shall
be made consistent with the Circular.
c) "Permits, licenses and clearances"
are inclusive of other national and local
government approvals such as
 endorsements, resolutions,
certifications, plans and programs,
which have to be cleared/approved or
other government documents required
within the respective mandates and
jurisdiction of these agencies/LGUs.
xxxx
f) The final decision whether a project will be
implemented or not lies either with the LGUs who
have spatial jurisdiction over the project or with
the lead government agency who has sectoral
mandate to promote the government program
where the project belongs, e.g. DOE for energy
projects; DENR-MGB for mining
projects.(Emphasis supplied)
As can be seen, the issuance of the ECC does not,
by and of itself, authorize the implementation of
the project. Although it is indispensable before the
covered project can be commenced, asper Section
4 of PD 1586,the issuanceof the ECC does not, as
of yet, result inthe implementation of the project.
Rather, the ECC is intended to, among others,
provide guidance or act as a decision-making tool
to other government agencies and LGUs which
have the final authority to grant licenses or
permits, such as building permits or licenses to
operate, that will ultimately result in, or authorize
the implementation of the project or the conduct
of specific activities.
As a consequence, we find that the CNO
requirement under Section 59 of the IPRA Law is
not required to be obtained prior to the issuance of
an ECC. As previously discussed, Section 59 aims
to forestall the implementation of a project that
may impair the right of ICCs/IPs totheir ancestral
domains, by ensuring or verifying that a project will
not overlap with any ancestral domain prior to its
implementation. However, because the issuance
of an ECC does not result in the implementation of
the project, there is no necessity to secure a CNO
prior to an ECC’s issuance as the goal orpurpose,
which Section 59 seeks to achieve, is, at the time
of the issuance of an ECC, not yet applicable.
In sum, we find that the ECC is not the license or
permit contemplated under Section 59 of the IPRA
Law and its implementing rules. Hence, there is no
necessity to secure the CNO under Section 59
before an ECC may be issued and the issuance of
the subject ECC without first securing the
aforesaid certification does not render it invalid.
V.
Whether the Certificate of Non-Overlap (CNO),
under Section 59 of the IPRA Law, is a
precondition to the consummation of the Lease
and Development Agreement (LDA) between
SBMA and RP Energy and the lack of its prior
issuance rendered the LDA invalid.
We now turn to the applicability of Section 59 of
the IPRA Law to the LDA entered into between the
SBMA and RP Energy on June 8, 2010. Similar to
the ECC, the LDA was entered into prior to the
issuance ofthe CNO on October 31, 2012.
Before this Court, SBMA and RP Energy reiterate
their arguments on why the CNO is no longer
necessary in the instant case, to wit:
1. Prior to entering into the LDA withRP
Energy, SBMA entered into a lease
agreement with HHIC206 -Philippines, Inc.
and a CNO was already issued therefor
which, for all intents and purposes, is
applicable to the area leased by RP Energy
being part of contiguous lots in Redondo
Peninsula.
2. The site of the power plant project is very
distant from the boundaries of the lone area
at the Subic Bay Freeport Zone covered by an
Aeta Community’s Certificate of Ancestral
Domain Title (CADT).
3. There was no indigenous community
within the vicinity of the project area as
stated in RP Energy’s EIS.
4. The land where the project is located was
subsequently classified as industrial by the
SBMA. 5. The scoping/procedural screening
checklist classified as "not relevant" the
issue of indigenous people.
6. Ms. Mercado, who was part of the team
which prepared the EIS, testified that she
visited the project site ten or more times and
did not see any Aeta communities there.
7. Mr. Evangelista testified that the project
site used to be a firing range of the U.S.
Armed Forces which would make it
impossible to be a settlement area of
indigenous communities.
8. Atty. Rodriguez stated that the project site
is not covered by a CADT and that from the
start of negotiations on the LDA, the SBMA
Ecology Center verified with the NCIP that
there was no application for said area to be
covered by a CADT.
RP Energy further argues that, in any case, as a
matter of prudence, it secured a CNO from the
NCIP. On October 31, 2012, the NCIP issued the
subject CNO over the project site, which should
erase any doubt as to whether it overlaps with an
ancestral domain.
Upholding the arguments of the Casiño Group, the
appellate court ruled that SBMA failed to comply
with the CNO requirement and, thus, the LDA
entered into between SBMA and RP Energy is
invalid. It rejected the reasons given by SBMA and
RP Energy, to wit:
1. RP Energy’s reliance on its own field
investigation that no indigenous community
was found within the vicinity is unavailing
because it was not the field investigation by
the NCIP required by the IPRA Law.
2. RP Energy acknowledged that Aetas were
among the earliest settlers in the
municipality where the project will be built.
Hence, it was not clearly shown that in 2008,
at the time the LDA was entered into, there
were no indigenouscommunities in the
project site.
3. SBMA’s representation that the project
site is industrial relies on a letter dated
March 5, 2008 and the scoping checklist,
which are hearsay evidence.
4. The statements of Atty. Rodriguez have no
probative value because he is not an officer
of SBMA Ecology Center oran officer of NCIP.
5. At the time the CNO was issued on
October 31, 2012, and the field investigation
relative thereto was conducted by the NCIP,
the project site no longer reflected the actual
condition on December 22, 2008 when the
LDA was entered into because the
households which occupied the site had
already been relocated by then.
6. SBMA, prior to entering into a lease
agreement with HHIC, secured a CNO, but
oddly did not do the same with respect to the
lease agreement with RP Energy,
considering that both leases cover lands
located within the same peninsula. RP
Energy appears to have been accorded a
different treatment.
7. The CNO issued in favor of HHIC cannot
justify the lack of a CNO for the power plant
project because the two projects are situated
in different locations: the HHIC project is
located in Sitio Agusuhin,while the power
plant project is located in Sitio Naglatore.
While we agree with the appellate court that a CNO
should have been secured prior to the
consummation of the LDA between SBMAand RP
Energy, and not after, as was done here, we find
that, under the particular circumstances of this
case, the subsequent and belated compliance
withthe CNO requirement does not invalidate the
LDA.
For convenience, and as starting point of
ouranalysis, we reproduce Section 59 of the IPRA
Law below:
SEC. 59. Certification Precondition. All
departments and other governmental agencies
shall henceforth be strictly enjoined from issuing,
renewing, or granting any concession, license or
lease, or entering into any productionsharing
agreement, without prior certification from the
NCIP that the area affected does not overlap with
any ancestral domain.Such certification shall only
be issued after a field-based investigation is
conducted by the Ancestral Domains Office of the
area concerned: Provided, That no certification
shall be issued by the NCIP without the free and
prior informed and written consent of ICCs/IPs
concerned: Provided, further, That no department,
government agency or government-owned or -
controlled corporation may issue new concession,
license, lease, or production sharing agreement
while there is a pending application for a CADT:
Provided, finally, That the ICCs/IPs shall have the
right to stop or suspend, in accordance with this
Act, any project that has not satisfied the
requirement of this consultation process.
(Emphasis supplied)
The law is clear but its actual operation or
application should not be interpreted beyond the
bounds of reason or practicality.
We explain.
Indeed, a CNO is required prior to the grant of a
lease by all government agencies, including the
SBMA. Again, the evident intention is to prevent
the impairment of the right of ICCs/IPs to their
ancestral domains. A lease, such as the LDA under
consideration, would result in, among others,
granting RP Energy the right to the use and
enjoyment of the project site to the exclusion of
third parties.207 As such, the lease could
conceivably encroach on an ancestral domain if
the CNO is not first obtained.
However, implicit in the operation of Section 59 is
the practical reality that the concerned
government agency must make a preliminary
determinationon whether or not to obtain the
required certification in the first place. To
expound, a government agency, which wishes to
lease part of its property located near Padre Faura
Street, Manila City could not, and should not be
reasonably expected to obtain the CNO, as it is
obviously inapplicable to its planned lease. In
contrast, a government agency, which intends to
lease a property in a valley or mountainous region,
where indigenous communities are known to
reside, conduct hunting activities, perform rituals,
or carry out some other activities, should be
reasonably expected to secure the CNO prior to
consummating the planned lease with third
persons.
Even if the indigenous community does not
actuallyreside on the proposed lease site, the
government agency would still be required to
obtain the CNO preciselyto rule out the possibility
that the proposed lease site encroaches upon an
ancestral domain. The reason for this is that an
ancestral domain does not only cover the lands
actually occupied by an indigenous community,
but all areas where they have a claim of ownership,
through time immemorial use, such as hunting,
burial or worship grounds and to which they have
traditional access for their subsistence and other
traditional activities.208
The wording of the law itself seems to presuppose
that if the concession, lease, license or
production-sharing agreement is over natural
resources, then the CNO should be first obtained.
This is because the lastterm, "production-sharing
agreement," normally refers to natural resources.
But the problem arises as to what should be
considered "natural resources"; for a vacant lot,
nearPadre Faura Street, or a forest land, in Mt.
Banahaw, could both beconsidered as "natural
resources," depending on the restrictive or
expansive understanding of that term.
After due consideration, we find that the proper
rule of action, for purposes of application of
Section 59, is that all government offices should
undertake proper and reasonable diligence in
making a preliminary determination on whether to
secure the CNO, bearing in mind the primordial
State interest in protecting the rights of ICCs/IPs
to their ancestral domains. They should consider
the nature and location of the areas involved; the
historical background of the aforesaid areas
relative to the occupation, use or claim of
ownership by ICCs/IPs; the present and actual
condition of the aforesaid areas likethe existence
of ICCs/IPs within the area itself or within nearby
territories; and such other considerations that
would help determine whether a CNO should be
first obtained prior to granting a concession, lease,
license or permit, or entering into a production-
sharing agreement.
If there are circumstances that indicate that a
claim of ownership by ICCs/IPs may be present or
a claim of ownership may be asserted in the future,
no matter how remote, the proper and prudent
course ofaction is to obtain the CNO. In case of
doubt, the doubt should be resolved in favor of
securing the CNO and, thus, the government
agency is under obligation tosecure the aforesaid
certification in order to protect the interests and
rights of ICCs/IPs to their ancestral domains. This
must be so if we are to accord the proper respect
due to, and adequately safeguard the interests and
rights of, our brothers and sisters belonging to
ICCs/IPs in consonance with the constitutional
policy209 to promote and protect the rights of
ICCS/IPs as fleshed out in the IPRA Law and its
implementing rules.
In the case at bar, we find, applying this rule of
action, that the SBMA should have first secured a
CNO before entering into the LDA with RP Energy
for the following reasons.
First, the Subic area is historicallyknown to be the
home of our brothers and sisters belonging to the
Aeta communities. In particular, the EIS210 itself of
RP Energy noted that Aeta communities originally
occupiedthe proposed project site of the power
plant. Thus, even if we assume that, at the time of
the ocular inspection of the proposed project site
in 2008, there were no Aeta communities seen
thereat, as claimed by RP Energy, the exercise of
reasonable prudence should have moved SBMA
and RP Energy to secure a CNO in order to rule out
the possibility that the project site may overlap
with an ancestral domain. This is especially so, in
view of the observation previously made, that lack
of actual occupation by an indigenous community
ofthe area does not necessarily mean that it is not
a part of anancestral domain because the latter
encompasses areas that are not actually occupied
by indigenouscommunities but are used for other
purposes like hunting, worship or burial grounds.
