Natural Resources and Environmental Law REVIEWER_cabuhat

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

NATURAL RESOURCES AND ENVIRONMENTAL LAW PRELIMS I. THREE (3) CATEGORIES OF PHILIPPINE ENVIRONMENTAL LAW 1) Law which regulates the exploitation, development and utilization of natural resources 2) Law which regulates the protection, preservation and conservation of natural resources involving flora and fauna 3) Law that deals with pollution and environmental management II. CONSTITUTIONAL PROVISIONS 1) PREAMBLE – We the sovereign Filipino people imploring the aid of God Almighty, in order to build just and humane society, and establish a government that shall embody our ideals and aspirations, to promote common good, preserve and protect our patrimony, and secure to ourselves and to our posterity the blessings of Independence and sovereignty, do ordain and promulgate this Constitution. 2) ARTICLE I, NATIONAL TERRITORY -The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. 3) ARTICLE II, DECLARATION OF PRINCIPLES AND STATE POLICIES – (a) Section 15 - The State shall protect and promote the right to health of the people and instill health consciousness among them; and (b) Section 16 - The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. 4) ARTICLE XII, NATIONAL ECONOMY AND PATRIMONY Section 2 - All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons. 1|Page

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources. The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution. *NOTE: REGALIAN DOCTRINE - the legal concept employed by the Spanish Crown in claiming exclusive dominion over the Philippine archipelago upon conquest in 1521. Under this doctrine, title to all lands became vested in the Crown, and private ownership was acquired only through royal grants or decrees. This was continued during United States (US) colonization, the Philippine Commonwealth period under the 1935 Constitution, and upon independence in the 1973 and 1987 Constitution Section 3 - Lands of the public domain are classified into agricultural, forest or timber, mineral lands, and national parks. Agricultural lands of the public domain may be further classified by law according to the uses which they may be devoted. Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and not to exceed one thousand hectares in area. Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof by purchase, homestead, or grant. Taking into account the requirements of conservation, ecology, and development, and subject to the requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the public domain which may be acquired, developed, held, or leased and the conditions therefor. *CLASSIFICATION OF PUBLIC LANDS 1. Agricultural Lands -MODES OF DISPOSITION For homestead settlement By sale By lease By confirmation of imperfect or incomplete title a. By judicial legalization b. By administrative legalization or free patent 2. Forest or Timber Lands 3. National Parks 4. Mineral Lands *PUBLIC LAND ACT - Classification, Delimitation, and Survey of Lands of the Public Domain, for the Concession Thereof SECTION 6. The President, upon the recommendation of the Secretary of Agriculture and Commerce, shall from time to time classify the lands of the public domain into — (a) (b) 2|Page

Alienable or disposable; Timber, and

NATURAL RESOURCES AND ENVIRONMENTAL LAW

(c)

Mineral lands,

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

and may at any time and in a like manner transfer such lands from one class to another, for the purposes of their administration and disposition. SECTION 9. For the purpose of their administration and disposition, the lands of the public domain alienable or open to disposition shall be classified, according to the use or purposes to which such lands are destined, as follows: (a) (b) (c) (d)

Agricultural Residential commercial industrial or for similar productive purposes Educational, charitable, or other similar purposes Reservations for town sites and for public and quasi-public uses.

Section 4 - The Congress shall, as soon as possible, determine by law the specific limits of forest lands and national parks, marking clearly their boundaries on the ground. Thereafter, such forest lands and national parks shall be conserved and may not be increased nor diminished, except by law. The Congress shall provide, for such period as it may determine measures to prohibit logging in endangered forests and watershed areas. Section 5 - The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being. III. CASES 1) OPOSA vs. FACTORAN FACTS: This case is unique in that it is a taxpayers’ class suit brought by 44 children, through their parents, claiming that they bring the case in the name of “their generation as well as those generations yet unborn.” Aiming to stop deforestation, it was filed against the Secretary of the Department of Environment and Natural Resources, seeking to have him cancel all the timber license agreements (TLAs) in the country and to cease and desist from accepting and approving more timber license agreements. The children invoked their right to a balanced and healthful ecology and to protection by the State in its capacity as parens patriae. The petitioners claimed that the DENR Secretary's refusal to cancel the TLAs and to stop issuing them was "contrary to the highest law of humankind-- the natural law-- and violative of plaintiffs' right to selfpreservation and perpetuation." The case was dismissed in the lower court, invoking the law on non-impairment of contracts, so it was brought to the Supreme Court on certiorari. ISSUE/S: Did the children have the legal standing to file the case? RULING: Yes. The Supreme Court in granting the petition ruled that the children had the legal standing to file the case based on the concept of “intergenerational responsibility”. Their right to a healthy environment carried with it an obligation to preserve that environment for the succeeding generations. In this, the Court recognized legal standing to sue on behalf of future generations. Also, the Court said, the law on non-impairment of contracts must give way to the exercise of the police power of the state in the interest of public welfare. 2) CHAVEZ VS. PEA FACTS: From the time of Marcos until Estrada, portions of Manila Bay were being reclaimed. A law was passed creating the Public Estate Authority which was granted with the power to transfer reclaimed lands. Now in this case, PEA entered into a Joint Venture Agreement with AMARI, a private corporation. Under the Joint Venture Agreement between AMARI and PEA, 3|Page

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

several hectares of reclaimed lands comprising the Freedom Islands and several portions of submerged areas of Manila Bay were going to be transferred to AMARI. ISSUE: Whether or not the stipulations in the Amended JVA for the transfer to AMARI of lands, reclaimed or to be reclaimed, violate the Constitution RULING: YES! Under the Public Land Act (CA 141, as amended), reclaimed lands are classified as alienable and disposable lands of the public domain Section 3 of the Constitution: Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such alienable lands of the public domain except by lease. The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered by certificates of title in the name of PEA, are alienable lands of the public domain. PEA may lease these lands to private corporations but may not sell or transfer ownership of these lands to private corporations. PEA may only sell these lands to Philippine citizens, subject to the ownership limitations in the 1987 Constitution and existing laws. Clearly, the Amended JVA violates glaringly Sections 2 and 3, Article XII of the 1987 Constitution. Under Article 1409 of the Civil Code, contracts whose “object or purpose is contrary to law,” or whose “object is outside the commerce of men,” are “inexistent and void from the beginning.” The Court must perform its duty to defend and uphold the Constitution, and therefore declares the Amended JVA null and void ab initio. 3) CRUZ VS. SEC OF ENVIRONMENT AND NATURAL RESOURCES FACTS: Cruz, a noted constitutionalist, assailed the validity of the RA 8371 or the Indigenous People’s Rights Act on the ground that the law amount to an unlawful deprivation of the State’s ownership over lands of the public domain as well as minerals and other natural resources therein, in violation of the regalian doctrine embodied in Section 2, Article XII of the Constitution. The IPRA law basically enumerates the rights of the indigenous peoples over ancestral domains which may include natural resources. Cruz et al content that, by providing for an all-encompassing definition of “ancestral domains” and “ancestral lands” which might even include private lands found within said areas, Sections 3(a) and 3(b) of said law violate the rights of private land owners. ISSUE: Whether or not the IPRA law is unconstitutional. HELD: The SC deliberated upon the matter. After deliberation they voted and reached a 7-7 vote. They deliberated again and the same result transpired. Since there was no majority vote, Cruz’s petition was dismissed and the IPRA law was sustained. Hence, ancestral domains may include natural resources – somehow against the regalian doctrine Additionally, ancestral lands and ancestral domains are not part of the lands of the public domain. They are private lands and belong to the ICCs/IPs by native title, which is a concept of private land title that existed irrespective of any royal grant from the State. However, the right of ownership and possession by the ICCs/IPs of their ancestral domains is a limited form of ownership and does not include the right to alienate the same. IV. STATUTORY LAWS/INTERNATIONAL COMMITMENTS WITH CORRESPONDING CATEGORY I. REGULATES THE EXPLOITATION, DEVELOPMENT AND UTILIZATION OF NATURAL RESOURCES Revised Forestry Code

