ENVIRONMENTAL LAW AND PROCEDURAL RULES

ENVIRONMENTAL LAW AND PROCEDURAL RULES

Antonio G.M. La Via and Josef Leroi L. Garcia

A. Definition

B. Rules of Procedure for Environmental Cases

C. Environmental Laws Covered by the Rules

D. Precautionary Principle 1. Definition 2. Application as a Rule of Evidence 3. Standards for Application

I. CRIMINAL CASES

A. Original and Exclusive Jurisdiction of First Level Courts 1. Violation of Forestry Laws 2. Violation of Fishery Laws 3. Violation of Mining Laws 4. Violation of NIPAS Law 5. Violation of Wildlife Law 6. Violation of Cave Laws 7. Violation of Pollution Laws B. Original and Exclusive Jurisdiction of Second Level Courts 1. Violation of Forestry Laws 2. Violation of Fishery Laws 3. Violation of Mining Laws 4. Violation of Wildlife Law 5. Violation of Cave Laws 6. Violation of Pollution Laws

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C. Arrest 1. Warrantless Arrest 2. Application of Presumption of Regularity to Deputized Individuals 3. Arrest Warrant D. Custody and Disposition of Seized Items 1. Applicability of Rules of Government Agency 2. Applicability of Rules of Procedure for Environmental Cases 3. Documentation of Seized Items 4. Return of Search Warrant or Submission of Report 5. Auction of Seized Items

E. Complaint and Information 1. Who may initiate 2. Filing of Information 3. Special Prosecutor F. Bail 1. Where Filed; Hold Departure Order 2. Conditions for Grant of Bail G. Arraignment and Plea-bargaining 1. Setting of Arraignment; Notices 2. Procedure in Plea-bargaining H. Pre-Trial 1. Preliminary Conference; Purpose 2. How Conducted by the Court 3. Manner of Directing Questions, Admissions and Agreements, and Documentation 4. Pre-trial Order

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I. Trial 1. Continuous Trial; Affidavits in Direct Examination 2. Submission of Memoranda 3. Period to Decide and Dispose of the Case 4. Pro-bono Lawyers J. Civil Action and Liability 1. Institution of Civil Action 2. Award of Damages to Agency for Restoration and Rehabilitation 3. Subsidiary Liability K. Provisional Remedies 1. Attachment 2. EPO and TEPO in Criminal Cases L. Criminal SLAPP Suits 1. Defined 2. SLAPP Suit; Ground for a Motion to Dismiss in a Criminal Case 3. Summary Hearing; Prosecutions and Accused Quantum of Evidence Distinguished 4. Determination by the Court II. CIVIL CASES 1. Primary Jurisdiction of the DENR 2. Doctrine of Primary Jurisdiction Limits Court Jurisdiction 3. Exhaustion of Administrative Remedies; Condition Precedent 4. Non-Observance of Exhaustion of Administrative Remedies May Constitute Forum-Shopping 5. Exceptions to Exhaustion of Administrative Remedies 6. Environment Licenses and Permits are not Contracts Protected by the Non-Impairment and due Process Clauses; Exception 7. Revocation of License or Franchise as an Exercise of Police Power 8. Courts should Stand Clear from Public Policy Activity of Granting Environmental Licenses, Permits and Franchises

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ENVIRONMENTAL LAW AND PROCEDURAL RULES

A. Replevin Suits 1. Courts should dismiss Replevin Suits over Property Seized by DENR under its Administrative Confiscation Powers 2. Judge Demonstrates Ignorance of the Law in Entertaining Replevin Suits 3. Seized and Apprehended Property is in Custodia Legis and Beyond Reach of Replevin 4. Court cannot Hold DENR Officials in Contempt for Failure to Follow Replevin Order; Duty of Sheriff Executing Replevin Order 5. Consent to Be Sued Needed in Replevin Suits Against DENR Officials B. Complaint 1. Who May File 2. Verified Complaint 3. Evidence to be Attached to the Complaint; Form of Affidavits 4. Other Requirements 5. Filing Fees 6. Assignment by Raffle 7. Agency Concerned to be Furnished Complaint C. Environmental Protection Order 1. Definition 2. Temporary Environmental Protection Order (TEPO) 3. Monitoring, Lifting, Exemption from Bond Requirement, and Conversion to Permanent EPO 4. Report to the Supreme Court 5. Prohibition against Injunction D. Summons and Court Processes 1. Who may Effect Service 2. Service of Summons; How Effected

E. Answer 1. Verified Answer 2. Evidence to be Attached to Answer 3. Defenses and Claims 4. Failure to Answer

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F. Pleadings Allowed and Prohibited 1. Allowed Pleadings and Motions 2. Prohibited Pleadings and Motions Prohibited

G. Environmental Class Actions 1. Right to Balanced and Healthful Ecology is an Actionable Right 2. Class Action in Representation of Future Generations Allowed under the Principle of Inter-generational Responsibility 3. Real Parties in Interest and Legal Standing Distinguished; Legal Standing Sufficient in Constitutional Questions Involving Public Interest

H. Citizen Suit 1. Who May File 2. Order to Intervene; Publication 3. Citizen Suits under Specific Laws 4. Deferment on Filing and Legal Fees 5. Relief in Citizen Suit 6. Citizen Suits under the Clean Air Act (Republic Act No. 8749) and the Solid Waste Management Act (Republic Act No. 9003) 7. Citizen Suit to Enforce Right to Clean Air

I. Pre-trial 1. Notice and Schedule 2. Pre-trial Brief 3. Effect of Failure to Comply or File Brief 4. Mediation 5. Preliminary conference 6. Failure to Present Evidence 7. How Conducted 8. Effect of Plaintiffs and Defendants Failure to Appear at Pre-trial Distinguished 9. Minutes 10. Pre-trial Order

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J. Consent Decree 1. Definition 2. Application during Pre-trial

K. Trial 1. Continuous Trial 2. Affidavits in Direct Examination 3. One-day Examination of Witness; Only Oral Offer of Evidence is Allowed 4. Submission for Resolution; Memoranda 5. Period to Try and Decide; Priority of Environmental Cases

L. Civil SLAPP Suits 1. Definition 2. SLAPP as a Defense in Answer; Not Ground in a Motion to Dismiss 3. Summary Hearing 4. Defendants and Plaintiffs Quantum of Evidence Distinguished 5. Relief and Remedy after Determination 6. SLAPP Suits under the Clean Air Act (Republic Act No. 8749) and the Solid Waste Management Act (Republic Act No. 9003)

M. Judgment and Execution 1. Judgments in favor of Environment not Stayed by Appeal 2. Permanent EPO and Continuing Mandamus in Judgment 3. Referral to a Commissioner 4. Return of Writ of Execution

N. Judicial Review of DENR Decisions via Special Civil Actions under Rule 65 1. Review Only in Cases of Grave Abuse of Discretion 2. Instances of Grave Abuse of Discretion in Environmental Administrative Decisions

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III. SPECIAL CIVIL ACTIONS

A. Writ of Kalikasan 1. Nature of the Writ; Who May File 2. Contents of Petition 3. Where to File 4. Exemption from Docket Fees 5. Issuance of the Writ; Service; Return 6. Preliminary Conference and Hearing 7. Prohibited Pleadings and Motions 8. Discovery Measures 9. Contempt 10. Submission for Decision; Memoranda 11. Reliefs upon Judgment

B. Writ of Continuing Mandamus 1. Origin of the Writ 2. Definition 3. Nature of the Writ; Who May File 4. Where to File 5. Exemption from Docket Fees 6. Issuance of the Writ; Service; Comment 7. Summary Hearing or Submission of Memoranda 8. Issuance of TEPO 9. Judgment on the Writ 10. Return of the Writ

IV. FORESTRY

A. Jurisdiction of the DENR 1. FMB Under Direct Control and Supervision of DENR Secretary 2. Court Review of Decisions of the DENR Secretary brought by Special Civil Action 3. Authority of DENR Officers to Examine Books and Access Areas Covered by Licenses and Permits 4. Authority of DENR Officers to Administer Oaths and Take Testimony 5. Authority to Deputize Environment and Natural Resources Officers

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B. Criminal Offenses 1. Illegal Logging 2. Other Offenses 3. Judicial and Administrative Confiscation and Forfeiture

C. Illegal Cutting, Gathering and Possession 1. Three Categories of Acts Punished 2. Two Distinct and Separate Offenses Punished 3. Elements of the Crime of Illegal Cutting, Gathering, Collecting and Removing 4. Ownership not an Essential Element 5. As Compared to Qualified Theft 6. Illegal Possession of Forest Products 7. Documents Required in Possession of Timber and Forest Products 8. Mere Verbal Authority Cannot Legalize Possession 9. Acts Constituting Possession 10. Acts Punished under Presidential Decree No. 705 are Mala Prohibita 11. Timber Defined D. Search and Seizure 1. Warrantless Search of Timber in Moving Vehicles 2. Accountability of Seizure Officer E. Administrative Confiscation 1. Administrative Confiscation Distinct from Judicial Confiscation 2. Administrative Confiscation as Remedy in Case of Release of Conveyance by the Court; Duty of the Court 3. Due Process Requirements in Administrative Confiscation 4. Requirement to Deliver the Accused to the Public Prosecutor Not Applicable in Administrative Confiscation 5. Arrest Procedure in Administrative Confiscation

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F. Arrest and Prosecution 1. Arrest by DENR Official or Philippine National Police 2. Delivery of Arrested Person and Seized Paraphernalia 3. Investigation by Forest Officers and the Philippine National Police 4. Filing of Complaint by Forest Officer and the Philippine National Police 5. How to Commence Prosecution 6. Preliminary Investigation Conducted by Public Prosecutor, Not by Forest Officer 7. Private Offended Party May File Complaint Directly with Public Prosecutor 8. Presidential Decree No. 705 Grants Forest Officers Special, not Exclusive, Authority to Arrest and Investigate Offenses G. Judgment and Conviction 1. Conviction Based on Circumstantial Evidence 2. Value of Lumber not Essential Element 3. Determination of Penalty 4. Judicial Confiscation of the Conveyance Allowed if Owner is Found Guilty

H. Chain Saw Act

V. FISHERIES

A. Coverage

B. Municipal Waters Defined 1. Under the Philippine Fisheries Code of 1998 2. Under the Local Government Code C. Authority over Municipal Waters 1. Municipal and City Governments 2. Nature of Authority 3. Municipal Fishing

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4. Grant of Fishery Privileges 5. Regulation of Fishery Activities Incidental to Power to Grant Fishery Privileges 6. Municipality or City not Liable for Acts of Licensee/Grantee 7. Local Ordinance Banning Shipment of Live Fish not Unconstitutional 8. Classification of Fees 9. Law Enforcement

D. Jurisdiction of DA-BFAR 1. Grant of Fishery Privileges 2. Law Enforcement 3. Authority to Board Fishing Vessels and Examine Record Books 4. Authority to Pursue and Inspect Foreign Vessels for Poaching

E. Illegal Activities

F. Presumptions 1. Presence of Fishing Vessel without Permit 2. Entry of Foreign Fishing Vessel 3. Presence of Explosives, Poisonous Substances, Electro-fishing Devices and Fish Caught with Their Use 4. Presumptions not Unconstitutional 5. Presumptions can be Rebutted by Contradictory Evidence

G. Confiscation and Forfeiture

H. Seizure of Vessels and Equipment 1. Fishing Vessel Defined 2. Warrantless Search and Seizure of Fishing Vessels 3. Warrantless Search and Seizure Incidental to a Lawful Arrest Valid 4. Court cannot Order Release of Fishing Vessel in Custodia Legis of Co-equal Court 5. Court Cannot Order Release of Seized Fishing Paraphernalia upon the Justification that Confiscation Follows Only after Conviction and that the Witnesses are Sufficient for Conviction 6. Seized Fishing Items not Yet Offered in Evidence Remain under Custody and Responsibility of the Prosecution
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I. Seizure of Fish Catch 1. Warrantless Seizure of Paraphernalia Mere Possession of which is Illegal 2. Dissolution of Seizure Warrant by the Court

J. Prosecution 1. Fishing with Explosives and Possession of Explosives Separate and Distinct Offenses 2. Information which does not State Explosives was for Fishing not Fatal 3. Failure to State For Profit in Information Fatal 4. Municipal Fish Wardens as Private Offended Party 5. Ignorance of Poisonous Nature of Substance not a Valid Defense 6. Imposition of Mere Fine on Boat Captain Constitutes Gross Ignorance of the Law 7. Conviction by Final Judgment includes Removal of Illegal Fishing Structure

VI. MINING

A. Coverage 1. Areas Open to Mining 2. Areas Closed to Mining 3. Mining in Government Reservations, Forest Reserves, Forest Lands, Protected Areas B. Authority of the DENR 1. DENR Secretary 2. MGB Director 3. Deputization to Police Mining Activities 4. Power and Duties of Mines Regional Director 5. Role of Mines Regional Director in Mine Pollution 6. Pollution Adjudication Board (PAB) Retains Authority over Mine Pollution; Mines 7. Regional Director has No Adjudicative Powers over Pollution Complaints

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C. DENR-POA-MAB Jurisdiction over Mining Disputes and Issues 1. Panel of Arbitrators and Mines Adjudication Board 2. POA-MAB and DENR Secretary Jurisdiction Distinguished 3. DENR Secretary, not POA-MAB, has Authority to Cancel Contracts 4. Voluntary Arbitration Suspends POA-MAB Jurisdiction 5. Appeal from the MAB 6. Appeal from the MAB to Court of Appeals and Appeal from the DENR Secretary to the Office of the President Distinguished D. Jurisdiction of Trial Courts 1. Courts Retain Jurisdiction over Civil Mining Disputes 2. Administrative and Civil Mining Disputes Distinguished 3. Cases Where Trial Courts Have Jurisdiction 4. Cases Where Trial Courts Have No Jurisdiction E. Licenses and Permits issued by the DENR 1. Mineral Agreements 2. FTAAs Not Unconstitutional 3. Nature of DENR Secretarys Power to Cancel FTAAs 4. Nature of Locators Right 5. Rights of Surface Owner 6. Other Permits F. Permits Issued by the Provincial Governor

G. Small-Scale Mining

H. Criminal Offenses 1. Essential Element in ECC Violation under Mining Act 2. Offense not Proven under Mining Act May Still be Prosecuted under Other Environmental Laws 3. Mala In Se Felony Cannot Absorb Mala Prohibita Crimes

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VII. PROTECTED AREAS A. Definition

B. Components

C. Management and Administration

D. Law Enforcement

E. Protected Area Superintendent

F. Prohibited Acts and Penalties

VIII. WILDLIFE RESOURCES A. Coverage B. Jurisdiction of the DENR C. Applicability of Related Laws D. Regulated Activities E. Prohibited Acts F. Seizure, Forfeiture and Fines G. Law Enforcement

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IX. CAVE RESOURCES A. Coverage B. Implementing Agencies C. Other Applicable Laws D. Regulated Activities E. Prohibited Acts F. Administrative Seizure and Confiscation G. Law Enforcement X. POLLUTION AND ENVIRONMENTAL MANAGEMENT

A. Pollution Adjudication Board (PAB) 1. Pollution Adjudication Board (PAB) has Jurisdiction over Pollution Cases 2. Exhaustion of Administrative Remedies in Pollution Cases; Effect of Non-observance 3. Jurisdiction over Air Pollution 4. Exclusive Authority to Determine the Existence of "Pollution" before Criminal Prosecution of Violations 5. Filing of Criminal Cases for Gross Violations under the Clean Water Act and Clean Air Act 6. Power to Issue Ex Parte Cease and Desist Orders 7. Proper Remedy from PAB Decision is Appeal to the Court of Appeals 8. PAB Retains Jurisdiction over Mining Pollution B. DENR Authority to Enter Premises

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C. Jurisdiction of Other Agencies in Pollution Cases 1. Laguna Lake Development Authority 2. Traffic Adjudication Service 3. Coast Guard

D. Environmental Impact Statement System 1. Definition 2. Initial Environmental Examination; Requisites 3. Officials Act of Granting ECC must be Devoid of Any Color of Authority to Allow 4. Cancellation through Judicial Action without Exhausting Administrative Remedies 5. ECC Subject to Cancellation for Non-Compliance through Administrative, not Judicial, Proceedings 6. Duties of PENRO 7. RED not Bound to Monitor Environmental Projects E. Other Jurisprudence 1. Incineration not Banned under Clean Air Act 2. Establishment of Landfills Requires Consultation 3. Trade Secrets Maintained under Republic Act No. 6969

APPENDIX A: Procedure in Administrative Seizure and Confiscation under Presidential Decree No. 705 (DENR DAO 97-32) 1. Apprehending Officers 2. Seizure Officers 3. Apprehension 4. Seizure 5. Confiscation 6. Abandoned Forest Products 7. Temporary Release of Conveyances

APPENDIX B: Seizure of Fish Catch (DA-BFAR FAO 206, s. 2001)

APPENDIX C: Search and Seizure Procedure in Poaching Cases (DA-BFAR FAO 200, s. 2000)

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