Second, SBMA and RP Energy claim that the SBMA
Ecology Center verified with the NCIP that the
project site does not overlap with an ancestral
domain. However, the person, who allegedly did
the verification, and the officer from the NCIP, who
was contacted in this alleged verification, were not
presented in court. Assuming that this verification
did take place and that the SBMA Ecology Center
determined that there is no pendingapplication for
a CADT covering the project site and that the
presently recognized CADT of Aeta communities is
too far away from the project site, it still does not
follow that the CNO under Section 59 should have
been dispensed with. The acts of individual
members ofa government agency, who allegedly
checked with the NCIP that the project site does
not overlap with an ancestral domain, cannot
substitute for the CNO required by law. The reason
is obvious. Such posture would circumvent the
noble and laudable purposes of the law in
providing the CNO as the appropriate mechanism
in order to validly and officially determine whether
a particular project site does not overlap with an
ancestral domain. It would open the doors to
abuse because a government agency can easily
claim that it checked with the NCIP regarding any
application for an ancestral domain over a
proposed project site while stopping short of
securing a CNO. To reiterate, the legally mandated
manner to verify if a project site overlaps with an
ancestral domain is the CNO,and not through
personal verification by members of a government
agency with the NCIP.
Third, that the project site was formerlyused as the
firing range of the U.S. Armed Forces does not
preclude the possibility that a present orfuture
claim of ancestral domain may be made over the
aforesaid site. The concept of an ancestral domain
indicates that, even if the use ofan area was
interrupted by the occupation of foreign forces, it
may still be validly claimed to be an ancestral
domain.211
Fourth, that the project site was subsequently
classified by the SBMA as forming part of an
industrial zone does not exempt it from the CNO
requirement. The change in the classification of
the land is not an exception to the CNO
requirement under the IPRA Law. Otherwise,
government agencies can easily defeat the rights
of ICCs/IPs through the conversion of land use.
Fifth, SBMA argues that the CNO issued to HHIC
should, for all intents and purposes, be applicable
to RP Energy. However, ascorrectly ruled by the
appellate court, the CNO issued to HHIC’s shipyard
cannot be extended to RP Energy’s project site
because they involve two different locations
although found within the same land mass. The
CNO issued in favor of HHIC clearly states that the
findings in the CNO are applicable only to the
shipyard location of HHIC. Last, the steps taken by
SBMA, in securing a CNO prior to its lease
agreement with HHIC, was the proper and prudent
course of action that should have been applied to
the LDA with RP Energy. It does notmatter that
HHIC itself asked for the CNO prior to entering into
a lease agreement with SBMA, as claimed by
SBMA, while RP Energy did not make such a
request because, as we have discussed, SBMA had
the obligation, given the surrounding
circumstances, to secure a CNO in order to rule out
the possibility that the project site overlapped with
an ancestral domain.
All in all, we find, applying the foregoing rule of
action,that SBMA should have secured a CNO
before entering into the LDA with RP Energy.
Considering that Section 59 is a prohibitory
statutory provision, a violation thereof would
ordinarily result in the nullification of the
contract.212 However, we rule that the harsh
consequences of such a ruling should not be
applied to the case at bar.
The reason is that this is the first time that we lay
down the foregoing rule of action so much so that
it would be inequitable to retroactively apply its
effects with respect to the LDA entered into
between SBMA and RPEnergy. We also note that,
under the particular circumstances of this case,
there is no showing that SBMA and RP Energy had
a deliberate or ill intent to escape, defeat or
circumvent the mandate of Section 59 of the IPRA
Law. On the contrary, they appear to have believed
in good faith, albeiterroneously, that a CNO was no
longer needed because of the afore-discussed
defenses they raised herein. When the matter of
lack of a CNO relative to the LDA was brought to
their attention, through the subject Petition for
Writ ofKalikasan filed by the Casiño Group, RP
Energy, with the endorsement of SBMA, promptly
undertook to secure the CNO, which was issued on
October 31, 2012 and stated that the project site
does not overlap with any ancestral domain.213
Thus, absent proof to the contrary, weare not
prepared to rule that SBMA and RP Energy acted
inbad faith or with inexcusable negligence,
considering that the foregoing rule of action has
not heretofore been laiddown by this Court. As a
result, we hold that the LDA should notbe
invalidated due to equitable considerations
present here.
By so ruling, we clarify that we reject RP Energy’s
claim that the belated submission of the CNO is an
"over compliance" on its part. Quite the contrary,
as we have discussed, the CNO should have been
first secured given the surrounding circumstances
of this case.
In the same vein, we reject SBMA’s argument
thatthe belated application for, and submission of
the CNO cured whatever defect the LDA had. We
have purposely avoided a ruling to the effect that
a CNO secured subsequent to the concession,
lease, license, permit or production-sharing
agreement will cure the defect. Such a ruling
would lead to abuse of the CNO requirement since
the defect can be cured anyway by a subsequent
and belated application for a CNO. Government
agencies and third parties, either through
deliberate intent or negligence, may view it as an
excuse not to timely and promptly secure the CNO,
even when the circumstances warrant the
application for a CNO under the aforediscussed
rule of action, tothe damage and prejudice of
ICCs/IPs. Verily, once the concession, lease,
license or permit is issued, or the agreement is
entered into without the requisite CNO,
consequent damages will have already occurred if
it later turns out that the site overlaps with
anancestral domain. This is so even if the ICCs/IPs
can have the project stopped upon discovery thatit
overlapped with their ancestral domain under the
last proviso214 of Section 59. To prevent this evil,
compliance with the CNO requirement should be
followed through the aforediscussed rule of
action.
In sum, we rule that a CNO should have been
secured prior to the consummation of the LDA
between SBMA and RP Energy. However,
considering that this is the first time we lay down
the rule of action appropriate to the application of
Section 59, we refrain from invalidating the LDA
due to equitable considerations.
VI.
Whether compliance with Section 27, inrelation
to Section 26, of the LGC (i.e., approval of the
concerned sanggunianrequirement) is necessary
prior to the implementation of the power plant
project.
Sustaining the arguments ofthe Casiño Group, the
appellate court ruled that the subject project
cannot beconstructed and operated until after the
prior approval of the concerned
sanggunianrequirement, under Section 27 of the
LGC, is complied with. Hence, the ECC and LDA
could not be validly granted and entered into
without first complying with the aforesaid
provision. It held that all the requisites for the
application of the aforesaid provision are present.
As to the pertinent provisions of RA 7227 or
"TheBases Conversion and Development Act of
1992," which grants broad powers of
administration to the SBMA over the Subic Special
Economic Zone(SSEZ), the appellate court ruled
that RA 7227 contains a provision recognizing the
basic autonomy ofthe LGUs which joined the
SSEZ. Thus, the LGC and RA 7227should be
harmonized whereby the concerned
sanggunian’spower to approve under Section 27
must be respected.
The DENR impliedly agrees with the Casiño Group
that compliance with Section 27 is still required
but without clearly elaborating its reasons
therefor.
The SBMA and RP Energy, however, argue that the
prior approval of the concerned
sanggunianrequirement, under Section 27, is
inapplicable to the subject project because it is
located within the SSEZ. The LGC and RA 7227
cannot be harmonized because of the clear
mandate of the SBMA to govern and administer all
investments and businesses within the SSEZ.
Hence, RA 7227 should be deemed as carving out
an exception to the prior approval of the concerned
sanggunianrequirement insofar as the SSEZ is
concerned.
We agree with the SBMA and RP Energy.
Preliminarily, we note that Sections 26 and 27 of
the LGC contemplate two requirements: (1) prior
consultations and (2) prior approval of the
concerned sanggunian,viz:
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 cropland,
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 peopleand the
community in terms of environmental or
ecological balance, and the measures that will be
undertaken to prevent or minimize the adverse
effects thereof. (Emphasis supplied)
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. (Emphasis supplied)
In the case at bar, the Casiño Group only questions
the alleged lack of the prior approval of the
concerned sanggunians under Section 27 of the
LGC. Thus, we shall limit our discussion to the
resolution of this issue. (Parenthetically, we note
that prior consultations, as required by Section 26
of the LGC, appear to have been complied with.
This may begleaned from the EIS of RPEnergy
which contains the documentation of the
extensive public consultations held, under the
supervision of the DENR-EMB, relative to the
subject project, as required by the EIA
process,215 as well as the socialacceptability
policy consultations conducted by the SBMA,
which generated the document entitled "Final
Report: Social Acceptability Process for RP
Energy, Inc.’s 600-MW Coal Plant Project," as
noted and discussed in an earlier subsection.216)
We also note that the Casiño Group argues that the
approval of the concerned sanggunian
requirement was necessary prior to the issuance
of the ECC and the consummation of the LDA; the
absence of which invalidated the ECC and LDA.
We shall no longer discuss at length whether the
approval of the concerned sanggunian
requirement must be complied with prior to the
issuance of an ECC. As discussed in an earlier
subsection, the issuance of an ECC does not, by
itself, result in the implementation of the project.
Hence, the purpose or goal of Sections 26 and 27
of the LGC,like Section 59 of the IPRA Law, does
not yet obtain and, thus, the ECC may be issued
evenwithout prior compliance with Sections 26
and 27 of the LGC.
We, thus, limit the discussion as to whether the
approval of the concerned sanggunian
requirement should have been complied with prior
to the consummation of the LDA, considering that
the LDA is part of the implementation of the
subject project and already vests in RP Energy the
right to the use and enjoyment of the project site,
asin fact horizontal clearing activities were already
undertaken by RP Energy at the project site by
virtue of the LDA.
The prior approval of the concerned sanggunian
requirement is an attribute and implementation of
the local autonomy granted to, and enjoyed by
LGUs under the Constitution.217 The LGU has the
duty to protect its constituents and interests in the
implementation of the project. Hence, the approval
of the concerned sanggunian is required by law to
ensure thatlocal communities partake in the fruits
of their own backyard.218
For Section 27, in relation to Section 26, to apply,
the following requisites must concur: (1) the
planning and implementation of the project or
program is vested in a national agency or
government-owned and-controlled corporation,
i.e., national programs and/or projects which are
to be implemented in a particular local community;
and (2) the project or program may cause
pollution, climatic change, depletion of non-
renewable resources, loss of cropland, rangeland,
or forest cover, extinction of animal or plant
species, or call for the eviction of a particular
group of people residing in the locality where the
project will be implemented.219
In the case at bar, the two requisites are evidently
present: (1) the planning and implementation of
the subject project involves the Department of
Energy, DENR, and SBMA; and (2) the subject
project may cause pollution, climatic change,
depletion of non-renewable resources, loss of
cropland, rangeland, or forest cover, and extinction
of animal or plant species,or call for the eviction of
a particular group of people residing in the locality
where the project will be implemented. Hence,
Section 27 of the LGC should ordinarily apply.
It is not disputed that no approval was sought from
the concerned sangguniansrelative to the subject
project.1a\^/phi1 Whatis more, the affected LGUs
have expressed their strong oppositions to the
project through various sanggunian
resolutions.220 However, it is also undisputed that
the subject project is located within the SSEZ and,
thus, under the territorial jurisdiction of the SBMA
pursuant to RA 7227.
Thus, we are tasked to determine the applicability
of the prior approval of the concerned sanggunian
requirement, under Section 27 of the LGC, relative
to a project within the territorial jurisdiction of the
SBMA under RA 7227.
