Nepa and Peiss

THE PHILIPPINE ENVIRONMENTAL IMPACT STATEMENT SYSTEM

PD1586

MAIN OBJECTIVE OF THE PEISS

▸ The main objective of the PEISS is to require every project proponent to take the environment into consideration in the implementation of its project in order to provide adequate protection to the environment or at least minimize the project’s potential negative impacts. ▸ Stakeholder participation in the field of environmental management and protection is important.

PEISS

BACKGROUND OF THE PEISS ▸ PD No. 1151 was passed in 1979 which required all agencies and instrumentalities of the national government, including governmentowned or controlled corporations, as well as private corporations, firms, and entities, to prepare, file and include an Environmental Impact Statement (EIS) in every action, project or undertaking which significantly affects the quality of the environment. ▸ Thereafter, PD No. 1586 established the EIS System, which provided a systems-oriented and integrated approach to the filing of the EIS in coordination with the whole environmental protection program of the State.

NATIONAL ENVIRONMENTAL PROTECTION ACT AND THE PHILIPPINE ENVIRONMENTAL IMPACT STATEMENT SYSTEM

NEPA AND PEISS

U.S. NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 Section 102(2)(C) of NEPA provides that an environmental impact statement (EIS) is to include: in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on: (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

NEPA AND PEISS

PHILIPPINE ENVIRONMENTAL IMPACT STATEMENT SYSTEM (PD 1151) Section 4. Environmental Impact Statements. Pursuant to the above enunciated policies and goals, all agencies and instrumentalities of the national government, including governmentowned or controlled corporations, as well as private corporations firms and entities shall prepare, file and include in every action, project or undertaking which significantly affects the quality of the environment a detail statement on a) the environmental impact of the proposed action, project or undertaking b) any adverse environmental effect which cannot be avoided should the proposal be implemented; c) alternative to the proposed action; d) a determination that the short-term uses of the resources of the environment are consistent with the maintenance and enhancement of the long-term productivity of the same; and e) whenever a proposal involve the use of depletable or non-renewable resources, a finding must be made that such use and commitment are warranted.

NEPA AND PEISS

CALVERT CLIFFS COORDINATING COMMITTEE VS. US ATOMIC ENERGY COMMISSION, 449 F2D 1109 (DC CIR. 1971) ▸ NEPA, like so much other reform legislation of the last 40 years, is cast in terms of a general mandate and broad delegation of authority to new and old administrative agencies. It takes the major step of requiring all federal agencies to consider values of environmental preservation in their spheres of activity, and it prescribes certain procedural measures to ensure that those values are in fact fully respected.

NEPA AND PEISS

CALVERT CLIFFS COORDINATING COMMITTEE VS. US ATOMIC ENERGY COMMISSION, 449 F2D 1109 (DC CIR. 1971) ▸ The relevant portion of NEPA is Title I, consisting of five sections.   Section 101 sets forth the Act's basic substantive policy: that the federal government "use all practicable means and measures" to protect environmental values. 3

▸ Congress did not establish environmental protection as an exclusive goal; rather, it desired a reordering of priorities, so that environmental costs and benefits will assume their proper place along with other considerations.

NEPA AND PEISS

CALVERT CLIFFS COORDINATING COMMITTEE VS. US ATOMIC ENERGY COMMISSION, 449 F2D 1109 (DC CIR. 1971) ▸ In general, all agencies must use a "systematic, interdisciplinary approach" to environmental planning and evaluation "in decision making which may have an impact on man's environment.” ▸ “Environmental amenities" will often be in conflict with "economic and technical considerations." To "consider" the former "along with" the latter must involve a balancing process. In some instances environmental costs may outweigh economic and technical benefits and in other instances they may not. But NEPA mandates a rather finely tuned and "systematic" balancing analysis in each instance.

NEPA AND PEISS

CALVERT CLIFFS COORDINATING COMMITTEE VS. US ATOMIC ENERGY COMMISSION, 449 F2D 1109 (DC CIR. 1971)

▸ To ensure that the balancing analysis is carried out and given full effect, Section 102(2) (C) requires that responsible officials of all agencies prepare a "detailed statement" covering the impact of particular actions on the environment, the environmental costs which might be avoided, and alternative measures which might alter the cost-benefit equation. ▸ The apparent purpose of the "detailed statement" is to aid in the agencies' own decision making process and to advise other interested agencies and the public of the environmental consequences of planned federal action.

NEPA AND PEISS

CALVERT CLIFFS COORDINATING COMMITTEE VS. US ATOMIC ENERGY COMMISSION, 449 F2D 1109 (DC CIR. 1971)

▸ Beyond the "detailed statement," Section 102(2) (D) requires all agencies specifically to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” ▸ This requirement, like the "detailed statement" requirement, seeks to ensure that each agency decision maker has before him and takes into proper account all possible approaches to a particular project (including total abandonment of the project) which would alter the environmental impact and the cost-benefit balance.

