Zabal vs Duterte 2019
evident. President Duterte issued Proclamation No. 475 on
Facts:
Claiming that Boracay has become a cesspool, President
Duterte first made public his plan to shut it down during a
business forum held in Davao sometime February 2018.
[5]
 This was followed by several speeches and news releases
stating that he would place Boracay under a state of
calamity. True to his words, President Duterte ordered the
shutting down of the island in a cabinet meeting held on
April 4, 2018. This was confirmed by then Presidential
Spokesperson Harry L. Roque, Jr. in a press briefing the
following day wherein he formally announced that the total
closure of Boracay would be for a maximum period of six
months starting April 26, 2018.[6]
Following this pronouncement, petitioners contend that
around 630 police and military personnel were readily
deployed to Boracay including personnel for crowd
dispersal management.[7] They also allege that the DILG
had already released guidelines for the closure. [8]
Petitioners claim that ever since the news of Boracay's
closure came about, fewer tourists had been engaging the
services of Zabal and Jacosalem such that their earnings
were barely enough to feed their families. They fear that if
the closure pushes through, they would suffer grave and
irreparable damage. Hence, despite the fact that the
government was then yet to release a formal issuance on
the matter,[9] petitioners filed the petition on April 25, 2018
praying that:
(a) Upon the filing of [the] petition, a TEMPORARY
RESTRAINING ORDER (TRO) and/or a WRIT OF
PRELIMINARY PROHIBITORY INJUNCTION be
immediately issued RESTRAINING and/or ENJOINING
the respondents, and all persons acting under their
command, order, and responsibility from enforcing a
closure of Boracay Island or from banning the
petitioners, tourists, and non-residents therefrom, and a
WRIT OF PRELIMINARY MANDATORY INJUNCTION
directing the respondents, and all persons acting under
their command, order, and responsibility to ALLOW all
of the said persons to enter and/or leave Boracay Island
unimpeded;
(b) In the alternative, if the respondents enforce the closure
after the instant petition is filed, that a STATUS QUO
ANTE Order be issued restoring and maintaining the
condition prior to such closure;
(c) After proper proceedings, a judgment be rendered
PERMANENTLY RESTRAINING and/or ENJOINING the
respondents, and all persons acting under their
command, order, and responsibility from enforcing a
closure of Boracay Island or from banning the
petitioners, tourists, and non-residents therefrom, and
further DECLARING the closure of Boracay Island or the
ban against petitioners, tourists, and non-residents
therefrom to be UNCONSTITUTIONAL.
Other reliefs just and equitable under the premises are
similarly prayed for.
On May 18, 2018, petitioners filed a Supplemental
Petition[11] stating that the day following the filing of their
original petition or on April 26, 2018, President Duterte
issued Proclamation No. 475[12] formally declaring a state of
calamity in Boracay and ordering its closure for six months
from April 26, 2018 to October 25, 2018. The closure was
implemented on even date. Thus, in addition to what they
prayed for in their original petition, petitioners implore the
Court to declare as unconstitutional Proclamation No. 475
insofar as it orders the closure of Boracay and ban of
tourists and nonresidents therefrom.[13]
In the Resolutions dated April 26, 2018[14] and June 5,
2018, the Court required respondents to file their
Comment on the Petition and the Supplemental Petition,
respectively. Respondents filed their Consolidated
Comment[16] on July 30, 2018 while petitioners filed their
Reply[17] thereto on October 12, 2018.
On October 26, 2018, Boracay was reopened to tourism.
Existence of Requisites for Judicial Review
The existence of an actual controversy in this case is
April 26, 2018 and, pursuant thereto, Boracay was
temporarily closed the same day. Entry of non-residents
and tourists to the island was not allowed until October 25,
2018. Certainly, the implementation of the proclamation
has rendered legitimate the concern of petitioners that
constitutional rights may have possibly been breached by
this governmental measure. It bears to state that when
coupled with sufficient facts, "reasonable certainty of the
occurrence of a perceived threat to any constitutional
interest suffices to provide a basis for mounting a
constitutional challenge". And while it may be argued that
the reopening of Boracay has seemingly rendered moot and
academic questions relating to the ban of tourists and non-
residents into the island, abstention from judicial review is
precluded by such possibility of constitutional violation
and also by the exceptional character of the situation, the
paramount public interest involved, and the fact that the
case is capable of repetition.
As to legal standing, petitioners assert that they were
directly injured since their right to travel and, their right to
work and earn a living which thrives solely on tourist
arrivals, were affected by the closure. They likewise want to
convince the Court that the issues here are of
transcendental importance since according to them, the
resolution of the same will have far-reaching consequences
upon all persons living and working in Boracay; upon the
Province of Aklan which is heavily reliant on the island's
tourism industry; and upon the whole country considering
that fundamental constitutional rights were allegedly
breached. Here, as mentioned, Zabal is a sandcastle maker
and Jacosalem, a driver. The nature of their livelihood is
one wherein earnings are not guaranteed. As correctly
pointed out by respondents, their earnings are not fixed
and may vary depending on the business climate in that
while they can earn much on peak seasons, it is also
possible for them not to earn anything on lean seasons,
especially when the rainy days set in. Zabal and Jacosalem
could not have been oblivious to this kind of situation, they
having been in the practice of their trade for a considerable
length of time. Clearly, therefore, what Zabal and
Jacosalem could lose in this case are mere projected
earnings which are in no way guaranteed, and are sheer
expectancies characterized as contingent, subordinate, or
consequential interest, just like in Galicto. Concomitantly,
an assertion of direct injury on the basis of loss of income
does not clothe Zabal and Jacosalem with legal standing.
Notwithstanding petitioners' lack of locus standi, this Court
will allow this petition to proceed to its ultimate conclusion
due to its transcendental importance.
Issue: (1) Did the Proclamation No. 475 violated the right to
earnings of the petitioners? (2) Did it violate the right to
travel? (3) Other government agencies are involved in the
rehabilitation works. Does this not create the inference that
the powers and functions of the LGUs are being
encroached upon?
Ruling:
(1) The nature of their livelihood is one wherein earnings
are not guaranteed. As correctly pointed out by
respondents, their earnings are not fixed and may vary
depending on the business climate in that while they can
earn much on peak seasons, it is also possible for them not
to earn anything on lean seasons, especially when the rainy
days set in. Zabal and Jacosalem could not have been
oblivious to this kind of situation, they having been in the
practice of their trade for a considerable length of time.
Clearly, therefore, what Zabal and Jacosalem could lose in
this case are mere projected earnings which are in no way
guaranteed, and are sheer expectancies characterized as
contingent, subordinate, or consequential interest, just like
in Galicto. Concomitantly, an assertion of direct injury on
the basis of loss of income does not clothe Zabal and
Jacosalem with legal standing.
(2) This case does not actually involve the right to travel in
its essential sense contrary to what petitioners want to
portray. Any bearing that Proclamation No. 475 may have
on the right to travel is merely corollary to the closure of
Boracay and the ban of tourists and non-residents
therefrom which were necessary incidents of the island's
rehabilitation. There is certainly no showing that
Proclamation No. 475 deliberately meant to impair the right
to travel.
(3) No, because the respective roles of each government
agency are particularly defined and enumerated in
Executive Order No. 5365 and all are in accordance with
their respective mandates. Also, the situation in Boracay
can in no wise be caracterized or labelled as a mere local
issue as to leave its rehabilitation to local actors. Boracay
is a prime tourist destination which caters to both local
and foreign tourists. Any issue threat has corresponding
effects, direct or otherwise, at a national level. This, for one,
reasonable takes the issues therein from a level that
converns only the local officials.
OTHER CASE DIGEST FOR ZABAL VS. DUTERTE
ZABAL et. al. vs. DUTERTE
G.R. No. 238467 February 12, 2019
Facts:
Claiming that Boracay has become a cesspool,
President Duterte first made public his plan to
shut it down during a business forum held in
Davao sometime in February 2018. True to his
words, Pres. Duterte ordered the shutting down
of the island in a cabinet meeting held on April
4, 2018. Pres. Spokesperson Harry Roque Jr.
confirmed that the total closure of Boracay
would be for a maximum period of 6 months
starting April 26, 2018.
Petitioners claim that ever since the news of
Boracay’s closure came about, fewer tourists
had been engaging the services of Zabal, who
claims to build sandcastles for tourists, and
Jacosalem, who drives for tourists and workers
in the island, such that their earnings were
barely enough to feed their families. Despite the
fact that the government was then yet to
release a formal issuance on the matter,
petitioners filed this petition. In addition, they
aver that Proclamation No. 475 unduly
impinges upon the local autonomy of affected
Local Government Units since it orders the said
LGUs to implement the closure of Boracay and
the ban of tourists and non-residents therefrom.
Issue:
1. Whether or not the temporary closure of
Boracay as tourist destination reasonably
necessary
2. Whether or not Proclamation No. 475 is
constitutional and valid
Ruling:
1. Yes, the temporary closure of Boracay
as a tourist destination for 6 months is
reasonably necessary under the
circumstances.
In this case, the Court explained
that one of the root causes of the
catastrophic depletion of the island’s
biodiversity was tourist influx and the
lack of commitment to effectively
enforce pertinent environmental laws.
As part of the rehabilitation efforts,
operations of establishments in Boracay
had to be halted in the course thereof
since majority need to comply with
environmental and regulatory
requirements in order to align
themselves with the government’s goal
to restore Boracay and develop its
sustainability. To the mind of the Court,
this period constitutes a reasonable time
frame to ensure that rehabilitation works
in the island are started and carried out
in the most efficacious and expeditious
way.
2. Yes, the Court sustains the
constitutionality and validity of
Proclamation No. 475
With respect to petitioners’
contention that Proclamation No. 475
violated the right to travel, the Court held
that it does not pose an actual
impairment on the right to travel. The
activities proposed to be undertaken to
rehabilitate Boracay involved inspection,
testing, demolition, relocation, and
construction, which could not have been
implemented freely and smoothly with
tourists coming in and out of the island.
Any bearing that Proclamation No. 475
may have on the right to travel is merely
corollary to the closure of Boracay and
the ban of tourists and non-residents
therefrom are necessary incidents of the
island’s rehabilitation.
The Court also upheld the
Proclamation No. 475 for being in the
nature of a valid police power measure.
Police power has been defined as the
 state authority to enact legislation that
may interfere with personal liberty or
property in order to promote general
welfare. In this case, the motivating
factor in the issuance of Proclamation
No. 475 is the interest of the public in
general. This necessity is made more
critical and insistent by what the Court
said in Oposa vs. Hon. Factoran Jr. in
regard the rights to a balanced and
healthful ecology and to health, which
rights are likewise integral concerns in
this case.
Note:
Suffice it to state that while this case touches
on the environmental issues in Boracay, the
ultimate issue for resolution is the
constitutionality of Proclamation No. 475. The
procedure in the treatment of a defense of
SLAPP provided for under Rule 6 of the Rules
of Procedure for Environmental Cases should
not, therefore, be made to apply.
HILARION M. HENARES, JR., et al. vs. LAND
TRANSPORTATION FRANCHISING AND REGULATORY
BOARD (LTFRB devotions) et al.
G.R. No. 158290             October 23, 2006
FACTS
Citing statistics from National and International agencies,
petitioners prayed for a writ of mandamus commanding
respondents Land Transportation Franchising and
Regulatory Board (LTFRB) and the Department of
Transportation and Communications (DOTC) to require
public utility vehicles (PUVs) to use compressed natural
gas (CNG) as alternative fuel. Petitioners allege that the
particulate matters (PM) – complex mixtures of dust, dirt,
smoke, and liquid droplets, varying in sizes and
compositions emitted into the air from various engine
combustions – have caused detrimental effects on health,
productivity, infrastructure and the overall quality of
life. In addition, they allege that with the continuing high
demand for motor vehicles, the energy and transport
sectors are likely to remain the major sources of harmful
emissions. They cited studies showing that vehicular
emissions in Metro Manila have resulted to the prevalence
of chronic obstructive pulmonary diseases (COPD); that
pulmonary tuberculosis is highest among jeepney drivers;
and that the children in Metro Manila showed more
compromised pulmonary function than their rural
counterparts. Petitioners infer that these are mostly due to
the emissions of PUVs.
Asserting their right to clean air, petitioners contend that
the bases for their petition for a writ of mandamus to order
the LTFRB to require PUVs to use CNG as an alternative
fuel, lie in Section 16,12 Article II of the 1987 Constitution,
in Oposa v. Factoran, Jr. and Section 414 of Republic Act
No. 8749 otherwise known as the “Philippine Clean Air Act
of 1999.”
Petitioners insist that since it is the LTFRB and the DOTC
that are the government agencies clothed with power to
regulate and control motor vehicles, particularly PUVs, and
with the same agencies’ awareness and knowledge that the
PUVs emit dangerous levels of air pollutants, then, the
responsibility to see that these are curbed falls under
respondents’ functions and a writ of mandamus should
issue against them.
On the other hand, the Solicitor General said that the
respondent government agencies, the DOTC and the
LTFRB, are not in a position to compel the PUVs to use
CNG as alternative fuel. He explained that the function of
the DOTC is limited to implementing the emission
standards set forth in Rep. Act No. 8749 and the said law
only goes as far as setting the maximum limit for the
emission of vehicles, but it does not recognize CNG as
alternative engine fuel. He recommended that the petition
should be addressed to Congress for it to come up with a
policy that would compel the use of CNG as alternative
fuel.
 
