RJP's REsearch Paper (Students' Copy)

Responding to Judicial Initiatives in Environmental Law Through Environmental Law Education

By Roberto Rafael J. Pulido

Table of Contents Section

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Introduction ……………………………………………………………………………….

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I. Societal Context …………………………………………………………………….. A. Seeds of Environmental Degradation ………………………….. B. “Development” at the Expense of the Environment ……..

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II. Evolution of Philippine Law Significant Milestones in Environmental Law ………………... Challenges ………………………………………………………………………

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III. Judicial Response Judicial Initiative …………………………………………………………… Limitations of Judicial Action ………………………………………

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IV. Responding to Judicial Initiatives with Environmental Law Education

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V. A Proposed Course in Response to the Judicial Initiatives

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CONCLUSION ………………………………………………………………………………….

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APPENDIX A APPENDIX B

INTRODUCTION Throughout the many regime changes that have occurred in the Philippines, the country has managed to come up with many environmental laws. Beginning with piece-meal legislation that was mainly designed to protect public health and welfare during the colonial period, environmental laws have evolved into integrated and comprehensive laws for environmental protection and management that even allow for meaningful people’s participation at different levels. Despite this, environmental degradation continues. The judiciary has thus taken initiatives to play a more active role in environmental protection. But constitutionally, the judiciary can only adjudicate actual controversies. It therefore cannot, on its own, enforce the law. Nonetheless, the judiciary’s initiatives can acquire much significance if other sectors of Philippine society would respond and act to invoke judicial power. Law schools, as the gatekeeper of the law profession, can play an important role in bringing about such a response. The author therefore proposes an LLM in Environmental Law program for Philippine lawyers to recruit, develop and train lawyer-environmental advocates, as well as equip lawyers already in the field of environmental law, with the necessary tools to further improve policy making and law enforcement. Section I of this paper discusses the societal context. It briefly discusses Philippine history and how the social, economic and political developments have shaped environmental law in the country. Section 2 then traces the evolution of Philippine law and outlines the challenges the country is facing. Section 3 discusses the initiatives taken by the Judiciary and the limitations of such initiatives. Section 4 discusses how law schools can respond to these judicial initiatives and Section 5 proposes an LLM program specializing in Environmental law.

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I. Societal Context Seeds of Environmental Degradation The Philippines is an archipelago consisting of around 7,107 islands covering 300,000 square kilometers—298,170 square kilometers of land and 1,830 square kilometers of water.1 Although it is a relatively small nation, it is rich in natural resources. It is in fact, one of only seventeen countries that have within their borders more than two-thirds of our planet’s biological wealth and is thus considered a megadiversity2 country3. The Philippines has extensive water resources, including 31,000 hectares of rivers; 200,000 hectares of lakes; 19,000 hectares reservoirs; and 246,063 hectares of swamplands. There are 421 river basins, of which 20 are considered major river basins. Major rivers are the Cagayan – the country‘s longest river – the Agno, Pampanga, Pasig and Bicol Rivers in Luzon, and the Rio Grande de Mindanao. There are 99 significant lakes; 16 lakes cover 400 hectares or more. The largest lakes are the Laguna de Bay on Luzon and Lake Lanao on Mindanao. Philippine rivers and lakes are home to more than 316 fish species, some of which are endemic.4 Philippine coastal waters are in the apex of the “coral triangle”, the center of the most diverse habitat in the marine tropics5 and as such hosts one of the world’s richest concentration of marine life. The country’s coral reefs are among the richest and most diverse in the world, with about 464 species of hard corals and more than 50 species of soft corals.6 The Philippines is also situated along the Circum-Pacific Rim of Fire, where the processes of volcanism and plate convergence caused the deposition of minerals, 1

USAID. USAID Land Tenure and Property Rights Portal. “Philippines” January 2011. Available at http://usaidlandtenure.net/philippines. Last visited February 26, 2013. 2 Megadiversity country is one of only 17 countries that possess the greatest number and diversity of plants and animals. 3 Conservation International. “Megadiversity: the 17 Biodiversity Superstars” available at http://www.conservation.org/documentaries/Pages/megadiversity.aspx. Last visited February 26, 2013. 4 USAID, USAID Country Profile: Philippines-Property Rights and Resource Governance, http://usaidlandternure.net/sites/default/files/countryprofiles/fullreports/USAID_Land_Tenure_Philippines_Profile.pdf 5 Cleto L. Nañola Jr., Porfirio M. Aliño & Kent E. Carpenter, Exploitation-Related Reef Fish Species Richness Depletion in the Epicenter of Marine Biodiversity, Springer Science+Business Media B.V. November 2010, at 1 . WB Report, Philippine Environment Monitor 2004: The Blue Environment. http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/EASTASIAPACIFICEXT/EXTEAPREGT OPENVIRONMENT/0,,contentMDK:21019639~menuPK:502892~pagePK:34004173~piPK:3400370 7~theSitePK:502886,00.html ); p39 ; also available at http://siteresources.worldbank.org/INTPHILIPPINES/Resources/39-46-BlueEnvt.pdf. 6

both metallic and non-metallic. Consequently, large reserves of various kinds of minerals are believed to be beneath its ground and this has put the country in the world mineral map as 5th mineral country in the world.7 In 1994, estimated levels of metallic mineral resources stood at 7 billion metric tons, and of nonmetallic resources at 50 billion metric tons. Copper accounts for 72% of total reserves in the country; limestone and marble are the most significant nonmetallic mineral resources. In 2005, petroleum reserves stood at 456 million barrels of fuel oil equivalent.8 Because of the richness of its natural resources the Philippine economy has always been dependent on natural resource extraction. Unfortunately, the early stages of its development into a democracy ironically led to the concentration of control over these resources in the hands of the few. Prior to the colonization of the Philippines by the Spaniards, land was controlled by the village community under the chief or “datu”.9 When the Spanish took over in 1568, they transformed the datu into an administrative official responsible for collecting taxes and recruiting labor under an encomienda system – a system where large plots of land and the people living there were entrusted to the conquistador who had to administer the region and control agricultural production.10 Thus, the first landlords were installed by an external force and the small cultivators of the early Philippines were slowly transformed into tenants while village chiefs were coopted in exchange for some share in the land. When the United States took control of the nation in 1898, it cultivated and supported this class of former village chiefs as part of its military and political pacification campaign. The US allowed them much leeway to control economic resources with very little state intervention.11 This started not only the unhampered extraction of natural resources by the elite, but also the unfortunate cycle of gaining access to political power through economic power and the political power thus gained will in turn be used to gain more economic power. In fact, more than a hundred years later, the USAID, in 2013 observed essentially the same thing – ”.. land and natural resources are highly politicized in the Philippines. Control over land and resources is often a major strategy for maintaining political control; traditional politics are oriented toward maintaining elite control over the nation‘s land and other resources. This has created a dualistic economy, where the welfare of the elite Philippine Department of Environment and Natural Resources. http://www.denr.gov.ph/index.php/component/content/article/16.html 8 USAID. Philippines: Property Rights and Resource Governance. 9 Gould, David. The Evolution of Land Tenure in Forestry Management in the Philippines. May 16, 2002. Available at www.spatial.maine.edu/-onsrud/Landtenure/CountryReport/Philippines.pdf 10 Ibid. 11 Mongabay.com. The Philippines – Political Economy of Development. Available at http://www.mongabay.com/reference/country_studies/philippines/ECONOMY.html 7

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and the poor majority are often in opposition. A central problem, then, is the political economy which perpetuates control of economic assets (land, resources) and political power by a small grouping of wealthy families. ―The problems of democracy subverted are thus intimately tied to those of disappearing natural resources and continuing widespread poverty and inequity.” This is not to say however, that the wealthy class peacefully coexisted. Truth is, increasing economic and political power of this early elite led to intra-elite conflicts. Thus, by the 1960s the continued marginalization of the large majority of small cultivators led to social unrest on the one hand, and intra-elite conflicts on the other. In order to manage the intra-elite conflicts, the government, then headed by Ferdinand Marcos, called for a Constitutional Convention in the late 1960s. This development would have been “a classic case of intra-elite conflict benefiting mass participation.”12 But what should have been an opportunity for the under-privileged and under-represented to open up the government to new social forces was subverted by the declaration of Martial Law by President Ferdinand E. Marcos. Ironically, Marcos used the masses’ desire for access to resources to justify Martial Law. Marcos and his henchmen claimed that the martial law regime was needed to redistribute land, achieve peace and order and pursue economic development.13 In truth however, land redistribution was more of propaganda than a reality. Like all previous land reform programs in the Philippines, Marcos’ land reform was not really intended to reduce substantially the huge gap between the peasantry and the elite.14 Land reform was undertaken only to control social unrest. As of July 1976 only 100,000 tenants had received “certificates of land transfer”, about 25 per cent of the original program goal.15 And certificates of land transfers did not really transfer ownership to the tenants. Instead, it merely provided a promise of future benefit subject to paying amortization installments to the Land Bank of the Philippines. Worse, Marcos’ own landholdings (reportedly 20,000 hectares in Cagayan Province, 10,000 hectares in Isabela, the Carlota sugar estate and Sugar Centrals in Negros Occidental and several hundred hectares in Davao and other parts of Mindanao) remained untouched by the supposed reform.16

Wurfel, David. “Martial Law in the Philippines: the Methods of Regime Survival. Pacific Affairs, Vol. 50, No. 1 (Spring, 1977), pp. 5-30. Available at http://davidwurfel.ca/philippines/martial-law-in-thephilippines-the-methods-of-regime-survival 13 Ibid. 14 Kerkvliet, Benedict. “Land Reform in the Philippines since the Marcos Coup.” Pacific Affairs. Volume 47, 3: 286-304. Available at http://stevens.vermontlaw.edu:2053/stable/2755767?seq=3&Search=yes&searchText=LAW&searc hText=PHILIPPINES&searchText=LAND&searchText=OWNERSHIP&searchText=MARTIAL&list=hide &searchUri=%2Faction%2FdoBasicSearch%3FQuery%3DLAND%2BOWNERSHIP%2BAND%2BMAR TIAL%2BLAW%2BIN%2BTHE%2BPHILIPPINES%26acc%3Don%26wc%3Don%26fc%3Doff&prevS earch=&item=8&ttl=306&returnArticleService=showFullText&resultsServiceName=null 15 Ibid. 16 fn 10. 12