NEPA AND PEISS

CALVERT CLIFFS COORDINATING COMMITTEE VS. US ATOMIC ENERGY COMMISSION, 449 F2D 1109 (DC CIR. 1971) ▸ Only in that fashion is it likely that the most intelligent, optimally beneficial decision will ultimately be made. ▸ Moreover, by compelling a formal "detailed statement" and a description of alternatives, NEPA provides evidence that the mandated decision making process has in fact taken place and, most importantly, allows those removed from the initial process to evaluate and balance the factors on their own.

NEPA AND PEISS

BALTIMORE G. & E. CO. V. NRDC, 462 U.S. 87 (1983) ▸ Section 102(2)(C) of the National Environmental Policy Act (NEPA) requires federal agencies to consider the environmental impact of any major federal action. ▸ NEPA has twin aims. ▸ First, it "places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action. ▸ Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process. ▸ Congress in enacting NEPA, however, did not require agencies to elevate environmental concerns over other appropriate considerations. ▸ Rather, it required only that the agency take a "hard look" at the environmental consequences before taking a major action.

NEPA AND PEISS

BALTIMORE G. & E. CO. V. NRDC, 462 U.S. 87 (1983) ▸ In these circumstances, the NRC complied with NEPA's requirements of consideration and disclosure of the environmental impacts of its licensing decisions. It is not the task of this Court to determine what decision it would have reached if it had been the NRC. The Court's only task is to determine whether the NRC had considered the relevant factors and articulated a rational connection between the facts found and the choice made. Under this standard, the zero release assumption, within the context of Table S-3 as a whole, was not arbitrary or capricious.

NEPA AND PEISS

STRYCKER'S BAY NEIGHBORHOOD COUNCIL V. KARLEN, 444 U.S. 223 (1980) ▸ Once an agency has made a decision subject to the procedural requirements of the National Environmental Policy Act of 1969, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot interject itself within the area of discretion of the executive as to the choice of the action to be taken. ▸ In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U. S. 519, 435 U. S. 558 (1978), we stated that NEPA, while establishing "significant substantive goals for the Nation," imposes upon agencies duties that are "essentially procedural." As we stressed in that case, NEPA was designed "to insure a fully informed and well considered decision," but not necessarily "a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decisionmaking unit of the agency."

PEISS

ENVIRONMENTAL IMPACT ASSESSMENT PROCESS ▸ The PEISS consists of the Environmental Impact Assessment (EIA) process. ▸ The process of identifying and predicting the potential environmental impacts (including bio-physical, socio-economic and cultural) of proposed actions, policies, programs and projects and communicating this information to decision-makers before they make their decisions on the proposed actions.” ▸ The EIA Process is a proponent-driven process wherein the Proponent applies for an Environmental Compliance Certificate (ECC) by submitting an EIS.

PEISS

ENVIRONMENTAL COMPLIANCE CERTIFICATE ▸ A “document issued by the DENR-EMB after a positive review of an ECC application, certifying that the Proponent has complied with all the requirements of the EIS System and has committed to implement its approved Environmental Management Plan ▸ The ECC contains a “summary of the information on the type, size and location of the project, environmental impacts, the mitigating measures and environmental management plan for the various government agencies to consider in their decision-making process.” ▸ An 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 proponent before implementing the said project.

PEISS

COVERAGE OF THE PEISS

▸ Presidential Proclamation No. 2146, Series of 1981, defines undertakings that are either Environmentally Critical Projects (ECPs) or those located in Environmentally Critical Areas (ECAs) was within the scope of the PEISS. The said proclamation classified the undertakings into different categories to determine coverage under the PEISS.

PEISS

ENVIRONMENTALLY CRITICAL PROJECTS 1. Heavy Industries Non-Ferrous Metal Industries Iron and Steel Mills Petroleum and Petrochemical Industries Smelting Plants 2. Resource Extractive Industries Mining and Quarrying Projects Forestry Projects Dikes for/and Fishpond Development Projects 3. Infrastructure Projects Dams Power Plants Reclamation Projects Roads and Bridges 4. Golf Course Projects

PEISS

ENVIRONMENTALLY CRITICAL AREAS 1.Areas declared by law as national parks, watershed reserves, wildlife reserves, and sanctuaries; 2.Areas set aside as aesthetic, potential tourist spots; 3.Areas which constitute the habitat for any endangered or threatened species of indigenous Philippine Wildlife (flora and fauna); 4.Areas of unique historic, archeological, geological, or scientific interests; 5.Areas which are traditionally occupied by cultural communities or tribes; 6.Areas frequently visited or hard-hit by natural calamities; 7.Areas with critical slope (50% or more); 8.Areas classified as prime agricultural lands; 9.Recharge areas of aquifers; 10.Certain Water bodies; 11.Specific Mangrove Areas; and 12.Coral Reefs.

PEISS

STAGES OF THE EIA PROCESS ▸ The EIA Process has six consecutive stages: ▸ Screening; ▸ Scoping; ▸ EIA Study and Report Preparation; ▸ EIA Report Review and Evaluation; ▸ Decision Making, and Monitoring; and ▸ Validation and Evaluation/Audit.