ISSUES
1. Whether the respondent is the agency responsible
to implement the suggested alternative of
requiring public utility vehicles to use compressed
natural gas (cng)
2. Whether the respondent can be compelled to
require public utility vehicles to use compressed
natural gas through a writ of mandamus
RULING
1. Mandamus is available only to compel the doing
of an act specifically enjoined by law as a duty.
Here, there is no law that mandates the
respondents LTFRB and the DOTC to order
owners of motor vehicles to use CNG. At most the
LTFRB has been tasked by E.O. No. 290 in par.
4.5 (ii), Section 4 “to grant preferential and
exclusive Certificates of Public Convenience (CPC)
or franchises to operators of NGVs based on the
results of the DOTC surveys.”
In addition, under the Clean Air Act, it is the DENR that is
tasked to set the emission standards for fuel use and the
task of developing an action plan. As far as motor vehicles
are concerned, it devolves upon the DOTC and the line
agency whose mandate is to oversee that motor vehicles
prepare an action plan and implement the emission
standards for motor vehicles, namely the LTFRB.
2. No. Petitioners are unable to pinpoint the law that
imposes an indubitable legal duty on respondents
that will justify a grant of the writ of mandamus
compelling the use of CNG for public utility
vehicles. The legislature should provide first the
specific statutory remedy to the complex
environmental problems bared by herein
petitioners before any judicial recourse by
mandamus is taken.
In addition, the petition had been mooted by the issuance
of Executive Order No. 290, which implemented a program
on the use of CNG by public vehicles. The court was
assured that the implementation for a cleaner environment
is being addressed.
OTHER CASE DIGEST FOR HERNANDEZ VS. LTFRB
HILARION M. HENARES, JR., et al. vs. LAND
TRANSPORTATION FRANCHISING AND
REGULATORY BOARD (LTFRB devotions)
et al.
 G.R. No. 158290             October 23, 2006
FACTS
Citing statistics from National and International
agencies, petitioners prayed for a writ of
mandamus commanding the Land
Transportation Franchising and Regulatory
Board (LTFRB) and the Department of
Transportation and Communications (DOTC) to
require public utility vehicles (PUVs) to use
compressed natural gas (CNG) as alternative
fuel. Petitioners alleged that the particulate
matters have caused detrimental effects on
health, productivity, infrastructure and the
overall quality of life; and that with the
continuing high demand for motor vehicles, the
energy and transport sectors are likely to
remain the major sources of harmful emissions.
Asserting their right to clean air, petitioners
contend that the bases for their petition for a
writ of mandamus to order the LTFRB to require
PUVs to use CNG as an alternative fuel, lie in
Section 16, Article II of the 1987 Constitution,
in Oposa v. Factoran, Jr. and Section 4 of
Republic Act No. 8749 otherwise known as the
“Philippine Clean Air Act of 1999.” Petitioners
insist that the LTFRB and the DOTC, are
clothed with power to regulate and control
motor vehicles, particularly PUVs, and with the
knowledge that the PUVs emit dangerous levels
of air pollutants.
 
