Memorandum.dolphins v. Reyes...
Republic of the Philippines
SUPREME COURT Manila EN BANC
RESIDENT MARINE MAMMALS OF THE TAÑON STRAIT PROTECTED SEASCAPE, et al., Petitioners, - versus -
G.R. NO. 180771 FOR: INJUNCTION
Secretary Angelo Reyes, et al., Respondents. x-----------------------/ “Out from nowhere a pod of dolphins came. There were so many of them. A pair of whales about 10 meters long also appeared and flanked me on both sides. While the dolphins alternately nudged my body with their fins to shore, the rest of the pod stayed close, around a meter away, apparently trying to make sure no harm would come to me.” - Ronnie Dabal of Puerto Princesa, Philippines
MEMORANDUM OF LAW Your Petitioners respectfully submit as their: PREFATORY A headline in a Philippine daily screams:
fisherman! The news is about the saga of a tuna fisherman, Princesa,
‘miraculously’ by dolphins and whales after more than ten (10) hours of being adrift at sea.1 Was
centuries of human existence, tales of dolphins and whales rushing to the rescue of hapless humans are indeed aplenty. 1
Page 1, Philippine Daily Inquirer, December 17, 2008 issue
Stories of dolphins, whales and porpoises, collectively known as cetacea, abound in world mythology.2 This popularity may stem from the impressive size of the large whales, or the playful exertions of the acrobatic dolphins, not to mention the many stories of cetacea coming to the aid of shipwrecked sailors and stranded fishermen.3 Several themes commonly appear in ancient mythology from Greece to the tiny islands of the Pacific, though there is one element present in all: since time immemorial humans and cetacea have shared a very close and quite unique bond. Indeed, we have even immortalized the dolphin in the heavens above us in the stellar constellation delphinus.4 To the dolphin alone nature has given that which the best philosophers seek: FRIENDSHIP FOR NO ADVANTAGE! Though it has no need of help of any man, yet it is a genial friend to all and has helped man.5 As aptly written by Oppian6 of Ancient Greece in his poem Halieutica: ‘Diviner than the Dolphin is nothing yet created, for indeed they were aforetime men and lived in cities along with mortals, but…they exchanged the land for the sea, and put on the form of fishes; but even now, the righteous spirit of men in them preserves human thoughts and human deeds.’ This case is all about them. It is all about their protection, preservation and perpetuation so that stories of Ronnie Dabal may endure for ages. This is also about some of us – ingrate beneficiaries of their kindness whose greed and materialism may sink our species to extinction. And when that time comes, Your Petitioners may be there to try to save the day for us, Your Honors. Or, can they? 2
www.people-oceans-dolphins.com Id 4 Id 5 Plutarch, Ibid 6 Also known as Oppiānos (early third century AD) of Cilicia in south-east Asia Minor, writer of Greek didactic poetry in hexameters. His Halieutica (‘on fishing’) is in five books; the Cynegetica (‘on hunting’), in three books, is also ascribed to him but seems to be the work of a different poet, a native of Syria, though perhaps of the same name. Both poems contain passages of power and beauty, despite the unpromising material. (http://www.answers.com/topic/oppian) 3
STATEMENT OF THEIR CASE This is a suit for certiorari, mandamus and injunction of extreme urgency to enjoin Public Respondent DOE and Private Respondent Japan Petroleum Exploration, Ltd. (JAPEX) as well as the latter’s agents, privies or assigns from implementing a national government project undertaken though a Service Contract (Service Contract No. 46) entered into by and between them and to annul the same for willful and gross violation of the Philippine Constitution, Philippine Laws and Regulations and Multilateral Environment Agreements. The illegal authorizations given by Public Respondents, which are equivalent to grave abuse of discretion amounting to lack or excess in their respective jurisdiction, enabled Private Respondent JAPEX to proceed with the service contract over Your Petitioners’ habitat, the Tañon Strait Protected Seascape, resulting to their grave and irreparable damage and prejudice. These illegal acts must be corrected through this instant special civil action as Petitioners have no plain, adequate, speedy and adequate remedy in the ordinary course law. This case also seeks judicial declaration to the effect that service contracts which were entered into by public respondent Department of Energy (DOE) pursuant to Presidential Decree No. 87 and involving the exploration, development and exploitation of our country’s petroleum resources contravene Sec. 2, Article XII of the 1987 Philippine Constitution. Your Petitioners adopt and hereby replead, mutatis mutandis, the statement of the case in the memorandum of the petitioners in Central Visayas Fisherfolks Development Center [FIDEC], et al v. Angelo Reyes, et al, G.R. No. 181527 which is consolidated with herein case. STATEMENT OF FACTS Your Petitioners adopt and hereby replead, mutatis mutandis, their statement of facts contained in their initiatory pleading as well as the admitted factual antecedents in the comment by the Honorable Solicitor General and the statement of facts in the memorandum of the petitioners in
Central Visayas Fisherfolks Development Center [FIDEC], et al v. Angelo Reyes, et al, G.R. No. 181527 which is consolidated with herein case. They further aver and hereby manifest that sometime in the middle of the current year, private respondent JAPEX through its privies and assigns publicly announced its withdrawal from the project. This notwithstanding, public respondent DOE, through its Regional Director of Region VII proclaimed that they will still push through with the assailed Service Contract No. 46 and intends to re-bid it to interested parties.7 ISSUES I.
DO PETITIONERS HAVE LOCUS STANDI?
IS SERVICE CONTRACT NO. 46 AND OTHER SIMILAR CONTRACTS ENTERED INTO BY PUBLIC RESPONDENT DEPARTMENT OF ENERGY (DOE) AND PRIVATE RESPONDENT JAPEX CONSTITUTIONAL?
DID PUBLIC RESPONDENT DEPARTMENT OF ENVIRONMENT AND NATURAL
DISCRETION WHERE IT ALLOWED PRIVATE RESPONDENT JAPEX TO UNDERTAKE
PROTECTED SEASCAPE ALTHOUGH THE AREA DOES NOT HAVE A PROTECTED AREA MANAGEMENT PLAN YET? IV.
DID PUBLIC RESPONDENT DENR COMMIT GRAVE ABUSE OF DISCRETION WHERE IT ISSUED AN ECC TO PRIVATE RESPONDENT JAPEX WITHOUT REQUIRING THE LATTER TO UNDERGO THE EIA PROCESS FOR ITS PROJECT?
IS THE PHILIPPINE GOVERNMENT LIABLE FOR INTERNATIONAL DELICT FOR BREACH OF THE GENERALLY-ACCEPTED PRINCIPLES ENSHRINED IN MULTILATERAL ENVIRONMENTAL AGREEMENTS WHICH IT IS SIGNATORY?
In addition to the foregoing issues, Your Petitioners adopt and hereby replead, mutatis mutandis, the issues and the corresponding arguments raised in the memorandum of the petitioners in Central Visayas Fisherfolks Development Center [FIDEC], et al v. Angelo Reyes, et al, G.R. No. 181527 which is consolidated with herein case. DISCUSSION AND ARGUMENT I 7
Cebu Daily News, May 16, 2008 issue
Petitioners Cetacea Have Sustained And Will Sustain Direct Injury By Reason Of The Oil Exploration Project 1. Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question on standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.8 2. A party who assails the constitutionality of a statute must have a direct and personal interest.
It must show not only that the law or any
governmental act is invalid, but also that it sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that it suffers thereby in some indefinite way. It must show that it has been or is about to be denied some right or privilege to which it is lawfully entitled or that it is about to be subjected to some burdens or penalties by reason of the statute or act complained of.9 3. For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government, (2) the injury is fairly traceable to the challenged action, and (3) the injury is likely to be redressed by a favorable action.10 4. By these recitals and those alleged in their initiatory pleading, petitioner dolphins, whales, porpoises and other cetacean species will definitely suffer - and have in fact suffered - actual or threatened injury as a result of constitutionally infirmed oil exploration project within their habitat at Tañon Strait Protected Seascape. They will indubitably be adversely affected should the assailed acts of respondents continue being unrestrained by the Honorable Supreme Court.
Anak Mindanao Party-List Group v. The Executive Secretary, G.R. No. 166052, August 29, 2007 Ibid 10 Ibid 9
5. It is of judicial notice that there are proven actual or potential adverse effects to marine mammals if their habitats are disturbed or destroyed. In the case of Okinawa Dugong (Dugong Dugon), et al. vs. Secretary of Defense Robert Gates, et al., No. C03-4350 MHP, the United States District Court of the Northern District of California confirmed that: “It is undisputed that Henoko Bay is dugong habitat and that seagrass beds found in the Bay are dugong feeding grounds. It is also undisputed that dugong have been observed to feed in and traverse Henoko Bay. The record contains considerable disagreement among plaintiffs’ and defendants’ experts regarding the extent and degree to which the dugong would be adversely affected. But this does not disturb the undisputed fact that Henoko Bay is dugong habitat and therefore, construction and operation of a military facility in and near the Bay could have potential adverse effects. These potential adverse effects include physical destruction of the Okinawa dugong resulting from contamination of seagrass feeding grounds and collisions with boats and vessels, as well as longterm immune and reproductive damage resulting from exposure to toxins and acoustic pollution.” 6.