II. REGULATES THE PROTECTION, PRESERVATION AND CONSERVATION OF FLORA AND FAUNA Philippine Fisheries Code

III. POLLUTION ENVIRONMENTAL MANAGAMENT

Small Scale Mining Act

National Integrated Protected Ares System Act

Establishing an Environment Impact Statement System

4|Page

AND

Marine Pollution Decree

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

Philippine Mining Act

Wildlife Conservation and Protection Act

Philippine Clean Water Act

Water Code of the Philippines

National Caves and Caves Resources

Philippine Clean Air Act

Coal Development Act

Ecological Solid Waste Management Act

Petroleum Development Act VI. CASES 1) LLDA vs CA FACTS: The City Gov’t of Caloocan was maintaining an open dumpsite at the Camarin area. LLDA said that the city Gov’t failed to secure ECC from EMB of DENR, as required under PD 1586 and clearance from LLDA as mandated in RA 4850. Hence, LLDA issued a CEASE AND DESIST order to City Gov’t to stop the operation of the open dumpsite. The latter followed the order but later on resumed their operation. ISSUE: (1) WON LLDA has the authority to cater complaints against dumping of garbage on the open dumpsite in Camarin (2) WON LLDA has the power to issue a cease and desist order RULING: (1) YES, it is specifically mandated under RA 4850 (2) YES, pursuant to EO 927 s. of 1983, authorizes LLDA to make, alter or modify ORDER requiring the discontinuous or pollution. 2) MEAD vs ARGEL FACTS: Mead is the president and general manager of INSOIL. It was allegedly found out that Mead and Isaac Arivas causing pollution of waterway due to discharges from the operation of INSOIL. In view of this, Provincial Fiscal of Rizal charged them for violation of Section 9, in relation to Section 10 of RA 3931. ISSUE: WON the Provincial Fiscal has the legal personality to file the information HELD: NO. The filing of information on the alleged pollution is under the exclusive authority of National Water and Air Pollution Commission, created under Art. 3931. Hence, the filing of information is premature and unauthorized. *Pollution – alteration of the physical, chemical and/or biological properties of any water and/or atmospheric air of the Philippines, or any such discharge of any liquid, gaseous or solid substance into any of the waters and/or atmospheric air of the country as will or is likely to create or render such waters and/or atmospheric air harmful or detrimental or injurious to public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational or other legitimate uses, or to livestock, wild animals, birds, fish, or of her aquatic life. 3) TATEL VS. MUN. OF VIRAC FACTS: Tatel owns a warehouse in barrio Sta. Elena, Mun. of Virac. Complaint was received by the municipality concerning Public nuisance, disturbance caused by the operation of Abaca bailing machine. Committee was created to investigate the matter including the accidental fire inside the warehouse that caused danger to neighborhood’s lives and properties. After such, Resolution No. 29 was passed declaring said warehouse as public nuisance. ISSUE/S: (1) WON warehouse is a nuisance (2) WON Ordinance No. 13 S. of 1952 is unconstitutional and void

5|Page

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

RULING: (1) Yes within the definition under Art. 694 of the Civil Code. (2) No. The resolution is constitutional because it conforms to valid municipal ordinance, and the municipality of Virac exercised valid police power.

MIDTERMS I. REGULATION OF EXPLOITATION, UTILIZATION AND DEVELOPMENT OF NATURAL RESOURCES A. REVISED FORESTRY CODE Multiple Land Use - harmonized utilization of the numerous beneficial uses of the land, soil, water, wildlife, recreation value and timber of forest lands. - It is important to reassess the multiple uses of forest lands and resources to optimize the maximum benefits (Watershed Reservation, Bird Sanctuary, and National Park etc.) Classification of Forest Lands 1) PUBLIC FOREST – mass of lands of the public domain which has not been the subject of the present system of classification 2) PERMANENT FOREST/ FOREST RESERVES – lands of the public domain which have been the subject of the present system of classification & determined to be needed for forest purposes 3) FOREST RESERVATION – forest lands which have been reserved by the President of the Philippines for any specific purpose How the States regulate the utilization and disposition of forest resources? By means of timber license, timber license agreement, permit and lease. NOTE: The timber license is not a contract within the purview of due process clause. It is only a license or privilege which can be validly withdrawn whenever dictated by public interest or public welfare LICENSE Privilege granted by the State to a person to utilize forest resources without any rights of occupation and possession

LICENSE AGREEMENT To utilize forest resources with the right of possession and occupation

PERMIT

LEASE

Short-term privilege or authority to utilize any limited forest resources or undertake a limited activity without right of occupation and possession

Privilege to occupy and possess, in consideration of a specified rental, any forest land of public domain in order to undertake any authorized activity therein

NOTE:  No land of the public domain 18% in slope or over shall be classified as alienable and disposable, nor any forest land 50% in slope or over, as grazing land  Selective Logging: Systematic removal of the mature, over mature and defective trees in such manner as to leave adequate and volume of healthy residual trees of the desired 6|Page

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]







 

species necessary to assure a future crop of timber and forest cover for the protection & conservation of soil and water Forest lands can’t be owned by private persons. Open, Continuous, Exclusive and Notorious possession of such land does not ripen into registrable title or to private ownership. The fact that a forested area has been classified as a forest land does not lose such classification simply because loggers or settlers had stripped it for its forest cover. The classification is descriptive of its legal nature or status and does not have to be descriptive of what the land actually like. (Heirs of Amunategui vs. Director of Forestry) Forest lands do not have to be on mountains or in out of the way places. Swampy areas covered by mangrove trees, nipa, palms & other trees growing in brackish or sea water may also be classified forest land. Not all forest land can be subject to TLA Lumber - a processed log or processed forest raw material (In Mustang vs. CA - The Revised Forestry Code contains no definition of either timber or lumber. While the former is included in forest products as defined in paragraph (q) of Section 3, the latter is found in paragraph (aa) of the same section in the definition of Processing plant; which reads: (aa) Processing plant is any mechanical set-up, machine or combination of machine used for the processing of logs and other forest raw materials into lumber, veneer, plywood, wallboard, block-board, paper board, pulp, paper or other finished wood products. This simply means that lumber is a processed log or processed forest raw material. Clearly, the Code uses the term lumber in its ordinary or common usage. In the 1993 copyright edition of Webster's Third New International Dictionary, lumber is defined, inter alia, as timber or logs after being prepared for the market. Simply put, lumber is a processed log or timber.)

B. PHILIPPINE FISHERIES CODE Constitutional Provisions – seek to protect marine resources and safeguard the rights of small Filipino fishermen (a) ARTICLE XII, Section 2 (par. 2 & 3) “The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish workers in rivers, lakes, bays, and lagoons.” (b) ARTICLE XIII, Section 7 (par. 2 & 3) “The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of local marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds 7|Page

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources.” Classification of Fishing (MUNICIPAL AND COMMERCIAL FISHING)

a) MUNICIPAL FISHING – fishing within municipal waters using fishing vessel of 3 gross tons or less or fishing not requiring the use of fishing vessels Municipal Water includes: (a) Streams, lakes, inland bodies of water & tidal waters within the municipality (b) Marine waters included between 2 lines perpendicularly to the general coastline from points where the boundary lines of the municipality or city touch the sea at low tide and a third line parallel with the general coastline & 15 km from it (c) Where 2 municipalities are so situated on the opposite shores that there is less than 15km of marine waters between them, the 3rd line shall be equally distant from opposite shores of the respective municipalities NOTE:  The power of municipalities to grant fishery privilege can be found in Section 149 of the RA 7160 or the Local Government Code of 1991  Sanggunian shall, by appropriate ordinance, penalize the use of explosives, noxious or poisonous substances, electricity, muro-ami, and other deleterious methods of fishing and prescribe a criminal penalty The State regulates fishing activities through the following: a) Requiring the registration of the fishing vessel b) Requiring the fishing company to secure necessary permits to operate fishing (Fishing Boat/Gear License, Fishing activities permit) c) Setting limits in the amount of fishes to catch thru “CATCH CEILING” imposition (Catch- ceiling - annual catch limits allowed to be taken, gathered or harvested from any fishing area in consideration of the need to prevent overfishing and harmful depletion of breeding stocks of aquatic organisms.) d) Declaring certain areas as closed season (the period during which the taking of specified fishery species by a specified fishing gear is prohibited in a specified area or areas in Philippine waters) e) Prohibiting the use of explosives, noxious or poisonous substances, electricity, muroami, and other deleterious methods of fishing Application a) Philippine water, within 200 nautical miles Exclusive Economic Zone, and continental shelf b) Aquatic and Fishery resources (fish pond, fish pens, cages) c) All lands devoted to aquaculture or business and activities relating to fishery whether private or public land b) COMMERCIAL FISHING – the taking of fishery species by passive or active gear for trade, business or profit beyond subsistence or sports fishing, to be further classified as: (1) Small scale commercial fishing - fishing with passive or active gear utilizing fishing vessels of 3.1 gross tons (GT) up to twenty (20) GT; (2) Medium scale commercial fishing - fishing utilizing active gears and vessels of 20.1 GT up to one hundred fifty (150) GT; and 8|Page

