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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. Nos. 171947-48 February 15, 2011

METROPOLITAN MANILA DEVELOPMENT AUTHORITY, DEPARTMENT OF ENVIRONMENT AND


NATURAL RESOURCES, DEPARTMENT OF EDUCATION, CULTURE AND SPORTS,1 DEPARTMENT OF
HEALTH, DEPARTMENT OF AGRICULTURE, DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS,
DEPARTMENT OF BUDGET AND MANAGEMENT, PHILIPPINE COAST GUARD, PHILIPPINE NATIONAL
POLICE MARITIME GROUP, and DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, Petitioners,
vs.
CONCERNED RESIDENTS OF MANILA BAY, represented and joined by DIVINA V. ILAS, SABINIANO
ALBARRACIN, MANUEL SANTOS, JR., DINAH DELA PEA, PAUL DENNIS QUINTERO, MA. VICTORIA
LLENOS, DONNA CALOZA, FATIMA QUITAIN, VENICE SEGARRA, FRITZIE TANGKIA, SARAH JOELLE
LINTAG, HANNIBAL AUGUSTUS BOBIS, FELIMON SANTIAGUEL, and JAIME AGUSTIN R.
OPOSA, Respondents.

RESOLUTION

VELASCO, JR., J.:

On December 18, 2008, this Court rendered a Decision in G.R. Nos. 171947-48 ordering petitioners to clean up,
rehabilitate and preserve Manila Bay in their different capacities. The fallo reads:

WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA in CA-G.R. CV No. 76528
and SP No. 74944 and the September 13, 2002 Decision of the RTC in Civil Case No. 1851-99 are AFFIRMED
but with MODIFICATIONS in view of subsequent developments or supervening events in the case. The fallo of
the RTC Decision shall now read:

WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-government agencies to


clean up, rehabilitate, and preserve Manila Bay, and restore and maintain its waters to SB level (Class B sea
waters per Water Classification Tables under DENR Administrative Order No. 34 [1990]) to make them fit for
swimming, skin-diving, and other forms of contact recreation.

In particular:

(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency responsible for the
conservation, management, development, and proper use of the countrys environment and natural
resources, and Sec. 19 of RA 9275, designating the DENR as the primary government agency
responsible for its enforcement and implementation, the DENR is directed to fully implement its
Operational Plan for the Manila Bay Coastal Strategy for the rehabilitation, restoration, and conservation
of the Manila Bay at the earliest possible time. It is ordered to call regular coordination meetings with
concerned government departments and agencies to ensure the successful implementation of the
aforesaid plan of action in accordance with its indicated completion schedules.

(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec. 25 of the Local
Government Code of 1991, the DILG, in exercising the Presidents power of general supervision and its
duty to promulgate guidelines in establishing waste management programs under Sec. 43 of the
Philippine Environment Code (PD 1152), shall direct all LGUs in Metro Manila, Rizal, Laguna, Cavite,
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Bulacan, Pampanga, and Bataan to inspect all factories, commercial establishments, and private homes
along the banks of the major river systems in their respective areas of jurisdiction, such as but not limited
to the Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the Navotas-
Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay
(Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and waterways that
eventually discharge water into the Manila Bay; and the lands abutting the bay, to determine whether
they have wastewater treatment facilities or hygienic septic tanks as prescribed by existing laws,
ordinances, and rules and regulations. If none be found, these LGUs shall be ordered to require non-
complying establishments and homes to set up said facilities or septic tanks within a reasonable time to
prevent industrial wastes, sewage water, and human wastes from flowing into these rivers, waterways,
esteros, and the Manila Bay, under pain of closure or imposition of fines and other sanctions.

(3) As mandated by Sec. 8 of RA 9275, the MWSS is directed to provide, install, operate, and maintain
the necessary adequate waste water treatment facilities in Metro Manila, Rizal, and Cavite where
needed at the earliest possible time.

(4) Pursuant to RA 9275, the LWUA, through the local water districts and in coordination with the DENR,
is ordered to provide, install, operate, and maintain sewerage and sanitation facilities and the efficient
and safe collection, treatment, and disposal of sewage in the provinces of Laguna, Cavite, Bulacan,
Pampanga, and Bataan where needed at the earliest possible time.

(5) Pursuant to Sec. 65 of RA 8550, the DA, through the BFAR, is ordered to improve and restore the
marine life of the Manila Bay. It is also directed to assist the LGUs in Metro Manila, Rizal, Cavite,
Laguna, Bulacan, Pampanga, and Bataan in developing, using recognized methods, the fisheries and
aquatic resources in the Manila Bay.

(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group, in accordance with
Sec. 124 of RA 8550, in coordination with each other, shall apprehend violators of PD 979, RA 8550, and
other existing laws and regulations designed to prevent marine pollution in the Manila Bay.

(7) Pursuant to Secs. 2 and 6-c of EO 513 and the International Convention for the Prevention of
Pollution from Ships, the PPA is ordered to immediately adopt such measures to prevent the discharge
and dumping of solid and liquid wastes and other ship-generated wastes into the Manila Bay waters from
vessels docked at ports and apprehend the violators.

(8) The MMDA, as the lead agency and implementor of programs and projects for flood control projects
and drainage services in Metro Manila, in coordination with the DPWH, DILG, affected LGUs, PNP
Maritime Group, Housing and Urban Development Coordinating Council (HUDCC), and other agencies,
shall dismantle and remove all structures, constructions, and other encroachments established or built in
violation of RA 7279, and other applicable laws along the Pasig-Marikina-San Juan Rivers, the NCR
(Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting
waterways and esteros in Metro Manila. The DPWH, as the principal implementor of programs and
projects for flood control services in the rest of the country more particularly in Bulacan, Bataan,
Pampanga, Cavite, and Laguna, in coordination with the DILG, affected LGUs, PNP Maritime Group,
HUDCC, and other concerned government agencies, shall remove and demolish all structures,
constructions, and other encroachments built in breach of RA 7279 and other applicable laws along the
Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the
Laguna De Bay, and other rivers, connecting waterways, and esteros that discharge wastewater into the
Manila Bay.

In addition, the MMDA is ordered to establish, operate, and maintain a sanitary landfill, as prescribed by
RA 9003, within a period of one (1) year from finality of this Decision. On matters within its territorial
jurisdiction and in connection with the discharge of its duties on the maintenance of sanitary landfills and

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like undertakings, it is also ordered to cause the apprehension and filing of the appropriate criminal
cases against violators of the respective penal provisions of RA 9003, Sec. 27 of RA 9275 (the Clean
Water Act), and other existing laws on pollution.

(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275, within one (1) year from
finality of this Decision, determine if all licensed septic and sludge companies have the proper facilities
for the treatment and disposal of fecal sludge and sewage coming from septic tanks. The DOH shall give
the companies, if found to be non-complying, a reasonable time within which to set up the necessary
facilities under pain of cancellation of its environmental sanitation clearance.

(10) Pursuant to Sec. 53 of PD 1152, Sec. 118 of RA 8550, and Sec. 56 of RA 9003, the DepEd shall
integrate lessons on pollution prevention, waste management, environmental protection, and like
subjects in the school curricula of all levels to inculcate in the minds and hearts of students and, through
them, their parents and friends, the importance of their duty toward achieving and maintaining a
balanced and healthful ecosystem in the Manila Bay and the entire Philippine archipelago.

(11) The DBM shall consider incorporating an adequate budget in the General Appropriations Act of 2010
and succeeding years to cover the expenses relating to the cleanup, restoration, and preservation of the
water quality of the Manila Bay, in line with the countrys development objective to attain economic
growth in a manner consistent with the protection, preservation, and revival of our marine waters.

(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG, PNP
Maritime Group, DILG, and also of MWSS, LWUA, and PPA, in line with the principle of "continuing
mandamus," shall, from finality of this Decision, each submit to the Court a quarterly progressive report
of the activities undertaken in accordance with this Decision.

SO ORDERED.

The government agencies did not file any motion for reconsideration and the Decision became final in January
2009.

The case is now in the execution phase of the final and executory December 18, 2008 Decision. The Manila Bay
Advisory Committee was created to receive and evaluate the quarterly progressive reports on the activities
undertaken by the agencies in accordance with said decision and to monitor the execution phase.

In the absence of specific completion periods, the Committee recommended that time frames be set for the
agencies to perform their assigned tasks. This may be viewed as an encroachment over the powers and
functions of the Executive Branch headed by the President of the Philippines.

This view is misplaced.

The issuance of subsequent resolutions by the Court is simply an exercise of judicial power under Art. VIII of the
Constitution, because the execution of the Decision is but an integral part of the adjudicative function of the
Court. None of the agencies ever questioned the power of the Court to implement the December 18, 2008
Decision nor has any of them raised the alleged encroachment by the Court over executive functions.

While additional activities are required of the agencies like submission of plans of action, data or status reports,
these directives are but part and parcel of the execution stage of a final decision under Rule 39 of the Rules of
Court. Section 47 of Rule 39 reads:

Section 47. Effect of judgments or final orders.The effect of a judgment or final order rendered by a court of
the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows:

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xxxx

(c) In any other litigation between the same parties of their successors in interest, that only is deemed to have
been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or
which was actually and necessarily included therein or necessary thereto. (Emphasis supplied.)

It is clear that the final judgment includes not only what appears upon its face to have been so adjudged but also
those matters "actually and necessarily included therein or necessary thereto." Certainly, any activity that is
needed to fully implement a final judgment is necessarily encompassed by said judgment.

Moreover, the submission of periodic reports is sanctioned by Secs. 7 and 8, Rule 8 of the Rules of Procedure
for Environmental cases:

Sec. 7. Judgment.If warranted, the court shall grant the privilege of the writ of continuing mandamus requiring
respondent to perform an act or series of acts until the judgment is fully satisfied and to grant such other reliefs
as may be warranted resulting from the wrongful or illegal acts of the respondent. The court shall require the
respondent to submit periodic reports detailing the progress and execution of the judgment, and the court may,
by itself or through a commissioner or the appropriate government agency, evaluate and monitor compliance.
The petitioner may submit its comments or observations on the execution of the judgment.

Sec. 8. Return of the writ.The periodic reports submitted by the respondent detailing compliance with the
judgment shall be contained in partial returns of the writ. Upon full satisfaction of the judgment, a final return of
the writ shall be made to the court by the respondent. If the court finds that the judgment has been fully
implemented, the satisfaction of judgment shall be entered in the court docket. (Emphasis supplied.)

With the final and executory judgment in MMDA, the writ of continuing mandamus issued in MMDA means that
until petitioner-agencies have shown full compliance with the Courts orders, the Court exercises continuing
jurisdiction over them until full execution of the judgment.

There being no encroachment over executive functions to speak of, We shall now proceed to the
recommendation of the Manila Bay Advisory Committee.

Several problems were encountered by the Manila Bay Advisory Committee. 2 An evaluation of the quarterly
progressive reports has shown that (1) there are voluminous quarterly progressive reports that are being
submitted; (2) petitioner-agencies do not have a uniform manner of reporting their cleanup, rehabilitation and
preservation activities; (3) as yet no definite deadlines have been set by petitioner DENR as to petitioner-
agencies timeframe for their respective duties; (4) as of June 2010 there has been a change in leadership in
both the national and local levels; and (5) some agencies have encountered difficulties in complying with the
Courts directives.

In order to implement the afore-quoted Decision, certain directives have to be issued by the Court to address the
said concerns.

Acting on the recommendation of the Manila Bay Advisory Committee, the Court hereby resolves to ORDER the
following:

(1) The Department of Environment and Natural Resources (DENR), as lead agency in the Philippine Clean
Water Act of 2004, shall submit to the Court on or before June 30, 2011 the updated Operational Plan for the
Manila Bay Coastal Strategy.

The DENR is ordered to submit summarized data on the overall quality of Manila Bay waters for all four quarters
of 2010 on or before June 30, 2011.

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The DENR is further ordered to submit the names and addresses of persons and companies in Metro Manila,
Rizal, Laguna, Cavite, Bulacan, Pampanga and Bataan that generate toxic and hazardous waste on or before
September 30, 2011.

(2) On or before June 30, 2011, the Department of the Interior and Local Government (DILG) shall order the
Mayors of all cities in Metro Manila; the Governors of Rizal, Laguna, Cavite, Bulacan, Pampanga and Bataan;
and the Mayors of all the cities and towns in said provinces to inspect all factories, commercial establishments
and private homes along the banks of the major river systemssuch as but not limited to the Pasig-Marikina-
San Juan Rivers, the National Capital Region (Paranaque-Zapote, Las Pinas) Rivers, the Navotas-Malabon-
Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the
Imus (Cavite) River, and the Laguna De Bayand other minor rivers and waterways within their jurisdiction that
eventually discharge water into the Manila Bay and the lands abutting it, to determine if they have wastewater
treatment facilities and/or hygienic septic tanks, as prescribed by existing laws, ordinances, rules and
regulations. Said local government unit (LGU) officials are given up to September 30, 2011 to finish the
inspection of said establishments and houses.

In case of non-compliance, the LGU officials shall take appropriate action to ensure compliance by non-
complying factories, commercial establishments and private homes with said law, rules and regulations requiring
the construction or installment of wastewater treatment facilities or hygienic septic tanks.

The aforementioned governors and mayors shall submit to the DILG on or before December 31, 2011 their
respective compliance reports which will contain the names and addresses or offices of the owners of all the
non-complying factories, commercial establishments and private homes, copy furnished the concerned
environmental agency, be it the local DENR office or the Laguna Lake Development Authority.

The DILG is required to submit a five-year plan of action that will contain measures intended to ensure
compliance of all non-complying factories, commercial establishments, and private homes.

On or before June 30, 2011, the DILG and the mayors of all cities in Metro Manila shall consider providing land
for the wastewater facilities of the Metropolitan Waterworks and Sewerage System (MWSS) or its
concessionaires (Maynilad and Manila Water, Inc.) within their respective jurisdictions.

(3) The MWSS shall submit to the Court on or before June 30, 2011 the list of areas in Metro Manila, Rizal and
Cavite that do not have the necessary wastewater treatment facilities. Within the same period, the
concessionaires of the MWSS shall submit their plans and projects for the construction of wastewater treatment
facilities in all the aforesaid areas and the completion period for said facilities, which shall not go beyond 2037.

On or before June 30, 2011, the MWSS is further required to have its two concessionaires submit a report on the
amount collected as sewerage fees in their respective areas of operation as of December 31, 2010.

(4) The Local Water Utilities Administration is ordered to submit on or before September 30, 2011 its plan to
provide, install, operate and maintain sewerage and sanitation facilities in said cities and towns and the
completion period for said works, which shall be fully implemented by December 31, 2020.

(5) The Department of Agriculture (DA), through the Bureau of Fisheries and Aquatic Resources, shall submit to
the Court on or before June 30, 2011 a report on areas in Manila Bay where marine life has to be restored or
improved and the assistance it has extended to the LGUs in Metro Manila, Rizal, Cavite, Laguna, Bulacan,
Pampanga and Bataan in developing the fisheries and aquatic resources in Manila Bay. The report shall contain
monitoring data on the marine life in said areas. Within the same period, it shall submit its five-year plan to
restore and improve the marine life in Manila Bay, its future activities to assist the aforementioned LGUs for that
purpose, and the completion period for said undertakings.

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The DA shall submit to the Court on or before September 30, 2011 the baseline data as of September 30, 2010
on the pollution loading into the Manila Bay system from agricultural and livestock sources.

(6) The Philippine Ports Authority (PPA) shall incorporate in its quarterly reports the list of violators it has
apprehended and the status of their cases. The PPA is further ordered to include in its report the names, make
and capacity of the ships that dock in PPA ports. The PPA shall submit to the Court on or before June 30, 2011
the measures it intends to undertake to implement its compliance with paragraph 7 of the dispositive portion of
the MMDA Decision and the completion dates of such measures.

The PPA should include in its report the activities of its concessionaire that collects and disposes of the solid and
liquid wastes and other ship-generated wastes, which shall state the names, make and capacity of the ships
serviced by it since August 2003 up to the present date, the dates the ships docked at PPA ports, the number of
days the ship was at sea with the corresponding number of passengers and crew per trip, the volume of solid,
liquid and other wastes collected from said ships, the treatment undertaken and the disposal site for said wastes.

(7) The Philippine National Police (PNP) Maritime Group shall submit on or before June 30, 2011 its five-year
plan of action on the measures and activities it intends to undertake to apprehend the violators of Republic Act
No. (RA) 8550 or the Philippine Fisheries Code of 1998 and other pertinent laws, ordinances and regulations to
prevent marine pollution in Manila Bay and to ensure the successful prosecution of violators.

The Philippine Coast Guard shall likewise submit on or before June 30, 2011 its five-year plan of action on the
measures and activities they intend to undertake to apprehend the violators of Presidential Decree No. 979 or
the Marine Pollution Decree of 1976 and RA 9993 or the Philippine Coast Guard Law of 2009 and other pertinent
laws and regulations to prevent marine pollution in Manila Bay and to ensure the successful prosecution of
violators.

(8) The Metropolitan Manila Development Authority (MMDA) shall submit to the Court on or before June 30, 2011
the names and addresses of the informal settlers in Metro Manila who, as of December 31, 2010, own and
occupy houses, structures, constructions and other encroachments established or built along the Pasig-
Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-
Tenejeros Rivers, and connecting waterways and esteros, in violation of RA 7279 and other applicable laws. On
or before June 30, 2011, the MMDA shall submit its plan for the removal of said informal settlers and the
demolition of the aforesaid houses, structures, constructions and encroachments, as well as the completion
dates for said activities, which shall be fully implemented not later than December 31, 2015.

The MMDA is ordered to submit a status report, within thirty (30) days from receipt of this Resolution, on the
establishment of a sanitary landfill facility for Metro Manila in compliance with the standards under RA 9003 or
the Ecological Solid Waste Management Act.

On or before June 30, 2011, the MMDA shall submit a report of the location of open and controlled dumps in
Metro Manila whose operations are illegal after February 21, 2006,3 pursuant to Secs. 36 and 37 of RA 9003,
and its plan for the closure of these open and controlled dumps to be accomplished not later than December 31,
2012. Also, on or before June 30, 2011, the DENR Secretary, as Chairperson of the National Solid Waste
Management Commission (NSWMC), shall submit a report on the location of all open and controlled dumps in
Rizal, Cavite, Laguna, Bulacan, Pampanga and Bataan.

On or before June 30, 2011, the DENR Secretary, in his capacity as NSWMC Chairperson, shall submit a report
on whether or not the following landfills strictly comply with Secs. 41 and 42 of RA 9003 on the establishment
and operation of sanitary landfills, to wit:

National Capital Region

1. Navotas SLF (PhilEco), Brgy. Tanza (New Site), Navotas City


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2. Payatas Controlled Dumpsite, Barangay Payatas, Quezon City

Region III

3. Sitio Coral, Brgy. Matictic, Norzagaray, Bulacan

4. Sitio Tiakad, Brgy. San Mateo, Norzagaray, Bulacan

5. Brgy. Minuyan, San Jose del Monte City, Bulacan

6. Brgy. Mapalad, Santa Rosa, Nueva Ecija

7. Sub-zone Kalangitan, Clark Capas, Tarlac Special Economic Zone

Region IV-A

8. Kalayaan (Longos), Laguna

9. Brgy. Sto. Nino, San Pablo City, Laguna

10. Brgy. San Antonio (Pilotage SLF), San Pedro, Laguna

11. Morong, Rizal

12. Sitio Lukutan, Brgy. San Isidro, Rodriguez (Montalban), Rizal (ISWIMS)

13. Brgy. Pintong Bukawe, San Mateo, Rizal (SMSLFDC)

On or before June 30, 2011, the MMDA and the seventeen (17) LGUs in Metro Manila are ordered to jointly
submit a report on the average amount of garbage collected monthly per district in all the cities in Metro Manila
from January 2009 up to December 31, 2010 vis--vis the average amount of garbage disposed monthly in
landfills and dumpsites. In its quarterly report for the last quarter of 2010 and thereafter, MMDA shall report on
the apprehensions for violations of the penal provisions of RA 9003, RA 9275 and other laws on pollution for the
said period.

On or before June 30, 2011, the DPWH and the LGUs in Rizal, Laguna, Cavite, Bulacan, Pampanga, and
Bataan shall submit the names and addresses of the informal settlers in their respective areas who, as of
September 30, 2010, own or occupy houses, structures, constructions, and other encroachments built along the
Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna
de Bay, and other rivers, connecting waterways and esteros that discharge wastewater into the Manila Bay, in
breach of RA 7279 and other applicable laws. On or before June 30, 2011, the DPWH and the aforesaid LGUs
shall jointly submit their plan for the removal of said informal settlers and the demolition of the aforesaid
structures, constructions and encroachments, as well as the completion dates for such activities which shall be
implemented not later than December 31, 2012.

(9) The Department of Health (DOH) shall submit to the Court on or before June 30, 2011 the names and
addresses of the owners of septic and sludge companies including those that do not have the proper facilities for
the treatment and disposal of fecal sludge and sewage coming from septic tanks.

The DOH shall implement rules and regulations on Environmental Sanitation Clearances and shall require
companies to procure a license to operate from the DOH.

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The DOH and DENR-Environmental Management Bureau shall develop a toxic and hazardous waste
management system by June 30, 2011 which will implement segregation of hospital/toxic/hazardous wastes and
prevent mixing with municipal solid waste.

On or before June 30, 2011, the DOH shall submit a plan of action to ensure that the said companies have
proper disposal facilities and the completion dates of compliance. 1avvphi1

(10) The Department of Education (DepEd) shall submit to the Court on or before May 31, 2011 a report on the
specific subjects on pollution prevention, waste management, environmental protection, environmental laws and
the like that it has integrated into the school curricula in all levels for the school year 2011-2012.

On or before June 30, 2011, the DepEd shall also submit its plan of action to ensure compliance of all the
schools under its supervision with respect to the integration of the aforementioned subjects in the school
curricula which shall be fully implemented by June 30, 2012.

(11) All the agencies are required to submit their quarterly reports electronically using the forms below. The
agencies may add other key performance indicators that they have identified.

SO ORDERED.

PRESBITERO J. VELASCO, JR.


Associate Justice

574 SCRA 661 Political Law Ministerial vs Discretionary Functions Mandamus

Constitutional Law Right to a Healthful Ecology

In 1999, the Concerned Residents of Manila Bay (CROMB) filed an action for mandamus to compel the
Metropolitan Manila Development Authority (MMDA) and other government agencies to clean up the Manila Bay.
CROMB argued that the environmental state of the Manila Bay is already dangerous to their health and the
inaction of MMDA and the other concerned government agencies violates their rights to life, health, and a
balanced ecology guaranteed by the Constitution. CROMB also averred under the Environmental Code, it is
MMDAs duty to clean up the Manila Bay.

The trial court agreed with CROMB and ordered MMDA et al to clean up the Manila Bay. MMDA assailed the
decision on the ground that MMDAs duty under the Environmental Code is merely a discretionary duty hence it
cannot be compelled by mandamus. Further, MMDA argued that the RTCs order was for a general clean up of
the Manila Bay yet under the Environmental Code, MMDA was only tasked to attend to specific incidents of
pollution and not to undertake a massive clean up such as that ordered by the court.

ISSUE: Whether or not MMDA may be compelled by mandamus to clean up Manila Bay.

HELD: Yes. It is true that in order for MMDA to implement laws like the Environmental Code, the process of
implementing usually involves the exercise of discretion i.e., where to set up landfills. But this does not mean
that their function or mandate under the law is already discretionary. Looking closer, MMDAs function to alleviate
the problem on solid and liquid waste disposal problems is a ministerial function. In short, MMDA does not have
the discretion to whether or not alleviate the garbage disposal problem in Metro Manila, particularly in the Manila
Bay area. While the implementation of the MMDAs mandated tasks may entail a decision-making process, the
enforcement of the law or the very act of doing what the law exacts to be done is ministerial in nature and may
be compelled by mandamus.

Anent the issue on whether or not MMDAs task under the Environmental Code involves a general clean up, the
Supreme Court ruled that MMDAs mandate under the Environmental Code is to perform cleaning in general and
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not just to attend to specific incidents of pollution. Hence, MMDA, together with the other government agencies,
must act to clean up the Manila Bay as ordered by the RTC.

Republic of the Philippines


SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 156052 March 7, 2007

SOCIAL JUSTICE SOCIETY (SJS), VLADIMIR ALARIQUE T. CABIGAO, and BONIFACIO S.


TUMBOKON, Petitioners,
vs.
HON. JOSE L. ATIENZA, JR., in his capacity as Mayor of the City of Manila, Respondent.

DECISION

CORONA, J.:

In this original petition for mandamus,1 petitioners Social Justice Society (SJS), Vladimir Alarique T. Cabigao and
Bonifacio S. Tumbokon seek to compel respondent Hon. Jose L. Atienza, Jr., mayor of the City of Manila, to
enforce Ordinance No. 8027.

The antecedents are as follows.

On November 20, 2001, the Sangguniang Panlungsod of Manila enacted Ordinance No. 8027.2 Respondent
mayor approved the ordinance on November 28, 2001.3 It became effective on December 28, 2001, after its
publication.4

Ordinance No. 8027 was enacted pursuant to the police power delegated to local government units, a principle
described as the power inherent in a government to enact laws, within constitutional limits, to promote the order,
safety, health, morals and general welfare of the society.5 This is evident from Sections 1 and 3 thereof which
state:

SECTION 1. For the purpose of promoting sound urban planning and ensuring health, public safety, and general
welfare of the residents of Pandacan and Sta. Ana as well as its adjoining areas, the land use of [those] portions
of land bounded by the Pasig River in the north, PNR Railroad Track in the east, Beata St. in the south,
Palumpong St. in the southwest, and Estero de Pancacan in the west[,] PNR Railroad in the northwest area,
Estero de Pandacan in the [n]ortheast, Pasig River in the southeast and Dr. M.L. Carreon in the southwest. The
area of Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero St., Mayo 28 St., and F. Manalo Street,
are hereby reclassified from Industrial II to Commercial I.

xxx xxx xxx

SEC. 3. Owners or operators of industries and other businesses, the operation of which are no longer permitted
under Section 1 hereof, are hereby given a period of six (6) months from the date of effectivity of this Ordinance
within which to cease and desist from the operation of businesses which are hereby in consequence, disallowed.

Ordinance No. 8027 reclassified the area described therein from industrial to commercial and directed the
owners and operators of businesses disallowed under Section 1 to cease and desist from operating their

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businesses within six months from the date of effectivity of the ordinance. Among the businesses situated in the
area are the so-called "Pandacan Terminals" of the oil companies Caltex (Philippines), Inc., Petron Corporation
and Pilipinas Shell Petroleum Corporation.

However, on June 26, 2002, the City of Manila and the Department of Energy (DOE) entered into a
memorandum of understanding (MOU)6 with the oil companies in which they agreed that "the scaling down of the
Pandacan Terminals [was] the most viable and practicable option." Under the MOU, the oil companies agreed to
perform the following:

Section 1. - Consistent with the objectives stated above, the OIL COMPANIES shall, upon signing of this MOU,
undertake a program to scale down the Pandacan Terminals which shall include, among others, the immediate
removal/decommissioning process of TWENTY EIGHT (28) tanks starting with the LPG spheres and the
commencing of works for the creation of safety buffer and green zones surrounding the Pandacan Terminals. xxx

Section 2. Consistent with the scale-down program mentioned above, the OIL COMPANIES shall establish
joint operations and management, including the operation of common, integrated and/or shared facilities,
consistent with international and domestic technical, safety, environmental and economic considerations and
standards. Consequently, the joint operations of the OIL COMPANIES in the Pandacan Terminals shall be limited
to the common and integrated areas/facilities. A separate agreement covering the commercial and operational
terms and conditions of the joint operations, shall be entered into by the OIL COMPANIES.