anthropogenic acoustics such as seismic surveys and devises employed in oil exploration have been scientifically documented, although the impact may vary from one sub-species to another. In a report to the Marine Mammal Commission of the United States,11 the Advisory Committee on Acoustic Impacts on Marine Mammals reveals that: “Marine mammals have evolved over millions of years and rely on sound for vital life functions. Anthropogenic sound in the oceans has increased since the start of the industrial revolution. Increases in background noise levels, as well as the number of individual sound sources, may have adverse effects on marine mammals, the extent and type of which are not well understood. These sound sources include, among others, vessels, sonar operations, seismic surveys, coastal construction, and acoustic harassment devices. The introduction of anthropogenic sound into the marine environment is a by-product of modern life. There are significant, tangible benefits derived from the protection provided by national defense, the energy supplied by oil and gas exploration, the seismic research carried out to enable prediction of earthquakes and tsunamis, and the transport of goods and materials by commercial shipping. In addition, marine mammals are an important component of marine ecosystems, with esthetic, recreational, and economic significance and value and should be protected. Historically, the balancing among multiple societal interests has been a recurring theme of legislation and national policy formulation that continues to the present. Recent cetacean strandings coincident with exposure to naval or seismic operations have increased public concern about the effects of anthropogenic sound (Cox et al., 2006). Although no scientific correlation has been established, there is currently sufficient information about four beaked whale stranding events coincident with military mid-frequency sonar use to conclude that they were associated with, and most likely caused by, 11
exposure to the sonar. These occurred in Greece (1996), the Bahamas (2000), Madeira (2000) and Canary Islands (2002).” 7. Comparative studies show that noise from an airgun array in seismic surveys produces 255 decibels while that coming from devises used in oil exploration emits between 212-230 decibels (See table below). Natural and human-made source noise comparisons
Maximum source level
Magnitude 4.0 on Richter scale (energy integrated over 50Hz bandwidth)
Seafloor volcano eruption
Massive steam explosions
Deitz and Sheehy, 1954; Kibblewhite, 1965; Northrop, 1974; Shepard and Robson, 1967; Nishimura, NRL-DC, pers. comm., 1995
Airgun Array (Seismic)
Compressed air discharged into piston assembly
Johnston and Cain, 1981; Barger and Hamblen, 1980; Kramer et al, 1968
Lightning strike on water surface
Random events during storm at sea
Hill, 1985; Nishimura, NRLDC, pers com, 1995
Seismic exploration devices
Includes vibroseis, sparker, gas sleeve, exploder, water gun and boomer seismic profiling methods
Johnston and Cain, 1981; Holiday et al., 1984
Length 274 m; speed 23 knots
Buck and Chalfant, 1972; Ross, 1976; Brown, 1982b; Thiele and Odegaard, 1983
Length 340 m; speed 20 knots
Buck and Chalfant, 1972; Ross, 1976; Brown, 1982b; Thiele and Odegaard, 1983
8. In contradistinction, Section 78 [b] of the Implementing Rules and Regulations of Presidential Decree No. 984, otherwise known as the Pollution Decree of 1972 sets following as the maximum allowable noise levels in general areas of human settlements: Table I. Environmental Quality Standards for Noise in General Areas: CATEGORY OF AREA
DAYTIME 50 db
MORNING AND EVENING 45 db
AA (For section or contiguous area which requires quietness such as areas within 100 meters from school -sites, nursery schools, hospitals, and special homes for the aged) A (For section or contiguous area which is primarily used for residential purposes) B (For section or contiguous area which is primarily a commercial area) C (For section primarily reserved as a light industrial area) D (For section which is primarily reserved as a heavy industrial area)
NIGHTTIME 40 db
9. Where man can only legally endure noise of up to 75 decibels in his terrestrial abode, it is well-nigh impossible for marine mammals to withstand 255 decibel of noise within their marine or submarine habitats without being injured or killed. This is plausible since it is established that sound travels five (5) times faster underwater than above ground.12 The effect of underwater 12
noise caused by oil exploration to marine mammals is therefore immediate and fatal. 10. By applying the direct injury test, Your Petitioners-marine mammals of Tañon Strait must have possessed legal standing to sue when they filed this suit since they have sustained or will sustain direct injury by reason of the illegal oil exploration project in their habitat. Granting Legal Standing To Petitioner Cetacea Is In Accord With The Rhythm And Harmony Of Nature 11. Section 16, Article II of the 1987 Philippine Constitution declares as a state policy the protection and advancement of the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. This provision in our Constitution is the approximation to the so-called Wild Law13 of Ecuador. 12. The Ecuadorian Constitution in its very recent amendment has granted, inter alia unto nature the inalienable right "to exist, flourish, and evolve." It also gave the Ecuadorian government and its citizens the "duty and right" to file lawsuits for any damage done to their ecosystems and natural communities.14 13. While most of the world views the Ecuadorian wild law as revolutionary, one need not stray afar. In as early as 1987, the Philippines had incorporated the very precepts of ‘wild law’ to its constitution in what is now known as Section 16 of Art. II in the Philippine Constitution. 14. In nature, there is rhythm and harmony. There is rhythm in the season as there is time for preparing the soil, a time for sowing seeds, a time for tending the plants and a time to harvest the fruits. There is harmony in nature when all of these elements conspire with each other in order to provide the tiller good harvest. 15. Nature means the created world in its entirety. Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, 13
Wild Law is a term coined by Lawyer Cormac Cullinan of South Africa Article 1 of the new "Rights for Nature" chapter of the Ecuador constitution reads: "Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution. Every person, people, community or nationality, will be able to demand the recognitions of rights for nature before the public bodies." 14
management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations.15 16. There is also rhythm in our ecosystem16. Except probably for modern man, each species functions according to the purpose of its existence. 17. In our marine ecosystem for instance, mangroves serve among others as nursery and refuge to fish and other marine life as well as feed nutrients to coral reefs. On the other hand, seagrasses are good source of food to them, especially to the manatees while at the same time taking up dissolved nutrients and trapped sediments in order to produce water clarity. Coral reefs, which function as marine forests provide protection and shelter for many different species of fish and other marine habitués. Without coral reefs, these fish and other marine life will be left homeless and nowhere to have their babies weaned. 18. The importance of marine mammals to our ecosystem cannot be overemphasized. It is beyond pecuniary estimation. Their value to our ecosystem is acknowledged by the Marine Mammals Act of the United States where it ordains in its Section (2) that: (1) Certain species and population stocks of marine mammals are, or may be, in danger of extinction or depletion as a result of man’s activities; (2) Such species and population stocks should not be permitted to diminish beyond the point at which they cease to be significant functioning element in the ecosystem of which they are a part, and consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population. Further measures should be immediately taken to replenish any species or population stock which has already diminished below that population. In particular, efforts should be made to protect essential habitats, including the rookeries, mating 15
Minors Oposa, et al. v. Factoran, et al., G.R. No. 101083 July 30, 1993 An ecosystem is a natural unit consisting of all plants, animals and micro-organisms (biotic factors) in an area functioning together with all of the non-living physical (abiotic) factors of the environment. The term ecosystem was coined in 1930 by Roy Clapham to denote the combined physical and biological components of an environment. British ecologist Arthur Tansley later refined the term, describing it as "The whole system, including not only the organism-complex, but also the whole complex of physical factors forming what we call the environment". Tansley regarded ecosystems not simply as natural units, but as "mental isolates". Tansley later defined the spatial extent of ecosystems using the term "ecotope". Central to the ecosystem concept is the idea that living organisms interact with every other element in their local environment. Eugene Odum, a founder of ecology, stated: "Any unit that includes all of the organisms (ie: the "community") in a given area interacting with the physical environment so that a flow of energy leads to clearly defined trophic structure, biotic diversity, and material cycles (ie: exchange of materials between living and nonliving parts) within the system is an ecosystem.” The human ecosystem concept is then grounded in the deconstruction of the human/nature dichotomy and the premise that all species are ecologically integrated with each other, as well as with the abiotic constituents of their biotope. (http://en.wikipedia.org/wiki/Ecosystem) 16
grounds, and areas of similar significance for each species of marine mammal from the adverse effect of man’s actions; x – x – x –x (6) Marine mammals have proven themselves to be resources of great international significance, aesthetics and recreational as well as economic, and it is the sense of the Congress that they should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of marine ecosystem. Whenever consistent with this primary objective, it should be the goal to obtain an optimum sustainable population keeping in mind the carrying capacity of the habitat. 19. Biodiversity is essential to the functioning of the ecosystems. Each species plays a unique role within an ecosystem and every species is dependent on others for food, shelter, or other resources. The loss of a single species like Your Petitioners can have profound effects to the ecosystem and to the environment as a whole. 20. According to Dr. Lemnuel V. Aragones of the University of the Philippines, a marine scientist who for more than a decade have been conducting studies of marine mammals in Tañon Strait, dolphins and their cetacean relatives play a very important role to the marine ecosystem at the narrow strait. 21. He said that being the top predators, they maintain the best genepool of the fish stocks, particularly those that we humans consume. The best of the stocks are those healthy populations that are left to propagate instead of those possibly sick stocks whose disease may be transferred to humans who consume them. Dr. Aragones further explained that the first that dolphins consume would usually be the fish that are weak and maybe sick as they would be easier to catch. 22. In unraveling the seeming mysterious attitude of dolphins as saviors of helpless humans at sea, Dr. Aragones pointed out that this in effect is a manifestation of their selflessness or exhibition of 'altruism' - a very high level of behavior, most likely representing a very high level of intelligence as reflected by their highly social structure. 23. Petitioners cetacea should be given legal standing in suits involving their protection, preservation and perpetuation. Their decimation or extinction would undoubtedly disturb the symbiosis of nature and cause imbalance to the ecology. As such, the right of the Filipino people to a balanced ecology that is in accord with the rhythm and harmony of nature would be thereby violated.
Legal Standing Is Pure Discretion On The Part Of the Honorable Court 24. The question on locus standi is always discretionary. Being just a procedural technicality, it may be waived by the Court in the exercise of its discretion. This is the principle laid down in Prof. Randolf S. David, et al. v. Gloria Macapagal-Arroyo17 where it was held: “It must always be borne in mind that the question of locus standi is but corollary to the bigger question of proper exercise of judicial power. This is the underlying legal tenet of the "liberality doctrine" on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount importance to the Filipino people. To paraphrase Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of this Court on this very critical matter. The petitions thus call for the application of the "transcendental importance" doctrine, a relaxation of the standing requirements for the petitioners in the "PP 1017 cases." 25. Environmental suits should even enjoy a much higher level of liberality on legal standing since what usually at stake in environmental litigations are the very elements on earth that lend synergy to this thing called life. After all, the right of nature to exist and flourish and the natural order of things even precede humankind and governments.18 They therefore should be immune from whatever procedural niceties and gauntlets invented by man. 26. For quite a long time, we were made to believe on the conventional thinking that all laws were established for men's sake.19 If lessons are not learned, this paradigm has led us to the abject state that we are now in – climate change, mountains of garbage, incurable diseases and sea level rise, just to name a few. 27. In its landmark environmental jurisprudence in Metro Manila Development Authority, et al. v. Concerned Residents of Cavite 20, this Honorable Court is emphatic in recognizing the need to address environmental degradation with utmost dispatch: “The need to address environmental pollution, as a cause of climate change, has of late gained the attention of the international community. Media have finally trained their sights on the ill effects of pollution, the destruction of forests and other critical habitats, oil spills, and the unabated improper disposal of garbage. And rightly so, for the magnitude of environmental destruction is now on a scale few ever foresaw and the wound no longer simply heals by itself. But amidst hard 17
G.R. No. 171396, May 3, 2006 Paraphrasing Oposa, Ibid 19 Legal Theory on “hominum causa omne jus constitutum” posited by Roman jurist Hermogenianus in the 3rd or 4th century AD 20 G.R. No. 171947, Dec. 18, 2008 18
evidence and clear signs of a climate crisis that need bold action, the voice of cynicism, naysayers, and procrastinators can still be heard.” 28. Depriving legal standing to the dolphins and other ceteacean species to whom are scientifically proven to be gifted with intelligence and cognition may be difficult to divine where the same rules allow a ship, a corporation, or even an estate to sue. This argument is the gist of the passionate dissent by Justice William Douglas before an almost equally divided U.S. Supreme Court in the famous case of Sierra Club v. Rogers C.B. Morton, et al.21 where he argued that: “Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole – a creature of ecclesiastical law - is an acceptable adversary and large fortunes ride on its cases. The ordinary corporation is a “person” for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes. Mineral King is doubtless like other wonders of the Sierra Nevada such as Tuolumne Meadows and the John Muir Trail. Those who hike it, fish it, hunt it, camp in it, frequent it, or visit it merely to sit in solitude and wonderment are legitimate spokesmen for it, whether they may be few or many. Those who have that intimate relation with the inanimate object about to be injured, polluted, or otherwise despoiled are its legitimate spokesmen. The Solicitor General, whose views on this subject are in the Appendix to this opinion, takes a wholly different approach. He considers the problem in terms of “government by the Judiciary.” With all respect, the problem is to make certain that the inanimate objects, which are the very core of America’s beauty, have spokesmen before they are destroyed. It is of course, true that most of them are under the control of a federal or state agency. The standards given those agencies are usually expressed in terms of the “public interest.” Yet “public interest” has so many differing shades of meaning as to be quite meaningless on the environmental front. Congress accordingly has adopted ecological standards in the National Environmental Policy Act of 1969, Pub.L. 91-90,83 Stat. 852, 42 U.S.C. § 4321 et seq., and guidelines for agency action have been provided by the Council on Environmental Quality of which Russell E. Train is Chairman. Yet the pressures on agencies for favorable action one way or the other are enormous. The suggestion that Congress can stop action which is undesirable is true in theory; yet even Congress is too remote to give meaningful direction and its machinery is too ponderous to use very often. The federal agencies of which I speak are not venal or corrupt. But they are notoriously under the control of powerful interests who manipulate them through advisory committees, or friendly working relations, or who have that natural affinity with the agency which in time develops between the regulator and the regulated. As early as 1894, Attorney General Olney predicted that regulatory agencies might become “industry- minded,” as illustrated by his forecast concerning the Interstate Commerce Commission: “The Commission ..... is, or can be made, of great use to the railroads. It satisfies the popular clamor for a government supervision of railroads, at the same time that that supervision is almost entirely nominal. Further, the older such a 21
92 S.Ct. 1361 (1972) (USA)
commission gets to be, the more inclined it will be found to take the business and railroad view of things.” M. Josephson, The Politicos 525 (1938). The voice of the inanimate object, therefore, should not be stilled. That does not mean that the judiciary takes over the managerial functions from the federal agency. It merely means that before these priceless bits of Americana (such as a valley, an alpine meadow, a river, or a lake) are forever lost or are so transformed as to be reduced to the eventual rubble of our urban environment, the voice of the existing beneficiaries of these environmental wonders should be heard. Perhaps they will not win. Perhaps the bulldozers of “progress” will plow under all the aesthetic wonders of this beautiful land. That is not the present question. The sole question is, who has standing to be heard?” 29. Yes, perhaps in this case the dolphins and the whales may not win at all. Perhaps, the ‘oil
continuously drill at 230 decibels beneath their habitat at Tañon Strait
maiming them like what had befallen on one of their kind in the picture shown at right. 30. Their wails to be heard before this last bastion of justice should not be stilled by any procedural gobbledygook in which they did not even take part of when crafted by their homo sapiens ‘friends’. 31. As in Sierra Club, the inevitable question must be this: can they sue those who are wont in destroying their home? If the current global sentiment is to be the gauge, the answer should be a resounding yes! Dolphins and Cetacea are Third Party Beneficiaries In The Bonn Convention on Conservation Of Migratory Species and Wild Animals Which the Philippines Is a Signatory
32. Beginning February 23, 2006, Petitioners Cetacea are now both listed under the category of Mammalia in Appendix I and Appendix II of the Bonn Convention for the Conservation of Migratory Species.22 22
http://www.cms.int/about/index.htm (website of UNEP and CMS of the United Nations)
33. Those listed under Appendix I are migratory species that are endangered to be extinct while those listed under Appendix II are migratory species which have an unfavorable conservation status and which require international agreements for their conservation and management, as well as those which have a conservation status which would significantly benefit from the international cooperation that could be achieved by an international agreement.23 34. The Philippine Government as one of the parties to the aforesaid convention has acknowledged the “importance of migratory species being conserved and agreed to take action to this end whenever possible and appropriate, paying special attention to migratory species the conservation status of which is unfavorable, and taking individually or in co-operation appropriate and necessary steps to conserve such species and their habitat.”24 35. Such a commitment by the Philippine Government to them is in the nature of a stipulation pour autrui. In contract law, a stipulation pour autrui is a stipulation in favor of a third person (in this case, a party or a species) conferring a clear and deliberate favor upon him (or it), which stipulation is found in a contract entered into by parties neither of whom acted as agent of the beneficiary.25 36. Being third party beneficiaries thereof, Your Petitioners may validly demand from the Philippine Government, through their representatives or stewards, the performance of its treaty obligation and commitment by way enjoining its state organs from doing acts or projects which may otherwise injure them or threaten their existence. 37. This posture of Your Petitioners is consistent with the rule laid in down in the early case of Uy Tam and U Yet v. Thomas Leonard, et al26, where it was held that: “ Should the contract contain any stipulation in favor of a third person, he may demand its fulfillment, provided he has given notice of his acceptance to the persons bound before it may have been revoked.”