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To protect himself from the other factions of the economic elite, Marcos strengthened his faction using his martial law powers and began channeling resources to himself and his associates, instituting what came to be called “crony capitalism”.17 Instead of democratizing access to common resources, Marcos and his cronies monopolized it. In the forestry sector for example, Marcos used his martial law powers to monopolize logging, the Philippines’ top export industry in the 1960s.18 Marcos used his absolute power to deny or grant logging licenses to either enrich himself and his cronies, or to gain the support of the economic elite. A political supporter for example, was given forest concessions covering around 155,000 hectares and a sister of his was allowed to start a logging company with concessions covering 200,000 hectares. 19 Other relatives were installed as either members or chairpersons of boards of various boards of logging companies.20 For its failure to deliver on its promise to democratize access to economic resources and its intentional marginalization of the economic elite who opposed him, the Marcos regime became very unpopular by the early 1980s. This worsened when former Senator Benigno Aquino, a popular Marcos critic, was assassinated in 1983 upon his return from exile.21 To check the growing unrest and to legitimize his rule, Marcos called for snap elections22 in 1985. The desire to challenge Marcos unified the elite opposition under the candidacy of Benigno Aquino’s widow, Corazon Aquino and her candidacy enjoyed widespread popular support. Marcos was officially declared the winner of the 1986 elections amidst widespread reports of cheating and violence. Consequently, the elections, instead of stabilizing Marcos’ rule, further destabilized it. A group of young officers of the Armed Forces of the Philippines then planned a coup d’état against Marcos. But the plot was discovered and Marcos sought to arrest all those involved in the coup. In a massive display of public support for those who defied Marcos, people from all walks of life went out and protected the coup plotters from Marcos’ men. In a matter of days, hundreds of thousands of people gathered around the military and police camps at Epifanio Delos Santos Avenue (EDSA) where the coup plotters were holed up. People around the camps blocked tanks and armed military men with their bodies, making the Marcos military unable to advance towards the coup plotters. As the fn 10. Vitug, Marites. “The Politics of Logging in the Philippines”. The Politics of Environment in Southeast Asia edited by Philip Hirsch and Carol Warren. Routledge. January 31, 2002. 19 Ibid. 20 Ibid. 21 See BBC News. “1983: Filipino Opposition Leader Shot Dead.” Available at http://news.bbc.co.uk/onthisday/hi/dates/stories/august/21/newsid_2534000/2534945.stm 22 The elections in 1986 were referred to as “snap elections” because it was not a scheduled elections but one that was called for by Marcos to prove that he had the support of the Filipino people. 17 18

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number of people grew, military units started defecting to the side of the coup plotters. Advancing forces were transformed into defending forces until Marcos found himself without any military support and fled the country. Corazon Aquino was installed as the country’s president.23 Named after the main thoroughfare where the biggest demonstration of public support for the rebellion against Marcos was manifested, the transition became known as the ”bloodless people power revolution of EDSA”, today simply referred to as the “EDSA Revolution”. Unfortunately, while the EDSA revolution allowed the Filipino people to realize their collective power, it did very little to address the centuries old highly inequitable distribution of wealth between the rich and the poor.24 The data from 1965-1991 show that the basic pattern of inequality in percentage share of income survived through the political regime changes in the country. Thus, the top 10 percent of the population received 40.1 percent of income in 1965 and 37.8 in 1991. The lowest 10 percent on the other hand had only 1.1 percent and 1.8 percent, respectively. While the top 50 percent received 82.7 percent of income in 1965 and 81.1 percent in 1991, the lowest 50 percent had only 17.3 percent of the income in 1965 and 18.9 percent in 1991.25

See National Historical Commission of the Philippines. “The Revolution of ’86.” Available at http://www.nhcp.gov.ph/index.php?option=com_content&task=view&id=561 24 See Doronila, Amando. “People Power for 1-Man Rule”. Philippine Daily Inquirer. February 27, 2012. Available at http://opinion.inquirer.net/23887/people-power-for-1-man-rule 25 Magallona, Merlin and Ben S. Malayang III. Environmental Governance in the Philippines. University of the Philippines. Available at site.iugaza.edu.ps/.../Environmental_Governance_in_the_Philippines.pdf 23

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“Development” at the Expense of the Environment In his work entitled “ Inequality and Environmental Protection,“26 Boyce posits that because the wealthy get more net benefits from environmentally degrading activities than the poor, and they possess the power, the power-weighted social decision will tend to favor more environmental degradation. Such a situation is readily apparent in the Philippines. In order to meet the food demands of a growing population without having to give up their monopolistic hold on the country’s economic resources, the Philippine elite has always emphasized agricultural intensification. Consequently, farming systems in the Philippines “can be generally characterized by intensive farm production using inorganic fertilizers and pesticides.”27 Since the introduction of High Yielding Varieties (HYV) of rice in the 1960s, the government has encouraged the use of chemical fertilizers and pesticides by subsidizing farmers through different crop improvement programs. 28 Overutilization of these inputs lead to the decrease in the soil’s humus content, which adversely affects its infiltration and water-holding capacities.29 The loss of these two vital soil characteristics, in turn, makes the soil loose and more susceptible to erosion.30 Side by side with this agricultural intensification is an export led industrialization strategy. This strategy seeks to encourage transnational corporations to locate certain segments of their productive processes in the Philippines.31 Part of this strategy involves the creation of special economic zones where these transnational corporations can locate. In the special economic zone known as Calabarzon for example, a land area of 6,229 square kilometers or 5 Percent of the country’s total land area was developed so that transnational corporations may locate therein. This triggered massive conversion of prime agricultural lands to housing, commercial establishments, and industrial estates. 32 About 20,000 ha of farmlands were converted every year (from 1970 to 1980) to be used for other land uses. Landless farmers dislocated by this massive conversion of land use were thus driven to forestlands where they practice lowland agricultural practices that further cause

James K. Boyce, Inequality and Environmental Protection, (University of Massachusetts Amherst, Political Economy Research Institute, Working Paper No. 52, 2003). 27 Briones, Nicomedes. “Environmental Sustainability Issues in Philippine Agriculture”, Asian Journal of Agriculture and Development, Volume 2, Nos. 1 and 2. www.searca.org/web/e_library/.../briones.pdf 28 Ibid. 29 Ibid. 30 Ibid. 31 Magallona, supra fn 25. 32 Briones, supra fn 27 26

resource degradation.33 Conversion of agricultural land, deforestation, migration of landless farmers, and pollution caused by chemical fertilizers caused the loss of biodiversity, threatened the country’s coastal resources, and degraded the freshwater ecosystem. The overall result of all these is devastating. Forest cover had declined from an estimated 21 million hectares or 70 percent of the country’s total land area in 1900, to only 5.4 million hectares or 18.3 percent by 198834. Among 89 tropical countries, the Philippines is one of 11 with the lowest forest per capita—and most of its watersheds are considered degraded35. The World Bank reports that significant portions of land that had been classified and considered as forests are actually no longer forested, and have been put to use for agriculture or settlements36. Worse, these once forested lands that have been converted to agricultural use continues to be converted from agriculture to other uses. From 1988 to 2000, a total of 34,207 hectares of agricultural land—an average of 2,631 hectares per year—was converted from agriculture to other land uses37. Of the total land area, 76 percent faces some extent of degradation. Forty five percent of the total arable land, and 66 percent of non-agricultural land, have been moderately to severely eroded, triggering the movement of subsistence farmers to marginal lands to meet their daily food requirement. Soil erosion has resulted in the reduction in soil productivity and water retention capacity. This situation predisposes degraded lands to drought and other water availability problems38. Soil erosion also causes offsite effects such as sedimentation of lakes, reservoirs and irrigation canals, and paddy fields. As a result of which productivity of downstream irrigated lowlands becomes low. Rice yields in farms heavily affected by siltation were reported to have decreased by 27% in a period of 5 years. 39 The Philippine National Action Plan (2004-2010) in fact, identified soil degradation as a major threat to food security. It reported the degradation of the land has resulted in a 30 to 50% reduction in soil productivity and water retention capacity40.

Ibid. WB Report, Philippine Environment Monitor: The Green Environment. http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/EASTASIAPACIFICEXT/EXTEAPREGT OPENVIRONMENT/0,,contentMDK:21019639~menuPK:502892~pagePK:34004173~piPK:3400370 7~theSitePK:502886,00.html, p.9; also available at http://siteresources.worldbank.org/INTPHILIPPINES/Resources/6-15-GreenEnvt.pdf. 35 Ibid. 36 Ibid. 37 Ibid. 38 Ibid. 39 Victor Asio, Reinhold Jahn, Federico Perez, Ian Navarette & Sergio M. Ambit, A Review of Soil Degradation in the Philippines, 31 Annals of Tropical Research 2, 69-94 (2009). 40 Ibid. 33 34

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The Philippines has been identified by the International Union for Conservation of Nature (IUCN) as a biodiversity “hotspot”—a country where biodiversity is extremely threatened by deforestation, conversion, fragmentation of natural habitats, unregulated trade, and overall low environmental quality 41 . The government has identified 91 critically endangered species, 74 endangered, and 253 vulnerable species.42 Solid waste disposal continues to be a growing crisis in urban centers in the Philippines.43 In 2005, it was estimated that an average Filipino generates 0.3 kgs of garbage in rural areas and 0.5 kgs. in urban areas. Worst, it was estimated then that the annual waste generation would grow by 40% by 2010.44 Management of this enormous amount of solid wastes remains problematic because the World Bank reports that only 9 of 117 cities and 46 of 1,500 municipalities have solid waste management plans.45 The Philippines has 421 river basins in 119 proclaimed watersheds. However, within South Asia, it ranks among the lowest in terms of annual freshwater availability per capita. The 1,907 m3, per capita availability is lower than Asian and world averages.46 Country water demand is expected to increase from 1,303 m3 in 1995 to 3,955 m3 in 2025.47 Water shortages in highly populated areas, especially during the dry season are common48. Several river basins (Pampanga, Agno, PasigLaguna, and on the island of Cebu) are also experiencing generalized water scarcity.49 15 rivers nationwide have dissolved-oxygen at or below zero, indicating that they are “dead” during the dry months.50 The World Bank reports that in the four critical regions of the country (National Capital Region Central Luzon, Southern Tagalog, and Central Visayas) up to 58 percent of groundwater sampled is contaminated with coliform bacteria, and needs treatment. Correlatively, 31 percent, of illnesses monitored for a five-year period were caused by water-borne pathogens.51

WB Report; fn 35 p9 State of the Philippine Environment: A Progress Report, Vol. X Dev Pulse (NEDA Development Advocacy Fact Sheet) 43, 2 (2006). 43 WB. Philippine “Environment Monitor; The Brown Environment.” http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/EASTASIAPACIFICEXT/EXTEAPREGT OPENVIRONMENT/0,,contentMDK:21019639~menuPK:502892~pagePK:34004173~piPK:3400370 7~theSitePK:502886,00.html ); p17 44 Senate Economic Planning Office, Philippine Brown Environment Quality, At a Glance (Senate Economic Planning Office, Republic of the Philippines), Nov. 2005, at 2. 45 World Bank, Philippine Environment Monitor. The Brown Environment 46 WB, fn 44; p27-28 47 Ibid. 48 Ibid. 49 Ibid. 50 Ibid, at page 29. 51 Ibid. 41 42

