TEMPERING JUDICIAL DISCRETION: APPLYING THE PRECAUTIONARY

PRINCIPLE IN ENVIRONMENTAL CASES.

A THESIS PRESENTED TO THE

FAR EASTERN UNIVERSITY

INSTITUTE OF LAW

IN PARTIAL FULFILLMENT OF THE REQUIREMENTS

FOR THE DEGREE OF

JURIS DOCTOR

By:

KEVIN KEN S. GANCHERO

2018
ACKNOWLEDGEMENT
 ABSTRACT

For generations, our ancestors have relied on the blessings and bounty of the soil. Our pre-

colonial traditions and practices revolved around sacred rituals for an abundant harvest and for

blessings from deities who personified our respect for the land. But our ancestors, while

superstitious, were also innovative. They were pioneers of advanced agricultural methods and

2000 years ago, carved the land with their hands and left one of the most famous man-made

creations on the planet, the Banaue Rice Terraces. This permanently altered the environment of

Banaue. Technology is a double-edged sword. On one hand it can result to substantial

improvement in people’s lives and on the other, it can result to irreversible damage. This is why

states and judicial bodies around the world approach the development and approval of

technological innovations with precaution. This study intends to provide a discourse on the

relatively new concept, the precautionary principle and its role in judicial decision-making. More

specifically, it intends to thresh out its metes and bounds as a standard of decision making in

environmental cases involving experimental genetically modified crops which are both potentially

beneficial and risky at the same time.

At the cross-hairs of this discourse is the Supreme Court’s decision in International Service

for the Acquisition of Agri-biotech Applications et. Al. vs. Greenpeace et. al. where for the first

time, the Court applied the precautionary principle to ban the field testing of Genetically Modified

Crops. While this was subsequently reversed on the ground of mootness, the question, rather the

concern on what scientists call as an impossible standard of precaution, lingers. The study would

attempt to reconcile the seemingly conflicting concepts of the precautionary principle and the

opportunity costs of its application pursuant to the recent Supreme Court decision. Thus, it

becomes relevant to ask: should we have to choose between innovation and precaution?
 TABLE OF CONTENTS

CHAPTER I: INTRODUCTION................................................................................................. 1

A. Background of the Study................................................................................................................... 1

B. Statement of the Problem. ................................................................................................................. 4

C. Significance of the Study .................................................................................................................. 4

D. Methodology ..................................................................................................................................... 5

E. Scope ................................................................................................................................................. 6

CHAPTER II: HISTORICAL AND CONCEPTUAL FOUNDATIONS ................................ 7

A. The Precautionary Principle .............................................................................................................. 7

1. Threat of Damage to the Environment ........................................................................................ 11

2. The Threat is Serious or Irreversible........................................................................................... 12

3. Serious Damage .......................................................................................................................... 12

4. Irreversible Damage .................................................................................................................... 12

5. Lack of Scientific Certainty ........................................................................................................ 13

B. Sources of Precautionary Principle ................................................................................................. 17

C. Genetic Modification ...................................................................................................................... 18

D. Genetically Modified Crops ............................................................................................................ 19

E. The Concern about Genetically Modified Crops. ........................................................................... 21

CHAPTER III: THE PRECAUTIONARY PRINCIPLE AND THE REGULATION OF

GENETICALLY MODIFIED CROPS IN THE PHILIPPINES ........................................... 26

A. As a treaty obligation under the Cartagena Protocol on Biosafety. ................................................ 26

B. As an administrative guideline under the National Biosafety Framework of 2006 ........................ 27

1. Guiding principles governing biosafety decisions. ..................................................................... 28

2. The creation of National Committee on Biosafety of the Philippines. ....................................... 32

C. As a rule of procedure under Rules on Environmental Procedure .................................................. 32

1. The Precautionary Principle under the rules. .............................................................................. 33

2. The Writ of Kalikasan................................................................................................................. 34

D. As jurisprudence in the Case of International Service for the Acquisition of Agri-biotech

Applications et. Al. vs. Greenpeace et. al. .............................................................................................. 36

1. Relevant Issue ............................................................................................................................. 38

2. The Court’s Holding ................................................................................................................... 38

3. Observations on the Court’s attitude towards the Precautionary Principle’s application in the

regulation of GMO crops. ................................................................................................................... 39

CHAPTER IV: RECONCILING THE PRECAUTIONARY PRINCIPLE AND

OPPORTUNITY COSTS: A PROPOSED FRAMEWORK. ................................................. 40

A. Does field testing pose a serious or irreversible injury or loss to the environment? ....................... 41

B. Is there scientific uncertainty regarding the alleged environmental injury or loss as well as its

seriousness or irreversibility? ................................................................................................................. 43

C. Shifting the burden of proof to the project proponent..................................................................... 45

 D. Hypothetical application of the proposed test to International Service for the Acquisition of Agri-

biotech Applications et. Al. vs. Greenpeace et. al. ................................................................................. 46

1. Does field testing pose a serious or irreversible injury or loss to the environment? ................... 46

2. Is there scientific uncertainty? .................................................................................................... 49

3. Hypothetical outcome. ................................................................................................................ 52

CHAPTER V: CONCLUSION AND RECOMMENDATION ............................................... 54

A. Conclusion ...................................................................................................................................... 54

B. Recommendation ............................................................................................................................ 55

BIBLIOGRAPHY ....................................................................................................................... 57
 CHAPTER I

INTRODUCTION

A. Background of the Study

Torn between competing but equally important interests, judges find themselves struggling

with the challenge of delivering decisions that are both just and within the confines of the law. In

environmental cases, they are often pulled into two different directions: one heading towards

scientific advancement and economic development and the other towards the preservation and

protection of the environment.

In December 2016, the Supreme Court, through a Writ of Kalikasan, decided to stop the

field testing of “Bt eggplant,” a special variety of eggplant capable of making a bacterial protein,1

capable of resisting the fruit and shoot borer, its natural pest.2 Many feared that this ruling would

result to adverse effects such as delay on other research involving genetically modified crops such

as golden rice, virus-resistant papaya, and Bt cotton.3 Further, they were concerned that the ruling

may lead to lost research grant opportunities, which, together with the lack of institutional and

legal support, may lead to the brain drain of biotechnology graduates and discourage prospective

students from specializing in biotechnology and other related fields.4

The mentioned developments are indicative of the rapid advancement of technologies and

scientific knowledge, which has brought about increasingly unpredictable, uncertain, and

1
Bt talong case: Striking at heart of PH concerns, INQUIRER.NET, February 14, 2016, available at
http://opinion.inquirer.net/92844/bt-talong-case-striking-at-heart-of-ph-concerns (last accessed
Aug. 26, 2017).
2
Id.
3
Id.
4
Id.

1
unquantifiable as well as possibly catastrophic risks.5 The dangers posed by these developments

are uncertain either due to the absence of adequate evidence or the contradiction of reliable

information. Because of this, government authorities have always been confronted with the

necessity to formulate an approach that will protect their citizens and the environment against

uncertain risks produced by various activities and goods such as the genetic modification of

organisms.6 However, the element of uncertainty has often been used as an excuse to delay or

refuse government response.7 Because of this, the precautionary principle was devised.

The precautionary principle connotes the taking of measures to protect the environment

and human health even before conclusive scientific evidence on the perilous effects of certain

activities or substances, is found.8 In simple terms, it is an expression of the old adage “better safe

than sorry.”9 With the ushering in of the Precautionary Principle, the world saw a drastic shift from

the curative approach to preventive and anticipatory risk management in dealing with possible

health hazards and environmental damage.10

States and international institutions, recognizing its undeniable relevance to the global

environment, have increasingly incorporated the Precautionary Principle in various international

instruments and conventions.11 Principle 15 of the Rio Declaration has become the standard

5
WORLD COMMISSION ON THE ETHICS OF SCIENTIFIC KNOWLEDGE AND
TECHNOLOGY, THE PRECAUTIONARY PRINCIPLE 7 (2005) [hereinafter COMEST].
6
Id.
7
International Union for the Conservation of Nature, Guidelines for Applying Precautionary
Principle to Biodiversity Conservation and Natural Resource Management 1, available at
http://cmsdata.iucn.org/downloads/ln250507_ppguidelines.pdf (last accessed June 19, 2017)
[hereinafter IUCN Guidelines].
8
Hannes Veinla, Free Trade and the Precautionary Principle 186, available at
http://www.juridicainternational.eu/public/pdf/ji_2003_1_186.pdf (last accessed June 20, 2017).
9
COMEST, supra note 1.
10
Id.
11
PIERRE-MARIE DUPUY AND JORGE VINUALES, INTERNATIONAL ENVIRONMENTAL LAW 54 (2015).

2
reference for the Precautionary Principle being the most broadly accepted expression of the

principle.12

The Philippines is no stranger to the Precautionary Principle. In fact, our Congress has

incorporated the language of the Precautionary Principle in the provisions of the Food Safety Act

of 2013. Section 10 of the law provides that “[i]n specific circumstances when the available

relevant information for use in risk assessment is insufficient to show that a certain type of food

or food product does not pose a risk to consumer health, precautionary measures shall be

adopted.”13 The same was also expressly incorporated in Section 1, Rule 20 of the Rules of

Procedure for Environmental Cases which provides: “When there is a lack of full scientific

certainty in establishing a causal link between human activity and environmental effect, the court

shall apply the precautionary principle in resolving the case before it.”14 Furthermore, the

Philippine government had made use of precautionary measures in the form of import bans to

prevent the entry and spread of diseases. In 2009, the Department of Agriculture ordered the

prohibition on the importation of hog and hog meat from Mexico and the United States to prevent

the entry of the fatal AH1N1 virus or swine flu.15 Precautionary measures were put in place even

if the government did not have adequate information on how to counter the potential outbreak and

notwithstanding the absence of technological devices to detect the new strain of virus.16

12
JULIAN MORRIS, RETHINKING RISK AND THE PRECAUTIONARY PRINCIPLE 5 (2000).
13
An Act to Strengthen the Food Safety Regulatory System In The Country To Protect Consumer
Health And Facilitate Market Access Of Local Foods And Food Products, And For Other Purposes
[Food Safety Act of 2013], Republic Act No. 10611, §10 (2012).
14
2010 RULES ON PROCEDURE FOR ENVIRONMENTAL CASES, Rule 20 §1 [hereinafter Rules on
Environmental Procedure].
15
RP officials say prepared to prevent swine flu, ABS-CBN NEWS, Apr. 26, 2009, available at
http://news.abs-cbn.com/nation/04/26/09/rp-officials-says-prepared-prevent-swine-flu-entry (last
accessed Aug. 26, 2017).
16
Id.

3
 B. Statement of the Problem.

Inevitable conflict may arise between the policy of prioritizing science, technology,

innovation,17 and economic development18against the conservative approach of the Precautionary

Principle. On one hand, the Constitution endeavors to achieve economic development through

scientific innovation. On the other hand, the application of the Precautionary Principle seems to

restrict such pursuit by adopting the standard of “lack of full scientific certainty” as a justification

for the adoption of precautionary measures. This contradiction poses foreseeable repercussions on

research and development especially on genetically modified crops which would increase food

production but also potentially endanger the environment.