Arts. III & IV, Convention for Conservation of Migratory Species (CMS) Fundamental Principle No. 1, Art. II, Ibid 25 Marmont Resot Hotel Enterprises v. Federico Guiang, et al., G.R. No. 79734, December 8, 1988 26 G.R. No. L-8312, March 29, 1915 24
38. A lot of formal and public demands had been made to respondents for them to forego the violative oil exploration project inside Your Petitioners’ habitat in Tañon Strait Protected Seascape. But they all fell on deaf ears. Moreover, the requirement on the notice of Your Petitioners’ acceptance to the benefits under the Convention is met by their use and choice of Tañon Strait as their natural habitat. 39. The legal standing of Your Petitioners’ representatives, Professors Gloria Ramos and Liza Osorio of the University of Cebu College of Law is however a non-issue. They definitely have stakes in the suit as they are in the forefront of building awareness to protect the Tañon Strait Protected Seascape in order to conserve its splendor and marine wealth. Together with other environmental advocates young and old, they formed the Save Tañon Strait Citizens’ Movement to advance the rights of Your Petitioners, the other marine lives in the area and the fisherfolks who rely on the marine resources of the strait for their subsistence. 40. The Honorable Supreme Court may please take judicial notice that it is this citizens’ network to which Professors Ramos and Osorio belong that is presently actively advancing the conservation and protection of the Tañon Strait. They are doing their advocacy by way of capacitating the stakeholders and at the same time objecting to the unwarranted oil exploration thereat. This same citizens’ network of theirs is also active in campaigning against the on-going oil exploration project within the municipal waters of Sibonga and Argao, Cebu by NorAsia Ltd. of Australia pursuant to Service Contract No. 56 which the latter signed with public respondent DOE. 41. Professors Ramos and Osorio are truly Your Petitioners’ rightful stewards and of other God’s creations as all of us ought to be, especially where the primary steward which is the Philippine State abjectly failed in its duty pursuant to the public trust doctrine. 42. Under this doctrine, certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life.27
Vide M.C. Mehta v. Kamal Nath & Others (1977) 1 SCC 388 (India)
43. The public trust doctrine enjoins upon the Government to protect the resources of the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. As held by the Highest Court of India in M.C. Mehta v. Kamal Nath & Others 28, and to quote: “The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership. Thus the Public Trust doctrine is a part of the law of the land. x–x–x–x-x In the present case, large area of the bank of River Beas which is part of protected forest has been given on a lease purely for commercial purposes to the Motels. The area being ecologically fragile and full of scenic beauty should not have been permitted to be converted into private ownership and for commercial gains. Therefore, the Himachal Pradesh Government committed patent breach of public trust by leasing the ecologically fragile land to the Motel management. The lease transactions are in patent breach of the trust held by the State Government.” 44. Being the ‘more intelligent species’ (and this is according to man himself, although the claim may not probably be accorded weight in evidence for being self-serving), man occupies a unique position as a steward to all of earth’s creations. 45. A steward’s juridical bond with his ward is always fiduciary. He is required to act ubberime fide since as a steward he is expected to do and act only to the best interest of his ward. But man utterly failed in this selfappointment. As the late Pope John Paul II poignantly laments in his treatise ‘God Made Man the Steward of Creation’: “Man is no longer the Creator's ‘steward’, but an autonomous despot, who is finally beginning to understand that he must stop at the edge of the abyss. Another welcome sign is the growing attention being paid to the quality of life and to ecology, especially in more developed societies, where people's expectations are no longer concentrated so much on problems of survival as on the search for an overall improvement of living conditions" (Evangelium vitae, n. 27). At stake, then, is not only a ‘physical’ ecology that is concerned to safeguard the habitat of the various living beings, but also a ‘human’ ecology which makes the existence of creatures more dignified, by protecting the fundamental good of life in all its manifestations and by preparing for future generations an environment more in conformity with the Creator's plan.” 46. The time for the dolphins, whales, porpoises and other cetacean species to be conferred upon with legal standing has surely come.
Langton29 in addressing this issue on legal standing of the ‘other species’ presents the following intriguing perspective, quote:
(1977) 1 SCC 388 (India) Langton, R. 1993. On the moral status of humans. Aquatic Survival 2(3):4, quoted in “The Rights of Species and Ecosystems by E.P. Pister, Fisheries, April 1995 Vol. 20, No. 4 29
Humans, of course, have little difficulty granting rights to themselves and, with typical anthropocentric arrogance, tell each other that only those species with that come closest to having human characteristics are worthy of rights. I would like to suggest a different approach to evaluating plant and animal rights: those species that contribute most to the health of the earth and its biodiversity are most worthy of rights. After all, if these creatures are not protected, the whole system is threatened. Using this criterion, the case might be made that Homo sapiens would be very low on the list of those eligible to be granted rights. It could even be argued that the extinction of humans might be the one occurrence that would contribute most to the earth’s viability… I, for one, will champion the rights of fungus! On the other hand, if humans were to emphasize that show respect for all life and develop the capacity to learn values that result in a healthy environment, they just might be worthy of a few rights also.” 47. It is to this Honorable Court’s credit that the trailblazing jurisprudence in Oposa where it granted petitioning minors to sue for themselves and on behalf of generations yet unborn the legal standing before it30
had been prominently cited in a Bangladesh case of M. Farooque v.
Bangladesh31, where its Supreme Court ratiocinated that: “We have given reasons of our own why the appellant is a person aggrieved, but we have to say specifically that we do not accept Dr. Farooque’s submission that the association represents not only the present generation but also the generation yet unborn. This claim is based on a case of Philippines Supreme Court, Juan Antonio Oposa and others vs. Honourable Fulgencio S. Factoran and another in which the twin concepts of “inter-generational responsibility” and “intergenerational justice” were agitated by the plaintiff minors represented by their respective parents to prevent the misappropriation or impairment of Philippine rain forest. The minors asserted that they “represent their generation as well as generation yet unborn”. The minor’s locus standi was allowed because “the right to a balanced and heartful ecology” was a fundamental right and several laws declaring the policy of the State to conservation of the country’s forest “not only for the present generation by for the future generation as well” were guaranteed. (The South Asian Environmental Law Reporter, Vol.13, September, 1994, Colombo, Sri Lanka, pp. 113-145).”
If this Honorable Supreme Court did vest legal standing unto the
minors in Oposa, there seems to be no plausible reason why it may not give the same treatment to Your Petitioners.