PEISS

SCREENING

▸ Determine if a project is covered or not by the PEISS. If a project is covered, screening further determines what document type the proponent should prepare to secure the needed approval, and what the rest of the requirements are.

PEISS

SCOPING ▸ A proponent-driven multi-sectoral formal process of determining the focused Terms of Reference of the EIA Study. ▸ Scoping identifies the most significant issues/impacts of a proposed project, and then, delimits the extent of baseline information to those necessary to evaluate and mitigate the impacts. ▸ The need for and scope of an Environmental Risk Assessment is also done during the scoping session. ▸ Scoping is done with the local community and with a third party EIA Review Committee (EIARC) through Technical Scoping, with the participation of the DENR-EMB. ▸ The process results in a signed Formal Scoping Checklist by the review team, with the final approval by the EMB Chief.

PEISS

EIA STUDY AND REPORT PREPARATION ▸ The EIA Study involves a description of the proposed project and its alternatives, characterization of the project environment, impact identification and prediction, evaluation of impact significance, impact mitigation, formulation of Environmental Management and Monitoring Plan, with the corresponding cost estimates and institutional support commitment. ▸ The study results are presented in an EIA Report for which an outline is prescribed by the EMB for every major document type.

PEISS

EIA REPORT REVIEW AND EVALUATION ▸ Review of EIA Reports normally entails an EMB procedural screening for compliance to minimum requirements specified during Scoping, followed by a substantive review of either composed third party experts commissioned by EMB as EIA Review Committee for PEIS/EIS-based applications, or DENR/EMB internal specialists, the Technical Committee, for IEE-based applications. ▸ The EMB evaluates the EIARC recommendations and the public’s inputs during public consultations/hearings in the process of recommending a decision on the application. The EIARC Chair signs EIARC recommendations including issues outside the mandate of the EMB. ▸ The entire EIA review and evaluation process is summarized in the Review Process Report (RPR) of the EMB, which includes a draft decision document.

PEISS

DECISION MAKING

▸ Involves the evaluation of EIA recommendations and the draft decision document, resulting in the issuance of an ECC, CNC or Denial Letter. ▸ When approved, a covered project is issued it certificate of Environmental Compliance Commitment (ECC), while an application of a non-covered project is issued a Certificate of Non-Coverage (CNC).

PEISS

MONITORING, VALIDATION AND EVALUATION/AUDIT

▸ Involves the assessment of the performance of the Proponent against the ECC and tis commitments in the Environmental Management and Monitoring Plans to ensure actual impacts of the project are adequately prevented or mitigated.

PEISS

FINES, PENALTIES AND SANCTIONS

▸ Suspension or cancellation of the ECC and/or a fine in an amount not to exceed Fifty Thousand Pesos (P50,000) for every violation thereof

NEPA AND PEISS

BANGUS FRY FISHERFOLK, ETAL. VS. HON. LANZANAS ETAL. ▸ Exhaustion of Administrative Remedies ▸ “The settled rule is before a party may seek the intervention of the courts, he should first avail of all the means afforded by administrative processes. Hence, if a remedy within the administrative machinery is still available, with a procedure prescribed pursuant to law for an administrative officer to decide the controversy, a party should first exhaust such remedy before resorting to the courts. The premature invocation of a court's intervention renders the complaint without cause of action and dismissible on such ground.”

NEPA AND PEISS

BANGUS FRY FISHERFOLK, ETAL. VS. HON. LANZANAS ETAL. ▸ On the Alleged Patent Illegality of the ECC ▸ Petitioners contend that they are exempt from filing an appeal with the DENR Secretary because the issuance of the ECC was in patent violation of existing laws and regulations. ▸ The contention is also without merit. While such documents are part of the submissions required from a project proponent, their mere absence does not render the issuance of the ECC patently illegal. ▸ To justify non-exhaustion of administrative remedies due to the patent illegality of the ECC, the public officer must have issued the ECC "[without any] semblance of compliance, or even an attempt to comply, with the pertinent laws; when manifestly, the officer has acted without jurisdiction or has exceeded his jurisdiction, or has committed a grave abuse of discretion; or when his act is clearly and obviously devoid of any color of authority.

NEPA AND PEISS

BANGUS FRY FISHERFOLK, ETAL. VS. HON. LANZANAS ETAL. ▸ On the Alleged Non-Compliance with the Terms of the ECC ▸ The contention is similarly without merit. The fact that NAPOCOR's ECC is subject to cancellation for non-compliance with its conditions does not justify petitioners' conduct in ignoring the procedure prescribed in DAO 96-37 on appeals from the decision of the DENR Executive Director. Petitioners vigorously insist that NAPOCOR should comply with the requirements of consultation and locational clearance prescribed in DAO 96-37. Ironically, petitioners themselves refuse to abide with the procedure for filing complaints and appealing decisions laid down in DAO 96-37.