RA 7227 was passed on March 13, 1992 in the
aftermath of the Mount Pinatubo eruption and the
closure of the Subic Naval Base ofthe U.S. Armed
Forces. It sought to revivethe affected areas by
creating and developing the SSEZ into a "self-
sustaining industrial, commercial, financial and
investment center to generate employment
opportunities in and around the zone and to attract
and promote productive foreign
investments."221 The SSEZ covered the City of
Olangapo and Municipality of Subic in the Province
ofZambales and the lands and its contiguous
extensions occupied by the former U.S. Naval
Base, which traversed the territories of the
Municipalities of Hermosa and Morong in the
Province of Bataan. Under Section 12 of RA 7227,
the creation of the SSEZ was made subject to the
concurrence by resolution of the respective
sanggunians of the City of Olongapo and the
Municipalities of Subic, Morong and Hermosa, viz:
SECTION 12. Subic Special Economic Zone. —
Subject to the concurrence by resolution of the
sangguniang panlungsod of the City of Olongapo
and the sangguniang bayanof the Municipalities of
Subic, Morong and Hermosa, there is hereby
created a Special Economic and Free-port Zone
consisting of the City of Olongapo and the
Municipality of Subic, Province of Zambales, the
lands occupied by the Subic Naval Base and its
contiguous extensions as embraced, covered, and
defined by the 1947 Military Bases Agreement
between the Philippines and the United States of
America as amended, and within the territorial
jurisdiction of the Municipalities of Morong and
Hermosa, Province of Bataan, hereinafter referred
to as the Subic Special Economic Zone whose
metes and bounds shall be delineated in a
proclamation to be issued by the President of the
Philippines. Within thirty (30) days after the
approval of this Act, each local government unit
shall submit its resolution of concurrence to join
the Subic Special Economic Zone to the office of
the President. Thereafter, the President of the
Philippines shall issue a proclamation defining the
metes and bounds of the Zone as provided herein.
Subsequently, the aforesaid sanggunians
submitted their respective resolutions of
concurrence and the President issued Presidential
Proclamation No. 532, Series of 1995, defining the
metes and bounds of the SSEZ.
In Executive Secretary v. Southwing Heavy
Industries, Inc.,222 we described the concept of
SSEZ as a Freeport:
The Freeport was designed to ensurefree flow or
movement of goods and capital within a portion of
the Philippine territory in order to attract investors
to invest their capital in a business climate with
the least governmental intervention. The concept
ofthis zone was explained by Senator Guingona in
this wise:
Senator Guingona. Mr. President, the special
economic zone is successful in many places,
particularly Hong Kong, which is a free port. The
difference between a special economic zone and
an industrial estate is simply expansive in the
sense that the commercial activities, including the
establishment of banks, services, financial
institutions, agro-industrial activities, maybe
agriculture to a certain extent.
This delineates the activities that would have the
least of government intervention, and the running
of the affairs of the special economic zone would
be run principally by the investors themselves,
similar toa housing subdivision, where the
subdivision owners elect their representatives to
run the affairs of the subdivision, toset the
policies, to set the guidelines.
We would like to see Subic area converted into a
little Hong Kong, Mr. President, where there is a
hub of free port and free entry, free duties and
activities to a maximum spur generation of
investment and jobs.
While the investor is reluctant to come in the
Philippines, as a rule, because of red tape and
perceived delays, we envision this special
economic zone to be an area where there will be
minimum government interference.
The initial outlay may not only come from the
Government or the Authority as envisioned here,
but from them themselves, because they would be
encouraged to invest not only for the land but also
for the buildings and factories. As long as they are
convinced that in such an area they can do
business and reap reasonable profits, thenmany
from other parts, both local and foreign, would
invest, Mr. President.223 (Emphasis in the original)
To achieve the above-mentioned purposes, the
law created SBMA to administer the SSEZ. In the
process, SBMA was granted broad and enormous
powers as provided for under Section 13(b) of RA
7227:
Sec. 13. The Subic Bay Metropolitan Authority. –
xxxx
(b) Powers and functions of the Subic Bay
Metropolitan Authority - The Subic Bay
Metropolitan Authority, otherwise knownas
the Subic Authority, shall have the following
powers and function: (1) To operate,
administer, manage and develop the ship
repair and ship building facility, container
port, oil storage and refueling facility and
Cubi Air Base within the Subic Special
Economic and Free-port Zone as a free
market in accordance with the policies set
forth in Section 12 of this Act;
(2) To accept any local or foreign
investment, business or enterprise,
subject only to such rules and
regulations to be promulgated by the
Subic Authority in conformity with the
policies of the Conversion Authority
without prejudice to the
nationalization requirements provided
for in the Constitution;
(3) To undertake and regulate the
establishment, operation and
maintenance of utilities, other services
and infrastructure in the Subic Special
Economic Zone including shipping and
related business, stevedoring and port
terminal services or concessions,
incidental thereto and airport
operations in coordination with the
Civil Aeronautics Board, and to fix just
and reasonable rates, fares charges
and other prices therefor;
(4) To construct, acquire, own, lease,
operate and maintain on its own or
through contract, franchise, license
permits bulk purchase from the private
sector and build-operate transfer
scheme or joint-venture the required
utilities and infrastructurein
coordination with local government
units and appropriate government
agencies concerned and inconformity
with existing applicable laws therefor;
(5) To adopt, alter and use a corporate
seal; to contract, lease, sell, dispose,
acquire and own properties; to sue and
be sued in order to carry out its duties
and functions as provided for in this
Act and to exercise the power of
eminent domain for public use and
public purpose;
(6) Within the limitation provided by
law, to raise and/or borrow the
necessary funds from local and
international financial institutions and
to issue bonds, promissory notes and
other securities for that purpose and to
secure the same by guarantee, pledge,
mortgage deed of trust, or assignment
of its properties held by the Subic
Authority for the purpose of financing
its projects and programs within the
framework and limitation of this Act;
(7) To operate directly or indirectly or
license tourism related activities
subject to priorities and standards set
by the Subic Authority including games
and amusements, except horse racing,
dog racing and casino gambling which
shall continue to be licensed by the
Philippine Amusement and Gaming
Corporation (PAGCOR) upon
recommendation of the Conversion
Authority; to maintain and preserve the
forested areas as a national park;
(8) To authorize the establishment
ofappropriate educational and medical
institutions;
(9) To protect, maintain and develop
the virgin forests within the baselands,
which will be proclaimed as a national
park and subject to a permanent total
log ban, and for this purpose, the rules
and regulations of the Department of
Environment and Natural Resources
and other government agencies
directly involved in the above functions
shall be implemented by the Subic
Authority;
(10) To adopt and implement
measures and standards for
environmental pollution control of all
areas within its territory, including but
not limited to all bodies of water and to
enforce the same. For which purpose
the Subic Authority shall create an
Ecology Center; and
(11) To exercise such powers as may
be essential, necessary or incidental to
the powers granted to it hereunder as
well as to carry out the policies and
objectives of this Act. (Emphasis
supplied) The Implementing Rules of
RA 7227 further provide:
Sec. 11. Responsibilities of the SBMA. Other than
the powers and functions prescribed in Section 10
of these Rules, the SBMA shall have the following
responsibilities:
(a) The SBMA shall exercise authority and
jurisdiction over all economic activity within the
SBF224
xxxx
(f) Consistent with the Constitution, the SBMA
shall have the following powers to enforce the law
and these Rules in the SBF:
xxxx
(8) to issue, alter, modify, suspend or revoke for
cause, any permit, certificate, license, visa or
privilege allowed under the Act or these Rules;
xxxx
(11) to promulgate such other rules, regulations
and circulars as may be necessary, proper or
incidental to carry out the policies and objectives
of the Act, these Rules, as well as the powers and
duties of the SBMA thereunder.225
As can be seen, the SBMA was given broad
administrative powers over the SSEZ and these
necessarily include the power to approve or
disapprove the subject project, which is within its
territorial jurisdiction. But, as previously
discussed, the LGC grants the concerned
sangguniansthe power to approve and disapprove
this same project. The SBMA asserts that its
approval of the project prevails over the apparent
disapproval of the concerned sanggunians. There
is, therefore, a real clash between the powers
granted under these two laws.
Which shall prevail?
Section 12 of RA 7227 provides:
Sec. 12. Subic Special Economic Zone. x x x
The abovementioned zone shall be subjected to
the following policies:
(a) Within the framework and subject to the
mandate and limitations of the Constitution and
the pertinent provisions of the Local Government
Code, the Subic Special Economic Zone shall
bedeveloped into a self-sustaining, industrial,
commercial, financial and investment center to
generate employment opportunities in and around
the zone and to attract and promote productive
foreign investments;
xxxx
(i) Except as herein provided, the local government
units comprising the Subic Special Economic Zone
shall retain their basic autonomy and identity. The
cities shall be governed by their respective
charters and the municipalities shall operate and
function in accordance with Republic Act No.
7160, otherwise known as the Local Government
Code of 1991. (Emphasis supplied)
This section sets out the basic policies underlying
the creation of the SSEZ. Indeed, as noted by the
appellate court, Section 12(i) expressly recognizes
the basic autonomy and identity of the
LGUscomprising the SSEZ. However, the clause
"[e]xcept as herein provided" unambiguously
provides that the LGUs do not retain their basic
autonomy and identitywhen it comes to matters
specified by the law as falling under the powers,
functions and prerogatives of the SBMA.
In the case at bar, we find that the power to
approve or disapprove projects within the SSEZ is
one such power over which the SBMA’s authority
prevails over the LGU’s autonomy. Hence, there
isno need for the SBMA to secure the approval of
the concerned sangguniansprior to the
implementation of the subject project.
This interpretation is based on the broad grant of
powers to the SBMA over all administrative
matters relating to the SSEZ under Section 13 of
RA 7227, as afore-discussed. Equally important,
under Section 14, other than those involving
defense and security, the SBMA’s decision prevails
in case of conflict between the SBMA and the LGUs
in all matters concerning the SSEZ, viz.:
Sec. 14. Relationship with the Conversion
Authority and the Local Government Units.
(a) The provisions of existing laws, rules
and regulations to the contrary
notwithstanding, the Subic Authority shall
exercise administrative powers, rule-
making and disbursement of funds over the
Subic Special Economic Zonein conformity
with the oversight function of the
Conversion Authority.
(b) In case of conflict between the Subic
Authority and the local government units
concerned on matters affecting the Subic
Special Economic Zone other than defense
and security, the decision of the Subic
Authority shall prevail. (Emphasis supplied)
Clearly, the subject project does not involve
defense or security, but rather business and
investment to further the development of the
SSEZ. Such is in line with the objective of RA 7227
to develop the SSEZ into a self-sustaining
industrial, commercial, financial and investment
center. Hence, the decision of the SBMA would
prevail over the apparent objections of the
concerned sanggunians of the LGUs.