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

(3) Large commercial fishing - fishing utilizing active gears and vessels of more than one hundred fifty (150) GT. General Provisions as per Fisheries Administrative Order No. 198 on Commercial Fishing Vessel / Gear and the persons eligible to apply Section 2. License to Operate a Commercial Fishing Vessel / Gear a. License duly granted by the Bureau Except: fishing vessel engaged in scientific, research or educational purposes within Philippine waters pursuant to an international agreement of which the Philippine is a signatory b. the fishing gear that it will utilize in fishing shall be registered and the corresponding license issued by this Bureau Section 3. Persons eligible to Apply for CFVGL a. Citizens of the Philippines; and b. Corporations, partnerships, or associations and cooperatives duly registered in the Philippines at least sixty percent (60%) of the capital stock of which is owned by Filipino Citizens. NOTE:  No person with license, shall transfer or assign directly or indirectly his stock or indirectly his stock or interest to others  Fishing vessels owned by the citizens of the Philippines, partnership, corporation shall secure Certificates of Philippine Registry  License is 3 years, renewable Philippine Commercial Vessel to operate in the International Waters Requirements (1) Secure international fishing permit and certificate of clearance from the Department, BFAR (2) Comply with the requirements of Philippine Coast Guard, MARINA and other government instrumentalities concerned Application of Taxes for Fishing by Philippine Commercial Fishing Fleet in International Waters That the fish caught by such vessels shall be considered as caught in Philippine waters and therefore not subject to all import duties and taxes only when the same is landed in duly designated fish landings and fish ports in the Philippines That fishworkers on board Philippine registered fishing vessels conducting fishing activities beyond the Philippine Exclusive Economic Zone are not considered as overseas Filipino workers. VIOLATIONS a) Unauthorized fishing/ Unauthorized fishing activities (without license and permit) b) Poaching in the Philippine water c) Fishing using explosives, noxious, or poisonous substance and/or electricity d) Use of fine mesh net e) Use of active gear in the municipal water, bay etc. f) Muroami 9|Page

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

Aquaculture – fishery operations involving all forms of raising and culturing fish and other fishery species in fresh, brackish and marine water areas Use of areas released for fishpond development - secure a permit, contract or lease Permits, Contracts and Leases (a) Gratuitous Permit - A Gratuitous Permit (GP) for portions of areas released for fishpond development may be granted by the Secretary upon the recommendation of the Director to any branch of government, academic, scientific or research institution, for scientific, research, educational or experimental breeding purposes. (b) Stewardship Contract - An Aquaculture Stewardship Contract (ASC) may be granted for mangrove-friendly aquaculture by the Secretary upon the recommendation of the Director to fisherfolk cooperative or association as well as MSME over areas released for fishpond development. (c) Lease Agreement - A Fishpond Lease Agreement (FLA) for fishpond operations may be granted by the Secretary upon the recommendation of the Director to qualified applicants over areas released for fishpond development that have already been developed into fishponds. The following persons may apply for FLA over developed public fishpond areas: (a) Citizens of the Philippines who are at least twenty-one years of age; (b) Corporations duly incorporated and registered under the laws of the Philippines at least sixty per centum (60%) of the capital stock or interest of which belongs to citizens of the Philippines. Period of FLA- Twenty-five (25) years, renewable for another twenty-five years but not exceed fifty (50) years *transfers shall only be allowed within the fifty-year period Surface right - lessee shall have no right to utilize or remove any timber or other forest products, stones, or earth therefrom without authority from proper officials NOTE: PRIORITY RIGHT IS GIVEN TO FILIPINO CITIZEN. Reason: Aside from the Constitutional rights, it is the equitable distribution of opportunities, income and wealth; expanding productivity as the key to raising the quality life for all, especially the under privilege and protect small fisherfolk from unfair competition

PRIMARY MINING LAWS IN THE PHILIPPINES (1) CA 137 “MINING ACT (2) PHILIPPINE MINING ACT OF 1995 (3) PHILIPPINE SMALL SCALE MINING ACT C. CA 137 “MINING ACTS” Regalian Doctrine – (Section 3) All mineral lands of the public domain and minerals belonging to the State, and their disposition, exploitation, development, or utilization, shall be limited to citizens of the Philippines, or to corporations, or associations, at least sixty per centum of the capital of which is owned

10 | P a g e

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

by such citizens, subject to any existing right, grant, lease, or concession at the time of the inauguration of the Government established under the Constitution. Classification of Mineral Lands a) First group – Metals or metalliferous ores. b) Second group – Precious stones. c) Third group – Fuels. d) Fourth group – Salines and mineral waters. e) Fifth group – Building stone in place, clays, fertilizers, and other nonmetals D. PHILIPPINE MINING ACT OF 1995 (RA 7942) New system of mineral resources exploration, development, utilization and processing of all mineral resources Surface Right of Private Land Owner – The right to possess or own surface ground is SEPARATE and DISTINCT from the mineral rights over the same How does the State exercise full control over natural resources? – MODES OF MINERAL AGREEMENT a) Direct Undertaking b) Entering into production sharing agreement, co production agreement, joint venture agreement [60% owned by a Filipino citizen, corporation or association] c) Entering into agreement with foreign owned corporation for financial & technical assistance (FTAA) [100% foreign owned]

(1) MINERAL PRODUCTION SHARING (MPSA) – agreement where the Government grants to the contractor the exclusive right to conduct mining operations within a contract area and shares in the gross output. The contractor shall provide the financing technology, management and personnel necessary for the implementation of this agreement (2) CO- PRODUCTION AGREEMENT – agreement wherein the Government shall provide inputs to the mining operations other than the mineral resource (3) JOINT VENTURE AGREEMENT – where joint venue company is organized by the Government and the contractor with both properties having equity shares. Aside from earnings in equity, the Government shall be entitled to a share in the gross output (4) FINANCIAL OR TECHNICAL ASSISTANCE AGREEMENT (FTAA) – Agreement between Government and foreign owned corporation for purposes of financial and technical assistance FTAA as Distinguished from SERVICE CONTRACT – contractual arrangement allowing forest products licensees, lessees, permittees to enter into service contracts for financial, technical, management, or other forms of assistance, in consideration of a fee, with any foreign person or entity for the exploration, development, exploitation, utilization of the forest resources, covered by their license agreement, licenses, permits, lease. NOTE: INTERPRETATION OF CONSITUTIONAL PROVISION REGARDING FTAA  Service contract is permitted with foreign corporations as contractors, but with safety measures to prevent abuses. Reason: perceived insufficiency of Filipino capital and the need for foreign expertise in the EDU of mineral resources  The agreements involving technical or financial assistance referred to in the Constitution are in fact service contracts, but such service contracts are between foreign 11 | P a g e

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]





corporations acting as “contractors” and government acting as principal “owner” (of the works), foreign contractors provides capital, technology and technical knowhow, managerial expertise in the creation and operation of the large scale mining/extractive enterprise, and government through its agencies actively exercises full control (restrain, regulate and govern) and supervision over the entire enterprise Service Contracts may be entered into only with respect to minerals, petroleum and other mineral oils.

Service contract may only be allowed: 1) Service Contracts be crafted in accordance with a general law setting standard or uniform terms, conditions and requirements 2) President be signatory for the government 3) President report the executed agreement to Congress within 30 days LA BUGAL B’LAAN TRIBAL ASSOCIATION INC vs. RAMOS FACTS: RA 7942 (The Philippine Mining Act) took effect on April 9, 1995. Before the effectivity of RA 7942, the President signed a Financial and Technical Assistance Agreement (FTAA) with WMCP, a corporation covering close to 100,000 hectares of land. Petitioners prayed that RA 7942, its implementing rules, and the FTAA between the government and WMCP be declared unconstitutional on ground that they allow fully foreign owned corporations like WMCP to exploit, explore and develop Philippine mineral resources in contravention of Article XII Section 2 paragraphs 2 and 4 of the Charter. WMC - a publicly listed Australian mining and exploration company - sold its whole stake in WMCP to Sagittarius Mines, 60% of which is owned by Filipinos while 40% of which is owned by Indophil Resources, an Australian company. DENR approved the transfer and registration of the FTAA in Sagittarius‘name but Lepanto Consolidated assailed the same.

ISSUES: 1. Whether or not the Philippine Mining Act is unconstitutional for allowing fully foreign-owned corporations to exploit the Philippine mineral resources. HELD: (FIRST DECISION, DECLARED UNCONSTITUTIONAL) NO. Upon motion for reconsideration, the Supreme Court interpreted the relevant regulations as well as the corresponding parts of the Constitution providing that the President could enter into agreements with foreign-owned corporations for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils. It examined the extent of control of the state in implementing the said agreements. It emphasized that all mineral resources were owned by the State. Their exploration, development and utilization always had to be subject to the full control and supervision of the State. However, given the inadequacy of Filipino capital and technology, the State could secure the help of foreign companies in all relevant matters -- especially financial and technical assistance -provided that, at all times, the State maintained its right of full control. The Constitution should not be used to strangulate economic growth. Rather, it should be construed to grant the President and Congress sufficient discretion to enable them to attract foreign investments and expertise, as well as to secure for Filipino

12 | P a g e

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

people prosperity and peace. The regulations in question vested in the government more than a sufficient degree of control and supervision over the conduct of mining operations. This setup could not be regarded as disadvantageous to the State or the Filipino people; it did not convey beneficial ownership of Filipino mineral resources to foreign contractors. The Court upheld the constitutionality of the Philippine Mining Law and its implementing rules and regulations - insofar as they related to financial and technical agreements - as well as the Financial and Technical Assistance Agreement in question.