Such a novel rule of law if laid down,
although it may seem radical to some straightjacket advocates in law, would be contemporaneous to this era of thinking where environmental protection occupies a very high level in the public soul. After all, the law as a means of social control is not static but rather dynamic as to attune itself to the changing needs of the times.32
Oposa v. Factoran, G.R. No. 101083, July 30, 1993 Civil appeal No 24 of 1995, 17 BLD (AD) 1997,Vol. XVII, pg 1 to 33; 1 BLC (AD) (1996), pg 189 219, 1996 (Bangladesh) 32 Vide Javellana v. Executive Secretary, G.R. No. L-36142, Mar. 31, 1973 31
49. The present problems arrayed against mankind are gargantuan, gravely threatening his very existence on this planet. These maladies of anthropogenic origin running amuck since the advent of industrial age cannot be solved by the same formula that created them in the first place. 50. What is therefore demanded of us right now is to think outside of the box and shift paradigm in order to get a clearer glimpse at the immensity of the challenge ahead of us. To arrest the seemingly irreversible effects of global warming, climate change and massive environmental degradation which are all caused by man’s mindless development, apathy to nature and low regard to other co-existing species is without debate a very tall order. Yet science tells us that it can be done – but quickly! 51. We have accordingly remaining a period of barely five to ten years to do and act sanely. After this, whatever course of action we will thereafter take may only be palliative much less ineffectual as they might already be too late. And when this apocalypse would happen, what then is the utility to our mancentered institutions, our professions, our rules of procedures, and our material wealth where all of us will be preoccupied in fighting for our individual survival on this planet? 52. Having said all these, whatever doubt about Your Petitioners having locus standi must have been put to rest more so if the following dissertation showing paramount and transcendental importance of the issues involved is judiciously weighed. II Service Contract No. 46 And Other Similar Contracts Entered Into By DOE Are Inconsistent With Sec. 2, Art. XII of the 1987 Philippine Constitution 53. The 2nd Sentence of Sec. 2, Art. XII mandates: “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 productionsharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens.” 54. For large scale exploration, development, utilization of natural resources as in this case and where the proponent is a foreign-owned entity 18
like that of private respondent JAPEX, the applicable rule is paragraph (5) in the same Constitutional provision where it states: “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.” 55. In her comment, the Honorable Solicitor General cited the annotation of Dean Joaquin G. Bernas, S.J. in his book ‘The 1987 Constitution of the Republic of the Philippines: A commentary’, and arrived at the following erroneous contention: “The adoption of the above provision on service contracts is recognition that local technical and financial resources in the area of
petroleum, and other mineral oils are inadequate.” 56. By conveniently referring service contracts entered into by public respondent DOE which are of the 1973 variety as valid substitutes to the constitutional nomenclature of ‘agreements x – x – x- x involving either technical or financial assistance’, the Honorable Solicitor General is unwittingly advancing a dangerous thesis that generally the two terms are interchangeable. But are they? The answer however is in both yes and no. 57. Revisiting La Bugal-B’laan Tribal Association, et al. v. Victor O. Ramos, et al.,33 the following ratio by its ponente is instructive for the judicious determination of the issue at hand: “From the foregoing, we are impelled to conclude that the phrase agreements involving either technical or financial assistance, referred to in paragraph 4, are in fact service contracts. But unlike those of the 1973 variety, the new ones are between foreign corporations acting as contractors on the one hand; and on the other, the government as principal or “owner” of the works. In the new service contracts, the foreign contractors provide capital, technology and technical know-how, and managerial expertise in the creation and operation of large-scale mining/extractive enterprises; and the government, through its agencies (DENR, MGB), actively exercises control and supervision over the entire operation. Such service contracts may be entered into only with respect to minerals, petroleum and other mineral oils. The grant thereof is subject to several safeguards, among which are these requirements:
G.R. No. 127882. December 1, 2004
(1) The service contract shall be crafted in accordance with a general law that will set standard or uniform terms, conditions and requirements, presumably to attain certain uniformity in provisions and avoid the possible insertion of terms disadvantageous to the country. (2) The President shall be the signatory for the government because, supposedly before an agreement is presented to the President for signature, it will have been vetted several times over at different levels to ensure that it conforms to law and can withstand public scrutiny. (3) Within thirty days of the executed agreement, the President shall report it to Congress to give that branch of government an opportunity to look over the agreement and interpose timely objections, if any.” 58. The service contracts being referred to in La Bugal which are declared to be in conformity with the Constitution are those so-called ‘new ones’ which were or to be negotiated by the DENR but executed or to be executed by the President pursuant to the Republic Act 7942 or the Philippine Mining Act of 1995, the latter being the general law alluded to as having set the standards or uniform terms and conditions to be followed by the Executive Department in their course of issuing mining tenements. 59. By express declaration in La Bugal, those service contracts that were of the 1973 variety and executed pursuant to Presidential Decree No. 87 (The Oil Exploration and Development Act of 1972) such as Service Contract No. 46 and other similar contracts entered into by public respondent DOE are expressly excluded. For reference in the succeeding disquisition, a machine copy of Service Contract No. 46 is attached as Annex A for this Memorandum. Your Petitioners were not able to procure a certified true copy of the document as it is accordingly ‘confidential’ in nature. This claim shall be tackled elsewhere in the subsequent discussions. 60. Meanwhile, La Bugal is right all along in finding that the 1973 variety of service contracts is anathema to the 1987 Constitution in view of the reasons given in the succeeding. 61. Firstly, Section 6 of P.D. 87 on the nature of service contract provides that ‘in Service Contract, service and technology are furnished by the service contractor for which it shall be entitled to the stipulated service fee while financing is provided by the GOVERNMENT to which all petroleum produced shall belong.’ 62. In fact, in the amendatory Presidential Decree 1857, the Government categorically commits in Sec. 2 thereof as amendment to Sec. 8 of P.D. 87 ‘to
reimburse the CONTRACTOR for all operating expenses not exceeding seventy percent (70%) of the gross proceeds from production in any year, Provided, that if in any year, the operating expenses exceed seventy percent (70%) of gross proceeds from production, then the un-recovered expenses shall be recovered from the operations of succeeding years.’ 63. The preceding scheme is not at all sanctioned under R.A. 7942 since in the latter statute it is the foreign contractors who are thereby required to provide for the capital, technology and technical know-how, and managerial expertise in the creation and operation of large-scale mining/extractive enterprises. Meanwhile, the role of the Government is only to actively exercise control and supervision over the entire operation through the DENR/MGB over these mining tenements. 64. Secondly, unlike in Section 36 of R.A. 7942 which makes it mandatory in every financial or technical assistance agreement to be notified to Congress by the President herself within thirty (30) days from execution and approval, there is nowhere provided in P.D. 87 as well as stipulated in Service Contract No. 46 for the President to report or notify Congress about every contract entered into by her through public respondent DOE. The absence of this very important safeguard condition makes the subject contract and P.D. 87 ran afoul with the Constitution. 65. Thirdly, unlike in the same section of R.A. 7942 where it is required that all FTAAs, which were negotiated by DENR must be executed and approved by the President, in the assailed Service Contract No. 46 it is the Secretary of public respondent DOE who signed the document. This is again a clear violation of the Constitution and inconsistent with the ruling in La Bugal where it is only the President, and no one else who is authorized to enter into agreements with foreign-owned corporation involving technical or financial assistance or service contracts for large-scale exploration, development, and utilization of petroleum and other mineral oils, among others. 66. Lastly, there are provisions in Service Contract No. 46 that are patently infirmed since they are either ultra vires, grossly disadvantageous to the Government or otherwise ambiguous. Among them are: a. Section VII (7.2) (c) of the Service Contract where public respondent DOE exempted private respondent JAPEX from complying with Sec. 7 of Republic Act 5455 on publication and posting requirements to
foreign entities wanting to do business in the Philippines. This stipulated commitment is ultra vires since DOE is without any such express power and authority granted it in its charter, the Republic Act No. 7638 or by the mentioned law itself; b. The parameters set in Sec. (10.1) of the subject contract relative to determining the Market Price of petroleum produced in order to compute the gross proceeds of the sale which are obviously ambiguous. Specifically, the term “transaction between independent persons dealing at arm’s length in a free market” is highly susceptible to varied interpretations that may be detrimental or disadvantageous to the Government; c. The sweeping coverage under the provision on confidentiality found in Section XXIII of the subject contract where ‘all documents, information, data and reports related to the Petroleum Operations within the Contract Area’ are treated as confidential in nature is clearly contrary to the State’s policy of full public disclosure of all government transactions involving public interest as embodied in Section 28, Art. II of the Constitution. This confidentiality clause in the subject service contract is also inconsistent with the declared state policy in requiring petroleum industry to be carried out in a manner consistent with public interest34; and d.
The assumption by public respondent DOE of the contractor’s obligation to pay all Philippine Income Tax on the latter’s behalf found in Section VII (7.3) of the subject contract is gross usurpation of the power and authority of the Department of Finance through the latter’s Bureau of Internal revenue.
67. With these intrinsic vices, it should become effortless on the part of the Honorable Supreme Court to declare Service Contract No. 46 as being invalid, ultra vires and unconstitutional. And ditto with all other similar contracts entered into by public respondent DOE pursuant to Presidential Decree No. 87 as amended. III Allowing Oil Exploration Inside Tañon Strait Is Illegal In the Absence of A Protected Area Management Plan 34
Paraphrasing Sec. 3, R.A. 6173, otherwise known as the Oil Industry Commission Act
68. The area subject matter in this controversy is the Tañon Strait, a narrow but deep body of water separating the Islands of Cebu and Negros in the Philippines. Because of its rich marine biodiversity and biologically unique features capable of sustaining human life and development as well as marine life, the area was duly declared a protected seascape on May 27, 1998 by President Fidel V. Ramos pursuant to Presidential Proclamation 1234. 69. The action by the former President is consistent with Sec. 5 (e) of Republic Act 7586, otherwise known as the
Protected Areas Systems Act of 1992 which provides that: “Upon
DENR, the President shall issue
proclamation designating the recommended
protected areas and providing for measures for their protection until such time when Congress shall have enacted a law finally declaring such recommended areas as part of the integrated protected area systems.” 70. A National Integrated Protected Areas Systems (NIPAS) is 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.35 71. On the other hand, a protected area refers to 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.36 72. A protected area may be a strict nature reserve, a natural park, a natural monument, a wildlife sanctuary, a protected landscape or seascape, a 35 36
Sec. 4 (a) Republic Act 7586 (The NIPAS Act) Sec. 4 (b) Ibid
resource reserve, a natural biotic area or other category established by law, conventions or international agreements which the Philippines is a signatory.37 73. A protected seascape (or landscape), meanwhile, are 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.38 Such is the innate features of Tañon Strait as to be appropriately declared a protected seascape. 74. As a protected seascape, the principal instrument which ought to govern human intrusions or activities inside Tañon Strait like seismic surveys and oil explorations or exploitations is the statutorily required Protected Area Management Plan and not an Environmental Compliance Certificate (ECC). This is clear in Section (9) of the NIPAS Act where it is mandated: “Section 9. Management Plans. There shall be a general management planning strategy to serve as guide in formulating individual plans for each protected area. The management planning strategy shall, at the minimum, promote the adoption and implementation of innovative management techniques including, if necessary, the concept of zoning, buffer zone management for multiple use and protection, habitat conservation and rehabilitation, diversity management, community organizing, socioeconomic and scientific researches, site-specific policy development, pest management, and fire control. The management planning strategy shall also provide guidelines for the protection of indigenous cultural communities, other tenured migrant communities and sites and for close coordination between and among local agencies of the Government as well as private sector. Each component area of the System shall be planned and administered to further protect and enhance the permanent preservation of its natural conditions. A management manual shall be formulated and developed which must contain the following: an individual management plan prepared by three (3) experts, basic background information, field inventory of the resources within the area, an assessment of assets and limitations, regional interrelationships, particular objectives for managing the area, appropriate division of the area into management zones, a review of the boundaries of the area, and a design of the management programs.” 75. In the NIPAS Law, an Environmental Compliance Certificate is applicable or required only to be issued (though only after a thorough conduct of an Environmental Impact Assessment) where the human activity or project is outside the scope of the protected area, such as the buffer zone. This thesis finds support in Section 12 of the NIPAS Act where it is provided: “Section 12. Environmental Impact Assessment. - Proposals for activities WHICH ARE OUTSIDE THE SCOPE OF THE MANAGEMENT PLAN for protected areas shall be subject to an environmental impact assessment as required by law before they are adopted, and the results thereof shall be taken into consideration in 37 38
Sec. 3, Ibid Sec. 4 (i), Ibid
the decision-making process. No actual implementation of such activities shall be allowed without the required Environmental Compliance Certificate (ECC) under the Philippine Environment Impact Assessment (EIA) system. In instances where such activities are allowed to be undertaken, the proponent shall plan and carry them out in such manner as will minimize any adverse effects and take preventive and remedial action when appropriate. The proponent shall be liable for any damage due to lack of caution or indiscretion.” [Underscoring supplied] 76. Under the rules of statutory construction, the mention of one thing implies the exclusion of another thing that is not mentioned. Thus, if a Law enumerates the things upon which it is to operate, everything else must necessarily, and by implication, be excluded from its operation and effect.39 77. As expressly provided in the NIPAS Law, only those activities outlined in the management plan will be permitted inside a protected area. Those that are not are thereby required to procure an ECC following a truly EIA process. However as a sine qua non, there must be formulated a management plan for a particular protected area. Otherwise, there is no way for the proper agency to exactly determine which activity is part or outside of the scope of the management plan. 78. To carry out its legislative purpose, Congress sets out under Section (10) in the same law the creation of a Protected Areas and Wildlife Division (PAWD)
conscientiously administer and manage the systems, thus: “Section 10. Administration and Management of the System. The National Integrated Protected Area System is hereby placed under the control and administration of the DENR. For this purpose, there is hereby created a division in the regional offices of the Department to be called the Protected Areas and Wildlife Division in regions where protected areas have been established, which shall be under the supervision of a Regional Technical Director x – x – x - The Service thus established shall manage protected areas and promote the permanent preservation, to the greatest extent possible of their natural conditions.” 79. Proceeding from the foregoing thesis, the Environmental Compliance Certificate (ECC) that was issued to private respondent JAPEX by the Environment Management Bureau (EMB) should be considered as invalid and a farce since the latter agency has no jurisdiction over the Tañon Strait Protected Seascape. Apropos, it is the Protected Areas and Wildlife Division of public respondent DENR that exercises jurisdiction over the protected area where the subject oil exploration is sited.
