UPDATES ON

ENVIRONMENTAL LAW

By: Atty. Ana Lea H. Uy

Outline of Lecture
Part 1: Conceptual Framework for
Philippine Environmental Law
Part 2: Rules of Procedure for
Environmental Cases
Part 3: Pleading Preparation and Oral
Argumentation for Environmental Cases
Part 1: Conceptual
Framework for Philippine
Environmental Law
Environmental law is
composed of rules that
regulate citizen’s use of a
state’s natural resources.
Question: Why is there a
need for the State to
intervene in citizen’s use of its
commonly-owned natural
resources?

Answer: To prevent its abuse!

THE TRAGEDY OF THE
COMMONS

“the idea of natural

resources for
communal use is
falsely based” –
Garret Hardin
Manila Bay Trash
MCLE Lecture of Atty. Ana Lea H. Uy
What are the kinds of natural
resources owned or accessed
by a state?
What are the kinds of natural
resources owned by a state?
National Resources within their Territory
Exclusive use of by a country of its resource

Shared Resources
Two or more countries sharing the use of a common river like (i.e. Germany has
10 river basin districts, out of which 6 are international sharing water courses with
Denmark to the north, Poland Czech Republic to the east, Austria, Switzerland
and France to the south and south-east and Luxembourg, Belgium and the
Netherlands to the west.)

Common Heritage of Mankind

Resource owned by the whole mankind like Moon,
Antartica, High Seas.
When and how did this
emerging field of
environmental law start and
evolve?
Evolution of Intl Environmental Law
From early fisheries convention to
UN
Creation of UN to Stockholm (1945-
72)
Stockholm Convention to Rio
(1972-92)
United Nations Convention on
Environment and Development
(1992)
 Other Developments
“Transforming our World: the 2030 Agenda
for Sustainable Development”
adopted by UN and the Heads of State and Government
and High Representatives during its meeting at United
Nations Headquarters in New York from 25 to 27
September 2015 as the Organization celebrated its 70th
anniversary.
 “Transforming our world: the 2030 Agenda for
Sustainable Development
Preamble

This Agenda is a plan of action for people, planet and

prosperity.

We are resolved to free the human race from the tyranny

of poverty and want and to heal and secure our planet.

We are determined to take the bold and transformative

steps which are urgently needed to shift the world on to a
sustainable and resilient path.

MCLE Lecture of Atty. Ana Lea H. Uy

 As we embark on this collective journey, we pledge that no one
will be left behind.

The 17 Sustainable Development Goals and 169 targets which

we are announcing today demonstrate the scale and ambition
of this new universal Agenda. They seek to build on the
Millennium Development Goals and complete what they did not
achieve.

They are integrated and indivisible and balance the three

dimensions of sustainable development: the economic, social
and environmental.

The Goals and targets will stimulate action over the next 15
years in areas of critical importance for humanity and the
planet.”

MCLE Lecture of Atty. Ana Lea H. Uy

 Pope Francis’ Encyclical
Laudato Si Mi Signore (“Praise be to you, My Lord”)

MCLE Lecture of Atty. Ana Lea H. Uy

 1. “LAUDATO SI’, mi’ Signore” – “Praise be to you, my Lord”. In the
words of this beautiful canticle, Saint Francis of Assisi reminds us that
our common home is like a sister with whom we share our life and a
beautiful mother who opens her arms to embrace us. “Praise be to you,
my Lord, through our Sister, Mother Earth, who sustains and governs
us, and who produces various fruit with coloured flowers and herbs”.[1]

2. This sister now cries out to us because of the harm we have inflicted
on her by our irresponsible use and abuse of the goods with which God
has endowed her. We have come to see ourselves as her lords and
masters, entitled to plunder her at will. The violence present in our
hearts, wounded by sin, is also reflected in the symptoms of sickness
evident in the soil, in the water, in the air and in all forms of life. This is
why the earth herself, burdened and laid waste, is among the most
abandoned and maltreated of our poor; she “groans in travail” (Rom
8:22). We have forgotten that we ourselves are dust of the earth (cf.
Gen 2:7); our very bodies are made up of her elements, we breathe her
air and we receive life and refreshment from her waters.