Significantly, the legislative deliberations on RA
7227, likewise, support and confirm the foregoing
interpretation. As earlier noted, Section 13 b(4) of
RA 7227 provides:
Sec. 13. The Subic Bay Metropolitan Authority. –
xxxx
(b) Powers and functions of the Subic Bay
Metropolitan Authority - The Subic Bay
Metropolitan Authority, otherwise knownas the
Subic Authority, shall have the following powers
and function: x x x x
(4) To construct, acquire, own, lease, operate and
maintain on its own or through contract, franchise,
license permits bulk purchase from the private
sector and build-operate transfer scheme or joint-
venture the required utilities and infrastructure in
coordination with local government units and
appropriate government agencies concerned and
in conformity with existing applicable laws
therefor;
In the Senate, during the period of amendments,
when the provision which would eventually
become the afore-quoted Section 13 b(4) of RA
7227 was under consideration, the following
exchanges took place:
Senator Laurel. Mr. President.
The President. Senator Laurel is recognized.
Senator Laurel. Relative to line 27 up to line 31 of
page 16, regarding the provision to the effect that
the Authoritywill have the following functions: "to
construct, acquire, own, etcetera," that is all right.
My motion is that we amend this particular line,
starting from the word "structures", by deleting the
words that follow on line 31, which states: "in
coordination with local government unitsand", and
substitute the following in place of those words:
"SUBJECT TO THE APPROVAL OF THE
SANGGUNIAN OF THE AFFECTED LOCAL
GOVERNMENT UNITS AND IN COORDINATION
WITH."
So, this paragraph will read, as follows: "to
construct, own, lease, operate, and maintain on its
own or through contract, franchise, license
permits, bulk purchase from the private sector and
build-operate-transfer scheme or joint venture the
required utilities and infrastructure SUBJECT TO
THE APPROVAL OF THE SANGGUNIAN OF THE
AFFECTED LOCAL GOVERNMENT UNITS AND IN
coordination with appropriate government
agencies concerned and in conformity with
existing applicable laws therefor."
The President. What does the Sponsor say?
Senator Shahani. I believe this would cripple the
Authority. I would like to remind our Colleagues
that in the Board of Directors, the representatives
of the local government units that agree to join
with the Subic Special Economic Zone will be
members of the Board so that they will have a say,
Mr. President. But if we say "subject," that is a very
strong word. It really means that they will be the
ones to determine the policy.
So, I am afraid that I cannot accept this
amendment, Mr. President.
Senator Laurel. May I respond or react, Mr.
President.
The President. Yes.
Senator Laurel. The Constitution is there,very
categorical inthe promotion and encouragement
of local autonomy, and mandating Congress to
enact the necessary Local Government Code with
emphasis on local autonomy.
We have now Section 27 of the new Local
Government Code which actually provides that for
every projectin any local government territory, the
conformity or concurrence of the Sanggunian of
every such local government unit shall be secured
in the form of resolution—the consent of the
Sanggunian.
The President. Well, both sides have already been
heard. There is the Laurel amendment that would
make the power of the Subic Bay Metropolitan
Authority to construct, acquire, own, lease, operate
and maintain on its own or through contract,
franchise, license, permits, bulk purchases from
private sector, buildoperate-and-transfer scheme,
or joint venture, the required utilities and
infrastructure, subject to approval by the
appropriate Sanggunian of the local government
concerned.
This amendment to the amendment has been
rejected by the Sponsor. So, we are voting now on
this amendment.
As many as are in favor of the Laurel amendment,
say Aye. (Few Senators: Aye.)
Those who are against the said amendment, say
Nay. (Several Senators: Nay.)
Senator Laurel. Mr. President, may I ask for a
nominal voting.
The President. A nominal voting should beupon
the request of one-fifth of the Members of the
House, but we can accommodate the Gentleman
by asking for a division of the House. Therefore,
those in favor of the Laurel amendment, please
raise their right hands. (Few Senators raised their
right hands.)
Senator Laurel. I was asking, Mr. President, for a
nominal voting. The President. A nominal voting
can be had only upon motion ofone-fifth of the
Members of the Body. Senator Laurel. That is
correct, Mr. President. But this issuch an
important issue being presented to us, because
this question is related to the other important
issue, which is: May an elected public official of a
particular government unit, such as a town or
municipality, participate as a member of the Board
of Directors of this particular zone.
The President. The ruling of the Chair stands. The
division of the House is hereby directed.
As many as are infavor of the Laurel amendment,
please raised (sic) their right hands. (Few Senators
raised their right hands.)
As many as are against the said amendment,
please do likewise. (Several Senators raised their
right hands.)
The amendment is lost.226 (Emphasis supplied)
Indubitably, the legislature rejected the attempts
to engraft Section 27’s prior approval of the
concerned sanggunian requirement under the LGC
into RA 7227. Hence, the clear intent was to do
awaywith the approval requirement of the
concerned sangguniansrelative to the power ofthe
SBMA to approve or disapprove a project within
the SSEZ.
The power to create the SSEZ is expressly
recognized in Section 117 of the LGC, viz.:
TITLE VIII.
Autonomous Special Economic Zones
SECTION 117. Establishment of Autonomous
Special Economic Zones. — The establishment by
law of autonomous special economic zones in
selected areas of the country shall be subject to
concurrence by the local government units
included therein.
When the concerned sanggunians opted to join the
SSEZ, they were, thus, fully aware that this would
lead to some diminution of their local autonomy in
order to gain the benefits and privileges of being a
part of the SSEZ.
Further, the point of Senator Shahani that the
representation of the concerned LGUs in the Board
of Directors will compensate for the diminution of
their local autonomy and allow them to be
represented in the decision-making of the SBMA is
not lost on us. This is expressly provided for in
Section 13(c) of RA 7227, viz:
SECTION 13. The Subic Bay Metropolitan
Authority. —
xxxx
(c) Board of Directors. — The powers of the Subic
Authority shall be vested in and exercised by a
Board of Directors, hereinafter referred to as the
Board, which shall be composed of fifteen (15)
members, to wit:
(1) Representatives of the local government
units that concur to join the Subic Special
Economic Zone;
(2) Two (2) representatives from the
National Government;
(3) Five (5) representatives from the private
sector coming from the present naval
stations, public works center, ship repair
facility, naval supply depot and naval air
station; and
(4) The remaining balance to complete the
Board shall be composed of representatives
from the business and investment sectors.
(Emphasis supplied)
SBMA’s undisputed claim is that, during the board
meeting when the subject project was approved,
exceptfor one, all the representatives of the
concerned LGUs were present and voted to
approve the subject project.227 Verily, the wisdom
of the law creating the SSEZ; the wisdom of the
choice of the concerned LGUs to join the SSEZ; and
the wisdom ofthe mechanism of representation of
the concerned LGUs in the decision-making
process of the SBMA are matters outside the
scope of the power of judicial review. We can only
interpret and apply the law as we find it.
In sum, we find that the implementation of the
project is not subject to the prior approval of the
concerned sanggunians, under Section 27 of the
LGC, and the SBMA’s decision to approve the
project prevails over the apparent objections of the
concerned sangguniansof the LGUs, by virtue
ofthe clear provisions of RA 7227. Thus, there was
no infirmity when the LDA was entered into
between SBMA and RP Energy despite the lack of
approval of the concerned sanggunians. VII.
Whether the validity of the third amendment to the
ECC can be resolved by the Court.
The Casiño Group argues that the validity of the
third amendment should have been resolved by
the appellate court because it is covered by the
broad issues set during the preliminary
conference.
RP Energy counters that this issue cannot be
resolved because it was expressly excluded during
the preliminary conference.
The appellate court sustained the position of RP
Energy and ruled that this issue was not included
in the preliminary conference so that it cannot be
resolved without violating the right todue process
of RP Energy.
We agree with the appellate court.
Indeed, the issue of the validity of the third
amendment to the ECC was not part of the issues
set during the preliminary conference, as it
appears at that time that the application for the
third amendment was still ongoing. The following
clarificatory questions during the aforesaid
conference confirm this, viz.:
J. LEAGOGO:
So what are you questioning in your Petition?
ATTY. RIDON:
We are questioning the validity of the amendment,
Your Honor.
J. LEAGOGO:
Which amendment?
ATTY. RIDON:
From 2 x 150 to 1 x 300, Your Honor.
J. LEAGOGO:
Your Petition does not involve the 2 x 300 which is
still pending with the DENR. Because you still have
remedies there, you can make your noise there,
you can question it to your heart[’]s content
because it is still pending
xxxx
J. LEAGOGO:
Atty. Ridon, I go back to my question. We’re not yet
talking of the legal points here. I’m just talking of
what are you questioning. You are questioning the
1 x 300?
ATTY. RIDON:
Yes, Your Honor.
J. LEAGOGO:
Because it was 2 x 150 and then 1 x 300?
ATTY. RIDON:
Yes, Your Honor.
J. LEAGOGO:
Up to that point?
ATTY. RIDON:
Yes, Your Honor.
J. LEAGOGO:
Because there is no amended ECC yet for the 2 x
300 or 600. That’s clear enough for all of us.
ATTY. RIDON:
Yes, Your Honor.228
Given the invocation of the right to due process by
RP Energy, we must sustain the appellate court’s
finding that the issue as to the validity of the third
amendment cannot be adjudicated in this case.
Refutation of the Partial Dissent.
Justice Leonen partially dissents from the
foregoing disposition on the following grounds:
(a) Environmental cases, such asa petition
for a writ of kalikasan, should not, in
general,be litigated viaa representative,
citizen or class suit because of the danger of
misrepresenting the interests— and thus,
barring future action due to res judicata— of
those not actually present in the prosecution
of the case, either because they do not yet
exist, like the unborn generations, or
because the parties bringing suit do not
accurately represent the interests ofthe
group they represent or the class to which
they belong. As an exception, such
representative, citizen or class suit may be
allowed subject to certain conditions; and
(b) The amendments to the ECC, granted by
the DENR in favor of RP Energy, are void for
failure to submit a new EIS in support of the
applications for these amendments to the
subject ECC, and a petition for writ of
kalikasanis not the proper remedy to raise a
defect inthe ECC.
We disagree.
A.
Justice Leonen’s proposition that environmental
cases should not, in general, be litigated via a
representative, citizen or class suit is both novel
and ground-breaking. However, it isinappropriate
to resolve such an important issue in this case, in
view of the requisites for the exercise of our power
of judicial review, because the matter was not
raised by the parties so that the issue was not
squarely tackled and fully ventilated. The
proposition will entail, as Justice Leonen explains,
an abandonment or, at least, a modification of our
ruling in the landmark case of Oposa v.
Factoran.229 It will also require an amendment or a
modification of Section 5 (on citizen suits), Rule 2
ofthe Rules of Procedure for Environmental Cases.
Hence, it is more appropriate to await a case where
such issues and arguments are properly raisedby
the parties for the consideration of the Court.
B.
Justice Leonen reasons that the amendments to
the subject ECC are void because the applications
therefor were unsupported by anEIS, as required
by PD 1151 and PD 1586. The claim is made that
an EIS is required by law, even if the amendment
to the ECC is minor, because an EIS is necessary
to determine the environmental impact of the
proposed modifications to the original project
design. The DENR rules, therefore, which permit
the modification of the original project design
without the requisite EIS, are void for violating PD
1151 and PD 1586.
We disagree.
Indeed, Section 4 of PD 1151 sets out the basic
policy of requiring an EIS in every action, project or
undertaking that significantly affects the quality of
the environment, viz:
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, projector
undertaking which significantly affects the quality
of the environmenta 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 nonrenewable resources, a
finding must be made that such use and
commitment are warranted.
