BALICAS vs.

FFIB, OFFICE OF
THE OMBUDSMAN
MARCH 26, 2011  ~ VBDIAZ

BALICAS vs. FFIB, OFFICE OF THE OMBUDSMAN

G. R. No. 145972
March 23, 2004
FACTS: In the development of the Cherry Hills Subdivision (CHS), Philjas applied
for the issuance of ECC from the DENR-Region IV
Respondent BALICAS, PENRO senior environmental management
specialist, monitored the implementation of the CHS Project Development to check
compliance with the terms and conditions in the ECC. 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.
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 CHS, 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 CHS as evidenced by 3 monitoring reports
.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.

The Office of the Ombudsman rendered a decision imposing upon petitioner the
supreme penalty of dismissal from office for gross neglect of duty.

Petitioner seasonably filed a petition for review of the Ombudsmans decision with the
CA. 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
petitioners motion for reconsideration.
This petition for review on certiorari
ISSUE: WON Balicas is guilty of gross neglect of duty
HELD: the petition is hereby GRANTED, The CA decision affirming the
Ombudsmans dismissal of petitioner IGNACIA BALICAS from office is
REVERSED and SET ASIDE, and petitioners REINSTATEMENT to her position
with back pay and without loss of seniority rights is hereby ordered.
NO
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.

Tthe 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.

P.D. No. 1586 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.
The legal duty to monitor housing projects, like the CHP, 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.
If all administrative appeals have been exhausted, Rule 65 of the Philippine Rules of Court can be relied
on for a certiorari122 application to review an ECC. In Lipin Otadan et al. v. The Secretary of the
Department of Environment and Natural Resources, the Environmental Management Bureau and Rio
Tuba Nickel Mining Corporation, 123 the Environmental Legal Assistance Center (ELAC) applied for a
certiorari order to review the issuance of the ECC for the Rio Tuba Nickel Mining Project. The ELAC
litigated the certiorari application all the way to the Philippine Supreme Court before, ultimately,
losing.124 Although judicial reviews of an ECC are possible, MayoAnda reported ‘there must be more of
an effort to enlighten the courts on how environmental laws are applied with respect to the EIA system;
on Palawan the courts need to be better equipped with knowledge of how the EIA system works’.125
The Executive Director of Interface Development Interventions (IDIS), a NGO in Davao, City, stated that,
‘The judges lack an understanding of environmental law, especially at the lower levels of the courts’

RTNMC operates a nickel mine site and a hydrometallurgical process plant complex in Barangay Rio
Tuba, Municipality of Bataraza, Palawan. From 1991 to 2004, RTNMC had invested almost Php 135
million for environmental protection connected to mining. This is an unusually large amount compared
to competitors, and covers the construction and maintenance of soil erosion control measures, dust
suppression, and reforestation of 203 hectares within mined-out areas and a further 132 hectares
outside them. In the process of developing the hydrometallurgical process plant, an Environmental
Impact Assessment (EIA) was called for. Conducted in November 2000 by the DENR-EMB itself, some
concerns were raised during the EIA meetings and consultations. RTNMC subsequently hired consultants
to conduct further studies to answer these concerns and the EIA process concluded with an ECC being
successfully issued in July 2002. Two NGOs, Environmental Legal Assistance Centre (ELAC) and the
Palawan NGO Network Inc. (PNNI), however, sought a recall of the ECC issued by the DENR Secretary.
Failing in that, they subsequently filed a petition. This was dismissed by the Court of Appeals in 2003 and
finally denied by the Supreme Court in 2004, on the grounds that all issues raised by the two NGOs had
already been addressed and responded to in the EIA process. In the appeal, the petitioners (ELAC and
PNNI) alleged that the DENR Secretary abused his discretion when he issued the ECC to RTNMC.
However, the Court of Appeals ruled that the records of the case, especially the facts as submitted by
the parties, showed that the procedural requirements under the DENR regulations had been complied
with. According to the WB/ADB discussion paper, the Rio Tuba experience reveals how the Philippine
EIS system is vulnerable to NGOs who refuse to recognise the EIA and endeavour to use the court to
raise exactly the same issues already addressed by the EIS process. In the Rio Tuba case, this caused a
delay of two years, after which the Supreme Court decided in favour of the company and the integrity of
the EIS procedure, dismissing the ELAC/PNNI petition for lack of legal basis. From RTNMC’s point of
view, it supports the principle of Sustainable Development for a ‘pro-people, pro-community and pro-
environment orientation and goals’, declaring socio-economic development, environmental protection,
pollution control, safety and health as RTNMC’s priorities. All EIA requirements were complied with, and
the EIA was conducted in a participatory and transparent manner. This resulted in an almost 80 per cent
support rating in the perception survey, and endorsements from local government offices, NGOs, host
community residents, people’s organisations, and tribal councils, among others. RTNMC believes that its
sincerity in realising commitments to communities, who are the most sensitive stakeholders of the
mining project, earned it the support and trust of these communities. Its investment in information,
education and communication (IEC) activities enabled a faster flow and accurate dissemination of
information between the company and the stakeholders. Further, the use of third-party consultants
enabled access to impartial and technically sound project assessment and recommendations.