ISSUE
Whether or not the respondent
government agencies can be compelled
to require public utility vehicles to use
compressed natural gas through a writ
of mandamus
RULING
No, the respondent government
agencies, LTFRB and DOTC, cannot be
compelled to require public utility vehicles to
use compressed natural gas through a writ of
mandamus.
Mandamus is available only to compel the
doing of an act specifically enjoined by law as a
duty. Here, there is no law that mandates the
respondents LTFRB and the DOTC to order
owners of motor vehicles to use CNG. At most
the LTFRB has been tasked by E.O. No. 290 in
par. 4.5 (ii), Section 4 “to grant preferential and
exclusive Certificates of Public Convenience
(CPC) or franchises to operators of NGVs
based on the results of the DOTC surveys
Under the Clean Air Act, it is the DENR that is
tasked to set the emission standards for fuel
use and the task of developing an action plan.
As far as motor vehicles are concerned, it
devolves upon the DOTC and the line agency
whose mandate is to oversee that motor
vehicles prepare an action plan and implement
the emission standards for motor vehicles,
namely the LTFRB.
In addition, the petition had been mooted by the
issuance of Executive Order No. 290, which
implemented a program on the use of CNG by
public vehicles. The court was assured that the
implementation for a cleaner environment is
being addressed.
WEST TOWER CONDOMINIUM CORPORATION v. FIRST
PHILIPPINE INDUSTRIAL CORPORATION, GR No.
194239, 2015-06-16
Facts:
Respondent FPIC operates two pipelines since 1969, viz: (1)
the White Oil Pipeline (WOPL) System, which covers a 117-
kilometer stretch from Batangas to the Pandacan Terminal
in Manila and transports diesel, gasoline, jet fuel and
kerosene; and (b) the Black Oil
Pipeline (BOPL) System, which extends 105 kilometers and
transports bunker fuel from Batangas to a depot in Sucat,
Parañaque. These systems transport nearly 60% of the
petroleum requirements of Metro Manila and parts of the
provinces of Bulacan, Laguna, and Rizal.
In May 2010, however, a leakage from one of the pipelines
was suspected after the residents of West Tower
Condominium (WestTower) started to smell gas within the
condominium. A search made on July 10, 2010 within the
condominium premises led to the discovery of a fuel leak
from... the wall of its Basement 2. Owing to its inability to
control the flow, WestTower’s management reported the
matter to the Police Department of Makati City, which in
turn called the city’s Bureau of Fire Protection.
What started as a two-drum leak at the initial stages
became a 15-20 drum a day affair. Eventually, the sump
pit of the condominium was ordered shut down by the City
of Makati to prevent the discharge of contaminated water
into the drainage system of Barangay Bangkal.
Eventually, the fumes compelled the residents of
WestTower to abandon their respective units on July 23,
2010 and the condo’s power was shut down.
On November 15, 2010, West Tower Condominium
Corporation (West Tower Corp.) interposed the present
Petition for the Issuance of a Writ of Kalikasan on behalf of
the residents of West Tower and in representation of the
surrounding communities in Barangay Bangkal, Makati
City. West Tower Corp. also alleged that it is joined by the
civil society and several people’s organizations, non-
governmental organizations and public interest groups who
have expressed their intent to join the suit because of the
magnitude of the environmental issues... involved.[1]
On November 19, 2010, the Cou... rt issued the Writ of
Kalikasan[2] with a Temporary Environmental Protection
Order (TEPO) requiring respondents FPIC, FGC, and the
members o... f their Boards of Directors to file their
respective verified returns. The TEPO... enjoined FPIC and
FGC to: (a) cease and desist from operating the WOPL until
further orders; (b) check the structural integrity of the
whole span of the 117-kilometer WOPL while implementing
sufficient measures to prevent and avert any untoward
incident that may result from any... leak of the pipeline;
and (c) make a report thereon within 60 days from receipt
thereof.
Meanwhile, on January 18, 2011, FGC and the members of
its Board of Directors and Officers filed a Joint
Compliance[5] submitting the report required by the Writ of
Kalikasan/TEPO. They contended that they neither own
nor operate the pipelines,... adding that it is impossible for
them to report on the structural integrity of the pipelines,
much less to cease and desist from operating them as they
have no capability, power, control or responsibility over the
pipelines. They, thus, prayed that the directives of the Writ
of
Kalikasan/TEPO be considered as sufficiently performed,
as to them.
On January 21, 2011, FPIC, in compliance with the writ,
submitted its 4-page “Report on Pipeline Integrity Check
and Preventive Maintenance Program.”
Since after the Court’s issuance of the Writ of Kalikasan
and the TEPO on November 19, 2010, FPIC has ceased
operations on both the WOPL and the BOPL. On May 31,
2011, however, the Court, answering a query of the DOE,
clarified and confirmed that what is covered by the
Writ of Kalikasan and TEPO is only the WOPL System of
FPIC; thus, FPIC can resume operation of its BOPL System.
To expedite the resolution of the controversy, the Court
remanded the case to the Court of Appeals (CA). By this
Court’s Resolution dated November 22, 2011,[14] the
appellate court was required to conduct hearings and,
thereafter, submit a report and... recommendation within
30 days after the receipt of the parties’ memoranda.
On January 11, 2013, petitioners filed their Motion for
Partial Reconsideration[19] of the CA’s Report praying that
(a) instead of the DOE, the required certification should be
issued by the DOST-Metal Industry Research and
Development Center; (b) a trust... fund be created to
answer for future contingencies; and (c) the directors and
officers of FPIC and FGC be held accountable.
On July 30, 2013, the Court issued a Resolution adopting
the recommendation of the CA in its Report and
Recommendation that FPIC be ordered to secure a
certification from the DOE Secretary before the WOPL may
resume its operations.
Having received the October 25, 2013 Certification and the
August 5, 2014 Letter from the DOE on the state of the
WOPL, as well as the parties’ comments thereon, the
following issues defined by the parties during the March
21, 2012 preliminary conference are now ripe for...
adjudication
Issues:
Whether petitioner West Tower Corp. has the legal capacity
to represent the other petitioners and whether the other
petitioners, apart from the residents of West Tower and
Barangay Bangkal, are real parties-in-interest;
Whether a Permanent Environmental Protection Order
should be issued to direct the respondents to perform or to
desist from performing acts in order to protect, preserve,
and rehabilitate the affected environment;
Whether a special trust fund should be opened by
respondents to answer for future similar contingencies;
and
Whether FGC and the directors and officers of respondents
FPIC and FGC may be held liable under the environmental
protection order.
Ruling:
Residents of West Tower and Barangay Bangkal
As defined, a real party-in-interest is the party who stands
to be benefited or injured by the judgment in the suit, or
the party entitled to the avails of the suit.[39] Generally,
every action must be prosecuted or defended in the name
of the real... parties-in-interest.[40] In other words, the
action must be brought by the person who, by substantive
law, possesses the right sought to be enforced.[41]
Alternatively, one who has no right or interest to protect
cannot invoke the... jurisdiction of the court as party-
plaintiff-in-action for it is jurisprudentially ordained that
every action must be prosecuted or defended in the name
of the real party-in-interest.
In the case at bar, there can be no quibble that the oil leak
from the WOPL affected all the condominium unit owners
and residents of West Tower as, in fact, all had to evacuate
their units at the wee hours in the morning of July 23,
2010, when the condominium’s electrical power... was shut
down. Until now, the unit owners and residents of West
Tower could still not return to their condominium units.
Thus, there is no gainsaying that the residents of West
Tower are real parties-in-interest.
There can also be no denying that West Tower Corp.
represents the common interest of its unit owners and
residents, and has the legal standing to file and pursue the
instant petition. While a condominium corporation has
limited powers under RA 4726, otherwise known as The
Condominium Act,[43] it is empowered to pursue actions in
behalf of its members. In the instant case, the
condominium corporation is the management body of West
Tower and deals with everything that may affect some or all
of the condominium unit owners or... users.
Organizations that indicated their intention to join the
petition and submitted proof of juridical personality
Anent the propriety of including the Catholic Bishops’
Conference of the Philippines, Kilusang Makabansang
Ekonomiya, Inc., Women’s Business Council of the
Philippines, Inc., Junior Chambers International
Philippines, Inc. – San Juan Chapter, Zonta Club of Makati
Ayala
Foundations, and the Consolidated Mansions
Condominium Corporation, as petitioners in the case, the
Court already granted their intervention in the present
controversy in the adverted July 30, 2013 Resolution.
This is so considering that the filing of a petition for the
issuance of a writ of kalikasan under Sec. 1, Rule 7[45] of
the Rules of Procedure for Environmental Cases does not
require that a petitioner be directly affected by an
environmental... disaster. The rule clearly allows juridical
persons to file the petition on behalf of persons whose
constitutional right to a balanced and healthful ecology is
violated, or threatened with violation.
Thus, as parties to the case, they are entitled to be
furnished copies of all the submissions to the Court,
including the periodic reports of FPIC and the results of the
evaluations and tests conducted on the WOPL.
Having disposed of the procedural issue, We proceed to the
bone of contention in the pending motions. Suffice it to
state in the outset that as regards the substantive issues
presented, the Court, likewise, concurs with the other
recommendations of the CA, with a few... modifications.
II.
Propriety of Converting the TEPO to PEPO or its Lifting in
light of the DOE Certification of the WOPL’s Commercial
Viability
To recall, petitioners’ persistent plea is for the conversion of
the November 19, 2010 TEPO into a Permanent
Environmental Protection Order (PEPO) pursuant to Sec. 3,
[46] Rule 5 of the Rules of Procedure for Environmental
Cases. For its part, respondent
FPIC asserts that regular testing, as well as the measures
that are already in place, will sufficiently address any
concern of oil leaks from the WOPL.
With respect to leak detection, FPIC claims that it has in
place the following systems: (a) regular cleaning scraper
runs, which are done quarterly; (b) pipeline integrity gauge
(PIG) tests/Intelligent PIG, now known as in-line
inspections (ILI), which is done every five years;
(c) pressure monitoring valves; and (d) 24-hour patrols.
Additionally, FPIC asserted that it also undertook the
following: (a) monitoring of wells and borehole
testing/vapor tests; (b) leak tightness test, also known as
segment pressure test; (c) pressure-controlled test; (d)...
inspection and reinforcement of patches; (e) inspection and
reinforcement of dents; and (f) Pandacan segment
replacement.[47] Furthermore, in August 2010, with the oil
leak hogging the headlines, FPIC hired NDT Middle East
FZE (NDT) to conduct ILI... inspections through magnetic
flux leakage (MFL) and ultrasonic tests to, respectively,
detect wall thinning of the pipeline and check it for cracks.
The CA, however, observed that all of these tests and
measures are inconclusive and insufficient for purposes of
leak detection and pipeline integrity maintenance. Hence,
considering the necessary caution and level of assurance
required to ensure that the WOPL system is free... from
leaks and is safe for commercial operation, the CA
recommended that FPIC obtain from the DOE a
certification that the WOPL is already safe for commercial
operation. This certification, according to the CA, was to be
issued with due consideration of the adoption by FPIC of...
the appropriate leak detection systems to monitor
sufficiently the entire WOPL and the need to replace
portions of the pipes with existing patches and sleeves.
Sans the required certification, use of the WOPL shall
remain abated.
The Court found this recommendation of the appellate
court proper. Hence, We required FPIC to obtain the
adverted DOE Certification in Our July 30, 2013
Resolution. We deemed it proper to require said
certification from the DOE considering that the core issue
of this case... requires the specialized knowledge and
special expertise of the DOE and various other
administrative agencies. On October 25, 2013, the DOE
submitted the certification pursuant to the July 30, 2013
Resolution of the Court. Later, however, on August 5,
2014, DOE Secretary Carlos
Jericho I. Petilla submitted a letter recommending certain
activities and the timetable for the resumption of the WOPL
operations after conducting a dialogue between the
concerned government agencies and FPIC.
After a perusal of the recommendations of the DOE and the
submissions of the parties, the Court adopts the activities
and measures prescribed in the DOE letter dated August 5,
2014 to be complied with by FPIC as conditions for the
resumption of the commercial operations of... the WOPL.
The DOE should, therefore, proceed with the
implementation of the tests proposed in the said August 5,
2014 letter. Thereafter, if it is satisfied that the results
warrant the immediate reopening of the WOPL, the DOE
shall issue an order allowing FPIC to resume the...
operation of the WOPL. On the other hand, should the
probe result in a finding that the pipeline is no longer safe
for continued use and that its condition is irremediable, or
that it already exceeded its serviceable life, among others,
the closure of the WOPL may be... ordered.
It must be stressed that what is in issue in the instant
petition is the WOPL’s compliance with pipeline structure
standards so as to make it fit for its purpose, a question of
fact that is to be determined on the basis of the evidence