Before an environmental impact statement is
issued by a lead agency, all agencies having
jurisdiction over, or special expertise on, the
subject matter involved shall comment on the
draft environmental impact statement made by the
lead agency within thirty (30) days from receipt of
the same. (Emphasis supplied)
As earlier stated, the EIS was subsequently
developed and strengthened through PD 1586
which established the Philippine Environmental
Impact Statement System. Sections 4 and 5 of PD
1586 provide:
SECTION 4. Presidential Proclamation of
Environmentally Critical Areas and
Projects.1avvphi1 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 re-alignment of
government personnel, and their specific
functions and responsibilities.
For the same purpose as above, the Ministry of
Human Settlements shall: (a) prepare the proper
land or water use pattern for said critical project(s)
or area(s); (b) establish ambient environmental
quality standards; (c) develop a program of
environmental enhancement or protective
measures against calamituous factors such as
earthquake, floods, water erosion and others, and
(d) perform such other functions as may be
directed by the President from time to time.
SECTION 5. 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. (Emphasis supplied)
These laws were, in turn, implemented by DAO
2003-30 and the Revised Manual.
As correctly noted by Justice Leonen,Presidential
Proclamation No. 2146 was subsequently issued
which, among others, classified fossil-fueled
power plants as environmentally critical projects.
In conformity with the above-quoted laws and
their implementing issuances, the subject project,
a coal power plant, was classified by the DENR as
an environmentally critical project, new and single.
Hence, RP Energy was required to submit an EIS in
support of its application for an ECC. RP Energy
thereafter complied with the EIS requirement and
the DENR, after review, evaluation and compliance
with the other steps provided in its rules, issued an
ECC in favor of RP Energy. As can be seen, the EIS
requirement was duly complied with.
Anent Justice Leonen’s argument thatthe
subsequent amendments to the ECC were void for
failure to prepare and submit a new EIS relative to
these amendments, it is important to note thatPD
1586 does not state the procedure to be followed
when there is an application for an amendment to
a previously issued ECC. There is nothing in PD
1586 which expressly requires an EIS for an
amendment to an ECC.
In footnote 174 of the ponencia, it is stated:
Parenthetically, we must mention that the validity
of the rules providing for amendments to the ECC
was challenged by the Casiño Group on the ground
that it is ultra vires before the appellate court. It
argued that the laws governing the ECC do not
expressly permit the amendment of an ECC.
However, the appellate court correctly ruled that
the validity of the rules cannot be collaterally
attacked. Besides,the power of the DENR to issue
rules on amendments of an ECC is sanctioned
under the doctrine of necessary implication.
Considering that the greater power todeny or grant
an ECC is vested by law in the President or his
authorized representative, the DENR, there is no
obstacle to the exercise of the lesser or implied
power to amend the ECC for justifiable reasons.
This issue was no longer raised before this Court
and, thus, we no longertackle the same here.
Because PD 1586 did not expressly provide the
procedure to be followed in case of an application
for an amendment toa previously issued ECC, the
DENR exercised its discretion, pursuant to its
delegated authority to implement this law, in
issuing DAO 2003-30 and the Revised Manual.
Justice Leonen’s argument effectively challenges
the validity of the provisions in DAO 2003-30 and
the Revised Manual relative to amendments to an
ECC for being contrary to PD 1151 and 1586.
We disagree.
First, to repeat, there is nothing in PD 1586 which
expressly requires an EIS for an amendment to an
ECC.
Second, as earlier noted, the proposition would
constitute a collateral attack on the validity of DAO
2003-30 and the Revised Manual, which is not
allowed under the premises. The Casiño Group
itself has abandoned this claim before this Court
so that the issue is not properly before this Court
for its resolution.
Third, assuming that a collateral attack on the
validity of DAO 2003-30 and the Revised Manual
can be allowed in this case, the rules on
amendments appear to be reasonable, absent a
showing of grave abuse of discretion or patent
illegality.
Essentially, the rules take into consideration the
nature of the amendment in determining the
proper Environmental Impact Assessment (EIA)
document type that the project proponent will
submit in support of its application for an
amendment to its previously issued ECC. A minor
amendment will require a less detailed EIA
document type, like a Project Description Report
(PDR), while a major amendment will require a
more detailed EIA document type, like an
Environmental Performance Report and
Management Plan (EPRMP) or even an EIS.230
The rules appear to be based on the premise that
it would be unduly burden some or impractical to
require a project proponent to submit a detailed
EIA document type, like an EIS, for amendments
that, upon preliminary evaluation by the DENR, will
not cause significant environmental impact. In
particular, as applied to the subject project, the
DENR effectively determined that it is impractical
to requireRP Energy to, in a manner of speaking,
start from scratch by submitting a new EIS in
support of its application for the first amendment
to its previously issued ECC, considering that the
existing EIS may be supplemented by an EPRMP to
adequately evaluate the environmental impact of
the proposed modifications under the first
amendment. The same reasoning may be applied
to the PDR relative to the second amendment. As
previously discussed, the Casiño Group failed to
provethat the EPRMP and PDR were inadequate to
assess the environmental impact of the planned
modifications under the first and second
amendments, respectively. On the contrary, the
EPRMP and PDR appeared to contain the details of
the planned modifications and the corresponding
adjustments to bemade in the environmental
management plan or mitigating measures inorder
to address the potential impacts of these planned
modifications. Hence, absent sufficient proof,
there is no basis to conclude that the procedure
adopted by the DENR was done with grave abuse
of discretion.
Justice Leonen’s proposition would effectively
impose a stringent requirement of an EIS for each
and every proposed amendment to an ECC, no
matter how minor the amendment may be. While
this requirement would seem ideal, in order to
ensure that the environmental impact of the
proposed amendment is fully taken into
consideration, the pertinent laws do not, however,
expressly require that such a procedure be
followed.As already discussed, the DENR appear
to have reasonably issued DAO 2003-30 and the
Revised Manualrelative to the amendment process
of an ECC, by balancing practicality vis-à-vis the
need for sufficient information in determining the
environmental impact of the proposed amendment
to an ECC. In fine, the Court cannot invalidate the
rules which appear to be reasonable, absent a
showing of grave abuse of discretion or patent
illegality.
We next tackle Justice Leonen’s argument that a
petition for certiorari,and not a writ of kalikasan,is
the proper remedy to question a defect in an ECC.
In general, the proper procedure to question a
defectin an ECC is to follow the appeal process
provided in DAO 2003-30 and the Revised Manual.
After complying with the proper administrative
appeal process, recourse may be made to the
courts in accordance with the doctrine of
exhaustion of administrative remedies. However,
as earlier discussed, in exceptional cases, a writ of
kalikasan may be availed of to challenge defects in
the ECC providedthat (1) the defects are causally
linked or reasonably connected to an
environmental damage of the nature and
magnitudecontemplated under the Rules on Writ
of Kalikasan, and (2) the case does not violate, or
falls under an exception to, the doctrine of
exhaustion of administrative remedies and/or
primary jurisdiction.
As previously discussed, in the case at bar, only
the allegation with respect to the lack of an EIA
relative to the first and second amendments to the
subject ECC may be reasonably connected to such
an environmental damage. Further, given the
extreme urgency of resolving the issue due to the
looming power crisis, this case may be considered
as falling under an exception to the doctrine of
exhaustion of administrative remedies. Thus, the
aforesaid issue may be conceivably resolved in a
writ of kalikasan case.
More importantly, we have expressly ruled that this
case is an exceptional case due to the looming
power crisis, so that the rules of procedure may be
suspended in order to address issues which,
ordinarily, the Court would not consider proper in
a writ of kalikasan case. Hence, all issues,
including those not proper in a writ of kalikasan
case, were resolved here in order to forestall
another round of protracted litigation relative to
the implementation of the subject project.
Conclusion
We now summarize our findings:
1. The appellate court correctly ruled that the
Casiño Group failed to substantiate its
claims thatthe construction and operation of
the power plant will cause environmental
damage of the magnitude contemplated
under the writ of kalikasan. On the other
hand, RP Energy presented evidenceto
establish that the subject project will not
cause grave environmental damage, through
its Environmental Management Plan, which
will ensure thatthe project will operate within
the limits of existing environmental laws and
standards;
2. The appellate court erred when it
invalidated the ECC on the ground of lack of
signature of Mr. Aboitiz in the ECC’s
Statement of Accountability relative to the
copy of the ECC submitted by RP Energy to
the appellate court. While the signature is
necessary for the validity of the ECC, the
particular circumstances of this case show
that the DENR and RP Energy were not
properly apprised of the issue of lack of
signature in order for them to present
controverting evidence and arguments on
this point, as the issue only arose during the
course of the proceedings upon clarificatory
questions from the appellate court.
Consequently, RP Energy cannot be faulted
for submitting the certified true copy of the
ECC only after it learned that the ECC had
been invalidatedon the ground of lack of
signature in the January 30, 2013 Decision
of the appellate court. The certified true copy
of the ECC, bearing the signature of Mr.
Aboitiz in the Statement of Accountability
portion, was issued by the DENR-EMB, and
remains uncontroverted. It showed that the
Statement of Accountability was signed by
Mr. Aboitiz on December 24, 2008. Because
the signing was done after the official
release of the ECC on December 22, 2008,
wenote that the DENR did not strictly follow
its rules, which require that the signing of the
Statement of Accountability should be done
before the official release of the ECC.
However, considering that the issue was not
adequately argued norwas evidence
presented before the appellate court on the
circumstances at the time of signing, there is
insufficient basis to conclude that the
procedure adoptedby the DENR was tainted
with bad faith or inexcusable negligence. We
remind the DENR, however, to be more
circumspect in following its rules. Thus, we
rule that the signature requirement was
substantially complied with pro hac vice.
3. The appellate court erred when it ruled
that the first and second amendments to the
ECC were invalid for failure to comply with a
new EIA and for violating DAO 2003-30 and
the Revised Manual. It failed to properly
consider the applicable provisions in DAO
2003-30 and the Revised Manual for
amendment to ECCs. Our own examination
of the provisions on amendments to ECCs in
DAO 2003-30 and the Revised Manual, as
wellas the EPRMP and PDR themselves,
shows that the DENR reasonably exercised
its discretion in requiring an EPRMP and a
PDR for the first and second amendments,
respectively. Through these documents,
which the DENR reviewed, a new EIA was
conducted relative to the proposed project
modifications. Hence, absent sufficient
showing of grave abuse of discretion or
patent illegality, relative to both the
procedure and substance of the amendment
process, we uphold the validity of these
amendments;
4. The appellate court erred when it
invalidated the ECC for failure to comply with
Section 59 of the IPRA Law.1âwphi1 The
ECC is not the license or permit
contemplated under Section 59 of the IPRA
Law and its implementing rules. Hence, there
is no necessity to secure the CNO under
Section 59 before an ECC may be issued, and
the issuance of the subject ECC without first
securing the aforesaid certification does not
render it invalid;
5. The appellate court erred when it
invalidated the LDA between SBMA and RP
Energy for failure to comply withSection 59
of the IPRA Law. While we find that a CNO
should have been secured prior to the
consummation of the LDA between SBMA
and RP Energy, considering that this is the
first time we lay down the rule of action
appropriate to the application of Section 59,
we refrain from invalidating the LDA for
reasons of equity;
6. The appellate court erred when it ruled
that compliance with Section 27, in relation
to Section 26, of the LGC (i.e., approval of the
concerned sanggunian requirement) is
necessary prior to issuance of the
subjectECC. The issuance of an ECC does
not, by itself, result inthe implementation of
the project. Hence, there is no necessity to
secure prior compliance with the approval of
the concerned sanggunian requirement, and
the issuance of the subject ECC without first
complying with the aforesaid requirement
does not render it invalid. The appellate
court also erred when it ruled that
compliance with the aforesaid requirement
is necessary prior to the consummation of
the LDA. By virtue of the clear provisions of
RA 7227, the project is not subject to the
aforesaid requirement and the SBMA’s
decision to approve the project prevails over
the apparent objections of the concerned
sanggunians. Thus, the LDA entered into
between SBMA and RP Energy suffers from
no infirmity despite the lack of approval of
the concerned sanggunians; and
7. The appellate court correctly ruled thatthe
issue as to the validity of the third
amendment to the ECC cannot be resolved in
this case because it was not one of the
issues set during the preliminary conference,
and would, thus, violate RP Energy’s right to
due process. WHEREFORE, the Court
resolves to:
1. DENY the Petition in G.R. No.
207282; and
2. GRANT the Petitions in G.R.Nos.
207257, 207366 and 207276:
2.1. The January 30, 2013
Decision and May 22, 2013
Resolution of the Court of
Appeals in CA-G.R. SP No.
