#1, #2 -> PDF
DOMINGO,
#3
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 206510 September 16, 2014
MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa
D.D.; MOST REV. DEOGRACIAS S. INIGUEZ, JR., Bishop-Emeritus
of Caloocan, FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA,
JR., Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO
M. REYES, JR., Bagong Alyansang Makabayan, HON. NERI JAVIER
COLMENARES, Bayan Muna Partylist, ROLAND G. SIMBULAN,
PH.D., Junk VF A Movement, TERESITA R. PEREZ, PH.D., HON.
RAYMOND V. PALATINO, Kabataan Party-list, PETER SJ.
GONZALES, Pamalakaya, GIOVANNI A. TAPANG, PH. D., Agham,
ELMER C. LABOG, Kilusang Mayo Uno, JOAN MAY E.
SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA, THERESA A.
CONCEPCION, MARY JOAN A. GUAN, NESTOR T. BAGUINON,
PH.D., A. EDSEL F. TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet,
MARK A. RICE in his capacity as Commanding Officer of the USS
Guardian, PRESIDENT BENIGNO S. AQUINO III in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines, HON.
ALBERT F. DEL ROSARIO, Secretary, pepartment of Foreign
Affair.s, HON. PAQUITO OCHOA, JR., Executiv~.:Secretary, Office
of the President, . HON. VOLTAIRE T. GAZMIN, Secretary,
Department of National Defense, HON. RAMON JESUS P. P AJE,
Secretary, Department of Environment and Natural Resoz!rces, VICE
ADMIRAL JOSE LUIS M. ALANO, Philippine Navy Flag Officer in
Command, Armed Forces of the Philippines, ADMIRAL RODOLFO
D. ISO RENA, Commandant, Philippine Coast Guard,
COMMODORE ENRICO EFREN EVANGELISTA, Philippine Coast
Guard Palawan, MAJOR GEN. VIRGILIO 0.
Commandant of Armed Forces of the Philippines Command and LT.
GEN. TERRY G. ROBLING, US Marine Corps Forces. Pacific and
Balikatan 2013 Exercise Co-Director, Respondents.
DECISION
VILLARAMA, JR, J.:
Before us is a petition for the issuance of a Writ of Kalikasan with prayer
for the issuance of a Temporary Environmental Protection Order (TEPO)
under Rule 7 of A.M. No. 09-6-8-SC, otherwise known as the Rules of
Procedure for Environmental Cases (Rules), involving violations of
environmental laws and regulations in relation to the grounding of the US
military ship USS Guardian over the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring people of southern
Philippines) language which means "long reef exposed at low tide."
Tubbataha is composed of two huge coral atolls - the north atoll and the
south atoll - and the Jessie Beazley Reef, a smaller coral structure about 20
kilometers north of the atolls. The reefs of Tubbataha and Jessie Beazley are
considered part of Cagayancillo, a remote island municipality of Palawan.1
In 1988, Tubbataha was declared a National Marine Park by virtue of
Proclamation No. 306 issued by President Corazon C. Aquino on August
11, 1988. Located in the middle of Central Sulu Sea, 150 kilometers
southeast of Puerto Princesa City, Tubbataha lies at the heart of the Coral
Triangle, the global center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations Educational
Scientific and Cultural Organization (UNESCO) as a World Heritage Site.
It was recognized as one of the Philippines' oldest ecosystems, containing
excellent examples of pristine reefs and a high diversity of marine life. The
97,030-hectare protected marine park is also an important habitat for
internationally threatened and endangered marine species. UNESCO cited
Tubbataha's outstanding universal value as an important and significant
natural habitat for in situ conservation of biological diversity; an example
representing significant on-going ecological and biological processes; and
an area of exceptional natural beauty and aesthetic importance.2
On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067,3
otherwise known as the "Tubbataha Reefs Natural Park (TRNP) Act of
2009" "to ensure the protection and conservation of the globally significant
economic, biological, sociocultural, educational and scientific values of the
Tubbataha Reefs into perpetuity for the enjoyment of present and future
generations." Under the "no-take" policy, entry into the waters of TRNP is
strictly regulated and many human activities are prohibited and penalized or
fined, including fishing, gathering, destroying and disturbing the resources
within the TRNP. The law likewise created the Tubbataha Protected Area
Management Board (TPAMB) which shall be the sole policy-making and
permit-granting body of the TRNP.