Section 3. - The development and maintenance of the safety and green buffer zones mentioned therein, which
shall be taken from the properties of the OIL COMPANIES and not from the surrounding communities, shall be
the sole responsibility of the OIL COMPANIES.

The City of Manila and the DOE, on the other hand, committed to do the following:

Section 1. - The City Mayor shall endorse to the City Council this MOU for its appropriate action with the view of
implementing the spirit and intent thereof.

Section 2. - The City Mayor and the DOE shall, consistent with the spirit and intent of this MOU, enable the OIL
COMPANIES to continuously operate in compliance with legal requirements, within the limited area resulting
from the joint operations and the scale down program.

Section 3. - The DOE and the City Mayor shall monitor the OIL COMPANIES compliance with the provisions of
this MOU.

Section 4. - The CITY OF MANILA and the national government shall protect the safety buffer and green zones
and shall exert all efforts at preventing future occupation or encroachment into these areas by illegal settlers and
other unauthorized parties.

The Sangguniang Panlungsod ratified the MOU in Resolution No. 97.7 In the same resolution,
the Sanggunian declared that the MOU was effective only for a period of six months starting July 25,
2002.8 Thereafter, on January 30, 2003, the Sanggunian adopted Resolution No. 139 extending the validity of
Resolution No. 97 to April 30, 2003 and authorizing Mayor Atienza to issue special business permits to the oil
companies. Resolution No. 13, s. 2003 also called for a reassessment of the ordinance. 10

Meanwhile, petitioners filed this original action for mandamus on December 4, 2002 praying that Mayor Atienza
be compelled to enforce Ordinance No. 8027 and order the immediate removal of the terminals of the oil
companies.11

The issues raised by petitioners are as follows:

10
1. whether respondent has the mandatory legal duty to enforce Ordinance No. 8027 and order the
removal of the Pandacan Terminals, and

2. whether the June 26, 2002 MOU and the resolutions ratifying it can amend or repeal Ordinance No.
8027.12

Petitioners contend that respondent has the mandatory legal duty, under Section 455 (b) (2) of the Local
Government Code (RA 7160),13 to enforce Ordinance No. 8027 and order the removal of the Pandacan
Terminals of the oil companies. Instead, he has allowed them to stay.

Respondents defense is that Ordinance No. 8027 has been superseded by the MOU and the
resolutions.14However, he also confusingly argues that the ordinance and MOU are not inconsistent with each
other and that the latter has not amended the former. He insists that the ordinance remains valid and in full force
and effect and that the MOU did not in any way prevent him from enforcing and implementing it. He maintains
that the MOU should be considered as a mere guideline for its full implementation. 15

Under Rule 65, Section 316 of the Rules of Court, a petition for mandamus may be filed when any tribunal,
corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust or station. Mandamus is an extraordinary writ that is employed to
compel the performance, when refused, of a ministerial duty that is already imposed on the respondent and
there is no other plain, speedy and adequate remedy in the ordinary course of law. The petitioner should have a
well-defined, clear and certain legal right to the performance of the act and it must be the clear and imperative
duty of respondent to do the act required to be done. 17

Mandamus will not issue to enforce a right, or to compel compliance with a duty, which is questionable or over
which a substantial doubt exists. The principal function of the writ of mandamus is to command and to expedite,
not to inquire and to adjudicate; thus, it is neither the office nor the aim of the writ to secure a legal right but to
implement that which is already established. Unless the right to the relief sought is unclouded, mandamus will
not issue.18

To support the assertion that petitioners have a clear legal right to the enforcement of the ordinance, petitioner
SJS states that it is a political party registered with the Commission on Elections and has its offices in Manila. It
claims to have many members who are residents of Manila. The other petitioners, Cabigao and Tumbokon, are
allegedly residents of Manila.

We need not belabor this point. We have ruled in previous cases that when a mandamus proceeding concerns a
public right and its object is to compel a public duty, the people who are interested in the execution of the laws
are regarded as the real parties in interest and they need not show any specific interest. 19 Besides, as residents
of Manila, petitioners have a direct interest in the enforcement of the citys ordinances. Respondent never
questioned the right of petitioners to institute this proceeding.

On the other hand, the Local Government Code imposes upon respondent the duty, as city mayor, to "enforce all
laws and ordinances relative to the governance of the city.">20 One of these is Ordinance No. 8027. As the chief
executive of the city, he has the duty to enforce Ordinance No. 8027 as long as it has not been repealed by
the Sanggunian or annulled by the courts.21 He has no other choice. It is his ministerial duty to do so.
In Dimaporo v. Mitra, Jr.,22 we stated the reason for this:

These officers cannot refuse to perform their duty on the ground of an alleged invalidity of the statute imposing
the duty. The reason for this is obvious. It might seriously hinder the transaction of public business if these
officers were to be permitted in all cases to question the constitutionality of statutes and ordinances imposing
duties upon them and which have not judicially been declared unconstitutional. Officers of the government from
the highest to the lowest are creatures of the law and are bound to obey it. 23

11
The question now is whether the MOU entered into by respondent with the oil companies and the subsequent
resolutions passed by the Sanggunian have made the respondents duty to enforce Ordinance No. 8027
doubtful, unclear or uncertain. This is also connected to the second issue raised by petitioners, that is, whether
the MOU and Resolution Nos. 97, s. 2002 and 13, s. 2003 of the Sanggunian can amend or repeal Ordinance
No. 8027.

We need not resolve this issue. Assuming that the terms of the MOU were inconsistent with Ordinance No.
8027, the resolutions which ratified it and made it binding on the City of Manila expressly gave it full force and
effect only until April 30, 2003. Thus, at present, there is nothing that legally hinders respondent from enforcing
Ordinance No. 8027.24

Ordinance No. 8027 was enacted right after the Philippines, along with the rest of the world, witnessed the
horror of the September 11, 2001 attack on the Twin Towers of the World Trade Center in New York City. The
objective of the ordinance is to protect the residents of Manila from the catastrophic devastation that will surely
occur in case of a terrorist attack25 on the Pandacan Terminals. No reason exists why such a protective measure
should be delayed.

WHEREFORE, the petition is hereby GRANTED. Respondent Hon. Jose L. Atienza, Jr., as mayor of the City of
Manila, is directed to immediately enforce Ordinance No. 8027.

SO ORDERED.

12
Case Digest: Social Justice Society v. Atienza

May 23, 2016

SOCIAL JUSTICE SOCIETY (SJS ) et al. vs.

HON. JOSE L. ATIENZA, JR., in his capacity as Mayor of the City of Manila

G.R. No. 156052 March 7, 2007

Facts

Ordinance No. 8027 enacted by the Sangguniang Panglungsod of Manila reclassified the area from industrial to
commercial and directed the owners and operators of businesses disallowed to cease and desist from operating
their businesses within six months from the date of effectivity of the ordinance. Among the businesses situated in
the area are the so-called Pandacan Terminals of the oil companies Caltex (Philippines), Inc., Petron
Corporation and Pilipinas Shell Petroleum Corporation.

However, the City of Manila and the Department of Energy (DOE) entered into a memorandum of understanding
(MOU) with the oil companies in which they agreed that the scaling down of the Pandacan Terminals [was] the
most viable and practicable option. In the MOU, the oil companies were required to remove 28 tanks starting
with the LPG spheres and to commence work for the creation of safety buffer and green zones surrounding the
Pandacan Terminals. In exchange, the City Mayor and the DOE will enable the oil companies to continuously
operate within the limited area resulting from joint operations and the scale down program. The Sangguniang
Panlungosod ratified the MOU in Resolution No. 97.

Petitioners pray for a mandamus to be issued against Mayor Atienza to enforce Ordinance No. 8027 and order
the immediate removal of the terminals of the oil companies.

Issue

Whether respondent has the mandatory legal duty to enforce Ordinance No. 8027 and order the removal of the
Pandacan Terminals.

Ruling

Yes. The mayor has the mandatory legal duty to enforce Ordinance No. 8027 because the Local Government
Code imposes upon respondent the duty, as city mayor, to enforce all laws and ordinances relative to the
governance of the city. One of these is Ordinance No. 8027. As the chief executive of the city, he has the duty to
enforce Ordinance No. 8027 as long as it has not been repealed by the Sanggunian or annulled by the courts.
He has no other choice. It is his ministerial duty to do so.

In Dimaporo v. Mitra, Jr., it provides that officers cannot refuse to perform their duty on the ground of an alleged
invalidity of the statute imposing the duty. It might seriously hinder the transaction of public business if these
officers were to be permitted in all cases to question the constitutionality of statutes and ordinances imposing
duties upon them and which have not judicially been declared unconstitutional.

Republic of the Philippines

13
SUPREME COURT
Manila

EN BANC

G.R. No. 194239 June 16, 2015

WEST TOWER CONDOMINIUM CORPORATION, on behalf of the Residents of West Tower Condominium
and in representation of Barangay Bangkal, and others, including minors and generations yet
unborn, Petitioners,
vs.
FIRST PHILIPPINE INDUSTRIAL CORPORATION, FIRST GEN CORPORATION and their RESPECTIVE
BOARD OF DIRECTORS AND OFFICERS, JOHN DOES, and RICHARD DOES, Respondents.

DECISION

VELASCO, JR., J.:

Nature of the Case

Before the Court is the Petition for the Issuance of a Writ of Kalikasan filed following the leak in the oil pipeline
owned by First Philippine Industrial Corporation (FPIC) in Makati City. The Facts

Respondent FPI C operates two pipelines since 1969, viz: ( 1) the White Oil Pipeline (WOPL) System, which
covers a 117-kilometer stretch from Batangas to the Pandacan Terminal in Manila and transports diesel,
gasoline, jet fuel and kerosene; and (b) the Black Oil Pipeline (BOPL) System which extends 105 kilometers and
transports bunker fuel from Batangas to a depot in Sucat, Paraaque. These systems transport nearly 60% of
the petroleum requirements of Metro Manila and parts of the provinces of Bulacan, Laguna, and Rizal.

The two pipelines were supposedly designed to provide more than double the standard safety allowance against
leakage, considering that they are made out of heavy duty steel that can withstand more than twice the current
operating pressure and are buried at a minimum depth of 1.5 meters, which is deeper than the US Department
of Transportation standard of 0.9 meters. In May 2010, however, a leakage from one of the pipelines was
suspected after the residents of West Tower Condominium (West Tower) started to smell gas within the
condominium. A search made on July 10, 2010 within the condominium premises led to the discovery of a fuel
leak from the wall of its Basement 2. Owing to its inability to control the flow, West Tower's management reported
the matter to the Police Department of Makati City, which in turn called the city's Bureau of Fire Protection.

What started as a two-drum leak at the initial stages became a 15-20 drum a day affair. Eventually, the sump pit
of the condominium was ordered shut down by the City of Makati to prevent the discharge of contaminated water
into the drainage system of Barangay Bangkal. Eventually, the fumes compelled the residents of West Tower to
abandon their respective units on July 23, 2010 and the condo's power was shut down.

Petitioner FPIC initially disowned any leak from its oil pipeline. Thus, the residents of West Tower shouldered the
expenses of hauling the waste water from its basement, which eventually required the setting up of a treatment
plant in the area to separate fuel from the waste water. On October 28, 2010, the University of the Philippines-
National Institute of Geological Sciences (UP-NIGS), which the City of Makati invited to determine the source of
the fuel, found a leak in FPIC's WOPL about 86 meters from West Tower.

A day after, or on October 29, 2010, FPIC admitted that indeed the source of the fuel leak is the WOPL, which
was already closed since October 24, 2010, but denied liability by placing blame on the construction activities on
the roads surrounding West Tower.

14
On November 15, 2010, West Tower Condominium Corporation (West Tower Corp.) interposed the present
Petition for the Issuance of a Writ of Kalikasan on behalf of the residents of West Tower and in representation of
the surrounding communities in Barangay Bangkal, Makati City. West Tower Corp. also alleged that it is joined
by the civil society and several people's organizations, non-governmental organizations and public interest
groups who have expressed their intent to join the suit because of the magnitude of the environmental issues
involved.1

In their petition, petitioners prayed that respondents FPIC and its board of directors and officers, and First Gen
Corporation (FGC) and its board of directors and officers be directed to: (1) permanently cease and desist from
committing acts of negligence in the performance of their functions as a common carrier; (2) continue to check
the structural integrity of the whole 117-kilometer pipeline and to replace the same; (3) make periodic reports on
their findings with regard to the 117-kilometer pipeline and their replacement of the same; (4) rehabilitate and
restore the environment, especially Barangay Bangkal and West Tower, at least to what it was before the signs
of the leak became manifest; and (5) to open a special trust fund to answer for similar and future contingencies
in the future. Furthermore, petitioners pray that respondents be prohibited from opening the pipeline and
allowing the use thereof until the same has been thoroughly checked and replaced, and be temporarily
restrained from operating the pipeline until the final resolution of the case.

To bolster their petition, petitioners argued that FPIC's omission or failure to timely replace. its pipelines and to
observe extraordinary diligence caused the petroleum spill in the City of Makati. Thus, for petitioners, the
continued use of the now 4 7-year old pipeline would not only be a hazard or a threat to the lives, health, and
property of those who live or sojourn in all the municipalities in which the pipeline is laid, but would also affect
the rights of the generations yet unborn to live in a balanced and "healthful ecology," guaranteed under Section
16, Article II of the 1987 Constitution.

On November 19, 2010, the Court issued the Writ of Kalikasan with a Temporary Environmental Protection
2

Order (TEPO) requiring respondents FPIC, FGC, and the members of their Boards of Directors to file their
respective verified returns. The TEPO enjoined FPIC and FGC to: (a) cease and desist from operating the
WOPL until further orders; (b) check the structural integrity of the whole span of the 11 7-kilometer WOPL while
implementing sufficient measures to prevent and avert any untoward incident that may result from any leak of
the pipeline; and ( c) make a report thereon within 60 days from receipt thereof.

In compliance with the writ, FPIC directors Edgar Chua, Dennis Javier, Dennis Gamab and Willie Sarmiento
submitted a Joint Return praying for the dismissal of the petition and the denial of the privilege of the Writ of
3

Kalikasan. They alleged that: petitioners had no legal capacity to institute the petition; there is no allegation that
the environmental damage affected the inhabitants of two (2) or more cities or provinces; and the continued
operation of the pipeline should be allowed in the interest of maintaining adequate petroleum supply to the
public.

Respondents FPIC and its directors and officers, other than the aforementioned four ( 4) directors, also filed a
Verified Return claiming that not all requirements for the issuance of the Writ of Kalikasan are present and there
4

is no showing that West Tower Corp. was authorized by all those it claimed to represent. They further averred
that the petition contains no allegation that respondents FPIC directors and officers acted in such a manner as to
allow the piercing of the corporate veil.

Meanwhile, on January 18, 201-1, FGC and the members of its Board of Directors and Officers filed a Joint
Compliance submitting the report required by the Writ of Kalikasan/TEPO. They contended that they neither
5

own nor operate the pipelines, adding that it is impossible for them to report on the structural integrity of the
pipelines, much less to cease and desist from operating them as they have no capability, power, control or
responsibility over the pipelines. They, thus, prayed that the directives of the Writ of Kalikasan/TEPO be
considered as sufficiently performed, as to them.

15
On January 21, 2011, FPIC, in compliance with the writ, submitted its 4-page "Report on Pipeline Integrity Check
and Preventive Maintenance Program." In gist, FPIC reported the following: (I) For the structural integrity of the
6

117-kilometer pipeline, (a) the DOE engaged the services of UP-NIGS to do borehole testing on 81 pre-identified
critical areas of the WQPL in eight cities and municipalities-all the boreholes showed negative presence of
petroleum vapors; (b) pressure tests were conducted after the repair of the leak and results showed negative
leaks and the DOE's pipeline expert, Societe General de Surveillance, New Zealand, has developed a pressure
test protocol requiring a 24-hour operation of running a scraper pig through the pipeline to eliminate air gap; (c)
In-Line Inspection Test, was conducted by NDT through MFL and ultrasonic. The NDT later cleared the WOPL
from any damage or corrosion.

(II) For preventive maintenance measures, (a) Cathodic Protection Systems are installed involving the use of
anode materials and the introduction of electric current in the pipeline to enhance prevention of corrosion; (b)
Regular Scraper Runs through the pipeline to maintain cleanliness and integrity of the pipelines' internal surface;
(c) Daily Patrols every two hours of the pipeline route to deter unauthorized diggings in the vicinity of the pipeline
segments; ( d) Regular coordination meetings with DPWH, MMDA and utility companies to monitor projects that
might involve digging or excavation in the vicinity of the pipeline segments; (e) Installation of Security Warning
Signs along the pipeline route with toll free number which can be called in the event of an accident or
emergency; (f) Emergency Response Procedure of the ERT is activated by a call-out procedure; (g)
Maintenance of Emergency Equipment and Repair Kit which are always on standby; and, (h) Remotely
controlled Isolation Valves are in place to shut the pipeline when necessary.

On February 9, 2011, petitioners filed, and the Court eventually granted, their Motion to Set the Case for
Preliminary Conference and Hearing pursuant to Sec. 11, Rule 7 of the Rules of Procedure for Environmental
7

Cases.

On April 15, 2011, the Court conducted an ocular inspection of the WOPL in the vicinity of West Tower to
determine the veracity of the claim that there were two (2) additional leaks on FPIC's pipeline. Results of the
ocular inspection belied the claim.

In the meantime, petitioners also filed civil and criminal complaints against respondents arising from the same
incident or leakage from the WOPL. 8

Since after the Court's issuance of the Writ of Kalikasan and the TEPO on November 19, 2010, FPIC has
ceased operations on both the WOPL and the BOPL. On May 31, 2011, however, the Court, answering a query
of the DOE, clarified and confirmed that what is covered by the Writ of Kalikasan and TEPO is only the WOPL
System of FPIC; thus, FPIC can resume operation of its BOPL System. 9

On July 7, 2011, petitioners filed an Omnibus Motion assailing the Court's May 31, 2011 Resolution, praying for
10

the conduct of oral argument on the issue of reopening the BOPL System. This was followed, on September 9,
2011, by a Manifestation (Re: Current Developments) with Omnibus Motion wherein petitioners invoked the
11

precautionary principle and asserted that the possibility of a leak in the BOPL System leading to catastrophic
12

environmental damage is enough reason to order the closure of its operation. They likewise alleged that the
entities contracted by FPIC to clean and remediate the environment are illegally discharging waste water, which
had not undergone proper treatment, into the Paraaque River. Petitioners, thus, prayed that respondents be
directed to comply with environmental laws in rehabilitating the surroundings affected by the oil leak and to
submit a copy of their work plan and monthly reports on the progress thereof. To these omnibus motions,
respondents were directed to file their respective comments.

On September 28, 2011, respondent FPIC filed an Urgent Motion for Leave (To Undertake "Bangkal
Realignment" Project) in order to reduce stress on the WOPL System. FPIC sought to construct a new
13

realigned segment to replace the old pipe segment under the Magallanes Interchange, which covers the portion
that leaked. Petitioners were directed to file their comment on FPIC's motion.

16
Report and Recommendation of the Court of Appeals

To expedite the resolution of the controversy, the Court remanded the case to the Court of Appeals (CA). By this
Court's Resolution dated November 22, 2011, the appellate court was required to conduct hearings and,
14

thereafter, submit a report and recommendation within 30 days after the receipt of the parties' memoranda.

On March 21, 2012, the preliminary conference was continued before the CA wherein the parties made
admissions and stipulations of facts and defined the issues for resolution. In view of the technical nature of the
case, the CA also appointed several amici curiae, but only four (4) filed their reports.
15 16 17

On December 26, 2012, the CA Former 11th Division submitted to the Court its well-crafted and exhaustive 156-
page Report and Recommendation dated December 21, 2012 (CA Report). Some highlights of the Report:
18

1. Anent petitioners' June 28, 2011 Omnibus Motion assailing the reopening of the BOPL System, the CA
directed respondent FPIC to submit the appropriate certification from the DOE as to the safe commercial
operation of the BOPL; otherwise, the operation of the BOPL must also be enjoined.

2. On petitioners' September 9, 2011 Manifestation (Re: Current Developments) with Omnibus Motion,
the CA directed the Inter-Agency Committee on Health to submit its evaluation of the remediation plan
prepared by CH2M Hill Philippines, Inc. for FPIC. Further, the appellate court directed FPIC to strictly
comply with the stipulations contained in the permits issued by the Department of Environment and
Natural Resources (DENR) for its remediation activities in Barangay Bangkal, Makati City. The DENR
was in turn directed by the CA to:

(a) monitor compliance by respondent FPIC with applicable environmental laws and regulations
and conditions set forth in the permits issued;

(b) conduct independent analysis of end-products of the Multi-Phase Extraction System;

(c) conduct regular consultative meetings with the City of Makati, residents of Barangay Bangkal
and other stakeholders concerning the remediation activities; and,

(d) evaluate the viability of the recommendation of amicus Dr. Benjamin R. De Jesus, Jr. to
include the use of surfactants and oxygen-releasing compounds (ORCs) in the middle and
terminal portions of the remediation plan.

3. Respondent's September 27, 2011 Urgent Motion for Leave (To Undertake "Bangkal Realignment"
Project) was denied.

4. With regard to the March 29, 2012 Supplemental Manifestation (Re: List of Amici Curiae and Recent
Possible Leak in the Pipeline) filed by petitioners, the CA found that the existence of another possible
leak alleged by petitioners was not established. Nonetheless, to prevent such event, the CA ordered
FPIC to: (i) review, adopt and strictly observe appropriate safety and precautionary measures; (ii) closely
monitor the conduct of its maintenance and repair works; and (iii) submit to the DOE regular monthly
reports on the structural integrity and safe commercial operation of the pipeline.

5. As to the merits of the case, the CA submitted the following recommendations:

(a) That the people's organizations, non-governmental organizations, and public interest groups
that indicated their intention to join the petition and submitted proof of juridical personality
(namely: the Catholic Bishop's Conference of the Philippines; Kilusang Makabansang
Ekonomiya, Inc.; Women's Business Council of the Philippines, Inc.; Junior Chambers
International Philippines, Inc. - San Juan Chapter; Zonta Club of Makati Ayala Foundations; and
17
the Consolidated Mansions Condominium Corporation) be allowed to be formally impleaded as
petitioners.

(b) That respondent FPIC be ordered to submit a certification from the DOE Secretary that the
WOPL is already safe for commercial operation. The certification should take into consideration
the adoption by FPIC of the appropriate leak detection system to be used in monitoring the entire
pipeline's mass input versus mass output. The certification must also consider the necessity of
replacing the pipes with existing patches and sleeves. In case of failure of respondent FPIC to
submit the required certification from the DOE Secretary within sixty (60) days from notice of the
Honorable Supreme Court's approval of this recommendation, the TEPO must be made
permanent.

(c) That petitioners' prayer for the creation of a special trust fund to answer for similar
contingencies in the future be denied for lack of sufficient basis.

d) That respondent FGC be not held solidarily liable under the TEPO.

(e) That without prejudice to the outcome of the civil and criminal cases filed against
respondents, the individual directors and officers of FPIC and FGC be not held liable in their
individual capacities.

On January 11, 2013, petitioners filed their Motion for Partial Reconsideration of the CA's Report praying that
19

(a) instead of the DOE, the required certification should be issued by the DOST-Metal Industry Research and
Development Center; (b) a trust fund be created to answer for future contingencies; and ( c) the directors and
officers of FPIC and FGC be held accountable.

On January 25, 2013, FPIC filed its Compliance (Re: Department of Energy Certification on the Black Oil
Pipeline) and submitted the required DOE Certification issued on January 22, 2013 by DOE Secretary Carlos
20 21

Jericho L. Petilla (Secretary Petilla). On March 14, 2013, petitioners countered with a Manifestation with
Motion asserting that FPIC's certification is not compliant with the CA's requirement. Hence, petitioners moved
22

that the certification should be disregarded, the 30-day period be deemed to have lapsed, and FPIC be
permanently enjoined from operating the BOPL.

On July 30, 2013, the Court issued a Resolution adopting the recommendation of the CA in its Report and
Recommendation that FPIC be ordered to secure a certification from the DOE Secretary before the WOPL may
resume its operations. The pertinent portion of said Resolution reads:

[FPIC] is hereby ORDERED to submit a certification from the DOE Secretary that the pipeline is already safe for
commercial operation. The certification should take into consideration the adoption by FPIC of the appropriate
leak detection system to be used in monitoring the entire pipeline's mass input versus mass output. The
certification must also consider the necessity of replacing the pipes with existing patches and sleeves x x x.23

The DOE Secretary is DIRECTED to consult the [DOST] regarding the adoption of the appropriate leak detection
system and the necessity of replacing the pipes with existing patches and sleeves.

On October 2, 2013, petitioners, in a Motion for Reconsideration with Motion for Clarification, emphasized that
the CA found FPIC's tests and maintenance program to be insufficient and inconclusive to establish the WOPL' s
structural integrity for continued commercial operation. Furthermore, petitioners point out that the DOE is
24

biased and incapable of determining the WOPL's structural integrity.

Respondents, for their part, maintain that the DOE has the technical competence and expertise to assess the
structural integrity of the WOPL and to certify the system's safety for commercial operation. Respondents
25

further allege that the DOE is the agency empowered to regulate the transportation and distribution of petroleum
18
products, and to regulate and monitor downstream oil industry activities, including "product distribution" through
pipelines.
26

In compliance with the Court's July 30, 2013 Resolution, the DOE Secretary issued on October 25, 2013 a
Certification, attesting that the WOPL is safe to resume commercial operations, subject to monitoring or
27

inspection requirements, and imposing several conditions that FPIC must comply with. The Certification, in its
entirety, reads:

This is to certify that based on the Pipeline Integrity Management Systems (PIMS) being implemented by [FPIC]
for its [WOPL] facility, the same is safe to resume commercial operations. This certification is being issued after
consultation with the [DOST] and on the basis of the following considerations, to wit:

1. DOE noted the adoption by FPIC of the appropriate leak detection system to be used in monitoring the
pipeline's mass input versus mass output, as well as the other measures of leak detection and
prevention adopted by the latter;

2. DOE further noted that FPIC has already undertaken realignment and reinforcement works on the
current pipeline to remove majority of the patches. FPIC has likewise presented substantial and
adequate documentation showing that the remaining patches and sleeves are safe, and that the use of
such is recognized by the industry and complies with existing standards;

3. DOE finally noted the results of various tests and inspections done on the pipeline as indicated in the
Manifestation submitted by ,the DOE on March 31, 2012, in the civil case docketed as CA GR SP No.
00008 and entitled West Tower Condominium, et al. [v.] First Philippine Industrial Corporation, et al.

This certification is being issued subject to the condition that FPIC will submit itself to regular monitoring and
validation by the Oil Industry Management Bureau (OIMB) of the implementation of its PIMS, particularly on the
following: (a) mass or volume input versus mass or volume output loss/gain accounting; (b) results of borehole
monitoring, (c) inspection of the pipeline cathodic protection and (d) pressure test.

Further, FPIC shall submit itself to any test or inspection that the DOE and DOST may deem appropriate for
purposes of monitoring the operations of the WOPL facility.