E. SMALL-SCALE MINING ACT Small-scale mining refers to any single unit mining operation having an annual production of not more than 50,000 metric tons of ore and satisfying the following requisites 1. The working is artisanal, either open cast or shallow underground mining, without the use of sophisticated mining equipment; 2. Minimal investment on infrastructures and processing plant; 3. Heavy reliance on manual labor; and 4. Owned, managed or controlled by an individual or entity qualified under existing mining laws, rules and regulations. Purpose of Small Scale Mining Act 1. To generate more employment opportunities within communities 2. To provide an equitable sharing of the nation's wealth and natural resources Areas Closed to Mining a) Areas expressly enumerated under Section 19, of RA 7942 b) Protected Areas under RA No. 7586 the National Integrated Protected Areas System c) Prime agricultural lands d) Tourism development areas e) Other critical areas, island ecosystems and impact areas of mining Rights Under a People's Small-scale Mining Contract – A people's small-scale mining contract entitles the small-scale mining contractor to the right to mine, extract and dispose of mineral ores for commercial purposes. In no case shall a small-scale mining contract be subcontracted, assigned or otherwise transferred NOTE: No ancestral land may be declared as a people’s small scale mining area without the prior consent of the cultural communities concerned

EXPLOITATION OF PETROLEUM, COAL AND ENERGY RESOURCES (1) PETROLEUM ACT OF 1949 (2) COAL DEVELOPMENT ACT OF 1976 F. PETROLEUM ACT OF 1949 Petroleum include any mineral oil, hydrocarbon gas, bitumen, asphalt, mineral wax and all other similar or naturally associated substances KINDS OF CONCESSIONS a) Non Exclusive Exploration Permit – grants to the permittee the non- exclusive right to conduct geological or geophysical exploration on specified areas - Preparatory to making application for exclusive Exploration concession -TERM: 2 years, renewable for another 2 years b) Exploration Concession – grants to the concessionaire the exclusive right to explore for petroleum within specified area 13 | P a g e

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

c)

d)

e) f)

- all work that have for their object the discovery of petroleum, including, but not restricted to surveying and mapping, aerial photography, surface geology, geophysical investigations, testing of subsurface conditions by means of drilling and any other same manner -TERM: 4 years, extension of another 3 years, but should not exceed 10 years from the date of issuance Exploitation Concession – grants to the concession the exclusive right to explore for petroleum within specified areas - drilling or operating wells, providing and operating pumping and storage facilities and other facilities useful for the purpose of making petroleum available for sale, manufacture or refining within or for shipment from such area TERM: 25 years, renewable before expiration for another 25 years Refining Concession – grants to the concessionaire the right to manufacture or refine petroleum or to exact its derivatives - processing or treating of petroleum by chemical or physical means for the purpose of making or separating marketable products 25 years, renewable before expiration for another 25 years Pipeline Concession – grants to the concessionaire the right to provide and operate pipe line systems or transporting petroleum 25 years, renewable before expiration for another 25 years - non exclusive right to transport petroleum, by means of a pipelines, between sources of production and/or refining and the places defined in the Pipeline Concession - includes the construction and operation of pie lines, pumping or compressing stations, storage tanks and gas tanks, power plants, shops, storehouse and other buildings, water supply and communications systems, roads and other equipment facilities - COMMON CARRIER

QUALIFICATIONS OF APPLICANT FOR CONCESSIONS a) Individual – citizen of the Philippines, legal age and have the capacity to contract b) Partnership or Corporation – at least 60% of the capital held by citizens of the Philippines G. COAL DEVELOPMENT ACT OF 1976 - Provide a viable energy source Coal Operating Contract – an agreement whereby service, technology and financing are furnished by operator for which it shall be entitled to the stipulated fee and reimbursement of operating expenses Incentives to Operators 1) Tax Exemptions (except income tax) 2) Tariff duties and compensating tax on importation of equipments and parts exemption H. WATER CODE OF THE PHILIPPINES -Governing the ownership, appropriation, utilization, exploitation, development, conservation and protection of water resources - Waters under and above the grounds, waters in the atmosphere and the waters of the sea within the territorial jurisdiction of the Philippines Waters Appropriation a) Domestic – drinking, washing, bathing, cooking or other household needs b) Municipal – supplying water requirements for community c) Irrigation - utilization of water for producing agricultural crops 14 | P a g e

NATURAL RESOURCES AND ENVIRONMENTAL LAW

d) e) f) g) h) i)

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

Power Generation – for producing electrical or mechanical power Fisheries – for the propagation and culture of fish as commercial enterprise Livestock raising – for large herds or flocks of animals raised as a commercial enterprise Industrial - for factories, industrial plants and mines Recreational – for swimming pools, bath houses, boating, water skiing, golf courses Other purposes

Underlying Principles of the Water Code of the Philippines 1. All waters belong to the State; 2. All waters that belong to the State cannot be subject to acquisitive prescription; 3. The State may allow the use or development of waters by administrative concession; 4. The utilization, exploitation, development, conservation and protection of water resources shall be subject to the control and regulation of the government through the Natural Water Resources Council; 5. Preference in the use and development of waters shall consider current usages and be responsive to the changing needs of the country Qualification of Applicants for Permit/Authority a) Citizens of the Philippines; b) Associations, duly registered cooperatives or corporations organized under the laws of the Philippines, at least 60 percent of the capital of which is owned by the citizens of the Philippines; c) Government entities and instrumentalities, including government owned and controlled corporations Some Easements Relating to Waters Lower estates are obliged to receive the waters which naturally and without the intervention of man descend from the higher estates, as well as the stones or earth which they carry with them. The owner of the lower estate cannot construct works which will impede this easement; neither can the owner of the higher estate make works which will increase the burden. The easement of aqueduct does not prevent the owner of the servient estate from closing or fencing it, or from building over the aqueduct in such manner as not to cause the latter any damage, or render necessary repairs and cleanings impossible. For legal purposes, the easement of aqueduct shall be considered as continuous and apparent, even though the flow of the water may not be continuous, or its use depends upon the needs of the dominant estate, or upon a schedule of alternate days or hours. I. WILD LIFE RESOURCES CONSERVATION AND PROTECTION ACT (a) To conserve and protect wildlife species and their habitats to promote ecological balance and enhance biological diversity; (b) To regulate the collection and trade of wildlife; (c) To pursue, with due regard to the national interest, the Philippine commitment to international conventions, protection of wildlife and their habitats; and (d) To initiate or support scientific studies on the conservation of biological diversity GENERALLY it is unlawful for any person to willfully and knowingly exploit wildlife resources and their habitats, but under this ACT the following are allowed: a) Collection of Wildlife ­ appropriate and acceptable wildlife collection techniques with least or no detrimental effects to the existing wildlife populations and their habitats 15 | P a g e

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

-

Collection of wildlife by indigenous people may be allowed for traditional use and not primarily for trade BUT shall not cover threatened species

b) Possession of Wildlife- No allowed possession of wildlife by private person or entity with financial and technical capability and facility to maintain said wildlife c) Collection and/or Possession of By-Products and Derivatives ­ the source was not obtained in violation of this Act d) Local Transport of Wildlife, By-Products and Derivatives - Local transport of wildlife, by-products and derivatives collected or possessed through any other means shall be authorized (should not be prejudicial to the wildlife and public health) e) Exportation and/or Importation of Wildlife - may be exported to or imported from another country as may be authorized by the Secretary or the designated representative. f) -The recipient of the wildlife is technically and financially capable to maintain it g) Introduction, Reintroduction or Restocking of Endemic or Indigenous Wildlife allowed only for population enhancement of recovery purposes subject to prior clearance from the Secretary - Any proposed introduction shall be subject to a scientific study which shall focus on the bioecology h) Introduction of Exotic Wildlife - No exotic species shall be introduced into the country, unless a clearance is first obtained. i) Bioprospecting - allowed upon execution of an undertaking by any proponent j) Scientific Researches on Wildlife ­ Collection and utilization of biological resources for scientific research and not for commercial purposes shall be allowed upon execution of an undertaking/agreement with and issuance of a gratuitous permit by the Secretary or the authorized representative: k) Biosafety - All activities dealing on genetic engineering and pathogenic organisms in the Philippines, as well as activities requiring the importation, introduction, field release and breeding of organisms that are potentially harmful to man and the environment shall be reviewed in accordance with the biosafety guidelines ensuring public welfare and the protection and conservation of wildlife and their habitats Commercial Breeding or Propagation of Wildlife Resources - securing wildlife farm culture permit (1) Wildlife farm or culture permits - 3 to 5 years; (2) Wildlife collector's permit - 1 to 3 years; (3) Gratuitous permit - 1 year; (4) Local transport permit - 1 to 3 months; and (5) Export/Import/Reexport permits - 1 to 6 months J. NATIONAL INTERGRATED PROTECTED AREA SYSTEM ACT (NIPAS) - the classification and administration of all designated protected areas to maintain essential ecological processes and life-support systems, to preserve genetic diversity, to ensure sustainable use of resources found therein, and to maintain their natural conditions to the greatest extent possible - Due to impact of man’s activities, effect of increasing population, resource exploitation and industrial advancement it is important to protect and maintain the natural biological and physical diversities of the environment on areas with biologically unique features to sustain human life and development, as well as plant and animal life.