The USS Guardian is an Avenger-class mine countermeasures ship of the
US Navy. In December 2012, the US Embassy in the Philippines requested
diplomatic clearance for the said vessel "to enter and exit the territorial
waters of the Philippines and to arrive at the port of Subic Bay for the
purpose of routine ship replenishment, maintenance, and crew liberty."4 On
January 6, 2013, the ship left Sasebo, Japan for Subic Bay, arriving on
January 13, 2013 after a brief stop for fuel in Okinawa, Japan.1wphi1
On January 15, 2013, the USS Guardian departed Subic Bay for its next
port of call in Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while
transiting the Sulu Sea, the ship ran aground on the northwest side of South
Shoal of the Tubbataha Reefs, about 80 miles east-southeast of Palawan. No
cine was injured in the incident, and there have been no reports of leaking
fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift,
expressed regret for the incident in a press statement.5 Likewise, US
Ambassador to the Philippines Harry K. Thomas, Jr., in a meeting at the
Department of Foreign Affairs (DFA) on February 4, "reiterated his regrets
over the grounding incident and assured Foreign Affairs Secretazy Albert F.
del Rosario that the United States will provide appropriate compensation for
damage to the reef caused by the ship."6 By March 30, 2013, the US Navy-
led salvage team had finished removing the last piece of the grounded ship
from the coral reef.
On April 1 7, 2013, the above-named petitioners on their behalf and in
representation of their respective sector/organization and others, including
minors or generations yet unborn, filed the present petition agairtst Scott H.
Swift in his capacity as Commander of the US 7th Fleet, Mark A. Rice in
his capacity as Commanding Officer of the USS Guardian and Lt. Gen.
Terry G. Robling, US Marine Corps Forces, Pacific and Balikatan 2013
Exercises Co-Director ("US respondents"); President Benigno S. Aquino III
in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines (AFP), DF A Secretary Albert F. Del Rosario, Executive
Secretary Paquito Ochoa, Jr., Secretary Voltaire T. Gazmin (Department of
National Defense), Secretary Jesus P. Paje (Department of Environment and
Natural Resources), Vice-Admiral Jose Luis M. Alano (Philippine Navy
Flag Officer in Command, AFP), Admiral Rodolfo D. Isorena (Philippine
Coast Guard Commandant), Commodore Enrico Efren Evangelista
(Philippine Coast Guard-Palawan), and Major General Virgilio 0. Domingo
(AFP Commandant), collectively the "Philippine respondents."
The Petition
Petitioners claim that the grounding, salvaging and post-salvaging
operations of the USS Guardian cause and continue to cause environmental
damage of such magnitude as to affect the provinces of Palawan, Antique,
Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga
del Norte, Basilan, Sulu, and Tawi-Tawi, which events violate their
constitutional rights to a balanced and healthful ecology. They also seek a
directive from this Court for the institution of civil, administrative and
criminal suits for acts committed in violation of environmental laws and
regulations in connection with the grounding incident.
Specifically, petitioners cite the following violations committed by US
respondents under R.A. No. 10067: unauthorized entry (Section 19); non-
payment of conservation fees (Section 21 ); obstruction of law enforcement
officer (Section 30); damages to the reef (Section 20); and destroying and
disturbing resources (Section 26[g]). Furthermore, petitioners assail certain
provisions of the Visiting Forces Agreement (VFA) which they want this
Court to nullify for being unconstitutional.
The numerous reliefs sought in this case are set forth in the final prayer of
the petition, to wit: WHEREFORE, in view of the foregoing, Petitioners
respectfully pray that the Honorable Court: 1. Immediately issue upon the
filing of this petition a Temporary Environmental Protection Order (TEPO)
and/or a Writ of Kalikasan, which shall, in particular,
a. Order Respondents and any person acting on their
behalf, to cease and desist all operations over the
Guardian grounding incident;
b. Initially demarcating the metes and bounds of the
damaged area as well as an additional buffer zone;
c. Order Respondents to stop all port calls and war games
under 'Balikatan' because of the absence of clear
guidelines, duties, and liability schemes for breaches of
those duties, and require Respondents to assume
responsibility for prior and future environmental damage
in general, and environmental damage under the Visiting
Forces Agreement in particular.