The Court is fully cognizant of the WOPL' s value in commerce and the adverse effects of a prolonged closure
thereof. Nevertheless, there is a need to balance the necessity of the immediate reopening of the WOPL with the
more important need to ensure that it is sound for continued operation, since the substances it carries pose a
significant hazard to the surrounding population and to the environment. A cursory review of the most recent oil
28

pipeline tragedies around the world will readily show that extreme caution should be exercised in the monitoring
and operation of these common carriers:

(1) On August 1, 2014, a series of powerful explosions from underground pipeline systems ripped up the
streets of Kaohsiung, Taiwan, killing at least 28 people and injuring 299 more. Further, 23 ,600, 2,268
and 6,000 households were left without gas, power and water, respectively, in the 2-3 square kilometer
blast area. 29

(2) On November 22, 2013, an oil pipeline leaked, caught fire, and exploded in Qingdao, Shangdao
Province in China, killing 55 people and injuring more than a hundred more. 30

(3) On September 14, 2011, a fuel pipeline exploded in Kenya's capital city, Nairobi, reducing bodies to
dust and flattening homes. At least 7 5 people died in the explosion, while more than a hundred people
were injured. 31

19
(4) In September 2010, a natural gas pipeline ruptured and set off a fireball, killing eight (8) people and
leveling 3 8 homes in San Bruno, California in the United States. 32

(5) On July 30, 2004, a rupture of an underground natural gas pipeline buried six (6) meters in
Ghislenghien, Belgium resulted in 24 deaths and over 120 injuries. 33

On April 29 and 30, 2014, the DOE organized a dialogue between said government agencies and the FPIC.
There it was stated that during the dialogue, "the division heads and a high profile team from FPIC, both from
operation and management made presentations and answered questions on pipeline pumping operation and
product delivery, and a detailed explanation of the FPIC PIMS' control measures, condition monitoring
measures, and emergency measures, as well as its various activities and projects implemented since 2010 such
as pipeline replacement and realignment in Pandacan and Bangkal, inspection and reinforcement of all patches
in the WOPL, inspection and reinforcement of a number of reported dents in the WOPL, conduct of successful
leak tests, and installation of boreholes that are gas-tested on a weekly basis, and the safety systems that go
with the daily pipeline operation and maintenance and project execution." 34

On August 5, 2014, Secretary Carlos Jericho L. Petilla of the DOE submitted a letter recommending activities
35

and timetable for the resumption of the WOPL operations, to wit:

A. Preparatory to the Test Run

I. FPIC Tasks:

a. Continue submission of monitoring charts, data/reading, accomplishment reports, and project status
for all related activities/works. Respond to comments and prepare for site inspection.

b. Continue gas testing along the right-of-way using the monitoring wells or boreholes. Prepare for
inspection of right-of-way and observation of gas testing activities on monitoring wells and boreholes.

c. Expound on the selection of borehole location. For example, identify those located in pipeline bends,
bodies of water, residential areas, repaired portions of the pipelines, dents and welded joints.

d. Continue submitting status report relating to "Project Mojica" (an ongoing pipeline segment
realignment activity undertaken by FPIC to give way to a flood control project of MMDA in the vicinity of
Mojica St. and Pres. Osmea Highway in Makati City). Prepare for site inspection.

II. Inter-agency undertaking:

a. Conduct onsite inspection of right-of-way

b. Review/check remaining 22 patches that were already inspected and reinforced with Clockspring
sleeves.

i. Determine location of sleeves.

ii. Review of procedures on repair of sleeves.

iii. Random visual inspection of areas easily accessible.

c. Cathodic protection's onsite inspection on rectifier to check readings

i. Old readings

20
ii. Current Readings

iii. Segment covered

iv. Criteria for prioritization for corrective action

d. Observe and witness the running/operation of the cleaning pig.

e. Check and validate all calibration certificate of instruments

i. Instrument verification and calibration.

B. Actual Test Run (to be undertaken both by FPIC and inter-agency)

a. Perform Cleaning Pig Run

i. Witness launching and receiving of the cleaning pig.

ii. Handling of the residuals after cleaning.

b. Demonstrate Various Pressure Tests (already being conducted by FPIC)

i. Blocked-in pressure test (Leak Test, not in operation)

ii. In-operation (hourly reading)

c. Continue Current Gas Monitoring (boreholes)

i. Ocular inspection of selected areas

d. Demonstrate mass or volume balance computation during WOPL test run (already being implemented
in the BOPL)

i. 30 days baseline data generation

ii. 30 days computational analysis and monitoring

C. Commissioning or Return to Commercial Operation

I. FPIC Tasks:

a. Continue implementation of the PIMS. Review recommendations from DOE.

b. Continue monthly reporting of operations and maintenance activities with DOE.

c. Continue reporting and coordination with DOE and other government agencies for implementation of
projects. 36

Secretary Petilla also recounted to the Court in his August 5, 2014 letter that the DOE, together with the DPWH
and the Metropolitan Manila Development Authority (MMDA), observed the different milestones of the

21
realignment project being undertaken by FPIC in support of the MMDA Flood Control Project and stated that the
new line segment as laid was coated with corrosion protection prior to the backfilling of the excavated portion.

On February 3, 2015, the Court required the parties to submit their comment on Sec. Petilla's letter within ten
(10) days from receipt of the Resolution. On various dates, respondents First Gen Corporation, FPIC, and
petitioner West Tower filed their respective comments in compliance with the Court's resolution. The intervenors
37

were unable to comply with the Court's directive; hence, they are deemed to have waived their right to file their
respective comments. The Issues

Having received the October 25, 2013 Certification and the August 5, 2014 Letter from the DOE on the state of
the WOPL, as well as the parties' comments thereon, the following issues defined by the parties during the
March 21, 2012 preliminary conference are now ripe for adjudication:

1. Whether petitioner West Tower Corp. has the legal capacity to represent the other petitioners and
whether the other petitioners, apart from the residents of West Tower and Barangay Bangkal, are real
parties-in-interest;

2. Whether a Permanent Environmental Protection Order should be issued to direct the respondents to
perform or to desist from performing acts in order to protect, preserve, and rehabilitate the affected
environment;

3. Whether a special trust fund should be opened by respondents to answer for future similar
contingencies; and

4. Whether FGC and the directors and officers of respondents FPIC and FGC may be held liable under
the environmental protection order. 38

The Court's Ruling

We adopt, with modifications, the recommendations of the CA and discuss the foregoing issues in seriatim.

I.
Petitioners as Real Parties-in-Interest

On the procedural aspect, We agree with the CA that petitioners who are affected residents of West Tower and
Barangay Bangkal have the requisite concern to be real parties-in-interest to pursue the instant petition.

Residents of West Tower and Barangay Bangkal

As defined, a real party-in-interest is the party who stands to be benefited or injured by the judgment in the suit,
or the party entitled to the avails of the suit. Generally, every action must be prosecuted or defended in the
39

name of the real parties-in-interest. In other words, the action must be brought by the person who, by
40

substantive law, possesses the right sought to be enforced. Alternatively, one who has no right or interest to
41

protect cannot invoke the jurisdiction of the court as party-plaintiff-in-action for it is jurisprudentially ordained that
every action must be prosecuted or defended in the name of the real party-in-interest. 42

In the case at bar, there can be no quibble that the oil leak from the WOPL affected all the condominium unit
owners and residents of West Tower as, in fact, all had to evacuate their units at the wee hours in the morning of
July 23, 2010, when the condominium's electrical power was shut down. Until now, the unit owners and
residents of West Tower could still not return to their condominium units. Thus, there is no gainsaying that the
residents of West Tower are real parties-in-interest.

22
There can also be no denying that West Tower Corp. represents the common interest of its unit owners and
residents, and has the legal standing to file and pursue the instant petition. While a condominium corporation
has limited powers under RA 4 726, otherwise known as The Condominium Act, it is empowered to pursue
43

actions in behalf of its members. In the instant case, the condominium corporation .is the management body of
West Tower and deals with everything that may affect some or all of the condominium unit owners or users.

It is of no moment that only five residents of West Tower signed their acquiescence to the filing of the petition for
the issuance of the Writ of Kalikasan, as the merits of such petition is, as aptly put by the CA, not measured by
the number of persons who signified their assent thereto, but on the existence of a prima facie case of a massive
environmental disaster.

Moreover, the fact that no board resolution was submitted by West Tower Corp. authorizing Manuel Dy
Chuaunsu, Jr. to sign the Verification and Certification of Non-forum Shopping is irrelevant. The records show
that petitioners submitted a notarized Secretary's Certificate attesting that the authority of Chuaunsu to
44

represent the condominium corporation in filing the petition is from the resolution of the total membership of
West Tower Corp. issued during their November 9, 2010 meeting with the requisite quorum. It is, thus, clear that
it was not the Board of West Tower Corp. which granted Chuaunsu the authority but the full membership of the
condominium corporation itself.

As to the residents of Barangay Bangkal, they are similarly situated with the unit owners and residents of West
Tower and are real parties-in-interest to the instant case, i.e., if they so wish to join the petitioners.

Organizations that indicated their intention to join the petition

and submitted proof of juridical personality

Anent the propriety of including the Catholic Bishops' Conference of the Philippines, Kilusang Makabansang
Ekonomiya, Inc., Women's Business Council of the Philippines, Inc., Junior Chambers International Philippines,
Inc. - San Juan Chapter, Zonta Club of Makati Ayala Foundations, and the Consolidated Mansions Condominium
Corporation, as petitioners in the case, the Court already granted their intervention in the present controversy in
the adverted July 30, 2013 Resolution.

This is so considering that the filing of a petition for the issuance of a writ of kalikasan under Sec. 1, Rule 7 of
45

the Rules of Procedure for Environmental Cases does not require that a petitioner be directly affected by an
environmental disaster. The rule clearly allows juridical persons to file the petition on behalf of persons whose
constitutional right to a balanced and healthful ecology is violated, or threatened with violation.

Thus, as parties to the case, they are entitled to be furnished copies of all the submissions to the Court,
including the periodic reports of FPIC and the results of the evaluations and tests conducted on the WOPL.

Having disposed of the procedural issue, We proceed to the bone of contention in the pending motions. Suffice it
to state in the outset that as regards the substantive issues presented, the Court, likewise, concurs with the
other recommendations of the CA, with a few modifications.

II.
Propriety of Converting the TEPO to PEPO or its Lifting in light of the

DOE Certification of the WOPL's Commercial Viability

To recall, petitioners' persistent plea is for the conversion of the November 19, 2010 TEPO into a Permanent
Environmental Protection Order (PEPO) pursuant to Sec. 3, Rule 5 of the Rules of Procedure for Environmental
46

Cases. For its part, respondent FPIC asserts that regular testing, as well as the measures that are already in
place, will sufficiently address any concern of oil leaks from the WOPL.
23
With respect to leak detection, FPIC claims that it has in place the following systems: (a) regular cleaning
scraper runs, which are done quarterly; (b) pipeline integrity gauge (PIG) tests/Intelligent PIG, now known as in-
line inspections (ILI), which is done every five years; (c) pressure monitoring valves; and ( d) 24-hour patrols.
Additionally, FPIC asserted that it also undertook the following: (a) monitoring of wells and borehole
testing/vapor tests; (b) leak tightness test, also known as segment pressure test; (c) pressure-controlled test; (d)
inspection and reinforcement of patches; (e) inspection and reinforcement of dents; and (f) Pandacan segment
replacement. Furthermore, in August 2010, with the oil leak hogging the headlines, FPIC hired NDT Middle East
47

FZE (NDT) to conduct ILI inspections through magnetic flux leakage (MFL) and ultrasonic tests to, respectively,
detect wall thinning of the pipeline and check it for cracks.

The CA, however, observed that all of these tests and measures are inconclusive and insufficient for purposes of
leak detection and pipeline integrity maintenance. Hence, considering the necessary caution and level of
assurance required to ensure that the WOPL system is free from leaks and is safe for commercial operation, the
CA recommended that FPIC obtain from the DOE a certification that the WOPL is already safe for commercial
operation. This certification, according to the CA, was to be issued with due consideration of the adoption by
FPIC of the appropriate leak detection systems to monitor sufficiently the entire WOPL and the need to replace
portions of the pipes with existing patches and sleeves. Sans the required certification, use of the WOPL shall
remain abated.

The Court found this recommendation of the appellate court proper. Hence, We required FPIC to obtain the
adverted DOE Certification in Our July 30, 2013 Resolution. We deemed it proper to require said certification
from the DOE considering that the core issue of this case requires the specialized knowledge and special
expertise of the DOE and various other administrative agencies. On October 25, 2013, the DOE submitted the
certification pursuant to the July 30, 2013 Resolution of the Court. Later, however, on August 5, 2014, DOE
Secretary Carlos Jericho I. Petilla submitted a letter recommending certain activities and the timetable for the
resumption of the WOPL operations after conducting a dialogue between the concerned government agencies
and FPIC.

After a perusal of the recommendations of the DOE and the submissions of the parties, the Court adopts the
activities and measures prescribed in the DOE letter dated August 5, 2014 to be complied with by FPIC as
conditions for the resumption of the commercial operations of the WOPL. The DOE should, therefore, proceed
with the implementation of the tests proposed in the said August 5, 2014 letter. Thereafter, if it is satisfied that
the results warrant the immediate reopening of the WOPL, the DOE shall issue an order allowing FPIC to
resume the operation of the WOPL. On the other hand, should the probe result in a finding that the pipeline is no
longer safe for continued use and that its condition is irremediable, or that it already exceeded its serviceable
life, among others, the closure of the WOPL may be ordered.

The DOE is specially equipped to consider FPIC's proper implementation and compliance with its PIMS and to
evaluate the result of the various tests conducted on the pipeline. The DOE is empowered by Sec. 12(b)(l), RA
7638 to formulate and implement policies for the efficient and economical "distribution, transportation, and
storage of petroleum, coal, natural gas." Thus, it cannot be gainsaid that the DOE possesses technical
48

knowledge and special expertise with respect to practices in the transportation of oil through pipelines.

Moreover, it is notable that the DOE did not only limit itself to the knowledge and proficiency available within its
offices, it has also rallied around the assistance of pertinent bureaus of the other administrative agencies: the
ITDI of the DOST, which is mandated to undertake technical services including standards, analytical and
49

calibration services; the MIRDC, also of the DOST, which is the sole government entity directly supporting the
50

metals and engineering industry; the EMB of the DENR, the agency mandated to implement, among others,
51 52

RA 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990) and RA 9275 (Philippine
Clean Water Act of 2004); and the BOD of the DPWH, which is mandated to conduct, supervise, and review the
technical design aspects of projects of government agencies. 53

24
The specialized knowledge and expertise of the foregoing agencies must, therefore, be availed of to arrive at a
judicious decision on the propriety of allowing the immediate resumption of the WOPL's operation. In a host of
cases, this Court held that when the adjudication of a controversy requires the resolution of issues within the
expertise of an administrative body, such issues must be investigated and resolved by the administrative body
equipped with the specialized knowledge and the technical expertise. Hence, the courts, although they may
54

have jurisdiction and power to decide cases, can utilize the findings and recommendations of the administrative
agency on questions that demand "the exercise of sound administrative discretion requiring the special
knowledge, experience, and services of the administrative tribunal to determine technical and intricate matters of
fact."
55

Justice Leonen, in his dissent, is of the view that the petition should be denied and the TEPO immediately lifted
in light of the DOE's issuance of a certification attesting to the safety of the WOPL for continued commercial
operations, thereby rendering the instant petition moot and academic, seeking, as it does, the checking of the
pipeline's structural integrity. According to his dissent, the writ of kalikasan issued by the Court has already
served its functions and, therefore, is functus officio. Moreover, he argues that directing the DOE and FPIC to
repeat their previous procedures is tantamount to doubting the agency's performance of its statutorily-mandated
tasks, over which they have the necessary expertise, and implies that said DOE certification is improper, a
breach, allegedly, of the principle of separation of powers.

He also contends that the majority ordered the repetition of the procedures and tests already conducted on the
WOPL because of the fear and uncertainty on its safeness despite the finding of the DOE in favor of its
reopening, taking into consideration the occurrence of numerous pipeline incidents worldwide. The dissent
argues that the precautionary principle should not be so strictly applied as to unjustifiably deprive the public of
the benefits of the activity to be inhibited, and to unduly create other risks.

The dissent's contentions that the case is already moot and academic, that the writ of kalikasan has already
served its function, and that the delay in the lifting of the TEPO may do more harm than good are anchored on
the mistaken premise that the precautionary principle was applied in order to justify the order to the DOE and the
FPIC for the conduct of the various tests anew. The following reasons easily debunk these arguments:

1. The precautionary principle is not applicable to the instant case;

2. The DOE certification is not an absolute attestation as to the WOPL's structural integrity and in fact
imposes several conditions for FPIC's compliance;

3. The DOE itself, in consultation with FPIC and the other concerned agencies, proposed the activities to
be conducted preparatory to the reopening of the pipeline; and

4 . There are no conclusive findings yet on the WOPL's structural integrity.

Section 1, Rule 20 of A.M. No. 09-6-8-SC or the Rules of Procedure for Environmental Cases, on the
Precautionary Principle, provides that "[ w ]hen there is lack of full scientific certainty in establishing a causal link
between human activity and environmental effect, the court shall apply the precautionary principle in resolving
the case before it."

According to the dissent, the directive for the repetition of the tests is based on speculations, justified by the
application of said principle. This, however, is not the case. Nowhere did We apply the precautionary principle in
deciding the issue on the WOPL's structural integrity.

The precautionary principle only applies when the link between the cause, that is the human activity sought to be
inhibited, and the effect, that is the damage to the environment, cannot be established with full scientific
certainty. Here, however, such absence of a link is not an issue. Detecting the existence of a leak or the
presence of defects in the WOPL, which is the issue in the case at bar, is different from determining whether the
25
spillage of hazardous materials into the surroundings will cause environmental damage or will harm human
health or that of other organisms. As a matter of fact, the petroleum leak and the harm that it caused to the
environment and to the residents of the affected areas is not even questioned by FPIC.

It must be stressed that what is in issue in the instant petition is the WOPL's compliance with pipeline structure
standards so as to make it fit for its purpose, a question of fact that is to be determined on the basis of the
evidence presented by the parties on the WOPL's actual state. Hence, Our consideration of the numerous
findings and recommendations of the CA, the DOE, and the amici curiae on the WOPL' s present structure, and
not the cited pipeline incidents as the dissent propounds.

Consider also the fact that it is the DOE itself that imposed several conditions upon FPIC for the resumption of
the operations of the WOPL. This, coupled with the submission by the DOE of its proposed activities and
timetable, is a clear and unequivocal message coming from the DOE that the WOPL's soundness for resumption
of and continued commercial operations is not yet fully determined. And it is only after an extensive
determination by the DOE of the pipeline's actual physical state through its proposed activities, and not merely
through a short-form integrity audit, that the factual issue on the WOPL's viability can be settled. The issue,
56

therefore, on the pipeline's structural integrity has not yet been rendered moot and remains to be subject to this
Court's resolution. Consequently, We cannot say that the DOE's issuance of the certification adverted to equates
to the writ of kalikasan being functus officio at this point.

The dissent is correct in emphasizing that We defer to the findings of fact of administrative agencies considering
their specialized knowledge in their field. And We, as a matter of fact, acceded to the DOE' s conclusions on the
necessity of the conduct of the various activities and tests enumerated in Sec. Petilla's letter to this Court dated
August 5, 2014. Hence, Our directive for the DOE to immediately commence the activities enumerated in said
Letter, to determine the pipeline's reliability, and to order its reopening should the DOE find that such is proper.

The dissent also loses sight of the fact that the petition not only seeks the checking of the WOPL's structural
integrity, but also prays for the rehabilitation of the areas affected by the leak, the creation of a special trust fund,
the imposition of liability upon the directors of FPIC, among others. These issues, undoubtedly, are matters that
are not addressed by the DOE certification alone. Furthermore, these are issues that no longer relate to the
WOPL' s structure but to its maintenance and operations, as well as to the residues of the incident. It will, thus,
be improper for Us to simply dismiss the petition on the basis solely of the alleged resolution of only one of
several issues, which purportedly renders the issue on the WOPL' s soundness moot, without disposing of the
other issues presented.

Lastly, any delay in the reopening of the WOPL, if said delay is for the purpose of making sure that the pipeline
is commercially viable, is better than hastily allowing its reopening without an extensive check on its structural
integrity when experience shows that there were and may still be flaws in the pipeline. Even the DOE, the
agency tasked to oversee the supply and distribution of petroleum in the country, is well aware of this and even
recommended the checking of the patched portions of the pipeline, among others. In this regard, the Court
deems it best to take the necessary safeguards, which are not similar to applying the precautionary principle as
previously explained, in order to prevent a similar incident from happening in the future.

III.
Propriety of the Creation of a Special Trust Fund

Anent petitioners' prayer for the creation of a special trust fund, We note that under Sec. 1, Rule 5 of the Rules
of Procedure for Environmental Cases, a trust fund is limited solely for the purpose of rehabilitating or restoring
the environment. Said proviso pertinently provides:

SEC. 1. Reliefs in a citizen suit. - If warranted, the court may grant to the plaintiff proper reliefs which shall
include the protection, preservation or rehabilitation of the environment and the payment of attorney's fees, costs
of suit and other litigation expenses. It may also require the violator to submit a program of rehabilitation or

26
restoration of the environment, the costs of which shall be borne by the violator, or to contribute to a special trust
fund for that purpose subject to the control of the court. (emphasis supplied)

Furthermore, Sec. 15( e ), Rule 7 of the Rules of Procedure for Environmental Cases expressly prohibits the
grant of damages to petitioners in a petition for the issuance of a writ of kalikasan, viz:

Section 15. Judgment. - Within sixty (60) days from the time the petition is submitted for decision, the court shall
render judgment granting or denying the privilege of the writ of kalikasan.

The reliefs that may be granted under the writ are the following:

xxxx

(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the
protection, preservation, rehabilitation or restoration of the environment, except the award of damages to
individual petitioners.

A reading of the petition and the motion for partial reconsideration readily reveals that the prayer is for the
creation of a trust fund for similar future contingencies. This is clearly outside the limited purpose of a special
trust fund under the Rules of Procedure for Environmental Cases, which is to rehabilitate or restore the
environment that has presumably already suffered. Hence, the Court affirms with concurrence the observation of
the appellate court that the prayer is but a claim for damages, which is prohibited by the Rules of Procedure for
Environmental Cases. As such, the Court is of the considered view that the creation of a special trust fund is
misplaced. The present ruling on petitioners' prayer for the creation of a special trust fund in the instant recourse,
however, is without prejudice to the judgment/s that may be rendered in the civil and/or criminal cases filed by
petitioners arising from the same incident if the payment of damages is found warranted.

IV.
Liability of FPIC, FGC and their respective Directors and Officers

On the last issue of the liability of FPIC, FGC and their respective directors and officers, the CA found FGC not
liable under the TEPO and, without prejudice to the outcome of the civil case (Civil Case No. 11-256, RTC,
Branch 58 in Makati City) and criminal complaint (Complaint-Affidavit for Reckless Imprudence, Office of the
Provincial Prosecutor of Makati City) filed against them, the individual directors and officers of FPIC and FGC
are not liable in their individual capacities.

The Court will refrain from ruling on the finding of the CA that the individual directors and officers of FPIC and
FGC are not liable due to the explicit rule in the Rules of Procedure for Environmental cases that in a petition for
a writ of kalikasan, the Court cannot grant the award of damages to individual petitioners under Rule 7, Sec.
15(e) of the Rules of Procedure for Environmental Cases. As duly noted by the CA, the civil case and criminal
complaint filed by petitioners against respondents are the proper proceedings to ventilate and determine the
individual liability of respondents, if any, on their exercise of corporate powers and the management of FPIC
relative to the dire environmental impact of the dumping of petroleum products stemming from the leak in the
WOPL in Barangay Bangkal, Makati City.

Hence, the Court will not rule on the alleged liability on the part of the FPIC and FGC officials which can,
however, be properly resolved in the civil and criminal cases now pending against them.

Other Matters

The CA's resolution on petitioners' September 9, 2011 Manifestation (Re: Current Developments) with Omnibus
Motion on the remediation plan in Barangay Bangkal by directing the Inter-Agency Committee on Environmental
Health to submit its evaluation of the said plan prepared by CH2M Philippines, Inc., for FPIC to strictly comply
27
with the stipulations embodied in the permits issued by the DENR, and to get a certification from the DENR of its
compliance thereto is well taken. DENR is the government agency tasked to implement the state policy of
"maintaining a sound ecological balance and protecting and enhancing the quality of the environment" and to
57

"promulgate rules and regulations for the control of water, air, and land pollution." It is indubitable that the
58

DENR has jurisdiction in overseeing and supervising the environmental remediation of Barangay Bangkal, which
is adversely affected by the leak in the WOPL in 2010.

With regard to petitioners' March 29, 2012 Supplemental Manifestation about a recent possible leak in the
pipeline, the CA appropriately found no additional leak. However, due to the devastating effect on the environs in
Barangay Bangkal due to the 2010 leak, the Court finds it fitting that the pipeline be closely and regularly
monitored to obviate another catastrophic event which will prejudice the health of the affected people, and to
preserve and protect the environment not only for the present but also for the future generations to come.

Petitioner's January 10, 2013 Motion for Partial Recommendation of the CA' s Report need not be discussed and
given consideration. As the CA' s Report contains but the appellate court's recommendation on how the issues
should be resolved, and not the adjudication by this Court, there is nothing for the appellate court to reconsider.

As to petitioner's October 2, 2013 Motion for Reconsideration with Motion for Clarification, the matters contained
therein have been considered in the foregoing discussion of the primary issues of this case. With all these, We
need not belabor the other arguments raised by the parties.

IN VIEW OF THE FOREGOING, the Motion for Partial Reconsideration is hereby DENIED. The Motion for
Reconsideration with Motion for Clarification is PARTLY GRANTED. The Court of Appeals' recommendations,
embodied in its December 21, 2012 Report and Recommendation, are hereby ADOPTED with the following
MODIFICATIONS:

I. The Department of Energy (DOE) is hereby ORDERED to oversee the strict implementation of the following
activities:

A. Preparatory to the Test Run of the entire stretch of the WOPL:

1) FPIC shall perform the following:

a. Continue submission of monitoring charts, data/reading, accomplishment reports, and


project status for all related activities/works. Respond to comments and prepare for site
inspection.

b. Continue gas testing along the right-of-way using the monitoring wells or boreholes.
Prepare for inspection of right-of-way and observation of gas testing activities on
monitoring wells and boreholes.

c. Explain the process of the selection of borehole location and identify those located in
pipeline bends, bodies of water, highways, residential areas, repaired portions of the
pipelines, dents and welded joints, as well other notable factors, circumstances, or
exposure to stresses. d. Set up additional boreholes and monitoring wells sufficient to
cover the entire stretch of the WOPL, the number and location of which shall be
determined by the DOE.

e. Continue submitting status report to the concerned government agency/ies relating to


"Project Mojica," or the on-going pipeline segment realignment activity being undertaken
by FPIC to give way to a flood control project of the MMDA in the vicinity of Mojica St.
and Pres. Osmea Highway, and prepare for site inspection.