presented by the parties on the WOPL’s... actual state.
Hence, Our consideration of the numerous findings and
recommendations of the CA, the DOE, and the amici curiae
on the WOPL’s present structure, and not the cited pipeline
incidents as the dissent propounds.
Consider also the fact that it is the DOE itself that imposed
several conditions upon FPIC for the resumption of the
operations of the WOPL. This, coupled with the submission
by the DOE of its proposed activities and timetable, is a
clear and unequivocal message coming from the
DOE that the WOPL’s soundness for resumption of and
continued commercial operations is not yet fully
determined. And it is only after an extensive determination
by the DOE of the pipeline’s actual physical state through
its proposed activities, and not merely through a... short-
form integrity audit,[56] that the factual issue on the
WOPL’s viability can be settled. The issue, therefore, on the
pipeline’s structural integrity has not yet been rendered
moot and remains to be subject to this Court’s resolution.
Consequently, We cannot say that the DOE’s issuance of
the certification adverted to equates to the writ of kalikasan
being functus officio at this point.
Propriety of the Creation of a Special Trust Fund
Anent petitioners’ prayer for the creation of a special trust
fund, We note that under Sec. 1, Rule 5 of the Rules of
Procedure for Environmental Cases, a trust fund is limited
solely for the purpose of rehabilitating or restoring the
environment.
A reading of the petition and the motion for partial
reconsideration readily reveals that the prayer is for the
creation of a trust fund for similar future
contingencies.This is clearly outside the limited purpose of
a special trust fund under the Rules of Procedure for
Environmental Cases, which is to rehabilitate or restore the
environment that has presumably already suffered.
Hence,the Court affirms with concurrence the observation
of the appellate court that the prayer is but a claim for
damages, which is prohibited by the Rules of
Procedure for Environmental Cases. As such, the Court is
of the considered view that the creation of a special trust
fund is misplaced.
The present ruling on petitioners’ prayer for the creation of
a special trust fund in the instant recourse, however, is
without prejudice to the judgment/s that may be rendered
in the civil and/or criminal cases filed by petitioners
arising from the same incident if the payment... of damages
is found warranted.
Liability of FPIC, FGC and their respective Directors and
Officers
On the last issue of the liability of FPIC, FGC and the
IV.
Liability of FPIC, FGC and their respective Directors and
Officers
On the last issue of the liability of FPIC, FGC and their
respective directors and officers, the CA found FGC not
liable under the TEPO and, without prejudice to the
outcome of the civil case (Civil Case No. 11-256, RTC,
Branch 58 in Makati City) and criminal complaint
(Complaint-Affidavit for Reckless Imprudence, Office of the
Provincial Prosecutor of Makati City) filed against them, the
individual directors and officers of FPIC and FGC are not
liable in their individual capacities.
The Court will refrain from ruling on the finding of the CA
that the individual directors and officers of FPIC and FGC
are not liable due to the explicit rule in the Rules of
Procedure for Environmental cases that in a petition for a
writ of kalikasan,the Court cannot... grant the award of
damages to individual petitioners under Rule 7, Sec. 15(e)
of the Rules of Procedure for Environmental Cases. As duly
noted by the CA, the civil case and criminal complaint filed
by petitioners against respondents are the proper
proceedings to ventilate and... determine the individual
liability of respondents, if any, on their exercise of
corporate powers and the management of FPIC relative to
the dire environmental impact of the dumping of petroleum
products stemming from the leak in the WOPL in Barangay
Bangkal, Makati City.
Hence, the Court will not rule on the alleged liability on the
part of the FPIC and FGC officials which can, however, be
properly resolved in the civil and criminal cases now
pending against them.
Principles:
Said proviso... pertinently provides:
SEC. 1. Reliefs in a citizen suit. – If warranted, the court
may grant to the plaintiff proper reliefs which shall include
the protection, preservation or rehabilitation of the
environment and the payment of attorney’s fees, costs of
suit and other litigation... expenses. It may also require the
violator to submit a program of rehabilitation or restoration
of the environment, the costs of which shall be borne by
the violator, or to contribute to a special trust fund for that
purpose subject to the control of the... court. (emphasis
supplied)
Furthermore, Sec. 15(e), Rule 7 of the Rules of Procedure
for Environmental Cases expressly prohibits the grant of
damages to petitioners in a petition for the issuance of a
writ of kalikasan, viz:
Section 15. Judgment. - Within sixty (60) days from the
time the petition is submitted for decision, the court shall
render judgment granting or denying the privilege of the
writ of kalikasan.
The reliefs that may be granted under the writ are the
following:
(e) Such other reliefs which relate to the right of the people
to a balanced and healthful ecology or to the protection,
preservation, rehabilitation or restoration of the
environment, except the award of damages to individual
petitioners.
The CA’s resolution on petitioners’ September 9, 2011
Manifestation (Re: Current Developments) with Omnibus
Motion on the remediation plan in Barangay Bangkal by
directing the Inter-Agency Committee on Environmental
Health to submit its evaluation of the said plan prepared
by
CH2M Philippines, Inc., for FPIC to strictly comply with the
stipulations embodied in the permits issued by the DENR,
and to get a certification from the DENR of its compliance
thereto is well taken. DENR is the government agency
tasked to implement the state policy of
“maintaining a sound ecological balance and protecting
and enhancing the quality of the environment”[57] and to
“promulgate rules and regulations for the control of water,
air, and land pollution.”[58] It is indubitable that the
DENR... has jurisdiction in overseeing and supervising the
environmental remediation of Barangay Bangkal, which is
adversely affected by the leak in the WOPL in 2010.
With regard to petitioners’ March 29, 2012 Supplemental
Manifestation about a recent possible leak in the pipeline,
the CA appropriately found no additional leak. However,
due to the devastating effect on the environs in Barangay
Bangkal due to the 2010 leak, the Court finds it... fitting
that the pipeline be closely and regularly monitored to
obviate another catastrophic event which will prejudice the
health of the affected people, and to preserve and protect
the environment not only for the present but also for the
future generations to come.
Petitioner’s January 10, 2013 Motion for Partial
Recommendation of the CA’s Report need not be discussed
and given consideration. As the CA’s Report contains but
the appellate court’s recommendation on how the issues
should be resolved, and not the adjudication by this
Court, there is nothing for the appellate court
reconsider.
As to petitioner’s October 2, 2013 Motion for
Reconsideration with Motion for Clarification, the matters
contained therein have been considered in the foregoing
discussion of the primary issues of this case. With all
these, We need not belabor the other arguments raised by
the... parties.
OTHER CASE DIGEST FOR WEST TOWER …
WEST TOWER CONDOMINIUM CORP. vs
FIRST PHILIPPINE INDUSTRIAL
CORPORATION
G.R. No. 194239, June 16, 2015
FACTS:
Respondent FPIC operates two pipelines. In
May 2010, a leakage from one of the pipelines
was suspected after the residents of West
Tower Condominium started to smell gas within
the condominium. What started as a two-drum
leak at the initial stages became a 15-20 drum
a day affair. Eventually, the sump pit of the
condominium was ordered shut down by the
City of Makati to prevent the discharge of
contaminated water into the drainage system of
Barangay Bangkal. Eventually, the fumes
compelled the residents of WestTower to
abandon their respective units on July 23, 2010
and the condo’s power was shut down.
On November 15, 2010, West Tower
Condominium Corporation (West Tower Corp.)
interposed the present Petition for the Issuance
of a Writ of Kalikasan on behalf of the residents
of West Tower and in representation of the
surrounding communities in Barangay Bangkal,
Makati City. West Tower Corp. also alleged that
it is joined by the civil society and several
people’s organizations, non-governmental
organizations and public interest groups who
have expressed their intent to join the suit
because of the magnitude of the environmental
issues involved.
On November 19, 2010, the Court issued the
Writ of Kalikasan with a Temporary
Environmental Protection Order (TEPO). On
May 31, 2011, however, the Court clarified and
confirmed that what is covered by the Writ of
Kalikasan and TEPO is only the WOPL System
of FPIC; thus, FPIC can resume operation of its
BOPL System.
To expedite the resolution of the controversy,
the Court remanded the case to the Court of
Appeals. On July 30, 2013, the Court issued a
Resolution adopting the recommendation of the
CA in its Report and Recommendation that
to
FPIC be ordered to secure a certification from
the DOE Secretary before the WOPL may
resume its operations.
Issue:
Whether or not the Court avail of the special
knowledge and expertise of administrative
bodies under the doctrine of primary jurisdiction
Ruling:
Yes, Courts, although they may have
jurisdiction and power to decide cases, can
utilize the findings and recommendations of the
administrative agency on questions that
demand "the exercise of sound administrative
discretion requiring the special knowledge,
experience, and services of the administrative
tribunal to determine technical and intricate
matters of fact."
The DOE is specially equipped to consider
FPIC's proper implementation and compliance
with its PIMS and to evaluate the result of the
various tests conducted on the pipeline. The
DOE is empowered by Sec. 12(b)(l), RA 7638
to formulate and implement policies for the
efficient and economical "distribution,
transportation, and storage of petroleum, coal,
natural gas." Thus, it cannot be gainsaid that
the DOE possesses technical knowledge and
special expertise with respect to practices in the
transportation of oil through pipelines.
Moreover, it is notable that the DOE did not
only limit itself to the knowledge and proficiency
available within its offices, it has also rallied
around the assistance of pertinent bureaus of
the other administrative agencies: the ITDI of
the DOST, which is mandated to undertake
technical services including standards,
analytical and calibration services; the MIRDC,
also of the DOST, which is the sole government
entity directly supporting the metals and
engineering industry; the EMB of the DENR, the
agency mandated to implement, among others,
RA 6969 (Toxic Substances and Hazardous
and Nuclear Waste Control Act of 1990) and
RA 9275 (Philippine Clean Water Act of 2004);
and the BOD of the DPWH, which is mandated
to conduct, supervise, and review the technical
design aspects of projects of government
agencies.
The specialized knowledge and expertise of the
foregoing agencies must, therefore, be availed
of to arrive at a judicious decision on the
propriety of allowing the immediate resumption
of the WOPL's operation. In a host of cases,
this Court held that when the adjudication of a
controversy requires the resolution of issues
within the expertise of an administrative body,
such issues must be investigated and resolved
by the administrative body equipped with the
specialized knowledge and the technical
expertise. Hence, the courts, although they may
have jurisdiction and power to decide cases,
can utilize the findings and recommendations of
the administrative agency on questions that
demand "the exercise of sound administrative
discretion requiring the special knowledge,
experience, and services of the administrative
tribunal to determine technical and intricate
matters of fact."
RAMON JESUS P. PAJE v. TEODORO A. CASIÑO, GR No.
207257, 2015-02-03
Facts:
Subic Bay Metropolitan Authority (SBMA)
Taiwan Cogeneration Corporation (TCC)... expressing
their... intention to build a power plant in Subic Bay...
coal-fired power plant.
SBMA Ecology Center issued SBFZ Environmental
Compliance Certificate (ECC)
Sangguniang Panglalawigan of Zambale... opposing the
establishment of a coal-fired thermal power plant at Sitio
Naglatore, Brgy. Cawag, Subic, Zambales.
filed before this Court a Petition for Writ of kalikasan
against RP Energy,... first set of allegations deals with the
actual environmental damage... second set of allegations
deals with the failure to comply with certain laws and rules
governing or relating to the issuance of an ECC and
amendments thereto.
Issues:
Whether
Energy complied with the Certification Precondition as
required under Section 59 of Republic Act No. 8371 or the
Indigenous People's Rights Act of 1997 ('IPRA Law,' x x x);...
without prior consultation with and approval of the
concerned local government unit
The question then... is, can the validity of an ECC be
challenged via a writ of kalikasan?
Ruling:
Ruling of the Court of Appeals
CA rendered a Decision denying the privilege of the writ of
kalikasan... r an environment protection order due to the
failure of the Casiño Group to prove that its constitutional
right to a balanced and healthful ecology was... violated or
threatened
CA resolved to invalidate the ECC... for failure of Luis
Miguel Aboitiz (Mr. Aboitiz), Director of
RP Energy, to affix his signature in the Sworn Statement of
Full Responsibility,... invalidated the LDA entered into by
SBMA and RP Energ
We answer in the affirmative subject to certain
qualifications.
but to show a causal link or reasonable connection with
the environmental damage of the magnitude contemplated
under the Rules
In... the case at bar, no such causal link or reasonable
connection was shown or even attempted relative to the
aforesaid second set of allegations. It is a mere listing of the
perceived defects or irregularities in the issuance of the
ECC. This would have been sufficient reason to... disallow
the resolution of such issues in a writ of kalikasan case... e