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According to the World Bank the health costs of particulate matter PM10 pollution in four cities (Metro Manila, Davao, Cebu, and Baguio) of the Philippines for the year 2001 have been estimated to be more than US$400 million. The Bank therefore estimates that if the rest of the country’s population is assumed to be exposed to pollutant levels similar to those in these four cities, a high annual estimate for urban health cost for the country is over US$1.5 billion.52 Over 30 percent of the reefs in the country are in poor condition. Moreover, there has been a steady decline in the quality of the coral reefs—and only about 0.24 percent was reported to be in excellent condition in 2004, as compared to 4.3 percent in 2000 and 5.3 percent in 1991. Ninety-eight percent of these reefs are under medium or high threat. Mangrove cover is also suffering a decline. The 95 percent of the remaining mangroves in the country are secondary growth in areas with mixed uses- and types of forest. Only five percent are old or primary mangroves, and these are mostly found in Palawan.53 II. Evolution of Philippine Environmental Law Significant Milestones in Environmental Law Philippine environmental law began with laws that sought to protect the health and welfare of the people54. Thus, though the early laws had its environmental impact, the concern for the environment only took on a secondary role.55 The Spanish Law of Water of 1866 for example (which was implemented in the Philippines in 1871) authorized the Spanish Governor General to suspend industrial operations if it caused contamination of water resources injurious to public health.56 When the US took over in the early 1900s, it introduced several piece-meal or use oriented environmental laws. These included Act No. 2152 which provided for water quality management and regulation of the appropriation of public waters; Act No. 2812 which prohibited the cutting and utilization of fruit trees in public or communal forests; Act No. 3992 regulated disagreeable sound, noise, odor or smoke from motor vehicles; and, Act No. 3983 protected wild flowers and plants.57 After the country gained independence, laws were enacted to address the growing problem of over-extraction of resources and pollution. Republic Act No. 3931 WB, fn 44; p18 WB, fn 6; p39 54 Magallona, supra fn 25 55 Ibid. 56 Ibid. 57 Ibid. 52 53

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established the National Water and Air Pollution Control Commission in 1964, the Reforestation Commission was created under Republic Act 2706 to arrest deforestation and Republic Act No. 5752 was enacted to control the worsening pollution of Laguna Lake.58 Under Martial Law, President Marcos enacted a host of environmental laws either to consolidate his control over the country’s resources or to boost his international image that was suffering because of Martial Law. In 1975, Marcos issued Presidential Decree No. 705—the Revised Forestry Code -ostensibly to improve forest protection. However, as earlier mentioned, the decree gave Marcos the power to grant or deny logging licenses and he used this power to control one of the most important export products of the country during the period. To improve his international image however, Marcos also promulgated a host of other environmental laws following the United Nations Conference on the Human Environment in Stockholm in 1972. Following the Stockholm Conference, Marcos’ decrees reflected “an integrated approach to environmental protection and it gave impetus to a more unified national action towards this objective.”59 Thus, P.D. 1067 (The Water Code) was promulgated to consolidate the laws governing the ownership, appropriation, utilization, exploitation, development, conservation and protection of water resources and to cope with the increasing scarcity of water and changing patterns of water use.60 Two years later, The Philippine Environmental Code (P.D. 1152) was promulgated to establish a comprehensive program for environmental protection and management. It contained provisions on air quality management (Title I), water quality management (Title II), land use management (Title III), natural resources management and conservation61 (Title IV), and solid waste management (Title V). This was followed by Presidential Decree 1151 to declare the nation’s environmental policies and goals. The Decree declared that it is the nation’s environmental policy: (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other; (b) to fulfill the social, economic and other requirements of present and future generations of Filipinos; and, (c) to insure the attainment of an environmental quality that is conducive to a life of dignity and well-being62

Ibid. Ibid. 60 Articles 5 and 6, PD 1067 61 Title IV included Chapters on Fisheries and Aquatic Resources, Wildlife, Forestry and Soil Conservation, Flood Control and Natural Calamities, Energy Development, Surface and Ground Waters, and Mineral Resources. 62 Section 1, P.D. 1151 58 59

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The Decree also initially established an Environmental Impact Statement (EIS) System wherein every person who shall undertake an activity or project that would significantly affect the quality of the environment is required to prepare and file an Environmental Impact Statement wherein the project proponent, among others, is required to disclose the adverse environmental impacts of his proposed activity and the alternatives to the proposed action. P.D. 1586 however, was subsequently promulgated in 1978. Under this law, the President empowered himself to declare certain projects, undertakings or areas in the country as environmentally critical. Thus, certain projects may be exempted from the EIS requirement established under PD 1151 if, according to Marcos’ sole determination, they are not environmentally critical or are they not undertaken in an environmentally critical area. Following the EDSA revolution discussed above, the Filipino people ratified a new Constitution in 1987. Inspired by the collective power displayed by the people during the peaceful revolution, the new Constitution laid down the foundations for the enactment of more progressive environmental statutes. Among others, it declared the following state policies: (1) To protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature63; (2) To recognize and promote the rights of indigenous cultural communities within the framework of national unity and development64; (3) To encourage non-governmental, community-based, or sectoral organizations that promote the welfare of the nation. 65; and (4) To adopt a policy of full public disclosure of all its transactions involving public interest. Consistent with these declared policies, the environmental statutes that were enacted after 1987 emphasized the people’s right to information and their right to participate in the formulation of policies that affected their environment. The Toxic Substances and Hazardous and Nuclear Wastes Control Act (1991), the first environmental enactment after EDSA, in regulating the importation, manufacture, processing, handling, storage, transportation, sale, distribution, use, and disposal of all chemical substances and mixtures that present unreasonable risk and/or injury to health or the environment, the law provides for public access to “records, reports, or information concerning chemical substances and mixtures including safety data submitted, data on emission or discharge into the environment..”66 It also allots one seat for an NGO representative in the InterAgency Technical Advisory Council67. Section 16, Article II, 1987 Philippine Constitution Section 22, Article II, 1987 Philippine Constitution 65 Section 23, Article II, 1987 Philippine Constitution 66 Section 12, Republic Act 6969 67 Section 7, Republic Act 6969 63 64

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The Small-Scale Mining Act (1991), The National Integrated Protected Areas System (NIPAS) Act (1992), The Fisheries Code (1998), the Ecological Solid Waste Management Act (Republic Act No. 9003), and the Clean Water Act (Republic Act No. 9275) all provide for mechanisms by which NGOs and other stakeholders can participate in policy making at all levels.68 Thus, as the post-EDSA government strengthened the general policies defined under the Environmental Code enacted during the Marcos era, new legislation allowed for meaningful people’s participation in determining the manner by which the environment shall be protected while development is pursued. Moreover, legal developments in other parts of the globe have influenced environmental legislation in the Philippines. Consequently, Philippine environmental laws are no longer limited to command and control measures. The Clean Air Act of 1999, for example has, for the first time, introduced creative measures patterned after other countries. The Act calls for the designation of airsheds wherein areas with similar climate, meteorology and topology, or those which share common interest or face similar development programs, prospects or problems shall be considered as one unit. These airsheds shall serve as the basic unit for air quality management69. The law requires the preparation of an Air Quality Improvement Framework and an Air Quality Control Action Plan which shall prescribe the emission reduction goals using permissible standards, control strategies and control measures to be undertaken within a specified time period, including cost-effective use of economic incentives, management strategies, collective actions, and environmental education and information; sets national ambient air quality and emission standards.70 Pursuant to the polluters pay principle, the law establishes an emission charge system that would charge industrial dischargers and motor vehicle dischargers emission fees that shall be based on the volume and toxicity of the discharge71. It also provides for tax incentives to industries that shall install pollution control devices or retrofit their existing facilities with mechanisms that reduce pollution72. The Clean Air Act is also the first environmental legislation that provided for citizen’s suits. Thus under the law, any citizen may file the appropriate administrative, civil or criminal action against any violator of the act, or against government officers or agencies charged with its implementation yet issues order, rules or regulations inconsistent with the law, or against any government official who fails to perform his duty to implement the law.73 See Appendix A for more details about the environmental laws Section 9, Republic Act 8749 70 Section 7, Republic Act 8749 71 Section 13, Republic Act 8749. 72 Ibid. 73 Section 41, Republic Act 8749 68 69

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Moreover, the law exempts anyone availing of the citizen’s suit provision from paying filing fees, or from posting injunction bonds in cases where the citizen can show that the action was triggered by the non-enforcement of the act or by a violation of the same.74. The Act likewise protects private persons bringing a citizen’s suit or a public official implementing the provisions of the Act from suits and strategic legal actions against public participation and enforcement of the act. Thus, under the law, when a suit is brought against a person who filed an action in accordance with the citizen’s suit provision of the Act, or against any person, institution or government agency that implements the Act, the law makes it a duty of the investigating prosecutor or the court, as the case may be, to immediately make a determination not exceeding thirty (30) days whether said legal action has been filed to harass, vex, exert undue pressure or stifle such legal recourses of the person complaining of or enforcing the provisions of the Act.75 Citizens or government officials seeking to enforce the provisions of the act therefore need not worry about the common tactic in the Philippines of counter-suits that are intended to harass and/or deplete the resources of the person seeking to enforce the law. The Clean Water Act (Republic Act No. 9275) is likewise creative. It requires the designation of certain areas as water quality management areas using appropriate physiographic units such as watershed, river basins or water resources regions. Said management areas shall have similar hydrological, hydrogeological, meteorological or geographic conditions which affect the physicochemical, biological and bacteriological reactions and diffusions of pollutants in the water bodies, or otherwise share common interest or face similar development programs, prospects or problems.76 The said management area shall be governed by a multi-sectoral governing board. The law also mandates the classification of waters and the designation of nonattainment areas wherein new discharges shall be prohibited unless there is a corresponding reduction in discharges from existing sources.77 Moreover, the law established the National Water Quality Management Fund78 and the Area Water Quality Management Fund79. The fines and damages awarded by the Pollution Adjudication Board and proceeds from the permits issued by Department of Environment and Natural Resources in accordance with the act formed part of the National Water Quality Management Fund. The Area Water Quality Management Fund shall be financed by the Wastewater Charge System also established under the Ibid. Section 43, Republic Act 8749 76 Section 5, Republic Act 9275 77 Section 6, Republic Act 9275 78 Section 9, Republic Act 9275 79 Section 10, Republic Act 9275 74 75

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Act. Under the Wastewater Charge system, dischargers of wastewater shall be charged a fee based on the net waste load and the type of wastewater. The law then provides incentives to local governments, water districts or private entities that develop or undertake an effective water quality management, or actively participate in any program geared towards the promotion of the same80 and rewards individuals, organizations and entities that have undertaken outstanding and innovative projects, technologies, processes and techniques or activities in water quality management.81 Challenges Overall, Philippine environmental legislation has progressed well. There are however, challenges that the Philippines still face. First, despite the historical and economic significance of land ownership, and despite the impact of current ownership patterns and use on the environment, there is still no major legislation that addresses the issue of land use. Second, the demand of economic development continues to put pressure on the environment. Mining, for example, can significantly contribute to strengthening the Philippine economy. But mining causes so much environmental problems. “Tremendous amount of mine wastes and tailings are generated by mineral extraction, which are carried to rivers and into the seas. In 1991, mines wastes reached as high as 47.44 million metric tons and mine tailings, 42.70 million metric tons.”82 The environmental impact of the mining industry will be a major challenge especially since the “new Mining Code provides impetus for its productive potential.”83 Third, the government still does not display the political will to make all the environmental laws effective. In fact, the World Bank observes that – priorities change each time a new government is elected. This leads to discontinuities and programmatic break-down in bureaucratic agendas. In addition, a pervasive culture of political patronage in government agencies is seen as a significant obstacle to the systematic implementation of regulations, and to improving the quality of environmental governance. Moreover, it has been observed that the Department of Environment and Natural Resources (DENR), the Philippines’ lead agency in environmental protection, has Section 26, Republic Act 9275 Section 25, Republic Act 9275 82 Magallona, supra fn 25 83 Ibid. 80 81