16 | P a g e

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

- The purpose of NIPAS is to secure for the Filipino people of present and future generations the perpetual existence of all native plants and animals. Categories of Protected Areas a) Strict nature reserve - area possessing some outstanding ecosystem, features and/or species of flora and fauna of national scientific importance maintained to protect nature and maintain processes in an undisturbed state in order to have ecologically representative examples of the natural environment available for scientific study, environmental monitoring, education, and for the maintenance of genetic resources in a dynamic and evolutionary state (Calauit Safari Park, Palawan) b) Natural Park - relatively large area not materially altered by human activity where extractive resource uses are not allowed and maintained to protect outstanding and scenic areas of national or international significance for scientific, educational and recreational use (Angat River, Binahaan River, marcos Highway) c) Natural monument - relatively small area focused on protection of small features to protect or preserve nationally significant natural features on account of their special interest or unique characteristics (Ex: Chocolate Hills) d) Wildlife sanctuary - area which assures the natural conditions necessary to protect nationally significant species, groups of species, biotic communities or physical features of the environment where these may require specific human manipulation for the perpetuation (Taal Volcano, Quirino, Jose Rizal Memorial) e) Protected landscapes and seascapes - areas of national significance which are characterized by the harmonious interaction of man and land while providing opportunities for public enjoyment through recreation and tourism within the normal lifestyle and economic activity of these areas (Batanes, Siargao Island, Panglao Island) f) Resource reserve - extensive and relatively isolated and uninhabited area normally with difficult access designated as such to protect natural resources of the area for future use and prevent or contain development activities that could affect the resource pending the establishment of objectives which are based upon appropriate knowledge and planning g) Natural biotic areas - area set aside to allow the way of life of societies living in harmony with the environment to adapt to modern technology at their pace (Basilan) h) Marine reserves (Palaui Island Cagayan, Masinloc Zambales) i) Forest reserves, Wilderness Areas (Bantayan Island, Dampalit Island) j) Managed Resource Protected Areas (El Nido Managed Resource Protected Area) k) Mineral Reserves (Cagayan, Nueva Vizcaya) NOTE: - Protected Area - identified portions of land and water set aside by reason of their unique physical and biological significance, managed to enhance biological diversity and protected against destructive human exploitation; - Buffer zones - identified areas outside the boundaries of and immediately adjacent to designated protected areas that need special development control in order to avoid or minimize harm to the protected area - All areas or islands in the Philippines proclaimed, designated or set aside, classified, pursuant to a law, presidential decree, presidential proclamation or executive order as “protected areas” before the effectivity of NIPAS are designated as initial components of the System. Types of Uses/Services Provided -- Protected areas may provide any of the following permitted uses or services: 17 | P a g e

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA

1. Maintenance of biodiversity and environmental services 2. Scientific research/educational activities/environmental monitoring 3. Protection of cultural, historical, or archaeological heritage; scenic beauty 4. Resource utilization/extraction 5. Tourism and recreation 6. Maintenance of indigenous use or habitation 7. Multiple use/open options 8. Contribution to rural development 9. Others

[email protected]

K. National Cave and Cave Resources Management and Protection Act - To conserve, protect and manage caves and cave resources as part of the country’s natural wealth - ecotourism, scientific, educational, habitat of species There are 3 classification of caves: 1. Class I – caves with delicate and fragile geological formations, threatened species, archeological and paleontological values and extremely hazardous conditions. There are 21 newly classified caves under Class I, including the Masi Cave in Adams, Ilocos Norte, the Pagulayan Cave within the Peñablanca Protected Landscape in Cagayan, and the Santol Cave in the Island Garden City of Samal in Davao del Norte. Allowable activities: mapping, photography, educational and scientific purposes Closed to: ecotourism activities 2. Class II – caves with areas or portions which have hazardous conditions and contain sensitive geological, archeological, cultural, historical, and biological values or high quality ecosystem. It may be necessary to close these caves seasonally or permanently; otherwise, they may be open only to experienced cagers or guided educational tours or visits. There are 154 newly classified caves under Class II, including the famous Sohoton Cave in Samar. 3. Class III – caves with no known threatened species and archeological, geological, natural history, cultural, and historical values. They may also be used when appropriate for economic purposes such as extraction of guano (bat waste) and collection of edible bird nests. Prohibited Acts (a) Knowingly destroying, disturbing, defacing, marring, altering, removing, or harming the speleogem or speleothem of any cave or altering the free movement of any animal or plant life into or out of any cave; (b) Gathering, collecting, possessing, consuming, selling, bartering or exchanging or offering for sale without authority any, cave resource; and (c) Counselling, procuring, soliciting or employing any other person to violate any provisions of this Section.

FINALS L. ESTABLISHING AN ENVIRONMENTAL IMPACT SYSTEM (PD 1586) DEFINITION:

18 | P a g e

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

It is a process that involves evaluating and predicting the likely impacts of a project (including cumulative impacts) on the environment during construction, commissioning, operation and abandonment. It also includes designing appropriate preventive, mitigating and enhancement measures addressing these consequences to protect the environment and the community’s welfare. The process is undertaken by, among others, the project proponent and/or EIA Consultant, EMB, a Review Committee, affected communities and other stakeholders. Principle of Sustainable Development - rational and orderly balance between economic growth and environmental protection OBJECTIVES: (1) Assure the availability and sustainability of the country's natural resources through judicious use and systematic restoration or replacement, whenever possible; (2) Increase the productivity of natural resources in order to meet the demands for forest, mineral, and land resources of a growing population; (3) Enhance the contribution of natural resources for achieving national economic and social development; (4) Promote equitable access to natural resources by the different sectors of the population; (5) Conserve specific terrestrial and marine areas representative of the Philippine natural and cultural heritage for present and future generations. EMB is responsible for the issuance of decision making documents such as Environmental Compliance Certificate (ECC) and Certificate of Non-Coverage (CNC) for PEISS. For the programs and projects in CAAMs, EMB Regional Offices in respective regions are primary responsible for the consultation and supervision of development projects. SCOPE: a) In general, only projects that pose potential significant impact to the environment shall be required to secure ECC’s. In coordination with the Department of Trade and Industry (DTI) and other concerned government agencies, the EMB is authorized to update or make appropriate revisions to the technical guidelines for EIS System implementation. b) The issuance of ECC or CNC for a project under the EIS System does not exempt the proponent from securing other government permits and clearances as required by other laws. In determining the scope of the EIS System, two factors are considered: (i) The nature of the project and its potential to cause significant negative environmental impacts, and (ii) The sensitivity or vulnerability of environmental resources in the project area. ECC v. CNC Environmental Compliance Certificate (ECC) – document issued by the DENR/EMB after a positive review of an ECC application, certifying that based on the representations of the proponent, the proposed project or undertaking will not cause significant negative environmental impact. Certificate of Non-Coverage (CNC) – a certification issued by the EMB certifying that, based on the submitted project description, the project is not covered by the EIS System and is not required to secure an ECC. NOTE: It should be noted however, that the issuance of an ECC does not preclude a project proponent from securing related permits, such as sanitary, conversion, water, and building permits, from concerned government agencies under other existing laws, rules and regulations. ECA v. ECP Environmentally Critical Area (ECA) - area delineated as environmentally sensitive such that significant environmental impacts are expected if certain types of proposed projects or programs are located, developed or implemented in it. Environmentally Critical Project (ECP) - project or program that has high potential for significant negative environmental impact. EIS v. IEE Environmental Impact Statement (EIS) - document, prepared and submitted by the project proponent and/or EIA Consultant that serves as an application for an ECC

19 | P a g e

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

Initial Environmental Examination (IEE) Report – document similar to an EIS, but with reduced details and depth of assessment and discussion I. ECPs in ECA or NECA: EIS  ECC II. NECA in ECA: IEE  ECC III. NECPs in NECA: CNC ENVIRONMENTALLY CRITICAL PROJECTS 1) Heavy Industries 2) Resource Extractive Industries 3) Infrastructure Projects ENVIRONMENTALLY CRITICAL AREAS 1. NIPAS 2. Aesthetic potential tourist spots; 3. Habitat for any endangered or threatened species 4. Historic, archaeological, or scientific interests; 5. Occupied by cultural communities or tribes; 6. Frequently visited and/or hard-hit by natural calamities 7. Critical slopes areas; 8. Prime agricultural lands; 9. Recharged areas of aquifers; 10. Water bodies 11. Mangrove areas 12. Coral reefs CRITERIA FOR DETERMINING PROJECTS OR UNDERTAKINGS TO EB COVERED BY THE EIS SYSTEM

a.

Characteristics of the project or undertaking  Size of the project  Cumulative nature of impacts vis-à-vis other projects  Use of natural resources  Generation of waste and environment-related nuisance  Environment-related hazards and risk of accidents

b. Location of the Project   

c.