d. Temporarily define and describe allowable activities of
ecotourism, diving, recreation, and limited commercial
activities by fisherfolk and indigenous communities near
or around the TRNP but away from the damaged site and
an additional buffer zone;
2. After summary hearing, issue a Resolution extending
the TEPO until further orders of the Court;
3. After due proceedings, render a Decision which shall
include, without limitation:
a. Order Respondents Secretary of Foreign Affairs,
following the dispositive portion of Nicolas v. Romulo,
"to forthwith negotiate with the United States
representatives for the appropriate agreement on
[environmental guidelines and environmental
accountability] under Philippine authorities as provided in
Art. V[] of the VFA ... "
b. Direct Respondents and appropriate agencies to
commence administrative, civil, and criminal proceedings
against erring officers and individuals to the full extent of
the law, and to make such proceedings public;
c. Declare that Philippine authorities may exercise
primary and exclusive criminal jurisdiction over erring
U.S. personnel under the circumstances of this case;
d. Require Respondents to pay just and reasonable
compensation in the settlement of all meritorious claims
for damages caused to the Tubbataha Reef on terms and
conditions no less severe than those applicable to other
States, and damages for personal injury or death, if such
had been the case;
e. Direct Respondents to cooperate in providing for the
attendance of witnesses and in the collection and
production of evidence, including seizure and delivery of
objects connected with the offenses related to the
grounding of the Guardian;
f. Require the authorities of the Philippines and the United
States to notify each other of the disposition of all cases,
wherever heard, related to the grounding of the Guardian;
g. Restrain Respondents from proceeding with any
purported restoration, repair, salvage or post salvage plan
or plans, including cleanup plans covering the damaged
area of the Tubbataha Reef absent a just settlement
approved by the Honorable Court;
h. Require Respondents to engage in stakeholder and
LOU consultations in accordance with the Local
Government Code and R.A. 10067;
i. Require Respondent US officials and their
representatives to place a deposit to the TRNP Trust Fund
defined under Section 17 of RA 10067 as a bona .fide
gesture towards full reparations;
j. Direct Respondents to undertake measures to
rehabilitate the areas affected by the grounding of the
Guardian in light of Respondents' experience in the Port
Royale grounding in 2009, among other similar grounding
incidents;
k. Require Respondents to regularly publish on a
quarterly basis and in the name of transparency and
accountability such environmental damage assessment,
valuation, and valuation methods, in all stages of
negotiation;
l. Convene a multisectoral technical working group to
provide scientific and technical support to the TPAMB;
m. Order the Department of Foreign Affairs, Department
of National Defense, and the Department of Environment
and Natural Resources to review the Visiting Forces
Agreement and the Mutual Defense Treaty to consider
whether their provisions allow for the exercise of erga
omnes rights to a balanced and healthful ecology and for
damages which follow from any violation of those rights;
n. Narrowly tailor the provisions of the Visiting Forces
Agreement for purposes of protecting the damaged areas
of TRNP;
o. Declare the grant of immunity found in Article V
("Criminal Jurisdiction") and Article VI of the Visiting
Forces Agreement unconstitutional for violating equal
protection and/or for violating the preemptory norm of
nondiscrimination incorporated as part of the law of the
land under Section 2, Article II, of the Philippine
Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the
Tubbataha Reefs in all other respects; and
4. Provide just and equitable environmental rehabilitation
measures and such other reliefs as are just and equitable
under the premises.7 (Underscoring supplied.)
Since only the Philippine respondents filed their comment8 to the petition,
petitioners also filed a motion for early resolution and motion to proceed ex
parte against the US respondents.9
Respondents' Consolidated Comment
In their consolidated comment with opposition to the application for a
TEPO and ocular inspection and production orders, respondents assert that:
( 1) the grounds relied upon for the issuance of a TEPO or writ of Kalikasan
have become fait accompli as the salvage operations on the USS Guardian
were already completed; (2) the petition is defective in form and substance;
(3) the petition improperly raises issues involving the VFA between the
Republic of the Philippines and the United States of America; and ( 4) the
determination of the extent of responsibility of the US Government as
regards the damage to the Tubbataha Reefs rests exdusively with the
executive branch.