MCLE Lecture of Atty. Ana Lea H. Uy

What is the focus of
environmental law?
Principle 1 - Human beings are at the
center of concerns for sustainable
development. They are entitled to a
healthy and productive life in harmony
with nature. (UNCED)
Environmental law is
“anthropocentric” in nature.
SPOT ON

DAILY MAIL 2000

Queen clubs bird to death
by CHARLOTTE GILL, Daily Mail

When a gundog brought an injured pheasant to her, the Queen

did not hesitate.
She took the bird from the dog's jaws and hit it four or five times
over the head with her walking stick until she was satisfied it was
dead.
Buckingham Palace said yesterday that the Queen had acted
quickly "as would any other responsible country sports person" to
put the pheasant out of its misery during a shooting party at
Sandringham over the weekend.
The British Association for Shooting and Conservation said the
accepted and humane way of killing a bird was wringing its neck
or a sharp blow to the head with a stick.
But animal rights groups insisted there was no excuse for her
actions. MCLE Lecture of Atty. Ana Lea H. Uy
BBC NEWS
Sunday, 19 November, 2000, 16:47 GMT

Queen 'killed bird with bare hands’

The Duke of York also enjoys pheasant shooting

Animal rights campaigners have criticised the Queen after she
was photographed wringing the neck of a wounded pheasant at
Sandringham House in Norfolk.

She was watching the first pheasant shoot of the year on

Saturday when a Labrador brought her the injured bird. She took
it from the dog's mouth and used bare hands to kill it.

A freelance photographer captured the moment on film.

MCLE Lecture of Atty. Ana Lea H. Uy

What are the universal principles on
environmental protection?
Sovereignty of States over their Natural
Resources
Preventive Action
Good Neighborliness & International Cooperation
Sustainable Development
Precautionary Principle
Polluter-pays Principle
Common but Differentiated Responsibility
Sovereignty of States over their
Natural Resources

Principle 2 - States have, in accordance with the

Charter of the United Nations and the principles of
international law, the sovereign right to exploit their
own resources pursuant to their own environmental
and developmental policies, and the responsibility to
ensure that activities within their jurisdiction or
control do not cause damage to the environment of
other States or of areas beyond the limits of national
jurisdiction.
Sustainable Development

Principle 3 - The right to development must

be fulfilled so as to equitably meet
developmental and environmental needs
of present and future generations.
Principle 4 – In order to achieve
sustainable development, environmental
protection shall constitute an integral part
of the development process and cannot be
considered in isolation from it.
Polluter-pays Principle

Principle 13 - States shall develop national law

regarding liability and compensation for the victims
of pollution and other environmental damage.
States shall also cooperate in an expeditious and
more determined manner to develop further
international law regarding liability and
compensation for adverse effects of
environmental damage caused by activities within
their jurisdiction or control to areas beyond their
jurisdiction.
Polluter-pays Principle
Principle 16 - National authorities should
endeavour to promote the internalization of
environmental costs and the use of
economic instruments, taking into account
the approach that the polluter should, in
principle, bear the cost of pollution, with
due regard to the public interest and
without distorting international trade and
investment.
Precautionary Principle
The precautionary principle is a moral and political
principle which states that if an action or policy might cause
severe or irreversible harm to the public, in the absence of a
scientific consensus that harm would not ensue, the burden
of proof falls on those who would advocate taking the action.

It aims to provide guidance for protecting public health and

the environment in the face of uncertain risks, stating that the
absence of full scientific certainty shall not be used as a
reason to postpone measures where there is a risk of
serious or irreversible harm to public health or the
environment.
Precautionary Principle
Principle 15 - 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. (UNCED)
Common but Differentiated
Responsibility
The principle of common but differentiated
responsibility includes two fundamental
elements.
The first concerns the common responsibility of
States for the protection of the environment, or
parts of it, at the national, regional and global
levels.
The second concerns the need to take into
account the different circumstances, particularly
each State’s contribution to the evolution of a
particular problem and its ability to prevent,
reduce and control the threat.
In view of the different contributions to global
environmental degradation, States have common
but differentiated responsibilities. The developed
countries acknowledge the responsibility that they
bear in the international pursuit to sustainable
development in view of the pressures their
societies place on the global environment and of
the technologies and financial resources they
command.
What are the universal regulatory
mechanisms that the state may impose
to protect the environment?
Command & control
Pollution prevention
Market based strategy
Sustainable development
Self regulations
 The Philippine
Environmental Law:
A Situationer
Principles in the Constitution
“The State shall protect and promote
the right to health of people and instill
health consciousness among them.”
(Art.II,S.15)

“The State shall protect and advance

the health of the people to a balanced
and healthful ecology in accord with
and harmony of nature.”(Art. II, S.16)
Minors Oposa v. Factoran Case