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consistently showed its bias for promoting the utilization of natural resources rather than protecting and conserving them84. Fourth, because control over resources is a strategy for maintaining political control, top officials of the DENR have been appointed not on the basis of their qualification and track record but in view of the appointees’ perceived closeness to the appointing power85. Consequently, officials serve to please the appointing power or his/her perceived political allies rather than implement the law. Interviews with several regional directors of the Environmental Management Bureau confirmed that government officials connected with the incumbent administration would often call them to favor an environmental law violator whenever the Bureau’s inspectors chance upon a clear violation of environmental laws 86 . One even quipped, “everything in the Philippines is political.” Fifth, local governments are expected by many of the environmental laws to take the lead role in formulating policies as well as enforcing the law. Local government leadership however is hampered by a “lukewarm attitude” 87 , bureaucratic complexities and conflicts on the ground88 and lack of capacity89 and lack of resources. As a result, despite the NIPAS Act, for example, at least half the identified protected areas still have no Protected Area Management Boards (PAMBs) 90 Likewise, years after the passage of the Ecological Solid Waste Management Act of 2000, only nine out of 117 cities and 46 out of 1500 municipalities have prepared and submitted their ten-year plans to the National Solid Waste Management Commission for review91. Finally, despite the legal mechanisms that allow citizens’ participation in policy making, this has so far been ineffective. As of 1995, there were about 60,000 nongovernmental institutions—50,000 NGOs and 10,000 People’s Organizations (POs) in the Philippines. About 3,000 to 5,000, of these are development oriented and a small percentage of these are devoted solely to the environment.92 But such organizations cannot fully participate if they do not have timely and accurate Antonio G.M. La Vina, Re-Thinking Philippine Environmental Institutions: Do We Need to Reallocate Mandates, Powers, and Functions?, Draft Institutional Analysis Report as of September 28, 2008 (not for attribution; for discussion purposes only), page 35, http:??siteresources.worldbank.org/INTPHILIPPINES/Resoources/WBCEAInstitutionalAnalysisSept 28.pdf. 85 Ibid. 86 Formal and informal interviews with several Regional Directors of the Environmental Management Bureau were conducted between January to February 20, 2013. Due to the possible repercussion on their office however, all these directors have requested that their names and identities be withheld. 87 La Vinia, fn 85 88 World Bank. Philippine Environment Monitor 2004. Available at http://siteresources.worldbank.org/INTPHILIPPINES/Resources/51-56-ChallengesETC.pdf 89 Ibid. See also La Vina, fn 85 90 WB, fn 35, p12 91 WB, supra note 44; p19 84

92

La Vina, fn 85

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information on the environment. It has been reported that not only does the country lack sufficient information and data about the environment, there is even inadequate management, dissemination and sharing of the little data that the government has.93 III. Judicial Response Judicial Initiatives Sometime after the EDSA revolution, a group of minors, represented and joined by their parents, filed a class suit for themselves and for others of their generation and future generations to stop the continuing issuance of Timber License Agreements that authorized the cutting of trees in the country’s remaining forests. Invoking their constitutional right to a balanced and healthful ecology, the petitioners in Oposa v Factoran (G.R. No. 101083) prayed that all Timber Licensing Agreements be cancelled and that future issuances of the same be enjoined. On July 30, 1993, the Philippine Supreme Court took this opportunity to declare that the right of a person to a balanced and healthful ecology stated in the Constitution’s declaration of Principles and State Policies (Section 16, Article II, Philippine Constitution) is a legally enforceable one. Moreover, the Court recognized the right of children to sue for themselves and for generations yet to come for the enforcement of such right. With such a declaration, the Philippine Supreme Court liberalized the rule on standing in environmental cases. Although it refused to enjoin the issuance of timber license agreements, it nevertheless opened the gates for people to make use of the courts to enforce environmental rights. Fifteen years later or in January of 2008, the Supreme Court designated special courts to hear, try and decide environmental cases.94 In 2010, the Judiciary pushed its environmental agenda even further. Using its Constitutional power to “[p]romulgate rules concerning the protection and enforcement of constitutional rights, pleadings, practice, and procedure in all courts”95 it promulgated the Rules of Procedure in Environmental Cases to: (a) To protect and advance the constitutional right of the people to a balanced and healthful ecology; (b) To provide a simplified, speedy and inexpensive procedure for the enforcement of environmental rights and duties recognized under the Constitution, existing laws, rules and regulations, and international agreements;

Ibid. Administrative Order 23-2008, Philippine Supreme Court. 95 1987 Constitution of the Republic of the Philippines, art. VIII, sec. 5. 93 94

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(c) To introduce and adopt innovations and best practices ensuring the effective enforcement of remedies and redress for violation of environmental laws; and (d) To enable the courts to monitor and exact compliance with orders and judgments in environmental cases.96 Pursuant to these objectives, the said rules re-affirmed the Oposa doctrine that “liberalizes standing for all cases filed enforcing environmental laws and collapses the traditional rule on personal and direct interest, on the principle that humans are stewards of nature.” To ensure the speedy disposition of environmental cases, the rules require continuous trial periods. If it involves a civil case, the period of trial should not exceed two months from the date of the issuance of the pre-trial order unless prior permission for extension of the trial period is obtained from the Supreme Court.97 If it involves a criminal case, the period should not exceed 3 months.98 These are significant deadlines considering trial of cases in the Philippines could take as long as 10 years or longer.99 It also provides for the following special remedies: a. a Temporary Environmental Protection Order100 which may be issued by the Court if it appears from the verified complaint that the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury; b. a permanent Environmental Protection Order which may be issued if, after trial, the court finds that the act complained of must be permanently enjoined c. the writ of continuing mandamus directing the performance of acts which shall be effective until judgment is fully satisfied101 which may be issued if the court finds a need to continuously monitor compliance with its order102 d. the Writ of Kalikasan (nature) which may be issued when a constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such Rule 1, Section 3,Rules of Procedure for Environmental Cases Id. rule 4, section 1. 98 Id. rule 17, section 1. 99 The author, for example, is involved in a medical malpractice suit where trial took eleven years to finish. The case has been submitted for decision in 2011 and yet no Decision has yet been promulgated. 100 Id. rule 2, section 8. 101 Id. rule 5, Section 3; see also rule 8 102 See Annotation to the Rules of Procedure for Environmental Cases 96 97

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magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces103 Following the lead of the Clean Air Act, the rules recognized the possibility of a legal action filed to harass, vex, exert undue pressure or stifle any legal recourse that any person, institution or the government has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights (which the rules define as SLAPP or Strategic Lawsuit Against Public Participation). It therefore contains provisions on how such a legal action shall be treated under the rules104. Limitations of Judicial action While the initiatives of the Judiciary are laudable, it can only do so much. Under the Philippine Constitution, the Judicial Branch is empowered only to settle actual cases or controversies of the justiciable sort. As the Philippine Supreme Court itself declared: "X x x. Judicial power is limited to the decision of actual cases and controversies. The authority to pass on the validity of statutes is incidental to the decision of such cases where conflicting claims under the Constitution and under a legislative act assailed as contrary to the Constitution are raised. It is legitimate only in the last resort, and as necessity in the determination of real, earnest, and vital controversy between litigants."105 Thus, despite the noble intention of the Court to be more active in environmental protection, the constitutional limitation on its powers prevent it from playing any other role but to adjudicate actual cases or controversies. Consequently, unless there is a litigant who would actually file a case in court, the judiciary would be powerless to stop environmental degradation. Though there is no national statistic available, the situation in the province of Palawan demonstrates the point. In the said province, it has been reported that there were 14,000 known incidents of fishery laws violations within a four-year period. Of that number, only 33 cases reached the court and this resulted in only five convictions.106 In Palawan therefore, the courts could only act in 33 out of the 14,000 known incidents of fishery laws violation. Although the environmental initiatives taken by the court could increase the conviction rate, still it could exercise judicial power in only .02 percent of known violations of fisheries law. Clearly, unless people invoke judicial power, the Judiciary would be powerless to stop environmental degradation. Rule 7 of Rules of Procedure for Environmental Cases Id . rule 6. 105 PACU vs. Secretary of Education, 97 Phil 806 106 La Vina, supra note 85. 103 104

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Moreover, a recently held panel discussion of Justices of the Court of Appeals revealed potential clashes between the Judiciary on the one hand, and the Executive or Legislative Branches, on the other, may be an inevitable result of judicial environmental activism. In the said discussion, the Presiding Justice of the Court of Appeals noted that despite the rule allowing the court to issue a writ of continuing mandamus, there are certain acts that the Judiciary simply cannot compel the Executive or the Legislative to do. In the said discussion, Presiding Justice Acosta cited the case of Metro Manila Development Authority v Concerned Residents of Manila Bay (G.R. No. 171947-48, December 18, 2008) where for the first time, the Philippine Supreme Court issued a continuing mandamus to compel the government agencies to perform their tasks and clean up Manila Bay. Presiding Justice Acosta pointed out that – Now, going back to my concern, it is the same concern that the court had when it did not specify in its dispositive portion, that it did not want to encroach on the principle of separation of powers. Like for example, cleaning up of Manila Bay, it needs a lot of money and the Court cannot order Congress to approve money for that. So, if the public officials in charge of cleaning up of Manila Bay just say that there is not enough funds, how can we enforce the order of the court?107 Indeed, while the Court in the said case may hold the officials in charge of the clean up of Manila Bay in contempt for refusing to follow the order of the Court, still, it cannot compel the Legislature to appropriate funds for such a huge undertaking. The actual clean up of the bay may therefore never be realized and the Court would be powerless to do anything about it. In a similar discussion108, another Justice of the Court of Appeals pointed out a similar concern. Said the Justice – Restoration pwedeng i-ano sa relief (restoration can be included in the relief)? We know that mining companies destroy the mountains. How can we include in the relief to restore mountains? The direction of the Supreme Court is for the justices to be environmentalists. How about the executive department that issue the mining permits as to exploitation? Wouldn’t we have a problem between the executive and the judiciary at this point? Transcript of the Proceedings, Panel Discussion on Selected Features of the Rules of Procedure for Environmental Cases. Part of the Capacity Building on Environmental Laws and the Rules of Procedure for Environmental Cases for the Court of Appeals [Batch 2] held on January 9-11, 2013 at Panglao, Bohol, Philippines at page 5 108 Transcript of Proceedings. Panel Discussion on Selected Features of the Rules of Procedure for Environmental Cases. Part of the Capacity Building on Environmental Laws and the Rules of Procedure for Environmental Cases for the Court of Appeals [Batch 1] held on November 7-9, 2012 at Panglao, Bohol, Philippines 107