The Court's Ruling
As a preliminary matter, there is no dispute on the legal standing of
petitioners to file the present petition.
Locus standi is "a right of appearance in a court of justice on a given
question."10 Specifically, it is "a party's personal and substantial interest in
a case where he has sustained or will sustain direct injury as a result" of the
act being challenged, and "calls for more than just a generalized
grievance."11 However, the rule on standing is a procedural matter which
this Court has relaxed for non-traditional plaintiffs like ordinary citizens,
taxpayers and legislators when the public interest so requires, such as when
the subject matter of the controversy is of transcendental importance, of
overreaching significance to society, or of paramount public interest.12
In the landmark case of Oposa v. Factoran, Jr.,13 we recognized the "public
right" of citizens to "a balanced and healthful ecology which, for the first
time in our constitutional history, is solemnly incorporated in the
fundamental law." We declared that the right to a balanced and healthful
ecology need not be written in the Constitution for it is assumed, like other
civil and polittcal rights guaranteed in the Bill of Rights, to exist from the
inception of mankind and it is an issue of transcendental importance with
intergenerational implications.1wphi1 Such right carries with it the
correlative duty to refrain from impairing the environment.14
On the novel element in the class suit filed by the petitioners minors in
Oposa, this Court ruled that not only do ordinary citizens have legal
standing to sue for the enforcement of environmental rights, they can do so
in representation of their own and future generations. Thus:
Petitioners minors assert that they represent their generation as well as
generations yet unborn. We find no difficulty in ruling that they can, for
themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the
succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned. Such a right, as hereinafter expounded,
considers the "rhythm and harmony of nature." Nature means the created
world in its entirety. Such rhythm and harmony indispensably include, inter
alia, the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural resources to the end that their
exploration, development and utilization be equitably accessible to the
present a:: well as future generations. Needless to say, every generation has
a responsibility to the next to preserve that rhythm and harmony for the full
1:njoyment of a balanced and healthful ecology. Put a little differently, the
minors' assertion of their right to a sound environment constitutes, at the
same time, the performance of their obligation to ensure the protection of
that right for the generations to come.15 (Emphasis supplied.)
The liberalization of standing first enunciated in Oposa, insofar as it refers
to minors and generations yet unborn, is now enshrined in the Rules which
allows the filing of a citizen suit in environmental cases. The provision on
citizen suits in the Rules "collapses the traditional rule on personal and
direct interest, on the principle that humans are stewards of nature."16
Having settled the issue of locus standi, we shall address the more
fundamental question of whether this Court has jurisdiction over the US
respondents who did not submit any pleading or manifestation in this case.
The immunity of the State from suit, known also as the doctrine of
sovereign immunity or non-suability of the State,17 is expressly provided in
Article XVI of the 1987 Constitution which states:
Section 3. The State may not be sued without its consent.
In United States of America v. Judge Guinto,18 we discussed the principle
of state immunity from suit, as follows:
The rule that a state may not be sued without its consent, now expressed in
Article XVI, Section 3, of the 1987 Constitution, is one of the generally
accepted principles of international law that we have adopted as part of the
law of our land under Article II, Section 2. x x x.
Even without such affirmation, we would still be bound by the generally
accepted principles of international law under the doctrine of incorporation.
Under this doctrine, as accepted by the majority of states, such principles
are deemed incorporated in the law of every civilized state as a condition
and consequence of its membership in the society of nations. Upon its
admission to such society, the state is automatically obligated to comply
with these principles in its relations with other states.
As applied to the local state, the doctrine of state immunity is based on the
justification given by Justice Holmes that ''there can be no legal right
against the authority which makes the law on which the right depends."