Crawford, Statutory Construction, pp. 334-335, quoted in Sario Mainias v. COMELEC, G.R. No. 146943, Oct. 4, 2002
80. This must be the only plausible ratio legis in establishing the NIPAS Act, view that: a. Congress created a special division in all regional offices known as the Protected Areas and Wildlife Division (PAWD) under the supervision of a specific Regional Technical Director.40 If the Law intended it to be part of the Environmental Management Bureau (EMB), it would have subsumed the PAWD under the EMB, instead of creating a particular division within the DENR Regional Office; b. The Environmental Impact Assessment (EIA) Law (Pres. Dec. 1586) is implemented on the ground by the EMB while the NIPAS Law by the Protected Areas and Wildlife Division (PAWD); c. The process followed under the EIA Law is known as the Environmental Impact System (EIS), the output of which is the ECC. Meanwhile the process observed in the NIPAS Law is three-tiered, to wit:
1st – The
Protected Area Management Planning Strategy (Sec. 9, RA 7586); 2nd – a Protected Area Management Plan for the individual protected area like the Tañon Strait (Sec. 10); and 3rd - a Protected Area Implementation Manual; d. The resulting document under the EIA System is the so-called Environmental Compliance Certificate (ECC) or should be more appropriately called the Environmental Document of Condition (EDC). Whereas, by specific provision of Sec. 12 of the NIPAS Law, this ECC can only be issued only in areas outside of the scope of the Protected Area Management Plan (PAMP); e. The conditions for a permit to conduct any human activity in protected areas are not the same as the conditions applicable outside the protected area.
Inside the protected area, the natural features and
aesthetic values of the area must be preserved and, if necessary, restored. Thus, any human activity in the protected area must not only also be in accord with the Plan, it must also be allowed only in areas specifically zoned for such activities; f. It is only in the zones outside of a protected area, as Sec. 12 specifically states, such as in buffer zones where more human activity may be allowed but subject to the Environmental Impact Assessment System. The obvious reason for this requirement is to ensure that any human activity in such zones outside the declared protected area does not do harm to the latter; 40
Section 10, NIPAS
g. The Rules and Regulations for a protected area management Plan are all contained in a Management Manual prepared by at least three (3) experts41. On the other hand, the EIA/ECC application is prepared by the Project Proponent; h. The standards and conditions for the entry into, and use of, a protected area are much more stringent than the standards for the use of a property outside the protected area.
The reason is obvious:
Protected Area Management Plan focuses on the preservation and protection of natural features and habitats of flora and fauna and not on the use of the area for human intrusion and activity; i. The object of the NIPAS Law is to secure, for the present and future generations of Filipinos, the perpetual existence of all native plants and animals of the Philippine Islands -- the crown jewel of the Earth’s natural treasures.
This is done through the establishment of a
comprehensive system of integrated protected areas within the classification of national parks. The NIPAS Law seeks to apply on-theground
It is meant to preserve the habitats of rare and
endangered species of plants and animals, identify bio-geographic zones and related ecosystems -- terrestrial, wetland or marine. The law mandates that these, and other places of natural beauty and wonder, must be designated as protected areas;42 and j. The IRR of the NIPAS Law, DAO No. 25, s. 1992, June 29, 1992 does not even mention the Environmental Impact Assessment/ECC system. This bolsters Your Petitioners’ contention that the ECC system is indeed not applicable for permissible activities within a protected area. This is so simply because in a protected area, there is a much more stringent set of environmental standards that must be observed by anyone who enters into, or uses it. 81. It is of judicial notice that when private respondent JAPEX was given the go signal by public respondent DENR to proceed with its oil exploration project pursuant to its constitutionally-infirmed Service Contract No. 46, the latter agency had no Protected Area Management Plan in place for Tañon Strait Protected Seascape. And even up now, it also of judicial notice that public respondent DENR still has no management plan formulated for the strait that is in conformity with Section (9) of the NIPAS Act and its IRR.
Section 9, NIPAS Paraphrasing Section 2, NIPAS Act
82. For it to be valid, the NIPAS law sets forth the following fundamental components to be made part of a Protected Area Management Plan: a. Boundaries - The identification of the metes and bounds of the protected area, including the buffer zones; b. Zoning - Which includes the setting aside the areas for strict protection, habitat conservation and rehabilitation, recreation zones, multiple use zones and buffer zones; c. Carrying Capacity – The assessment of the carrying capacity, the natural ‘assets and limitations’ (for human population, water supply, construction limits, etc.; d. Resource Inventory – The inventory of all resources inside the protected seascape including flora and fauna; and e. Other scientific studies as required by Sections 9 and 10 of RA 7586. 83. It is not controverted that when private respondent JAPEX started its oil exploration project inside Tañon Strait sometime in January of 2008, it was armed only with an Environmental Compliance Certificate procured through a highly irregular exemption from EIA process granted by public respondent DENR through its bureau, the EMB. In lieu of the tedious EIA procedure, private respondent was simply required by EMB to undergo the so-called IEE Checklist process43. 84. It is likewise of judicial notice that when private respondent JAPEX commenced its oil exploration project, public respondent DENR had no Protected Area Management Plan formulated for the Tañon Strait Protected Seascape which in accord with Sec. (9) of the NIPAS Act. 85. By such omission and impropriety, the oil exploration project inside Your Petitioners’ habitat pursuant to Service Contract No. 46 must perforce be struck down for having been undertaken in contravention to law. IV The ECC issued to JAPEX Resultant from IEE Transgresses the EIA Law
86. But assuming for argument’s sake that an Environmental Compliance Certificate (ECC) suffices for projects inside a protected seascape, the one 43
Initial Environmental Examination is applied in lieu of the EIA process for, among others, NonEnvironmentally Critical Projects within an Environmentally Critical Area.
issued however to private respondent JAPEX is another matter. The ECC which was handed over to JAPEX in a silver platter was done in gross violation of the EIA Law44 and fruit of an ultra vires act. 87. Its ECC must therefore be treated as an invalid document since it was procured through an abbreviated process called Initial Environmental Examination (IEE) Checklist, which procedure is short of what is required by the statute for projects considered as environmentally critical and sited at environmentally critical areas. 88. According to public respondent DENR’s implementing rules and regulations to the EIA Law, the Philippine EIA Process has six (6) sequential stages: (1) Screening, (2) Scoping, (3) EIA Study and Report Preparation, (4) EIA Review and Evaluation, (5) Decision Making, and (6.a) Post-ECC Monitoring, Validation and (6.b) Evaluation/Audit stage. Stages 1, 2, 3 and 6a are all proponent-driven while Stages 4, 5 and 6b are DENR-EMB driven stages.45 89. For purposes of a full-blown EIA Process, each of the preceding stage has been described in the same IRR as follows: a. Screening determines if a project is covered or not covered by the PEISS. If a project is covered, screening further determines what document type the project should prepare to secure the needed approval, and what the rest of the requirements are in terms of EMB office of application, endorsing and decision authorities, duration of processing; b. Scoping is 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 (ERA) is also done during the scoping session. Scoping is done with the local community through Public Scoping and with a third party EIA Review Committee (EIARC) through Technical Scoping, both with the participation of the DENR-EMB. The process results in a signed Formal Scoping Checklist by the review team, with final approval by the EMB Chief; c. The EIA Study involves a description of the proposed project and its alternatives, characterization of the project environment, impact 44 45
Presidential Decree 1586 Sec. 12, DAO 30-2003
identification and prediction, evaluation of impact significance, impact mitigation, formulation of Environmental Management and Monitoring Plan, with corresponding cost estimates and institutional support commitment. The study results are presented in an EIA Report for which an outline is prescribed by EMB for every major document type; d. 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 the EIA Review Committee for PEIS/EIS-based applications, or DENR/EMB internal specialists, the Technical Committee, for IEE-based applications. 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; e. Decision Making involves evaluation of EIA recommendations and the draft decision document, resulting to the issuance of an ECC, CNC or Denial Letter. When approved, a covered project is issued its certificate of Environmental Compliance Commitment (ECC) while an application of a non-covered project is issued a Certificate of NonCoverage (CNC). Endorsing and deciding authorities are designated by AO 42, and further detailed in this Manual for every report type. Moreover,
responsibility on implementation of its commitments prior to the release of the ECC. The ECC is then transmitted to concerned LGUs and other GAs for integration into their decision making process; and f. Post-ECC Monitoring, Validation and Evaluation/Audit stage assesses performance of the Proponent against the ECC and its commitments in the Environmental Management and Monitoring Plans to ensure actual impacts of the project are adequately prevented or mitigated. 90. In stark contrast, the simplified process observed in an IEE application as described in the IRR are as follows: a. Informal Scoping (option of the Proponent) where the Proponent may opt to request EMB CO/RO to scope the IEER. In the scoping meeting,
the Proponent and EMB jointly fill out the Scoping Checklist. The accomplished form may be signed by both parties to serve as the official TOR of the IEER; b. EIA Study and Report Preparation where Proponent undertakes the IEE Study. DENR-EMB personnel may clarify procedural and technical matters on the EIA process but is not allowed to take part in the EIA study or in the preparation of the report. X – x – x Project Grouping Matrix highlights project types with available IEE Checklists under Groups I and II. Checklists must be used if these are provided by EMB. The IEE Report Outline is x – x – x provide(d) (in) templates for the Impacts Management Plan and Environmental Monitoring Plan. The Proponent is reminded to submit the filled-out (form) with the IEER/IEEC as basis of EMB for prioritization in compliance monitoring and evaluation x – x –x (and) Pro-forma Sworn Statements of Accountability of Proponent and Preparers for attachment in the IEER/IEEC; c. EIA Report Review and Evaluation which includes procedural screening, setting up the review fund, and submission of procedurally acceptable application documents; d. Substantive review of the application which includes inviting EMB Reviewers and Distribution of EIA Reports, optional site visitation, etc; e. Endorsement of Recommendation; f. Issuance of Decision Document; and g. Transmittal of ECC. The immediately preceding was the process applied to JAPEX regarding its oil exploration project at Your Petitioner’s habitat in Tanon Strait Protected Seascape. 91. As gleaned from the above comparative presentation, the IEE process may be appropriately monickered as an ‘office-table made’ process. Due to its superficial character, the IEE Checklist method cannot validly apply to projects involving oil exploration inside a critical habitat like the one at bar. 92. Your Petitioners note that Sec. (4) of Presidential Decree 1586 which establishes the Environmental Impact Statement (EIS) System expressly prohibits any person, partnership or corporation to undertake any project inside an environmentally critical area without first securing an Environmental Compliance Certificate (ECC).
