Paje v Casino Digest

Paje vs Casino (749 SCRA 39) FACTS: 

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In February 2006, Subic Bay Metropolitan Authority (SBMA), a government agency organized and established under Republic Act No. (RA) 7227, and Taiwan Cogeneration Corporation (TCC) (TCC) entered into a Memorandum of Understanding (MOU) expressing their intention to build a power plant in Subic Bay which would supply reliable and affordable power to Subic Bay Industrial Park (SBIP). On July 28, 2006, SBMA and TCC entered into another MOU, whereby TCC TCC undertook to build and operate a coal-fired power plant. On April 4, 2007, the SBMA Ecology Center issued SBFZ Environmental Environmental Compliance Certificate (ECC) in favor of Taiwan Cogeneration International Corporation (TCIC), a subsidiary of TCC, for the construction, installation, and operation of 2x150-MW Circulating Fluidized Bed (CFB) Coal-Fired Thermal Power Plant at Sitio Naglatore. On June 6, 2008, TCC assigned all its rights and interests under the MOU dated July 28, 2006 to Redondo Peninsula Energy, Inc. (RP Energy). RP Energy then contracted GHD Pty., Ltd. (GHD) to prepare an Environmental Impact Statement (EIS) for the proposed coal-fired power plant and to assist RP Energy in applying for the issuance of an ECC from the Department of Environment and Natural Resources (DENR).

The Sangguniang Panglungsod of Olongapo City issued Resolution No. 131, Series of 2008, expressing the city government’s objection to the coal -fired power plant as an energy source and urging the proponent to consider safer alternative sources ofenergy for Subic Bay. On December 22, 2008, the DENR, through former Secretary Jose L. Atienza, Jr., issued an ECC for the proposed 2x150-MW coal-fired power plant. Sometime thereafter, RP Energy decided to include i nclude additional components in its proposed coal-fired power plant. On July 8, 2010, the DENR-EMB issued an amended ECC (first amendment) allowing the inclusion of additional components, among others. Several months later, RP Energy again requested the DENR-EMB to amend the ECC. Instead of constructing a 2x150-MW coal-fired power plant, as originally planned, it now sought to construct a 1x300-MW coal-fired power plant. On May 26, 2011, the DENR-EMB granted the request and further amended the ECC (second amendment).

The Sangguniang Panglalawiganof Zambales Zambales issued Resolution No. 2011-149, opposing the establishment of a coal-fired thermal power plant. The Liga ng mga Barangayof Olongapo City issued Resolution No. 12, Series of 2011, expressing its strong objection to the coal-fired power plant as an energy source. Hon. Casino’s group filed for a writ of kalikasan against RP energy, SBMA, DENR. The Casiño Group alleged, among others, that the power plant project would cause environmental damage. that it would adversely affect the health of the residents of the municipalities of Subic, Zambales, Morong, Hermosa, and the City of Olongapo.

While the case was pending in the CA, RP Energy applied for another amendment to its ECC proposing the construction and operation of a 2x300-MW coal fired power plant

CA: CA: Denied the writ of kalikasan due to the failure of the Casiño Group to prove that its constitutional right to a balanced and healthful ecology was violated or threatened

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no reason also to nullify sec 8.3 of DAO 2003-30) which allows amendments of ECCs. Not ultra vires, as the express power of the Secretary of DENR, director and regional directors of the EMB to issue an ECC impliedly includes the incidental power to amend the same. The validity of the said section cannot be collaterally attacked in a petition fo r a writ of kalikasan

But invalidated the ECC for non-compliance with the IPRA law and LGC and failure to affix the signature in the sworn statement of full responsibility -

Non-compliance with sec 59 of IPRA Law (enjoins all departments and other governmental agencies from granting any lease without a prior certification that the area affected does not overlap with any ancestral domain)

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The CA also invalidated the LDA entered into by SBMA and RP Energy as it was issued without the prior consultation and approval of all the sanggunians concerned as required under Sections 26 and 27 of the LGC

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For failure of Luis Miguel Abolitz, director of RP Energy to affix his signature in the sworn statement of full responsibility (integral part of the ECC) The first and second amendment for failure to comply with the restrictions in the ECC which requires that any expansion of the project beyond the project description or any change in the activity shall be subject to a new environmental impact assessment