[Kawanakoa v. Polybank, 205 U.S. 349] There are other practical reasons
for the enforcement of the doctrine. In the case of the foreign state sought to
be impleaded in the local jurisdiction, the added inhibition is expressed in
the maxim par in parem, non habet imperium. All states are sovereign
equals and cannot assert jurisdiction over one another. A contrary
disposition would, in the language of a celebrated case, "unduly vex the
peace of nations." [De Haber v. Queen of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state
for acts allegedly performed by them in the discharge of their duties. The
rule is that if the judgment against such officials will require the state itself
to perform an affirmative act to satisfy the same,. such as the appropriation
of the amount needed to pay the damages awarded against them, the suit
must be regarded as against the state itself although it has not been formally
impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In such a situation, the
state may move to dismiss the comp.taint on the ground that it has been
filed without its consent.19 (Emphasis supplied.)
Under the American Constitution, the doctrine is expressed in the Eleventh
Amendment which reads:
The Judicial power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State.
In the case of Minucher v. Court of Appeals,20 we further expounded on
the immunity of foreign states from the jurisdiction of local courts, as
follows:
The precept that a State cannot be sued in the courts of a foreign state is a
long-standing rule of customary international law then closely identified
with the personal immunity of a foreign sovereign from suit and, with the
emergence of democratic states, made to attach not just to the person of the
head of state, or his representative, but also distinctly to the state itself in its
sovereign capacity. If the acts giving rise to a suit arc those of a foreign
government done by its foreign agent, although not necessarily a diplomatic
personage, but acting in his official capacity, the complaint could be barred
by the immunity of the foreign sovereign from suit without its consent.
Suing a representative of a state is believed to be, in effect, suing the state
itself. The proscription is not accorded for the benefit of an individual but
for the State, in whose service he is, under the maxim -par in parem, non
habet imperium -that all states are soverr~ign equals and cannot assert
jurisdiction over one another. The implication, in broad terms, is that if the
judgment against an official would rec 1uire the state itself to perform an
affirmative act to satisfy the award, such as the appropriation of the amount
needed to pay the damages decreed against him, the suit must be regarded
as being against the state itself, although it has not been formally
impleaded.21 (Emphasis supplied.)
In the same case we also mentioned that in the case of diplomatic immunity,
the privilege is not an immunity from the observance of the law of the
territorial sovereign or from ensuing legal liability; it is, rather, an immunity
from the exercise of territorial jurisdiction.22
In United States of America v. Judge Guinto,23 one of the consolidated
cases therein involved a Filipino employed at Clark Air Base who was
arrested following a buy-bust operation conducted by two officers of the US
Air Force, and was eventually dismissed from his employment when he was
charged in court for violation of R.A. No. 6425. In a complaint for damages
filed by the said employee against the military officers, the latter moved to
dismiss the case on the ground that the suit was against the US Government
which had not given its consent. The RTC denied the motion but on a
petition for certiorari and prohibition filed before this Court, we reversed
the RTC and dismissed the complaint. We held that petitioners US military
officers were acting in the exercise of their official functions when they
conducted the buy-bust operation against the complainant and thereafter
testified against him at his trial. It follows that for discharging their duties
as agents of the United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to be sued.
This traditional rule of State immunity which exempts a State from being
sued in the courts of another State without the former's consent or waiver
has evolved into a restrictive doctrine which distinguishes sovereign and
governmental acts (Jure imperil") from private, commercial and proprietary
acts (Jure gestionis). Under the restrictive rule of State immunity, State
immunity extends only to acts Jure imperii. The restrictive application of
State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities
or economic affairs.24
In Shauf v. Court of Appeals,25 we discussed the limitations of the State
immunity principle, thus:
It is a different matter where the public official is made to account in his
capacity as such for acts contrary to law and injurious to the rights of
plaintiff. As was clearly set forth by JustiGe Zaldivar in Director of the
Bureau of Telecommunications, et al. vs. Aligaen, etc., et al. : "Inasmuch as
the State authorizes only legal acts by its officers, unauthorized acts of
government officials or officers are not acts of the State, and an action
against the officials or officers by one whose rights have been invaded or
violated by such acts, for the protection of his rights, is not a suit against the
State within the rule of immunity of the State from suit. In the same tenor, it
has been said that an action at law or suit in equity against a State officer or
the director of a State department on the ground that, while claiming to act
for the State, he violates or invades the personal and property rights of the
plaintiff, under an unconstitutional act or under an assumption of authority
which he does not have, is not a suit against the State within the
constitutional provision that the State may not be sued without its consent."