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Discretion-policy consideration? We invite foreign investors to come but we have to preserve the environment. Why don’t we direct our advocacy to mining companies so we won’t have problem in the court on the writ of kalikasan? Is it desirable to have the courts usurp executive or legislative power for the sake of the environment? This paper does not intend to answer that question. It merely wishes to point out that the courts, by themselves, face many constraints. Despite its laudable efforts therefore, it would be foolish to believe that the newfound environmentalism of the Supreme Court, by itself, would stop the environmental degradation in the Philippines. IV. Responding to Judicial Initiatives with Environmental Law Education The initiative of the Philippine Supreme Court will acquire more significance if other sectors of Philippine society shall respond to these initiatives with equal vigor and commitment. Law schools in particular, could play a significant role because of its established role as “gatekeeper” of the law profession and “molder of the profession and its mores.”109 The more desirable response of law schools would be the recruitment, development and training of lawyer-environmental advocates who could not only invoke judicial power, but could also use their special education and training to protect the environment. “Lawyers are the mechanics of the legal system. They drive and help fine-tune the engine, knowing that if it is not in working condition, it will not reach its destination. Lawyers are specially trained in the legal system's goals and have the greatest expertise about its operation.”110 Thus, even while courts cannot do anything but wait, the lawyers can strongly influence the creation and promulgation of statutes and participate in its effective enforcement. That a lawyer can be an excellent environmental advocate however, does not mean that all lawyers should be one or that law schools should only seek to train environmental advocates. “It must be recognized that, as matters stand, even most of those idealists who are drawn to law school because of a desire to work for ‘social justice’ will find it impossible to do so unless they are independently wealthy, so few are the positions which will pay a reasonably acceptable salary for such work.” 111 Thus, while law schools may prepare students to become environmental advocates, they have to recognize that economic considerations may drive lawyers to work Hellman, Lawrence, K. Considering the Future of Legal Education: Law Schools and Social Justice. 29 J. Legal Education. 170 1977-1978: 170. Downloaded from HeinOnline (http://heinonline.org) April 8, 2013 110 Fred C. Zacharias, The Lawyer's Role in a Contemporary Democracy, Promoting Social Change and Political Values, True Confessions About the Role of Lawyers in a Democracy, 77 Fordham L. Rev. 1591 (2009). Available at: http://ir.lawnet.fordham.edu/flr/vol77/iss4/16. 111 Hellman, Lawrence, K., supra note 16. 109

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elsewhere. Even good intentioned people have to eat and law schools cannot deprive these people of the professional training that they need. Nonetheless law schools also need to prepare those who do decide to become environmental advocates. Environmental lawyering has become prestigious and profitable in other countries and Philippine law schools must provide venues for their students to learn the experiences of these lawyers and law firms. It must also be recognized that lawyers are duty bound to represent clients, regardless of how they view the environment. As Professor Zacharias notes, “The lawyer's role as a client advocate sometimes actually prevents lawyers from actively promoting important political and social values..” 112 This is not necessarily undesirable. Without lawyers representing both sides of an issue, litigation, would not be available as a means of allowing the better idea to prevail. “Important systemic values underlying both the legal and political processes are furthered by the availability of a profession of trained attorneys capable of giving representation to any lawful cause.” 113 Responding to the Supreme Court’s environmental initiatives also involves preparing lawyers to be ready to represent even those who have little respect for the environment and yet use the opportunity to improve environmental laws or at least counsel their clients to choose the environmentalfriendly alternatives. Towards this end, law schools must be able to mold lawyers who appreciate the moral foundation of value neutrality and absolute client loyalty in representing clients, yet capable of understanding also that in playing other roles – lawyer-judge, lawyer-legislator, lawyer-leader, lawyer-adviser, lawyer-citizen -they should recognize every person’s constitutional right to a balanced and healthful ecology. Responding to judicial initiatives therefore require that law schools be able to produce lawyers who are capable of representing environmental law violators with passion and zeal, yet remain environmentalists and constitutionalists in performing their duties as lawyers. Towards this end, law schools must be able to provide venues for law students to acquire environmental knowledge that is not limited to the letters of environmental law. According to Peden “one of the functions of our law schools is to awaken every student to the need (a) to distinguish between goals and means of achievement; (b) to consider the law in its social context, and whether the law meets the needs of society, and to be aware that empirical data may be necessary in order to answer this question; and (c) to acquire lawyer-like skills to deal with problems such as obtaining the passage of legislation, negotiating business transactions and political arrangements, as well as the traditional skills of drafting and advocacy” 114 Environmental courses should therefore not be limited to the study of the letter of the law and the cases that interpret them. Instead, they should be geared towards Ibid, at page 1599. Hellman, Lawrence, K., supra 16. 114 Peden, John, R. Goals for Legal Education. 24 J. Legal Educ. 379 1971-1972: 381. Downloaded from HeinOnline (http://heinonline.org) Apr 11 00:26:11 2013 112 113

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examining the purposes of the law, the manner by which they are enforced and how effective they are in achieving their goals, the social context in which these laws are enforced and the economic, political, social and environmental consequences of their success or failure.

V. A Proposed Course in Response to the Judicial Initiatives There are already a number of lawyers that are actively engaged in environmental law and they recognize the need for higher education.115 There are many more lawyers that may be recruited and developed in the environmental field through an environmental law program. Thus, in order to further develop lawyers already in the field and those that may still be recruited to play a more active role in environmental protection, the researcher proposes an LLM Program for Filipino lawyers. The proposed program is built on four key objectives First, the program will build on the JD training of Filipino lawyers and help those lawyers develop an expertise in Environmental Law. The proposed LLM program must be based on a strong legal training regime that would provide lawyers with a working knowledge of economics and ecology that would enable them to use and critique the scientific method and the application of technology, appreciate and understand the different economic models and how environmental law and policy affects and is affected by economic demands of a society, and how the law can handle both scientific uncertainties and economic demands. Building on their legal training, Filipino lawyers in this program would learn to find, interpret, describe and manipulate current and important historical environmental law and policy in the Philippines and other jurisdictions. These lawyers, once trained through this program, would be able to identify, define and engage institutions and individuals within the legal process, appropriate administrative agencies, courts, and other governmental entities, as well as outside forces, that shape and impact development of environmental law and policy Second, the proposed program will take advantage of legal mechanisms that allow for meaningful people’s participation in policy making and in monitoring and enforcement of environmental law. As earlier stated, there are several laws that created mechanisms for peoples participation (the NIPAS Act for example, created the Protected Area Management Board) and as earlier stated, many of these multisectoral bodies have not been established or are still in their infancy. The LLM In an interview with Atty. Jonathan Bulos, Regional Director of the Environmental Bureau of Region 6, Atty. Bulos told the author that nothing in Law School prepared him for his job. He says he wishes that law school should allow specialization in environmental law so that lawyers in the environmental field like him would be better prepared. Likewise, in a separate interview, Atty. Maripaz Luna of the NGO Pusod (umbilical cord), Inc. expressed her wish that law schools would provide specialized training in environmental law that would prepare lawyers like her to practice environmental law. 115

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program must take advantage of this opportunity to provide consultancy services and/or establish externships that would allow the lawyers in the program to directly and immediately contribute to improving and enforcing environmental law. Such direct participation shall inculcate the values of diligence and selflessness and provide venues for lawyers to learn to work with professionals from other disciplines so that they may be able to diagnose environmental problems, identify solutions, identify, convene and coordinate teams of legal and technical professionals, coordinate strategy and implement actions. Participants of this program would be ready to continue working for these multi-sectoral bodies even after graduation. Third, the proposed program shall provide lawyers with practical exercises and hands on training in issue spotting, pleading writing, evidence gathering, management and presentation, and oral advocacy. Participants in the program would be able to explain complicated, scientific and technical concepts in a manner that would be easily understood by judges, policy-makers and stakeholders. Finally, the proposed program shall develop creative and scholarly thinkers in environmental law who shall not only add to the growing literature on Philippine environmental law and policy, but who will actually be able to propose and enact strong environmental laws, policies, rules and processes. CONCLUSION Despite the many challenges to its democracy, the Philippines has come up with good environmental laws that may serve to protect its rich natural resources. It now has an “environmental activist” judiciary that has displayed its willingness and resolve to protect the environment. The opportunity is therefore ripe to encourage, develop and train more lawyers to take on the cause of the environment. It is also an opportunity for Filipino lawyers who have long taken on the cause of the environment to transform their stories of victory and defeat into lessons from which present and future generations can learn. An LLM program on Environmental law will help recruit new environmental lawyers while providing a venue for those already in the practice of environmental law to filter the lessons their experiences have taught them. An LLM program can further raise the level of litigation and debate in the country so that more, newer, and better ideas in resource management and protection will find its way not only in the halls of the academe, but in the halls of congress and in the courts as well.

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APPENDIX A A Brief Summary of Significant Environmental Laws in the Philippines

(a) the Revised Forestry Code (Presidential Decree No. 705) In 1975, then President Ferdinand Marcos recognized the need to protect, rehabilitate and develop forestlands to ensure the continuity of their productive condition116. He thus promulgated117 the Revised Forestry Code to govern the utilization and management of forestlands and forest products. In order to ensure the continued productivity of forest lands, the Decree called for the classification of lands of the public domain and the clear delineation of forestlands from other types of land.118 Clear boundaries would then be marked on the ground119 and any activity within such forest lands can only be performed by obtaining license agreements, licenses, leases or permits for the exploitation and occupation of forestlands, and the establishment of wood or forest products processing plant. Such licenses or permits shall only be granted if their “utilization, exploitation, occupation or possession thereof, or the conduct of any activity therein”, would bring about the “optimum benefits to the development and progress of the country, and the public welfare, without impairment or with the least injury to its resources…”120 The Code also contains provisions on reforestation and protection of forests. To protect forest lands, the Decree prohibited the following acts: Section Section 68 Section 69

Acts Prohibited Cutting, gathering or collecting timber or other products without a license entering and occupying or possessing, or making kaingin for his own private use or for others any forest land without authority under a license agreement, lease, license or permit, or in destroying in any manner such forest land or part thereof, or causing any damage to the timber stand and other products and forest growths found therein, or assisting, aiding or abetting any other

Whereas Clauses of Philippine Forestry Code (Presidential Decree 705). By virtue of Amendment No. 6 under the 1973 Constitution, President Marcos exercised legislative powers. 118 Sections 13-16 of Philippine Forestry Code. 119 Id. section 17. 120 Id. section 19. 116 117

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Section 70

Section 71

Section 79

person to do so, or setting a fire, or negligently permitting a fire to be set in any forest land. grazing or causing to graze livestock in forest lands, grazing lands and alienable and disposable lands which have not as yet been disposed of in accordance with the Public Land Act without authority under a license or permit occupying for any length of time any portion of the national parks system without a permit, or cutting, destroying, damaging or removing timber or any species of vegetation or forest cover and other natural resources found therein, or mutilating, defacing or destroying objects of natural beauty or of scenic value within areas in the national parks system; or hunting, capturing or killing any kind of bird, fish or wild animal life within any area in the national parks system selling or offering for sale any log, lumber, plywood or other manufactured wood products in the international or domestic market without complying with grading rules established by the Government

