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Braga v Abaya

Nature of the case: Writ of Kalikasan

Doctrine: The writ Kalikasan is a remedy to anyone whose constitutional right to a balanced and
healthful ecology is violated or threatened with violation by an lawful act or omission. The bidding
process is not equivalent to the implementation of the project. The bidding process itself cannot
conceivably cause any environmental damage.

Petitioners: PILAR CAEDA BRAGA, PETER TIU LAVINA, ANTONIO H. VERGARA, BENJIE T. BADAL,
DIOSDADO ANGELO A. MAHIPUS, AND SAMAL CITY RESORT OWNERS ASSOCIATION, INC. (SCROA)

Respondents: HON. JOSEPH EMILIO A. ABAYA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF
TRANSPORTATION AND COMMUNICATIONS, DEPARTMENT OF TRANSPORTATION AND
COMMUNICATIONS (DOTC), PRE-QUALIFICATION, BIDS AND AWARDS COMMITTEE (PBAC) AND
PHILIPPINE PORTS AUTHORITY (PPA)

Facts:

- The DOTC wants to improve and modernize the Sasa Wharf under the Public-Private Partnership
Scheme. The Philippine Port Authority conducted a feasibility study, with the help of Science &
Vision for Technology, Inc., which estimated the cost of the project at about 3.5B for the
purchase of new equipment. However, the DOTC hired another firm, Hamburg port Consultants,
to conduct its own feasibility study which estimated the cost at 18B and an expansion of the
Wharf by 27.9 hectares. The DOTC study was the one used as primary considerations for the
project.
- Regional Development Council for Region XI (the Council) endorsed the project through
Resolution No. 118 subject to the following conditions that must be met before its
implementation.
o The DOTC shall immediately secure the acquisition of 6.4 hectares of right of way, per
recommendation of the National Economic and Development Authority - Investment
Coordination Committee (NEDA-ICC);
o The DOTC shall ensure that appropriate compensation is paid to the owners of the
properties to be acquired as additional right of way;
o The DOTC shall ensure the proper relocation/resettlement of the informal settlers
affected by the project; and
o The DOTC shall ensure the project will also benefit the port users and the people of
Davao by providing better, more affordable service, and generating sustainable
employment opportunities
- The petitioners alleged that (1) that the DOTC issued the notice of public bidding despite
noncompliance with Resolution No. 118; (2) that the DOTC did not conduct prior consultation
and public hearings nor secure the approval of the sanggunian concerned as required under
Sections 26 and 27 of the LGC; (3) that the Davao City sanggunian had passed a resolution
objecting to the project for its noncompliance with the LGC; and (4) that the DOTC has not yet
obtained an Environmental Compliance Certificate (ECC) as required under P.D. 1586.
- The Respondents argue, however, that the petition is premature since the project is still in the
bidding process. They contend that the proponents are the ones who will secure and initiate the
Environmental Impact Assessment process and the Environmental Compliance Certificate. They
also contend that the petitioners failed to prove that the environmental damage or threat of
such will prejudice the life, health or property of the inhabitants of two or more cities or
provinces.

Issue

- Should the Writ of Kalikasan be issued? NOPE

Fallo:

- WHEREFORE, we DENY the petition for its prematurity and lack of merit.

SO ORDERED.

Held:

- The SC denies the petition on two points, that the petition is premature and that the petitioners
failed to prove that the writ is necessary.
- First point, the court discussed the pertinent provisions of the law. PD 115, as amended by PD
1586 which required ALL agencies and instrumentalities of the national government to prepare
a detailed Environmental Impact Statement for every project or undertaking that significantly
affects the quality of the environment. PD 1586 tasked the National Environmental Council to
issue the IRR of such requirement, this power was then transferred to the DENR upon
abolishment of the council.
- The Local Government Code required national government agencies to consult stakeholders
before undertaking programs with significant ecological impact.
- The Environmental Impact Assessment is the process of evaluating the impacts of the project on
the environment. This requires the PROPONENTS to truthfully and responsibly disclose all
relevant information regarding the project through the Environmental Impact Statement. The
key operating principles of the EIS relevant to the case are:
o Project proponents are responsible for determining and disclosing all relevant
information necessary for a methodical assessment of the environmental impacts of
their projects;
o Effective regulatory review of the EIS depends largely on timely, full, and accurate
disclosure of relevant information by project proponents and other stakeholders in
the EIA process;
- The contents of the EIS must include, among others, a project description, an Environmental
Management plan, and supporting documents and proof of consultation with stakeholders. The
EMP includes the preventive, mitigating, and contingent measures to enhance the projects
positive impact while minimizing the ecological risks. The EMB is tasked to approve or deny the
assessment. The question here is WHO is responsible for preparing the EIS? RA 6957, as
amended by RA 7718, or the Build-Operate-Transfer law identifies the proponent as "the private
sector entity which shall have contractual responsibility for the project, in this case there is still
no proponent since it is still in the bidding process.
- Now to the LGC. This provides the requirement of local consultation by the national government
agency involved in the planning and implementation of the project, or in this case, the DOTC.
However, the implementation starts after there has been a winning bidder and the construction
stage has already begun, which has not the case here.
- In the case of the Writ of Kalikasan, the claim of the petitioners is not tenable since they failed
to identify the particular threats from the project itself. Those impacts they cited are already
existing since the port of Davao has already been there for more than two decades. The project
is only for the improvement of the port, not for an additional one. They also wrongly cited the
publication Managing Impacts of Development in the Coastal Zone, they failed to include the
mitigating measures which the project can adopt. Again, the bidding process does not constitute
the start of the implementation stage. The bidding itself does not constitute environmental
damage.

Notes

- The purpose of a writ of continuing mandamus is to compel the espondent to perform his duties
under the law. This remedy is available When any government agency, instrumentality, or
officer unlawfully neglects a Specific legal duty in connection with the enforcement or
violation of an environmental law, rule, or regulation, or a right therein, 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 writ cannot be resorted to when the respondent is not the person obliged to perform the
duty under the law (as is the case under the EIS System) or when the period for the respondent
to perform its legal duty has not yet expired (as is. the case with the consultation requirements
of the LGC). Accordingly, we cannot issue a writ of continuing mandamus.

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