Right to environment can be

automatically invoked without a need
for enabling law;
Theory of intergenerational equity;
Recognition of minors standing to sue
in behalf of the future generation.
Extent of State’s Ownership
of Natural Resources in the
Philippines
 The Regalian Doctrine
“State sovereignty over its natural
resources is a principle enshrined
in the Constitution which dates
back to Spanish Crown’s
declaration that all natural
resources belongs to the Queen.”
 Philippine Constitution
“All lands of public domain, waters,
minerals, coal, petroleum, and other
mineral, oils, all forces of potential energies,
fisheries, forests or timber, wildlife, flora
and fauna, and other natural resources are
owned by the state.”
(Art. XII, Sec. 2)
Indigenous Peoples Rights Act
• “IP shall have the priority rights in the harvesting,
extraction, development or exploitation of any
natural resources within the ancestral domains.”

• Note: Indigenous Peoples with CADTs may

exercise all rights of ownership over an ancestral
domain except the right to dispose the property.

MCLE Lecture of Atty. Ana Lea H. Uy

Areas of Intl Environmental Law
Environmental Impact Assessment – EIA Law
Atmosphere and Air -- Climate Change Convention, RP
Clean Air Act
Water – Marine Pollution and others, Clean Water Act
Hazardous Substances and Activities - Basel Convention,
RP’s Toxic and Hazardous Waste Act
Solid Wastes -- RP’s Solid Waste Act
Commons -- Antarctica & the Arctic, Moon
Trade and Environment
Others

MCLE Lecture of Atty. Ana Lea H. Uy

Part 2: Rules of Procedure
for Environmental Cases
(A.M. No. 09-6-8-SC)
Green Courts
A.M. No. 23-2008

• Designation of 114 branches from the

Regional and Municipal Trial Courts and
all single sala Courts as Special
Environment Court or “Green Courts” to
hear and decide Environmental Cases.
• These Special Courts will try and decide
violations of environmental laws.

MCLE Lecture of Atty. A L Uy

Jurisdiction of Green Courts
Laws related to the following:
 Forest and Protected Areas
 Fisheries and Marine Resources
 Mines and Other Resource Extraction
 Pollution and Waste
 Biofuels and Renewable energy
 Other laws that relate to conservation,
development and utilization of natural
resources.

MCLE Lecture of Atty. A L Uy

Objectives of the Rules
 To protect and advance the right of the
people to health and balanced ecology;

 Simplify and make the procedure

inexpensive for the implementation of the
precautionary principle;

 Ensure just and equitable administration

of remedies and redress of violation of
environmental laws;

 Enable courts to manage and monitor

environmental cases;
Highlights of Rules
Liberalized Standing
 Who may file?
 Any party in interest including the government,
juridical entities authorized by law may file a civil
action involving the enforcement and violation of
environmental law (S.4)
 Any Filipino citizen in representation of others,
including minors or generations yet unborn, may file
an action to enforce rights and obligations under
environmental law (S.5)
 Note: Payment of fees in case of citizens suits
are deferred and it shall serve as lien on the
judgment award.
Highlights of Rules
Proceeding Summary in Nature
• Limited Pleadings are allowed, namely:
complaint, answer, cross claim, motion
for intervention and motion for
reconsideration.

Both complaint and answer must include

affidavits of witnesses and material
evidence such as documentary evidence,
and if possible, object evidence.
Highlights of Rules
Proceeding Summary in Nature
Continuous Trial, Direct Examination and
Disposition
Conduct of continuous trial not to exceed
three (3) months
Affidavit in lieu of direct examination
One day examination of witness rule
One year to decide the case
Highlights of Rules
Application of Precautionary Principle
- “the court shall be guided by precautionary
principle and evidence of full scientific certainty
shall not be required from the party alleging
environmental damages and threats thereof.’
(Rule 16, Sec.1)
- PP was adopted to address the perceived
procedural obstacle in environmental litigation.
- As such, full scientific certainty shall not be
required from the party.
Novel Provisions
1. Environmental Protection Order (EPO)
 An order issued by the court directing or
enjoining a person or government agency to
perform or desist from performing an act in
order to protect, preserve or rehabilitate the
environment.
 Effective for 72 hours from notice to party
enjoined
 Summary hearing shall ensue afterwards.
 May be lifted anytime by the issuing Court.
 No bond is required of the Applicant.
Novel Provisions
2. Initiation of Criminal Complaint by any
Filipino Citizen
 Criminal complaint may be “subscribed by the
offended party, a law enforcement officer or
the public officer charged with the enforcement
of environmental law” (R.8, S.1 CrimPro)
 This is consistent with the theory that each
Filipino citizen is a co-owner of resources and
is civilly affected by the violation.
 Aliens may initiate the case upon showing that
he/she is an offended party.
Novel Provisions
3. Recognition of Government Agencies
Rules in custody and immediate disposal of
seized items, equipment and paraphernalia