(b) the Marine Pollution Decree (Presidential Decree No. 979) Following the Forestry Code, Presidential Decree 979 or the Marine Pollution Decree was promulgated in 1976 to protect the marine environment and the living organism it supports121. Recognizing that the capacity of the sea to assimilate wastes and render them harmless, and its ability to regenerate natural resources is limited, the Decree made it unlawful for any person to: a. discharge, dump or suffer, permit the discharge of oil, noxious gaseous and liquid substances and other harmful substances from or out of any ship, vessel, barge, or any other floating craft, or other man-made structures at

121

Whereas Clauses of P.D. 979. 26

sea, by any method, means or manner, into or upon the territorial and inland navigable waters of the Philippines; b. throw, discharge or deposit, dump, or cause suffer or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of vessel of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state into tributary of any navigable water from which the same shall float or be washed into such navigable water; and c. deposit or cause, suffer or procure to be deposited material of any kind in any place on the bank of any navigable water or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed or increased the level of pollution of such water122. (c) the Water Code (Presidential Decree No. 1067) In the same year, P.D. 1067 was promulgated to consolidate the laws governing the ownership, appropriation, utilization, exploitation, development, conservation and protection of water resources and to cope with the increasing scarcity of water and changing patterns of water use. The Decree reiterates the constitutional principle that all waters belong to the State.123 Thus, under the Code, subject only to certain defined exceptions124, no person or entity may appropriate water from natural sources without a water right granted by the government.125 Preference in the development of water resources shall be based on security of the State, multiple use, beneficial effects, adverse effects and cost of development. 126 The Code also provides for measures that would conserve and protect waters, watersheds and related land resources in the development and utilization of water resources127 and defines certain prohibited acts and the penalties therefor.128 (d) the Philippine Environmental Code (Presidential Decree No. 1152) In 1977, The Philippine Environmental Code (P.D. 1152) was promulgated to establish a comprehensive program for environmental protection and management. 122

Id. section 4.

P.D. 1067, articles 5 -6. See id. article 14. 125 Id. article 13. 126 Id. 127 See chapter VI of P.D. 1067. 128 See id. chapter VIII. 123 124

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It contained provisions on air quality management (Title I), water quality management (Title II), land use management (Title III), natural resources management and conservation129 (Title IV), and solid waste management (Title V). Many of the provisions of this Code however, have been superseded by newer laws. (e) Philippine Environmental Policy (P.D. 1151) and the Environmental Impact Statement (EIS) System (Presidential Decree No. 1586) Following up on the Environmental Code, the President of the Philippines promulgated within the same year Presidential Decree 1151 to declare the nation’s environmental policies and goals. The Decree declared that it is the nation’s environmental policy: (d) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other; (e) to fulfill the social, economic and other requirements of present and future generations of Filipinos; and, (f) to insure the attainment of an environmental quality that is conducive to a life of dignity and well-being130 The Decree also initially established an Environmental Impact Statement (EIS) System wherein every person who shall undertake an activity or project that would significantly affect the quality of the environment is required to prepare and file an Environmental Impact Statement that would detail (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 longterm productivity of the same; and (e) whenever a proposal involve the use of depletable or non-renewable resources, a finding must be made that such use and commitment are warranted. To further strengthen the EIS system and ensure that the exigencies of socioeconomic undertakings would be reconciled with the requirements of Title IV included Chapters on Fisheries and Aquatic Resources, Wildlife, Forestry and Soil Conservation, Flood Control and Natural Calamities, Energy Development, Surface and Ground Waters, and Mineral Resources. 130 Section 1 of P.D. 1151. 129

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environmental quality131, P.D. 1586 was promulgated in 1978. Under this law, the President is empowered to declare certain projects, undertakings or areas in the country as environmentally critical. Once an activity or area is so declared, no person, partnership or corporation may undertake or operate any such declared environmentally critical project, or undertake any activity within such environmentally critical area, unless he/it secures an Environmental Compliance Certificate132. It also penalizes any person who fails to secure an Environmental Compliance Certificate prior to undertaking any environmentally critical activity or project or performing any activity in an environmentally critical area or violating the standards, rules and regulations issued pursuant to the compliance certificate133. (f) the Toxic Substances and Hazardous and Nuclear Wastes Control Act (Republic Act No. 6969) The Toxic Substances and Hazardous and Nuclear Wastes Control Act (1991) regulates the importation, manufacture, processing, handling, storage, transportation, sale, distribution, use, and disposal of all chemical substances and mixtures that present unreasonable risk and/or injury to health or the environment. It prohibits the entry, even in transit, of hazardous and nuclear wastes and their disposal into the Philippine territorial limits 134 . Consistent with the new Constitution’s declared policies, it provides for public access to “records, reports, or information concerning chemical substances and mixtures including safety data submitted, data on emission or discharge into the environment..”135 and allots one seat for an NGO representative in the Inter-Agency Technical Advisory Council136. (g) the People’s Small-Scale Mining Act (Republic Act No. 7076) The Small-Scale Mining Act (1991) carries out the State’s policy of promoting smallscale mining activities in order to generate more employment opportunities and provide an equitable sharing of the nation’s wealth137. The law establishes a People’s Small Scale Mining138 Program, “designed to achieve an orderly, systematic and rational scheme for the small-scale development and utilization of mineral resources in certain mineral areas in order to address the social, economic, technical, and environmental problems connected with small-scale mining Whereas Clauses of P.D. 1586. Section 4 of P.D. 1586. 133 Id. section 9. 134 Section 2 of Republic Act 6969. 135 Id. section 12. 136 Id. section 7. 137 Section 2 of Republic Act 7076. 138 Small scale mining is defined in the law as “mining activities which rely heavily on manual labor using simple implements and methods and do not use explosives or heavy mining equipment”. 131 132

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activities.”139 Consistent with the declared constitutional state policies, the law provides that no ancestral lands shall be declared as a small-scale mining area without the prior consent of the cultural communities concerned140. It also allots seats to local governments and to environmental NGOs in the Mining Regulatory Board141, which shall be the main implementing agency of the Act142. (h) the National Integrated Protected Areas System (NIPAS) Act (Republic Act No. 7586) The National Integrated Protected Areas System (NIPAS) Act (1992) establishes a system that “shall encompass outstanding remarkable areas and biologically important public lands that are habitats of rare and endangered species of plants and animals, biogeographic zones and related ecosystems, whether terrestrial, wetland or marine, all of which shall be designated as protected areas.”143 The act classifies protected areas into 7 distinct categories 144 and provide for the administration of said protected areas. In order to properly manage these protected areas, the statute calls for the formulation of a general management strategy that would serve as the guide for the creation of individual management plans for each protected area. This management planning strategy must 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 law also creates a multi-sectoral management board in each protected area that will be in charge of the general administration of the protected area in accordance with the management strategy formulated145. In addition, the law defines certain prohibited acts, which include: Section 20 (a)

20 (b)

Prohibited Acts Hunting, destroying, disturbing, or mere possession of any plants or animals or products derived therefrom without a permit from the Management Board Dumping of any waste products detrimental to the protected area, or to the plants and animals or inhabitants

Section 4 of Republic Act 7076. Id. section 7. 141 Id. section 25. 142 Id. section 24. 143 Section 2 of Republic Act 7586. 144 Id. section 3. 145 Id. section 11. 139 140

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20 (c) 20 (d)

20 (e) 20 (f) 20 (g)

20 (h)

20 (i)

therein Use of any motorized equipment without a permit from the Management Board Mutilating, defacing or destroying objects of natural beauty, or objects of interest to cultural communities (of scenic value) Damaging and leaving roads and trails in a damaged condition; Squatting, mineral locating, or otherwise occupying any land Constructing or maintaining any kind of structure, fence or enclosures, conducting any business enterprise without a permit Leaving in exposed or unsanitary conditions refuse or debris, or depositing in ground or in bodies of water Altering, removing destroying or defacing boundary marks or signs.

(i) the Philippine Mining Act (Republic Act No. 7942) The Mining Act (1995) mandates the rational exploration, development, utilization and conservation of mineral resources through the combined efforts of government and the private sector146. It sets the modes through which the private sector can engage in mineral development, namely: mineral production sharing agreements, co-production agreements, joint venture agreements147 or through financial or technical assistance agreements (FTAAs)148. Under the law, a party to a mineral agreement or financial or technical assistance agreement must include in its work program an environmental protection and enhancement program149 that must include rehabilitation, regeneration, revegetation and reforestation of mineralized areas, slope stabilization of mined-out and tailings covered areas, aquaculture, watershed development and water conservation; and socioeconomic development. As an incentive to install pollution control devices, the law shall not consider the

Section 2 of Republic Act 7942. Id. section 26. 148 Id. chapter VI. 149 Id. section 69. 146 147

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installation or construction of such devices as an improvement on the land, and hence, such devices shall not be subject to taxes or assessments150. Moreover, the law defines certain prohibited acts that include: Section Section 101

Section 102 Section 106

Section 108

Prohibited Acts presenting any false application, declaration, or evidence to the Government or publishing or causing to be published any prospectus or other information containing any false statement relating to mines, mining operations or mineral agreements, financial or technical assistance agreements and permits undertaking exploration work without the necessary exploration permit damaging a mine, unlawfully causing water to run into a mine, or obstructing any shaft or passage to a mine, or rendering useless, damaging or destroying any machine, appliance, apparatus, rope, chain, tackle, or any other things used in a mine Willfully violating or grossly neglecting to abide by the terms and conditions of the environmental compliance certificate which causes environmental damage through pollution

(j) the Philippine Fisheries Code (Republic Act No. 8550); The Fisheries Code (1998) seeks to ensure the rational and sustainable development of fishery and aquatic resources in Philippine waters, and limits access thereto to Filipino citizens. It gives preferential treatment to municipal fisherfolk in the grant of privileges in municipal waters151. The Code establishes a multi-sectoral National Fisheries and Aquatic Resources Management Council (with representatives from the fisherfolk and fishworkers, commercial fishing and aquaculture operators’ representatives and NGOs involved in fisheries) who shall assist in the formulation of national policies for the protection, sustainable

150 151

Id. section 91. Section 21, Article I of the Philippine Fisheries Code. 32

development and management of fishery and aquatic resources.152 It similarly creates a local council who would perform similar functions at the local level153. Among others, the Fisheries Code prohibits the following acts: Section Section 86

Section 87 Section 88 Section 91

Section 92

Prohibited Acts exploiting, occupying, producing, breeding, culturing, capturing or gathering fish, fry or fingerlings of any fishery species or fishery products, or engaging in any fishery activity in Philippine waters without a license, lease or permit Engaging in commercial fishing in municipal water of persons not listed in the registry of municipal fisherfolk or in fishery management areas declared to be overexploited Poaching in Philippine waters Fishing through the use of explosives, noxious or poisonous substances and/or electricity gathering, possessing, selling or exporting ordinary precious and semiprecious corals, whether raw or in processed form, except for scientific or research purposes. fishing with gear method that destroys coral reefs, seagrass beds, and other fishery marine life habitat Engaging in "Muro-Ami" and any of its variation, and such similar gear and methods that require diving, other physical or mechanical acts to pound the coral reefs and other habitat to entrap, gather or catch fish and other fishery species gathering, selling or exporting white sand, silica, pebbles and any other substances which make up any marine