The rationale for this ruling is that the doctrine of state immunity cannot be
used as an instrument for perpetrating an injustice.
xxxx
The aforecited authorities are clear on the matter. They state that the
doctrine of immunity from suit will not apply and may not be invoked
where the public official is being sued in his private and personal capacity
as an ordinary citizen. The cloak of protection afforded the officers and
agents of the government is removed the moment they are sued in their
individual capacity. This situation usually arises where the public official
acts without authority or in excess of the powers vested in him. It is a well-
settled principle of law that a public official may be liable in his personal
private capacity for whatever damage he may have caused by his act done
with malice and in bad faith, or beyond the scope of his authority or
jurisdiction.26 (Emphasis supplied.) In this case, the US respondents were
sued in their official capacity as commanding officers of the US Navy who
had control and supervision over the USS Guardian and its crew. The
alleged act or omission resulting in the unfortunate grounding of the USS
Guardian on the TRNP was committed while they we:re performing official
military duties. Considering that the satisfaction of a judgment against said
officials will require remedial actions and appropriation of funds by the US
government, the suit is deemed to be one against the US itself. The principle
of State immunity therefore bars the exercise of jurisdiction by this Court
over the persons of respondents Swift, Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T. Carpio took
the position that the conduct of the US in this case, when its warship entered
a restricted area in violation of R.A. No. 10067 and caused damage to the
TRNP reef system, brings the matter within the ambit of Article 31 of the
United Nations Convention on the Law of the Sea (UNCLOS). He
explained that while historically, warships enjoy sovereign immunity from
suit as extensions of their flag State, Art. 31 of the UNCLOS creates an
exception to this rule in cases where they fail to comply with the rules and
regulations of the coastal State regarding passage through the latter's
internal waters and the territorial sea.
According to Justice Carpio, although the US to date has not ratified the
UNCLOS, as a matter of long-standing policy the US considers itself bound
by customary international rules on the "traditional uses of the oceans" as
codified in UNCLOS, as can be gleaned from previous declarations by
former Presidents Reagan and Clinton, and the US judiciary in the case of
United States v. Royal Caribbean Cruise Lines, Ltd.27
The international law of the sea is generally defined as "a body of treaty
rules arid customary norms governing the uses of the sea, the exploitation of
its resources, and the exercise of jurisdiction over maritime regimes. It is a
branch of public international law, regulating the relations of states with
respect to the uses of the oceans."28 The UNCLOS is a multilateral treaty
which was opened for signature on December 10, 1982 at Montego Bay,
Jamaica. It was ratified by the Philippines in 1984 but came into force on
November 16, 1994 upon the submission of the 60th ratification.
The UNCLOS is a product of international negotiation that seeks to balance
State sovereignty (mare clausum) and the principle of freedom of the high
seas (mare liberum).29 The freedom to use the world's marine waters is one
of the oldest customary principles of international law.30 The UNCLOS
gives to the coastal State sovereign rights in varying degrees over the
different zones of the sea which are: 1) internal waters, 2) territorial sea, 3)
contiguous zone, 4) exclusive economic zone, and 5) the high seas. It also
gives coastal States more or less jurisdiction over foreign vessels depending
on where the vessel is located.31
Insofar as the internal waters and territorial sea is concerned, the Coastal
State exercises sovereignty, subject to the UNCLOS and other rules of
international law. Such sovereignty extends to the air space over the
territorial sea as well as to its bed and subsoil.32
In the case of warships,33 as pointed out by Justice Carpio, they continue to
enjoy sovereign immunity subject to the following exceptions:
Article 30
Non-compliance by warships with the laws and regulations of the coastal
State
If any warship does not comply with the laws and regulations of the coastal
State concerning passage through the territorial sea and disregards any
request for compliance therewith which is made to it, the coastal State may
require it to leave the territorial sea immediately.
Article 31
Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or damage
to the coastal State resulting from the non-compliance by a warship or other
government ship operated for non-commercial purposes with the laws and
regulations of the coastal State concerning passage through the territorial
sea or with the provisions of this Convention or other rules of international
law.