issuance of the ECC violated the IPRA Law and LGC and
that the LDA, likewise, violated the IPRA Law, we find the
same not to be within the coverage of the writ of kalikasan
because... three witnesses presented by the Casiño Group
are not experts on the CFB technology or on environmental
matters.
The Casiño Group failed to contest, with proof, the
adequacy of the mitigating measures stated in the aforesaid
EMP.
None of these alleged experts testified before the appellate
court to confirm the pertinent contents of the Final Report.
After due consideration, we find that, based on the
statements in the Final Report, there is no sufficiently
compelling reason to compel the testimonies of these
alleged expert witnesses for the following reasons.
First, the statements are not sufficiently specific to point to
us a flaw (or flaws) in the study or design/implementation
(or some other aspect) of the project which provides a
causal link or, at least, a reasonable connection between
the construction and operation of... the project vis-à-vis
potential grave environmental damage.
Second, some of the concerns raised in the alleged
statements, like acid rain, warming and acidification of the
seawater, and discharge of pollutants were, as previously
discussed, addressed by the evidence presented by RP
Energy before the appellate court.
Third, the key observations of Dr. Cruz, while concededly
assailing certain aspects of the EIS, do not clearly and
specifically establish how these omissions have led to the
issuance of an ECC that will pose significant negative
environmental impacts once the project is... constructed
and becomes operational.
The appellate court ruled that the ECC is invalid because
Mr. Aboitiz failed to sign the Statement of Accountability
portion of the ECC.
A review of the voluminous records indicates that the
matter of the lack of signature was discussed, developed or
surfaced only in the course of the hearings, specifically, on
clarificatory questions from the appellate court,... At any
rate, we shall disregard the procedural defect and rule
directly on whether the lack of signature invalidated the
ECC in the interest of substantial justice.
The question then is, was the absence of the signature of
Mr. Aboitiz, as representative of RP Energy, in the
Statement of Accountability sufficient ground to invalidate
the ECC?
Viewed within the particular circumstances of this case, we
answer in the negative
Due to the inadequacy of the transcript and the apparent
lack of opportunity for the witness to explain the lack of
signature, we find that the witness' testimony does not, by
itself, indicate that there was a deliberate or malicious
intent not to sign the Statement of
Accountability.
As previously noted, the DENR and RP Energy were not
properly apprised that the issue relative to the lack of
signature would be decisive in the determination of the
validity of the ECC.
appellate court erred when it invalidated the ECC on the
ground of lack of signature of Mr. Aboitiz in the ECC's
Statement of Accountability relative to the copy of the ECC
submitted by RP Energy to the appellate court
This brings us to the next logical question, did the EPRMP
provide the necessary information in order for the DENR-
EMB to assess the environmental impact of RP Energy's
request relative to the first amendment?
We answer in the affirmative.
We answer in the affirmativ... it does not follow that the
ECC is the "license" or
"permit" contemplated under Section 59 of the IPRA Law
and its implementing rules.
the ECC is intended to, among others, provide guidance or
act as a decision-making tool to other government agencies
and LGUs which have the final authority to grant licenses
or permits, such as building permits or licenses to operate,
that... will ultimately result in, or authorize the
implementation of the project or the conduct of specific
activities.
In the case at bar, we find, applying this rule of action, that
the SBMA should have first secured a CNO before entering
into the LDA with RP Energy for the following reasons.
First, the Subic area is historically known to be the home
of our brothers and sisters belonging to the Aeta
communities
Second, SBMA and RP Energy claim that the SBMA
Ecology Center verified with the NCIP that the project site
does not overlap with an ancestral domain.
Third, that the project site was formerly used as the firing
range of the U.S. Armed Forces does not preclude the
possibility that a present or future claim of ancestral
domain may be made over the aforesaid site
Fourth, that the project site was subsequently classified by
the SBMA as forming part of an industrial zone does not
exempt it from the CNO requirement.
Fifth, SBMA argues that the CNO issued to HHIC should,
for all intents and purposes, be applicable to RP Energy.
All in all, we find, applying the foregoing rule of action, that
SBMA should have secured a CNO before entering into the
LDA with RP Energy.
We, thus, limit the discussion as to whether the approval of
the concerned sanggunian requirement should have been
complied with prior to the consummation of the LDA,
considering that the LDA is part of the implementation of
the subject project and already vests in RP
Energy the right to the use and enjoyment of the project
site, as in fact horizontal clearing activities were already
undertaken by RP Energy at the project site by virtue of the
LDA
In sum, we find that the implementation of the project is
not subject to the prior approval of the concerned
sanggunians, under Section 27 of the LGC, and the
SBMA's decision to approve the project prevails over the
apparent objections of the concerned sanggunians... of the
LGUs, by virtue of the clear provisions of RA 7227. Thus,
there was no infirmity when the LDA was entered into
between SBMA and RP Energy despite the lack of approval
of the concerned sanggunians.
Principles:
Rules on the Writ of kalikasan,[
Rules of Procedure for Environm... s
Rules of Procedure for Environmental Cases,... pursuant to
its power to promulgate rules for the protection and
enforcement of... constitutional rights... in particular, the
individual's... right to a balanced and healthful ecology.
Section 1. Nature of the writ. -
The writ is a... remedy available to a natural or juridical
person, entity authorized by law, people's organization,
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, or threatened
with violation by an unlawful act or omission of a public
official or employee, or private individual or entity,
involving environmental damage of such... magnitude as to
prejudice the life, health or property of inhabitants in two
or more cities or provinces.
provide judicial relief from threatened or actual violation/s
of the constitutional right to a balanced and healthful
ecology of a magnitude or degree of... damage that
transcends political and territorial boundaries... following
requisites
(1) there is an actual or threatened violation of the
constitutional right to a balanced and healthful ecology; (2)
the actual or threatened violation arises from an... unlawful
act or omission of a public official or employee, or private
in... dividual or entity; and (3) the actual or threatened
violation involves or will lead to an environmental damage
of such magnitude as to prejudice the life, health or
property of inhabitants in two or more... cities or provinces.
If the petition is granted, the court may grant the reliefs
provided for under Section
15 of Rule 7, to wit:
Section 15. Judgment... sixty (60) days from the time the
petition is submitted for decision,... granting or denying the
privilege of the writ of kalikasan.
cease and desis... protect, preserve, rehabilitate or restore
the environment;... monitor strict compliance with the
decision and orders of the court;... periodic reports on the
execution of the final judgment; and... people to a balanced
and healthful ecology... non-exhaustive... damage that will
occur if the power plant project is implemente
The laws governing the ECC, i.e., Presidential Decree No.
(PD) 1151 and PD 1586, do not specifically state that the
lack of signature in the Statement of Accountability has the
effect of invalidating the ECC.
a helpful overview of the stages of the EIA process... signing
of the Statement of Accountability takes place at the
Decision-Making Stage.
Screening determines if a project is covered or not covered
by the PEISS... definition of the ECC in the Revised Manual
highlights
Scoping is a Proponent-driven multi-sectoral formal
process of determining the focused Terms of Reference of
the EIA Stud
EIA Study involves a description of the proposed project
and its alternatives, characterization of the project
environment, impact identification and prediction,
evaluation of impact significance, impact mitigation,
formulation of Environmental Management... and
Monitoring Plan, with corresponding cost estimates and
institutional support commitment.
R... eview of EIA Reports normally entails an EMB
procedural screening for compliance with minimum
requirements specified dur... ing Scoping, followed by a
substantive review
Decision Making involves evaluation of EIA
recommendations and the draft decision document,
resulting to the issuance of an ECC, CNC or Denial Letter.
Moreover, the Proponent signs a sworn statement of full
responsibility... on implementation of its commitments
prior to the release of the ECC. The ECC is then
transmitted to concerned LGUs and other GAs for
integration into their decision-making process.
It is a document issued by the DENR/EMB after a positive
review of an ECC application,... certifying that the
Proponent has complied with all the requirements of the
EIS System and has committed to implement its approved
Environmental Management Plan. The ECC also provides
guidance to other agencies and to LGUs on EIA findings
and recommendations, which need to be... considered in
their respective decision-making process.[157] (Emphasis
supplied)
Monitoring, Validation and Evaluation/Audit stage
assesses performance of the Proponent against the ECC
and its commitments in the Environmental Management
and Monitoring Plans to ensure actual impacts of the
project are adequately prevented or mitigated.
Environmental Compliance Certificate (ECC) - a certificate
of Environmental Compliance Commitment to which the
Proponent conforms with, after DENR-EMB explains the
ECC conditions, by signing the sworn undertaking of full
responsibility over implementation of... specified measures
which are necessary to comply with existing environmental
regulations or to operate within best environmental
practices that are not currently covered by existing laws.
PD 1151 set the Philippine Environment Policy. Notably,
this law recognized the right of the people to a healthful
environment.[160] Pursuant thereto, in every action,
project or undertaking, which significantly affects the
quality of the... environment, all agencies and
instrumentalities of the national government, including
government-owned or -controlled corporations, as well as
private corporations, firms, and entities were required to
prepare, file and include a statement (i.e., Environmental
Impact
Statement or EIS) containing:
(a) the environmental impact of the proposed action,
project or undertaking;
(b) any adverse environmental effect which cannot be
avoided should the proposal be implemented;
(c) alternative to the proposed action;
(d) a determination that the short-term uses of the
resources of the environment are consistent with the
maintenance and enhancement of the long-term
productivity of the same; and
(e) whenever a proposal involves the use of depletable or
non-renewable resources, a finding must be made that
such use and commitment are warranted.
To further strengthen and develop the EIS, PD 1586 was
promulgated, which established the Philippine
Environmental Impact Statement System (PEISS). The
PEISS is "a systems-oriented and integrated approach to
the EIS system to ensure a rational balance between socio-
economic... development and environmental protection for
the benefit of present and future generations."[162] The
ECC requirement is mandated under Section 4 thereof:
The PEISS consists of the Environmental Impact
Assessment (EIA) process, which is mandatory for private
or public projects that may significantly affect the quality of
the environment. It involves evaluating and predicting the
likely impacts of the project on the environment,...
designing appropriate preventive, mitigating and
enhancement measures addressing these consequences to
protect the environment and the community's welfare.
PD 1586 was implemented by DAO 2003-30 which, in turn,
set up a system or procedure to determine when a project
is required to secure an ECC and when it is not
When an ECC is not required, the project proponent
procures a Certificate of Non-Coverage (CNC
SECTION 4. Presidential Proclamation of Environmentally
Critical Areas and Projects. The President of the Philippines
may, on his own initiative or upon recommendation of the
National Environmental Protection Council, by
proclamation declare certain projects,... undertakings or
areas in the country as environmentally critical. No person,
partnership or corporation shall undertake or operate any
such declared environmentally critical project or area
without first securing an Environmental Compliance
Certificate issued by the President... or his duly authorized
representative
OTHER CASE DIGEST FOR PAJE VS. CASINO
HON. RAMON JESUS PAJE, in his capacity
as DENR Secretary v. Hon. Teodoro Casino,
et al.
G.R. No. 207257        February 3, 2015
 Facts
The Department of Environment and Natural
Resources, issued an Environmental
Compliance Certificate for a proposed coal-fired
power plant at Subic, Zambales to be
implemented by RP Energy.
Hon. Teodoro Casino and a number of
legislators filed a Petition for Writ of Kalikasan
against RP energy, SBMA, and Hon. Ramon
Paje as the DENR secretary on the ground that
actual environmental damage will occur if the
power plant project is implemented and that the
respondents failed to comply with certain laws
and rules governing or relating to the issuance
of an ECC and amendments thereto.
The Court of Appeals denied the petition for the
Writ of Kalikasan and invalidated the ECC. Both
the DENR and Casino filed an appeal, the
former imputing error in invalidating the ECC
and its amendments, arguing that the
determination of the validity of the ECC as well
as its amendments is beyond the scope of a
Petition for a Writ of kalikasan; while the latter