If the precautionary principle is to work in the context of judicial review, courts must do more

than pay it lip-service. When the principle is seen as nothing more than common sense where the

judge has a wide latitude of discretion in determining when it applies, at best it provides little

decisional guidance and at worst promotes uncertainty and subjectivity. At the same time, the

principle must respect the discretion of elected decision-makers to make judgments about the public

good.

C. Significance of the Study

This study intends to provide a discourse on the conflict between environmental protection

through the use of precautionary principle and the economic and scientific opportunities which

would be sacrificed by adopting a conservative version of such approach. It seeks to provide a

comprehensive discussion on the Precautionary Principle – its concept, elements, effects and status

– as established in the field of domestic and international environmental law.

17
PHIL. CONST. art. XIV, §§ 10-13.
18
PHIL. CONST. art. XIII, § 1.

4
 The Proponent shall endeavor to suggest a resolution to the inconsistencies between the

aforementioned conflicting concepts which pose a challenge to courts. In the process, the proper

and precise role of the Precautionary Principle in environmental cases, generally, and in the

regulation of genetically modified crops, specifically, shall be explained. Ultimately, this study

aims to devise a framework by which the proper application and limits of the Precautionary

Principle can be delineated. The Proponent shall offer a fair and objective approach which balances

the State’s policy of economic and scientific advancement with the Precautionary Principle. In the

course of the study, a review of relevant literature and jurisprudence on the Precautionary Principle

in the context of international and domestic law will be used to shed light on the discussion.

The potential impact of the use of precaution on judicial decision-making cannot be set-

aside. Often, prompt decisions have to be made by courts for the protection of the environment.

At the same time, they have to keep in mind the economic interest and scientific advancement

which may be affected by their decisions.

In a localized context, the Philippines, as a developing country, may find itself at a huge

economic disadvantage if its courts continue to follow an approach which pre-emptively rejects

potential answers to problems like food security such as genetically modified crops which promise

significant increases in crop yield and reduced dependence on costly pesticides.

In these crucial situations, it becomes relevant to know whether courts should invoke the

Precautionary Principle. And if so, when can it be invoked?

D. Methodology

The primary approach in resolving the legal issue in this study is through a survey of local

and foreign case laws and statutes. Decisions involving the use of the Precautionary Principle will

5
be discussed extensively. The jurisprudence will be analyzed hand-in-hand with a study of

international literature and treatises on international environmental law.

E. Scope

The scope of this thesis encompasses the rulings of tribunals recognizing and rejecting the

application of Precautionary Principle. The main theme of the study is the harmonization between

the Precautionary Principle and the state policies of scientific and economic advancement through

a structured application of the principle which limits the court’s judicial discretion.

Considering the variety of definitions accorded to the Precautionary Principle in different

treaties and conventions, the definition to be adopted in this study is that which is embodied in

Principle 15 of the 1992 Rio Declaration on Environment and Development which is reflected in

our Rules on Environmental Procedure.

The study will give special attention to the application of the precautionary principle on

the regulation of genetically modified crops and similar case. This is because the most recent

application of the principle under the rules of environmental procedure, is on the field testing of

genetically modified crops. Further, in actual practice, nations cannot be ranked according to how

cautious they are, in general or broadly, but a reasonable comparison can be made on how cautious

they are with regard to particular risks such as the risk posed by genetically modified crops to the

environment.19

19
Wiener & Michael D. Rogers, Comparing Precaution in the United States and Europe, 5 J. Risk
Research 317 (2002).

6
 CHAPTER II

HISTORICAL AND CONCEPTUAL FOUNDATIONS

A. The Precautionary Principle

Previously, environmental protection policies followed a curative model, where

rehabilitation efforts and compensation aimed at mending or repairing the injury to the

environment were given priority over prevention or precaution.20 Consistent with this approach,

the Polluter Pays Principle was introduced to allocate the costs of environmental damage and

repair to the polluter.21 But realizing that some forms of environmental damage cannot be cured or

compensated for, environmentalists introduced the Prevention Principle.22 This principle, which

entails the avoidance or mitigation of environmental damage, is best encapsulated in the expression

“prevention is better than cure.”23

However, the advent of uncertain but potentially devastating risks necessitated a new

approach towards environmental protection.24 Thus, the precautionary principle was introduced. It

enjoins the taking of action to protect human health and the environment against threats of serious

damage even in situations of uncertainty.25

The origins of Precautionary Principle can be traced back to the 1970s in Germany where

it was termed “Vorsorgeprinzip”.26 The Precautionary Principle was first written into a law on the

20
COMEST, supra note 1.
21
Id.
22
Id.
23
Id.
24
Id.
25
Id.
26
JACQUELINE PEEL, THE PRECAUTIONARY PRINCIPLE IN PRACTICE: ENVIRONMENTAL DECISION-
MAKING AND SCIENTIFIC UNCERTAINTY 16 (2005); ELIZABETH FISHER, ET. AL., IMPLEMENTING
THE PRECAUTIONARY PRINCIPLE: PERSPECTIVE AND PROSPECTS, IN IMPLEMENTING THE
PRECAUTIONARY PRINCIPLE: PERSPECTIVE AND PROSPECTS 2 (2006).

7
maintenance of clean air.27 Years after this, Germany suffered extensive environmental problems

including the pollution of the North Sea.28 There was vast uncertainty on the cause of the pollution

and the effectivity of existing pollution regulations as authorities were wondering if it were the

continued waste dumping in the sea that was the proximate cause. This prodded the North Sea

States including France and Germany to gather in the Second International Conference on the

Protection of the North Sea.29 In 1987, the Conference produced a Ministerial Declaration

expressing the adoption of the Precautionary Principle providing: “Accepting that, in order to

protect the North Sea from possibly damaging effects of the most dangerous substances, a

precautionary approach is necessary which may require action to control inputs of such substances

even before a causal link has been established by absolutely clear scientific evidence”.30

As a result of this development, to prevent further damage to the North Sea, discharges

were restricted although, at that time, no clear scientific evidence can prove that they caused harm

to the environment.31

Since then, the Precautionary Principle has been incorporated in multiple international

agreements and documents, the most popular of which is the 1992 Rio Declaration on Environment

and Development.32

Because of the nations’ different environmental policies, there is a variety of formulations

of the principle in different legal instruments which means that there is also a lack of a uniform

27
PETER DEFUR AND MICHELLE KASZUBA, IMPLEMENTING THE PRECAUTIONARY PRINCIPLE, THE
SCIENCE OF THE TOTAL ENVIRONMENT 155 (2002).
28
Id. at 155-56.
29
Id. at 158.
30
Id.
31
Id.
32
Id.

8
definition of the Precautionary Principle.33 However, Principle 15 of the Rio Declaration offers the

most widely supported definition of the principle,34 to wit:

“In order to protect the environment, the precautionary approach

shall be widely applied by States according to their capabilities.

Where there are threats of serious or irreversible damage, lack of

full scientific certainty shall not be used as a reason for postponing

cost-effective measures to prevent environmental degradation.”

In fact, the principle as enshrined in the Rio Declaration has been regarded as the

international standard definition for the Precautionary Principle in policy-making and drafting of

international agreements.35

Notwithstanding the slight variations in the articulation of the principle, there exists a

common understanding of its concept.36 The Precautionary Principle applies in situations of

scientific uncertainty where government decision-makers have to decide how they will counter the

possible harm to the environment.37 The Precautionary Principle supports action to avoid potential

harm and costs to the environment before they occur prior to the acquisition of absolute scientific

evidence.38

In applying the Precautionary Principle, it is crucial to remember that key to its operation

is the existence of a situation that presents a form of scientific doubt or uncertainty. 39 The

33
JONATHAN WIENER, PRECAUTION, IN THE OXFORD HANDBOOK OF INTERNATIONAL
ENVIRONMENTAL LAW 602 (DANIEL BODANSKY, JUTTA BRUNNEE, ELLEN HEY EDS., 2007);
JOAKIM ZANDER, THE APPLICATION OF THE PRECAUTIONARY PRINCIPLE IN PRACTICE 26 (2010).
34
Rio Declaration on Environment and Development, prin. 15, June 13, 1992, U.N. Doc.
A/CONF.151/26 (vol. I) [hereinafter Rio Declaration].
35
Morris, supra note 12.
36
ULRICH BEYERLIN AND THILO MARAUHN, INTERNATIONAL ENVIRONMENTAL LAW 53 (2011).
37
Id.
38
DAVID HUNTER, ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 510 (2007).
39
Wiener, supra note 33 at 607.

9
Precautionary Principle forwards the belief that scientific conclusiveness is often too late to draw

up a responsive measure to prevent environmental harm.40 In line with this, the principle operates

in a reality that science also has its shortcomings in assessing risks and functions as a “stopgap”

measure. There is also uncertainty when scientific findings are at conflict with one another. For

example, civil engineers and geologists often have conflicting ideas about approaching certain

environmental problems.

Hence, national authorities no longer have to wait for complete scientific basis before they

can enact legislations or implement regulations to prevent serious environmental dangers that are

yet to be empirically established. Otherwise, if they await conclusive scientific evidence, the

anticipated dangers would have already materialized and caused irreparable damage by then. 41

Under the Precautionary Principle therefore, as long as there is a risk detected, even amidst a state

of scientific uncertainty, governments can take concrete steps to preclude harm. As one

commentator observed, “precaution aims to bridge the gap between scientists working on the

frontiers of scientific knowledge and decision-makers willing to act to prevent environmental

degradation”.42 Accordingly, if an environmental threat and its characteristics are scientifically

defined, the Precautionary Principle loses its significance.43 In such cases, it is the Preventive

Principle that applies.44

Contrary to the observations of critics, the diverse articulation of the Precautionary

Principle across national and international legal instruments should not be viewed as an inherent

weakness.45 The principle assumes a different form depending on the context in which it is

40
HUNTER ET AL., supra note 38, at 39.
41
BEYERLIN & MARAUHN, supra note 36, at 52.
42
Id. at 53.
43
ZANDER, supra note 33, at 15.
44
Id.
45
PEEL, supra note 26, at 18.

10
utilized.46 If the principle is contained in the Convention on Biological Diversity, definitely the

Precautionary Principle shall relate to the protection and conservation of biodiversity, whereas if

it is found in the Convention on Persistent Organic Pollutants or POP’s, it will only serve the

purpose relevant to POP’s. Likewise, if it is found in the Biosafety Framework, it relates to the

mitigation of risks associated with Genetically Modified Organisms (GMO). This characteristic of

the Precautionary Principle reveals its flexibility rather than being a hard-and-fast rule.47

Despite the varying formulations of the Precautionary Principle, there are three basic and

common elements that trigger its application: (1) there must be a threat of damage to the

environment; (2) the threat of damage is serious or irreversible; and (3) there is lack of scientific

certainty.48

1. Threat of Damage to the Environment

The Precautionary Principle applies only where there is a threat of environmental damage.