 Custody and disposition of seized items shall be in

accordance with the applicable rules of concerned
government agency.
 Upon proper motion, the court where the criminal
case is pending , shall issue and order directing the
sale, auction or disposition of the confiscated items,
tools or equipment.
 Proceeds of the sale shall be deposited in a
government depositary bank, until final disposition.
Novel Provisions

4. Strategic Legal Action Against

Public Participation (SLAPP)
 SC recognizes SLAPP,
 SLAPP vs. legitimate complaint
against enforcers,
 Counterclaim as a SLAPP suit,
 Procedure if case is found to be a
SLAPP.
Novel Provisions
5. Writ of Kalikasan (Writ of Nature) which
affords the following relief:

 Cease and desist from committing act

or omissions in violation of
environmental laws resulting into
damages;

 Directing respondent to preserve,

rehabilitate and restore environment;
WRIT OF KALIKASAN
 Directing
respondent to monitor
compliance with Orders of the
Court;

 Directing respondent to make

periodic report on the execution of
the final judgment;

 Otherrelief related to protection of

peoples right to health;
WRIT OF KALIKASAN

 Application for issuance of this Writ may

be filed with the Supreme Court or any
stations of the Court of Appeals.

 By natural or juridical persons in behalf

of the community or other group.

 Whose constitutional right to

environment is violated or threatened
with violation.
WRIT OF KALIKASAN

 By unlawful act or omission of the

Respondent,

 Involving environmental damage or such

magnitude as to prejudice health, life or
property,

 Of two or more provinces.

WRIT OF KALIKASAN
 Petition is verified with all affidavits, documentary
evidence and other evidence attached;

 Writ is issued after 3 days from date of filing, if

sufficient in form and substance;

 Respondent to file return within ten days showing

denial and defenses. In case of failure to do so,
court will hear case ex parte;

 Threshhold: SUBSTANTIAL EVIDENCE

 Respondent must prove that the diligence as

required by applicable laws , rules and regulations
was observed in the performance of duty.
Writ of Kalikasan Issues
SC: Writ of Kalikasan stopped operation of
FPIC Pipeline

SC: Writ of Kalikasan in favor of the petition to

stop field trials of the genetically-modified
organism (GMO) Bt eggplant in the Philippines

SC: Writ of Kalikasan to enjoin the operation of

Subic Coal Fired Powered Plant

Others
October 2, 2013
On Writ of Kalikasan against Placer Dome and Barrick Gold

“The Supreme Court of the Philippines issued a Writ of

Kalikasan in March 2011 in favor of three residents of
Marinduque who filed a petition for issuance of the writ
against Placer Dome, Inc. and Barrick Gold Corporation for
the Marcopper mining incident in 1996. The writ is a remedy
available to persons, people's and non-government
organizations, and public interest groups whose
constitutional right to a balanced and healthy ecology is
violated or threatened by private or public entities involving
environmental damage that prejudice the life, health or
property of inhabitants in cities and provinces.”

MCLE Lecture of Atty. Ana Lea H. Uy

THE BT TALONG CASE

MCLE Lecture of Atty. Ana Lea H. Uy

THE MANILA BAY CASE

MCLE Lecture of Atty. Ana Lea H. Uy

Part 3: Pleading
Preparation and Oral
Argumentation for
Environmental Cases
Role of Lawyers in
Environmental Litigation
Advocates - as complainant or
respondent
Judges
Hearing Officers of Administrative
Bodies (i.e. Pollution Adjudication
Board (PAB), etc.
Mediators
Advisors
1. Identify facts of the case very well
through environmental audit and field
visits.
Use “environmental compliance audit”
checklist in keeping you abreast of
current status of environmental law
involving your case.
Do actual field visit to validate facts.
Sample
2. To understand an environmental case
fully, you may need the help of a
technical expert.
“In handling a toxic tort case, your legal team
will have to be well versed in science, well
versed in legal principles, and a persuader of
some merit. Because of the complexities
involved, it is not uncommon for individual
lawyers to develop niche expertise in
connection with science and experts”
– American Bar Association
Tips in Writing Pleadings for
Environmental Cases

Be patient and be attentive to details.