claim that it is entitled to a Writ of Kalikasan.
Issues
 1. Whether the parties may raise questions
of fact on appeal on the issuance of a
writ of Kalikasan; and
2. Whether the validity of an ECC can be
challenged via a writ of Kalikasan
Ruling
1. Yes, the parties may raise questions of
fact on appeal on the issuance of a writ
of Kalikasan because the Rules on the
Writ of kalikasan (Rule 7, Section 16 of
the Rules of Procedure for
Environmental Cases)allow the parties
to raise, on appeal, questions of fact—
and, thus, constitutes an exception to
Rule 45 of the Rules of Court— because
of the extraordinary nature of the
circumstances surrounding the issuance
of a writ of kalikasan.
2. Yes, the validity of an ECC can be
challenged via a writ of Kalikasan
because such writ is principally
predicated on an actual or threatened
violation of the constitutional right to a
balanced and healthful ecology, which
involves environmental damage of a
magnitude that transcends political and
territorial boundaries.
A party, therefore, who invokes the writ based
on alleged defects or irregularities in the
issuance of an ECC must not only allege and
prove such defects or irregularities, but must
also provide a causal link or, at least, a
reasonable connection between the defects or
irregularities in the issuance of an ECC and the
actual or threatened violation of the
constitutional right to a balanced and healthful
ecology of the magnitude contemplated under
the Rules. Otherwise, the petition should be
dismissed outright and the action re-filed before
the proper forum with due regard to the doctrine
of exhaustion of administrative remedies.
In the case at bar, no such causal link or
reasonable connection was shown or even
attempted relative to the aforesaid second set
of allegations. It is a mere listing of the
perceived defects or irregularities in the
issuance of the ECC.
MOST REV. PEDRO D. ARIGO v. SCOTT H. SWIFT, GR
No. 206510, 2014-09-16
Facts:
On April 6, 2010, Congress passed Republic Act (R.A.) No.
10067,[3] otherwise known as the "Tubbataha Reefs
Natural Park (TRNP) Act of 2009" "to ensure the protection
and conservation of the globally significant economic,
biological, sociocultural,... educational and scientific values
of the Tubbataha Reefs into perpetuity for the enjoyment of
present and future generations."  Under the "no-take"
policy, entry into the waters of TRNP is strictly regulated
and many human activities are prohibited and penalized or
fined,... including fishing, gathering, destroying and
disturbing the resources within the TRNP.  The law likewise
created the Tubbataha Protected Area Management Board
(TPAMB) which shall be the sole policy-making and permit-
granting body of the TRNP.
In December 2012, the US Embassy in the Philippines
requested diplomatic clearance for the said vessel "to enter
and exit the territorial waters of the Philippines and to
arrive at the port of
Subic Bay for the purpose of routine ship replenishment,
maintenance, and crew liberty."
On January 17, 2013 at 2:20 a.m. while transiting the
Sulu Sea, the ship ran aground on the northwest side of
South Shoal of the Tubbataha Reefs, about 80 miles...
east-southeast of Palawan. No one was injured in the
incident, and there have been no reports of leaking fuel or
oil.
on February 4, "reiterated his regrets over the grounding
incident and assured Foreign Affairs Secretary Albert F. del
Rosario that the United States will provide appropriate
compensation for damage to the reef caused by the
ship."[6]
By March 30, 2013, the US Navy-led salvage team had
finished removing the last piece of the grounded ship from
the coral reef.
petitioners cite the following violations committed by US
respondents under R.A. No. 10067: unauthorized entry
(Section 19); non-payment of conservation fees (Section
21); obstruction of law enforcement officer (Section 30);
damages to the reef (Section 20); and... destroying and
disturbing resources (Section 26[g]).  Furthermore,
petitioners assail certain provisions of the Visiting Forces
Agreement (VFA) which they want this Court to nullify for
being unconstitutional.
Issues:
the grounds relied upon for the issuance of a TEPO or writ
of Kalikasan have become fait accompli as the salvage...
operations on the USS Guardian were already completed;
(2) the petition is defective in form and substance; (3) the
petition improperly raises issues involving the VFA between
the Republic of the Philippines and the United States of
America; and (4) the determination of... the extent of
responsibility of the US Government as regards the damage
to the Tubbataha Reefs rests exclusively with the executive
branch.
whether this Court has jurisdiction over the US
respondents who did not submit any pleading or
manifestation in this case.
Ruling:
As a preliminary matter, there is no dispute on the legal
standing of petitioners to file the present petition.
In the landmark case of Oposa v. Factoran, Jr.,[13] we
recognized the "public right" of citizens to "a balanced and
healthful ecology which, for the first time in our
constitutional history, is solemnly incorporated in the
fundamental law." We... declared that the right to a
balanced and healthful ecology need not be written in the
Constitution for it is assumed, like other civil and political
rights guaranteed in the Bill of Rights, to exist from the
inception of mankind and it is an issue of transcendental
importance... with intergenerational implications. Such
right carries with it the correlative duty to refrain from
impairing the environment.
ordinary citizens have legal standing to sue for the
enforcement of environmental rights, they can do so in
representation of their own and future... generations.
Their personality... to sue in behalf of the succeeding
generations can only be based on the concept of
intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned
The liberalization of standing first enunciated in Oposa,
insofar as it refers to minors and generations yet unborn, is
now enshrined in the Rules which allows the filing of a
citizen suit in environmental cases.
The immunity of the State from suit, known also as the
doctrine of sovereign immunity or non-suability of the
State,[17] is expressly provided in Article XVI of the 1987
Constitution which states:
Section 3. The State may not be sued without its consent.
In the same case we also mentioned that in the case of
diplomatic immunity, the privilege is not an immunity from
the observance of the law of the territorial sovereign or from
ensuing legal liability; it is, rather, an immunity from the
exercise of territorial... jurisdiction
In this case, the US respondents were sued in their official
capacity as commanding officers of the US Navy who had
control and supervision over the USS Guardian and its
crew. The alleged act or omission resulting in the
unfortunate grounding of the USS Guardian on... the TRNP
was committed while they were performing official military
duties. Considering that the satisfaction of a judgment
against said officials will require remedial actions and
appropriation of funds by the US government, the suit is
deemed to be one against the US itself.
The principle of State immunity therefore bars the exercise
of jurisdiction by this Court over the persons of
respondents Swift, Rice and Robling.
in this case, when its warship entered a restricted area in
violation of R.A. No. 10067 and caused damage to the
TRNP reef system, brings the matter within the ambit... of
Article 31 of the United Nations Convention on the Law of
the Sea (UNCLOS). He explained that while historically,
warships enjoy sovereign immunity from suit as extensions
of their flag State, Art. 31 of the UNCLOS creates an
exception to this rule in cases where they fail to... comply
with the rules and regulations of the coastal State
regarding passage through the latter's internal waters and
the territorial sea.
A foreign warship's unauthorized entry into our internal
waters with resulting damage to marine resources is one
situation in which the above provisions may apply.But
what if the offending warship is a non-party to the
UNCLOS, as in this case, the US?
In fine, the relevance of UNCLOS provisions to the present
controversy is beyond dispute. Although the said treaty
upholds the immunity of warships from the jurisdiction of
Coastal States while navigating the latter's territorial sea,
the flag States shall be required to leave... the territorial
sea immediately if they flout the laws and regulations of
the Coastal State, and they will be liable for damages
caused by their warships or any other government vessel
operated for non-commercial purposes under Article 31.
We agree with respondents (Philippine officials) in asserting
that this petition has become moot in the sense that the
salvage operation sought to be enjoined or restrained had
already been accomplished when petitioners sought
recourse from this Court.
insofar as the... directives to Philippine respondents to
protect and rehabilitate the coral reef structure and marine
habitat adversely affected by the grounding incident are
concerned, petitioners are entitled to these reliefs
notwithstanding the completion of the removal of the USS
Guardian from the coral reef.
In the light of the foregoing, the Court defers to the
Executive Branch on the matter of compensation and
rehabilitation measures through diplomatic channels.  restrictive doctrine which distinguishes sovereign and
Resolution of these issues impinges on our relations with
another State in the context of common security... interests
under the VFA. It is settled that "[t]he conduct of the
foreign relations of our government is committed by the
Constitution to the executive and legislative "the political"--
departments of the government, and the propriety of what
may be done in the exercise of this... political power is not
subject to judicial inquiry or decision."... we cannot grant
the additional reliefs prayed for in the petition to order a
review of the VFA and to nullify certain immunity
provisions thereof... the VFA was duly concurred in by the
Philippine Senate and has been recognized as a treaty by
the United States as attested and certified by the duly
authorized representative of... the United States
government. The VFA being a valid and binding agreement,
the parties are required as a matter of international law to
abide by its terms and provisions.
WHEREFORE, the petition for the issuance of the privilege
of the Writ of Kalikasan is hereby DENIED.
Principles:
Locus standi is "a right of appearance in a court of justice
on a given question."[10] Specifically, it is "a party's
personal and substantial interest in a case where he has
sustained or will sustain direct injury as a result" of the act
being... challenged, and "calls for more than just a
generalized grievance."[11] However, the rule on standing is
a procedural matter which this Court has relaxed for non-
traditional plaintiffs like ordinary citizens, taxpayers and
legislators when the public... interest so requires, such as
when the subject matter of the controversy is of
transcendental importance, of overreaching significance to
society, or of paramount public interest.
international law under the doctrine of incorporation.
Under this doctrine, as accepted by the majority of states,
such principles are deemed incorporated in the law of every
civilized... state as a condition and consequence of its
membership in the society of nations. Upon its admission
to such society, the state is automatically obligated to
comply with these principles in its relations with other
states.
the doctrine of state immunity is based on the justification
given by Justice Holmes that "there can be no legal right
against the authority which makes the law on which the
right depends."
In the case of the foreign state sought to be impleaded in
the local jurisdiction, the added inhibition is expressed in
the maxim par in parem, non habet imperium. All states
are sovereign equals and cannot... assert jurisdiction over
one another. A contrary disposition would, in the language
of a celebrated case, "unduly vex the peace of nations." [De
Haber v. Queen of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against
the state without its consent, it is also applicable to
complaints filed against officials of the state for acts
allegedly performed by them in the discharge of their
duties. The rule is that if the judgment... against such
officials will require the state itself to perform an
affirmative act to satisfy the same, such as the
appropriation of the amount needed to pay the damages
awarded against them, the suit must be regarded as
against the state itself although it has not been formally...
impleaded.
If the acts giving rise to a suit are those of a foreign
government done by its foreign agent, although not
necessarily a... diplomatic personage, but acting in his
official capacity, the complaint could be barred by the
immunity of the foreign sovereign from suit without its
consent.
We held that petitioners US military officers were acting in
the exercise of their official functions... when they
conducted the buy-bust operation against the complainant
and thereafter testified against him at his trial. It follows
that for discharging their duties as agents of the United
States, they cannot be directly impleaded for acts
imputable to their principal, which has... not given its
consent to be sued.
This traditional rule of State immunity which exempts a
State from being sued in the courts of another State
without the former's consent or waiver has evolved into a
governmental acts (jure imperii) from private,... commercial
and proprietary acts (jure gestionis)
The restrictive application of State immunity is proper only
when the proceedings arise out of commercial...
transactions of the foreign sovereign, its commercial
activities or economic affairs.
It is a different matter where the public official is made to
account in his capacity as such for acts contrary to law
and injurious to the rights of plaintiff.
Inasmuch as the State authorizes only legal acts by its
officers, unauthorized acts of government officials or
officers are not acts of the State, and an action against the Whether or not the waiver of immunity from suit under VFA
officials or officers by one whose rights have been invaded applies in this case.
or... violated by such acts, for the protection of his rights,
is not a suit against the State within the rule of immunity
HELD: NO.
of the State from suit.