Prevention of the threatened harm is the core purpose of the principle. 49 But mere possibility of

change in environmental status quo is insufficient to set the principle in action.50 To invoke the

Precautionary Principle, there must be an adverse change that amounts to an injury or loss.51

Furthermore, this threatened harm needs to be grounded on some scientific information and not

based lightly on speculations or conjectures.52

46
Id.
47
Id.
48
IUCN Guideline, supra note 7, at 2.
49
ARIE TROUWBORST, PRECAUTIONARY RIGHTS AND DUTIES OF STATES 37 (2006).
50
Id. at 40.
51
Id.
52
Id.

11
 2. The Threat is Serious or Irreversible

It is not enough that there is simply a chance of adverse effect on the environment.53In

order for the principle to operate, the threatened harm must be one that is serious or irreversible.

This element implies the degree of unacceptability of the risk.54 It indicates a minimum level of

risk which must be reached in order to justify a precautionary measure. 55 Hence, if the threatened

damage is insignificant, negligible or reversible, the principle finds no application.56

3. Serious Damage

Seriousness implies the gravity or the severity of the threatened environmental harm.57 One

indication of seriousness is the range of the geographical scope of the potential injury. A

widespread harm is more serious than a limited one. Another factor to consider is the duration or

the persistence of the harm. Long-term detrimental effects qualify as “serious damage”.58

4. Irreversible Damage

In the alternative, the environmental harm to be avoided should be irreversible in character.

This criterion may be linked to the finiteness of natural resources which is further imperiled by

overexploitation.59 Akin to the standard of seriousness, irreversibility may also be associated with

53
TROUWBORST, supra note 49.
54
Id.
55
ZANDER, supra note 33, at 36.
56
ROSIE COONEY, THE PRECAUTIONARY PRINCIPLE IN BIODIVERSITY CONSERVATION AND NATURAL
RESOURCE MANAGEMENT: AN ISSUES PAPER FOR POLICY-MAKERS, RESEARCHERS AND
PRACTITIONERS 7 (2004).
57
TROUWBORST, supra note 49, at 57.
58
Id.
59
Id.

12
the span of time the environment may recover from its damaged condition.60 The rapid decline in

marine population as a result of overfishing may be considered as irreversible damage.

5. Lack of Scientific Certainty

The Precautionary Principle is relevant only in situations where there is scientific

uncertainty. Uncertainty is generally described as the “lack of precise knowledge as to what the

truth is, whether quantitative or qualitative.”61 This could be illustrated by a situation where

scientific knowledge or evidence is scarce or the scientific information available is inadequate to

ascertain the risks.62 Uncertainty could stem from a variety of causes such as the use of different

variables, lack of information, gaps in scientific theories and imperfect scientific methodologies.63

But where the causative relationship between an action and the damage can be established,

the prospects of occurrence can be calculated, and the damage insured against can be estimated,

the principle loses its relevance.64

This key element, however, does not dispense with the need for scientific evidence. The

principle still mandates scientific analysis and rejects speculations of threatened damage. The harm

sought to be avoided must be plausible and possible in light of the available scientific

information.65 There still has to be scientific basis in forecasting the possibility of harmful effects

but not necessarily on the basis of majority expert opinion. The deficiency in information or the

60
Id.
61
LUKASZ GRUSZCZYNSKI, REGULATING HEALTH AND ENVIRONMENTAL RISKS UNDER WTO LAW:
A CRITICAL ANALYSIS OF THE SPS AGREEMENT 31 (2010). (Citing National Research Council,
Committee on Risk Assessment of Hazardous Air Pollutants Commission on Life Sciences,
Science and Judgment in Risk Assessment 161 (1994)).
62
Defur and Kaszuba, supra note 27, at 157.
63
GRUSZCZYNSKI, supra note 61.
64
IUCN Guideline, supra note 7, at 2.
65
COMEST, supra note 1, at 12.

13
divergent views presented by qualified and reliable experts may suffice to establish a state of

scientific uncertainty.66

A timely and relevant example of the application of the Precautionary Principle relates to

the global concern for climate change. Full, definitive science as to the exact cause and

circumstances affecting global warming is still inaccessible, but it is internationally accepted that

the world faces climate change as an irreversible and inevitable phenomenon.67 Consequently,

despite the lack of full scientific certainty, States demanded a precautionary approach in the

regulation of greenhouse gases and CFCs through the Vienna Convention on the Protection of the

Ozone Layer.68

6. Categories of Scientific Uncertainty

There is no uniformly accepted classification of “uncertainty” that exists in scientific

literature.69 For purposes of this thesis, the categorization offered by Klinke and Renn will be

helpful in ascertaining the different types of scientific uncertainty that could set the Precautionary

Principle into action.70

There are four categories of scientific uncertainty identified by the authors mentioned.71

These categories describe the source from which the uncertainty originates. The first type of

uncertainty is “variability”.72 This refers to the variations in responses to the same stimulus among

66
PATRICIA BIRNIE, ET AL., INTERNATIONAL LAW AND THE ENVIRONMENT 156 (3RD ED., 2009).
67
Massachusetts, et al., v. Environmental Protection Agency, et al., 549 U.S. 497 (U.S).
68
Id.
69
GRUSZCZYNSKI, supra note 61, at 31.
70
Andreas Klinke and Ortwin Renn, A New Approach to Risk Evaluation and Management: Risk-
Based, Precaution-Based, and Discourse-Based Strategies, 22 Risk Analysis, 1071 (2002).
71
Id. at 1079.
72
Id.

14
the subjects of scientific analysis whether humans, animals, or plants.73 The differences may result

from the individual characteristics of the target such as age, sex and lifestyle. 74 For example,

sensitivity to stimulus may differ between different species of the same genus of plants and

animals.

The second type of uncertainty is the “systematic and random measurement errors.”75 This

includes the imprecision or imperfection of scientific measurement, problems of drawing

inferences, extrapolation from experimental data onto human uncertainties of models and

functional relationships, among many others.76

The third category is “indeterminacy” which results from the random probabilities and

behavior between cause and effect and other relationships between variables.77

The last classification is “lack of knowledge”.78 This category encompasses lack of

observations and measurements, conflicting evidence and competing theories.79

Needless to say, apart from the four typologies, there always remains the inherent

uncertainty of science,80 as even certain branches of science conflict with one another. This results

from the nature of science that it is constantly evolving and as such, its claims continue to be valid

only as long as no contrary evidence surfaces.81 Being naturally innate in science, this kind of

uncertainty is normally disregarded in scientific assessments and experiments.82

73
GRUSZCZYNSKI, supra note 61, at 32.
74
Klinke and Renn, supra note 70, at 1079.
75
Id.
76
Id.
77
Id.
78
Id.
79
GRUSZCZYNSKI, supra note 61, at 31.
80
Id.
81
Id.
82
Id.

15
 7. Degrees of Scientific Uncertainty

Aside from classifying uncertainty based on sources or causes, scientific uncertainty may

also be described according to “degree of uncertainty” ranging from “inexactness” to

“indeterminacy.”83

First in the range is “inexactness” which represents the natural uncertainty in scientific

data and, as such, is considered the closest to “certainty.”84 This recognizes the reality that

empirical information will never be one hundred percent correct and impeccable for there will

always be some margin of error no matter how small.

Second is the “lack of observations or measurements.”85 This level of uncertainty is

attributable to the lack of information which, however, may be remedied through further studies

and research.86

The third degree of uncertainty is “conflicting evidence.”87 Divergent scientific opinions

and evidence regarding the same subject matter may be caused by varying methods of appreciating

and evaluating the scientific data available as well as different variables utilized in scientific

experiments (eg. civil engineering v. geology).88

The fourth degree is “practical immeasurability”.89 It refers to the impossibility in

obtaining the necessary information to reach the desired level of certainty.

83
ZANDER, supra note 33, at 16.
84
Id.
85
Id.
86
Id.
87
Id.
88
Id.
89
ZANDER, supra note 33, at 16.

16
 Finally, the last degree is “ignorance,” which means that the actual risk is hidden or

unexpected and is therefore, impossible to consider.90 The Precautionary Principle most properly

apply in the contexts of the second and third degrees of uncertainty which are the lack of

information and conflicting scientific evidence.91

B. Sources of Precautionary Principle

Since its emergence, the Precautionary Principle has been incorporated in more than 50

international legal instruments and domestic laws.92 Between 1992 and 1999, about twenty-seven

resolutions of the European Parliament explicitly referred to the precautionary principle. 93 These

legal documents are diverse in terms of subject matter which depends according to the issue it

seeks to address such as climate change, biosafety, conservation of biodiversity and pollution. The

assortment of areas in which the Precautionary Principle is utilized highlights the flexibility of its

application.

Numerous fields of environmental law, including climate change, sustainable development

and biodiversity, have embraced the ideology of Precautionary Principle as an approach in

obviating environmental perils.94 The United Nations Framework on Climate Change relies on the

Precautionary Principle as a means to “anticipate, prevent or minimize” the causes and effects of

climate change.95 The formulation it adopted resembles that of the Principle 15 of the Rio

Declaration.

90
Id.
91
Id. at 17.
92
WIENER, supra note 33, at 601.
93
David Vogel, Risk Regulation in Europe and the United States (2002).
94
BIRNIE, supra note 66, at 157.
95
United Nations Framework Convention on Climate Change, art. 3.3 March 21, 1994, 1771
U.N.T.S. 107 [hereinafter UNFCCC].

17
 The 1992 Convention on Biodiversity also expressed in its preamble its adherence to the

concept of the Precautionary Principle despite the absence of a specific reference to the principle.96

Under this Convention, the threat sought to be prevented pertains to biodiversity in particular. The

standard provided to justify precautionary measures is a “significant reduction or loss” in

biodiversity.

The Cartagena Biosafety Protocol which deals with the handling of living modified

organisms also incorporated the Precautionary Principle in its text by expressly referring to

Principle 15 of the Rio Declaration.97 Beyond biodiversity, the Protocol also relies upon the same

principle in requiring States to bear in mind the possible risks to human health when dealing with

living modified organisms.98

Among the multiple expressions of the Precautionary Principle, Principle 15 of the Rio

Declaration remains to be the most generally accepted phraseology. Under the Rio Declaration,

the requirement of taking action is mandatory considering the use of the word “shall.”.99 Therefore,

once the threshold requirements are satisfied, precaution becomes legally required.100

C. Genetic Modification

Scientists, particularly those who specialize in genetics, have long practiced genetic

manipulation, breeding, hybridization, and other modification techniques to improve the yield and

96
Convention on Biological Diversity, pmbl, June 6, 1992, 1760 U.N.T.S. 79 [hereinafter “CBD”].
97
Cartagena Protocol on Biosafety to the Convention on Biological Diversity art. 10(6), Jan. 29,
2000, 2226 U.N.T.S. 208 [hereinafter “Biosafety Protocol”].
98
Id., Art.2.2.
99
PHILIPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 272-273(2ND ED.,
2003).
100
Daniel Kazhdan, Precautionary Pulp: Pulp Mills and the Evolving Dispute Between
International Tribunals Over the Reach of the Precautionary Principle, ECOLOGY L.Q. 527, 529
(2011).