Develop a niche expertise in any of the many
areas of environmental law ( air, water, solid
waste, mining, biodiversity, protected areas,
toxic and hazardous wastes, etc.)
Use resources that are available in the web,
libraries, and environmental institutes.
3. You must know the basic principles of
environmental law by heart. Use these
principles abundantly in your pleadings.

In addition to the substantive law of the

case, use “environmental principles” in
abundance.

Basic Principles of Environmental Law

1.Sustainable Development
2.Precautionary Principle
3.Polluter’s Pay Principle
4.Common but Differentiated Responsibility
5.Preventive Action
4. Environmental litigation, most of the
time, involves science
and not just law.

“Too often, lawyers shy away from toxic tort cases,

fearing that they are too complicated to handle
and try. But toxic tort cases, while fraught with
highly technical issues, contain legal themes that
are themselves simple and comprehensible. Good
lawyers frame the debate in terms of these simple
issues, and do not overwhelm the jury (or
themselves) with complexities.”
– Allan Kraner”
Tips in Writing Pleadings for
Environmental Cases

Keep an open and inquisitive mind.

Pay attention to details.
5.Although a case may be local in nature,
you need to look at international context,
as in some cases, liability for
environmental damage extends beyond
territorial jurisdiction.

“Forum non conveniens” – doctrine applied when

the court chosen by the plaintiff is inconvenient
for witness or poses an undue hardship on the
defendants, who must petition the court for an
order transferring the case to a more convenient
court.
Example: Principles in India’s Bhopal Case as applied to
Philippines Marcopper Case
Case Study

THE BHOPAL CASE

MCLE Lecture of Atty. Ana Lea H. Uy

6. You must put yourself in the
judge’s shoes

Simplify and understand how much

information the judge can take with respect to
your case.
On the other hand, when you act as hearing
officers/adjudicators of environmental cases,
it is important for you to lay down a simple
but comprehensive ruling using environmental
principles and practical explanations.
 7. Vividly emphasize the practical
implications of the case.

“Judges are practical people. Judge’s

wanted to have reasonable and sensible
result that can be justified to lay person.
Judges are conscious that their decision
affects people’s lives” – American Bar
Association
Example of Vivid Presentation:

Dissenting opinion of Judge Weeramantry in

the International Court of Justice’s Case on
Legality of Use of Nuclear Weapons

Mrs. Lijon Eknilang, from the Marshall Islands,

told the Court of genetic abnormalities never
before seen on that island until the atmospheric
testing of nuclear weapons. She gave the Court
a moving description of the various birth
abnormalities seen on that island after the
exposure of its population to radiation.
She said that Marshallese women "give birth, not to
children as we like to think of them, but to things we could
only describe as 'octopuses', 'apples', 'turtles', and other
things in our experience. We do not have Marshallese
words for these kinds of babies because they were never
born before the radiation came.

Women on Rongelap, Likiep, Ailuk and other atolls in the

Marshall Islands have given birth to these 'monster babies'.
... One woman on Likiep gave birth to a child with two
heads. ... There is a young girl on Ailuk today with no
knees, three toes on each foot and a missing arm ...

The most common birth defects on Rongelap and nearby

islands have been 'jellyfish' babies. These babies are born
with no bones in their bodies and with transparent skin.
We can see their brains and hearts beating. ...
Many women die from abnormal pregnancies
and those who survive give birth to what looks
like purple grapes which we quickly hide away
and bury. ...

My purpose for travelling such a great distance

to appear before the Court today, is to plead
with you to do what you can not to allow the
suffering that we Marshallese have experienced
to to be repeated in any other community in the
world." (CR 95/32, pp. 30-31.)
7. Reach your objective..
Do not be contented with “paper”
victory.
“The Philippine Supreme Court’s 1993 decision in Oposa
v. Factoran was an instant international sensation,
drawing praise from lawyers and activists from virtually
every corner of the world. Oposa was hailed as “the first
environmental decision to be based squarely on
principles of intergenerational equity.” While the case
continues to generate attention and acclaim, my own
view is that Oposa has been misunderstood and that the
case offers little outside of rhetoric. The Court did not, as
some continue to believe, order an end to logging in the
Philippines pursuant to a constitutional right to a
balanced and healthful environment.”
Dante Gatmaytan, Judicial Restraint and
the Enforcement of Environmental Rights in
the Philippines, Oregon Review of
International Law.

MCLE Lecture of Atty. Ana Lea H. Uy

Thank you!