00015 are reversed and set
aside;
2.2. The Petition for Writ of
Kalikasan, docketed as CA-G.R.
SP No. 00015, is denied for
insufficiency of evidence;
2.3. The validity of the December
22, 2008 Environmental
Compliance Certificate, as well
as the July 8, 2010 first
amendment and the May 26,
2011 second amendment
thereto, issued by the
Department of Environment and
Natural Resources in favor of
Redondo Peninsula Energy, Inc.,
are upheld; and
2.4. The validity of the June 8,
2010 Lease and Development
Agreement between Subic Bay
Metropolitan Authority and
Redondo Peninsula Energy, Inc.
is upheld.
SO ORDERED.
FIRST DIVISION
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
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.
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:
Deciding Authority Where to file the
appeal
EMB Regional Office Office of the EMB
Director Director
EMB Central Office Office of the DENR
Director Secretary
DENR Secretary Office of the President
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
c. Petroleum and petro-chemical
industries including oil and gas
d. Smelting plants
II. Resource Extractive Industries
a. Major mining and quarrying projects
b. Forestry projects
1. Logging
2. Major wood processing
projects
3. Introduction of fauna (exotic-
animals) in public/private forests
4. Forest occupancy
5. Extraction of mangrove
products
6. Grazing
c. Fishery Projects
1. Dikes for fishpond
development projects
III. Infrastructure Projects
a. Major dams
b. Major power plants (fossil-fueled,
nuclear fueled, hydroelectric or
geothermal)
c. Major reclamation projects
d. Major roads and bridges.
B. Environmentally Critical Areas
1. All areas declared by law as national
parks, watershed reserves, wildlife preserves
and sanctuaries;
2. Areas set aside as aesthetic potential
tourist spots;
 3. Areas which constitute the habitat for any
endangered or threatened species of
indigenous Philippine Wildlife (flora and
fauna);
4. Areas of unique historic, archaeological,
or scientific interests;
5. Areas which are traditionally occupied by
cultural communities or tribes;
6. Areas frequently visited and/or hard-hit by
natural calamities (geologic hazards, floods,
typhoons, volcanic activity, etc.);
7. Areas with critical slopes;
8. Areas classified as prime agricultural
lands;
9. Recharged areas of aquifers;
10. Water bodies characterized by one or any
combination of the following conditions;
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 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.
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.
The antecedent facts of the case are as follows:
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:
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:
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.
SO ORDERED. 3
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.
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; . . .
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
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. 16
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:
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), and
not within a declared watershed area; and
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
from a fault zone.
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 Appeals is premised on the supposed absence
of evidence but is contradicted by the evidence 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.
19 None of these exceptions, however, obtain in
this case.
The Environmental Impact Statement System,
which ensures environmental protection and
regulates certain government activities affecting
the environment, was established by Presidential
Decree No. 1586. Section 2 thereof states:
There is hereby established an Environmental
Impact Statement System founded and based on
the environmental impact statement required
under Section 4 of Presidential Decree No. 1151,
of all agencies and instrumentalities of the
national government, including government-
owned or controlled corporations, as well as
private corporations, firms and entities, for every
proposed project and undertaking which
significantly affect the quality of the environment.
Section 4 of PD 1151, on the other hand, provides:
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 nonrenewable resources, a finding
must be made that such use and commitment are
warranted.
Before an environmental impact statement is
issued by a lead agency, all agencies having
jurisdiction over, or special expertise on, the
subject matter involved shall comment on the
draft environmental impact statement made by the
lead agency within thirty (30) days from receipt of
the same.
Under Article II, Section 1, of the Rules and
Regulations Implementing PD 1586, the
declaration of certain projects or areas as
environmentally critical, and which shall fall within
the scope of the Environmental Impact Statement
System, shall be by Presidential Proclamation, in
accordance with Section 4 of PD 1586 quoted
above.
Pursuant thereto, Proclamation No. 2146 was
issued on December 14, 1981, proclaiming the
following areas and types of projects as
environmentally critical and within the scope of
the Environmental Impact Statement System
established under PD 1586:
A. Environmentally Critical Projects
I. Heavy Industries
a. Non-ferrous metal industries
b. Iron and steel mills
c. Petroleum and petro-chemical industries
including oil and gas
d. Smelting plants
II. Resource Extractive Industries
a. Major mining and quarrying projects
b. Forestry projects
1. Logging
2. Major wood processing projects
3. Introduction of fauna (exotic-animals)
in public/private forests
4. Forest occupancy
5. Extraction of mangrove products
6. Grazing
c. Fishery Projects
1. Dikes for/and fishpond development
projects
III. Infrastructure Projects
a. Major dams
b. Major power plants (fossil-fueled, nuclear
fueled, hydroelectric or geothermal)
c. Major reclamation projects
d. Major roads and bridges
B. Environmentally Critical Areas
1. All areas declared by law as national parks,
watershed reserves, wildlife preserves and
sanctuaries;
2. Areas set aside as aesthetic potential tourist
spots;
3. Areas which constitute the habitat for any
endangered or threatened species of
indigenous Philippine Wildlife (flora and
fauna);
4. Areas of unique historic, archaeological, or
scientific interests;
5. Areas which are traditionally occupied by
cultural communities or tribes;
6. Areas frequently visited and/or hard-hit by
natural calamities (geologic hazards, floods,
typhoons, volcanic activity, etc.);
7. Areas with critical slopes;
8. Areas classified as prime agricultural lands;
9. Recharged areas of aquifers;
10. Water bodies characterized by one or any
combination of the following conditions;
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.
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.
SECOND DIVISION
G.R. No. 145972 March 23, 2004
IGNACIA BALICAS, petitioner,
vs.
FACT-FINDING & INTELLIGENCE BUREAU (FFIB),
OFFICE OF THE OMBUDSMAN, respondents.
DECISION
QUISUMBING, J.:
This petition for review on certiorari assails the
Court of Appeals’ decision1 dated August 25, 2000
and resolution2 of November 13, 2000 in CA-G.R.
SP No. 56386, which affirmed the Ombudsman’s
decision3 dismissing petitioner from government
service for gross neglect of duty in connection with
the tragedy at the Cherry Hills Subdivision in
Antipolo City on August 3, 1999.
The antecedent facts as summarized in the
Ombudsman’s decision are as follows:
Based on the evidence adduced by the
complainant, the following is the
chronological series of events which led to
the development of the CHS (Cherry Hills
Subdivision):
August 28, 1990 – Philjas Corporation,
whose primary purposes, among others are:
to own, develop, subdivide, market and
provide low-cost housing for the poor, was
registered with the Securities and Exchange
Commission (SEC).
February 19, 1991 – then City Mayor Daniel
S. Garcia, endorsed to the Housing and Land
Use Regulatory Board (HLURB) the proposed
CHS.
Thereafter, or on 07 March 1991, based on
the favorable recommendations of Mayor
Garcia, respondent TAN, issued the
Preliminary Approval and Locational
Clearance (PALC) for the development of
CHS.
On July 5, 1991, then HLURB Commissioner
respondent TUNGPALAN issued
Development Permit No. 91-0216 for "land
development only" for the entire land area of
12.1034 hectares covered by TCT No. 35083
(now TCT 208837) and with 1,003 saleable
lots/units with project classification B.P.
220 Model A-Socialized Housing (p. 96,
Records), with several conditions for its
development.
Three (3) days thereafter or on July 8, 1991,
respondent JASARENO, allowed/granted the
leveling/earth-moving operations of the
development project of the area subject to
certain conditions.
On November 18, 1991, then HLURB
Commissioner AMADO B. DELORIA issued
Certificate of Registration No. 91-11-0576
in favor of CHS, with License to Sell No. 91-
11-0592 for the 1,007 lots/units in the
subdivision.
Eventually, on December 10, 1991,
respondent POLLISCO issued Small Scale
Mining Permit (SSMP) No. IV-316 to Philjas
to extract and remove 10,000 cu. meters of
filling materials from the area where the CHS
is located.
Thereafter, or on January 12, 1994, Philjas
applied for a Small Scale Mining Permit
(SSMP) under P.D. 1899 with the Rizal
Provincial Government to extract and
remove 50,000 metric tons of filling
materials per annum on CHS’ 2.8 hectares.
Thus, on January 17, 1994, respondent
MAGNO, informed ELIEZER I. RODRIGUEZ of
Philjas that CHS is within the EIS System and
as such must secure ECC from the DENR.
Philjas was accordingly informed of the
 matter such that it applied for the issuance
of ECC from the DENR-Region IV, on
February 3, 1994.
On March 12, 1994, an Inspection Report
allegedly prepared by respondent BALICAS,
attested by respondent RUTAQUIO and
approved by respondent TOLENTINO re: field
evaluation to the issuance of ECC, was
submitted.
Consequently, on April 28, 1994, upon
recommendations of respondent
TOLENTINO, Philjas’ application for ECC was
approved by respondent PRINCIPE, then
Regional Executive Director, DENR under
ECC-137-R1-212-94.
A Mining Field Report for SSMP dated May
10, 1994 was submitted pursuant to the
inspection report prepared by respondents
CAYETANO, FELICIANO, HILADO and
BURGOS, based on their inspection
conducted on April 25 to 29, 1994. The
report recommended, among others, that the
proposed extraction of materials would pose
no adverse effect to the environment.
Records further disclosed that on August 10,
1994, respondent BALICAS monitored the
implementation of the CHS Project
Development to check compliance with the
terms and conditions in the ECC. Again, on
August 23, 1995, she conducted another
monitoring on the project for the same
purpose. In both instances, she noted that
the project was still in the construction stage
hence, compliance with the stipulated
conditions could not be fully assessed, and
therefore, a follow-up monitoring is proper.
It appeared from the records that this August
23, 1995 monitoring inspection was the last
one conducted by the DENR.
On September 24, 1994, GOV. CASIMIRO I.