Vulnerability of the project area to disturbances due to its ecological importance, endangered or protected status Conformity of the proposed project to existing land use, based on approved zoning or on national laws and regulations Relative abundance, quality and regenerative capacity of natural resources in the area, including the impact absorptive capacity of the environment

Nature of the potential impact  Geographic extent of the impact and size of affected population  Magnitude and complexity of the impact  Likelihood, duration, frequency, and reversibility of the impact

CATEGORIES OF PROJECTS/UNDERTAKINGS UNDER THE EIS SYSTEM: a) Category A. Environmentally Critical Projects (ECPs) with significant potential to cause negative environmental impacts b) Category B. Projects that are not categorized as ECPs, but which may cause negative environmental impacts because they are located in Environmentally Critical Areas (ECA's) c) Category C. Projects intended to directly enhance environmental quality or address existing environmental problems not falling under Category A or B. d) Category D. Projects unlikely to cause adverse environmental impacts.

20 | P a g e

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

Projects under Category A and B are required to secure ECC. For co-located projects, the proponent has the option to secure a Programmatic ECC. For ecozones, ECC application may be programmatic based on submission of a programmatic EIS, or locator-specific based on submission of project EIS by each locator. Projects under Category C are required submit Project Description.



 

Projects classified under Category D may secure a CNC. The EMB-DENR, however, may require such projects or undertakings to provide additional environmental safeguards as it may deem necessary.



Projects/undertakings introducing new technologies or construction technique but which may cause significant negative environmental impacts shall be required to submit a Project Description which will be used as basis by EMB for screening the project and determining its category.

NOTE: The outcome of the EIA Process within the system administered by the DENR is the issuance of decision documents. Decision documents may either be an ECC, CNC or a Denial Letter. The decisions on applications shall be made within prescribed timelines within the control of DENR, otherwise, the application shall be deemed automatically approved, with the issuance of the approval document within five (5) working days from the time the prescribed period lapsed. Once a project is implemented, the ECC remains valid and active for the lifetime of the project The ECC automatically expires if a project has not been implemented within five (5) years from ECC issuance, or if the ECC was not requested for extension within three (3) months from the expiration of its validity. DECIDING AUTHORITY EMB Regional Office Director EMB Central Office Director DENR Secretary

APPEAL EMB Central Office Director DENR Secretary Office of the President

FINES, PENALTIES AND SANCTIONS 

The EMB Central Office or Regional Office Directors shall impose penalties upon persons or entities found violating provisions of P.D. 1586, and its Implementing Rules and Regulations. Details of the Fines and Penalty Structure shall be covered by a separate order.



The EMB Director or the EMB-RD may issue a Cease and Desist Order (CDO) based on violations under the Philippine EIS System to prevent grave or irreparable damage to the environment. Such CDO shall be effective immediately. An appeal or any motion seeking to lift the CDO shall not stay its effectivity. However, the DENR shall act on such appeal or motion within ten (10) working days from filing.



The EMB may publish the identities of firms that are in violation of the EIA Law and its Implementing Rules and Regulations despite repeated Notices of Violation and/or Cease and Desist Orders.

IS ECC A PERMIT OR LICENSE? No. ECC is not a permit. A “license” has been defined as “a governmental permission to perform a particular act (such as getting married), conduct a particular business or occupation, operate machinery or vehicles after proving capacity and ability to do so safely, or use property for a certain purpose.” While a “permit” has been defined as “a license or other document given by an authorized public official or agency (building inspector, department of motor vehicles) to allow a person or business to perform certain acts”

21 | P a g e

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

ECC is not a permit and should not be interpreted as such but rather a set of conditions which will have to be complied with by the Project before implementing the said project, hence, not a permit. WHY DO I NEED TO KNOW WON ECC IS A PERMIT? In IPRA Law, it is necessary to secure a Certificate of Non- Overlap (CNO) from NCIP before any license will be granted from any government agency. Since ECC is not a license, therefore, there is no need to secure certification before the actual granting of ECC. ASIDE FROM DENR, MAY LGU ISSUE ECC OR CNC? No. PD 1586 provides that ECCs are issued only by the President of the Philippines or his duly authorized representative, which is DENR (DENR Secretary as Alter Ego of the President). A delegated authority cannot be re-delegated. Thus, administrators of declared area management authorities and economic zones/industrial parks as well as LGUs do not have the authority to issue ECC/CNC under P.D. 1586 unless otherwise expressly delegated by the President of the Philippines IDENTIFY IF ISSUANCE OF THE FOLLOWING ARE MINISTERIAL DUTY: 1) CNC – Yes. Issuance of CNC is a ministerial duty upon application of the proponent. 2) ECC – NO. Issuance of ECC is NOT a ministerial duty IT IS IMPORTANT TO KNOW THE NATURE OF ECC/CNC WHETHER IT IS A MINISTERIAL DUTY BECAUSE IT IS ONE OF THE ELEMENT OF THE JUDICIAL WRIT OF MANDAMUS, TO WIT: 1. Petitioner must show a clear legal right to the act demanded; 2. Respondent must have a duty to perform the act mandated by law; 3. Respondent unlawfully neglects the performance of the duty enjoined by law; 4. The act to be performed is ministerial and not discretionary; and 5. There is no other plain, speedy and adequate remedy in the ordinary course of law. To tell whether the act may be compelled by Mandamus, the duty must be first ministerial. A duty is ministerial if it is the official duty of a public officer required by direct and positive command of the law wherein the officer has no room for the exercise of discretion PROHIBITED ACTS: a) Violation of standards for stationary sources a. for actual exceedance of air quality standards or limitation b) Any order, rule or regulation issued by the DENR with respect to such standard or limitation

M. PHILIPPINE CLEAN WATER ACT (RA 9275) OBJECTIVES: Clean Water Act of 2004 aims to protect the country’s water bodies from pollution. It provides for a comprehensive and integrated strategy to prevent and minimize pollution through a multi-sectoral and participatory approach involving stakeholders. SCOPE/COVERAGE:  It covers ALL types of bodies of water  All owners or operators of facilities that discharge wastewater are required to get a permit to discharge from the DENR or LLDA  Anyone discharging wastewater into a water body shall have to pay a wastewater charge. IMPORTANT TERMS: BENEFICIAL USE – use of the environment or any element/segment thereof conducive to public or private welfare, safety and health; and shall include, but not limited to the use of water for domestic, municipal, irrigation, power generation, fisheries, livestock raising, industrial, recreational and other purpose.

22 | P a g e

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

CONTAMINATION – means the introduction of substances not found in the natural composition of water that make the water less desirable or unfit for intended use. DISCHARGE – the act of spilling, leaking, pumping, pouring, emitting, emptying, releasing or dumping of any material into a water body or onto land from which it might flow or drain into said water. EFFLUENT - means discharge from known sources which is passed into a body of water or land, or wastewater flowing out of a manufacturing plant, industrial plant including domestic, commercial and recreational facilities. ***REMEMBER: EFFLUENT STANDARDS HAZARDOUS WASTE - means any waste or combination of wastes of solid liquid, contained gaseous, or semi-solid form which cause, of contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible illness, taking into account toxicity of such waste, its persistence and degradability in nature, its potential for accumulation or concentration in tissue, and other factors that may otherwise cause or contribute to adverse acute or chronic effects on the health of persons or organism. POLLUTANT - shall refer to any substance, whether solid, liquid, gaseous or radioactive, which directly or indirectly: a. alters the quality of any segment of the receiving water body to affect or tend to affect adversely any beneficial use thereof; b. is hazardous or potential hazardous to health; c. imparts objectionable odor, temperature change, or physical, chemical or biological change to any segment of the water body; or d. is in excess of the allowable limits, concentrations, or quality standards specified, or in contravention of the condition, limitation or restriction prescribed in this Act. TREATMENT - means any method, technique, or process designed to alter the physical, chemical or biological and radiological character or composition of any waste or wastewater to reduce or prevent pollution WASTE - means any material either solid, liquid, semisolid, contained gas or other forms resulting industrial, commercial, mining or agricultural operations, or from community and household activities that is devoid of usage and discarded WATER POLLUTION - means any alteration of the physical, chemical, biological, or radiological properties of a water body resulting in the impairment of its purity or quality N. PHILIPPINE AIR WATER ACT (RA 9275) Philippine Clean Air Act of 1999 outlines the government's measures to reduce air pollution and incorporate environmental protection into its development plans IMPORTANT TERMS: AIR POLLUTANT – any matter found in the atmosphere other than the inert gases in their natural or normal concentrations that is detrimental to health or environment AIR POLLUTION – any alteration of the physical, chemical and biological properties of the atmospheric air, or any discharge that will likely to create or render the air resources harmful, detrimental or injurious to public health AMBIENT AIR – the general amount of pollution presents in a broad area; and refers to the atmosphere’s average purity as distinguished from discharge measurements taken at the source of pollution. INCINERATION – process of burning of municipal bio-medical and hazardous wastes, which emits poisonous and toxic fumes.