What lessons can we learn from the Rio Tuba Nickel Mining Corporation case? Firstly, it is no longer
enough just to object to a project on principle – NGOs who intervene in the EIA process should get
sound technical advice before taking a stand. Secondly, investment in communications tools to
empower concerned communities to offer their own facts and opinions can be more effective and
equitable than a reliance on NGOs to speak ‘for’ communities. Thirdly, after the ECC is issued,
effective monitoring should be based on a community-based approach, where community members
are well informed about the project and its Social Development and Management Plan (SDMP), and
have the technical training and capability for it. Fourthly, the authorities (EMB) should carefully select
the EIA reviewers or resource persons based on qualifications and impartiality in carrying out their
functions.
 [G.R. No. 161436. June 23, 2004]

OTADAN  vs. RIO TUBA NICKEL MINING CORP.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 23 2004.

G.R. No. 161436 (Lipin Otadan, et al. vs. Rio Tuba Nickel Mining Corporation.)

Acting on the Motion for Reconsideration dated April 26, 2004 filed by the petitioners of this Court's
Resolution dated February 23, 2004 denying their petition for review on certiorari for late filing, the Court
resolved to DENY WITH FINALITY said motion for lack of merit. It is axiomatic that the perfection of an
appeal in the manner and within the period prescribed by law is not only mandatory but jurisdictional and
the failure to perfect the appeal has the effect of rendering the judgment final and executory. [1] cralaw

Moreover, the petitioners mainly assail the Decision dated September 30, 2003 of the Court of Appeals in
CA-G.R. SP No. 75014 finding no grave abuse of discretion on the part of the Secretary of the Department
of Environment and Natural Resources (DENR) when he issued the Environmental Compliance Certificate
(ECC) No. 0201-021-313 to the respondent Rio Tuba Nickel Mining Corporation for its Hydrometallurgical
Processing Plant in Barangay Rio Tuba, Municipality of Bataraza, Palawan. The issuance of the ECC is an
exercise by the Secretary of the DENR of his quasi-judicial functions. This Court has consistently held that
the courts will not interfere in matters which are addressed to the sound discretion of the government
agency entrusted with the regulation of activities coming under the special and technical training and
knowledge of such agency.[2]  It has also been held that the exercise of administrative discretion is a policy
cralaw

decision and a matter that can best be discharged by the government agency concerned, and not by the
courts.[3]  This Court has likewise consistently adhered to the principle that factual findings of quasi-judicial
cralaw

bodies which have acquired expertise because their jurisdiction is confined to specific matters are generally
accorded not only respect but even finality and are binding even upon the Supreme Court if they are
supported by substantial evidence.[4]  Further, administrative agencies are given a wide latitude in the
cralaw

evaluation of evidence and in the exercise of its adjudicative functions. This latitude includes the authority to
take judicial notice of facts within its special competence. [5]  The petitioners failed to present compelling
cralaw

reasons to warrant the deviation by this Court from the foregoing salutary principles.

Likewise, the petitioners' Motion for Leave to File Attached Motion for Extension of Time and Amended
Petition for Review on Certiorari is DENIED.

The Opposition dated May 7, 2004 filed by the respondent, the Letters, in the vernacular, dated May 8,
2004, of the Katutubong Palawan at Katutubong Mulbog ng Barangay Sarong, Bataraza, Palawan and the
undated Separate Letters, in the vernacular, of the residents of Barangay Iwahig, Sarong, and Rio Tuba,
Bataraza, Palawan are NOTED.
Paje v. Casino et al.
Posted on October 27, 2016

(Remedial law: Appeal; Environmental Law: Writ of Kalikasan)

G.R. No. 207257        February 3, 2015

HON. RAMON JESUS PAJE, in his capacity as DENR Secretary v. Hon.

Teodoro Casino, et al.

Facts

The Department of Environment and Natural Resources, issued an

Environmental Compliance Certificate for a proposed coal-fired power plant at
Subic, Zambales to be implemented by RP Energy.

Hon. Teodoro Casino and a number of legislators filed a Petition for Writ of
Kalikasan against RP energy, SBMA, and Hon. Ramon Paje as the DENR
secretary on the ground that actual environmental damage will occur if the
power plant project is implemented and that the respondents failed to comply
with certain laws and rules governing or relating to the issuance of an ECC
and amendments thereto.

The Court of Appeals denied the petition for the Writ of Kalikasan and
invalidated the ECC. Both the DENR and Casino filed an appeal, the former
imputing error in 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; while the latter claim that it is
entitled to a Writ of Kalikasan.

REPORT THIS AD

Issues

1. Whether the parties may raise questions of fact on appeal on the

issuance of a writ of Kalikasan; and
 2. Whether the validity of an ECC can be challenged via a writ of
Kalikasan

Ruling

1. Yes, the parties may raise questions of fact on appeal on the issuance
of a writ of Kalikasan because the Rules on the Writ of kalikasan (Rule
7, Section 16 of the Rules of Procedure for Environmental Cases)allow
the parties to raise, on appeal, questions of fact— and, thus, constitutes
an exception to Rule 45 of the Rules of Court— because of the
extraordinary nature of the circumstances surrounding the issuance of a
writ of kalikasan.
2. Yes, the validity of an ECC can be challenged via a writ of Kalikasan
because such writ is 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 must also 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.

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
FACTS: Casiño filed a petition for issuance of writ of kalikasan against
SBMA and RP Energy on the ground that (1) the operation of the power
plant would cause environmental damage and pollution, that this would
adversely affect the residents of the provinces of Bataan and Zambales,
and cites as basis RP Energy’s EIS, which allegedly admits that acid rain
may occur in the combustion of coal; and (2) that the ECC should also
be nullified for failure to comply with the procedures and requirements
for the issuance of the ECC because it was issued and the Lease and
Development Agreement (LDA) entered into without the prior approval of
the concerned sanggunians as required under Sections 26 and 27 of the
Local Government Code (LGC); 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.
ISSUE: In this case, will the defects or irregularities in the issuance of
ECC due to actual or threatened violation of the constitutional right to a
balanced and healthful ecology cause the issuance of the Writ of
Kalikasan?
HELD: No, the defects or irregularities in the issuance of ECC in this
case will not cause the issuance of the Writ of Kalikasan. A party, 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 must also 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. Here,
no such causal link or reasonable connection was shown or even
attempted relative to the aforesaid set of allegations but mere listing of
the perceived defects or irregularities in the issuance of the ECC. Hence,
the writ of kalikasan shall not issue.