YNARES, JR., approved the SSMP applied for
by Philjas under SSMP No. RZL-012,
allowing Philjas to extract and remove
50,000 metric tons of filling materials from
the area for a period of two (2) years from
date of its issue until September 6, 1996.4
Immediately after the tragic incident on August 3,
1999, a fact-finding investigation was conducted
by the Office of the Ombudsman through its Fact-
Finding and Intelligence Bureau (FFIB), which duly
filed an administrative complaint with the Office of
the Ombudsman against several officials of the
Housing and Land Use Regulatory Board (HLURB),
Department of Environment and Natural
Resources (DENR), and the local government of
Antipolo.
The charge against petitioner involved a supposed
failure on her part to monitor and inspect the
development of Cherry Hills Subdivision, which
was assumed to be her duty as DENR senior
environmental management specialist assigned in
the province of Rizal.
For her part, petitioner belied allegations that
monitoring was not conducted, claiming that she
monitored the development of Cherry Hills
Subdivision as evidenced by three (3) monitoring
reports dated March 12, 1994, August 10, 1994
and August 23, 1995. She averred that she also
conducted subsequent compliance monitoring of
the terms and conditions of Philjas’ Environmental
Compliance Certificate (ECC) on May 19, 1997 and
noted no violation thereon. She further claimed
good faith and exercise of due diligence, insisting
that the tragedy was a fortuitous event. She
reasoned that the collapse did not occur in Cherry
Hills, but in the adjacent mountain eastern side of
the subdivision.
On November 15, 1999, the Office of the
Ombudsman rendered a decision imposing upon
petitioner the supreme penalty of dismissal from
office for gross neglect of duty finding:
RESPONDENT BALICAS
Records show that she monitored and
inspected the CHS [Cherry Hills Subdivision]
only thrice (3), to wit:
1. Inspection Report dated 12 March
1994
2. Monitoring Report dated 10 August
1994
3. Monitoring Report dated 23 August
1995
Verily, with this scant frequency, how can
respondent Balicas sweepingly claim that
there was no violation of ECC compliance
and that she had done what is necessary in
accordance with the regular performance of
her duties. She herself recognized the fact
that the "collapsed area is not the
subdivision in question but the adjacent
mountain eastern side of the CHS." It is
incumbent upon her to establish the same in
her monitoring and inspection reports and
make objective recommendations re: its
possible adverse effect to the environment
and to the residents of the CHS and nearby
areas. Her defense that the position of the
CHS shows the impossibility of checking the
would-be adverse effect clearly established
 her incompetence. No expert mind is needed
to know that mountains cause landslide and
erosion. Cherry Hills Subdivision is a living
witness to this.5
Petitioner seasonably filed a petition for review of
the Ombudsman’s decision with the Court of
Appeals. In its decision dated August 25, 2000, the
Court of Appeals dismissed the petition for lack of
merit and affirmed the appealed decision. It found
that the landslide was a preventable occurrence
and that petitioner was guilty of gross negligence
in failing to closely monitor Philjas’ compliance
with the conditions of the ECC given the known
inherent instability of the ground where the
subdivision was developed. The appellate court
likewise denied petitioner’s motion for
reconsideration in its resolution dated November
13, 2000.
Petitioner now comes to this Court for review
on certiorari, under Rule 45 of the Rules of Civil
Procedure, of the appellate court’s decision. She
alleges that the Court of Appeals committed
serious errors of law in affirming the
Ombudsman’s conclusion that:
1. There was gross negligence on the part of
petitioner Balicas in the performance of her
official duties as Senior Environmental
Management Specialist (SEMS) of the
Provincial Environment and Natural
Resources Office (PENRO) Province of Rizal,
DENR Region IV; and the alleged gross
neglect of duty of petitioner warranted the
imposition of the extreme penalty of
dismissal from the service.
2. The landslide which caused the death of
several residents of the subdivision and the
destruction of property is not a fortuitous
event and therefore preventible.6
The main issues are whether or not the Court of
Appeals committed serious errors of law in: (1)
holding petitioner guilty of gross neglect of duty
and (2) imposing upon her the extreme penalty of
dismissal from office.
In order to ascertain if there had been gross
neglect of duty, we have to look at the lawfully
prescribed duties of petitioner. Unfortunately,
DENR regulations are silent on the specific duties
of a senior environmental management specialist.
Internal regulations merely speak of the functions
of the Provincial Environment and Natural
Resources Office (PENRO) to which petitioner
directly reports.
Nonetheless, petitioner relies on a letter7 dated
December 13, 1999 from the chief of personnel,
DENR Region IV, which defines the duties of a
senior environmental management specialist as
follows:
1. Conducts investigation of pollution
sources or complaints;
2. Review[s] plans and specifications of
proposes (sic) or existing treatment plants
and pollution abatement structures and
devices to determine their efficiency and
suitability for the kind of pollutants to be
removed and to recommend issuance or
denial of permits;
3. Conducts follow-up inspection of
construction of pollution abatement/work
and structures to oversee compliance with
approved plans and specifications;
4. Recommends remedial measures for the
prevention, abatement and control of
pollution;
5. Prepares technical reports on pollution
investigation and related activities; and
6. Performs related work as assigned.
It is readily apparent that no monitoring duty
whatsoever is mentioned in the said letter. The
PENRO, on the other hand, is mandated to:
1. conduct surveillance and inspection of
pollution sources and control facilities and
undertake/initiate measures relative to
pollution-related complaints of the general
public for appropriate referral to the regional
office;
2. comment on the project description,
determine if the project fall within the
Environmental Impact Statement (EIS)
System8 and submit the same to the regional
office; and
3. implement programs and projects related
to environmental management within the
PENRO.9
In addition, the PENRO is likewise tasked to
monitor the project proponent’s compliance with
the conditions stipulated in the ECC, with support
from the DENR regional office and the
Environmental Management Bureau.10 The primary
purpose of compliance monitoring is to ensure the
judicious implementation of sound and standard
environmental quality during the development
stage of a particular project. Specifically, it aims
to:
1. monitor project compliance with the
conditions set in the ECC;
2. monitor compliance with the
Environmental Management Plan (EMP) and
applicable laws, rules and regulations; and
 3. provide a basis for timely decision-making
and effective planning and management of
environmental measures through the
monitoring of actual project impacts vis-à-
vis predicted impacts in the EIS.11
Based on the foregoing, the monitoring duties of
the PENRO mainly deal with broad environmental
concerns, particularly pollution abatement. This
general monitoring duty is applicable to all types
of physical developments that may adversely
impact on the environment, whether housing
projects, industrial sites, recreational facilities, or
scientific undertakings.
However, a more specific monitoring duty is
imposed on the HLURB as the sole regulatory body
for housing and land development. It is mandated
to encourage greater private sector participation in
low-cost housing through (1) liberalization of
development standards, (2) simplification of
regulations and (3) decentralization of approvals
for permits and licenses.12
P.D. No. 158613 prescribes the following duties on
the HLURB (then Ministry of Human Settlements)
in connection with environmentally critical
projects requiring an ECC:
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 Environment 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 re-alignment of government personnel,
and their specific functions and
responsibilities.
For the same purpose as above, the Ministry
of Human Settlements [now HLURB] shall:
(a) prepare the proper land or water use
pattern for said critical project(s) or area(s);
(b) establish ambient environmental quality
standards; (c) develop a program of
environmental enhancement or protective
measures against calamitous factors such
as earthquake, floods, water erosion and
others; and (d) perform such other functions
as may be directed by the President from
time to time. (Emphasis ours.)
The legal duty to monitor housing projects, like the
Cherry Hills Subdivision, against calamities such
as landslides due to continuous rain, is clearly
placed on the HLURB, not on the petitioner as
PENRO senior environmental management
specialist. In fact, the law imposes no clear and
direct duty on petitioner to perform such narrowly
defined monitoring function.
In the related case of Principe v. Fact-Finding and
Intelligence Bureau,14 this Court found Antonio
Principe, regional executive director for DENR
Region IV who approved Philjas’ application for
ECC, not liable for gross neglect of duty. The Court
reversed the decision of the Court of Appeals and
thereby annulled the decision of the Ombudsman
in OMB-ADM-09-661, dated December 1, 1999,
dismissing Principe from the government service.
We ordered his reinstatement with back pay and
without loss of seniority.15
The rationale for our decision in Principe bears
reiteration: the responsibility of monitoring
housing and land development projects is not
lodged with the DENR, but with the HLURB as the
sole regulatory body for housing and land
development. Thus, we must stress that we find no
legal basis to hold petitioner, who is an officer of
DENR, liable for gross neglect of the duty
pertaining to another agency, the HLURB. It was
grave error for the appellate court to sustain the
Ombudsman’s ruling that she should be dismissed
from the service. The reinstatement of petitioner is
clearly called for.
WHEREFORE, the petition is hereby GRANTED. The
Court of Appeals’ decision affirming the
Ombudsman’s dismissal of petitioner IGNACIA
BALICAS from office is REVERSED and SET ASIDE,
and petitioner’s REINSTATEMENT to her position
with back pay and without loss of seniority rights
is hereby ordered. SO ORDERED.
EN BANC
G.R. No. 145973 January 23, 2002
ANTONIO G. PRINCIPE, petitioner,
vs.
FACT-FINDING & INTELLIGENCE, BUREAU (FFIB),
OFFICE OF THE OMBUDSMAN, respondents.
PARDO, J.:
The Case
The case is a petition for review on certiorari
seeking to reverse the decision of the Court of
Appeals1 affirming the Ombudsman’s dismissal of
petitioner from the government service for gross
neglect of duty in connection with the collapse of
the housing project at the Cherry Hills Subdivision,
Antipolo City, on August 3, 1999.
The Facts
The facts, as found by the Court of Appeals, are as
follows:
"August 28, 1990- Philjas Corporation,
whose primary purposes, among others are:
to own, develop, subdivide, market and
provide low-cost housing for the poor, was
registered with the Securities and Exchange
Commission (SEC).
"February 19, 1991 - then City Mayor Daniel
S. Garcia, endorsed to the Housing and Land
Use Regulatory Board (HLURB) the proposed
CHS.
"Thereafter, or on 07 March 1991, based on
the favorable recommendation of Mayor
Garcia, respondent TAN, issued the
Preliminary Approval and Locational
Clearance (PALC) for the development of
CHS.
"On July 5, 1991, then HLURB Commissioner
respondent TUNGPALAN issued
Development Permit No. 91-0216 for "land
development only" for the entire land area of
12.1034 hectares covered by TCT No. 35083
(now TCT 208837) and with 1,003 saleable
lots/units with project classification B. P.
220 Model A-Socialized Housing (p. 96,
Records), with several conditions for its
development.
"Three (3) days thereafter or on July 8, 1991,
respondent JASARENO, allowed/granted the
leveling/earth-moving operations of the
development project of the area subject to
certain conditions.
"On November 18, 1991, then HLURB
Commissioner AMADO B. DELORIA issued
Certificate of Registration No. 91-11-0576
in favor of CHS, with License to Sell No. 91-
11-0592 for the 1,007 lots/units in the
subdivision.
"Eventually, on December 10, 1991,
respondent POLLISCO issued Small Scale
Mining Permit (SSMP) No. IV-316 to Philjas
to extract and remove 10,000 cu. meters of
filling materials from the area where the CHS
is located.
"Thereafter, or on January 12, 1994, Philjas
applied for a Small Scale Mining Permit
(SSMP) under P. D. 1899 with the Rizal
Provincial Government to extract and
remove 50,000 metric tons of filling
materials per annum on CHS’ 2.8 hectares.