152 153

See id. sections 70- 72. See id. sections 73-75. 33

Section 94 Section 96 Section 97

habitat. Converting mangroves into fishponds or for any other purpose Fishing is fishery reserves, refuge and sanctuaries Fishing or taking rare, threatened or endangered species

(k) the Clean Air Act (Republic Act No. 8749) The Clean Air Act (1999) calls for the designation of airsheds wherein areas with similar climate, meteorology and topology, or those which share common interest or face similar development programs, prospects or problems shall be considered as one unit. These airsheds shall serve as the basic unit for air quality management154. The law requires the preparation of an Air Quality Improvement Framework and an Air Quality Control Action Plan which shall prescribe the emission reduction goals using permissible standards, control strategies and control measures to be undertaken within a specified time period, including cost-effective use of economic incentives, management strategies, collective actions, and environmental education and information; and sets national ambient air quality and emission standards. 155 Pursuant to the polluters pay principle, the law establishes an emission charge system that would charge industrial dischargers and motor vehicle dischargers emission fees that shall be based on the volume and toxicity of the discharge 156. It also provided tax incentives to industries that shall install pollution control devices or retrofits their existing facilities with mechanisms that reduce pollution157. The Clean Air Act is also the first environmental legislation in the Philippines that provides for citizen’s suits. Thus under the law, any citizen may file the appropriate administrative, civil or criminal action against: (a) Any person who violates or fails to comply with the provisions of the Act or its implementing rules and regulations; or (b) The Department or other implementing agencies with respect to orders, rules and regulations issued inconsistent with the Act; and/or (c) Any public officer who willfully or grossly neglects the performance of an act specifically enjoined as a duty by the Act or its implementing rules and regulations; or abuses his authority in the performance of his duty; or, in any manner, improperly performs his duties under the Act or its implementing

Section 9 of the Clean Air Act. Id. section 7. 156 Id. section 13. 157 Id. 154 155

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rules and regulations: Provided, however, That no suit can be filed until thirtyday (30) notice has been taken thereon158 Moreover, the law exempts anyone availing of the citizen’s suit provision from paying filing fees, except fees for actions not capable of pecuniary estimations or from posting injunction bonds upon prima facie showing of the non-enforcement of the provisions of the act, or violation thereof159. The Act likewise protects private persons bringing a citizen’s suit or a public official implementing the provisions of the Act from suits and strategic legal actions against public participation and enforcement of the act. Thus, under the law, when a suit is brought against a person who filed an action in accordance with the citizen’s suit provision of the Act, or against any person, institution or government agency that implements the Act, the law makes it a duty of the investigating prosecutor or the court, as the case may be, to immediately make a determination within thirty (30) days whether said legal action has been filed to harass, vex, exert undue pressure or stifle such legal recourses of the person complaining of or enforcing the provisions of the Act.160 (l) the Ecological Solid Waste Management Act (Republic Act No. 9003) The Ecological Solid Waste Management Act mandates the preparation of a National Solid Waste Management Framework to be prepared by a multi-sectoral National Solid Waste Management Commission 161 . At the local level, Solid Waste Management Boards are established at both the provincial and the city/municipal level. Plans are to be generated from the municipal level, consolidated at the provincial level and finally integrated at the national level. Primary responsibility in implementing these plans are then placed on the local government units. The law rewards individuals, private organizations and entitles, including nongovernment organizations, that have undertaken outstanding and innovative projects, technologies, processes and techniques or activities in re-use, recycling and reduction162. It also establishes an incentive scheme for the purpose of encouraging local government units, enterprises, or private entities, including NGOs, to develop or undertake an effective solid waste management, or actively participate in any program geared towards the promotion of the same.163 (n) the Clean Water Act (Republic Act No. 9275) Id. section 41. Id. 160 Section 43 of the Ecological Solid Waste Management Act. 161 Id. sections 4-5. 162 Id. section 45. 163 Id. 158 159

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The Clean Water Act requires the designation of certain areas as water quality management areas using appropriate physiographic units such as watershed, river basins or water resources regions. Said management areas shall have similar hydrological, hydrogeological, meteorological or geographic conditions which affect the physicochemical, biological and bacteriological reactions and diffusions of pollutants in the water bodies, or otherwise share common interest or face similar development programs, prospects or problems.164 The said management area shall be governed by a multi-sectoral governing board. The law also mandates the classification of waters and the designation of nonattainment areas wherein new discharges shall be prohibited unless there is a corresponding reduction in discharges from existing sources.165 Moreover, the law established the National Water Quality Management Fund166 and the Area Water Quality Management Fund167. The fines and damages awarded by the Pollution Adjudication Board and proceeds from the permits issued by Department of Environment and Natural Resources in accordance with the act shall form part of the National Water Quality Management Fund. The Area Water Quality Management Fund shall be financed by the Wastewater Charge System also established under the Act. Under the Wastewater Charge system, dischargers of wastewater shall be charged a fee based on the net waste load and the type of wastewater. The law then provides incentives to local governments, water districts or private entities that develop or undertake an effective water quality management, or actively participate in any program geared towards the promotion of the same168 and rewards individuals, organizations and entities that have undertaken outstanding and innovative projects, technologies, processes and techniques or activities in water quality management.169 In addition, the law defined certain prohibited acts, which include: Section 27 (a)

Prohibited Acts Discharging, depositing or causing to be deposited material of any kind directly or indirectly into the water bodies or along the margins of any surface water, where, the same shall be liable to be

Section 5 of the Clean Water Act. Id. section 6. 166 Section 9, Republic Act 9275 167 Id. section 10. 168 Id. section 26. 169 Id. section 25. 164 165

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27 (b)

27 (c)

27 (d)

27 (i)

27 (o)

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washed into such surface water, either by tide action or by storm, floods or otherwise, which could cause water pollution or impede natural flow in the water body Discharging, injecting or allowing to seep into the soil or sub-soil any substance in any form that would pollute groundwater Operating facilities that discharge regulated water pollutants without the valid required permits or after the permit was revoked for any violation of any condition therein; Disposal of potentially infectious medical waste into sea water by vessels unless the health or safety of individuals on board the vessel is threatened by a great and imminent peril Discharging regulated water pollutants without the valid required discharge permit pursuant to this Act or after the permit was revoked for any violation of condition therein; Directly using booster pumps in the distribution system or tampering with the water supply in such a way as to alter or impair the water quality. Non compliance by local government officials with their action plan

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Appendix B Brief Description of the Proposed LLM Course for Philippine Lawyers

Introduction to Environmental Law Course Description: This is an introductory course that would provide the students with an understanding of the unique characteristics of environmental law and its impact on society. The course must begin with exercises that allow the students to discover for themselves the environmental situation in the Philippines. Group discussions will then be designed to provide the students the opportunity to identify and appreciate the unique characteristics of this field of law. It shall then provide the students with a general knowledge of the various regulatory tools available and provide the students an opportunity to analyze such tools. The following topics must be covered in this course: I.

Philippine Environmental Situation

Students will be asked to find and analyze reports and other materials that will provide them with a general picture of the current state of the Philippine environment. In order to deepen their appreciation of the environmental problems that beset the country, they shall also be asked to identify a local environmental problem in their community and report to the class the nature of the problem, its impact on the communities, the governmental and community responses to the problem. Activities would include writing assignments, class discussions and reports. By analyzing, sharing and discussing actual problems in local communities and relating them with national environmental problems, the students will be allowed to identify and appreciate the special and unique characteristics of environmental law. II.

Constitutional Policy and Framework

Students will review constitutional principles and policies that affect environmental law. Case studies and class discussions will be relied upon to deepen the student’s understanding of constitutional principles that impact on the development of environmental law. The article of Former Chief Justice Fernando170 that advocates Chief Justice Enrique Fernando, The Constitution and Environmental Law: The Relevance of the Malcolm Activist Approach, 69 Philippine Law Journal 117, 126 (1994). 170

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more judicial restraint as well as the opinion of Former Chief Justice Puno171 that encourages courts to take a more active stance can be used as take off points for discussing constitutional principles that the judicial activism may bring to the fore. In addition, the cases of Oposa v Factoran172 and MMDA vs Concerned Residents of Manila bay173 shall be analyzed and compared and the opinion of Dante Gatmaytan entitled “Judicial Restraint and the Enforcement of Environmental Rights in the Philippines”174 shall be considered in discussing the ideal role of the judiciary, and of lawyers, in environmental protection. III.

Regulatory Tools and Mechanisms

To understand the different regulatory tools that environmental law practitioners may use, students will learn the unique characteristics of environmental problems and issues. Issues like scientific uncertainty, tragedy of the commons, collective action and free riders, and other issues shall be introduced to help the students appreciate the uniqueness of environmental problems and issues and the need to use different regulatory tools to respond to unique problems. Group discussions, case studies and a group report shall be used to cover the topics. IV.

The Philippine Regulatory Toolkit

Students shall learn the various regulatory tools that have been implemented or currently being implemented in the Philippines and other jurisdictions. This will be achieved by asking the students to analyze current Philippine laws and compare and contrast the different regulatory tools being used by each law. In order to fully appreciate the different regulatory tools, comparative studies shall be undertaken so that students would be able to analyze how these tools have been implemented in other jurisdictions and how and why they may or may not be successfully implemented in the Philippines. The regulatory tools to be studied are: a. Informational Statutes (EIA Law) b. Information-based policy making statutes (Clean Air Act, Ecological Solid Waste Management, Clean Water Act) c. Statutes Creating Property Rights (Water Code, Fisheries Code, Forestry Code) Hon. Reynato Puno, Chief Justice of the Philippine Supreme Court, Philippine Environmental Law Practice and the Role of the Courts ” , a speech delivered at the Judges Forum on Environmental Protection: Philippine Environmental Law, held at the Philippine Judicial Academy Development Center, Tagaytay, Philippines (August 14, 2003). 172 G.R. No. 101083, July 30, 1993. 173 GR 171947-48, December 18, 2008. 174 12 Oregon Review of International 1 ( 2010). 171

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d. Command and Control Statutes

Natural Resources Law Course Description: This course shall provide the students with an opportunity to study and analyze natural resources law in the Philippines. In particular, it will give the students the opportunity to deepen their understanding of how common and open access properties are utilized and regulated and how access to natural resources impact the economy and the environment. This will be an opportunity for the students to see how distribution of wealth and access to natural resources impact on the use, conservation and preservation of natural resources. For this course, it would be best to tap the expertise of an economist, particularly in the discussion of economic tools of analysis in Part III. This course can be broken down into the following topics: I.

Natural Resources in the Philippines

This module shall examine the Regalian doctrine and how it affects access to common resources. Access to resources and distribution of benefits and how they affect the overall economic situation shall be particularly emphasized in the discussion and analysis. Specific natural resources laws of the Philippines (Like the Forestry Code and the Philippine Mining Act), how they affect and are affected by current wealth distribution shall be discussed in exploring these themes. II.