23 | P a g e

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

However, prohibition on incineration does not apply to sanitation “siga”, traditional, agricultural, health and food preparation and crematoria. (Atty. USec: Jurisprudence held that incineration is not at all prohibited, provided that it meets the standard) PROHIBITED ACTS (IN GENERAL) a) b) c) d) e)

Discharging or depositing materials that could pollute any water body Discharging regulated pollutants without valid discharge permit Undertaking activities in violation of P.D. 1586 Transport or discharge of prohibited chemicals under R.A. 6969 Transport or dumping of solid wastes under R.A. 9003

REGULATION OF VEHICLES AND ENGINES Any imported new or locally-assembled motor vehicle shall not be registered unless it complies with the emission standards set, as evidenced by Certificate of Conformity (COC). No motor vehicle registration (MVR) shall be issued unless such motor vehicle passes the emission testing requirement PROHIBITION ON SMOKING Section 10 of Clean Air Act: Smoking inside a public building or an enclosed public place, including public vehicles and other means of transport, or in any other enclosed area outside one’s private residence, private place of work or any duly designated smoking area is prohibited. (To be implemented by LGUs) PROHIBITION ON OZONE DEPLETING SUBSTANCES (MONTREAL PROTOCOL) Section 30 of Clean Air Act: The Department shall phase-out ozone-depleting substances. ABATEMENT OF PRIVATE NUISANCE Section 694 of NCC provides that nuisance is any act, omission, establishment, condition of property or anything else which: (1) Injures or endangers the health or safety of others; or (2) Annoys or offends the senses; or (3) Shocks, defies or disregards decency or morality; or (4) Obstructs or interferes with the free passage of any public highway or street or any body of water; or (5) Hinders or impairs the use of property. CITIZEN SUIT Any citizen may file an appropriate civil, criminal or administrative action in the proper court against: 1. Any person who violates or fails to comply with the provision of the Clean Air Act 2. The Department or other implementing agencies with respect to orders, rules and regulations issued inconsistent with Clean Air Act. 3. Any public officer who willfully or grossly neglects the performance of an act. SUITS AND STRATEGIC LEGAL ACTIONS AGAINST PUBLIC PARTICIPATION (SLAPP) Where a suit is brought against a person who filed an action as provided in Section 41 (Citizen suit) against any person, institution or government agency that implements a law complained about, it shall be the duty of the investigating prosecutor or the court, as the case may be, to immediately determine within 30 days, whether the said legal action has been filed to harass, vex, exert undue pressure or stifle such legal recourses of the person complaining. 

Gross violation against clean air act shall mean:

a. three (3) or more specific offenses within a period of (1) year b. three (3) or more specific offenses within three (3) consecutive years;

24 | P a g e

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

c. blatant disregard of the orders of the PAB, such as but not limited to the breaking of seal, padlocks and other similar devices, or operating despite the existence of an order for closure, discontinuance or cessation of operation; and d. irreparable or grave damage to the environment as a consequence of any violation or omission of the provisions of this Act. NOTE: According to USec Leones: Application of Exhaustion of Administrative Remedies  PD 1586: EAR shall apply  Clean Water Act/Clean Air Act: EAR does not apply, since jurisdiction on the matter is vested on a quasi-judicial body. Will mandamus prosper to compel PUVs to used natural gas as alternative fuel? NO. Mandamus will not prosper to compel PUVs to use natural gas as alternative fuel in the absence of specific law on the matter. The legislature should provide first the specific statutory remedy to the complex environmental problems before any judicial recourse by mandamus is taken AC Enterprises, Inc. v. Frabelle Properties Corporation: PAB has no jurisdiction on the resolution of the issue before RTC, WoN the noise complained about is an actionable nuisance, since it does not require any technical expertise and experience of PAB or LGU requiring determination of intricate matters of facts. O. RA 9003: Ecological Solid Waste Management Act Ecological Solid Waste Management Act of 2000 refers to the systematic administration of activities which provide for segregation at source, segregated transportation, storage, transfer, processing, treatment, and disposal of solid waste and all other waste management activities which do not harm the environment. National Solid Waste Management Commission (NSWMC) shall implement the Ecological Solid Waste Management Act which shall be composed of 14 government agencies and 3 members from private sector. IMPORTANT TERMS: COLLECTION - shall refer to the act of removing solid waste from the source or from a communal storage point; COMPOSTING - shall refer to the controlled decomposition of organic matter by micro-organisms, mainly bacteria and fungi, into a humuslike product; LEACHATE - shall refer to the liquid produced when waste undergo decomposition, and when water percolate through solid waste undergoing decomposition. It is contaminated liquid that contains dissolved and suspended materials; MATERIALS RECOVERY FACILITY (MRF) - includes a solid waste transfer station or sorting station, drop-off center, a composting facility, and a recycling facility; SOLID WASTE MANAGEMENT FACILITY - shall refer to any resource recovery system or component thereof; any system, program, or facility for resource conservation; any facility for the collection, source separation, storage, transportation, transfer, processing, treatment, or disposal of solid waste; MUNICIPAL WASTE - shall refer to wastes produced from activities within local government units which include a combination of domestic, commercial, institutional and industrial wastes and street litters; SOLID WASTE - shall refer to all discarded household, commercial waste, non-hazardous institutional and industrial waste, street sweepings, construction debris, agricultural waste, and other nonhazardous/ non-toxic solid waste. SOLID WASTE MANAGEMENT PROCEDURE a) Segregation of wastes shall begin in the household, institutional, industrial, commercial and agricultural sources, which shall be segregated into “compostable”, “non-recyclable”, “recyclable” or “special type of waste”.

25 | P a g e

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

b) Collection of wastes shall be undertaken by the LGU. Solid wastes shall be brought to Materials Recovery Facility (MRF), in which solid wastes shall be further sorted. Residual wastes shall be sent to landfill, while hazardous wastes shall be sent to treatment facility. SALIENT FEATURES: Prohibition on the Use of Non-Environmentally Acceptable Packaging - No person owning, operating or conducting a commercial establishment in the country shall sell or convey at retail or possess with the intent to sell or convey at retail any products that are placed, wrapped or packaged in or on packaging which is not environmentally acceptable packaging. Prohibition Against the Use of Open Dumps for Solid Waste – No open dumps shall be established and operated, nor any practiceor disposal of solid waste by any person, including LGUs, which constitutes the use of open dumps for solid wastes, be allowed (Atty Usec: There should be no open dumpsite by 2016) Prohibition on (A) Littering, throwing, dumping of waste matters in public places, such as roads, sidewalks, canals, esteros or parks, and establishment, or causing or permitting the same; (B) Open burning of solid wastes, et. al.

P. POLLUTION ADJUDICATION BOARD The Pollution Adjudication Board (the PAB) is a quasi-judicial body created under Section 19 of Executive Order 192 for the adjudication of pollution cases. The Board assumes the powers and functions of the Commission/Commissioners of the National Pollution Control Commission with respect to the adjudication of pollution cases under Republic Act 3931 and Presidential Decree 984. The PAB is organizationally under the supervision of the Office of the Secretary of the Department of Environment and Natural Resources (the DENR), the Environmental Management Bureau (EMB) provides the Secretariat support. ORGANIZATIONAL PLACEMENT CO-EQUAL W/ RTC Sec.7 (d) of PD 984 – Execution of decision: Any decision or order of the Commission, after the same has become final and xecutor, shall be enforced and executed in the same manner as decisions of Courts of First Instance,… Composed of the following: Chairman: DENR Secretary Members: 2 DENR Undersecretaries EMB Director 3 others to be designated by the Secretary JURISDICTION: (1) Make, alter or modify orders requiring the discontinuance of pollution; (2) Issue, renew, or deny permits for the prevention and abatement of pollution, for the discharge of sewage, industrial waste, or for the installation or operation of sewage works and industrial disposal system; and (3) Exercise such powers and perform such other functions necessary to carry out their duties and responsibilities.

26 | P a g e

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

EXPANDED JURISDICTION OF THE PAB: Philippine Clean Air Act of 1999 (R.A. 8749) Exceedance of air emission; Imposition of Fines; Operating without permit to operate air pollution source installations Philippine Clean Water Act of 2004 (R.A. 9275) Exceedance of the effluent; Imposition of Fines; Committing any of the prohibited acts under Section 27 POLLUTION ADJUDICATION PROCESS

IMPOSITION OF FINES

ROLES OF RO’S IN ADJUDICATION PROCESS 1. Action on Complaints Rule: In all complaints cognizable by the PAB, the Regional Office shall submit a report to the Board containing the following: – Result of investigation – Status of the case – Recommendation 2. Monitoring: The Regional Office is required to submit monthly reports to the PAB on the status/updates on cases referred, investigated and/or endorsed 3. Notice of Violation: If based on investigation there is a prima facie evidence of violation, a Notice of Violation shall be issued. The PAB shall be furnished copies of all notices of violation issued by the Regional Offices (every 5th day of every month), Notices of violation shall contain the following: – Complaint if any – Date of technical conference – Results of investigation/analyses RO shall furnish respondent a copy of the results of analysis within five (5) days from the release of the results. 4. Technical Conference: Within five (5) days from the conduct of compliance testing or validation, the RO shall elevate the case to the Board regardless of its findings, i.e. whether respondent passed or failed to comply with the standards. The records shall include the following:

27 | P a g e

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

–

Copy of the complaint, inspection, or monitoring report; NOV; Position paper, commitment sheet/compliance plan; Minutes of technical conference; Results of laboratory analysis; Resolution of the case.