Article 32
Immunities of warships and other government ships operated for non-
commercial purposes
With such exceptions as are contained in subsection A and in articles 30 and
31, nothing in this Convention affects the immunities of warships and other
government ships operated for non-commercial purposes. (Emphasis
supplied.) A foreign warship's unauthorized entry into our internal waters
with resulting damage to marine resources is one situation in which the
above provisions may apply. But what if the offending warship is a non-
party to the UNCLOS, as in this case, the US?
An overwhelming majority - over 80% -- of nation states are now members
of UNCLOS, but despite this the US, the world's leading maritime power,
has not ratified it.
While the Reagan administration was instrumental in UNCLOS' negotiation
and drafting, the U.S. delegation ultimately voted against and refrained
from signing it due to concerns over deep seabed mining technology
transfer provisions contained in Part XI. In a remarkable, multilateral effort
to induce U.S. membership, the bulk of UNCLOS member states
cooperated over the succeeding decade to revise the objection.able
provisions. The revisions satisfied the Clinton administration, which signed
the revised Part XI implementing agreement in 1994. In the fall of 1994,
President Clinton transmitted UNCLOS and the Part XI implementing
agreement to the Senate requesting its advice and consent. Despite
consistent support from President Clinton, each of his successors, and an
ideologically diverse array of stakeholders, the Senate has since withheld
the consent required for the President to internationally bind the United
States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee (SFRC)
during the 108th and 110th Congresses, its progress continues to be
hamstrung by significant pockets of political ambivalence over U.S.
participation in international institutions. Most recently, 111 th Congress
SFRC Chairman Senator John Kerry included "voting out" UNCLOS for
full Senate consideration among his highest priorities. This did not occur,
and no Senate action has been taken on UNCLOS by the 112th Congress.34
Justice Carpio invited our attention to the policy statement given by
President Reagan on March 10, 1983 that the US will "recognize the rights
of the other , states in the waters off their coasts, as reflected in the
convention [UNCLOS], so long as the rights and freedom of the United
States and others under international law are recognized by such coastal
states", and President Clinton's reiteration of the US policy "to act in a
manner consistent with its [UNCLOS] provisions relating to traditional uses
of the oceans and to encourage other countries to do likewise." Since Article
31 relates to the "traditional uses of the oceans," and "if under its policy, the
US 'recognize[s] the rights of the other states in the waters off their coasts,"'
Justice Carpio postulates that "there is more reason to expect it to recognize
the rights of other states in their internal waters, such as the Sulu Sea in this
case."
As to the non-ratification by the US, Justice Carpio emphasizes that "the
US' refusal to join the UN CLOS was centered on its disagreement with UN
CLOS' regime of deep seabed mining (Part XI) which considers the oceans
and deep seabed commonly owned by mankind," pointing out that such "has
nothing to do with its [the US'] acceptance of customary international rules
on navigation."
It may be mentioned that even the US Navy Judge Advocate General's
Corps publicly endorses the ratification of the UNCLOS, as shown by the
following statement posted on its official website:
The Convention is in the national interest of the United States because it
establishes stable maritime zones, including a maximum outer limit for
territorial seas; codifies innocent passage, transit passage, and archipelagic
sea lanes passage rights; works against "jurisdictiomtl creep" by preventing
coastal nations from expanding their own maritime zones; and reaffirms
sovereign immunity of warships, auxiliaries anJ government aircraft.
xxxx
Economically, accession to the Convention would support our national
interests by enhancing the ability of the US to assert its sovereign rights
over the resources of one of the largest continental shelves in the world.