Resource Conflicts

Conflicts often arise in determining how natural resources shall be used. Students shall examine these conflicts by studying and analyzing the conflicts expressly or impliedly recognized by the Forestry Code, the Philippine Mining laws and the Public Land and analyzing how these laws manage such conflicts. III.

The Cost-Benefit Analysis, Power-weighted social decision rule and other economic tools of analysis

There are various economic models and tools that help analyze the effects of environmental law and policy. This module shall introduce students to some of these tools and provide opportunities for them to use it in analyzing resource conflicts. The following topics must be covered in the discussion of these issues175: The list of topics in Economics was taken from the Syllabus of Dr. Agustin Arcenas of the University of the Philippines School of Economics. The integration of 175

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a. b. c. d. IV.

The environment as an asset Constructing a demand function for environmental assets and services Assessing benefits and costs of environmental use and protection Static and dynamic analysis of costs and benefits The Philippine EIS System and its role in resource conflicts

The Philippine EIS system is one of the most under-maximized regulatory tool in the Philippines176. This module shall examine how the EIS system could be used to manage resource conflicts by studying how similar laws are being implemented and used in other jurisdictions. Remedies in Environmental Law Course Description: This course is a remedial law course that will prepare students to make use of the different formal remedies provided for by law. It shall also provide an opportunity for students to explore other non-traditional remedies such as transformational negotiations, and mass campaign handling. The course must provide problemsolving exercises that would teach students to identify the appropriate remedy for a given situation. The course would be broken down into the following topics: I.

The Rules of Procedure for Environmental Cases

The module would focus on the new rules of procedure issued by the Supreme Court. It shall focus on the special features of the new rules (environmental protection orders, continuing mandamus, writs of kalikasan,) to provide a venue for the exploration of issues (like the precautionary principle as a rule of evidence) that may be brought about by the implementation of the said rules II.

Alternative Dispute Resolution and Transformational Negotiations

The possibility and desirability of negotiations and bargaining in environmental disputes shall be studied and analyzed. Actual cases that have been subject to this subject to the proposed course in Natural Resources was a result of a discussion by the researcher with Dr. 176 In the interviews with the different Regional Directors of the Environmental Management Bureau, the researcher observed that all Regional Directors view the Environmental Impact Statement and the Environmental Compliance Certificate as merely a “planning tool”. 41

transformational negotiations shall be studied. Class discussions and role playing exercises shall be utilized in the study and analysis. III.

Citizens’ Participation and the role of lawyers

As earlier discussed, the Constitution as well as most of the recent statutes provide for citizens’ participation in planning resource use as well as management of resources. Students must learn the opportunities for citizens’ participation provided for by the statutes and explore ways and means by which the lawyer may enhance citizens’ participation. Case studies and class discussions shall be used to cover this topic. Economics and the Environment177 Course Description This course shall teach the students basic economic concepts in the area of environmental economics and how the principles of economic efficiency, sustainability and welfare affect environmental policy and the law. This is best taught by a team of professors, one who is an expert in Economics and the other is a lawyer. 178 Discussions on the inter-locking roles of lawyers, economists and scientists shall be conducted with both professors present. The Economics experts shall lecture on the following topics: a. b. c. d. e.

Environmental Issues and Externalities; Economic of Pollution; Sustainable Development and Natural Resource economics; Management of common pool resources; and, Poverty and the environment.

Group discussions to be facilitated by the law professor shall follow each lecture in order to explore how each concept affects, or is affected by law and policy.

Content and topics for this course was largely taken from the syllabus and interview with Prof. Agustin Arcenas, PhD, College Secretary of the School of Economics, (March 4, 2013). 178 The concept of team teaching the course was suggested by Dr. Arcenas. 177

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Introduction to Ecology179 Course Description This is an introductory course to Ecology (first of two proposed courses). The Course is designed to teach law students the basic concepts of ecology so that they may appreciate the dynamics of our environment that are often ignored by law and policy. The course shall be co-handled by a Law Professor and a Professor of Ecology. The course shall cover the following key topics: A. Science, Scientific Research and Thought This part will cover the basic characteristics of scientific research and thought and how it differs from legal thought. Through a comparison of how science and law handles a particular problem, students will appreciate that science deals with a lot of uncertainty, is dynamic, and because it build on previous theories and research, continues to evolve. Law and policy on the other hand seeks stability and uniformity and thus there are difficulties in coming up with science-based law and policy. Through discussions and case studies, students will collectively determine the role of science in law and policy-making. B. Global Cycles Discussions on the Global Cycles will center on key global cycles which include the (i) El Nino – La Nina events, weather patterns and ocean currents; and, (ii) carbon, nitrogen and phosphorus cycles. What these cycles are, how they impact our environment and how these cycles affect and are affected by human activities shall be discussed by the Ecology professor. The Law Professor, on the other hand, shall facilitate discussions on how these cycles affect and are affected by law and policy. C. Biomes, Eco-Regions, Distribution and Bio-diversity This part shall include the ecological concepts of biomes and eco-regions. It will take a look at some specific eco-systems that exist in the country to study their characteristics and uniqueness, including (i) island biogeography, (ii) urban ecosystems, (iii) estuaries, and (iv) coral reefs. Species, distribution and populations shall likewise be reviewed. D. Population Dynamics and Relationships This course and the succeeding course (Ecology and Climage Change) is based on a Course Outline prepared by Lynne C. Gardner, M.S. Candidate, Ph.D. Ecology and Evolutionary Biology, Iowa State University, Department of Natural Resource Ecology and Management 179

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This part shall cover the concepts of species’ population and population parameters, relationships between individuals and species, population dynamics with special focus on humans and how human population dynamics affect other species.

Ecology and Climate Change This course shall build up on the basic knowledge of Ecology acquired in the introductory course and focus the impact of climate change on the natural environment. As in the introductory course, this course shall be taught by an Ecology Professor and a Law Professor. It shall be divided into the following key topics: A.

Dynamic Equilibria, Stable States, and Trophic Networks

In this part, the class shall take a look at concepts such as dynamic equilibria and stable states, trophic networks, keystone species and invasive species and how changes brought about by climate change can cause a disturbance that could cause a shift to a new state. Side by side with this would be a discussion of laws and policies that would allow humans to manage resources given the changes and the uncertainties that come with altered states. B.

Climate change and Phenology

In this part, the class will study how species have historically adapted to changes in the natural environment and how the changes caused by climate change are different in terms of time scales. Changes in phenology shall be looked at and effects such as altered migration and overlap in ranges shall be studied in the context of the carrying capacity of the ecosystem. Policies and laws shall then be reviewed and analyzed in order to see how effective or ineffective they are to respond to these changes. C.

Climate Change and Human health

This part will look into the impact of climate change on human health, particularly how the ecological changes triggered by climate change will affect human health.

Climate Change and the Law Course Description

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This course will provide a basic introduction to the science and economics of climate change, as well as the emerging laws and policies intended to control GHGs. The course will provide students with the opportunity to assess the effectiveness of national and international efforts to date, in both developed and developing countries. The course shall be broken down into a discussion of : I.

Climate Change Science

This module shall introduce the students to the latest findings of the InterGovernmental Panel on Climate Change (IPCC) so that they may appreciate that the uncertainty lies only in the pace and severity of the change. Videos and other materials available in the internet shall be used to expose the students to the different views and opinions on climate change. Studies on the specific impacts of climate change in the Philippines (increasing frequency and severity of extreme weather events, sea level rise, drought and its impact on food production) shall also be explored. II.

International Policy Responses to Climate Change

International policy responses, from the United Nations Framework Convention on Climate Change and the progress of international negotiations shall be studied by looking into the Kyoto Protocol (February 16, 2005), the Bali Roadmap (2007), the 2009 Copenhagen Climate Change Conference, Cancun Climate Change Conference of 2011, Conference of the Parties (COP) 17 and 18. Students shall be grouped into small groups and shall be asked to look into the different aggrupation of nations (Annex 1, Small island nations, Brazil, India and China etc.) and how their respective positions have progressed (or regressed) in the international negotiations. Each group shall then report to the class to defend their group’s position. In addition, the concept of Common But Differentiated Responsibilities (CBDR) shall be critically analyzed. Policies on emissions trading, Clean Development Mechanisms (CDM), and the possibility of resorting to litigation shall be explored. Students will also be given the opportunity to explore how a country like the Philippines can contribute towards arriving at an international consensus on responses to climate change. Local CDM projects shall also be studied to assess the effectiveness of this approach. Students will look into the process of selection and approval of CDM by the designated authority and study the impacts of the projects in the communities. III.

Local responses to Climate Change

In this module, the students will find, study and analyze different local (from community, to City to State to multi-state) responses to Climate change. Princeton economists Pacala and Socolow’s stabilization wedges shall also be introduced in 45

order to help appreciate the responses and develop other possible responses to climate change. IV.

Philippine Response to Climate Change

The students will then look into Republic Act 9729, the National Framework Strategy on Climate Change and the Philippine Strategy on Climate Change Adaptation. Students will find, study and analyze actual results of “climate change mainstreaming” called for by RA 9729 and assess its effectivity. Students shall be asked to write a paper on this topic and evaluate the Philippine’s response to climate change. Adaptation to Climate Change Course Description This course shall provide the students the opportunity to examine the complex issues that adaptation to climate change brings. It will give students insights on how communities and nations can adapt to climate. It will likewise help students appreciate the ethical, technical, financial, social and legal impacts of the various possible approaches to adaptation. The course would cover the following topics: A. Adaptation from resilience to transformation Students will learn the different approaches to adaptation and how the concept of adaptation has progressed from resilience to transformation. B. Limits to Adaptation There are many possible limitations on adaptation measures. Some argue that there are biological and/or natural limits, other assert that there are social limits, others claim that imprecise knowledge about climate change limits our adaptive capability. Regardless of the soundness of these assertions, it is important to consider all possible limitations on adaptive measures of communities or nations so possible options may be considered by lawyers and policy makers. This course shall provide an overview of possible limits to our adaptive capacity. C. The Economics of Climate Change Some authors assert that standard economic theory is insufficient to confront the problem of climate change. This course will look into the possible effects of possible catastrophic changes on standard economic models and shall look into other models that would help determine appropriate adaptation policies. An economist may be tapped to handle this part of the course. D. Adaptation in the Philippines 46

Poorer countries like the Philippines are the most vulnerable to climate change. This course shall look into the specific challenges that the Philippines face including sea level rise, the rise in frequency of extreme weather events, drought and changes in the hydrological cycle. Participants in the program shall have the opportunity to examine the Philippines’ vulnerabilities and analyze the countries’ capacity to adapt. Participants shall explore possible adaptation measures and recommend legal and policy instruments that would allow the country to combine its development and adaptation goals.

LLM THESIS Course Description This is a thesis course intended to provide the students with an opportunity to contribute in enriching Philippine literature in Environmental Law. Students shall be required to write a masteral thesis on topic that could enrich environmental law and practice in the Philippines as a prerequisite to completing the LLM course.

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