93. Environmentally Critical Areas (ECAs) include, inter alia, all areas declared by law as national parks, watershed reserves, wildlife preserves, and sanctuaries and areas set aside as aesthetic potential tourist spots; and areas which constitute the habitat of any endangered or threatened species of Philippine wildlife (flora and fauna) like Tanon Strait.46 On the other hand, Environmentally Critical Projects (ECPs) include, among others, resourceextractive industries like major mining and quarrying activities47; and by implication, oil exploration like the one undertaken by private respondent JAPEX. 94. In Section 2 of Presidential Decree 1586, it is declared that: “There is hereby established an Environmental Impact Statement (EIS) System founded and based on the environmental impact statement required, under Section 4 of Presidential Decree No. 1151, of all agencies and instrumentalities of the national government, including government-owned or controlled corporations, as well as private corporations, firms and entities, for every proposed project and undertaking which significantly affect the quality of the environment.” 95. The statute defines an Environmental Compliance Certificate (ECC) as a document issued by the government agency concerned certifying that the project
environmental impact and that the proponent has complied with the requirements of the environmental impact statement system.48 Under the law, an ECC may be issued after its project proponent has truly undergone the EIA process. Hence, an IEE Checklist procedure should not result into the issuance of an ECC as the process is short of what is required of the statute. 96. An Environment Impact Assessment (EIA), on one hand, is a process that involves predicting and evaluating 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.49 97. However, there is a better definition which can be found in the European Union website where it describes an Environmental Impact 46
DAO 03-30 Ibid 48 Sec. 3[m], Republic Act 7945 or the Philippine Mining Act of 1995 49 DAO 03-30 47
implications of decisions are taken into account before the decisions are made. The process involves an analysis of the likely effects on the environment, recording those effects in a report, undertaking a public consultation exercise on the report, taking into account the comments and the report when making the final decision and informing the public about that decision afterwards.’50 98. The EIA procedure ensures that environmental consequences of projects are identified and assessed before authorization is given. The public can give its opinion and all results are taken into account in the authorization procedure of the project. The public is informed of the decision afterwards.51 99. Based on the immediately foregoing definition, public participation is always an indispensable element in an EIA process. Anything less such as the ‘office-table process and report’ in an IEE Checklist procedure as observed by public respondent DENR cannot qualify as one since it derogates the public character of the EIA. 100. As a basic principle, EIA is used to enhance planning and guide decision-making. EIA is primarily presented in the context of a requirement to integrate environmental concerns in the planning process of projects at the feasibility stage. Through the EIA Process, adverse environmental impacts of proposed actions are considerably reduced through a reiterative review process of project siting, design and other alternatives, and the subsequent formulation of environmental management and monitoring plans.52 101. Pursuant to Sec. 4 of PD 1586 (1978), the EIA Process covers projects which have been originally declared as Environmentally Critical Projects (ECPs) or projects in Environmentally Critical Areas (ECAs) presumed to have significant impacts on the quality of the environment. On the other hand, Sec. (5) of PD 1586 provides for noncovered projects, which may be required environmental safeguards if deemed necessary by DENR.53 102. Meanwhile, Section 4 of the Philippine Environment Policy (P.D. 1151) outlines the EIS in the following manner:
http://ec.europa.eu/environment/eia/ http://ec.europa.eu/environment/eia/eia-legalcontext.htm#legalcontext 52 Ibid 53 Ibid 51
“Section 4. Environmental Impact Statement. Pursuant to the above enunciated policies and goals, all agencies and instrumentalities of the national government, including government-owned 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 detailed 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 involves the use of depletable or nonrenewable resources, a finding must be made that such use and commitment are warranted. 103. The same provision in P.D. 1125 mandates that before an environmental impact statement is issued by a lead agency (in this instance, the Environmental Management Bureau) all agencies having jurisdiction over, or special expertise on the subject matter involved shall comment on the draft environmental impact statement made by the lead agency within thirty (30) days from receipt of the same. 104. But considering that the JAPEX oil exploration project bypassed the EIA process, it obviously did not comply with preceding mandated commentary from other agencies having jurisdiction over the Tanon Strait like the Local Government Units (LGUs) surrounding it or those with expertise on the subject matter involved, like the Protected Areas and Wildlife Division (PAWD) of the public respondent DENR and the Bureau of Fisheries and Aquatic Resources (BFAR) of the Department of Agriculture. 105. The oil exploration project subject to herein suit falls under paragraph (e) in the above-quoted Section 4 of P.D. 1125 since it involves the use of depletable or non-renewable petroleum resources. Being so, private respondent JAPEX should have been required to make a finding that its use and commitment in the project are warranted. 106. The immediately preceding determination is in addendum to the required detailed statement on the environmental impact of the project, the unavoidable adverse environmental effects, the alternative action, as well as the determination that the short-term uses of the resources of the environment are sustainable. Obviously, such however was not done for the assailed project
because public respondent DENR unduly allowed the proponent to shortcut or short-circuit the EIA process. 107. To exempt an oil exploration project (which is deemed an Environmentally Critical Project) alone from the EIA process would have been already highly irregular. But to exempt private respondent’s oil exploration project even though it is sited inside an Environmentally Critical Area that is the Tañon Strait Protected Seascape is mind boggling. Such an act from public respondent DENR is not only legally untenable, it is likewise grave abuse of discretion in its highest order bordering from graft. Oil Exploration is expressly Banned inside Critical Habitats Like Tanon Strait 108. Section 27 of Republic Act No. 9147, otherwise known as the Wildlife Resources Conservation and Protection Act of 2001 makes it illegal for any person to undertake mineral exploration and/or extraction inside a known critical habitat. The law states that: “SEC. 27. Illegal Acts. - Unless otherwise allowed in accordance with this Act, it shall be unlawful for any person to willfully and knowingly exploit wildlife resources and their habitats, or undertake the following acts: c. effecting any of the following acts in critical habitat(s): (iii)
mineral exploration and/or extraction.”
109. When public respondent DOE and private respondent JAPEX inked their constitutionally-infirmed Service Contract No. 46, they knew that the area subject in their contract is a protected seascape and a critical habitat to Your Petitioners. But they proceeded anyway although they were well aware of the many legal obstacles ranged against the project. 110. And when private respondent JAPEX submitted its concept paper or feasibility study or application for issuance of an ECC or whatever scrap of paper it had to public respondent DENR, the latter more than knew that the area involved in the oil exploration project is a protected area and a wellknown critical habitat to Your Petitioners. After all, it is supposed to be the agency who recommended to then President Ramos to declare Your Petitioners habitat in Tañon Strait as a protected seascape.
111. Moreover, public respondent DENR must have fully known that mineral exploration within Tañon Strait is prohibited since it is also the lead agency tasked to implement Republic Act 9147. 112. Yet, despite all these readily available information on hand, public respondent DENR coyly or rather unabashedly allowed the illegal oil exploration project to proceed - never mind if Your Petitioners will be killed, harmed or displaced by it. But what is worst is that it unduly exempted private respondent JAPEX from the tedious EIA process although the project is clearly covered under the law and even its rules. 113. In a series of fora preceding the filing of this case, representatives from public respondent DENR justified their position by conveniently taking refuge under Sec. 14 of the NIPAS Act which according to them expressly sanctions oil exploration inside Tañon Strait, and to quote: “Sec. 14. Survey for Energy Resources. — Consistent with the policies declared in Section 2 hereof, protected areas, except strict nature reserves and natural parks, may be subjected to exploration only for the purpose of gathering information on energy resources and only if such activity is carried out with the least damage to surrounding areas. Surveys shall be conducted only in accordance with a program approved by the DENR, and the result of such surveys shall be made available to the public and submitted to the President for recommendation to Congress. Any exploitation and utilization of energy resources found within NIPAS areas shall be allowed only through a law passed by Congress.” 114. The preceding posture of public respondent DENR may seem fine at its face value. Yet if one is to study carefully the above provision of the law or makes reference to other related laws on the subject matter, it would readily show that such contention is erroneous. 115. Consider this Your Honors: the NIPAS Act was passed on June 1, 1991 while the Republic Act 9147 which is a penal law was passed on July 30, 2001 or more than a decade later. The latter law must be construed to be the latest legislative policy over critical habitats so that Sec. 27 of R.A. 9147 should be viewed as an amendment to Section 14 of Republic Act 7586. 116. Nevertheless, assuming arguendo that oil exploration is indeed allowed by law inside a well-known critical habitat for marine mammals like Tañon Strait, such exploration must still comply with the following stringent requirements set in NIPAS Law to the effect that: a. The exploration must only for the purposes of gathering information on energy resources;
b. It must be carried out with the least damage to the surrounding areas; c. It must be conducted only in accordance with a program approved by the DENR; and d. Such survey shall be made available to the public and submitted to the President for approval of Congress. 117. Evidence presented to this proceeding however would tell that the subject oil exploration project by private respondent JAPEX inside Tañon Strait dismally failed in the preceding tests because: a. The project is not for exploration only intended for gathering information on energy resources. Albeit it is primarily for oil exploitation or extraction as stipulated in Service Contract No. 46; b. The oil exploration undertaken by private respondent is obviously preparatory only to the real intention of the parties to the contract which is to exploit or develop oil wells inside Tañon Strait; c. The project was not approved by public respondent DENR but by public respondent DOE, the latter being one of the contracting party to the service contract. The only role of the DENR to the project is to issue an exemption from the EIA to JAPEX; d. The project was not carried out with least damage to the environment since it was taken out from the mantle of the EIA process; and e. It may be legally impossible to make the survey results public owing to the confidentiality clause in the service contract as already discussed in the preliminary. EIA is required where there Are probable or known impacts To the environment from the Proposed project 118. In tediously explaining the EIA in relation to the project cycle54, the IRR of the NIPAS Law states that: “The EIA study shall determine the environmental impacts of the project and shall provide recommendations/guidance at various stages of the project cycle. It is during the Feasibility Study (FS) stage when a Proponent defines its range of actions and consider project alternatives, thus, it is the most ideal stage in the project cycle wherein the EIA study will have most added value. EIA documents are ideally prepared when prospective proposals are more concrete than mere concept and are preferably available before the project has reached a stage of investment or commitment towards implementation. Proponents are in fact directed under 54
Sec. 4, DAO 30-2003
Malacanang Administrative Order No. 42 to conduct simultaneously the environmental impact study and the project planning or Feasibility Study (FS).” 119. In the above-quoted rule, it can be readily deduced that a project must be required to undergo the EIA if such has known actual or probable environmental impacts. 120. Again, it is of judicial notice that any mineral extraction or oil exploration project always carry with it adverse impacts or effects to the surrounding environment. An oil exploration project should not be equated with a beauty parlor or a sari-sari store project since in the latter there is none yet published any scientific data showing their adverse impact to their neighborhood. This however cannot be said in respect to an oil exploration project since lots and lots of scientific and legal treatises have already been made public proving fatal effects to marine mammals from its emitted acoustics. 121. The foregoing thesis is even sustained by the rules itself of public respondent DENR, the DAO 30-2003 where it is declared in Section 7 (a) thereof that: “(7) Covered Projects of the Philippine EIS System. Pursuant to Sec. 4 of PD 1586 (1978), the EIA Process covers projects which have been originally declared as Environmentally Critical Projects (ECPs) or projects in Environmentally Critical Areas (ECAs) presumed to have significant impacts on the quality of the environment. On the other hand, Sec. 5 of PD 1586 provides for noncovered projects, which may be required environmental safeguards if deemed necessary by DENR.”