5. Endorsement to PAB: The Regional Office is bound to make categorical recommendations to the PAB as regards to cases elevated 6. Implementation of CDO: The Regional Office is bound to implement fully a CDO issued by the PAB within a period of 72 hours. If it cannot be implemented, a written report shall be transmitted stating therein the causes of failure to execute. SHELL PHILIPPINES EXPLORATION VS. JALOS 630 SCRA 399

Q. RULES OF PROCEDURE FOR ENVIRONMENTAL CASES (1) Writ of Continuing Mandamus (2) Writ of Kalikasan These Rules shall govern the procedure in civil, criminal and special civil actions before the Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts involving enforcement or violations of environmental and other related laws, rules and regulations Under the 1987 Constitution of the Philippines, it has the power to promulgate rules concerning the protection and enforcement of constitutional rights. Article 8 of the Civil Code of the Philippines provides that judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines. PROCEDURAL INNOVATIONS INTRODUCED IN SAID RULES ARE: 1. Citizen Suits – giving the right to ordinary citizens to initiate legal action to enforce their right to the life sources (a.k.a. environmental right); 2. Consent Decrees; 3. Temporary Environmental Protection Orders (TEPO) in cases of threat of serious damage to the environment (or life sources); 4. Writ of Kalikasan; 5. Writ of Continuing Mandamus; 6. Protection against harassment countersuits (i.e., SLAPP suits – Strategic Lawsuits against Public Participation); and 7. Adoption of the Precautionary Principle STRATEGIC LAWSUITS AGAINST PUBLIC PARTICIPATION (SLAPP) AND (7) THE PRECAUTIONARY PRINCIPLE: What is especially notable about the new Rules of Procedure for Environmental Cases are the two special civil actions that it adds to the existing rules of court in the Philippines, namely: 1. The writ of Kalikasan or the writ of Nature; and 2. The writ of Continuing Mandamus R. WRIT OF CONTINUING MANDAMUS (RULE 8) BRIEF SUMMARY: When any agency or instrumentality of the government or officer thereof unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the enforcement or violation of an environmental law rule or regulation or a right therein. When any agency or instrumentality unlawfully excludes another from the use or enjoyment of such right Where the petition should be filed? The petition shall be filed with the Regional Trial Court exercising jurisdiction over the territory where the actionable neglect or omission occurred or with the Court of Appeals or the Supreme Court. What are some characteristics of the procedure for the issuance of the writ of continuing mandamus?

28 | P a g e

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

a) The petitioner shall be exempt from the payment of docket fees. b) Proceedings shall be summary in nature c) Orders expediting the proceedings or a Temporary Environmental Protection Order for protection of the rights of the parties may be granted by the court. d) The petition shall be resolved without delay within sixty (60) days from the date of the submission of the petition for resolution. S. WRIT OF KALIKASAN BRIEF SUMMARY: The Writ of Kalikasan, or the writ of nature, is available when the environmental damage is of such magnitude that it prejudices the life, health, or property of inhabitants in two or more cities or provinces. The writ is issued by either the Supreme Court or the Court of Appeals within three days after the filing of the application. Hearing of the matter is set within sixty days. No docket or filing fee is required upon the filing of the complaint or petition. The proceedings terminate within sixty days from submission of the original application. Note the emphasis on the enforcement of the right to life. Note also the availability of the legal remedy where the damage is of such magnitude as to threaten the life and health of inhabitants in two or more cities or provinces. In said cases, the petitioner (or affected party) can immediately take recourse to the higher courts – the Court of Appeals and the Supreme Court – and seek relief in summary proceedings. What are the bases for issuing writ of kalikasan? a) 1987 Constitution Article 2 Sec. 16, “he state shall advance the right of the people to a balanced and healthful ecology in accordance with the rhythm and harmony of nature” Article 2 Sec. 15, “The state shall protect and promote the right to health of the people and instill health consciousness among them.” b) Environmental Justice c) Inter-generational Responsibility (Oposa v. Factoran) What are the objectives of Writ of Kalikasan? a) For protection and promotion of constitutional right to a balanced and healthful ecology; b) For simplified, speedy and inexpensive procedure in the enforcement of environmental rights and duties; c) To introduce and adopt innovations in ensuring the effective enforcement of remedies and redress for violation of environmental laws; and d) To enable the courts to monitor and exact compliance with orders and judgments in environmental cases What is the nature of a writ of kalikasan? It is an extraordinary remedy with the underlying emphasis on the magnitude as it deals with damage that transcends political and territorial boundaries. How is magnitude measure? Magnitude is measured according to the qualification set forth in the Rule – when there is environmental damage that prejudices the life, liberty or property of inhabitants in two or more cities or provinces Who can file a petition for Writ of Kalikasan? 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; b) whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation; c) by an unlawful act or omission of a public official or employee, or private individual or entity; d) Involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. Where is it filed? With the Supreme Court or with any station of the Court of Appeals Why is the petition filed in the Supreme Court or the Court of Appeals?

29 | P a g e

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

The magnitude of the environmental damage is the reason for limiting where the writ may be filed, to the Supreme Court or Court of Appeals whose jurisdiction is national in scope. How much is the docket fee? The petitioner is EXEMPT from paying docket fees What is the rationale of the exemption from the payment of docket fees? The exemption from payment of docket fees is consistent with the character of the reliefs available under the writ, which excludes damages for personal injuries. This exemption also encourages public participation in availing of the remedy. What are the reliefs that may be granted under the writ of kalikasan? a) Directing respondent to permanently cease and desist from committing acts or neglecting the performance of a duty in violation of environmental laws resulting in environmental destruction or damage; b) Directing the respondent public official, government agency, private person or entity to protect, preserve, rehabilitate or restore the environment; c) Directing the respondent public official, government agency, private person or entity to monitor strict compliance with the decision and orders of the court; d) Directing the respondent public official, government agency, or private person or entity to make periodic reports on the execution of the final judgment; and e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection, preservation, rehabilitation or restoration of the environment, except the award of damages to individual petitioners Are the reliefs available exclusive? The reliefs that may be granted under the writ are broad, comprehensive and non-exclusive. The reliefs regarding monitoring and periodic reports ensure enforcement of the judgment of the court. What is the remedy in case an adverse judgment was rendered? The remedy is to appeal to the Supreme Court under Rule 45 of the Rules of Court within fifteen (15) days from the date of notice of the adverse judgment or denial of motion for reconsideration. The appeal may raise questions of fact. Can a question of fact be raised on appeal? Given the extraordinary nature of circumstances surrounding the issuance of a writ of kalikasan, this section allows an appeal to raise questions of fact and thus constitutes an exception to Rule45 of the Rules of Court May a party institute separate actions? After hearing, the court shall issue an order submitting the case for decision. The court may require the filing of memoranda and if possible, in its electronic form, within a non-extendible period of thirty (30) days from the date the petition is submitted for decision. 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. Can a question of fact be raised on appeal? Given the extraordinary nature of circumstances surrounding the issuance of a writ of kalikasan, this section allows an appeal to raise questions of fact and thus constitutes an exception to Rule45 of the Rules of Court. May a party institute separate actions? Yes. The filing of a petition for the issuance of the writ of kalikasan shall not preclude the filing of separate civil, criminal or administrative actions DISTINCTIONS BETWEEN WRIT OF KALIKASAN AND WRIT OF CONTINUING MANDAMUS WRIT OF KALIKASAN

30 | P a g e

WRIT OF CONTINUING MANDAMUS

NATURAL RESOURCES AND ENVIRONMENTAL LAW

Prepared by:

CABUHAT, MILEAKIMKARLA [email protected]

DEFINITION

Subject Matter Petitioner Respondent

It is a remedy available to a natural or juridical person, entity authorized by law, people’s organizations, nongovernmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity without involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces Unlawful act or omission; life health or property Any person or representative /agent

Writ issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied

Neglect or exclusion; law, rule or right One who is personally aggrieved

(PO/NGO/Public Interest Group) Public or private entity or individual

Government or officers

Ancillary remedy

Ancillary remedy

Venue

Supreme Court or Court of Appeals

Supreme Court, CA or RTC

Discovery

Ocular inspection or production of

Measures

documents

Temporary Environmental Protection Order (TEPO)

No enumeration

None; separate suit No damages may be awarded in a petition for the issuance of a Writ of Kalikasan consistent with the publicDamages

interest character of the petition. A party who avails of this petition but who

to

be indemnified for injuries suffered may file another suit for the recovery of damages since the Rule on the Writ of Kalikasan allows for the institution of separate actions.

31 | P a g e

The Writ of Continuing Mandamus allows damages for the malicious neglect of the performance of the legal duty of the respondent, identical to Rule 65, Rules of Court