it has been said that an action at law or suit in equity
against a State officer or the director of a State
department... on the ground that, while claiming to act for
the State, he violates or invades the personal and property
rights of the plaintiff, under an unconstitutional act or
under an assumption of authority which he does not have,
is not a suit against the State within the constitutional...
provision that the State may not be sued without its
consent."
The international law of the sea is generally defined as "a
body of treaty rules and customary norms governing the
uses of the sea, the exploitation of its resources, and the
exercise of jurisdiction over maritime regimes. It is a
branch of public international law,... regulating the
relations of states with respect to the uses of the oceans."
The UNCLOS is a product of international negotiation that
seeks to balance State sovereignty (mare clausum) and the
principle of freedom of the high seas (mare liberum).[29]
The freedom to use the world's marine waters is one of the
oldest... customary principles of international law.[30] The
UNCLOS gives to the coastal State sovereign rights in
varying degrees over the different zones of the sea which
are: 1) internal waters, 2) territorial sea, 3) contiguous
zone, 4) exclusive economic zone,... and 5) the high seas. It
also gives coastal States more or less jurisdiction over
foreign vessels depending on where the vessel is located.
                The waiver of State immunity under the VF A
pertains only to criminal jurisdiction and not to special civil
actions such as the present petition for issuance of a writ
of Kalikasan. In fact, it can be inferred from Section 17,
Rule 7 of the Rules that a criminal case against a person
charged with a violation of an environmental law is to be
filed separately.
                The Court considered a view that a ruling on the
application or non-application of criminal jurisdiction
provisions of the VFA to US personnel who may be found
responsible for the grounding of the USS Guardian, would
be premature and beyond the province of a petition for a
writ of Kalikasan.
                The Court also found  unnecessary at this point
to determine whether such waiver of State immunity is
indeed absolute. In the same vein, we cannot grant
damages which have resulted from the violation of
environmental laws. The Rules allows the recovery of
damages, including the collection of administrative fines
under R.A. No. 10067, in a separate civil suit or that
deemed instituted with the criminal action charging the
same violation of an environmental law.