122. From public respondent DENR’s own mouth is stated that if a project is an Environmentally Critical Project or otherwise located in an Environmental Critical Area, it is always presumed to have significant impacts on the quality of the environment. 123. As already explained, mineral extraction by itself is already deemed an environmentally critical project. Such that if it is done inside a protected area with critical habitats like in Tañon Strait, the presumption that it will incur adverse impacts to the environment would become conclusive. 124. Pray tell, what justification did public respondent DENR have when it exempted private respondent JAPEX from the coverage of the tedious EIA process? There is none really because in DAO 30-2003 it sets the rule that should there be uncertainty as to whether a project or an area is
environmentally critical the presumption is that it is environmentally critical. In such instance, the burden of proof is with the proponent that it is not. Thus55: d) ECA Determination: Any one (1) confirmed ECA among the 12 categories renders a project location an ECA. However, before a project location is considered in a Non-ECA (NECA), all of the relevant ECA categories (e.g. ECA category of “coral reefs” and “mangrove areas” are not relevant for a project proposed to be located up in the mountains) have to be confirmed by Proponent through the mandated agencies as “not an ECA” based on the technical descriptions (presented in Annex 2-1a as part of ECA Screening Procedure). EMB will decide on the relevance of the ECA categories to the project location. If the agency with jurisdiction on the ECA cannot confirm the ECA status of the project, the “uncertain” status renders the project location as ECA, per EMB convention. The burden of proof lies with the Proponent in proving that the project is located in a NECA. DENR can only certify ECAs within its own mandate, as follows: water bodies to be certified by DENR-EMB; NIPAS areas, wildlife habitats and mangrove areas, by PAWB/CENRO/PENRO; geologic hazard areas and areas of critical slope, by DENRMGB.” 125. In the case at bar, there must not be any uncertainty in ECA determination. The project itself is one of the confirmed ECPs proposed to be undertaken inside a critical habitat within a proclaimed NIPAS area, hence also a confirmed ECA. 126. In fine, when public respondent DENR exempted the subject oil exploration project from the EIA process, it did not only utterly disregard its own rules, it did likewise commit the gravest abuse of discretion amounting to lack or excess of its jurisdiction. V General Principles of International Law Are Part of Philippine Law 127. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations. The preceding underscored provision in Section. 2, Article II of the Philippine Constitution is known to everybody as the ‘Incorporation Clause”. 128. In the Philippines, we follow the doctrine of incorporation where generally accepted principles of international law are deemed part of the
Sec. 7 (d) DAO 30-2003
Philippine legal system. Thus, in the leading case of Kuroda vs. Jalandoni56, this Honorable Supreme Court declared that: “It cannot be denied that the rules and regulations of the Hague and Geneva conventions from part of and are wholly based on the generally accepted principles of international law. In fact, these rules and principles were accepted by the two belligerent nations, the United States and Japan, who were signatories to the two Conventions. Such rules and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory.” 129. The above jurisprudence was reiterated in Santos III vs. Northwest Orient Airlines57, where it was held that: “Convention which is a Treaty commitment voluntarily assumed by the Philippine government has the force and effect of law in this country.” Precautionary Principle is Derogated by the reckless Oil exploration inside a Critical habitat in Tanon Strait Protected Seascape 130. The United Nations Conference on Environment and Development which was held in Rio de Janeiro, Brazil in June 1992 marked an important milestone in the development of the law on environmental conservation. Among the important documents adopted at Rio was the Rio Declaration of Environment and Development. This is a set of 27 principles which States are urged to adopt in order to integrate environmental conservation in their development programmes. It is not a legally binding document. However, it sets standards for States to follow and falls under the category of “soft law.”58 131. Principle 15 of the Rio Declaration deals with the concept of precaution. It states that: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation.”
G.R. No. L-2662, Mar. 28, 1949 210 SCRA 261  58 Page xxxv, Compendium on Judicial Decisions Related to Environment, Vol. I, published by the United Nations Environmental Programme (UNEP), December 1998 57
132. Along with the Polluter Pays Principle,59 the Precautionary Principle quickly became one of the most frequently cited of the Rio principles. Among the notable jurisprudence dealing with the Precautionary Principle in Environmental Law are those presented in the succeeding paragraphs. 133. In the case of Shehla Zia v. WAPDA60 which was triggered by a letter sent to the Supreme Court by some citizens who were apprehensive of the construction of a grid station in their residential area, it was held that: “The concern for protecting environment was first internationally recognised when the declaration of United Nations Conference on the Human Environment was adopted at the Stockholm on 16-6-1972. Thereafter it had taken two decades to create awareness and consensus among the countries when in 1992 Rio Declaration was adopted. Pakistan is a signatory to this declaration and according to Dr. Parvez Hasan although it has not been ratified or enacted, the principle so adopted has its own sanctity and it should be implemented, if not in letter, at least in spirit. An international agreement between the nations if signed by any country is always subject to ratification, but it can be enforced as a law only when legislation is made by the country through its legislature. Without framing a law in terms of the international agreement the covenants of such agreement cannot be implemented as a law nor do they bind down any party. This is the legal position of such documents, but the fact remains that they have a persuasive value and command respect. The Rio Declaration is the product of hectic discussion among the leaders of the nations of the world and it was after negotiations between the developed and the developing countries that an almost consensus declaration had been sorted out. Environment is an international problem having to frontiers creating trans-boundary effects. In this field every nation has to cooperate and contribute and for this reason the Rio Declaration would serve as a great binding force and to create discipline among the nations while dealing with environmental problems. Coming back to the present subject, it would not be out of place to mention that Principle No. 15 envisages rule of precaution and prudence. According to it if there are threats of serious damage, effective measures should be taken to control it and it should not be postponed merely on the ground that scientific research and studies are uncertain and not conclusive. It enshrines the principle that prevention is better than cure. It is a cautious approach to avert a catastrophe at the earliest stage. Pakistan is a developing country. It cannot afford the researches and studies made in developed countries on scientific problems particularly the subject at hand. However, the researches and their conclusions with reference to specific cases are available, the information and knowledge is at hand and we should take benefit out of it. In this background if we consider the problem faced by us in this case, it seems reasonable to take preventive and precautionary measures straightaway instead of maintaining status quo because there is no conclusive finding on the effect of electromagnetic fields on human life. One should not wait for conclusive finding as it may take ages to find it out and, therefore, measures should be taken to avert any possible danger and for that reason one should not go to scrap the entire scheme but could make such adjustments, alterations or additions which may ensure safety and security or at least minimize the possible hazards.” 134. In the case of Leatch v. National Parks & Wildlife Service and Shoalhaven City Council61 where the objector, May Leatch appealed before the Supreme Court the lower Court’s decision granting license to Shoalhaven 59
Principle 16, Rio Declaration P L D 1994 Supreme Court 693 (Pakistan) 61 (1993) 81 LGERA 270 (Australia) 60
City to take or kill endangered fauna in the course of constructing a link road and arguing that the precautionary principle should be applied, the Supreme Court of Australia ruled that: “While there has been express references to what is called the “precautionary principle” since the 1970’s, international endorsement has occurred only in recent years. Indeed, the principle has been referred to in almost every recent international environmental agreement, including the 1992 Rio Declaration on Environment and Development [Principle 15], the 1992 UN Framework Convention on Climate Change [art 3(3)], the June 1990 London Amendments to the Montreal Protocol on Substances that Deplete the Ozone Layer [preamble, par 6] and the 1992 Convention on Biological Diversity. This latter convention, which Australia has ratified, is of relevance to the present case. It formulates the precautionary principle in the following terms: “... where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimise such a threat.” x–x–x–x The question for the Court is therefore, should the licence be granted, and if so upon what conditions? In this regard I would suggest that a licence should not in most circumstances be “general” in its coverage of endangered species but should specify the species which it permits to be taken. I think this view is shared by the National Parks and Wildlife Service, according to the submission of Mr. Preston. It makes good sense not to grant a licence in relation to all endangered fauna when some species may be later located which were not the subject of a fauna impact statement or added to the schedule by the scientific committee at a date after the issue of a general licence. x–x–x–x It is the context of a thorough examination of alternatives, especially ones which have minimal environmental impact, that one must balance the issue of a licence to take or kill endangered fauna. The need for a link road is accepted but I question, when all pertinent factors are weighed in the balance, whether the need is for this particular road. The issue of the best route, taking account of all relevant circumstances, including environmental factors, needs to be carefully assessed. I am not satisfied that a licence to take or kill the Yellow-bellied Glider, or any of the other species discussed in the fauna impact statement, is justified. The applicant for such a licence needs to satisfy the Court, on the civil standard on the balance of probabilities, that it is appropriate in all the relevant circumstances to grant the licence. I am not convinced of the strength and validity of the economic arguments presented to the Court by the Council, nor do I take such a predictable view of human behaviour as Mr. Nairn.” 135. The aforequoted decisions from other jurisdictions were handed down in the early 1990’s, just a few years after the principle was embodied in the Rio Declaration, a multilateral environment agreement which the Philippines is a signatory. But judicial notice should be taken that in recent years the precautionary principle has already been widely applied as a norm of conduct among many states in pursuance to their respective environmental policies. This event has therefore elevated the precautionary principle from a ‘soft law’ into a binding customary international law.
136. The precautionary principle should not be viewed in the context of a scientific jargon because it is not. It is simply the application of both common sense and environmental ethics which are supposed to be innate to man. The Wingspread Statement in Racine, Wisconsin spelled out the Precautionary Principle in this manner: "When an activity raises threats of harm to the environment or human health, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically."
137. Simply put, precautionary principle means that in undertaking any activity one must be careful so as not to harm the environment. A project proponent must not wait for scientific certainty on the effects of his activity because doing so may be too late and harm may have already been committed before such scientific proof is released. 138. Albeit, the author is required to take precaution even in the face of scientific uncertainty of his project by exploring all available alternatives or courses of action in order to prevent or mitigate any damage that the project may cause to the environment. 139. True that in the Philippines we have so many environmental laws that can be considered as precautionary actions put in place by the Philippine Government to ensure protection of our environment. We have the EIA law, the NIPAS Act, the Clean Air and Clean Water Acts, the Solid Waste Management Act, ad infinitum. You name your environmental law and (presto!) we have it here in the Philippines. 140. But the problem is that these laws just remain where they are: in the statute book accumulating dusts. As wryly observed by this Honorable Supreme Court in a very recent case, and to quote:62 “This case turns on government agencies and their officers who, by the nature of their respective offices or by direct statutory command, are tasked to protect and preserve, at the first instance, our internal waters, rivers, shores, and seas polluted by human activities. To most of these agencies and their official complement, the pollution menace does not seem to carry the high national priority it deserves, if their track records are to be the norm. Their cavalier attitude towards solving, if not mitigating, the environmental pollution problem, is a sad commentary on bureaucratic efficiency and commitment.” 141. Assuming for argument’s sake that respondents as the collective conspirators of the project did not have, at the time it was concocted full 62
MMDA, et al. v. Concerned Residents of Cavite, et al., supra
scientific proof of any adverse effect their oil drilling project may do to marine mammals as well as to other fauna and flora inside Tañon Strait, this lack of scientific certainty is never a valid excuse to short-cut the EIA process as to allow private respondent JAPEX to proceed despite overwhelming objections coming from all stakeholders, including some 170 Philippine Marine Scientists who signed a manifesto opposing the project on October 26, 2007 during their gathering held at Punta Villa Resort, Iloilo City. .