28
2) The DOE shall perform the following undertakings:

a. Conduct onsite inspection of the pipeline right-of-way, the area around the WOPL and
the equipment installed underground or aboveground.

b. Review and check the condition of the 22 patches reinforced with Clockspring sleeves
by performing the following:

i. Determine the location of the sleeves

ii. Review the procedure for the repair of the sleeves

iii. Inspect the areas where the affected portions of the WOPL are located and
which are easily accessible.

c. Inspect onsite the cathodic protection rectifier to check the following:

i. old and current readings

ii. the segment/s covered by the cathodic protection system

iii. review the criteria for prioritization of corrective action.

d. Observe and witness the running/operation of the intelligent and cleaning pigs.

e. Check and calibrate the instruments that will be used for the actual tests on the
pipeline, and validate the calibration certificates of these instruments.

B. During the Actual Test Run:

1) FPIC shall perform the following:

a. Perform Cleaning Pig run and witness the launching and receiving of the intelligent
and cleaning pigs.

b. Demonstrate and observe the various pressure and leakage tests, including the
following:

i. "Blocked-in pressure test" or the pressure test conducted while all the WOPL's
openings are blocked or closed off; and

ii. "In-operation test" or the hourly monitoring of pressure rating after the pipeline
is filled with dyed water and pressurized at a specified rate.

c. Continue, inspect, and oversee the current gas monitoring system, or the monitoring of
gas flow from the boreholes and monitoring wells of the WOPL.

d. Check the mass or volume balance computation during WOPL test run by conducting:

i. 30 days baseline data generation

ii. Computational analysis and monitoring of the data generated.

29
II. After FPIC has undertaken the activities prescribed in the preceding paragraph 1, the DOE shall determine if
the activities and the results of the test run warrant the re-opening of the WOPL. In the event that the DOE is
satisfied that the WOPL is safe for continued commercial operations, it shall issue an order allowing FPIC to
resume the operations of the pipeline.

III. Once the WOPL is re-opened, the DOE shall see to it that FPIC strictly complies with the following directives:

a. Continue implementation of its Pipeline Integrity Management System (PIMS), as reviewed by the
DOE, which shall include, but shall not be limited to:

1. the conduct of daily patrols on the entire stretch of the WOPL, every two hours;

2. continued close monitoring of all the boreholes and monitoring wells of the WOPL pipeline;

3. regular periodic testing and maintenance based on its PIMS; and

4. the auditing of the pipeline's mass input versus mass output;

b. submit to the DOE, within ten (10) days of each succeeding month, monthly reports on its compliance
with the above directives and any other conditions that the DOE may impose, the results of the
monitoring, tests, and audit, as well as any and all activities undertaken on the WOPL or in connection
with its operation. The concerned government agencies, namely: the Industrial Technology Development
Institute (ITDI) and the Metals Industry Research and Development Center (MIRDC), both under the
Department of Science and Technology (DOST), the Environmental Management Bureau (EMB) of the
Department of Environment and Natural Resources (DENR), the Bureau of Design (BOD) of the
Department of Public Works and Highways (DPWH), the University of the Philippines - National Institute
of Geological Science (UP-NI GS) and University of the Philippines - Institute of Civil Engineering (UP-
ICE), the petitioners, intervenors and this Court shall likewise be furnished by FPIC with the monthly
reports. This shall include, but shall not be limited to: realignment, repairs, and maintenance works; and

c. continue coordination with the concerned government agencies for the implementation of its projects. 1wphi1

IV. Respondent FPIC is also DIRECTED to undertake and continue the remediation, rehabilitation and
restoration of the affected Barangay Bangkal environment until full restoration of the affected area to its condition
prior to the leakage is achieved. For this purpose, respondent FPIC must strictly comply with the measures,
directives and permits issued by the DENR for its remediation activities in Barangay Bangkal, including but not
limited to, the Wastewater Discharge Permit and Permit to Operate. The DENR has the authority to oversee and
supervise the aforesaid activities on said affected barangay.

V. The Inter-Agency Committee on Environmental Health under the City Government of Makati shall SUBMIT to
the DENR its evaluation of the Remediation Plan prepared by CH2M Hill Philippines, Inc. within thirty (30) days
from receipt hereof.

VI. Petitioners' prayer for the creation of a special trust fund to answer for similar contingencies in the future is
DENIED.

SO ORDERED.

PRESBITERO J. VELASCO, JR.


Associate Justice

30
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 196870 June 26, 2012

BORACAY FOUNDATION, INC., Petitioner,


vs.
THE PROVINCE OF AKLAN, REPRESENTED BY GOVERNOR CARLITO S. MARQUEZ, THE PHILIPPINE
RECLAMATION AUTHORITY, AND THE DENR-EMB (REGION VI), Respondents.

DECISION

LEONARDO-DE CASTRO, J.:

In resolving this controversy, the Court took into consideration that all the parties involved share common goals
in pursuit of certain primordial State policies and principles that are enshrined in the Constitution and pertinent
laws, such as the protection of the environment, the empowerment of the local government units, the promotion
of tourism, and the encouragement of the participation of the private sector. The Court seeks to reconcile the
respective roles, duties and responsibilities of the petitioner and respondents in achieving these shared goals
within the context of our Constitution, laws and regulations.

Nature of the Case

This is an original petition for the issuance of an Environmental Protection Order in the nature of a continuing
mandamus under A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure for Environmental Cases,
promulgated on April 29, 2010.

The Parties

Petitioner Boracay Foundation, Inc. (petitioner) is a duly registered, non-stock domestic corporation. Its primary
purpose is "to foster a united, concerted and environment-conscious development of Boracay Island, thereby
preserving and maintaining its culture, natural beauty and ecological balance, marking the island as the crown
jewel of Philippine tourism, a prime tourist destination in Asia and the whole world." 1 It counts among its
members at least sixty (60) owners and representatives of resorts, hotels, restaurants, and similar institutions; at
least five community organizations; and several environmentally-conscious residents and advocates. 2

Respondent Province of Aklan (respondent Province) is a political subdivision of the government created
pursuant to Republic Act No. 1414, represented by Honorable Carlito S. Marquez, the Provincial Governor
(Governor Marquez).

Respondent Philippine Reclamation Authority (respondent PRA), formerly called the Public Estates Authority
(PEA), is a government entity created by Presidential Decree No. 1084, 3 which states that one of the purposes
for which respondent PRA was created was to reclaim land, including foreshore and submerged areas. PEA
eventually became the lead agency primarily responsible for all reclamation projects in the country under
Executive Order No. 525, series of 1979. In June 2006, the President of the Philippines issued Executive Order
No. 543, delegating the power "to approve reclamation projects to PRA through its governing Board, subject to
compliance with existing laws and rules and further subject to the condition that reclamation contracts to be
executed with any person or entity (must) go through public bidding."4

Respondent Department of Environment and Natural Resources Environmental Management Bureau (DENR-
EMB), Regional Office VI (respondent DENR-EMB RVI), is the government agency in the Western Visayas
Region authorized to issue environmental compliance certificates regarding projects that require the
environments protection and management in the region. 5

Summary of Antecedent Facts

31
Boracay Island (Boracay), a tropical paradise located in the Western Visayas region of the Philippines and one
of the countrys most popular tourist destinations, was declared a tourist zone and marine reserve in 1973 under
Presidential Proclamation No. 1801.6 The island comprises the barangays of Manoc-manoc, Balabag, and
Yapak, all within the municipality of Malay, in the province of Aklan.7

Petitioner describes Boracay as follows:

Boracay is well-known for its distinctive powdery white-sand beaches which are the product of the unique
ecosystem dynamics of the area. The island itself is known to come from the uplifted remnants of an ancient reef
platform. Its beaches, the sandy land strip between the water and the area currently occupied by numerous
establishments, is the primary draw for domestic and international tourists for its color, texture and other unique
characteristics. Needless to state, it is the premier domestic and international tourist destination in the
Philippines.8

More than a decade ago, respondent Province built the Caticlan Jetty Port and Passenger Terminal at Barangay
Caticlan to be the main gateway to Boracay. It also built the corresponding Cagban Jetty Port and Passenger
Terminal to be the receiving end for tourists in Boracay. Respondent Province operates both ports "to provide
structural facilities suited for locals, tourists and guests and to provide safety and security measures." 9

In 2005, Boracay 2010 Summit was held and participated in by representatives from national government
agencies, local government units (LGUs), and the private sector. Petitioner was one of the organizers and
participants thereto. The Summit aimed "to re-establish a common vision of all stakeholders to ensure the
conservation, restoration, and preservation of Boracay Island" and "to develop an action plan that [would allow]
all sectors to work in concert among and with each other for the long term benefit and sustainability of the island
and the community."10 The Summit yielded a Terminal Report11 stating that the participants had shared their
dream of having world-class land, water and air infrastructure, as well as given their observations that
government support was lacking, infrastructure was poor, and, more importantly, the influx of tourists to Boracay
was increasing. The Report showed that there was a need to expand the port facilities at Caticlan due to
congestion in the holding area of the existing port, caused by inadequate facilities, thus tourists suffered long
queues while waiting for the boat ride going to the island.12

Respondent Province claimed that tourist arrivals to Boracay reached approximately 649,559 in 2009 and
779,666 in 2010, and this was expected to reach a record of 1 million tourist arrivals in the years to come. Thus,
respondent Province conceptualized the expansion of the port facilities at Barangay Caticlan. 13

The Sangguniang Barangay of Caticlan, Malay Municipality, issued Resolution No. 13, s. 2008 14 on April 25,
2008 stating that it had learned that respondent Province had filed an application with the DENR for a foreshore
lease of areas along the shorelines of Barangay Caticlan, and manifesting its strong opposition to said
application, as the proposed foreshore lease practically covered almost all the coastlines of said barangay,
thereby technically diminishing its territorial jurisdiction, once granted, and depriving its constituents of their
statutory right of preference in the development and utilization of the natural resources within its jurisdiction. The
resolution further stated that respondent Province did not conduct any consultations with the Sangguniang
Barangay of Caticlan regarding the proposed foreshore lease, which failure the Sanggunian considered as an
act of bad faith on the part of respondent Province.15

On November 20, 2008, the Sangguniang Panlalawigan of respondent Province approved Resolution No. 2008-
369,16 formally authorizing Governor Marquez to enter into negotiations towards the possibility of effecting self-
liquidating and income-producing development and livelihood projects to be financed through bonds,
debentures, securities, collaterals, notes or other obligations as provided under Section 299 of the Local
Government Code, with the following priority projects: (a) renovation/rehabilitation of the Caticlan/Cagban
Passenger Terminal Buildings and Jetty Ports; and (b) reclamation of a portion of Caticlan foreshore for
commercial purposes.17 This step was taken as respondent Provinces existing jetty port and passenger terminal
was funded through bond flotation, which was successfully redeemed and paid ahead of the target date. This
was allegedly cited as one of the LGUs Best Practices wherein respondent Province was given the appropriate
commendation.18

Respondent Province included the proposed expansion of the port facilities at Barangay Caticlan in its 2009
Annual Investment Plan,19 envisioned as its project site the area adjacent to the existing jetty port, and identified
additional areas along the coastline of Barangay Caticlan as the site for future project expansion. 20

32
Governor Marquez sent a letter to respondent PRA on March 12, 200921 expressing the interest of respondent
Province to reclaim about 2.64 hectares of land along the foreshores of Barangay Caticlan, Municipality of
Malay, Province of Aklan.

Sometime in April 2009, respondent Province entered into an agreement with the Financial Advisor/Consultant
that won in the bidding process held a month before, to conduct the necessary feasibility study of the proposed
project for the Renovation/Rehabilitation of the Caticlan Passenger Terminal Building and Jetty Port,
Enhancement and Recovery of Old Caticlan Coastline, and Reclamation of a Portion of Foreshore for
Commercial Purposes (the Marina Project), in Malay, Aklan. 22

Subsequently, on May 7, 2009, the Sangguniang Panlalawigan of respondent Province issued Resolution No.
2009110,23 which authorized Governor Marquez to file an application to reclaim the 2.64 hectares of foreshore
area in Caticlan, Malay, Aklan with respondent PRA.

Sometime in July 2009, the Financial Advisor/Consultant came up with a feasibility study which focused on the
land reclamation of 2.64 hectares by way of beach enhancement and recovery of the old Caticlan coastline for
the rehabilitation and expansion of the existing jetty port, and for its future plans the construction of commercial
building and wellness center. The financial component of the said study was Two Hundred Sixty Million Pesos
(P260,000,000.00). Its suggested financing scheme was bond flotation. 24

Meanwhile, the Sangguniang Bayan of the Municipality of Malay expressed its strong opposition to the intended
foreshore lease application, through Resolution No. 044, 25 approved on July 22, 2009, manifesting therein that
respondent Provinces foreshore lease application was for business enterprise purposes for its benefit, at the
expense of the local government of Malay, which by statutory provisions was the rightful entity "to develop, utilize
and reap benefits from the natural resources found within its jurisdiction." 26

In August 2009, a Preliminary Geohazard Assessment27 for the enhancement/expansion of the existing Caticlan
Jetty Port and Passenger Terminal through beach zone restoration and Protective Marina Developments in
Caticlan, Malay, Aklan was completed.

Thereafter, Governor Marquez submitted an Environmental Performance Report and Monitoring Program
(EPRMP)28 to DENR-EMB RVI, which he had attached to his letter 29 dated September 19, 2009, as an initial step
for securing an Environmental Compliance Certificate (ECC). The letter reads in part:

With the project expected to start its construction implementation next month, the province hereby assures your
good office that it will give preferential attention to and shall comply with whatever comments that you may have
on this EPRMP.30 (Emphasis added.)

Respondent Province was then authorized to issue "Caticlan Super Marina Bonds" for the purpose of funding
the renovation of the Caticlan Jetty Port and Passenger Terminal Building, and the reclamation of a portion of the
foreshore lease area for commercial purposes in Malay, Aklan through Provincial Ordinance No. 2009-013,
approved on September 10, 2009. The said ordinance authorized Governor Marquez to negotiate, sign and
execute agreements in relation to the issuance of the Caticlan Super Marina Bonds in the amount not
exceeding P260,000,000.00.31

Subsequently, the Sangguniang Panlalawigan of the Province of Aklan issued Provincial Ordinance No. 2009-
01532 on October 1, 2009, amending Provincial Ordinance No. 2009-013, authorizing the bond flotation of the
Province of Aklan through Governor Marquez to fund the Marina Project and appropriate the entire proceeds of
said bonds for the project, and further authorizing Governor Marquez to negotiate, sign and execute contracts or
agreements pertinent to the transaction.33

Within the same month of October 2009, respondent Province deliberated on the possible expansion from its
original proposed reclamation area of 2.64 hectares to forty (40) hectares in order to maximize the utilization of
its resources and as a response to the findings of the Preliminary Geohazard Assessment study which showed
that the recession and retreat of the shoreline caused by coastal erosion and scouring should be the first major
concern in the project site and nearby coastal area. The study likewise indicated the vulnerability of the coastal
zone within the proposed project site and the nearby coastal area due to the effects of sea level rise and climate
change which will greatly affect the social, economic, and environmental situation of Caticlan and nearby Malay
coastal communities.34

33
In his letter dated October 22, 2009 addressed to respondent PRA, Governor Marquez wrote:

With our substantial compliance with the requirements under Administrative Order No. 2007-2 relative to our
request to PRA for approval of the reclamation of the [proposed Beach Zone Restoration and Protection Marine
Development in Barangays Caticlan and Manoc-Manoc] and as a result of our discussion during the [meeting
with the respondent PRA on October 12, 2009], may we respectfully submit a revised Reclamation Project
Description embodying certain revisions/changes in the size and location of the areas to be reclaimed. x x x.

On another note, we are pleased to inform your Office that the bond flotation we have secured with the Local
Government Unit Guarantee Corporation (LGUGC) has been finally approved last October 14, 2009. This will
pave the way for the implementation of said project. Briefly, the Province has been recognized by the Bureau of
Local Government Finance (BLGF) for its capability to meet its loan obligations. x x x.

With the continued increase of tourists coming to Boracay through Caticlan, the Province is venturing into such
development project with the end in view of protection and/or restoring certain segments of the shoreline in
Barangays Caticlan (Caticlan side) and Manoc-manoc (Boracay side) which, as reported by experts, has been
experiencing tremendous coastal erosion.

For the project to be self-liquidating, however, we will be developing the reclaimed land for commercial and
tourism-related facilities and for other complementary uses.35 (Emphasis ours.)

Then, on November 19, 2009, the Sangguniang Panlalawigan enacted Resolution No. 2009-299 36 authorizing
Governor Marquez to enter into a Memorandum of Agreement (MOA) with respondent PRA in the
implementation of the Beach Zone Restoration and Protection Marina Development Project, which shall reclaim
a total of 40 hectares in the areas adjacent to the jetty ports at Barangay Caticlan and Barangay Manoc-manoc.
The Sangguniang Panlalawigan approved the terms and conditions of the necessary agreements for the
implementation of the bond flotation of respondent Province to fund the renovation/rehabilitation of the existing
jetty port by way of enhancement and recovery of the Old Caticlan shoreline through reclamation of an area of
2.64 hectares in the amount of P260,000,000.00 on December 1, 2009.37

Respondent Province gave an initial presentation of the project with consultation to the Sangguniang Bayan of
Malay38 on December 9, 2009.

Respondent PRA approved the reclamation project on April 20, 2010 in its Resolution No. 4094 and authorized
its General Manager/Chief Executive Officer (CEO) to enter into a MOA with respondent Province for the
implementation of the reclamation project.39

On April 27, 2010, DENR-EMB RVI issued to respondent Province ECC-R6-1003-096-7100 (the questioned
ECC) for Phase 1 of the Reclamation Project to the extent of 2.64 hectares to be done along the Caticlan side
beside the existing jetty port.40

On May 17, 2010, respondent Province entered into a MOA41 with respondent PRA. Under Article III, the Project
was described therein as follows:

The proposed Aklan Beach Zone Restoration and Protection Marina Development Project involves the
reclamation and development of approximately forty (40) hectares of foreshore and offshore areas of the
Municipality of Malay x x x.

The land use development of the reclamation project shall be for commercial, recreational and institutional and
other applicable uses.42 (Emphases supplied.)

It was at this point that respondent Province deemed it necessary to conduct a series of what it calls
"information-education campaigns," which provided the venue for interaction and dialogue with the public,
particularly the Barangay and Municipal officials of the Municipality of Malay, the residents of Barangay Caticlan
and Boracay, the stakeholders, and the non-governmental organizations (NGOs). The details of the campaign
are summarized as follows43 :

a. June 17, 2010 at Casa Pilar Beach Resort, Boracay Island, Malay, Aklan; 44
b. July 28, 2010 at Caticlan Jetty Port and Passenger Terminal; 45
34
c. July 31, 2010 at Barangay Caticlan Plaza;46
d. September 15, 2010 at the Office of the Provincial Governor with Municipal Mayor of Malay Mayor
John P. Yap;47
e. October 12, 2010 at the Office of the Provincial Governor with the Provincial Development Council
Executive Committee;48 and
f. October 29, 2010 at the Office of the Provincial Governor with Officials of LGU-Malay and Petitioner.49

Petitioner claims that during the "public consultation meeting" belatedly called by respondent Province on June
17, 2010, respondent Province presented the Reclamation Project and only then detailed the actions that it had
already undertaken, particularly: the issuance of the Caticlan Super Marina Bonds; the execution of the MOA
with respondent PRA; the alleged conduct of an Environmental Impact Assessment (EIA) study for the
reclamation project; and the expansion of the project to forty (40) hectares from 2.64 hectares. 50

In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the Malay Municipality reiterated its strong
opposition to respondent Provinces project and denied its request for a favorable endorsement of the Marina
Project.51

The Malay Municipality subsequently issued Resolution No. 016, Series of 2010, adopted on August 3, 2010, to
request respondent PRA "not to grant reclamation permit and notice to proceed to the Marina Project of the
[respondent] Provincial Government of Aklan located at Caticlan, Malay, Aklan." 52

In a letter53 dated October 12, 2010, petitioner informed respondent PRA of its opposition to the reclamation
project, primarily for the reason that, based on the opinion of Dr. Porfirio M. Alio, an expert from the University
of the Philippines Marine Science Institute (UPMSI), which he rendered based on the documents submitted by
respondent Province to obtain the ECC, a full EIA study is required to assess the reclamation projects likelihood
of rendering critical and lasting effect on Boracay considering the proximity in distance, geographical location,
current and wind direction, and many other environmental considerations in the area. Petitioner noted that said
documents had failed to deal with coastal erosion concerns in Boracay. It also noted that respondent Province
failed to comply with certain mandatory provisions of the Local Government Code, particularly, those requiring
the project proponent to conduct consultations with stakeholders.

Petitioner likewise transmitted its Resolution No. 001, Series of 2010, registering its opposition to the
reclamation project to respondent Province, respondent PRA, respondent DENR-EMB, the National Economic
Development Authority Region VI, the Malay Municipality, and other concerned entities. 54

Petitioner alleges that despite the Malay Municipalitys denial of respondent Provinces request for a favorable
endorsement, as well as the strong opposition manifested both by Barangay Caticlan and petitioner as an NGO,
respondent Province still continued with the implementation of the Reclamation Project. 55

On July 26, 2010, the Sangguniang Panlalawigan of respondent Province set aside Resolution No. 046, s. 2010,
of the Municipality of Malay and manifested its support for the implementation of the aforesaid project through its
Resolution No. 2010-022.56

On July 27, 2010, the MOA was confirmed by respondent PRA Board of Directors under its Resolution No. 4130.
Respondent PRA wrote to respondent Province on October 19, 2010, informing the latter to proceed with the
reclamation and development of phase 1 of site 1 of its proposed project. Respondent PRA attached to said
letter its Evaluation Report dated October 18, 2010. 57

Petitioner likewise received a copy of respondent PRAs letter dated October 19, 2010, which authorized
respondent Province to proceed with phase 1 of the reclamation project, subject to compliance with the
requirements of its Evaluation Report. The reclamation project was described as:

"[A] seafront development involving reclamation of an aggregate area of more or less, forty (40) hectares in two
(2) separate sites both in Malay Municipality, Aklan Province. Site 1 is in Brgy. Caticlan with a total area of 36.82
hectares and Site 2 in Brgy. Manoc-Manoc, Boracay Island with a total area of 3.18 hectares. Sites 1 and 2 are
on the opposite sides of Tabon Strait, about 1,200 meters apart. x x x." 58 (Emphases added.)

The Sangguniang Panlalawigan of Aklan, through Resolution No. 2010-034, 59 addressed the apprehensions of
petitioner embodied in its Resolution No. 001, s. 2010, and supported the implementation of the project. Said

35
resolution stated that the apprehensions of petitioner with regard to the economic, social and political negative
impacts of the projects were mere perceptions and generalities and were not anchored on definite scientific,
social and political studies.

In the meantime, a study was commissioned by the Philippine Chamber of Commerce and Industry-Boracay
(PCCI-Boracay), funded by the Department of Tourism (DOT) with the assistance of, among others, petitioner.
The study was conducted in November 2010 by several marine biologists/experts from the Marine
Environmental Resources Foundation (MERF) of the UPMSI. The study was intended to determine the potential
impact of a reclamation project in the hydrodynamics of the strait and on the coastal erosion patterns in the
southern coast of Boracay Island and along the coast of Caticlan.60

After noting the objections of the respective LGUs of Caticlan and Malay, as well as the apprehensions of
petitioner, respondent Province issued a notice to the contractor on December 1, 2010 to commence with the
construction of the project.61

On April 4, 2011, the Sangguniang Panlalawigan of Aklan, through its Committee on Cooperatives, Food,
Agriculture, and Environmental Protection and the Committee on Tourism, Trade, Industry and Commerce,
conducted a joint committee hearing wherein the study undertaken by the MERF-UPMSI was discussed. 62 In
attendance were Mr. Ariel Abriam, President of PCCI-Boracay, representatives from the Provincial Government,
and Dr. Cesar Villanoy, a professor from the UPMSI. Dr. Villanoy said that the subject project, consisting of 2.64
hectares, would only have insignificant effect on the hydrodynamics of the strait traversing the coastline of
Barangay Caticlan and Boracay, hence, there was a distant possibility that it would affect the Boracay coastline,
which includes the famous white-sand beach of the island.63

Thus, on April 6, 2011, the Sangguniang Panlalawigan of Aklan enacted Resolution No. 2011-065 64 noting the
report on the survey of the channel between Caticlan and Boracay conducted by the UPMSI in relation to the
effects of the ongoing reclamation to Boracay beaches, and stating that Dr. Villanoy had admitted that nowhere
in their study was it pointed out that there would be an adverse effect on the white-sand beach of Boracay.

During the First Quarter Regular Meeting of the Regional Development Council, Region VI (RDC-VI) on April 16,
2011, it approved and supported the subject project (covering 2.64 hectares) through RDC-VI Resolution No. VI-
26, series of 2011.65

Subsequently, Mr. Abriam sent a letter to Governor Marquez dated April 25, 2011 stating that the study
conducted by the UPMSI confirms that the water flow across the Caticlan-Boracay channel is primarily tide-
driven, therefore, the marine scientists believe that the 2.64-hectare project of respondent Province would not
significantly affect the flow in the channel and would unlikely impact the Boracay beaches. Based on this, PCCI-
Boracay stated that it was not opposing the 2.64-hectare Caticlan reclamation project on environmental
grounds.66

On June 1, 2011, petitioner filed the instant Petition for Environmental Protection Order/Issuance of the Writ of
Continuing Mandamus. On June 7, 2011, this Court issued a Temporary Environmental Protection Order (TEPO)
and ordered the respondents to file their respective comments to the petition. 67

After receiving a copy of the TEPO on June 9, 2011, respondent Province immediately issued an order to the
Provincial Engineering Office and the concerned contractor to cease and desist from conducting any
construction activities until further orders from this Court.

The petition is premised on the following grounds:

I.

The respondent Province, proponent of the reclamation project, failed to comply with relevant rules and
regulations in the acquisition of an ECC.

A. The reclamation project is co-located within environmentally critical areas requiring the performance of
a full, or programmatic, environmental impact assessment.
B. Respondent Province failed to obtain the favorable endorsement of the LGU concerned.

36
C. Respondent Province failed to conduct the required consultation procedures as required by the Local
Government Code.
D. Respondent Province failed to perform a full environmental impact assessment as required by law
and relevant regulations.

II.

The reclamation of land bordering the strait between Caticlan and Boracay shall adversely affect the frail
ecological balance of the area.68

Petitioner objects to respondent Provinces classification of the reclamation project as single instead of co-
located, as "non-environmentally critical," and as a mere "rehabilitation" of the existing jetty port. Petitioner
points out that the reclamation project is on two sites (which are situated on the opposite sides of Tabon Strait,
about 1,200 meters apart):

36.82 hectares Site 1, in Bgy. Caticlan

3.18 hectares Site 2, in Manoc-manoc, Boracay Island 69

Phase 1, which was started in December 2010 without the necessary permits, 70 is located on the Caticlan side of
a narrow strait separating mainland Aklan from Boracay. In the implementation of the project, respondent
Province obtained only an ECC to conduct Phase 1, instead of an ECC on the entire 40 hectares. Thus,
petitioner argues that respondent Province abused and exploited the Revised Procedural Manual for DENR
Administrative Order No. 30, Series of 2003 (DENR DAO 2003-30) 71 relating to the acquisition of an ECC by:

1. Declaring the reclamation project under "Group II Projects-Non-ECP (environmentally critical project)
in ECA (environmentally critical area) based on the type and size of the area," and

2. Failing to declare the reclamation project as a co-located project application which would have
required the Province to submit a Programmatic Environmental Impact Statement (PEIS) 72 or
Programmatic Environmental [Performance] Report Management Plan (PE[P]RMP). 73 (Emphases ours.)

Petitioner further alleges that the Revised Procedural Manual (on which the classification above is based, which
merely requires an Environmental Impact Statement [EIS] for Group II projects) is patently ultra vires, and
respondent DENR-EMB RVI committed grave abuse of discretion because the laws on EIS, namely, Presidential
Decree Nos. 1151 and 1586, as well as Presidential Proclamation No. 2146, clearly indicate that projects in
environmentally critical areas are to be immediately considered environmentally critical. Petitioner complains that
respondent Province applied for an ECC only for Phase 1; hence, unlawfully

evading the requirement that co-located projects74 within Environmentally Critical Areas (ECAs) must submit a
PEIS and/or a PEPRMP.

Petitioner argues that respondent Province fraudulently classified and misrepresented the project as a Non-ECP
in an ECA, and as a single project instead of a co-located one. The impact assessment allegedly performed
gives a patently erroneous and wrongly-premised appraisal of the possible environmental impact of the
reclamation project. Petitioner contends that respondent Provinces choice of classification was designed to
avoid a comprehensive impact assessment of the reclamation project.

Petitioner further contends that respondent DENR-EMB RVI willfully and deliberately disregarded its duty to
ensure that the environment is protected from harmful developmental projects because it allegedly performed
only a cursory and superficial review of the documents submitted by the respondent Province for an ECC, failing
to note that all the information and data used by respondent Province in its application for the ECC were all
dated and not current, as data was gathered in the late 1990s for the ECC issued in 1999 for the first jetty port.
Thus, petitioner alleges that respondent DENR-EMB RVI ignored the environmental impact to Boracay, which
involves changes in the structure of the coastline that could contribute to the changes in the characteristics of
the sand in the beaches of both Caticlan and Boracay.

Petitioner insists that reclamation of land at the Caticlan side will unavoidably adversely affect the Boracay side
and notes that the declared objective of the reclamation project is for the exploitation of Boracays tourist trade,
37
since the project is intended to enhance support services thereto. But, petitioner argues, the primary reason for
Boracays popularity is its white-sand beaches which will be negatively affected by the project.

Petitioner alleges that respondent PRA had required respondent Province to obtain the favorable endorsement
of the LGUs of Barangay Caticlan and Malay Municipality pursuant to the consultation procedures as required by
the Local Government Code.75 Petitioner asserts that the reclamation project is in violation not only of laws on
EIS but also of the Local Government Code as respondent Province failed to enter into proper consultations with
the concerned LGUs. In fact, the Liga ng mga Barangay-Malay Chapter also expressed strong opposition
against the project.76

Petitioner cites Sections 26 and 27 of the Local Government Code, which require consultations if the project or
program may cause pollution, climactic change, depletion of non-renewable resources, etc. According to
petitioner, respondent Province ignored the LGUs opposition expressed as early as 2008. Not only that,
respondent Province belatedly called for public "consultation meetings" on June 17 and July 28, 2010, after an
ECC had already been issued and the MOA between respondents PRA and Province had already been
executed. As the petitioner saw it, these were not consultations but mere "project presentations."

Petitioner claims that respondent Province, aided and abetted by respondents PRA and DENR-EMB, ignored the
spirit and letter of the Revised Procedural Manual, intended to implement the various regulations governing the
Environmental Impact Assessments (EIAs) to ensure that developmental projects are in line with sustainable
development of natural resources. The project was conceptualized without considering alternatives.

Further, as to its allegation that respondent Province failed to perform a full EIA, petitioner argues that while it is
true that as of now, only the Caticlan side has been issued an ECC, the entire project involves the Boracay side,
which should have been considered a co-located project. Petitioner claims that any project involving Boracay
requires a full EIA since it is an ECA. Phase 1 of the project will affect Boracay and Caticlan as they are
separated only by a narrow strait; thus, it should be considered an ECP. Therefore, the ECC and permit issued
must be invalidated and cancelled.

Petitioner contends that a study shows that the flow of the water through a narrower channel due to the
reclamation project will likely divert sand transport off the southwest part of Boracay, whereas the characteristic
coast of the Caticlan side of the strait indicate stronger sediment transport. 77 The white-sand beaches of Boracay
and its surrounding marine environment depend upon the natural flow of the adjacent waters.

Regarding its claim that the reclamation of land bordering the strait between Caticlan and Boracay shall
adversely affect the frail ecological balance of the area, petitioner submits that while the study conducted by the
MERF-UPMSI only considers the impact of the reclamation project on the land, it is undeniable that it will also
adversely affect the already frail ecological balance of the area. The effect of the project would have been
properly assessed if the proper EIA had been performed prior to any implementation of the project.

According to petitioner, respondent Provinces intended purposes do not prevail over its duty and obligation to
protect the environment. Petitioner believes that rehabilitation of the Jetty Port may be done through other
means.

In its Comment78 dated June 21, 2011, respondent Province claimed that application for reclamation of 40
hectares is advantageous to the Provincial Government considering that its filing fee would only cost
Php20,000.00 plus Value Added Tax (VAT) which is also the minimum fee as prescribed under Section 4.2 of
Administrative Order No. 2007-2.79

Respondent Province considers the instant petition to be premature; thus, it must necessarily fail for lack of
cause of action due to the failure of petitioner to fully exhaust the available administrative remedies even before
seeking judicial relief. According to respondent Province, the petition primarily assailed the decision of
respondent DENR-EMB RVI in granting the ECC for the subject project consisting of 2.64 hectares and sought
the cancellation of the ECC for alleged failure of respondent Province to submit proper documentation as
required for its issuance. Hence, the grounds relied upon by petitioner can be addressed within the confines of
administrative processes provided by law.

Respondent Province believes that under Section 5.4.3 of DENR Administrative Order No. 2003-30 (DAO 2003-
30),80 the issuance of an ECC81 is an official decision of DENR-EMB RVI on the application of a project

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proponent.82 It cites Section 6 of DENR DAO 2003-30, which provides for a remedy available to the party
aggrieved by the final decision on the proponents ECC applications.

Respondent Province argues that the instant petition is anchored on a wrong premise that results to petitioners
unfounded fears and baseless apprehensions. It is respondent Provinces contention that its 2.64-hectare
reclamation project is considered as a "stand alone project," separate and independent from the approved area
of 40 hectares. Thus, petitioner should have observed the difference between the "future development plan" of
respondent Province from its "actual project" being undertaken. 83

Respondent Province clearly does not dispute the fact that it revised its original application to respondent PRA
from 2.64 hectares to 40 hectares. However, it claims that such revision is part of its future plan, and
implementation thereof is "still subject to availability of funds, independent scientific environmental study,
separate application of ECC and notice to proceed to be issued by respondent PRA." 84

Respondent Province goes on to claim that "[p]etitioners version of the Caticlan jetty port expansion project is a
bigger project which is still at the conceptualization stage. Although this project was described in the Notice to
Proceed issued by respondent PRA to have two phases, 36.82 hectares in Caticlan and 3.18 hectares in
Boracay [Island,] it is totally different from the [ongoing] Caticlan jetty port expansion project." 85

Respondent Province says that the Accomplishment Report 86 of its Engineering Office would attest that the
actual project consists of 2.64 hectares only, as originally planned and conceptualized, which was even reduced
to 2.2 hectares due to some construction and design modifications.

Thus, respondent Province alleges that from its standpoint, its capability to reclaim is limited to 2.64 hectares
only, based on respondent PRAs Evaluation Report 87 dated October 18, 2010, which was in turn the basis of the
issuance of the Notice to Proceed dated October 19, 2010, because the projects financial component
is P260,000,000.00 only. Said Evaluation Report indicates that the implementation of the other phases of the
project including site 2, which consists of the other portions of the 40-hectare area that includes a portion in
Boracay, is still within the 10-year period and will depend largely on the availability of funds of respondent
Province.88

So, even if respondent PRA approved an area that would total up to 40 hectares, it was divided into phases in
order to determine the period of its implementation. Each phase was separate and independent because the
source of funds was also separate. The required documents and requirements were also specific for each
phase. The entire approved area of 40 hectares could be implemented within a period of 10 years but this would
depend solely on the availability of funds.89

As far as respondent Province understands it, additional reclamations not covered by the ECC, which only
approved 2.64 hectares, should undergo another EIA. If respondent Province intends to commence the
construction on the other component of the 40 hectares, then it agrees that it is mandated to secure a new
ECC.90

Respondent Province admits that it dreamt of a 40-hectare project, even if it had originally planned and was at
present only financially equipped and legally compliant to undertake 2.64 hectares of the project, and only as an
expansion of its old jetty port.91

Respondent Province claims that it has complied with all the necessary requirements for securing an ECC. On
the issue that the reclamation project is within an ECA requiring the performance of a full or programmatic EIA,
respondent Province reiterates that the idea of expanding the area to 40 hectares is only a future plan. It only
secured an ECC for 2.64 hectares, based on the limits of its funding and authority. From the beginning, its
intention was to rehabilitate and expand the existing jetty port terminal to accommodate an increasing projected
traffic. The subject project is specifically classified under DENR DAO 2003-30 on its Project Grouping Matrix for
Determination of EIA Report Type considered as Minor Reclamation Projects falling under Group II Non ECP in
an ECA. Whether 2.64 or 40 hectares in area, the subject project falls within this classification.

Consequently, respondent Province claims that petitioner erred in considering the ongoing reclamation project at
Caticlan, Malay, Aklan, as co-located within an ECA.

39
Respondent Province, likewise argues that the 2.64-hectare project is not a component of the approved 40-
hectare area as it is originally planned for the expansion site of the existing Caticlan jetty port. At present, it has
no definite conceptual construction plan of the said portion in Boracay and it has no financial allocation to initiate
any project on the said Boracay portion.

Furthermore, respondent Province contends that the present project is located in Caticlan while the alleged
component that falls within an ECA is in Boracay. Considering its geographical location, the two sites cannot be
considered as a contiguous area for the reason that it is separated by a body of water a strait that traverses
between the mainland Panay wherein Caticlan is located and Boracay. Hence, it is erroneous to consider the
two sites as a co-located project within an ECA. Being a "stand alone project" and an expansion of the existing
jetty port, respondent DENR-EMB RVI had required respondent Province to perform an EPRMP to secure an
ECC as sanctioned by Item No. 8(b), page 7 of DENR DAO 2003-30.

Respondent Province contends that even if, granting for the sake of argument, it had erroneously categorized its
project as Non-ECP in an ECA, this was not a final determination. Respondent DENR-EMB RVI, which was the
administrator of the EIS system, had the final decision on this matter. Under DENR DAO 2003-30, an application
for ECC, even for a Category B2 project where an EPRMP is conducted, shall be subjected to a review process.
Respondent DENR-EMB RVI had the authority to deny said application. Its Regional Director could either issue
an ECC for the project or deny the application. He may also require a more comprehensive EIA study. The
Regional Director issued the ECC based on the EPRMP submitted by respondent Province and after the same
went through the EIA review process.

Thus, respondent Province concludes that petitioners allegation of this being a "co-located project" is premature
if not baseless as the bigger reclamation project is still on the conceptualization stage. Both respondents PRA
and Province are yet to complete studies and feasibility studies to embark on another project.

Respondent Province claims that an ocular survey of the reclamation project revealed that it had worked within
the limits of the ECC.92

With regard to petitioners allegation that respondent Province failed to get the favorable endorsement of the
concerned LGUs in violation of the Local Government Code, respondent Province contends that consultation
vis--vis the favorable endorsement from the concerned LGUs as contemplated under the Local Government
Code are merely tools to seek advice and not a power clothed upon the LGUs to unilaterally approve or
disapprove any government projects. Furthermore, such endorsement is not necessary for projects falling under
Category B2 unless required by the DENR-EMB RVI, under Section 5.3 of DENR DAO 2003-30.

Moreover, DENR Memorandum Circular No. 08-2007 no longer requires the issuance of permits and
certifications as a pre-requisite for the issuance of an ECC. Respondent Province claims to have conducted
consultative activities with LGUs in connection with Sections 26 and 27 of the Local Government Code. The
vehement and staunch objections of both the Sangguniang Barangay of Caticlan and the Sangguniang Bayan of
Malay, according to respondent Province, were not rooted on its perceived impact upon the people and the
community in terms of environmental or ecological balance, but due to an alleged conflict with their "principal
position to develop, utilize and reap benefits from the natural resources found within its
jurisdiction."93 Respondent Province argues that these concerns are not within the purview of the Local
Government Code. Furthermore, the Preliminary Geohazard Assessment Report and EPRMP as well as
Sangguniang Panlalawigan Resolution Nos. 2010-022 and 2010-034 should address any environmental issue
they may raise.

Respondent Province posits that the spirit and intent of Sections 26 and 27 of the Local Government Code is to
create an avenue for parties, the proponent and the LGU concerned, to come up with a tool in harmonizing its
views and concerns about the project. The duty to consult does not automatically require adherence to the
opinions during the consultation process. It is allegedly not within the provisions to give the full authority to the
LGU concerned to unilaterally approve or disapprove the project in the guise of requiring the proponent of
securing its favorable endorsement. In this case, petitioner is calling a halt to the project without providing an
alternative resolution to harmonize its position and that of respondent Province.

Respondent Province claims that the EPRMP94 would reveal that:

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[T]he area fronting the project site is practically composed of sand. Dead coral communities may be found along
the vicinity. Thus, fish life at the project site is quite scarce due to the absence of marine support systems like the
sea grass beds and coral reefs.

x x x [T]here is no coral cover at the existing Caticlan jetty port. [From] the deepest point of jetty to the
shallowest point, there was no more coral patch and the substrate is sandy. It is of public knowledge that the
said foreshore area is being utilized by the residents ever since as berthing or anchorage site of their motorized
banca. There will be no possibility of any coral development therein because of its continuous utilization.
Likewise, the activity of the strait that traverses between the main land Caticlan and Boracay Island would also
be a factor of the coral development. Corals [may] only be formed within the area if there is scientific human
intervention, which is absent up to the present.

In light of the foregoing premise, it casts serious doubt on petitioners allegations pertaining to the environmental
effects of Respondent-LGUs 2.64 hectares reclamation project. The alleged environmental impact of the subject
project to the beaches of Boracay Island remains unconfirmed. Petitioner had unsuccessfully proven that the
project would cause imminent, grave and irreparable injury to the community.95

Respondent Province prayed for the dissolution of the TEPO, claiming that the rules provide that the TEPO may
be dissolved if it appears after hearing that its issuance or continuance would cause irreparable damage to the
party or person enjoined, while the applicant may be fully compensated for such damages as he may suffer and
subject to the posting of a sufficient bond by the party or person enjoined. Respondent Province contends that
the TEPO would cause irreparable damage in two aspects:

a. Financial dislocation and probable bankruptcy; and

b. Grave and imminent danger to safety and health of inhabitants of immediate area, including tourists
and passengers serviced by the jetty port, brought about by the abrupt cessation of development works.

As regards financial dislocation, the arguments of respondent Province are summarized below:

1. This project is financed by bonds which the respondent Province had issued to its creditors as the
financing scheme in funding the present project is by way of credit financing through bond flotation.

2. The funds are financed by a Guarantee Bank getting payment from bonds, being sold to investors,
which in turn would be paid by the income that the project would realize or incur upon its completion.

3. While the project is under construction, respondent Province is appropriating a portion of its Internal
Revenue Allotment (IRA) budget from the 20% development fund to defray the interest and principal
amortization due to the Guarantee Bank.

4. The respondent Provinces IRA, regular income, and/or such other revenues or funds, as may be
permitted by law, are being used as security for the payment of the said loan used for the projects
construction.

5. The inability of the subject project to earn revenues as projected upon completion will compel the
Province to shoulder the full amount of the obligation, starting from year 2012.

6. Respondent province is mandated to assign its IRA, regular income and/or such other revenues or
funds as permitted by law; if project is stopped, detriment of the public welfare and its constituents. 96

As to the second ground for the dissolution of the TEPO, respondent Province argues:

1. Non-compliance with the guidelines of the ECC may result to environmental hazards most especially
that reclaimed land if not properly secured may be eroded into the sea.

2. The construction has accomplished 65.26 percent of the project. The embankment that was deposited
on the project has no proper concrete wave protection that might be washed out in the event that a
strong typhoon or big waves may occur affecting the strait and the properties along the project site. It is
already the rainy season and there is a big possibility of typhoon occurrence.
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3. If said incident occurs, the aggregates of the embankment that had been washed out might be
transferred to the adjoining properties which could affect its natural environmental state.

4. It might result to the total alteration of the physical landscape of the area attributing to environmental
disturbance.

5. The lack of proper concrete wave protection or revetment would cause the total erosion of the
embankment that has been dumped on the accomplished area.97

Respondent Province claims that petitioner will not stand to suffer immediate, grave and irreparable injury or
damage from the ongoing project. The petitioners perceived fear of environmental destruction brought about by
its erroneous appreciation of available data is unfounded and does not translate into a matter of extreme
urgency. Thus, under the Rules of Procedure on Environmental Cases, the TEPO may be dissolved.

Respondent PRA filed its Comment98 on June 22, 2011. It alleges that on June 24, 2006, Executive Order No.
543 delegated the power "to approve reclamation projects to respondent PRA through its governing Board,
subject to compliance with existing laws and rules and further subject to the condition that reclamation contracts
to be executed with any person or entity (must) go through public bidding."

Section 4 of respondent PRAs Administrative Order No. 2007-2 provides for the approval process and
procedures for various reclamation projects to be undertaken. Respondent PRA prepared an Evaluation Report
on November 5, 200999 regarding Aklans proposal to increase its project to 40 hectares.

Respondent PRA contends that it was only after respondent Province had complied with the requirements under
the law that respondent PRA, through its Board of Directors, approved the proposed project under its Board
Resolution No. 4094.100 In the same Resolution, respondent PRA Board authorized the General Manager/CEO to
execute a MOA with the Aklan provincial government to implement the reclamation project under certain
conditions.

The issue for respondent PRA was whether or not it approved the respondent Provinces 2.64-hectare
reclamation project proposal in willful disregard of alleged "numerous irregularities" as claimed by petitioner.101

Respondent PRA claims that its approval of the Aklan Reclamation Project was in accordance with law and its
rules. Indeed, it issued the notice to proceed only after Aklan had complied with all the requirements imposed by
existing laws and regulations. It further contends that the 40 hectares involved in this project remains a plan
insofar as respondent PRA is concerned. What has been approved for reclamation by respondent PRA thus far
is only the 2.64-hectare reclamation project. Respondent PRA reiterates that it approved this reclamation project
after extensively reviewing the legal, technical, financial, environmental, and operational aspects of the proposed
reclamation.102

One of the conditions that respondent PRA Board imposed before approving the Aklan project was that no
reclamation work could be started until respondent PRA has approved the detailed engineering
plans/methodology, design and specifications of the reclamation. Part of the required submissions to respondent
PRA includes the drainage design as approved by the Public Works Department and the ECC as issued by the
DENR, all of which the Aklan government must submit to respondent PRA before starting any reclamation
works.103 Under Article IV(B)(3) of the MOA between respondent PRA and Aklan, the latter is required to submit,
apart from the ECC, the following requirements for respondent PRAs review and approval, as basis for the
issuance of a Notice to Proceed (NTP) for Reclamation Works:

(a) Land-form plan with technical description of the metes and bounds of the same land-form;

(b) Final master development and land use plan for the project;

(c) Detailed engineering studies, detailed engineering design, plans and specification for reclamation
works, reclamation plans and methodology, plans for the sources of fill materials;

(d) Drainage plan vis-a-vis the land-form approved by DPWH Regional Office to include a cost effective
and efficient drainage system as may be required based on the results of the studies;

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(e) Detailed project cost estimates and quantity take-off per items of work of the rawland reclamation
components, e.g. reclamation containment structures and soil consolidation;

(f) Organizational chart of the construction arm, manning table, equipment schedule for the project; and,

(g) Project timetable (PERT/CPM) for the entire project construction period. 104

In fact, respondent PRA further required respondent Province under Article IV (B)(24) of the MOA to strictly
comply with all conditions of the DENR-EMB-issued ECC "and/or comply with pertinent local and international
commitments of the Republic of the Philippines to ensure environmental protection." 105

In its August 11, 2010 letter,106 respondent PRA referred for respondent Provinces appropriate action petitioners
Resolution 001, series of 2010 and Resolution 46, series of 2010, of the Sangguniang Bayan of Malay. Governor
Marquez wrote respondent PRA107 on September 16, 2010 informing it that respondent Province had already met
with the different officials of Malay, furnishing respondent PRA with the copies of the minutes of such
meetings/presentations. Governor Marquez also assured respondent PRA that it had complied with the
consultation requirements as far as Malay was concerned.

Respondent PRA claims that in evaluating respondent Provinces project and in issuing the necessary NTP for
Phase 1 of Site 1 (2.64 hectares) of the Caticlan Jetty Port expansion and modernization, respondent PRA gave
considerable weight to all pertinent issuances, especially the ECC issued by DENR-EMB RVI. 108 Respondent
PRA stresses that its earlier approval of the 40-hectare reclamation project under its Resolution No. 4094, series
of 2010, still requires a second level of compliance requirements from the proponent. Respondent Province
could not possibly begin its reclamation works since respondent PRA had yet to issue an NTP in its favor.

Respondent PRA alleges that prior to the issuance of the NTP to respondent Province for Phase 1 of Site 1, it
required the submission of the following pre-construction documents:

(a) Land-Form Plan (with technical description);

(b) Site Development Plan/Land Use Plan including,

(i) sewer and drainage systems and


(ii) waste water treatment;

(c) Engineering Studies and Engineering Design;

(d) Reclamation Methodology;

(e) Sources of Fill Materials, and,

(f) The ECC.109

Respondent PRA claims that it was only after the evaluation of the above submissions that it issued to
respondent Province the NTP, limited to the 2.64-hectare reclamation project. Respondent PRA even
emphasized in its evaluation report that should respondent Province pursue the other phases of its project, it
would still require the submission of an ECC for each succeeding phases before the start of any reclamation
works.110

Respondent PRA, being the national governments arm in regulating and coordinating all reclamation projects in
the Philippines a mandate conferred by law manifests that it is incumbent upon it, in the exercise of its
regulatory functions, to diligently evaluate, based on its technical competencies, all reclamation projects
submitted to it for approval. Once the reclamation projects requirements set forth by law and related rules have
been complied with, respondent PRA is mandated to approve the same. Respondent PRA claims, "[w]ith all the
foregoing rigorous and detailed requirements submitted and complied with by Aklan, and the attendant careful
and meticulous technical and legal evaluation by respondent PRA, it cannot be argued that the reclamation
permit it issued to Aklan is founded upon numerous irregularities; as recklessly and baselessly imputed by
BFI."111

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In its Comment112 dated July 1, 2011, respondent DENR-EMB RVI asserts that its act of issuing the ECC certifies
that the project had undergone the proper EIA process by assessing, among others, the direct and indirect
impact of the project on the biophysical and human environment and ensuring that these impacts are addressed
by appropriate environmental protection and enhancement measures, pursuant to Presidential Decree No. 1586,
the Revised Procedural Manual for DENR DAO 2003-30, and the existing rules and regulations. 113

Respondent DENR-EMB RVI stresses that the declaration in 1978 of several islands, which includes Boracay as
tourist zone and marine reserve under Proclamation No. 1801, has no relevance to the expansion project of
Caticlan Jetty Port and Passenger Terminal for the very reason that the project is not located in the Island of
Boracay, being located in Barangay Caticlan, Malay, which is not a part of mainland Panay. It admits that the site
of the subject jetty port falls within the ECA under Proclamation No. 2146 (1981), being within the category of a
water body. This was why respondent Province had faithfully secured an ECC pursuant to the Revised
Procedural Manual for DENR DAO 2003-30 by submitting the necessary documents as contained in the EPRMP
on March 19, 2010, which were the bases in granting ECC No. R6-1003-096-7100 (amended) on April 27, 2010
for the expansion of Caticlan Jetty Port and Passenger Terminal, covering 2.64 hectares. 114

Respondent DENR-EMB RVI claims that the issues raised by the LGUs of Caticlan and Malay had been
considered by the DENR-Provincial Environment and Natural Resources Office (PENRO), Aklan in the issuance
of the Order115 dated January 26, 2010, disregarding the claim of the Municipality of Malay, Aklan of a portion of
the foreshore land in Caticlan covered by the application of the Province of Aklan; and another Order of
Rejection dated February 5, 2010 of the two foreshore applications, namely FLA No. 060412-43A and FLA No.
060412-43B, of the Province of Aklan.116

Respondent DENR-EMB RVI contends that the supporting documents attached to the EPRMP for the issuance
of an ECC were merely for the expansion and modernization of the old jetty port in Barangay Caticlan covering
2.64 hectares, and not the 40-hectare reclamation project in Barangay Caticlan and Boracay. The previous letter
of respondent Province dated October 14, 2009 addressed to DENR-EMB RVI Regional Executive Director,
would show that the reclamation project will cover approximately 2.6 hectares. 117 This application for ECC was
not officially accepted due to lack of requirements or documents.

Although petitioner insists that the project involves 40 hectares in two sites, respondent DENR-EMB RVI looked
at the documents submitted by respondent Province and saw that the subject area covered by the ECC
application and subsequently granted with ECC-R6-1003-096-7100 consists only of 2.64 hectares; hence,
respondent DENR-EMB RVI could not comment on the excess area.118

Respondent DENR-EMB RVI admits that as regards the classification of the 2.64-hectare reclamation project
under "Non ECP in ECA," this does not fall within the definition of a co-located project because the subject
project is merely an expansion of the old Caticlan Jetty Port, which had a previously issued ECC (ECC No.
0699-1012-171 on October 12, 1999). Thus, only an EPRMP, not a PEIS or PEPRMP, is required. 119

Respondent Province submitted to respondent DENR-EMB RVI the following documents contained in the
EPRMP:

a. The Observations on the Floor Bottom and its Marine Resources at the Proposed Jetty Ports at
Caticlan and Manok-manok, Boracay, Aklan, conducted in 1999 by the Bureau of Fisheries Aquatic
Resources (BFAR) Central Office, particularly in Caticlan site, and

b. The Study conducted by Dr. Ricarte S. Javelosa, Ph. D, Mines and Geosciences Bureau (MGB),
Central Office and Engr. Roger Esto, Provincial Planning and Development Office (PPDO), Aklan in 2009
entitled "Preliminary Geo-hazard Assessment for the Enhancement of the Existing Caticlan Jetty Port
Terminal through Beach Zone Restoration and Protective Marina Development in Malay, Aklan."

Respondent DENR-EMB RVI claims that the above two scientific studies were enough for it to arrive at a best
professional judgment to issue an amended ECC for the Aklan Marina Project covering 2.64
hectares.120Furthermore, to confirm that the 2.64-hectare reclamation has no significant negative impact with the
surrounding environment particularly in Boracay, a more recent study was conducted, and respondent DENR-
EMB RVI alleges that "[i]t is very important to highlight that the input data in the [MERF- UPMSI] study utilized
the [40-hectare] reclamation and [200-meter] width seaward using the tidal and wave modelling." 121 The study
showed that the reclamation of 2.64 hectares had no effect to the hydrodynamics of the strait between Barangay
Caticlan and Boracay.
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Respondent DENR-EMB RVI affirms that no permits and/or clearances from National Government Agencies
(NGAs) and LGUs are required pursuant to the DENR Memorandum Circular No. 2007-08, entitled "Simplifying
the Requirements of ECC or CNC Applications;" that the EPRMP was evaluated and processed based on the
Revised Procedural Manual for DENR DAO 2003-30 which resulted to the issuance of ECC-R6-1003-096-7100;
and that the ECC is not a permit per se but a planning tool for LGUs to consider in its decision whether or not to
issue a local permit.122

Respondent DENR-EMB RVI concludes that in filing this case, petitioner had bypassed and deprived the DENR
Secretary of the opportunity to review and/or reverse the decision of his subordinate office, EMB RVI pursuant to
the Revised Procedural Manual for DENR DAO 2003-30. There is no "extreme urgency that necessitates the
granting of Mandamus or issuance of TEPO that put to balance between the life and death of the petitioner or
present grave or irreparable damage to environment." 123

After receiving the above Comments from all the respondents, the Court set the case for oral arguments on
September 13, 2011.

Meanwhile, on September 8, 2011, respondent Province filed a Manifestation and Motion 124 praying for the
dismissal of the petition, as the province was no longer pursuing the implementation of the succeeding phases of
the project due to its inability to comply with Article IV B.2(3) of the MOA; hence, the issues and fears expressed
by petitioner had become moot. Respondent Province alleges that the petition is "premised on a serious
misappreciation of the real extent of the contested reclamation project" as certainly the ECC covered only a total
of 2,691 square meters located in Barangay Caticlan, Malay, Aklan; and although the MOA spoke of 40 hectares,
respondent Provinces submission of documents to respondent PRA pertaining to said area was but the first of a
two-step process of approval. Respondent Province claims that its failure to comply with the documentary
requirements of respondent PRA within the period provided, or 120 working days from the effectivity of the MOA,
indicated its waiver to pursue the remainder of the project. 125 Respondent Province further manifested:

Confirming this in a letter dated 12 August 2011,126 Governor Marquez informed respondent PRA that the
Province of Aklan is no longer "pursuing the implementation of the succeeding phases of the project with a total
area of 37.4 hectares for our inability to comply with Article IV B.2 (3) of the MOA; hence, the existing MOA will
cover only the project area of 2.64 hectares."

In his reply-letter dated August 22, 2011,127 [respondent] PRA General Manager informed Governor Marquez that
the [respondent] PRA Board of Directors has given [respondent] PRA the authority to confirm the position of the
Province of Aklan that the "Aklan Beach Zone Restoration and Protection Marine Development Project will now
be confined to the reclamation and development of the 2.64 hectares, more or less.

It is undisputed from the start that the coverage of the Project is in fact limited to 2.64 hectares, as evidenced by
the NTP issued by respondent PRA. The recent exchange of correspondence between respondents Province of
Aklan and [respondent] PRA further confirms the intent of the parties all along. Hence, the Project subject of the
petition, without doubt, covers only 2.64 and not 40 hectares as feared. This completely changes the extent of
the Project and, consequently, moots the issues and fears expressed by the petitioner.128 (Emphasis supplied.)

Based on the above contentions, respondent Province prays that the petition be dismissed as no further
justiciable controversy exists since the feared adverse effect to Boracay Islands ecology had become academic
all together.129

The Court heard the parties oral arguments on September 13, 2011 and gave the latter twenty (20) days
thereafter to file their respective memoranda.

Respondent Province filed another Manifestation and Motion,130 which the Court received on April 2, 2012 stating
that:

1. it had submitted the required documents and studies to respondent DENR-EMB RVI before an ECC
was issued in its favor;
2. it had substantially complied with the requirements provided under PRA Administrative Order 2007-2,
which compliance caused respondent PRAs Board to approve the reclamation project; and
3. it had conducted a series of "consultative [presentations]" relative to the reclamation project before the
LGU of Malay Municipality, the Barangay Officials of Caticlan, and stakeholders of Boracay Island.

45
Respondent Province further manifested that the Barangay Council of Caticlan, Malay, Aklan enacted on
February 13, 2012 Resolution No. 003, series of 2012, entitled "Resolution Favorably Endorsing the 2.6
Hectares Reclamation/MARINA Project of the Aklan Provincial Government at Caticlan Coastline" 131 and that the
Sangguniang Bayan of the Municipality of Malay, Aklan enacted Resolution No. 020, series of 2012, entitled
"Resolution Endorsing the 2.6 Hectares Reclamation Project of the Provincial Government of Aklan Located at
Barangay Caticlan, Malay, Aklan."132

Respondent Province claims that its compliance with the requirements of respondents DENR-EMB RVI and PRA
that led to the approval of the reclamation project by the said government agencies, as well as the recent
enactments of the Barangay Council of Caticlan and the Sangguniang Bayan of the Municipality of Malay
favorably endorsing the said project, had "categorically addressed all the issues raised by the Petitioner in its
Petition dated June 1, 2011." Respondent Province prays as follows:

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that after due
proceedings, the following be rendered:

1. The Temporary Environmental Protection Order (TEPO) it issued on June 7, 2011 be lifted/dissolved.
2. The instant petition be dismissed for being moot and academic.
3. Respondent Province of Aklan prays for such other reliefs that are just and equitable under the
premises. (Emphases in the original.)

ISSUES

The Court will now resolve the following issues:

I. Whether or not the petition should be dismissed for having been rendered moot and academic

II. Whether or not the petition is premature because petitioner failed to exhaust administrative remedies
before filing this case

III. Whether or not respondent Province failed to perform a full EIA as required by laws and regulations
based on the scope and classification of the project

IV. Whether or not respondent Province complied with all the requirements under the pertinent laws and
regulations

V. Whether or not there was proper, timely, and sufficient public consultation for the project

DISCUSSION

On the issue of whether or not the Petition should be dismissed for having been rendered moot and academic

Respondent Province claims in its Manifestation and Motion filed on April 2, 2012 that with the alleged favorable
endorsement of the reclamation project by the Sangguniang Barangay of Caticlan and the Sangguniang Bayan
of the Municipality of Malay, all the issues raised by petitioner had already been addressed, and this petition
should be dismissed for being moot and academic.

On the contrary, a close reading of the two LGUs respective resolutions would reveal that they are not sufficient
to render the petition moot and academic, as there are explicit conditions imposed that must be complied with by
respondent Province. In Resolution No. 003, series of 2012, of the Sangguniang Barangay of Caticlan it is stated
that "any vertical structures to be constructed shall be subject for barangay endorsement." 133 Clearly, what the
barangay endorsed was the reclamation only, and not the entire project that includes the construction of a
commercial building and wellness center, and other tourism-related facilities. Petitioners objections, as may be
recalled, pertain not only to the reclamation per se, but also to the building to be constructed and the entire
projects perceived ill effects to the surrounding environment.

Resolution No. 020, series of 2012, of the Sangguniang Bayan of Malay134 is even more specific. It reads in part:

46
WHEREAS, noble it seems the reclamation project to the effect that it will generate scores of benefits for the
Local Government of Malay in terms of income and employment for its constituents, but the fact cannot be
denied that the project will take its toll on the environment especially on the nearby fragile island of Boracay and
the fact also remains that the project will eventually displace the local transportation operators/cooperatives;

WHEREAS, considering the sensitivity of the project, this Honorable Body through the Committee where this
matter was referred conducted several consultations/committee hearings with concerned departments and the
private sector specifically Boracay Foundation, Inc. and they are one in its belief that this Local Government Unit
has never been against development so long as compliance with the law and proper procedures have been
observed and that paramount consideration have been given to the environment lest we disturb the balance of
nature to the end that progress will be brought to naught;

WHEREAS, time and again, to ensure a healthy intergovernmental relations, this August Body requires no less
than transparency and faithful commitment from the Provincial Government of Aklan in the process of going
through these improvements in the Municipality because it once fell prey to infidelities in matters of governance;

WHEREAS, as a condition for the grant of this endorsement and to address all issues and concerns, this
Honorable Council necessitates a sincere commitment from the Provincial Government of Aklan to the end that:

1. To allocate an office space to LGU-Malay within the building in the reclaimed area;

2. To convene the Cagban and Caticlan Jetty Port Management Board before the resumption of the
reclamation project;

3. That the reclamation project shall be limited only to 2.6 hectares in Barangay Caticlan and not beyond;

4. That the local transportation operators/cooperatives will not be displaced; and

5. The Provincial Government of Aklan conduct a simultaneous comprehensive study on the


environmental impact of the reclamation project especially during Habagat and Amihan seasons and put
in place as early as possible mitigating measures on the effect of the project to the environment.

WHEREAS, having presented these stipulations, failure to comply herewith will leave this August Body no choice
but to revoke this endorsement, hence faithful compliance of the commitment of the Provincial Government is
highly appealed for[.]135 (Emphases added.)

The Sangguniang Bayan of Malay obviously imposed explicit conditions for respondent Province to comply with
on pain of revocation of its endorsement of the project, including the need to conduct a comprehensive study on
the environmental impact of the reclamation project, which is the heart of the petition before us. Therefore, the
contents of the two resolutions submitted by respondent Province do not support its conclusion that the
subsequent favorable endorsement of the LGUs had already addressed all the issues raised and rendered the
instant petition moot and academic.

On the issue of failure to exhaust administrative remedies

Respondents, in essence, argue that the present petition should be dismissed for petitioners failure to exhaust
administrative remedies and even to observe the hierarchy of courts. Furthermore, as the petition questions the
issuance of the ECC and the NTP, this involves factual and technical verification, which are more properly within
the expertise of the concerned government agencies.

Respondents anchor their argument on Section 6, Article II of DENR DAO 2003-30, which provides:

Section 6. Appeal

Any party aggrieved by the final decision on the ECC / CNC applications may, within 15 days from receipt of
such decision, file an appeal on the following grounds:

a. Grave abuse of discretion on the part of the deciding authority, or

47
b. Serious errors in the review findings.

The DENR may adopt alternative conflict/dispute resolution procedures as a means to settle grievances
between proponents and aggrieved parties to avert unnecessary legal action. Frivolous appeals shall not be
countenanced.

The proponent or any stakeholder may file an appeal to the following:

Deciding Authority Where to file the appeal


EMB Regional Office Director Office of the EMB Director
EMB Central Office Director Office of the DENR Secretary
DENR Secretary Office of the President

(Emphases supplied.)

Respondents argue that since there is an administrative appeal provided for, then petitioner is duty bound to
observe the same and may not be granted recourse to the regular courts for its failure to do so.

We do not agree with respondents appreciation of the applicability of the rule on exhaustion of administrative
remedies in this case. We are reminded of our ruling in Pagara v. Court of Appeals, 136 which summarized our
earlier decisions on the procedural requirement of exhaustion of administrative remedies, to wit:

The rule regarding exhaustion of administrative remedies is not a hard and fast rule. It is not applicable (1)
where the question in dispute is purely a legal one, or (2) where the controverted act is patently illegal or was
performed without jurisdiction or in excess of jurisdiction; or (3) where the respondent is a department secretary,
whose acts as an alter ego of the President bear the implied or assumed approval of the latter, unless actually
disapproved by him, or (4) where there are circumstances indicating the urgency of judicial intervention, -
Gonzales vs. Hechanova, L-21897, October 22, 1963, 9 SCRA 230; Abaya vs. Villegas, L-25641, December 17,
1966, 18 SCRA; Mitra vs. Subido, L-21691, September 15, 1967, 21 SCRA 127.

Said principle may also be disregarded when it does not provide a plain, speedy and adequate remedy,
(Cipriano vs. Marcelino, 43 SCRA 291), when there is no due process observed (Villanos vs. Subido, 45 SCRA
299), or where the protestant has no other recourse (Sta. Maria vs. Lopez, 31 SCRA 637). 137 (Emphases
supplied.)

As petitioner correctly pointed out, the appeal provided for under Section 6 of DENR DAO 2003-30 is only
applicable, based on the first sentence thereof, if the person or entity charged with the duty to exhaust the
administrative remedy of appeal to the appropriate government agency has been a party or has been made a
party in the proceedings wherein the decision to be appealed was rendered. It has been established by the facts
that petitioner was never made a party to the proceedings before respondent DENR-EMB RVI. Petitioner was
only informed that the project had already been approved after the ECC was already granted. 138 Not being a
party to the said proceedings, it does not appear that petitioner was officially furnished a copy of the decision,
from which the 15-day period to appeal should be reckoned, and which would warrant the application of Section
6, Article II of DENR DAO 2003-30.

Although petitioner was not a party to the proceedings where the decision to issue an ECC was rendered, it
stands to be aggrieved by the decision,139 because it claims that the reclamation of land on the Caticlan side
would unavoidably adversely affect the Boracay side, where petitioners members own establishments engaged
in the tourism trade. As noted earlier, petitioner contends that the declared objective of the reclamation project is
to exploit Boracays tourism trade because the project is intended to enhance support services thereto; however,
this objective would not be achieved since the white-sand beaches for which Boracay is famous might be
negatively affected by the project. Petitioners conclusion is that respondent Province, aided and abetted by
respondents PRA and DENR-EMB RVI, ignored the spirit and letter of our environmental laws, and should thus
be compelled to perform their duties under said laws.

The new Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, provides a relief for petitioner under
the writ of continuing mandamus, which is a special civil action that may be availed of "to compel the
48
performance of an act specifically enjoined by law"140 and which provides for the issuance of a TEPO "as an
auxiliary remedy prior to the issuance of the writ itself." 141 The Rationale of the said Rules explains the writ in this
wise:

Environmental law highlights the shift in the focal-point from the initiation of regulation by Congress to the
implementation of regulatory programs by the appropriate government agencies.

Thus, a government agencys inaction, if any, has serious implications on the future of environmental law
enforcement. Private individuals, to the extent that they seek to change the scope of the regulatory process, will
have to rely on such agencies to take the initial incentives, which may require a judicial component. Accordingly,
questions regarding the propriety of an agencys action or inaction will need to be analyzed.

This point is emphasized in the availability of the remedy of the writ of mandamus, which allows for the
enforcement of the conduct of the tasks to which the writ pertains: the performance of a legal duty.142 (Emphases
added.)

The writ of continuing mandamus "permits the court to retain jurisdiction after judgment in order to ensure the
successful implementation of the reliefs mandated under the courts decision" and, in order to do this, "the court
may compel the submission of compliance reports from the respondent government agencies as well as avail of
other means to monitor compliance with its decision."143

According to petitioner, respondent Province acted pursuant to a MOA with respondent PRA that was
conditioned upon, among others, a properly-secured ECC from respondent DENR-EMB RVI. For this reason,
petitioner seeks to compel respondent Province to comply with certain environmental laws, rules, and
procedures that it claims were either circumvented or ignored. Hence, we find that the petition was appropriately
filed with this Court under Rule 8, Section 1, A.M. No. 09-6-8-SC, which reads:

SECTION 1. Petition for continuing mandamus.When any agency or instrumentality of the government or
officer thereof unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting
from an office, trust or station in connection with the enforcement or violation of an environmental law rule or
regulation or a right therein, or unlawfully excludes another from the use or enjoyment of such right and there is
no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may
file a verified petition in the proper court, alleging the facts with certainty, attaching thereto supporting evidence,
specifying that the petition concerns an environmental law, rule or regulation, and praying that judgment be
rendered commanding the respondent to do an act or series of acts until the judgment is fully satisfied, and to
pay damages sustained by the petitioner by reason of the malicious neglect to perform the duties of the
respondent, under the law, rules or regulations. The petition shall also contain a sworn certification of non-forum
shopping.

SECTION 2. Where to file the petition.The petition shall be filed with the Regional Trial Court exercising
jurisdiction over the territory where the actionable neglect or omission occurred or with the Court of Appeals or
the Supreme Court.

Petitioner had three options where to file this case under the rule: the Regional Trial Court exercising jurisdiction
over the territory where the actionable neglect or omission occurred, the Court of Appeals, or this Court.

Petitioner had no other plain, speedy, or adequate remedy in the ordinary course of law to determine the
questions of unique national and local importance raised here that pertain to laws and rules for environmental
protection, thus it was justified in coming to this Court.

Having resolved the procedural issue, we now move to the substantive issues.

On the issues of whether, based on the scope and classification of the project, a full EIA is required by laws and
regulations, and whether respondent Province complied with all the requirements under the pertinent laws and
regulations

Petitioners arguments on this issue hinges upon its claim that the reclamation project is misclassified as a single
project when in fact it is co-located. Petitioner also questions the classification made by respondent Province
that the reclamation project is merely an expansion of the existing jetty port, when the project descriptions
49
embodied in the different documents filed by respondent Province describe commercial establishments to be
built, among others, to raise revenues for the LGU; thus, it should have been classified as a new project.
Petitioner likewise cries foul to the manner by which respondent Province allegedly circumvented the
documentary requirements of the DENR-EMB RVI by the act of connecting the reclamation project with its
previous project in 1999 and claiming that the new project is a mere expansion of the previous one.

As previously discussed, respondent Province filed a Manifestation and Motion stating that the ECC issued by
respondent DENR-EMB RVI covered an area of 2,691 square meters in Caticlan, and its application for
reclamation of 40 hectares with respondent PRA was conditioned on its submission of specific documents within
120 days. Respondent Province claims that its failure to comply with said condition indicated its waiver to pursue
the succeeding phases of the reclamation project and that the subject matter of this case had thus been limited
to 2.64 hectares. Respondent PRA, for its part, declared through its General Manager that the "Aklan Beach
Zone Restoration and Protection Marine Development Project will now be confined to the reclamation and
development of the 2.64 hectares, more or less."144

The Court notes such manifestation of respondent Province. Assuming, however, that the area involved in the
subject reclamation project has been limited to 2.64 hectares, this case has not become moot and academic, as
alleged by respondents, because the Court still has to check whether respondents had complied with all
applicable environmental laws, rules, and regulations pertaining to the actual reclamation project.

We recognize at this point that the DENR is the government agency vested with delegated powers to review and
evaluate all EIA reports, and to grant or deny ECCs to project proponents. 145 It is the DENR that has the duty to
implement the EIS system. It appears, however, that respondent DENR-EMB RVIs evaluation of this
reclamation project was problematic, based on the valid questions raised by petitioner.

Being the administrator of the EIS System, respondent DENR-EMB RVIs submissions bear great weight in this
case. However, the following are the issues that put in question the wisdom of respondent DENR-EMB RVI in
issuing the ECC:

1. Its approval of respondent Provinces classification of the project as a mere expansion of the existing
jetty port in Caticlan, instead of classifying it as a new project;

2. Its classification of the reclamation project as a single instead of a co-located project;

3. The lack of prior public consultations and approval of local government agencies; and

4. The lack of comprehensive studies regarding the impact of the reclamation project to the environment.

The above issues as raised put in question the sufficiency of the evaluation of the project by respondent DENR-
EMB RVI.

Nature of the project

The first question must be answered by respondent DENR-EMB RVI as the agency with the expertise and
authority to state whether this is a new project, subject to the more rigorous environmental impact study
requested by petitioner, or it is a mere expansion of the existing jetty port facility.

The second issue refers to the classification of the project by respondent Province, approved by respondent
DENR-EMB RVI, as single instead of co-located. Under the Revised Procedural Manual, the "Summary List of
Additional Non-Environmentally-Critical Project (NECP) Types in ECAs Classified under Group II" (Table I-2) lists
"buildings, storage facilities and other structures" as a separate item from "transport terminal facilities." This
creates the question of whether this project should be considered as consisting of more than one type of activity,
and should more properly be classified as "co-located," under the following definition from the same Manual,
which reads:

f) Group IV (Co-located Projects in either ECA or NECA): A co-located project is a group of single projects, under
one or more proponents/locators, which are located in a contiguous area and managed by one administrator,
who is also the ECC applicant. The co-located project may be an economic zone or industrial park, or a mix of
projects within a catchment, watershed or river basin, or any other geographical, political or economic unit of
50
area. Since the location or threshold of specific projects within the contiguous area will yet be derived from the
EIA process based on the carrying capacity of the project environment, the nature of the project is called
"programmatic." (Emphasis added.)

Respondent DENR-EMB RVI should conduct a thorough and detailed evaluation of the project to address the
question of whether this could be deemed as a group of single projects (transport terminal facility, building, etc.)
in a contiguous area managed by respondent Province, or as a single project.

The third item in the above enumeration will be discussed as a separate issue.

The answer to the fourth question depends on the final classification of the project under items 1 and 3 above
because the type of EIA study required under the Revised Procedural Manual depends on such classification.

The very definition of an EIA points to what was most likely neglected by respondent Province as project
proponent, and what was in turn overlooked by respondent DENR-EMB RVI, for it is defined as follows:

An [EIA] is a process that involves predicting and evaluating the likely impacts of a project (including cumulative
impacts) on the environment during construction, commissioning, operation and abandonment. It also includes
designing appropriate preventive, mitigating and enhancement measures addressing these consequences to
protect the environment and the communitys welfare.146 (Emphases supplied.)

Thus, the EIA process must have been able to predict the likely impact of the reclamation project to the
environment and to prevent any harm that may otherwise be caused.

The project now before us involves reclamation of land that is more than five times the size of the original
reclaimed land. Furthermore, the area prior to construction merely contained a jetty port, whereas the proposed
expansion, as described in the EPRMP submitted by respondent Province to respondent DENR-EMB RVI
involves so much more, and we quote:

The expansion project will be constructed at the north side of the existing jetty port and terminal that will have a
total area of 2.64 hectares, more or less, after reclamation. The Phase 1 of the project construction costing
around P260 million includes the following:

1. Reclamation - 3,000 sq m (expansion of jetty port)


2. Reclamation - 13,500 sq m (buildable area)
3. Terminal annex building - 250 sq m
4. 2-storey commercial building 2,500 sq m (1,750 sq m of leasable space)
5. Health and wellness center
6. Access road - 12 m (wide)
7. Parking, perimeter fences, lighting and water treatment sewerage system
8. Rehabilitation of existing jetty port and terminal

xxxx

The succeeding phases of the project will consist of [further] reclamation, completion of the commercial center
building, bay walk commercial strip, staff building, ferry terminal, a cable car system and wharf marina. This will
entail an additional estimated cost of P785 million bringing the total investment requirement to about P1.0
billion.147(Emphases added.)

As may be gleaned from the breakdown of the 2.64 hectares as described by respondent Province above, a
significant portion of the reclaimed area would be devoted to the construction of a commercial building, and the
area to be utilized for the expansion of the jetty port consists of a mere 3,000 square meters (sq. m). To be true
to its definition, the EIA report submitted by respondent Province should at the very least predict the impact that
the construction of the new buildings on the reclaimed land would have on the surrounding environment. These
new constructions and their environmental effects were not covered by the old studies that respondent Province
previously submitted for the construction of the original jetty port in 1999, and which it re-submitted in its
application for ECC in this alleged expansion, instead of conducting updated and more comprehensive studies.

51
Any impact on the Boracay side cannot be totally ignored, as Caticlan and Boracay are separated only by a
narrow strait. This becomes more imperative because of the significant contributions of Boracays white-sand
beach to the countrys tourism trade, which requires respondent Province to proceed with utmost caution in
implementing projects within its vicinity.

We had occasion to emphasize the duty of local government units to ensure the quality of the environment under
Presidential Decree No. 1586 in Republic of the Philippines v. The City of Davao, 148 wherein we held:

Section 15 of Republic Act 7160, otherwise known as the Local Government Code, defines a local government
unit as a body politic and corporate endowed with powers to be exercised by it in conformity with law. As such, it
performs dual functions, governmental and proprietary. Governmental functions are those that concern the
health, safety and the advancement of the public good or welfare as affecting the public generally. Proprietary
functions are those that seek to obtain special corporate benefits or earn pecuniary profit and intended for
private advantage and benefit. When exercising governmental powers and performing governmental duties, an
LGU is an agency of the national government. When engaged in corporate activities, it acts as an agent of the
community in the administration of local affairs.

Found in Section 16 of the Local Government Code is the duty of the LGUs to promote the peoples right to a
balanced ecology. Pursuant to this, an LGU, like the City of Davao, can not claim exemption from the coverage
of PD 1586. As a body politic endowed with governmental functions, an LGU has the duty to ensure the quality
of the environment, which is the very same objective of PD 1586.

xxxx

Section 4 of PD 1586 clearly states that "no person, partnership or corporation shall undertake or operate any
such declared environmentally critical project or area without first securing an Environmental Compliance
Certificate issued by the President or his duly authorized representative." The Civil Code defines a person as
either natural or juridical. The state and its political subdivisions, i.e., the local government units are juridical
persons. Undoubtedly therefore, local government units are not excluded from the coverage of PD 1586.

Lastly, very clear in Section 1 of PD 1586 that said law intends to implement the policy of the state to achieve a
balance between socio-economic development and environmental protection, which are the twin goals of
sustainable development. The above-quoted first paragraph of the Whereas clause stresses that this can only
be possible if we adopt a comprehensive and integrated environmental protection program where all the sectors
of the community are involved, i.e., the government and the private sectors. The local government units, as part
of the machinery of the government, cannot therefore be deemed as outside the scope of the EIS
system.149(Emphases supplied.)

The Court chooses to remand these matters to respondent DENR-EMB RVI for it to make a proper study, and if
it should find necessary, to require respondent Province to address these environmental issues raised by
petitioner and submit the correct EIA report as required by the projects specifications. The Court requires
respondent DENR-EMB RVI to complete its study and submit a report within a non-extendible period of three
months. Respondent DENR-EMB RVI should establish to the Court in said report why the ECC it issued for the
subject project should not be canceled.

Lack of prior public consultation

The Local Government Code establishes the duties of national government agencies in the maintenance of
ecological balance, and requires them to secure prior public consultation and approval of local government units
for the projects described therein.

In the case before us, the national agency involved is respondent PRA. Even if the project proponent is the local
government of Aklan, it is respondent PRA which authorized the reclamation, being the exclusive agency of the
government to undertake reclamation nationwide. Hence, it was necessary for respondent Province to go
through respondent PRA and to execute a MOA, wherein respondent PRAs authority to reclaim was delegated
to respondent Province. Respondent DENR-EMB RVI, regional office of the DENR, is also a national
government institution which is tasked with the issuance of the ECC that is a prerequisite to projects covered by
environmental laws such as the one at bar.

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This project can be classified as a national project that affects the environmental and ecological balance of local
communities, and is covered by the requirements found in the Local Government Code provisions that are
quoted below:

Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall be the
duty of every national agency or government-owned or controlled corporation authorizing or involved in the
planning and implementation of any project or program that may cause pollution, climatic change, depletion of
non-renewable resources, loss of crop land, rangeland, or forest cover, and extinction of animal or plant species,
to consult with the local government units, nongovernmental organizations, and other sectors concerned and
explain the goals and objectives of the project or program, its impact upon the people and the community in
terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize
the adverse effects thereof.

Section 27. Prior Consultations Required. - No project or program shall be implemented by government
authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior
approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects are
to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance
with the provisions of the Constitution.

In Lina, Jr. v. Pao,150 we held that Section 27 of the Local Government Code applies only to "national programs
and/or projects which are to be implemented in a particular local community" 151 and that it should be read in
conjunction with Section 26. We held further in this manner:

Thus, the projects and programs mentioned in Section 27 should be interpreted to mean projects and programs
whose effects are among those enumerated in Section 26 and 27, to wit, those that: (1) may cause pollution;
(2) may bring about climatic change; (3) may cause the depletion of non-renewable resources; (4) may result in
loss of crop land, range-land, or forest cover; (5) may eradicate certain animal or plant species from the face of
the planet; and (6) other projects or programs that may call for the eviction of a particular group of people
residing in the locality where these will be implemented. Obviously, none of these effects will be produced by the
introduction of lotto in the province of Laguna.152 (Emphasis added.)

During the oral arguments held on September 13, 2011, it was established that this project as described above
falls under Section 26 because the commercial establishments to be built on phase 1, as described in the
EPRMP quoted above, could cause pollution as it could generate garbage, sewage, and possible toxic fuel
discharge.153

Our ruling in Province of Rizal v. Executive Secretary154 is instructive:

We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v. Lanzanas, where we held that there
was no statutory requirement for the sangguniang bayan of Puerto Galera to approve the construction of a
mooring facility, as Sections 26 and 27 are inapplicable to projects which are not environmentally critical.

Moreover, Section 447, which enumerates the powers, duties and functions of the municipality, grants
the sangguniang bayan the power to, among other things, "enact ordinances, approve resolutions and
appropriate funds for the general welfare of the municipality and its inhabitants pursuant to Section 16 of th(e)
Code." These include:

(1) Approving ordinances and passing resolutions to protect the environment and impose appropriate
penalties for acts which endanger the environment, such as dynamite fishing and other forms of
destructive fishing, illegal logging and smuggling of logs, smuggling of natural resources products and of
endangered species of flora and fauna, slash and burn farming, and such other activities which result in
pollution, acceleration of eutrophication of rivers and lakes, or of ecological imbalance; [Section 447 (1)
(vi)]

(2) Prescribing reasonable limits and restraints on the use of property within the jurisdiction of the
municipality, adopting a comprehensive land use plan for the municipality, reclassifying land within the
jurisdiction of the city, subject to the pertinent provisions of this Code, enacting integrated zoning
ordinances in consonance with the approved comprehensive land use plan, subject to existing laws,
rules and regulations; establishing fire limits or zones, particularly in populous centers; and regulating the

53
construction, repair or modification of buildings within said fire limits or zones in accordance with the
provisions of this Code; [Section 447 (2)(vi-ix)]

(3) Approving ordinances which shall ensure the efficient and effective delivery of the basic services and
facilities as provided for under Section 17 of this Code, and in addition to said services and facilities,
providing for the establishment, maintenance, protection, and conservation of communal forests and
watersheds, tree parks, greenbelts, mangroves, and other similar forest development projects and,
subject to existing laws, establishing and providing for the maintenance, repair and operation of an
efficient waterworks system to supply water for the inhabitants and purifying the source of the water
supply; regulating the construction, maintenance, repair and use of hydrants, pumps, cisterns and
reservoirs; protecting the purity and quantity of the water supply of the municipality and, for this purpose,
extending the coverage of appropriate ordinances over all territory within the drainage area of said water
supply and within one hundred (100) meters of the reservoir, conduit, canal, aqueduct, pumping station,
or watershed used in connection with the water service; and regulating the consumption, use or wastage
of water." [Section 447 (5)(i) & (vii)]

Under the Local Government Code, therefore, two requisites must be met before a national project that affects
the environmental and ecological balance of local communities can be implemented: prior consultation with the
affected local communities, and prior approval of the project by the appropriate sanggunian. Absent either of
these mandatory requirements, the projects implementation is illegal.155 (Emphasis added.)

Based on the above, therefore, prior consultations and prior approval are required by law to have been
conducted and secured by the respondent Province. Accordingly, the information dissemination conducted
months after the ECC had already been issued was insufficient to comply with this requirement under the Local
Government Code. Had they been conducted properly, the prior public consultation should have considered the
ecological or environmental concerns of the stakeholders and studied measures alternative to the project, to
avoid or minimize adverse environmental impact or damage. In fact, respondent Province once tried to obtain
the favorable endorsement of the Sangguniang Bayan of Malay, but this was denied by the latter.

Moreover, DENR DAO 2003-30 provides:

5.3 Public Hearing / Consultation Requirements

For projects under Category A-1, the conduct of public hearing as part of the EIS review is mandatory unless
otherwise determined by EMB. For all other undertakings, a public hearing is not mandatory unless specifically
required by EMB.

Proponents should initiate public consultations early in order to ensure that environmentally relevant concerns of
stakeholders are taken into consideration in the EIA study and the formulation of the management plan. All
public consultations and public hearings conducted during the EIA process are to be documented. The public
hearing/consultation Process report shall be validated by the EMB/EMB RD and shall constitute part of the
records of the EIA process. (Emphasis supplied.)

In essence, the above-quoted rule shows that in cases requiring public consultations, the same should be
initiated early so that concerns of stakeholders could be taken into consideration in the EIA study. In this case,
respondent Province had already filed its ECC application before it met with the local government units of Malay
and Caticlan.

The claim of respondent DENR-EMB RVI is that no permits and/or clearances from National Government
Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum Circular No. 2007-08. However,
we still find that the LGC requirements of consultation and approval apply in this case. This is because a
Memorandum Circular cannot prevail over the Local Government Code, which is a statute and which enjoys
greater weight under our hierarchy of laws.

Subsequent to the information campaign of respondent Province, the Municipality of Malay and the Liga ng mga
Barangay-Malay Chapter still opposed the project. Thus, when respondent Province commenced the
implementation project, it violated Section 27 of the LGC, which clearly enunciates that "[no] project or program
shall be implemented by government authorities unless the consultations mentioned in Sections 2(c) and 26
hereof are complied with, and prior approval of the sanggunian concerned is obtained."

54
The lack of prior public consultation and approval is not corrected by the subsequent endorsement of the
reclamation project by the Sangguniang Barangay of Caticlan on February 13, 2012, and the Sangguniang
Bayan of the Municipality of Malay on February 28, 2012, which were both undoubtedly achieved at the urging
and insistence of respondent Province. As we have established above, the respective resolutions issued by the
LGUs concerned did not render this petition moot and academic.

It is clear that both petitioner and respondent Province are interested in the promotion of tourism in Boracay and
the protection of the environment, lest they kill the proverbial hen that lays the golden egg. At the beginning of
this decision, we mentioned that there are common goals of national significance that are very apparent from
both the petitioners and the respondents respective pleadings and memoranda.

The parties are evidently in accord in seeking to uphold the mandate found in Article II, Declaration of Principles
and State Policies, of the 1987 Constitution, which we quote below:

SECTION 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.

xxxx

SECTION 20. The State recognizes the indispensable role of the private sector, encourages private enterprise,
and provides incentives to needed investments.

The protection of the environment in accordance with the aforesaid constitutional mandate is the aim, among
others, of Presidential Decree No. 1586, "Establishing an Environmental Impact Statement System, Including
Other Environmental Management Related Measures and For Other Purposes," which declared in its first
Section that it is "the policy of the State to attain and maintain a rational and orderly balance between socio-
economic growth and environmental protection."

The parties undoubtedly too agree as to the importance of promoting tourism, pursuant to Section 2 of Republic
Act No. 9593, or "The Tourism Act of 2009," which reads:

SECTION 2. Declaration of Policy. The State declares tourism as an indispensable element of the national
economy and an industry of national interest and importance, which must be harnessed as an engine of
socioeconomic growth and cultural affirmation to generate investment, foreign exchange and employment, and
to continue to mold an enhanced sense of national pride for all Filipinos. (Emphasis ours.)

The primordial role of local government units under the Constitution and the Local Government Code of 1991 in
the subject matter of this case is also unquestionable. The Local Government Code of 1991 (Republic Act No.
7160) pertinently provides:

Section 2. Declaration of Policy. - (a) It is hereby declared the policy of the State that the territorial and political
subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest
development as self-reliant communities and make them more effective partners in the attainment of national
goals. Toward this end, the State shall provide for a more responsive and accountable local government
structure instituted through a system of decentralization whereby local government units shall be given more
powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the
national government to the local government units.156 (Emphases ours.)

As shown by the above provisions of our laws and rules, the speedy and smooth resolution of these issues
would benefit all the parties. Thus, respondent Provinces cooperation with respondent DENR-EMB RVI in the
Court-mandated review of the proper classification and environmental impact of the reclamation project is of
utmost importance.

WHEREFORE, premises considered, the petition is hereby PARTIALLY GRANTED. The TEPO issued by this
1wphi1

Court is hereby converted into a writ of continuing mandamus specifically as follows:

1. Respondent Department of Environment and Natural Resources-Environmental Management Bureau


Regional Office VI shall revisit and review the following matters:

55
a. its classification of the reclamation project as a single instead of a co-located project;

b. its approval of respondent Provinces classification of the project as a mere expansion of the
existing jetty port in Caticlan, instead of classifying it as a new project; and

c. the impact of the reclamation project to the environment based on new, updated, and
comprehensive studies, which should forthwith be ordered by respondent DENR-EMB RVI.

2. Respondent Province of Aklan shall perform the following:

a. fully cooperate with respondent DENR-EMB RVI in its review of the reclamation project
proposal and submit to the latter the appropriate report and study; and

b. secure approvals from local government units and hold proper consultations with non-
governmental organizations and other stakeholders and sectors concerned as required by
Section 27 in relation to Section 26 of the Local Government Code.

3. Respondent Philippine Reclamation Authority shall closely monitor the submission by respondent
Province of the requirements to be issued by respondent DENR-EMB RVI in connection to the
environmental concerns raised by petitioner, and shall coordinate with respondent Province in modifying
the MOA, if necessary, based on the findings of respondent DENR-EMB RVI.

4. The petitioner Boracay Foundation, Inc. and the respondents The Province of Aklan, represented by
Governor Carlito S. Marquez, The Philippine Reclamation Authority, and The DENR-EMB (Region VI)
are mandated to submit their respective reports to this Court regarding their compliance with the
requirements set forth in this Decision no later than three (3) months from the date of promulgation of
this Decision.

5. In the meantime, the respondents, their concerned contractor/s, and/or their agents, representatives
or persons acting in their place or stead, shall immediately cease and desist from continuing the
implementation of the project covered by ECC-R6-1003-096-7100 until further orders from this Court.
For this purpose, the respondents shall report within five (5) days to this Court the status of the project
as of their receipt of this Decision, copy furnished the petitioner.

This Decision is immediately executory.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO


Associate Justice

Case Digest: Boracay Foundation v. Province of Aklan

G.R. No. 196870 : June 26, 2012

BORACAY FOUNDATION, INC., Petitioner, v. THE PROVINCE OF AKLAN, REPRESENTED BY GOV.


CARLITO S. MARQUEZ, THE PHIL. RECLAMATION AUTHORITY & THE DENR-EMB (REGION
VI),Respondents.

LEONARDO-DE CASTRO, J.:

FACTS:

Boracay Island (Boracay), a tropical paradise located in the Western Visayas region of the Philippines and one
of the countrys most popular tourist destinations, was declared a tourist zone and marine reserve in 1973 under
56
Presidential Proclamation No. 1801. The island comprises the barangays of Manoc-manoc, Balabag, and Yapak,
all within the municipality of Malay, in the province of Aklan.

More than a decade ago, respondent Province built the Caticlan Jetty Port and Passenger Terminal at Barangay
Caticlan to be the main gateway to Boracay.It also built the corresponding Cagban Jetty Port and Passenger
Terminal to be the receiving end for tourists in Boracay. Respondent Province operates both ports to provide
structural facilities suited for locals, tourists and guests and to provide safety and security measures.

Governor Marquez sent a letter to respondent PRA on March 12, 2009 expressing the interest of respondent
Province to reclaim about 2.64 hectares of land along the foreshores of Barangay Caticlan, Municipality of
Malay, Province of Aklan, pursuant to Resolution No. 13, s. 2008 issued by the Sangguniang Barangay of
Caticlan.

Sometime in April 2009, respondent Province entered into an agreement with the Financial Advisor/Consultant
that won in the bidding process held a month before, to conduct the necessary feasibility study of the proposed
project for the Renovation/Rehabilitation of the Caticlan Passenger Terminal Building and Jetty Port,
Enhancement and Recovery of Old Caticlan Coastline, and Reclamation of a Portion of Foreshore for
Commercial Purposes (the Marina Project), in Malay, Aklan.

Subsequently, on May 7, 2009, the Sangguniang Panlalawigan of respondent Province issued Resolution No.
2009110, which authorized Governor Marquez to file an application to reclaim the 2.64 hectares of foreshore
area in Caticlan, Malay, Aklan with respondent PRA.

Meanwhile, the Sangguniang Bayan of the Municipality of Malay expressed its strong opposition to the intended
foreshore lease application, through Resolution No. 044, approved on July 22, 2009, manifesting therein that
respondent Provinces foreshore lease application was for business enterprise purposes for its benefit, at the
expense of the local government of Malay, which by statutory provisions was the rightful entity to develop, utilize
and reap benefits from the natural resources found within its jurisdiction.

In August 2009, a Preliminary Geohazard Assessmentfor the enhancement/expansion of the existing Caticlan
Jetty Port and Passenger Terminal through beach zone restoration and Protective Marina Developments in
Caticlan, Malay, Aklan was completed.

Thereafter, Governor Marquez submitted an Environmental Performance Report and Monitoring Program
(EPRMP) to DENR-EMB RVI, which he had attached to his letter dated September 19, 2009, as an initial step
for securing an Environmental Compliance Certificate (ECC). The letter reads in part:

With the project expected to start its construction implementation next month, the province hereby assures your
good office that it will give preferential attention to and shall comply with whatever comments that you may have
on this EPRMP.

Within the same month of October 2009, respondent Province deliberated on the possible expansion from its
original proposed reclamation area of 2.64 hectares to forty (40) hectares.

Respondent PRA approved the reclamation project on April 20, 2010 in its Resolution No. 4094and authorized
its General Manager/Chief Executive Officer (CEO) to enter into a MOA with respondent Province for the
implementation of the reclamation project.

On April 27, 2010, DENR-EMB RVI issued to respondent Province ECC-R6-1003-096-7100 (the questioned
ECC) for Phase 1 of the Reclamation Project to the extent of 2.64 hectares to be done along the Caticlan side
beside the existing jetty port.

On May 17, 2010, respondent Province entered into a MOA with respondent PRA.
57
In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the Malay Municipality reiterated its strong
opposition to respondent Provinces project and denied its request for afavorableendorsement of the Marina
Project.

The Malay Municipality subsequently issued Resolution No. 016, Series of 2010, adopted on August 3, 2010, to
request respondent PRA not to grant reclamation permit and notice to proceed to the Marina Project of the
respondent Provincial Government of Aklan located at Caticlan, Malay, Aklan.

In a letter dated October 12, 2010, petitioner informed respondent PRA of its opposition to the reclamation
project.

Petitioner likewise transmitted its Resolution No. 001, Series of 2010, registering its opposition to the
reclamation project to respondent Province, respondent PRA, respondent DENR-EMB, the National Economic
Development Authority Region VI, the Malay Municipality, and other concerned entities.

Petitioner alleges that despite the Malay Municipalitys denial of respondent Provinces request for
afavorableendorsement, as well as the strong opposition manifested both by Barangay Caticlan and petitioner
as an NGO, respondent Province still continued with the implementation of the Reclamation Project.

On June 1, 2011, petitioner filed the instant Petition for Environmental Protection Order/Issuance of the Writ of
Continuing Mandamus. On June 7, 2011, this Court issued a Temporary Environmental Protection Order (TEPO)
and ordered the respondents to file their respective comments to the petition.

After receiving a copy of the TEPO on June 9, 2011, respondent Province immediately issued an order to the
Provincial Engineering Office and the concerned contractor to cease and desist from conducting any
construction activities until further orders from this Court.

ISSUES:

[1] Whether or not the petition should be dismissed for having been rendered moot and academic;

[2] Whether or not the petition is premature because petitioner failed to exhaust administrative remedies before
filing this case;

[3] Whether or not respondent Province failed to perform a full EIA as required by laws and regulations based on
the scope and classification of the project;

[4] Whether or not respondent Province complied with all the requirements under the pertinent laws and
regulations; and

[5] Whether or not there was proper, timely, and sufficient public consultation for the project

HELD:

A close reading of the two LGUs respective resolutions would reveal that they are not sufficient to render the
petition moot and academic, as there are explicit conditions imposed that must be complied with by respondent
Province. In Resolution No. 003, series of 2012, of the Sangguniang Barangay of Caticlan it is stated that any
vertical structures to be constructed shall be subject for barangay endorsement. Clearly, what the barangay
endorsed was the reclamation only, and not the entire project that includes the construction of a commercial
building and wellness center, and other tourism-related facilities.Petitioners objections, as may be recalled,
pertain not only to the reclamation per se, but also to the building to be constructed and the entire projects
perceived ill effects to the surrounding environment.

58
The Sangguniang Bayan of Malay obviously imposed explicit conditions for respondent Province to comply with
on pain of revocation of its endorsement of the project, including the need to conduct a comprehensive study on
the environmental impact of the reclamation project, which is the heart of the petition before us. Therefore, the
contents of the two resolutions submitted by respondent Province do not support its conclusion that the
subsequent favorable endorsement of the LGUs had already addressed all the issues raised and rendered the
instant petition moot and academic.

We do not agree with respondents appreciation of the applicability of the rule on exhaustion of administrative
remedies in this case. We are reminded of our ruling in Pagara v. Court of Appeals, which summarized our
earlier decisions on the procedural requirement of exhaustion of administrative remedies, to wit:

REMEDIAL LAW: exhaustion of administrative remedies

The rule regarding exhaustion of administrative remedies is not a hard and fast rule. It is not applicable: (1)
where the question in dispute is purely a legal one, or (2) where the controverted act is patently illegal or was
performed without jurisdiction or in excess of jurisdiction; or (3) where the respondent is a department secretary,
whose acts as an alter ego of the President bear the implied or assumed approval of the latter, unless actually
disapproved by him, or (4) where there are circumstances indicating the urgency of judicial intervention.

Said principle may also be disregarded when it does not provide a plain, speedy and adequate remedy, when
there is no due process observed, or where the protestant has no other recourse.

Although petitioner was not a party to the proceedings where the decision to issue an ECC was rendered, it
stands to be aggrieved by the decision, because it claims that the reclamation of land on the Caticlan side would
unavoidably adversely affect the Boracay side, where petitioners members own establishments engaged in the
tourism trade. As noted earlier, petitioner contends that the declared objective of the reclamation project is to
exploit Boracays tourism trade because the project is intended to enhance support services thereto; however,
this objective would not be achieved since the white-sand beaches for which Boracay is famous might be
negatively affected by the project. Petitioners conclusion is that respondent Province, aided and abetted by
respondents PRA and DENR-EMB RVI, ignored the spirit and letter of our environmental laws, and should thus
be compelled to perform their duties under said laws.

REMEDIAL LAW: new rules of procedure for environmental cases; writ of continuing mandamus

The new Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, provides a relief for petitioner under
the writ of continuing mandamus, which is a special civil action that may be availed of to compel the
performance of an act specifically enjoined by law and which provides for the issuance of a TEPO as an auxiliary
remedy prior to the issuance of the writ itself. The Rationale of the said Rules explains the writ in this wise:

Environmental law highlights the shift in the focal-point from the initiation of regulation by Congress to the
implementation of regulatory programs by the appropriate government agencies.

Thus, a government agencys inaction, if any, has serious implications on the future of environmental law
enforcement. Private individuals, to the extent that they seek to change the scope of the regulatory process, will
have to rely on such agencies to take the initial incentives, which may require a judicial component. Accordingly,
questions regarding the propriety of an agencys action or inaction will need to be analyzed.

This point is emphasized in the availability of the remedy of the writ of mandamus, which allows for the
enforcement of the conduct of the tasks to which the writ pertains: the performance of a legal duty.

The writ of continuing mandamus permits the court to retain jurisdiction after judgment in order to ensure the
successful implementation of the reliefs mandated under the courts decision and, in order to do this, the court

59
may compel the submission of compliance reports from the respondent government agencies as well as avail of
other means to monitor compliance with its decision.

Petitioner had three options where to file this case under the rule: the Regional Trial Court exercising jurisdiction
over the territory where the actionable neglect or omission occurred, the Court of Appeals, or this Court.

Petitioner had no other plain, speedy, or adequate remedy in the ordinary course of law to determine the
questions of unique national and local importance raised here that pertain to laws and rules for environmental
protection, thus it was justified in coming to this Court.

3) Being the administrator of the EIS System, respondent DENR-EMB RVIs submissions bear great weight in
this case.However, the following are the issues that put in question the wisdom of respondent DENR-EMB RVI in
issuing the ECC:

[1] Its approval of respondent Provinces classification of the project as a mere expansion of the existing jetty port
in Caticlan, instead of classifying it as a new project;

[2] Its classification of the reclamation project as a single instead of a co-located project;

[3] The lack of prior public consultations and approval of local government agencies; and

[4] The lack of comprehensive studies regarding the impact of the reclamation project to the environment.

As may be gleaned from the breakdown of the 2.64 hectares as described by respondent Province above, a
significant portion of the reclaimed area would be devoted to the construction of a commercial building, and the
area to be utilized for the expansion of the jetty port consists of a mere 3,000 square meters (sq. m). To be true
to its definition, the EIA report submitted by respondent Province should at the very least predict the impact that
the construction of the new buildings on the reclaimed land would have on the surrounding environment. These
new constructions and their environmental effects were not covered by the old studies that respondent Province
previously submitted for the construction of the original jetty port in 1999, and which it re-submitted in its
application for ECC in this alleged expansion, instead of conducting updated and more comprehensive studies.

Any impact on the Boracay side cannot be totally ignored, as Caticlan and Boracay are separated only by a
narrow strait. This becomes more imperative because of the significant contributions of Boracays white-sand
beach to the countrys tourism trade, which requires respondent Province to proceed with utmost caution in
implementing projects within its vicinity.

POLITICAL LAW: public consultation

The Local Government Code establishes the duties of national government agencies in the maintenance of
ecological balance, and requires them to secure prior public consultation and approval of local government units
for the projects described therein.

In the case before us, the national agency involved is respondent PRA. Even if the project proponent is the local
government of Aklan, it is respondent PRA which authorized the reclamation, being the exclusive agency of the
government to undertake reclamation nationwide. Hence, it was necessary for respondent Province to go
through respondent PRA and to execute a MOA, wherein respondent PRAs authority to reclaim was delegated
to respondent Province. Respondent DENR-EMB RVI, regional office of the DENR, is also a national
government institution which is tasked with the issuance of the ECC that is a prerequisite to projects covered by
environmental laws such as the one at bar.

This project can be classified as a national project that affects the environmental and ecological balance of local
communities, and is covered by the requirements found in the Local Government Code provisions.
60
Under the Local Government Code, therefore, two requisites must be met before a national project that affects
the environmental and ecological balance of local communities can be implemented: prior consultationwith the
affected local communities, and prior approval of the project by the appropriate sanggunian. Absent either of
these mandatory requirements, the projects implementation is illegal.

Based on the above, therefore, prior consultations and prior approval are required by law to have been
conducted and secured by the respondent Province. Accordingly, the information dissemination conducted
months after the ECC had already been issued was insufficient to comply with this requirement under the Local
Government Code. Had they been conducted properly, the prior public consultation should have considered the
ecological or environmental concerns of the stakeholders and studied measures alternative to the project, to
avoid or minimize adverse environmental impact or damage. In fact, respondent Province once tried to obtain
the favorable endorsement of the Sangguniang Bayan of Malay, but this was denied by the latter.

Moreover, DENR DAO 2003-30 provides:

5.3. Public Hearing / Consultation Requirements

For projects under Category A-1, the conduct of public hearing as part of the EIS review is mandatory unless
otherwise determined by EMB. For all other undertakings, a public hearing is not mandatory unless specifically
required by EMB.

Proponents should initiate public consultations early in order to ensure that environmentally relevant concerns of
stakeholders are taken into consideration in the EIA study and the formulation of the management plan. All
public consultations and public hearings conducted during the EIA process are to be documented. The public
hearing/consultation Process reportshall be validated by the EMB/EMB RD and shall constitute part of the
records of the EIA process.

In essence, the above-quoted rule shows that in cases requiring public consultations, the same should be
initiated early so that concerns of stakeholders could be taken into consideration in the EIA study. In this case,
respondent Province had already filed its ECC application before it met with the local government units of Malay
and Caticlan.

The lack of prior public consultation and approval is not corrected by the subsequent endorsement of the
reclamation project by the Sangguniang Barangay of Caticlan on February 13, 2012, and the Sangguniang
Bayan of the Municipality of Malay onFebruary 28, 2012, which were both undoubtedly achieved at the urging
and insistence of respondent Province. As we have established above, the respective resolutions issued by the
LGUs concerned did not render this petition moot and academic.

It is clear that both petitioner and respondent Province are interested in the promotion of tourism in Boracay and
the protection of the environment, lest they kill the proverbial hen that lays the golden egg. At the beginning of
this decision, we mentioned that there are common goals of national significance that are very apparent from
both the petitioners and the respondents respective pleadings and memoranda.

As shown by the above provisions of our laws and rules, the speedy and smooth resolution of these issues
would benefit all the parties. Thus, respondent Provinces cooperation with respondent DENR-EMB RVI in the
Court-mandated review of the proper classification and environmental impact of the reclamation project is of
utmost importance.

WHEREFORE, premises considered, the petition is hereby PARTIALLY GRANTED. The TEPO issued by this
Court is hereby converted into a writ of continuing mandamus specifically as follows:

1. Respondent Department of Environment and Natural Resources-Environmental Management Bureau


Regional Office VI shall revisit and review the following matters:
61
a. its classification of the reclamation project as a single instead of a co-located project;

b. its approval of respondent Provinces classification of the project as a mere expansion of the existing jetty port
in Caticlan, instead of classifying it as a new project; and

c. the impact of the reclamation project to the environment based on new, updated, and comprehensive studies,
which should forthwith be ordered by respondent DENR-EMB RVI.

2. Respondent Province of Aklan shall perform the following:

a. fully cooperate with respondent DENR-EMB RVI in its review of the reclamation project proposal and submit
to the latter the appropriate report and study; and

b. secure approvals from local government units and hold proper consultations with non-governmental
organizations and other stakeholders and sectors concerned as required by Section 27 in relation to Section 26
of the Local Government Code.

Respondent Philippine Reclamation Authority shall closely monitor the submission by respondent Province of the
requirements to be issued by respondent DENR-EMB RVI in connection to the environmental concerns raised
by petitioner, and shall coordinate with respondent Province in modifying the MOA, if necessary, based on the
findings of respondent DENR-EMB RVI.

The petitioner Boracay Foundation, Inc. and the respondents The Province of Aklan, represented by Governor
Carlito S. Marquez, The Philippine Reclamation Authority, and The DENR-EMB (Region VI) are mandated to
submit their respective reports to this Court regarding their compliance with the requirements set forth in this
Decision no later than three (3) months from the date of promulgation of this Decision.

In the meantime, the respondents, their concerned contractor/s, and/or their agents, representatives or persons
acting in their place or stead, shall immediately cease and desist from continuing the implementation of the
project covered by ECC-R6-1003-096-7100 until further orders from this Court. For this purpose, the
respondents shall report within five (5) days to this Court the status of the project as of their receipt of this
Decision, copy furnished the petitioner.

Republic of the Philippines

COURT OF APPEALS

Manila

GEMMA C. DELA CRUZ, FIDEL E. AMOYO, VIOLETA M. CRUZ, ZENAIDA C. MANGUNDAYAO, ANDRES M.
COMIA, MARJORIE N. PABLO, MARIA TERESITA R. CANON, JOEL JULIUS A. MARASIGAN, GINALYN V.
CACALDA, BABY LYNN E. TAGUPA, LYDIA B. RAYOS, JESUS R. PUENTE, JACINTO R. RICAPLAZA,
ARMANDO P. PADILLA, FLORENTINO MARTINEZ, MARIE AMELITA R. MICIANO, LYDIA R. MICIANO, MA.
LOURDES U. LACSON, JUAN CARLOS C. GAON, MA. BLEZIE C. GAON, AUREA A. PARAS, REMEDIOS Z.
MORENO, MARIA JUANA N. CARRION, ALICIA K. KATIGBAK, JEDEDIA M. TUMALE, VICENTA M.
MORALES, REYNALDO G. MARQUEZ, MARIA LUISA V. GORDON, NOEMI M. GOMEZ, MARIA CHRISTINA
D. RIVERA, CATHERINE D. ROMERO-SALAS, MERCEDITA O. BELGADO, REV. FR. EDWIN EUGENIO
MERCADO, MA. CONCEPCION M. YABUT, REYNALDO Z. SANTAYANA, ANGELO D. SULIT, ALFREDO A.
GLORIA, JR., MICHAEL L. DE JESUS, JUSTIN MARC CHIPECO, KAREN HAZEL GANZON and JIMMY
FAMARANCO,

Petitioners,

62
versus CA-G.R. SP. NO. ________________

(Petition for Writ of Kalikasan with prayer for Temporary Environmental Protection Order [TEPO])

MANILA ELECTRIC COMPANY (MERALCO), BARANGAY CHAIRMAN CESAR S. TOLEDANES, in his capacity
as Barangay Chairman of Barangay 183, Zone 20, Villamor, Pasay City, BARANGAY COUNCIL OF BARANGAY
183, ZONE 20, VILLAMOR AIR BASE, PASAY CITY, RUTH M. CORTEZ, RICARDO R. DIMAANO, LEONARDO
A. ABAD, NORMITA CASTILLO and AMANTE C. CACACHO, in their capacity as Members of the Barangay
Council of Barangay 183, Zone 20, Villamor, Pasay City and MANILA INTERNATIONAL AIRPORT AUTHORITY
(MIAA),

Respondents.

xx

PETITION FOR WRIT OF KALIKASAN

WITH PRAYER FOR THE ISSUANCE OF A TEMPORARY ENVIRONMENTAL PROTECTION ORDER (TEPO)

Petitioners, through the undersigned counsel, and to this Honorable Court, respectfully state that:

PREFATORY STATEMENT

1. What use will modernization serve if it proves to be a scourge on an individuals fundamental right, not just to
health and safety, but, ostensibly, to life preservation itself, in all of its desired quality?[1]

NATURE OF THE PETITION

2. This is a petition for the issuance of a Writ of Kalikasan, filed with this Honorable Court pursuant to Rule 7 of
A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure for Environmental Cases, concerning as it is
the violation of the constitutional rights of the residents of the Cities of Pasay and Makati to a balanced and
healthful ecology.

PARTIES

3. Petitioners are residents and inhabitants of Barangay 183-Villamor, Zone 20, Pasay City andMagallanes
Village, Makati City, all of legal age, Filipinos, with capacity to sue, and residents of the following addresses,
respectively:

Petitioners may be served with the orders, resolutions, notices and processes of this Honorable Court through
their counsel of record, Atty. H. Harry L. Roque, Jr., at Roque and Butuyan Law Offices, 1904 Antel Corporate
Centre, 121 Valero Street, Salcedo Village, 1227 Makati City, Philippines.

4. Respondent MANILA ELECTRIC COMPANY (MERALCO) is a domestic corporation created and organized
pursuant to the laws of the Republic of the Philippines with principal office address atMERALCO Building,
Ortigas Avenue, Pasig City, where it may be served with summons and other processes of this Honorable Court.

5. Respondent BARANGAY CHAIRMAN CESAR S. TOLEDANES is the Barangay Chairman of Bgy. 183, Zone
20, Villamor, Pasay City where he may be served with summons and other processes of the Honorable Court.

6. Respondent BARANGAY COUNCIL OF BARANGAY 183, ZONE 20, VILLAMOR, PASAYCITY, composed of:

a. Respondent RUTH M. CORTEZ, of legal age, Filipino;


63
b. Respondent RICARDO R. DIMAANO, of legal age, Filipino;

c. Respondent LEONARDO A. ABAD, of legal age, Filipino;

d. Respondent NORMITA CASTILLO, of legal age, Filipino; and

e. Respondent AMANTE C. CACACHO, of legal age, Filipino,

are holding office at the Barangay Hall of Barangay 183 located at Barangay 183, Zone 20, Villamor, PasayCity,
where they may be served with summons and other processes of this Honorable Court.

7. Respondent MANILA INTERNATIONAL AIRPORT AUTHORITY (MIAA) is a government agency created and
organized pursuant to the laws of the Republic of the Philippines, vested with the power to administer and
operate the Ninoy Aquino International Airport III (NAIA 3), and with principal office address at MIAA
Administration Building, NAIA Complex Pasay City, where it may be served with summons and other processes
of the Honorable Court.

STATEMENT OF FACTS

8. Barangay 183 Zone 20, Villamor, Pasay City (hereinafter referred to as Barangay 183, for brevity) used to be
part of the Villamor Air Base. It was thereafter converted into a private residential land pursuant to Republic Act
No. 7227, otherwise known as An Act Accelerating the Conversion of Military Reservations Into Other
Productive Uses, Creating the Bases Conversion And Development Authority For This Purpose, Providing Funds
Therefor And For Other Purposes. As such, the said parcel of land was subdivided and afterwards sold and
awarded to its inhabitants, including herein Petitioners.

9. Magallanes Village (hereinafter referred to as Magallanes Village, for brevity) is a residential area located in
Makati City adjacent to Barangay 183.

10. The Petitioners are existing residents and inhabitants of Barangay 183 and Magallanes Village. Some of
them have likewise established their respective businesses and livelihood therein.

11. On 13 July 2009, without the prior authority from and approval by Respondent Barangay Council of
Barangay 183, Zone 20, Villamor Air Base, Pasay City (hereinafter referred to as Respondent Barangay
Council) and without the prior consultation with the constituents of the barangay, Respondent Barangay
Chairman Cesar S. Toledanes (hereinafter referred to as Respondent Toledanes) issued a Barangay Working
Permit Clearance for the installation of 115 KV sub-transmission lines and poles at the10th and 12th Streets of
Barangay 183.[2]

12. Belatedly, however, on 02 September 2009, Respondent Barangay Council, composed of Respondents
Cesar Toledanes, Ruth Cortez, Ricardo Dimaano, Leonardo Abad, Normita Castillo and Amante C. Cacho,
passed Barangay Resolution No. 40-S-2009, authorizing Respondent Toledanes to issue a Barangay Permit
authorizing respondent MERALCO to install high voltage power lines and poles at the 10thand 27th Streets of
Barangay 183.[3] Similar to the Working Permit Clearance issued, Barangay Resolution No. 40-S-2009 was
issued without a prior consultation with the constituents of the barangay.

13. Also, despite the close proximity of the installation of the high tension wires and poles to the nearby
Magallanes Village in Makati City, the residents and inhabitants of the same were not notified or consulted with
respect to such plans.

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14. Thus, sometime in August 2010, Respondent MERALCO began erecting towering posts along the 10th, 12th
and 27th streets of Barangay 183 and lining the perimeter wall between Barangay 183 andMagallanes Village.[4]
The thirty (30) foot-high poles will hold the transmission lines that will supply more or less one hundred fifteen
(115) Kilovolts (KV) of electricity to the Ninoy Aquino International Airport III (NAIA 3).

15. Petitioners were not informed that Respondent MERALCO was going to erect such posts in Barangay 183
either by Respondent MERALCO, Respondent MIAA, who administers and operates the Ninoy Aquino
International Airport III (NAIA 3), and Respondents Toledanes, Ruth Cortez, Ricardo Dimaano, Leonardo Abad,
Normita Castillo and Amante C. Cacacho, who are the barangay officials of Barangay 183. As such, Petitioners
were surprised to find out Respondent MERALCO had already begun erecting the said posts without their
knowledge and without public discussion.

16. The high tension transmission lines shall traverse the entire 10th and 12th streets of Bgy. 183, and shall pass
along the concrete wall separating Barangay 183 of Pasay City and Magallanes Village of Makati City.

17. On 18 October 2010, Petitioner Gemma dela Cruz, on behalf of the other Petitioners, sent a letter to
Respondents Toledanes, Cortez, Dimaano, Abad, Castillo and Cacacho, appealing for the recall of the Barangay
Working Permit and Resolution No. 40-S-2009 earlier issued by them.[5] This, however, proved futile.

18. The alarming presence of the towering posts being erected in close proximity tothat is, as near as one (1)
meter fromthe respective properties of Petitioners-Residents of Bgy. 183 and less than ten (10) meters from the
respective properties of Petitioners-Residents of Magallanes Village, and the hazardous effects of the high
tension wires to their health and safety, bring Petitioners to seek the intervention of this Honorable Court.

19. Due to the urgency of the situation, as the installation and energizing of the high tension wires will be
completed by December 2010, there is a need to protect the Petitioners from the hazardous and ill effects of the
same.

GROUNDS FOR THE ALLOWANCE OF THE PETITION

THE INSTALLATION OF THE HIGH TENSION WIRES POSES DANGER TO THE LIVES, HEALTH AND
PROPERTY OF THE RESIDENTS OF BARANGAY 183, PASAY CITY AND MAGALLANES VILLAGE, MAKATI
CITY, INCLUDING HEREIN PETITIONERS;

II

THE ENVIRONMENTAL DAMAGE THAT WILL BE CAUSED BY THE INSTALLATION OF SAID HIGH TENSION
WIRES WILL AFFECT THE RESIDENTS OF BARANGAY 183, PASAY CITY ANDMAGALLANES VILLAGE,
MAKATI CITY;

III

THE INSTALLATION OF THE SAID HIGH TENSION WIRES VIOLATES PETITIONERS CONSTITUTIONAL
RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY AS WELL AS ESTABLISHED ENVIRONMENTAL
LAWS, RULES AND REGULATIONS.

IV

THE ISSUANCE OF THE BARANGAY WORKING PERMIT CLEARANCE AND RESOLUTION NO. 40-S-2009
WAS TAINTED WITH IRREGULARITIES

65
V

THERE IS ANOTHER SUITABLE AND SAFER ROUTE FOR RESPONDENT MERALCOS POWER
TRANSMISSION PROJECT

DISCUSSION

I- THE INSTALLATION OF THE HIGH TENSION WIRES POSES DANGER TO THE LIVES, HEALTH AND
PROPERTY OF THE RESIDENTS OF BARANGAY 183, PASAY CITY AND MAGALLANESVILLAGE, MAKATI
CITY, INCLUDING HEREIN PETITIONERS

================================

20. Scientific studies and research have revealed that there are health risks involved in prolonged exposure to
electromagnetic field or radiation. The risks include cancer, leukemia in children, Alzheimers disease,
depression, miscarriages, headaches, memory loss and insomnia, to name a few.[6]

21. Alasdair and Jean Philips, in their book, The Powerwatch Handbook, published in 2006, noted that there are
links between disease such as leukaemia and electromagnetic fields (EMFs) and cites several instances of
such, thus:

In Abergavenny, in Wales, 4 neighbors living near powerlines developed brain tumours over a period of 18
months.

In the 8 houses closest to powerlines in Kilmarnock, Scotland, 9 people have died of cancer over the last 15
years.

In Dalmally, also in Scotland, in a small estate of 36 houses under a 275,000-volt powerline, 8 people died of
cancer in 5 years, and 3 of motor neurone disease (MND).

A street in Exeter, Devon, where a 132,000-volt electricity pylon looms outside the homes of some of the
residents has been dubbed Death Road. In 28 houses, 23 people havedied from heart disease or cancer. In
fact, the number of cancer deaths on the road is five times higher than the norm for Devon and Cornwall.
Residents also complain of depression, headaches and memory loss.

xxxxxxxxx

In 1989, the Studholme family bought a bungalow in Great Manchester. An electricity meter in a cupboard in the
hallway emitted a strong electromagnetic field through the wall into the front bedroom. Their son Simon slept
with his head less than a yard from this meter. He started to complain of pains, but the doctors found nothing
wrong. Within 18 months he had developed acute lymphatic leukaemia. He died in 1992 at the age of 13.
Subsequent tests revealed that Simon had been sleeping in an electromagnetic field over 2.5 microtesla (a
measurement of electromagnetic field strength), more than sixty times the average exposure level in UK homes.
x x x[7]

22. Moreover, there are also a good number of evidence that electromagnetic fields play a role not only in the
development of brain and breast cancers but also of Alzheimers disease, depression and suicide, ALS or the
Lou Gehrigs disease which is a form of motor-neurone disease, incidents of miscarriages, and the development
of the condition, known variously as electrosensitivity or electromagnetic hypersensitivity.[8]

23. Another concern that should be raised is the inevitable devaluation of the properties exposed to these high
powered transmission lines. Because of their close proximity to the properties of Petitioners, the high voltage
transmission lines would certainly restrict the height of the buildings, houses and structures that could be built on
66
Petitioners properties. The presence itself of these gigantic steel posts, with huge cables strung to them,
towering over Petitioners properties would surely scare away prospective buyers in case Petitioners decide to
sell their properties. Undoubtedly, these circumstances mean a diminution of the value of their properties and
loss of possible income and business opportunities.

24. Also, these high tension transmission lines shall transmit one hundred fifteen (115) Kilovolts of electricity to
NAIA 3. However, the actual voltage may turn out to be higher considering the thirty (30) Megavolt (or 30,000
Kilovolt) requirement for the full operation of the NAIA 3. This increased electric currents passing through these
high tension transmission lines would concomitantly result in the increased risk that the Petitioners and the other
inhabitants of Barangay 183 and Magallanes Village are faced with.

25. Granting that the voltage that would be transmitted by these powerlines is only equivalent to 115KV, still the
required distance for the electromagnetic field level to be within safe limits is around eighty seven (87) meters
away.[9] In the instant case, the high tension transmission lines being erected by Respondent MERALCO are
being constructed within a distance of less than one (1) meter from the houses and properties of the Petitioners-
residents of Barangay 183 and less than ten (10) meters from the houses and properties of Petitioners-residents
of Magallanes Village. Worse, there are two rows of these MERALCO posts holding the high tension wires and
they are installed within close distance from each other, flanking residential houses, which will unfortunately
absorb the concentrated EMFs that will be emitted by the transmission lines from both sides.

26. Sadly, if this kind of power transmission project is not immediately aborted, Barangay 183 and Magallanes
Village, will one day have their own versions of the so-called death roads with their inhabitants as the guinea
pigs in this great electro-magnetic experiment.[10]

27. The health risks linked to exposure to electromagnetic fields were raised by the residents ofDasmarias
Village, Makati as their battlecry in seeking an injunctive relief against the Power Transmission Project of the
National Power Corporation (NAPOCOR) within the said Village in the case of Eduardo F. Hernandez, et al. v.
National Power Corporation.[11]

28. In the aforementioned case, NAPOCORs 230 Kilovolt Sucat-Araneta-Balintawak Power Transmission
Project was supposed to pass through the Sergio Osmea, Sr. Highway (South Superhighway), the perimeter of
Fort Bonifacio, and Dasmarias Village proximate to Tamarind Road, where the Dasmarias villagers homes
are. Recognizing the health and safety risks posed by the high voltage transmission lines, the Supreme Court
enjoined the NAPOCOR from further preparing and installing high voltage cables to the steel pylons erected
near the villagers homes and from energizing and transmitting high voltage electric current through said cables.

29. Living up to its reputation as the ultimate guardian and defender of the rights of the people, the Supreme
Court, in all its wisdom and good judgment, declared:

In the present case, the far-reaching irreversible effects to human safety should be the primordial concern over
presumed economic benefits per se as alleged by the NAPOCOR.[12] (emphasis, supplied)

30. In another case, the Supreme Court even observed that construction of residential structures in areas where
there are high tension transmission lines, was declared to be unsafe and prohibited. Said the Supreme Court

It is not safely habitable. It is built in a subdivision area where there is an existing 30-meter right of way of the
Manila Electric Company (Meralco) with high-tension wires over the property, posing a danger to life and
property. The construction of houses underneath the high tension wires is prohibited as hazardous to life and
property because the line carries 115,000 volts of electricity, generates tremendous static electricity and
produces electric sparks whenever it rained.[13] (Emphasis supplied.)

31. If because of the danger and hazard that high tension transmission lines pose, construction of residential
houses is prohibited in areas where said transmission lines exist, then why allow the same hazardous
67
transmission lines to be installed in established residential areas? Clearly, for health and safety reasons, high-
voltage transmission lines and residential areas should never co-exist in the same place. By logical inference,
high voltage transmission lines, which are hazardous to life and property, should be prohibited and should never
be allowed in residential areas, especially in densely populated ones like the herein residences of Petitioners.

32. These health hazards linked to exposure to EMFs are not the only matters which cause alarm to the
Petitioners.

33. Some of the posts which will carry the tremendous amount of electricity have not been erected properly.
Thus, some of the posts are tilting in an apparently unstable position.[14] Thus, not only are the lives, health and
property of the residents of Barangay 183 and Magallanes Village at risk of EMF radiation but also run the risk of
being physically tumbled upon should these unstable and tilting posts give way.

34. Moreover, most if not all of the said posts erected by Respondent MERALCO encroach into the drainage
canals of Barangay 183.[15] In case of heavy rains and typhoons, dangers of flooding will have to be expected in
Barangay 183 which will certainly affect adjacent areas, including Magallanes Village. As a matter of fact, some
areas of Barangay 183 which do not usually experience flooding caused by moderate rainfall are now
experiencing slight inundation in their area.

35. By way of example, attached herewith as Annex E to E-1, are photographs of the effects of Typhoon
Ondoy in Barangay 183.

II- THE ENVIRONMENTAL DAMAGE THAT WILL BE CAUSED BY THE INSTALLATION OF SAID HIGH
TENSION WIRES WILL AFFECT THE RESIDENTS OF BARANGAY 183, PASAY CITY ANDMAGALLANES
VILLAGE, MAKATI CITY

================================

36. Considering the high voltage that will run through the subject high tension wires, the environmental damage
is expected to have adverse effects to the inhabitants of two (2) cities, Barangay 183 of Pasay City and
Magallanes Village of Makati City. The construction of these posts by Respondent MERALCO transcends the
boundaries of Barangay 183 in Pasay City and extends to Magallanes Village of Makati City. Presently, a 115KV
a couple of electricity pylons have already been constructed very near the wall separating the two cities.[16] The
distance separating these posts and the residential area of MagallanesVillage is only about four (4) to five (5)
meters, which undoubtedly does not comply with the safe-distance requirement of at least 87 meters.

III- THE INSTALLATION OF SAID HIGH TENSION WIRES VIOLATES PETITIONERS CONSTITUTIONAL
RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY AS WELL AS ESTABLISHED ENVIRONMENTAL
LAWS, RULES AND REGULATIONS

================================

37. As shown hereinabove, the implementation of Respondent MERALCOs project violates Petitioners right to
health as enshrined in Section 15, Article II of the 1987 Constitution, viz.:

ARTICLE II

Declaration of Principles and State Policies

Section 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them. (Emphasis supplied.)

68
38. In the same manner, Presidential Decree No. 856, otherwise known as the Code of Sanitation of the
Philippines, categorically prohibits the installation of high tension transmission lines in residential areas. Its
Implementing Rules, issued on 16 April 1998, in fact, provides in no uncertain terms that

7.3 Electric and Electronic Industries

7.3.1 High-tension transmission lines shall never pass overhead or underground ofresidential areas. (emphasis,
added)

39. P.D. No. 856 is cited in the recent Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC),
promulgated on 29 April 2010, as one of the bases for filing cases involving enforcement or violations of
environmental and other related laws, rules and regulations. On the basis of the above-quoted implementing
rules of P.D. No. 856 alone, it follows that the implementiation of Respondent MERALCOs high power
transmission project in Barangay 183, a residential area, is illegal and should never be allowed.

40. Also, the fact that these MERALCO posts obstruct the drainage system of Barangay 183, is a clear violation
of Commonwealth Act No. 548 otherwise known as the Regulation and Control of the Use of and Traffic on
National Roads and Constructions, which effectively provides that

SECTION 2. It shall be unlawful for any person to convert any part of any national road to his private use or in
any manner to obstruct or damage the same or any bridge, culvert, drainage ditch, road sign, or other
appurtenance pertaining thereto. (Emphasis supplied.)

41. Finally, as mentioned above, the distances alone at which these high tension transmission lines and posts
are being constructed alongside the properties and homes of Petitioners and the inhabitants of Barangay 183
and Magallanes Village, do not pass the standards required therefor. Thus, the high tension transmission lines
being erected by Respondent MERALCO are being constructed within a distance of less than one (1) meter from
the houses and properties of the residents of said barangay contrary to the required distance for the
electromagnetic field level to be within safe limits, which is around eighty seven (87) meters.

IV- THE ISSUANCE OF THE BARANGAY WORKING PERMIT CLEARANCE AND RESOLUTION NO. 40-S-
2009 WAS TAINTED WITH IRREGULARITIES

===========================

42. Section 27 of the Local Government Code[17] was also breached when Respondent MERALCO and
Respondent MIAA failed to comply with the requirements of prior consultation with the residents of Barangay 183
and Magallanes Village as regards the implementation of its project. As held in the similar case of Hernadez, et.
al. vs. NAPOCOR (supra.)

To boot, petitioners, moreover, harp on respondents failure to conduct prior consultation with them, as the
community affected by the project, in stark violation of Section 27 of the Local Government Code which
provides: no project or program shall be implemented by government authorities unless the consultations
mentioned are complied with, and prior approval of the Sanggunian concerned is observed.

xxxxxxxxx

Moreover, the Local Government Code, requires conference with the affected communities of a government
project. NAPOCOR, palpably, made a shortcut to this requirement. In fact, there appears a lack of exhaustive
feasibility studies on NAPOCORs part before making a go with the project on hand; otherwise, it should have
anticipated the legal labyrinth it is now caught in.

69
43. In the same vein, the Barangay Working Permit Clearance issued by Respondent Toledanes to Respondent
MERALCO obviously suffers from patent irregularities.

44. First, the Barangay Working Permit Clearance was issued without the authority of the Respondent Barangay
Council. The Respondent Barangay Council only approved Barangay Resolution No. 40-S-2009 on 02
September 2009 while the Barangay Working Permit was issued on 13 July 2009.

45. Second, the Working Permit issued by Respondent Toledanes allowed the installation of the high voltage
wires power lines and poles at the 10th and 12th Streets of Barangay 183, while the Resolution of the
Respondent Barangay Council only authorized the construction of power lines along 10th and 27thStreets,
excluding 12th St.

46. Indubitably, Respondent Toledanes, in a series of meetings requested by Petitioners, admitted that he and
the Respondent Barangay Council did not conduct any consultation with the affected constituents before they
issued the subject permit. Thus, the Barangay Working Permit which actually gave life to the power transmission
project of MERALCO should be struck down as illegal, issued in grave abuse of discretion and in excess of or
without authority on the part of Respondent Toledanes.

V- THERE IS ANOTHER SUITABLE AND SAFER ROUTE FOR RESPONDENT MERALCOS POWER
TRANSMISSION PROJECT.

================================

47. Respondent MERALCO may very well install the subject transmission lines along Sales Street, Villamor Air
Base, Pasay City, where there are no residential houses or buildings and which provides a shorter distance from
Respondent MERALCOs source of electricity as compared to the circuitous route along the 10th and 12th
Streets of Barangay 183.

48. Thus, it makes no sense that the said high tension transmission lines are being erected in an inhabited and
populous area, endangering the lives of the people therein, when it may be erected in an alternative location,
which would result in a negligible effect on the Petitioners and the inhabitants of Barangay 183 and Magallanes
Village.

ALLEGATIONS IN SUPPORT OF THE APPLICATION FOR A TEMPORARY ENVIRONMENTAL PROTECTION


ORDER (TEPO)

49. For reference, Petitioners replead all the foregoing allegations in support of their prayer for a Temporary
Environmental Protection Order (TEPO);

50. The foregoing allegations undoubtedly demonstrate Petitioners clear and unmistakable right to a healthful
ecology and to be protected against any unlawful acts involving environmental damage that tend to endanger
their life, health and property;

51. Respondents MERALCO and MIAA are poised to continue with and complete the installation of the high
tension wires along the entire stretch of 10th, 12th and 27th of Barangay 183 the soonest time possible as in fact
Respondent MERALCO has been working almost twenty-four (24) hours within the said areas of Barangay 183
to hasten the completion of the acts complained of;

52. The acts complained of, aside from being unconstitutional, illegal and contrary to established environmental
rules and regulations, are clearly in violation of the foregoing rights of the Petitioners;

70
53. The matter is thus of extreme urgency that, unless immediately restrained, will inevitably cause damage to
the environment, the inhabitants of Magallanes Village of Makati City and of Barangay 183, Zone 20, Villamor of
Pasay City, including the herein Petitioners who will all suffer grave injustice and irreparable injury;

54. If not curtailed, the continuous commission by the Respondents of the acts complained of might also render
the final judgment granting the reliefs sought in the instant petition ineffectual.

55. An Affidavit of Merit in support of Petitioners application for the issuance of a Temporary Environmental
Protection Order is hereto attached as Annex F.

EPILOGUE

56. Progress is desirable. The operation of the NAIA represents economic advancement. It promises
convenience to international travelers. A way to attract foreign investors and bring more income for the
government. The purpose is admirable, but to attain it at all costs, even at the expense of lives and well-being of
people, for whom the desired economic development is intended in the first place, is unacceptable if not
immoral. For then, the way of accomplishing it altogether defeats its purpose. Economic gain has never been
more important than a persons right to life and well-being.

PRAYER

WHEREFORE, it is respectfully prayed of the Honorable Court that:

1. Immediately upon the filing of this petition, a Temporary Environmental Protection Order (TEPO) and or a Writ
of Kalikasan be issued, ordering Respondents and any person acting on their behalf, to cease and desist from
conducting excavation works, installing poles and transmission lines along the entire stretch of 10th, 12th and
27th Streets of Barangay 183, Zone 20, Villamor, Pasay City and from energizing and transmitting high voltage
electric current through the said powerlines.

2. After a summary hearing, issue a Resolution, extending the effectivity of the TEPO until the termination of this
case; and

3. After due proceedings, a Decision be rendered

(a) Making the TEPO and/or Writ of Kalikasan permanent, directing Respondents and any person acting on their
behalf, to cease and desist from conducting excavation works, installing poles and transmission lines along the
entire stretch of 10th, 12th and 27th Streets of Barangay 183, Zone 20, Villamor, Pasay City and from energizing
and transmitting high voltage electric current through the said powerlines;

(b) Nullifying the Barangay Working Permit Clearance dated 13 July 2009 issued by Barangay 183 Respondent
Chairman Cesar S. Toledanes in favor of Respondent MERALCO, for being unconstitutional, illegal and for
having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction or authority;

(c) Nullifying Resolution No. 40, S-2009 date 2 September 2009 issued by the Barangay Council of Barangay
183, authorizing its Respondent Barangay Chairman Cesar S. Toledanes, to issue a clearance/permit to
Respondent MERALCO to construct/install the high tension transmission lines that will traverse the entire stretch
of 10th and 27th Streets, for being unconstitutional, illegal and for having been issued with grave abuse of
discretion amounting to lack or excess of jurisdiction or authority; and

(d) Directing the Respondents MIAA and MERALCO to remove or cause the removal of the installed MERALCO
posts and transmission lines along 10th, 12th and 27th Streets of Barangay 183, Zone 20, Villamor, Pasay City,
at the expense of said Respondents.

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Petitioners pray for such other reliefs as are just and equitable under the premises.

72