OTHER CASE DIGEST FOR:

MOST REV. PEDRO ARIGO, et. al., Petitioners,

vs.

SCOTT H. SWIFT, et. al., Respondents.

G.R. No. 206510               September 16, 2014

TOPIC: Writ of kalikasan, UNCLOS, Immunity from suit

FACTS:

                The USS Guardian is an Avenger-class mine

countermeasures ship of the US Navy. In December 2012,
the US Embassy in the Philippines requested diplomatic
clearance for the said vessel “to enter and exit the
territorial waters of the Philippines and to arrive at the port
of Subic Bay for the purpose of routine ship replenishment,
maintenance, and crew liberty.” On January 6, 2013, the
ship left Sasebo, Japan for Subic Bay, arriving on January
13, 2013 after a brief stop for fuel in Okinawa, Japan.

                On January 15, 2013, the USS Guardian

departed Subic Bay for its next port of call in Makassar,
Indonesia. On January 17, 2013 at 2:20 a.m. while
transiting the Sulu Sea, the ship ran aground on the
northwest side of South Shoal of the Tubbataha Reefs,
about 80 miles east-southeast of Palawan. No one was
injured in the incident, and there have been no reports of
leaking fuel or oil.

                Petitioners claim that the grounding, salvaging

and post-salvaging operations of the USS Guardian cause
and continue to cause environmental damage of such
magnitude as to affect the provinces of Palawan, Antique,
Aklan, Guimaras, Iloilo, Negros Occidental, Negros
Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-
Tawi, which events violate their constitutional rights to
a balanced and healthful ecology.

ISSUES: