Boracay Foundation, Inc. v.

Province of Aklan
G.R. No. 196870, June 26, 2012

FACTS:
Claiming that tourist arrivals to Boracay would reach 1 million in the future, respondent
Province of Aklan planned to expand the port facilities at Barangay Caticlan, Municipality of Malay. Thus,
on May 7, 2009, the Sangguniang Panlalawigan of Aklan Province issued a resolution, authorizing
Governor Carlito Marquez to file an application with respondentPhilippine Reclamation Authority (PRA)
to reclaim the 2.64 hectares of foreshore area in Caticlan. In the same year, the 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.

After PRAs approval,on April 27, 2010, respondent Department of Environment and Natural
Resources-Environmental Management Bureau-Region VI (DENR-EMB RVI) issued to the Province
Environmental Compliance Certificate-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, the Province finallyentered into a MOA with PRA which stated that the land
use development of the reclamation project shall be for commercial, recreational and institutional and
other applicable uses.It was at this point that the Province deemed it necessary to conduct a series of
public consultation meetings.

On the other hand, the Sangguniang Barangay of Caticlan, the Sangguniang Bayan of the
Municipality of Malayand petitioner Boracay Foundation, Inc. (BFI), an organization composed of some
160 businessmen and residents in Boracay, expressed their strong opposition to the reclamation project
on environmental, socio-economic and legal grounds.

Despite the opposition, the Province merely noted their objections and issued a notice to the
contractor on December 1, 2010 to commence with the construction of the project. Thus, on June 1,
2011, BFI filed with the Supreme Court the instant Petition for Environmental Protection Order/Issuance
of the Writ of Continuing Mandamus. Thereafter, the Court issued a Temporary Environmental
Protection Order (TEPO) and ordered the respondents to file their respective comments to the petition.

The Petition was premised on the following grounds, among others:

a) the Province failed to obtain the favorable endorsement of the LGU concerned;
b) the Province failed to conduct the required consultation procedures as required by the Local
Government Code (LGC).

The Province responded by claiming that its compliance with the requirements of 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 BFI in its Petition. It also considered the Petition to bepremature for lack of cause of action
due to the failure of BFI to fully exhaust the available administrative remedies even before seeking
judicial relief.

ISSUES:

WON the petition is premature because petitioner failed to exhaust administrative remedies
before filing this case?

WON there was proper, timely, and sufficient public consultation for the project?

RULING:

On the issue of prematurity due to failure to exhaust administrative remedies

The Court held that the petition is not premature for failing to exhaust administrative remedies
and to observe the hierarchy of courts as claimed by the respondents.

The Court reiterated their ruling in Pagara v. Court of Appeals where they clarified that the rule
regarding exhaustion of administrative remedies is not a hard and fast rule. It is not applicable where,
among others, there are circumstances indicating the urgency of judicial intervention such as in the
instant case. The rule may also be disregarded when it does not provide a plain, speedy and adequate
remedy or where the protestant has no other recourse.

Meanwhile, 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 writ of continuing mandamus allows an aggrieved party to file a verified petition in the
proper court when any government agency or instrumentality or officer thereof unlawfully neglects the
performance of an act which the law specifically enjoins as a duty xxx in connection with the
enforcement or violation of an environmental law rule or regulation or a right therein, xxx and there is
no other plain, speedy and adequate remedy in the ordinary course of law. Such proper court may be
the Regional Trial Court exercising jurisdiction over the territory where the actionable neglect or
omission occurred, the Court of Appeals, or the Supreme Court.

Here, the Court found that BFI 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 that pertain to
laws and rules for environmental protection.
 Moreover, 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.

On the issue of whether or notthere was proper, timely, and sufficient public consultation for the
project

The Court found that there was no proper, timely, and sufficient public consultation for the
project.

The Local Government Code (LGC) establishes the duties of national government agencies in the
maintenance of ecological balance and requires them to secure prior public consultations and approval
of local government units. In Province of Rizal v. Executive Secretary, the Court emphasized that, under
the Local Government Code, two requisites must be met before a national project that affects the
environmental and ecological balance of local communities can be implemented: (1) prior consultation
with the affected local communities, and (2) prior approval of the project by the appropriate
sanggunian.The absence of either of such mandatory requirements will render the projects
implementation as illegal.

Here, the Court classified the reclamation project as a national project since it affects the
environmental and ecological balance of local communities. In one ruling, the Court noted that such
national projects mentioned in Section 27 of the LGC include those that may cause pollution and bring
about climate change, among others, such as the reclamation project in this case.

Also, DENR DAO 2003-30 provides that project 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.

Thus, the law requires the Province, being the delegate of the PRAs power to reclaim land in
this case, to conduct prior consultations and prior approval. However, the information dissemination
conducted months after the ECC had already been issued was insufficient to comply with the
requirements under the LGC.

Furthermore, 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 and the
Sangguniang Bayan in 2012, which were both undoubtedly achieved at the urging and insistence of the
Province.