18
quality of crops and to provide crops with intrinsic protection against insects and diseases.101 The

process, in a nutshell, entails the reorganization of the genomes of two individuals and the selection

for individuals with desirable combination of the parental characteristics.102

In plants, pollen grains from the desired source are deposited on the stigma of a receptive

female plant.103 Pollination or mating is followed by fertilization and subsequently development

into an embryo.104

Modern genetic engineering involves Recombinant DNA (rDNA) technology which

allows scientists to transfer genes from one organism to any other. 105 This technology allowed

scientists to treat all living things as belonging to one giant breeding pool. Unlike other genome

rearrangement methods, rDNA technology introduces foreign DNA sequences into the plant’s

genome giving it the characteristics of other organisms.106

D. Genetically Modified Crops

Genetically Modified Crops (“GM crops”) are plants created for human or animal

consumption using the latest biological engineering techniques.107 These plants are modified to

strengthen desired traits such as resistance to pests or nutritional content.108 Biotechnology in

101
GAO YONG, THE GMO HANDBOOK: GENETICALLY MODIFIED ANIMALS, MICROBES, AND
PLANTS IN BIOTECHNOLOGY 297 (2004)
102
Id at 183.
103
GEORGE ACQUAAH, UNDERSTANDING BIOTECHNOLOGY: AN INTEGRATED AND CYBER-BASED
APPROACH 62 (2004).
104
Id at 64.
105
Id at 69.
106
Id at 70.
107
Id.
108
Gayen, D., Paul, S., Sarkar, S.N., Datta, S.K., Datta, K., Comparative nutritional compositions
and proteomics analysis of transgenic Xa21 rice seeds compared to conventional rice, FOOD
CHEMISTRY (2016).

19
agricultural production endeavors to overcome the challenges being faced in farming such as pest

infestation and disease which lead to significant yield losses for farmers.109

GM Crops are currently being developed to substantially improve production and yields in

developing countries where pest damage is the biggest threat to harvests as well as reduce the use

of chemical pesticides therein.110 Crops which have been genetically engineered to resist the

application of potent herbicides using genes from soil bacteria eliminates the time consuming and

costly physical removal of weeds by tilling.111 The herbicides to which the GM crops are tolerant

are broad application herbicides, which means they can be sprayed over the entire field, killing all

plants apart from the GM crop.112

Other crops are genetically modified to withstand harsh climate conditions such as GM

strawberries or soybeans, which were laced with the anti-freeze gene of arctic flounder, to protect

them against the damaging effects of the frost; and GM tobacco and potato with anti-freeze gene

from cold water fish.113

Crops are also modified to produce micronutrients vital to humans such as the “golden

rice” which was genetically modified to produce beta-carotene, which can solve Vitamin A

deficiency and prevent night blindness.114

109
C. NEAL STEWART, JR, GENETICALLY MODIFIED PLANET: ENVIRONMENTAL IMPACTS OF
GENETICALLY ENGINEERED PLANTS 1-4 (2004).
110
Id.
111
R.H. Phipps and J.R. Park, Environmental Benefits of Genetically Modified Crops: Global and
European Perspectives on their Ability to Reduce Pesticide Use, JOURNAL OF ANIMAL AND FEED
SCIENCES (2002)
112
Id.
113
Stewart supra note 109.
114
Id.

20
 There are also crops genetically engineered to produce vaccines against infectious diseases

that would make vaccination more readily available to children around the globe.115 For example,

genetically modified bananas containing dormant viruses which cause cholera, hepatitis B and

diarrhea, have been produced.116

Other engineered crops include spoilage-prone fruits bioengineered for delayed

ripening,117 Crops bioengineered to reduce the likelihood of their seed pods shattering,118 and

High-lysine maize and soybeans, maize with high oil and energy content, and forage crops with

lower lignin content.119

E. The Concern about Genetically Modified Crops.

The most significant environmental concern regarding GM crops are those related to crops

that are modified to be resistant to pests and tolerant of herbicides.120 One foreseeable risk is that

target pests will develop immunity to toxins produced by the said pest-resistant GM crops, such

as Bt corn or Bt cotton. In conventional spraying, target pests are subjected to Bt toxins only for

short periods, whereas currently available Bt crops produce toxins during the entire season. Thus,

genetically modified Bt crops could increase the possibility of developing Bt-resistant pests.121

115
Sands supra note 99 at 14.
116
Id.
117
Peggy G. Lemaux, “Plant Growth Regulators and Biotechnology” (1999).
118
Sarah J. Liljegren et al., “Shatterproof Mads-box Gene Control Seed Dispersal in Arabidopsis,”
Nature” 404 (2000) 766-70.
119
Barbara Mazur, Enno Krebbers, and Scott Tingey, Gene Discovery and Product Development
for Grain Quality Traits, 30 SCIENCE285, 372-375 (1999).
120
Liu Yong-Biao et al., Development Time and Resistance to Bt Crops, 400 NATURE519 (1999).
121
Fred Gould, Sustaining the Efficacy of Bt Toxins, in AGRICULTURAL BIOTECHNOLOGY AND
ENVIRONMENTAL QUALITY: GENE ESCAPE AND PEST RESISTANCE,10(1998); see also Theo
Wallimann, Bt Toxin: Assessing GM Strategies, SCIENCE287 (2000).

21
 The strategies used to address pest resistance include ensuring that plants deliver high doses

of Bt, as well as maintaining isolated refuges for non-Btcrops to ensure pest populations remain

susceptible to Bt. The Environmental Protection Agency (“EPA”) of the United States requires Bt

corn farmers to dedicate twenty percent of their land to non-Bt corn as refuges. As an additional

step of precaution, the EPA requires expanded monitoring to detect any potential resistance.122

Alternative strategies developed to obstruct the development of pesticide resistance include

crop rotation,123 engineering crops to have more than one toxin gene acting on separate pest

targets,124and introducing the bioengineered gene into the plant’s chloroplast to express the Bt

toxin at higher levels. 125

Another risk is that Bt from pest resistant plants could harm, if not kill, non-target species

such as for instance when the Bt toxin were to drift away in the form of pollen or if it were to leak

through the roots and be consumed by non-target organisms.126

In a study, Losey, Rayor, and Carter demonstrated through an experiment that the mortality

rate of Monarch butterfly larvae fed with milkweed dusted with Btmaize pollen was 44 percent,

compared to zero for the control case, which used milkweed dusted with ordinary pollen.127 The

extent to which, the Monarch butterfly population would be affected in the real world is still

uncertain.128

122
Press release of the Environmental Protection Agency, BtCorn Insect Resistance Management
Announced for 2000 Growing Season, (January 14, 2000) (on file with author).
123
Gould, supra note 121.
124
Gordon Conway, Food for All in the Twenty-First Century, ENVIRONMENT, 42 8-18 (2000).
125
Henry Daniell, The Next Generation of Genetically Engineered Crops for Herbicide and Insect
Resistance: Containment of Gene Pollution and Resistant Insects, AGBIOTECHNET VOL.1 (1999).
126
John E. Losey, Linda S. Rayor, and Maureen E. Carter, Transgenic Pollen Harms Monarch
Larvae, NATURE214-399 (1999)
127
Id.
128
S. Milius, New Studies Focus Monarch Worries, SCIENCE NEWS VOL. 156 (1999) 391.

22
 One study submits that in a worst-case scenario, almost 7 percent of the North American

Monarch population (estimated at 100 million) may die, although the effect on the ground may be

smaller.129 Some have argued, on the other hand, that the major threat to the Monarch butterflies

is the loss of their winter habitat in Mexico.130 More importantly, the dangerous effects of Bt crops

due to pollen dispersal or root leakage could be eliminated by “bioengineering genes into the

chloroplast rather than into nuclear DNA.”131

The Bt toxin could also enter the food chain through leakage from the GM crops’ roots or

if predators prey on pests that have eaten them, as studies have shown that green lacewing larvae,

a beneficial insect, that ate maize borers fed with Bt maize had a higher mortality rate.132 However,

the significance of this finding has been disputed based on the long history of Bt spraying on crops

and other studies that showed beneficial insects which were not harmed by such spraying.133

There is also a concern that genes from herbicide-or pest-resistant crops might escape into

the wild and “contaminate” their non-engineered relatives leading to the creation of “superweeds”

which would adversely impact on farmers by reducing crop yields which would be counter-

intuitive to development and use of GM crops.134

Gene leakage or escape is possible if sexually compatible wild relatives are found near

fields planted with GM crops such as sorghum, oats, rice, canola, sugar beets, carrots, alfalfa,

129
Id.
130
Mary Beth Sheridan, A Delicate Balancing Act in Mexico, LOS ANGELES TIMESHOME EDITION,
(February 29, 2000) at A section.
131
Susan E. Scott and Mike J. Wilkinson, Low Probability of Chloroplast Movement from Oilseed
Rape (Brassica Napus) into Wild Brassica Rapa,” NATURE BIOTECHNOLOGY (1999) 17.
132
Angelika Hilbeck et al., Effects of Transgenic Bacillus Thuringiensis Corn-fed Prey on
Mortality and Development Time of Immature ChysoperlaCarnea (Neuroptera: Chrysopidae),
ENVIRONMENTAL ENTOMOLOGY27 (1998) 480-487.
133
Alan J. Gray and Alan F. Raybould, Crop Genetics: Reducing Transgene Escape Routes,
NATURE 392 (1998) 653-654.
134
Id.

23
sunflowers, and radishes.135 Thus, farmers clearly have a natural incentive to prevent wild relatives

and weeds from acquiring herbicide tolerance.

Moreover, another important concern is that centuries of conventional breeding which

altered the genetic structure of wild plants have rendered a number of important crops such as

wheat and maize, “incompetent” in many areas.136 In spite of the use of such conventionally-bred

herbicide-resistant plants, there has been no increase in complications due to herbicide resistant

weeds,137and if any weeds develop such resistance, available crop management techniques such as

the employment of another herbicide can be used to control them. Gene escape from GM crops to

wild relatives is also an environmental because herbicide-tolerant “superweeds” could invade

natural ecosystems. 138

Genes may also escape from GM crops to non-GM crops of the same species and organic

farmers will be adversely affected because this would “taint” their produce and conversely,

producers of GM seeds would not want others to profit from their investments as well.139 But gene

leakage or escape could be avoided if the GM plant was modified to be sterile or prevented from

reproducing by employing “terminator technology” by inserting the sterility gene into the

chloroplast of the plant, which would preclude its spread through pollen or fruit, as well as prevent

root leakage.140

Finally, there is a concern that in the endeavor to increase yields, genetically altered plants

will work too effectively in reducing the damage of pests and weeds, resulting to the simplification

135
Philip J. Regal, Scientific Principles for Ecologically Based Risk Assessment of Transgenic
Organisms,” MOLECULAR ECOLOGY 3 (2000) 5-13.
136
Id.
137
Id.
138
Id.
139
Id.
140
Mark Sagoff, What’s Wrong with Exotic Species, REPORT FROM THE INSTITUTE FOR
PHILOSOPHY AND PUBLIC POLICY19 (1999) 16-23.