142. These valid objections against the propriety of the oil exploration project inside Your Petitioners’ habitat coming at that from experts on the subject mammalia would have been good reason enough for public respondents to demand from private respondent JAPEX to lay down all its card about its preventive or mitigating measures to every eventual, potential, probable or actual adverse effect that its project may have to the protected area, especially to Your Petitioners. 143. This could have been judiciously arrived at if only public respondent DENR conducted a truly EIA procedure about the project with encouraged public participation. But sad to say, this was not done in this extant since the proponent was unwarrantedly excused from the drudgery of the process. 144. Hence, because of the omissions of its state organs (public respondent DENR especially occupying the most dishonorable mention) the Philippine Government thereby committed breach in the above-mentioned generally-accepted Precautionary Principle in International Law. The Oil Exploration Project also Derogates the Principles embodied In the UN Charter for Nature
The UN World Charter for Nature passed during the United
Nation’s 48th plenary meeting on 28 October 1982 adopted, inter alia, the following principles of conservation by which all human conduct affecting nature is to be guided and judged, that: a. Nature shall be respected and its essential processes shall not be impaired;63 b. The genetic viability on the earth shall not be compromised; the population levels of all life forms, wild and domesticated, must be at 63
General principle no. 1, UN World Charter for Nature, 48th plenary meeting, 28 October 1982
least sufficient for their survival, and to this end necessary habitats shall be safeguarded;64 c. All areas of the earth, both land and sea shall be subject to these principles of conservation; special protection shall be given to unique areas, to representative samples of all the different types of ecosystems and to the habitats of rare or endangered species;65 d. Ecosystems and organisms, as well as the land, marine and atmospheric resources that are utilized by man, shall be managed to achieve and maintain optimum sustainable productivity, but not in such a way as to endanger the integrity of those other ecosystems or species with which they coexist.66 146. In order to carry out the above general principles, every signatory State is ‘required’ or rather reminded, among others, that: a. In the decision-making process, it shall be recognized that man’s needs can be met only by ensuring the proper function of natural systems and by respecting the principles set forth in the present charter;67 b. In the planning and implementation of social and economic development activities, due account shall be taken of the fact that the conservation of nature is an integral part of those activities;68 c. In formulating long-term plans for economic development, population growth and the improvement of standards of living, due account shall be taken of the long-term capacity of natural systems to ensure the subsistence and settlement of the populations concerned, recognizing that
technology;69 and d. The allocation of areas of the earth to various uses shall be planned, and due account shall be taken of the physical constraints, the biological productivity and diversity and the natural beauty of the areas concerned.70 147. The Charter further reminded states that activities which might have an impact on nature shall be controlled, and the best available
General principle no. 2, Ibid General principle no. 3, Ibid 66 General principle no. 4, Ibid 67 Function No. 6, Ibid 68 Function No. 7, Ibid 69 Function No. 8, Ibid 70 Function No. 8, Ibid 65
technologies that minimize significant risks to nature or other adverse effects shall be used.71 In particular: a. Activities which are likely to cause irreversible damage to nature shall be avoided; b. Activities which are likely to pose a significant risk to nature shall be preceded by an exhaustive examination; their proponents shall demonstrate that expected benefits outweigh potential damage to nature, and where potential adverse effects are not fully understood, the activities should not proceed; and c. Activities which may disturb nature shall be preceded by assessment of their consequences, and environmental impact studies of development projects shall be conducted sufficiently in advance, and if they are to be undertaken, such activities shall be planned and carried out so as to minimize potential adverse effects. 148. The Philippine Government knowingly failed in the foregoing generally-accepted precepts in International Law under the UN World Charter for Nature when it allowed oil exploration to take place inside the Tañon Strait which is a declared protected seascape. The Philippine Government Violated Conservation Principles Embodied in other Multilateral Environment Agreements (MEAS) 149. Through its sanctioned oil exploration project inside a declared protected seascape at Tañon Strait and a well-known critical habitat of endangered species, the Philippine Government has grossly violated the conservation principles embodied in the following multilateral environmental laws: 150. The oil exploration project subject to this suit is inconsistent with the in situ and ex situ conservation principles embodied in Agenda 21 at the
Function 11, Ibid
United Nations Conference on Environment and Development at Rio de Janiero on June 16, 199272 and in the Convention of Biological Diversity (1992).73 151. As extensively discussed in the preliminary, the Philippine Government has likewise derogated the stipulations in 1979 Bonn Convention on Conservation of Migratory Species of Wild Animals. 152. Based on the foregoing disquisition, the Philippines is definitely liable for international delicts because: a.
It did not respect the functioning ecosystem in Tañon Strait when its agencies decided to allow oil exploration in the area without undertaking sufficiently in advance an exhaustive examination and assessment showing that the benefits of the project outweigh the potential damage to as well as laying measures that would minimize whatever potential adverse effects on the marine ecosystem;
Nor it did give special protection to Your Petitioners and to their habitats.
153. Albeit, the subject oil exploration project that the Philippine Government has sanctioned has only shown to gravely endanger Your Petitioners’ integrity, well-being and existence. CONCLUDING STATEMENT: ON EPISTOLARY JURISDICTION AND HARD LOOK DOCTRINE 154. At the core of this suit are three focal issues: (a) the right of Marine Mammals to sue through their stewards; (b) the constitutionality of petroleum72
15.5. Governments at the appropriate levels, consistent with national policies and practices, with the cooperation of the relevant United Nations bodies and, as appropriate, intergovernmental organizatihons and, with the support of indigenous people and their communities, non-governmental organizations and other groups, including the business and scientific communities, and consistent with the requirements of international law, should, as appropriate: (g) Take action where necessary for the conservation of biological diversity through the in situ conservation of ecosystems and natural habitats, as well as primitive cultivars and their wild relatives, and the maintenance and recovery of viable populations of species in their natural surroundings, and implement ex situ measures, preferably in the source country. In situ measures should include the reinforcement of terrestrial, marine and aquatic protected area systems and embrace, inter alia, vulnerable freshwater and other wetlands and coastal ecosystems, such as estuaries, coral reefs and mangroves. 73
A. In-Situ Conservation: Each Contracting Party shall, as far as possible and as appropriate: (d) Promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings; B. Ex-situ Conservation. Each Contracting Party shall, as far as possible and as appropriate, and predominantly for the purpose of complementing in-situ measures: (c) Adopt measures for the recovery and rehabilitation of threatened species and for their reintroduction into their natural habitats under appropriate conditions”
related Service Contracts; and (c) the extent of the powers of the Philippine Courts to inquire into the administrative procedures relating to the environment. 155. The first issue may be novel at first glance. But looking back at how man abused his unique position in the order of things on this earth, it now becomes imperative to grant legal standing unto nature, especially to Your Petitioners Marine Mammals residents of Tañon Strait Protected Seascape to sue through their stewards who will be affected by their damage or loss. Lowering the benchmark In locus standi is an Exercise of Epistolary Jurisdiction 156. Relaxing the rules by way granting locus standi to Your Petitioners through their stewards or representatives is a valid exercise of this Honorable Court’s epistolary jurisdiction. By epistolary jurisdiction, access to judicial redress may be obtained without a lawyer or even filing of formal papers. 157. The Supreme Court of India blazed the trail. It took the view that when any member of a public or social organization espoused the cause of the poor and the downtrodden such member should be permitted to move the Court even by merely writing a letter without incurring expenditure of his own. In such a case the letter was regarded as an appropriate proceeding falling within the purview of Article 32 of the Constitution.74 158. Epistolary jurisdiction is nothing new in this jurisdiction. Very recently, the Honorable Supreme Court has established its Small Claims Court, promulgating its epistolary rules of procedure. Invalidity of Service Contract No. 46 is already Settled by this Court 159. The second issue however is ‘chicken’75 for the Honorable Court to deal with as it had already ruled that service contracts which are of the 1973 variety are invalid.76
Page xxxiii Compendium on Judicial Decisions Related to Environment, Vol. I, published by the United Nations Environmental Programme (UNEP), December 1998 75 A street term which means ‘easy’ 76 La Bugal, supra as restated in Didipio Earth-Savers’ Multipurpose Assn., Inc., et al. vs. Elisea Gozun, et al
Doctrine of Hard Look Should be established 160. Public respondent DENR is the agency mandated by Law to protect the natural environment of the Philippines. It is specifically tasked to protect and advance the right of the people to a balanced and healthful ecology. Through its Environmental Management Bureau (EMB) it is mandated to care for, protect, and restore the country’s environmental quality and the sustainability of its natural resources. 161. Paraphrasing MMDA v. Concerned Residents of Cavite, supra: if the track record of DENR is to be the norm, it seems that we do not have an agency at all that is attending to our environment, what with the many environmental violations we see day in and day out. 162. This regulatory instrument called the ECC has been much abused by the very agency vested by law with jurisdiction over it. It has lately become a milking cow to enterprising EMB personnel who prepares the documents for the proponent and short cuts the EIA process in exchange for a fee. 163. Here is a perfect example of the regulator acting at the behest of the regulated. It’s like allowing the drug enforcement agency to be headed by a drug lord or a mining regulatory board to be headed by an illegal miner. As satirically observed by Justice Douglas in Sierra Club, supra: “the older such a commission gets to be, the more inclined it will be found to take the business and railroad view of things.” 164. It is therefore high time for our Courts to take a serious and hard look at the EIA procedures being ‘not observed’ by the EMB. The dearth of environmental jurisprudence on this subject matter has contributed to this malaise. Polluters and violators of the environment in cahoots with some corrupt EMB officials are the more emboldened to go scot-free and do business as usual because nobody is policing their ‘police’. 165. This doctrine of hard look, which takes its roots in the United States, is now being customarily applied and observed in many jurisdictions where the issue involved has something to do with possible adverse impacts to the environment.
166. The National Environmental Policy Act (NEPA) of the U.S. mandates that all Federal agencies "to the fullest extent possible" must provide a detailed environmental impact statement (EIS).77 From this provision sprung the so-called “doctrine of hard look”, where courts consistently hold that at a minimum, NEPA imposes a duty on Federal agencies to take a ‘hard look’ at environmental consequences.78 .
167. Under this doctrine, courts carefully check every EIS for
completeness of information and detail, soundness of analysis, thorough discussion of alternatives, and disclosure of sources. Some court decisions even order agencies to prepare new statements if these criteria are not met. 168. Applied at bar, the onus in proving whether the oil exploration project now being enjoined has strictly met with the minimum requirements in the Philippine EIS law and rules is shifted to respondents. 169. Borne from the half-hearted Comment of the Honorable Solicitor General, it is established by deduction that respondents violated the EIA process for the project thereby necessitating the strict application of the hard look doctrine. PRAYER WHEREFORE, Your Petitioners reiterate their prayer in their initiatory petition and further ask the Honorable Supreme Court: a. Consistent with its epistolary jurisdiction, to grant Petitioners marine mammals the locus standi ; b. To declare Service Contract No. 46 and other similar contracts entered into by Public Respondent DOE as illegal, invalid and unconstitutional; c. To permanently enjoin all oil exploration activities pursued under Presidential Decree 87 until an enabling general law on petroleum exploration and exploitation is passed by Congress; d. To declare the Philippines to be in breach of its commitments to Multilateral Environmental Agreements which it is signatory; e. To declare the ECC issued to JAPEX as invalid for being issued in utter disregard to the EIA Law; and
42 U.S.C. 4332 Natural Resources Defense Council v. Morton, 458 F.2d 827, 838 (D.C. Cir., 1972)
f. Consistent with its exercise of continuing mandamus, to order public respondent
Protected Areas and Wildlife Division (PAWD) to immediately commence and complete the Protected Area Management Plan for Tañon Strait Protected Seascape pursuant to the NIPAS Act and to thereby render periodic progress reports to this Honorable Court. Your Petitioners also pray for such other reliefs and remedies as may be adjudged just and equitable under the premises. This memorandum is respectfully submitted on 27 December, 2008 at Cebu City for Manila, Philippines. BENJAMIN A. CABRIDO JR. Counsel for Petitioners G/F Pueblo Aznar Uno Building M. J. Cuenco cor. Maxilom Avenues, 6000 Cebu City IBP No. 05572 /01-07-08/Cebu City PTR No. 3612299/01-07-08/Cebu City Roll of Attorneys No. 48949 Email: [email protected]
Telefax: 032-4129106 MCLE II # 0012313/ Sept. 15, 2008 Copy furnished: 1. The Honorable Solicitor General c/o ASG Rex Bernardo L. Pascual 134 Amorsolo St., Legaspi Village, 1229 Makati City 2. Atty. Aristeo O. Carino Counsel for Movant SOS 20th Flr., Pearl Bank Center 146 Valero St., Salcedo Village, 1229 Makati City 3. Hon. Secretary Angelo Reyes Department of Energy Energy Center, Merrit Road Fort Bonifacio, 1201 Taguig City 4. Hon. Secretary Jose L. Atienza Department of Environment and Natural Resources DENR Central Office, Visayas Avenue Diliman, 1104 Quezon City 5. Directors Leonardo Sibbaluca and Malcolm Samiento DENR-Region VII, Greenplains Banilad, 6014 Mandaue City EXPLANATION OF SUBSTITUTED SERVICE The foregoing is served through registered mail due to the distance of their respective offices with that of undersigned making personal service impracticable and costly. BENJAMIN A. CABRIDO JR.