"Thus, on January 17, 1994, respondent
MAGNO, informed ELIEZER I. RODRIGUEZ of
Philjas that CHS is within the EIS System and
as such must secure ECC from the DENR.
Philjas was accordingly informed of the
matter such that it applied for the issuance
of ECC from the DENR-Region IV, on
February 3, 1994.
"On March 12, 1994, an Inspection Report
allegedly prepared by respondent BALICAS,
attested by respondent RUTAQUIO and
approved by respondent TOLENTINO re: field
evaluation to the issuance of ECC, was
submitted.
"Consequently, on April 28, 1994, upon
recommendation of respondent TOLENTINO,
Philjas application for ECC was approved by
respondent PRINCIPE, then Regional
Executive Director, DENR under ECC-137-
RI-212-94.
"A Mining Field Report for SSMP dated May
10, 1994 was submitted pursuant to the
inspection report prepared by respondents
CAYETANO, FELICIANO, HILADO and
BURGOS, based on their inspection
conducted on April 25 to 29, 1994. The
report recommended, among others, that the
proposed extraction of materials would pose
no adverse effect to the environment.
"Records further disclosed that on August
10, 1994, respondent BALICAS monitored
the implementation of the CHS Project
Development to check compliance with the
terms and conditions in the ECC. Again, on
August 23, 1995, she conducted another
monitoring on the project for the same
purpose. In both instances, she noted that
the project was still in the construction stage
hence, compliance with the stipulated
conditions could not be fully assessed, and
therefore, a follow-up monitoring inspection
was the last one conducted by the DENR.
"On September 24, 1994, GOV. CASIMIRO I.
YNARES, JR., approved the SSMP applied for
by Philjas under SSMP No. RZL-012,
allowing Philjas to extract and remove
50,000 metric tons of filling materials from
 the area for a period of two (2) years from
date of its issue until September 6, 1996."2
On November 15, 1999, the Ombudsman rendered
a decision finding petitioner Principe
administratively liable for gross neglect of duty
and imposing upon him the penalty of dismissal
from office. The dispositive portion of the decision
reads:
"WHEREFORE, premises considered x x x
xxx
x x x the following respondents are hereby
found GUILTY as charged and meted the
respective penalties provided under Section
22, Rule XIV of the Omnibus Rules,
Implementing Book V of Executive Order No.
292, otherwise known as the Administrative
Code of 1987, viz,:
1. x x x
5. Antonio G. Principe - Penalty of Dismissal
from the Service for Gross Neglect of Duty.
xxx
SO ORDERED."3
On January 4, 2000, petitioner filed with the Court
of Appeals a petition for review assailing the
decision of the Ombudsman.4
On August 25, 2000, the Court of Appeals
promulgated a decision denying the petition and
affirming the decision of the Ombudsman.5
Hence, this appeal.6
The Issue
The issue raised is whether the Ombudsman may
dismiss petitioner from the service on an
administrative charge for gross neglect of duty,
initiated, investigated and decided by the
Ombudsman himself without substantial evidence
to support his finding of gross neglect of duty
because the duty to monitor and inspect the
project was not vested in petitioner.
The Court's Ruling
Republic Act No. 6770, Section 15, prescribed the
powers of the Ombudsman, as follows:
"Section 15. Powers, Functions and Duties. -
The Office of the Ombudsman shall have the
following powers, functions and duties:
"(1) Investigate and prosecute on its own or
on complaint by any person, any act or
omission of any public officer or employee,
office or agency, when such act or omission
appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over
cases cognizable by the Sandiganbayan and,
in the exercise of this primary jurisdiction it
may take over, at any stage, from any
investigatory agency of Government, the
investigation of such cases;
"(2) Direct, upon complaint or at its own
instance, any officer or employee of the
Government, or of any subdivision, agency or
instrumentality thereof, as well as any
government-owned or controlled
corporations with original charter, to
perform and expedite any act or duty
required by law, or to stop, prevent, and
correct any abuse or impropriety in the
performance of duties;
"(3) Direct the officer concerned to take
appropriate action against a public officer or
employee at fault or who neglects to perform
an act or discharge a duty required by law,
and recommend his removal, suspension,
demotion, fine, censure, or prosecution, and
ensure compliance therewith; or enforce its
disciplinary authority as provided in Section
217 of this Act: Provided, That the refusal by
any officer without just cause to comply with
an order of the Ombudsman to remove,
suspend, demote, fine, censure, or prosecute
an officer or employee who is at fault or who
neglects to perform an act or discharge a
duty required by law shall be a ground for
disciplinary action against said officer;
"(4) Direct the officer concerned, in any
appropriate case, and subject to such
limitations as it may provide in its rules of
procedure, to furnish it with copies of
documents relating to contracts or
transactions entered into by his office
involving the disbursement or use of public
funds or properties, and report any
irregularity to the Commission on Audit for
appropriate action;
"(5) Request any government agency for
assistance and information necessary in the
discharge of its responsibilities, and to
examine, if necessary, pertinent records and
documents;
"(6) Publicize matters covered by its
investigation of the matters mentioned in
paragraphs (1), (2), (3) and (4) hereof, when
circumstances so warrant and with due
prudence: Provided, further, that any
publicity issued by the Ombudsman shall be
balance, fair and true;
"(7) Determine the causes of inefficiency, red
tape, mismanagement, fraud, and corruption
in the Government, and make
recommendations for their elimination and
 the observance of high standards of ethics
and efficiency;
"(8) Administer oaths,
issue subpoena and subpoena duces tecum,
and take testimony in any investigation or
inquiry, including the power to examine and
have access to bank accounts and records;
"(9) Punish for contempt in accordance with
the Rules of Court and under the same
procedure and with the same penalties
provided therein;
"(10) Delegate to the Deputies, or its
investigators or representatives such
authority or duty as shall ensure the effective
exercise or performance of the powers,
functions, and duties herein or hereinafter
provided;
"(11) Investigate and initiate the proper
action for the recovery of ill-gotten and/or
unexplained wealth amassed after February
25, 1986 and the prosecution of the parties
involved therein."8
The Ombudsman without taking into consideration
the lawfully mandated duties and functions
attached to petitioner’s position, immediately
concluded that as the signing and approving
authority of the ECC issued to PHILJAS, it was
incumbent upon petitioner to conduct actual
monitoring and enforce strict compliance with the
terms and conditions of the ECC.
The applicable administrative orders provide that
the function of monitoring environmental
programs, projects and activities in the region is
lodged with the Regional Technical Director, not
with the Regional Executive Director, the position
occupied by petitioner. Under DAO 38-1990, the
following were the functions attached to the office
of petitioner, to wit:
"I. REGULATORY MATTERS
"D. REGIONAL EXECUTIVE DIRECTOR
"1. Forest Management
"2. Land Management
"3. Mines and Geo-Sciences
Development
"4. Environmental Management
"4.1 Issues authority to construct and
permit to operate pollution control
equipment/devices including the
collection of corresponding
fees/charges.
"4.2 Issues accreditation of pollution
control office of industrial firms and
local government entities.
"4.3 Hears/gathers evidences or facts
on pollution cases as delegated by the
Pollution Adjudication Board.
"4.4. Approves plans and issues permit
for mine tailings disposal, including
environmental rehabilitation plans."9
Clearly, there is no mention of the responsibility of
a regional executive director to monitor projects.
More apropos is the description of the functions of
a regional technical director, to wit:
"E. REGIONAL TECHNICAL DIRECTOR
"1. Forest Management
"2. Land Management
"3. Mines and Geo-Sciences
Development
"4. Environmental Management
"4.1 Issues clearance certificate to
vehicles which have passed the
smoke-belching test.
"4.2 Issues pollution clearance and
temporary permit to operate pollution
control devices including the
collection of corresponding
fees/charges.
"4.3 Conducts monitoring and
investigation of pollution sources and
control facilities.
"4.4 Supervises, coordinates and
monitors the implementation of
environmental programs, projects and
activities in the region."10 [emphasis
supplied]
Furthermore, monitoring is defined in DAO No. 21,
Series of 1992, as the activity designed to gauge
the level of compliance with the conditions
stipulated in the ECC,11 and in the EIS12 or
PD13 submitted.14 This is the function of the PENR
and CENR offices as mandated in DAO No. 37,
Series of 1996.15 Particularly, it provided that:
"Section 10. Compliance Monitoring
"x x x
"b. Monitoring of compliance with the
proponent’s ECC issued pursuant to an
IEE,16 and applicable laws, rules and
regulations, shall be undertaken by the
concerned PENRO and CENRO with support
from the Regional Office and/or EMB
whenever necessary."
Hence, how could petitioner be guilty of neglecting
a duty, which is not even his to begin with?
Administrative liability could not be based on the
fact that petitioner was the person who signed and
approved the ECC, without proof of actual act or
omission constituting neglect of duty.
In the absence of substantial evidence of gross development and conservation of our natural
neglect of petitioner, administrative liability could resources.
not be based on the principle of command "Section 2. Mandate.- (1) The Department of
responsibility.17 The negligence of petitioner’s Environment and Natural Resources shall be
subordinates is not tantamount to his own primarily responsible for the implementation
negligence. of the foregoing policy.
It was not within the mandated responsibilities of "(2) It shall, subject to law and higher
petitioner to conduct actual monitoring of authority, be in charge of carrying out the
projects. The principles governing public officers State’s constitutional mandate to control
under the Revised Administrative Code of 1987 and supervise the exploration, development,
clearly provide that a head of a department or a utilization, and conservation of the country’s
superior officer shall not be civilly liable for the natural resources."19
wrongful acts, omissions of duty, negligence, or However, pursuant to Executive Order No. 90,20 the
misfeasance of his subordinates, unless he has Human Settlements Regulatory Commission,
actually authorized by written order the specific which became the Housing and Land Use
act or misconduct complained of.18 Regulatory Board (HLURB), is the sole regulatory
The investigation conducted by the Ombudsman body for housing and land development.21
refers to the tragic incident in Cherry Hills The Fallo
Subdivision, Antipolo Rizal, where several families WHEREFORE, the Court REVERSES the decision of
lost lives and homes. Despite the fact that what the Court of Appeals.22 In lieu thereof, the Court
was involved was a housing and land development annuls the decision of the Ombudsman in OMB-
project, petitioner, as the Regional Executive ADM-09-661, dated December 1, 1999,
Director for Region IV, Department of Environment dismissing the petitioner from the government
and Natural Resources, was found negligent service, and orders his reinstatement with back
because he was the one who signed and approved pay and without loss of seniority.
the ECC. No costs. SO ORDERED.
As heretofore stated, the responsibility of
monitoring housing and land development
projects is not lodged with the office of petitioner.
The Administrative Code of 1987 spelled out the
mandate of the Department of Environment and
Natural Resources, the agency that has authority
over petitioner, which reads:
"Section 1. Declaration of Policy.- (1) The
State shall ensure for the benefit of the
Filipino people, the full exploration and
development as well as the judicious
disposition, utilization, management,
renewal and conservation of the country’s
forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural
resources, consistent with the necessity of
maintaining a sound ecological balance and
protecting and enhancing the quality of the
environment and the objective of making the
exploration, development and utilization of
such natural resources equitably accessible
to the different segments of the present as
well as future generations.
"(2) The State shall likewise recognize and
apply a true value system that takes into
account social and environmental cost
implications relative to the utilization,