24
of agricultural ecosystems and decreasing biodiversity.141 This concern, together with the other

noted environmental concerns, evaluated and weighed against the aggregate biodiversity benefits

of reduced conversion of habitat to cropland, and decreased use of chemical use to kill pests and

weeds.142

141
Id.
142
Id.

25
 CHAPTER III

THE PRECAUTIONARY PRINCIPLE AND THE REGULATION OF GENETICALLY

MODIFIED CROPS IN THE PHILIPPINES

The Philippines, together with India and China, are among the few Asian countries that

engages in the commercial research, production, and exportation of GM crops such as maize and

cotton.143 As of 2005, GM crops occupy 0.8% of our total agricultural land area. 144 Instead of

banning them, we pursue a policy of “coexistence” or allowing both natural and GM crops to be

harvested, sold, and exported.145 In this chapter, the entry points of the precautionary principle in

in the Philippines will be explained in detail.

With regard to genetic modification, the precautionary principle has three manifestations

in the Philippines: (A) As a treaty obligation under the Cartagena Protocol; (B) as an administrative

guideline in the form of National Biosafety Framework of 2006 and as a rule of procedure under

the (C) Rules on Environmental Procedure and (D) as jurisprudence in International Service for

the Acquisition of Agri-biotech Applications et. Al. vs. Greenpeace et. al.

A. As a treaty obligation under the Cartagena Protocol on Biosafety.

On December 29, 1993, the Convention on Biological Diversity (“CBD”) came into

force.146 This is a multilateral treaty recognizing the great potential of modern biotechnology for

143
Zepeda, J. Coexistence, Genetically Modified Biotechnologies and Biosafety: Implications For
Developing Countries, Oxford Journal Of International Law 1(2006).
144
Id at 2.
145
Id.
146
CBD Supra note 96.

26
human well-being if developed and used with adequate safety measures for the environment and

human health.147

In the preamble of the Convention on Biological Diversity it is noted that: “Where there is

a threat of significant reduction or loss of biological diversity, lack of full scientific certainty

should not be used as a reason for postponing measures to avoid or minimize such a threat.”

In January 2000, an agreement was reached through the Cartagena Protocol on Biosafety,

a supplement to the CBD, which aims to ensure an adequate level of safe transfer, handling, and

use of living modified organisms resulting from modern biotechnology.148 The Philippines signed

the same on May 24 of the same year.149

B. As an administrative guideline under the National Biosafety Framework of 2006

In 2006, President Gloria Macapagal Arroyo issued Executive Order No. 514 (“EO 514”

which established the National Biosafety Framework (“NBF”).150 EO 514 enumerated the national

authorities in charge of regulation of modern biotech activities for the purposes of compliance with

the Cartagena Protocol on Biosafety. It designated the Department of Science and Technology

(“DOST”) to be responsible for “contained use experiments” and the Department of Agriculture

Bureau of Plant Industry (“DA BPI”) for the regulation of field testing and commercialization of

biotech crops.151

147
Id.
148
Biosafety Protocol supra note 97.
149
Parties to the Protocol and signature and ratification of the Supplementary Protocol available
at https://bch.cbd.int/protocol/parties/ (Last accessed October 12, 2017)
150
Office of the President, Establishing the National Biosafety Framework, Prescribing guidelines
for its implementation, strengthening the National Committee on Biosafety of the Philippines, and
for other purposes, Executive Order No. 514, Series of 2006 [E.O NO. 514, S. 2006] (March 17,
2006).
151
Id.

27
 The NBF created by EO 514 covers all activities relating to the development, adoption,

and implementation of all biosafety policies, measures and guidelines, and decisions concerning

the research, development, handling and use, transboundary movement, release into the

environment and management of regulated articles. Its objectives are as follows: to strengthen the

existing science-based determination of biosafety; to enhance the decision-making system on the

application of products of modern biotechnology to make it more efficient, predictable, effective,

balanced, culturally appropriate, ethical, transparent, and participatory; and to serve as guidelines

for implementing international obligations on biosafety.152

It describes the roles, mandates, jurisdiction and powers of various departments and

agencies in regulating biotechnology. It also prescribes the institutional arrangements to be

followed for biosafety decision-making system in the country. The Framework provides for: (1)

Guiding principles that should govern biosafety decisions and (2) the creation of the National

Committee on Biosafety of the Philippines (“NCBP”).153

1. Guiding principles governing biosafety decisions.

The Framework provides for the following guiding principles:154 (a) Standard of

Precaution, (b) Risk Assessment, (c) Environmental Impact Assessment, (d) Socio-economic,

Ethical, Cultural and Other Considerations, (e) the Cartagena Protocol, and finally (f) Monitoring

and Enforcement.155 These considerations were amply perused by the court in the Bt eggplant case.

152
Id.
153
Id Sec. 2.
154
Id.
155
A Report for the National Committee on Biosafety of the Philippines (NCBP) by The National
Academy on Science and Technology (NAST), Biosafety Regulations in the Philippines: A Review
of the First Fifteen Years, Preparing for the Next Fifteen (2009) (on file with author) [hereinafter
Biosafety Report].

28
 a. Standard of Precaution.

Pursuant to Article 10, par. 6 and Article 11, par. 8 of the Cartagena Protocol on Biosafety,

the lack of scientific certainty or consensus due to insufficient relevant scientific information and

knowledge regarding the extent of the potential adverse effects of a genetically modified organism

on the environment shall not prevent government departments and agencies from taking the

appropriate decision to avoid or minimize potential or adverse effects.156

b. Risk Assessment.

Risk assessment shall be mandatory and central in making biosafety decisions. It shall

identify and evaluate the risks to human health and the environment, and if applicable, to animal

health. Risk assessments shall be carried out to determine whether a regulated article poses

significant risks to human health and the environment. Their conduct by concerned departments

and agencies shall be in accordance with the policies and standards on risk assessment issued by

the NCBP.

c. Environmental Impact Assessment.

The application of Environmental Impact Assessment to biosafety decisions shall be

determined by concerned departments and agencies subject to the requirements of law and

standards set by the NCBP. Where applicable and under the coordination of the NCBP, concerned

departments and agencies shall issue joint guidelines on the matter.

According to EO 514: “the application of the EIA System to biosafety decisions shall be

determined by concerned departments and agencies subject to the requirements of law and the

156
Id.

29
standards set by the NCBP.”157 Thus, EO 514 does not impose a mandatory EIA, but the

requirement of an EIA for a particular project will be evaluated and determined by the concerned

department.

d. Socio-economic, Ethical, Cultural and Other Considerations.

Consistent with Article 26 of the Cartagena Protocol, concerned departments and agencies

may take into account socio-economic considerations arising from the impact of regulated articles

on the conservation and sustainable use of biological diversity, especially with regard to the value

of biological diversity to indigenous and local communities.158

Pursuant to this, Local Government Units (LGU) have an extensive role. According to

Section I of the NBF, the state policies as delineated in the Philippine Constitution shall guide in

the implementation of the NBF. One of these is regarding Local Autonomy and states: “The

territorial and political subdivisions shall enjoy local autonomy.”159 The role of local government

in the implementation of the NBF is not well defined. Currently, the practice is that the local

community including the barangay officials is briefed regarding the field testing.

The posting of the public information sheet is also signed by the barangay captain. The

barangay captain and other local government officials should therefore have some understanding

of the technology and the issues involved. The NBF recognizes the need for capacity building of

various sectors to ensure its proper implementation. These sectors include policy makers,

regulatory agencies, local government units, the research community and the general public

involved in performing various tasks related to the NBF implementation.160

157
Id.
158
Id.
159
Id.
160
E.O NO. 514, S. 2006, supra note 150 at Sec 8.1.

30
 e. The Cartagena Protocol.

Competent national authorities may choose to adopt Articles 7 to 13 of the Cartagena

Protocol or issue their own respective rules and regulations that are consistent with the Protocol.

In all cases, decisions under the NBF shall fall within the timeframes required under the Cartagena

Protocol.

f. Monitoring and Enforcement.

Concerned departments and agencies shall monitor compliance with the conditions

attached to approvals and authorizations in a manner that is transparent, and in coordination with

other agencies, including local government units, and other stakeholders.

The NBF recognizes the right of the public and relevant stakeholders to information related

to biosafety decisions.161 As such, concerned departments and agencies shall, subject to reasonable

limitations to protect confidential information, disclose all information on such applications in a

prompt and timely manner. The public and relevant stakeholders shall have access to all biosafety

decisions such as summary of the application, results of risk assessment and other assessments

done.

The following minimum requirements for public participation shall be followed: notice to

all concerned stakeholders; adequate and reasonable timeframes; public consultations such as

formal hearings or solicitation of public comments; written submissions, and consideration of

public concerns in the decision-making process.162

161
Biosafety Report, supra note 157.
162
Id.

31
 To ensure proper implementation of the NBF, the need to strengthen the capacities of

various sectors is recognized. Thus, the design, adoption and implementation of a capacity-

building program supported by adequate financial resources are integral components of the NBF.

2. The creation of National Committee on Biosafety of the Philippines.

Under EO 514, there will be a new NCBP and each department will have its own biosafety

committee. The NCBP is the lead body in coordinating inter-agency and multi-sectoral efforts to

develop biosafety policies in the country and setting scientific, technical, and procedural standards

on actions by agencies and other sectors to promote biosafety in the Philippines; oversee the

implementation of the Biosafety Framework, act as clearing house for biosafety matters; and

coordinate and harmonize the efforts of all concerned agencies and department.163

The NCBP is the lead body in implementing the NBF. It spearheads coordination and

harmonization of inter-agency and multi-sector efforts to develop biosafety policies in the country

and set scientific, technical and procedural standards on actions by agencies and other sectors to

promote biosafety in the Philippines. The NCBP Secretariat also serves as the country’s focal point

for Biosafety Clearing House (BCH). Under the NBF, the new NCBP has multi-faceted roles and

shall perform biosafety policy, accountability, scientific, and capacity-building functions.

C. As a rule of procedure under Rules on Environmental Procedure

The rules were formulated as a response to the need for more specific rules that can

sufficiently address the procedural concerns that are peculiar to environmental cases. 164 Most of

the provisions included here are remedies that are directed to the actual difficulties encountered at

163
Id.
164
Philippine Judicial Academy, Annotation, Laws, Rules, and Issuances for Environmental
Cases, 1, 2 (2012).

32
present by concerned government agencies, corporations, practitioners, people’s organizations,

non-governmental organizations, and public-interest groups handling environmental cases. Two

particular features of the rules stand out: (1) The Precautionary Principle and (2) The Writ of

Kalikasan.

1. The Precautionary Principle under the rules.

The Rules prescribe that: “when human activities may lead to threats of serious and

irreversible damage to the environment that is scientifically plausible but uncertain, actions shall

be taken to avoid or diminish that threat.”165 This is basically the precautionary principle.

The adoption of the precautionary principle as part of the Rules, specifically relating to

evidence, recognizes that exceptional cases may require its application. The inclusion of a

definition of this principle is an integral part of Part V, Rule on Evidence166 on environmental

cases in order to ease the burden on the part of ordinary plaintiffs to prove their cause of action.

In essence, the precautionary principle calls for the exercise of caution in the face of risk

and uncertainty. While the principle can be applied in any setting in which risk and uncertainty are

found, it has evolved predominantly and today remains most closely associated with the

environmental arena.167

The Rules acknowledge the peculiar circumstances surrounding environmental cases in

that “scientific evidence is usually insufficient, inconclusive or uncertain and preliminary scientific

evaluation indicates that there are reasonable grounds for concern” that there are potentially

dangerous effects on the environment, human, animal, or planet health. For this reason, the

165
Rules on Environmental Procedure, supra note 14.
166
1989 REVISED RULES ON EVIDENCE.
167
Id.

33
principle requires those who have the means, knowledge, power, and resources to take action to

prevent or mitigate the harm to the environment or to act when conclusively ascertained

understanding by science is not yet available.168

In effect, the quantum of evidence to prove potentially hazardous effects on the

environment is relaxed and the burden is shifted to proponents of an activity that may cause

damage to the environment.169

There are numerous formulations170of the precautionary principle and it is recited in many

international declarations and treaties, so much so that “while not all scholars agree to its status as

that of customary international law, many respected scholars do.”171

In formulating the definition of the precautionary principle in the Rules, the definitions

found in the Rio Declaration of 1992,172 the 1999 Canadian Protection Act (CEPA 1999),173 and

the World Commission on the Ethics of Scientific Knowledge and Technology (COMEST)

2005,174 were considered.

2. The Writ of Kalikasan

The Writ of Kalikasan is a special remedy available against an unlawful act or omission of

a public official or employee, or private individual or entity, involving environmental damage of

168
Id.
169
Id.
170
Cass R. Sunstein, Irreversible and Catastrophic, Cornell L. Rev. 841 (2006).
171
John O. McGinnis, The Appropriate Hierarchy of Global Multilateralism and Customary
International Law: The Example of the WTO, 44 Va. J. Int’l L. 269 (2008), cited in Jonathan Remy
Nash, Essay: Standing and the Precautionary Principle, 108 Colum. L. Rev. 494 (2003).
172
Rio Declaration, supra note 34.
173
An Act respecting pollution prevention and the protection of the environment and human health
in order to contribute to sustainable development [CANADIAN ENVIRONMENTAL PROTECTION ACT],
S.C. 1999, c. 33 (1999).
174
COMEST, supra note 1.

34
such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or

provinces.175

The petition for the issuance of a Writ of Kalikasan can be filed by any of the following:

(1) a natural or juridical person; (2) entity authorized by law; or (3) people’s organization, non-

governmental organization, or any public interest group accredited by or registered with any

government agency “on behalf of persons whose constitutional right to a balanced and healthful

ecology is violated… involving environmental damage of such magnitude as to prejudice the life,

health or property of inhabitants in two or more cities or provinces.”176 Those who may file for

this remedy must represent the inhabitants prejudiced by the environmental damage subject of the

writ. The requirement of accreditation of a group or organization is for the purpose of verifying its

existence. The accreditation is a mechanism to prevent “fly by night” groups from abusing the

writ.177

The underlying emphasis in the Writ of Kalikasan is the “magnitude” of the damage that

transcends political and territorial boundaries. Magnitude is thus measured according to the

qualification set forth in the Rules— when there is environmental damage that prejudices the

life, health or property of inhabitants in two or more cities or provinces.178

Under Section 2 of Rule 7, the petition is required to allege the extent of the magnitude of

the environmental damage. All relevant and material evidence must be attached to the petition to

allow the court to determine whether the immediate issuance of the writ is warranted.179

175
Rules on environmental procedure, supra note 14.
176
Id.
177
Id.
178
Id.
179
Rules of environmental procedure, supra note 14, Sec. 2 Rule 7.

35
 D. As jurisprudence in the Case of International Service for the Acquisition of Agri-

biotech Applications et. Al. vs. Greenpeace et. al.180

Last September 24, 2010 the International Service for the Acquisition of Agri-Biotech

Applications, Inc. (ISAAA), University of the Philippines Los Baños Foundation, Inc. (UPLBFI)

and UP Mindanao Foundation, Inc. (UPMFI), executed a Memorandum of Understanding to

collaborate on the research and development of Bt eggplant a species of eggplant that is resistant

to the fruit and shoot borer. Other partner agencies involved were UPLB through its Institute of

Plant Breeding, Maharastra Hybrid Seed Company (MAHYCO) of India, Cornell University and

the Agricultural Biotechnology Support Project II (ABSPII) of USAID. The UPLB Field Trial

Proposal states that the pest-resistant crop subject of the field trial was described as a “bio-

engineered eggplant.” The crystal toxin genes from the soil bacterium Bacillus thuringiensis (Bt)

were incorporated into the eggplant genome to produce the protein CrylAc which is toxic to target

insect pests. The latter is said to be highly specific to lepidopteran larvae such as fruit and shoot

borer (FSB), the most destructive insect pest of eggplant.

Pursuant to this, the NCBP issued a “Certificate of Completion of Contained Experiment”

which was conducted from 2007 to March 3, 2009 stating that during the conduct of experiment,

all the biosafety measures have been complied with and no untoward incident has occurred.

Subsequently, the Bureau of Plant Industry (BPI) issued biosafety permits to UPLB and field

testing commenced on various dates in the following approved trial sites: Kabacan, North

180
International Service for the Aquisition of Agri-Biotech Applications, Inc. vs. Greenpeace
Southeast Asia (Philippines), et al., G.R. Nos. 209271, December 8, 2015, available at
http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/december2015/209271.
pdf (last accessed November 11, 2017) [hereinafter ISAA vs. Greenpeace].

36
Cotabato; Sta. Maria, Pangasinan; Pili, Camarines Sur; Bago Oshiro, Davao City; and Bay,

Laguna.

On April 26, 2012, Greenpeace, MASIPAG and individual respondents (Greenpeace,

et.al.) filed a petition for writ of kalikasan and writ of continuing mandamus with prayer for the

issuance of Temporary Environmental Protection Order (“TEPO”) alleging that the Bt eggplant

field trials violate their constitutional right to health and a balanced ecology. In their petition, one

of their submissions is that “… (f) The case calls for the application of the precautionary principle,

it being a classic environmental case where scientific evidence as to the health, environmental and

socio-economic safety is insufficient or uncertain and preliminary scientific evaluation indicates

reasonable grounds for concern that there are potentially dangerous effects on human health and

the environment.”

On May 2, 2012, the SC issued the writ of kalikasan against ISAAA, EMB, BPI, FPA and

UPLB, ordering them to file a verified return. In their return the respondents contended that the

precautionary principle does not apply since the field testing is only a part of a continuing study to

ensure that the field trials have no significant and negative impact on the environment

In a Resolution issued on July 10, 2012 the Supreme Court referred the case to the Court

of Appeals (“CA”). On May 17, 2013, the CA rendered a decision in favor of the Greenpeace,

et.al. finding that the precautionary principle set forth in Section 1, Rule 20 of the Rules of

Procedure for Environmental Cases (the Rules) finds relevance in the case and justified its ruling

by relying on the theory that introducing a genetically modified plant into the ecosystem is an

“ecologically imbalancing act.”

37
 Consequently, ISAAAI, EMB/BPI/FPA, UPLB and UPLBFI filed a consolidated petition

before the SC to reverse the CA decision permanently. I shall now discuss the (1) relevant issue

and (2) the court’s holding.

1. Relevant Issue

The crucial issue in this case, given the tenor of the study, is whether the precautionary

principle should apply.

This is important because under the Rules on Environmental Procedure, once the court

finds that the principle applies, the burden of proof then shifts to the respondents to show that the

project or activity poses no significant or irreversible danger to the environment.

2. The Court’s Holding

When the features of (1) uncertainty, (2) possibility of irreversible harm, and (3) possibility

of serious harm coincide, the case for the precautionary principle is strongest. The Supreme Court

found all three conditions present.

In explaining its finding that the precautionary principle applies, it gave credence to

independent scientific studies such as those by Seralini which revealed the adverse effects on the

environment associated with the use of GM technology in agriculture, and serious health hazards

from consumption of GM foods. For the SC, a biodiversity-rich country like the Philippines, the

unforeseen consequences of contamination and genetic pollution would be disastrous and

irreversible.

Together with the mentioned uncertainties, the SC held that the non-implementation of the

NBF in the crucial stages of risk assessment and public consultation, including the determination

of the applicability of the Environmental Impact Statement requirements to the GMO field testing,

38
are compelling reasons for the application of the precautionary principle. For the court, there exists

a preponderance of evidence that the release of the GMOs into the environment threatens to

damage our ecosystems and not just the field trial sites, and eventually the health of people once

the Bt eggplant is consumed as food.

Further, the precautionary approach entailed inputs from stakeholders, including

marginalized famers, not just the scientific community. This proceeds from the realization that

acceptance of uncertainty is not only a scientific issue but is related to public policy and involves

an ethical dimension.

3. Observations on the Court’s attitude towards the Precautionary Principle’s

application in the regulation of GMO crops.

The case above demonstrated our court’s attitude towards GMO crops and the relevance

of applying the precautionary principle in their regulation. While the decision was reversed on the

ground that the termination of the tests rendered the case moot,181 the previous decision represents

the Court’s understanding of the precautionary principle and its application to GMO crops.

Reversal of a decision on the ground of mootness does not preclude a critical examination of the

ratio’s merits.

Further, the decision’s approach to the principle’s application may be used as a guideline

by the Supreme Court itself or the lower courts in future cases which may be problematic

considering the loose standard that was set in the case.

181
International Service for the Aquisition of Agri-Biotech Applications, Inc. vs. Greenpeace
Southeast Asia (Philippines), et al., G.R. No. 209271, July 26, 2016, available at
http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2016/july2016/209271.pdf
(last accessed November 11, 2017)

39
 CHAPTER IV

RECONCILING THE PRECAUTIONARY PRINCIPLE AND OPPORTUNITY COSTS:

A PROPOSED FRAMEWORK.

The Philippine Bt Eggplant case is the first instance where our Supreme Court applied the

Precautionary Principle. The principle is notorious for its vagueness. It provides little decisional

guidelines for judges. Making it more challenging is the fact that it be balanced with the discretion

of executive officials. There is a lack of guidance on the subject and this begs the question: then

how should judges decide, pursuant to the precautionary principle, in situations where an activity

or project could simultaneously lead to benefits as well as uncertain harms while at the same time,

giving due credence to the decision of executive officials?

Thus, it is necessary to formulate a test on when and how to apply it. This thesis submits

that precaution and opportunity could be reconciled by following a structured approach.

Consequently, the reckoning point of the proposed test’s application is when a petition for the

issuance of a writ of kalikasan or any environmental case is filed in court for its review or

judgment.

This chapter shall lay down the proposed criteria or test, divided in hierarchical steps, and

then discuss each criterion’s components in depth. This will provide an overarching guide which

shall shape all further discussion of particular problem areas. All justification as to why particular

questions are asked and how particular circumstances are resolved, shall be provided in the

subsequent discussions in this chapter.

Broadly, the test has two steps, in the form of questions, that courts should answer prior to

applying the precautionary principle: (A) Does field testing pose a serious or irreversible injury or

loss to the environment and (B) Is there scientific uncertainty regarding the alleged environmental

40
injury or loss as well as its seriousness or irreversibility? It is submitted that an affirmative an

answer to both questions should validly trigger the application precautionary principle. However,

this does not preclude the court from making equitable considerations on a case to case basis.

Additionally, the thesis also endeavors to suggest a clearer process of what should happen when

(C) shifting the burden of proof to the project proponent.

To better illustrate how the framework operates, (D) it will be hypothetically applied to

International Service for the Acquisition of Agri-biotech Applications et. Al. vs. Greenpeace et. al.

A. Does field testing pose a serious or irreversible injury or loss to the environment?

As previously discussed, this element connotes the unacceptability of the risk. Hence, if

the threatened damage is negligible or reversible, the courts cannot apply the principle.

Alternatively, the environmental harm to be avoided should be irreversible in character. This

criterion may be linked to the span of time the environment may recover from damage.

One significant illustration of a judicial attempt to apply the precautionary principle in

domestic litigation is the Australian case, Telstra Corporation Ltd. v. Hornsby Shire Council.182 The

case arose out of a dispute concerning the construction of a mobile telephone base station in a suburb

of Sydney, Australia. The Shire Council, in consideration of the community’s fears about the health

effects of radiofrequency electromagnetic energy refused the application for the base station

despite the fact that the installation complied with peer-reviewed, applicable national safety

standard. The Council's decision was appealed to the Land and Environment Court of New South

Wales.

182
Telstra Corporation Ltd. v. Hornsby Shire Council NSWLEC 133 (2006) (Australia).

41
 While the first condition precedent of “threat of injury or loss” does not require damage to

have actually occurred, it is submitted that there must be a real threat that damage will occur.

To determine if a threat is serious or irreversible, Chief Justice Preston in Telstra outlined

a variety of factors be considered to wit: (a) the spatial scale of the threat (e.g. local, regional,

statewide, national, international); (b) the magnitude of possible impacts, on both natural and

human systems; (c) the perceived value of the threatened environment; (d) the temporal scale of

possible impacts, in terms of both the timing and the longevity (or persistence) of the impacts; (e)

the complexity and connectivity of the possible impacts; (f) the manageability of possible impacts,

having regard to the availability of means and the acceptability of means; (g) the level of public

concern, and the rationality of and scientific or other evidentiary basis for the public concern; and

(h) the reversibility of the possible impacts and, if reversible, the time frame for reversing the

impacts, and the difficulty and expense of reversing the impacts.183 These are mere considerations

and hence, not completely exhaustive but they can nonetheless guide domestic courts in the proper

determination of the existence of a “threat of injury or loss to the environment.”

It is further submitted that the seriousness or irreversibility of the threat should be

determined by consulting a broad range of experts, stakeholders, and right holders. Thus, even

if experts might not consider a threat to be serious, this would not end the inquiry, as the values

and perceptions of the stakeholders and right-holders need to be considered as well. Nevertheless,

the threat of environmental damage must be adequately sustained by scientific evidence. Such

evidence must be grounded in scientific method and procedures, and the existence of the threat

must be based on more than subjective belief or unsupported speculations.

183
Id ¶131.

42
 It is understood that the principle only applies at the stage of determining burden of proof

at the preliminary stages of an action. At this stage of the analysis, a detailed or thorough

examination of the scientific evidence by the judge is not necessary. The only determination that

the judge should make with regard to the evidence of the seriousness or irreversibility of the

threat, is whether such evidence is mere speculation or based on subjective belief. If so, the there

is an absence of the first element of the precautionary principle. Documentary and object evidence

should support the claim that the threat being alleged is not speculative or based on belief alone.

B. Is there scientific uncertainty regarding the alleged environmental injury or loss as

well as its seriousness or irreversibility?

Once it has been established that there is a threat of irreversible or serious harm, then

the second condition precedent, scientific uncertainty, must be considered. When assessing

whether the degree of scientific uncertainty concerning the nature and scope of the threatened

environmental damage meets the requisite standard, the ruling in Telstra suggests that courts

should consider: (a) the sufficiency of the evidence that there might be serious or irreversible

environmental harm caused by the development plan, program or project; (b) the level of

uncertainty, including the kind of uncertainty (such as technical, methodological or epistemological

uncertainty); and (c) the potential to reduce uncertainty having regard to what is possible in

principle, economically and within a reasonable time frame.

It is suggested that courts should be mindful of the need to calibrate the level of

scientific uncertainty of the threat to the nature and scope of the apprehended environmental

harm. Thus, where the claimed degree or magnitude of potential environmental damage is

greater, the degree of certainty concerning the threat should accordingly be lowered in order to

43
accommodate the principle. This is because the right to a balanced and healthful ecology is more

compromised in such cases.

It is submitted that the threshold test for this stage of the analysis should be one of

reasonable scientific plausibility, a standard forwarded by Sadeleer. 184 The same standard was

followed by Telstra as well as the case of Gray v. Minister of Planning.185

Sadeleer points out that there is 'reasonable scientific plausibility' when risk begins to

represent a minimum degree of certainty, supported by repeated experience. But a purely theoretical

risk may also satisfy this condition, as soon as it becomes scientifically credible (emphasis supplied):

that is, it arises from a hypothesis formulated with methodological rigor and wins the support of

part of the scientific community, albeit a minority.

It is suggested that scientific credibility of evidence is best established through “peer

reviewed” academic journals which have been carefully examined by experts in the field who

specialize in the same scholarly area as the author and hence his or her peers. In a nutshell, the

peer reviewers check the scholarly work for accuracy and assess the research methodology and

procedures. They can also suggest revisions. If they find the article lacking in scholarly validity

and rigor, they reject it. A journal that fails to meet the standards established for a given discipline

will not be published. Hence, they exemplify the best research practices in a field.

184
NICHOLAS DE SADELEER, ENVIRONMENTAL PRINCIPLES: FROM POLITICAL SLOGANS TO LEGAL
RULES 160 (2005).
185
Gray v. Minister of Planning 152 LGERA 258 (2006) (Australia).

44
 C. Shifting the burden of proof to the project proponent.

If the conditions precedent, as set out above, are satisfied then the precautionary principle

should be triggered. At this juncture a shift in the burden of proof occurs. The judge must assume

that the threat of serious or irreversible environmental damage is no longer uncertain but is a

reality. The burden of showing that this threat does not in fact exist or is negligible effectively

reverts to the project proponent and the approving agency.

It must be emphasized that the shifting of the burden of proof does not determine the outcome

of the decision. On the contrary, the shift operates only in relation to one input of the decision-making

process: the question of environmental damage. As such, the judge, in these circumstances, assume

that damage will occur; they must then proceed to examine the merits with the proponent now carrying

the burden of dispelling such assumption at the risk of having the project suspended, postponed, or

ultimately enjoined by the court.

There is nothing in the formulation of the precautionary principle which requires decision-makers

to give the assumed factor of “serious or irreversible environmental damage” an overriding consideration

against the other factors required to be considered, such as social and economic factors, when deciding

how to proceed.

It is submitted that the precautionary principle does not, and should not conflict with social and

economic benefits because such considerations should be dealt with after the burden of proof has been

determined.

The precautionary principle is not a "zero risk" principle. There is no such thing as completely

“risk-free” innovation. Rather, it provides a structured way to determine the inputs to a cost-benefit

analysis which happens after the procedural concern of who between the proponent and

45
complainant, has the “burden of proof” is disposed of. Judges should be careful so as not to expand

its effect beyond procedure as contemplated by the rules.

D. Hypothetical application of the proposed test to International Service for the

Acquisition of Agri-biotech Applications et. Al. vs. Greenpeace et. al.

At this juncture, the proposed framework of the precautionary principle discussed above

will be compared to the court’s approach in the Bt eggplant case. The court’s approach will be

substituted with the proposed framework and the hypothetical outcome will be examined.

Generally, the question to be settled is “whether the precautionary principle should have

been applied.” Specifically, the thesis will make a hypothetical determination of the existence (1)

of a serious or irreversible injury or loss to the environment and (2) of scientific uncertainty.

Further, (3) the hypothetical outcome of the case, if such framework, in lieu of the court’s

approach, was adopted.

1. Does field testing pose a serious or irreversible injury or loss to the environment?

The respondents Greenpeace et. al. alleged the following injuries which may result

from the field testing of Bt eggplant: possible health risk for people who will consume it and

possible contamination and leakage. To support this, they heavily relied on the works of Drs.

Seralini, Moreno-Fierros, Garcia, Gutierrez, Vasquez-Padron, Lopez-Revilla, Quijano, Kiat, and

Andow.186

Culling from Telstra and Gray, the (a) first step is to consider the following factors in

relation to the injury alleged: the spatial scale of the threat (e.g. local, regional, statewide, national,

international); the magnitude of possible impacts, on both natural and human systems; the

186
ISAA vs. Greenpeace et al. supra note 183 at 22-23.

46
perceived value of the threatened environment; the temporal scale of possible impacts, in terms

of both the timing and the longevity (or persistence) of the impacts; the complexity and

connectivity of the possible impacts; the manageability of possible impacts, having regard to the

availability of means and the acceptability of means; the level of public concern, and the rationality

of and scientific or other evidentiary basis for the public concern; and the reversibility of the

possible impacts and, if reversible, the time frame for reversing the impacts, and the difficulty and

expense of reversing the impacts.

The (b) second step is for judges to determine whether the evidence for the seriousness or

irreversibility of such harm or injury is speculative or subjective. In order to do this, judges must

consider whether such evidence is from experts, stakeholders, and right holders and sustained

by scientific evidence grounded in scientific method and procedures.

a. First step: a consideration of factors.

The first harm alleged is injury to health. For Drs. Moreno-Fierros, Garcia, Gutierrez,

Vasquez-Padron, Lopez-Revilla, the Bt eggplants contain protoxin which is a potent allergen. This

could trigger severe allergic reactions when injected into the bloodstream or when ingested.187 As

for Dr. Seralini, his findings showed statistical significant differences between group of animals

fed GM and non-GM eggplant that raise food safety concerns and warrant further investigation.

Drs. Quijano and Kiat interpreted Dr. Seralini’s findings and concluded that the adverse effect of

Bt on rats may also extend to humans who will consume such crops.188 The first alleged harm lacks

magnitude, scale, unmanageability and even irreversibility.

187
Id.
188
Id.

47
 It must be pointed out firstly, that these harms can only be realized once the Bt eggplants

are consumed by animals or humans. There would be no damage to human health yet since no Bt

eggplant will be ingested by any human being during the field trial stage. Thus, it was premature

to consider these harms as the project being enjoined is not the distribution, sale, or consumption

of the eggplant but its field testing. There is no consumption involved. Second, even granting that

the court would overlook this nuance, the cited studies make no mention of the possible magnitude,

scale, or irreversibility of the health risk associated with consuming plants containing Bt. This

means that the health risk should not be considered as serious or irreversible.

The second harm alleged is contamination or the unintended transfer of genes from the Bt

eggplant in the field to other plants. Greenpeace et. al cite studies contained in “Adverse Impacts

of Transgenic Crops/Foods: A Compilation of Scientific References with Abstracts”; a study on Bt

corn in the Philippines, “Socio-economic Impacts of Genetically Modified Corn in the

Philippines”; and the published report of the investigation conducted by Greenpeace, “White Corn

in the Philippines: Contaminated with Genetically Modified Corn Varieties” which revealed

“positive results for samples purchased from different stores in Sultan Kudarat, Mindanao,

indicating that they were contaminated with GM corn varieties, specifically the herbicide tolerant

and Bt insect resistant genes from Monsanto.”189 All of these studies point to the potential for GM

organisms, such as Bt eggplant released into the environment, to contaminate non-GM traditional

varieties and other wild eggplant relatives and turn them into novel pests, outcompete and replace

their wild relatives, increase dependence on pesticides, or spread their genes to weedy relatives,

potentially creating superweeds, and kill beneficial insects. Unlike the first alleged harm, the

second harm is characterized by magnitude, scale, complexity and potential irreversibility.

189
Id at 22.

48
 Thus, only the second harm may be considered as serious or irreversible so as to trigger

the principle’s application.

b. Second step: determination of credibility of evidence supporting “seriousness” or

“irreversibility” of the threat.

It must be remembered that the only role of the judge here is to strike out speculative or

subjective evidence which are those not backed up by “experts, stakeholders, and right holders

and sustained by scientific evidence grounded in scientific method and procedures.” It is

submitted that both harms are supported by studies conducted by reputable scientists and

organizations and hence, pass the second step for determining seriousness of irreversibility.

2. Is there scientific uncertainty?

Courts should consider the following factors: (a) the sufficiency of the evidence that there

might be serious or irreversible environmental harm caused by the development plan, program or

project; (b) the level of uncertainty, including the kind of uncertainty (such as technical,

methodological or epistemological uncertainty); and (c) the potential to reduce uncertainty having

regard to what is possible in principle, economically and within a reasonable time frame to

determine the existence of uncertainty.

To determine “sufficiency of evidence” it is suggested that the standard should be

“reasonable scientific plausibility” or when a theoretical risk becomes scientifically credible, that is,

“it arises from a hypothesis formulated with methodological rigor and wins the support of part of

the scientific community, albeit a minority.” One good example of this are peer reviewed academic

journals. Courts should also consider how the journals are received or assessed by the author’s

49
“peers”. Special consideration should be given to peer assessments of the research method and the

conclusion reached.

The more challenging dimension of the principle’s application is determining uncertainty.

Here, the evidence for the possibly serious or irreversible harm are definitely neither subjective

nor speculative. But it is firmly submitted that it would be a mistake to confuse the standards in

determining the existence of the “harm” and the existence of “scientific uncertainty” as both as

clearly separate conditions sine qua non to trigger the principle’s application.

At this stage, it is suggested that the judge should follow two steps: first (a) to apply the

considerations to the allegations and second, (b) if he or she finds that there seems to be

uncertainty, the standard of reasonable scientific plausibility should be used to assess the evidence.

a. First step: applying the considerations

Following the Telstra considerations, it would be clear that there must be evidence of harm.

This evidence of harm must be questioned in order to lead to uncertainty. At this point, the second

consideration of the degree and kind of uncertainty must be examined. This is because judges

should not jump into the conclusion that there is uncertainty based purely on the fact that there are

conflicting claims. In order to identify the kind of uncertainty, the work of Klinke and Renn should

be helpful.190 According to them, there are four categories of scientific uncertainty: variability,

measurement errors, inconsistencies, and lack of knowledge. As for the degrees of uncertainty,

Zander provides for five levels: inexactness, lack of observations or measurements, conflicting

evidence, practical immeasurability, and finally, ignorance.191 Since the concern of the parties in

190
Klinke and Renn supra note 70.
191
Zander supra note 33.

50
the case here is how to measure pieces of evidence proving harm against those which disprove

such harm, the category of uncertainty is lack of knowledge. On the other hand, the degree is

“conflicting evidence” due to the mutually exclusive claims from different studies produced by the

adverse parties. Thus, it is clear that the alleged uncertainty can be classified and its degree can

likewise be approximated. However, this does not end the inquiry.

b. Second step: applying the standard of reasonable scientific plausibility to assess the

“sufficiency” of evidence supporting scientific uncertainty.

As discussed, the evidence for harm has “reasonable scientific plausibility” when it

becomes scientifically credible, or that “it arises from a hypothesis formulated with methodological

rigor and wins the support of part of the scientific community, albeit a minority.”

The respondents, Greenpeace et. al. heavily relied on the study conducted by Dr. Seralini.

However, such reliance met persistent opposition from the proponents of the field testing. While

the study was published, it was heavily criticized by those in the academic community. It is

submitted that courts should also consider how the journals are received or assessed by the author’s

“peers” with special consideration given to peer assessments of the research method and the

conclusion reached.

However, in one contrary study, according to the United States National Environmental

Policy Act (NEPA), confined field tests may not be required to have an environmental assessment

because “the means through which adverse environmental impacts may be avoided or minimized

have been built into the confinement and containment actions themselves.”192

192
ISAA vs. Greenpeace supra note 180 at 29.

51
 Also, in separate reviews by the European Food Safety Agency (EFSA) and the Food

Standards Australia and New Zealand (FSANZ), the “work” of one Prof. Seralini relied upon by

Greenpeace et. al was dismissed as “scientifically flawed”, thus providing no Further, petitioner

ISAAA presented in evidence the findings of regulatory bodies, particularly the EFSA and the

FSANZ, to controvert Seralini’s findings. The EFSA and the FSANZ rejected Seralini’s findings

because the same were based on questionable statistical procedure employed in maize in 2007.193

It is submitted that the court should have given weight to both the methodological rigor

and the support of a portion of the scientific community. While the fact that a group of scientists’

support Dr. Seralini’s findings, a greater number of scientists question his findings and

methodology. This is where the thesis, following a more rigorous standard in applying the

precautionary principle, substantially diverges from the findings of the Supreme Court decision.

Therefore, due to the overwhelming negative peer assessment of Dr. Seralini’s methodology, his

work cannot be considered as sufficient evidence to create scientific uncertainty for failing to meet

the standard of “reasonable scientific plausibility”.

3. Hypothetical outcome.

The precautionary principle finds direct application in the assessment of evidence in cases

before the courts. It has the effect of allowing the court to construe a set of facts as necessitating

either judicial action or inaction, with the goal of protecting the environment. The principle shifts

the burden of evidence of harm away from those likely to suffer harm and onto those desiring to

initiate a project which may change the environmental status quo. It is thus submitted that even if

the principle is to be applied, the case should have been remanded to the Court of Appeals for

193
Id.

52
further reception of evidence from the proponent showing that the project does not pose harm to

the environment, that the regulatory guidelines were sufficiently complied with, and that the

guidelines comply with the requirements under the National Biosafety Framework and the

Cartagena Protocol.

Adopting the proposed framework, the issue should have been resolved differently. The

court would have found that the counter-evidence for harm, which allegedly gives rise to the

uncertainty, does not meet the standard of reasonable scientific plausibility. Thus, the petitioner

should have been the one to carry the burden of proof.

53
 CHAPTER V

CONCLUSION AND RECOMMENDATION

A. Conclusion

While determining the existence of a possible serious or irreversible environmental harm

can be done without issue, the determination of the existence of scientific uncertainty is more

challenging. For example, in ISAA vs. Greenpeace et. al, there are pieces of evidence that support

the existence of harm but their reliability has been heavily questioned by experts in the field. While

the principle has a good intention of easing the burden of those who have the best interest of the

environment at heart, it can also create problems. Most of the time, environmental cases cannot be

painted in shades of black and white. Usually, both the party-litigants have good intentions. A

haphazard application of the principle by a judge who is given a wide latitude of discretion, may

result to injustice. The proposed framework of applying the precautionary principle in

environmental cases, can be summed up in four steps:

First, the judge determines the existence of serious or irreversible harm to the environment.

To gauge “seriousness” or “irreversibility” he or she can refer to a non-exclusive list of factors

such as magnitude, scale, or the accessibility or presence of means to reverse the alleged adverse

effects of the project.

Second, he or she must determine whether the evidence for the existence of serious or

irreversible harm is neither speculative nor purely bases on subjective belief.

Third, the judge must determine whether uncertainty exists. To do this, he or she can look

into the kind and degree of uncertainty in order to make a value judgment on the relevance of such

uncertainty. This is because some degrees of uncertainty such as “inexactness” or “measurement

54
errors” can be dispelled by requiring parties to adduce more evidence subject to reasonable

considerations such as time and capability.

Fourth, the judge must assess the sufficiency of the pieces of evidence which create

uncertainty. This is because scientific evidence which are not reasonably plausible or those that

were reached with “methodological rigor” and enjoy the support of some members of the scientific

community, should not be considered. This is important because if they are refused consideration,

then the judge can a make a more accurate determination of the existence of scientific uncertainty.

B. Recommendation

Admittedly, the proposed framework may still have weaknesses as far as a more detailed

step-by-step analysis is concerned of the entire process of determining the existence of a possible

harm and scientific uncertainty. The following are admitted deficiencies of the framework, which

subsequent research may build upon:

First, other bases for determining seriousness or irreversibility of alleged environmental

harms may be identified. This study only discusses magnitude, scale, reversibility, and persistence

of the harm as bases for seriousness or irreversibility.

Second, to determine scientific uncertainty this study only focuses on the factors of

sufficiency of evidence, the kind or degree of uncertainty, and the extent to which the uncertainty

may be reduced or removed with due consideration to time. Other factors may be identified.

Third, Sadeleer’s standard of reasonable scientific plausibility to determine the sufficiency

of scientific evidence may be replaced with another standard as the former may be too high or too

low.

55
 Fourth, the test first used in Telstra and Gray may be applied to future cases where the

application of the precautionary principle is an issue. This study focuses on the 2015 and 2016

cases of ISAA vs. Greenpeace et. al due to their novelty at the time the study was written.

Finally, other research methods can be used to examine the domestic application of the

precautionary principle. For example, future studies can look into the actual experience of judges

and party-litigants in applying the principle or being affected by its application. The present study

is a critical analysis of a framework adopted in a particular case. By examining the principle’s

application personally, future studies can delve into the practical realities that affect the court’s

decision. It must be remembered that at the heart of cases involving the precautionary principle is

a living environment and people whose lives, culture, and well-being depend on.

To address the deficiency of the current legal framework governing the application of the

precautionary principle under the Rules of Environmental Procedure, it is also recommended:

Firstly, that the Supreme Court issue an Administrative Circular that outlines the steps to

be taken by judges in lower courts when applying the principle. This is similar to how it issued

administrative circulars governing Continuous Trial194 and DNA evidence.195

Secondly, it can also clarify the matter once and for all without the need to issue an

administrative circular in a subsequent ponencia on an environmental case where the precautionary

principle’s application is an issue.

194
195

56
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