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Invalidated the LDA entered into by SBMA and RP Energy -

Issued without prior consultation and approval of all the sanggunians concerned as under secs 26 and 27 of the LGC In violation of sec 59 chapter VIII of the IPRA Law which enjoins all departments and other governmental agencies from granting any lease without a prior certification that the area affected does not overlap with any ancestral domain - no CNO was secured from the NCIP prior to the execution of the LDA and that the CNO dated October 31, 2012 was secured during the pendency of the case and was issued in connection with RP Energy’s application for a 2x300 MW Coal fired plant

ISSUE

1. Whether the parties may raise questions of fact on appeal on the issuance of a writ of Kalikasan; and 2. Whether the validity of an ECC can be challenged via a writ of Kalikasan Ruling

1. Yes, the parties may raise questions of fact on appeal on the issuance of a writ of Kalikasan because the Rules on the Writ of kalikasan  (Rule 7, Section 16 of the Rules of Procedure for Environmental Cases) allow the parties to raise, on appeal, questions of fact — and, thus, constitutes an exception to Rule 45 of the Rules of Court — because of the extraordinary nature of the circumstances surrounding the issuance of a writ of kalikasan .

2. Yes, the validity of an ECC can be challenged via a writ of Kalikasan because such writ is principally predicated on an actual or threatened violation of the constitutional right to a balanced and healthful ecology, which involves environmental damage of a magnitude that transcends political and territorial boundaries.

 A party, therefore, who invokes the writ based on alleged defects or irregularities in the issuance of an ECC must not only allege and prove such defects or irregularities, but must also provide a causal link or, at least, a reasonable connection between the defects or irregularities in the issuance of an ECC and the actual or threatened violation of the constitutional right to a balanced and healthful ecology of the magnitude contemplated under the Rules. Otherwise, the petition should be dismissed outright and the action re-filed before the proper forum with due regard to the doctrine of exhaustion of administrative remedies. In the case at bar, no such causal link or reasonable connection was shown or even attempted relative to the aforesaid second set of allegations. It is a mere listing of the perceived defects or irregularities in the issuance of the ECC. The appellate court correctly ruled that the Casino group FAILED to substantiate its claims that the construction and operation of the power plant will cause environmental damage of the magnitude contemplated under the writ of kalikasan. On the other hand, RP Energy presented evidence to establish that the subject project will not cause grave environmental damage through its environmental management plan which will ensure that the project will operate within the limits of existing environmental laws and standars.

OTHER ISSUES: 

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CA erred in invalidating the ECC on the ground of lack of signature of Mr. Abolitz in the ECC’s statement of accountability relative to the copy of the ECC submitted by RP Energy to the CA. The circumstance of the case show that the DENR and RP Energy were not properly apprised of the issue of lack of signature in order for them to present controverting evidence and arguments on this point, as the issue only arose during the course of the proceedings upon clarificatory questions from the CA. CA erred when it ruled that the first and second amendments to the ECC were invalid for failure to comply with a new EIA and for violating DAO 2003-30 and the Revised Manual. DENR reasonably exercised its discretion in requiring an ERMP and a PDR for the first and second amendment respectively. Through these documents which the DENR reviewed, a new EIA was conducted relative to t he proposed project modifications. No showing of grave abuse of discretion or patent illegality. CA erred when it invalidated ECC for failure to comply with sec 59 of the IPRA Law . The ECC is not the license or permit contemplated under sec 59. There is no necessity to secure the Certificate of Non Overlap (CNO) under sec 59 before and ECC may be issued and the issuance of the subject ECC without first securing the aforesaid certification does not render it invalid. CA erred when it ruled that compliance with sec 27 in relation to sec 26 of the LGC (approval of the concerned sanggunian requirement) is necessary prior to issuance of the subject ECC) issuance of the ECC does not, by itself, result in the implementation of the project. Hence, there is no necessity to secure prior compliance with the approval of the concerned sanggunian requirement and the issuance of the subject ECC without first complying with the aforesaid requirement does not render it invalid .