Further, it is the Law of the Sea Convention that first established the
concept of a maritime Exclusive Economic Zone out to 200 nautical miles,
and recognized the rights of coastal states to conserve and manage the
natural resources in this Zone.35
We fully concur with Justice Carpio's view that non-membership in the
UNCLOS does not mean that the US will disregard the rights of the
Philippines as a Coastal State over its internal waters and territorial sea. We
thus expect the US to bear "international responsibility" under Art. 31 in
connection with the USS Guardian grounding which adversely affected the
Tubbataha reefs. Indeed, it is difficult to imagine that our long-time ally and
trading partner, which has been actively supporting the country's efforts to
preserve our vital marine resources, would shirk from its obligation to
compensate the damage caused by its warship while transiting our internal
waters. Much less can we comprehend a Government exercising leadership
in international affairs, unwilling to comply with the UNCLOS directive for
all nations to cooperate in the global task to protect and preserve the marine
environment as provided in Article 197, viz:
Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on a regional
basis, directly or through competent international organizations, in
formulating and elaborating international rules, standards and recommended
practices and procedures consistent with this Convention, for the protection
and preservation of the marine environment, taking into account
characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present controversy is
beyond dispute. Although the said treaty upholds the immunity of warships
from the jurisdiction of Coastal States while navigating the.latter's territorial
sea, the flag States shall be required to leave the territorial '::;ea
immediately if they flout the laws and regulations of the Coastal State, and
they will be liable for damages caused by their warships or any other
government vessel operated for non-commercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit found in the
VFA. Likewise, they invoke federal statutes in the US under which agencies
of the US have statutorily waived their immunity to any action. Even under
the common law tort claims, petitioners asseverate that the US respondents
are liable for negligence, trespass and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of United States
troops and personnel visiting the Philippines to promote "common security
interests" between the US and the Philippines in the region. It provides for
the guidelines to govern such visits of military personnel, and further
defines the rights of the United States and the Philippine government in the
matter of criminal jurisdiction, movement of vessel and aircraft, importation
and exportation of equipment, materials and supplies.36 The invocation of
US federal tort laws and even common law is thus improper considering
that it is the VF A which governs disputes involving US military ships and
crew navigating Philippine waters in pursuance of the objectives of the
agreement.
As it is, the waiver of State immunity under the VF A pertains only to
criminal jurisdiction and not to special civil actions such as the present
petition for issuance of a writ of Kalikasan. In fact, it can be inferred from
Section 17, Rule 7 of the Rules that a criminal case against a person charged
with a violation of an environmental law is to be filed separately:
SEC. 17. Institution of separate actions.-The filing of a petition for the
issuance of the writ of kalikasan shall not preclude the filing of separate
civil, criminal or administrative actions.
In any case, it is our considered view that a ruling on the application or non-
application of criminal jurisdiction provisions of the VF A to US personnel
who may be found responsible for the grounding of the USS Guardian,
would be premature and beyond the province of a petition for a writ of
Kalikasan. We also find it unnecessary at this point to determine whether
such waiver of State immunity is indeed absolute. In the same vein, we
cannot grant damages which have resulted from the violation of
environmental laws. The Rules allows the recovery of damages, including
the collection of administrative fines under R.A. No. 10067, in a separate
civil suit or that deemed instituted with the criminal action charging the
same violation of an environmental law.37
Section 15, Rule 7 enumerates the reliefs which may be granted in a petition
for issuance of a writ of Kalikasan, to wit:
SEC. 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:
(a) Directing respondent to permanently cease and desist
from committing acts or neglecting the performance of a
duty in violation of environmental laws resulting in
environmental destruction or damage;
(b) Directing the respondent public official, govemment
agency, private person or entity to protect, preserve,
rehabilitate or restore the environment;
(c) Directing the respondent public official, government
agency, private person or entity to monitor strict
compliance with the decision and orders of the court;
(d) Directing the respondent public official, government
agency, or private person or entity to make periodic
reports on the execution of the final judgment; and
(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. (Emphasis supplied.)
We agree with respondents (Philippine officials) in asserting that this
petition has become moot in the sense that the salvage operation sought to
be enjoined or restrained had already been accomplished when petitioners
sought recourse from this Court. But insofar as the directives to Philippine
respondents to protect and rehabilitate the coral reef stn icture and marine
habitat adversely affected by the grounding incident are concerned,
petitioners are entitled to these reliefs notwithstanding the completion of the
removal of the USS Guardian from the coral reef. However, we are mindful
of the fact that the US and Philippine governments both expressed readiness
to negotiate and discuss the matter of compensation for the damage caused
by the USS Guardian. The US Embassy has also declared it is closely
coordinating with local scientists and experts in assessing the extent of the
damage and appropriate methods of rehabilitation.
Exploring avenues for settlement of environmental cases is not proscribed
by the Rules. As can be gleaned from the following provisions, mediation
and settlement are available for the consideration of the parties, and which
dispute resolution methods are encouraged by the court, to wit:
RULE3
 xxxx
SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the
court shall inquire from the parties if they have settled the dispute;
otherwise, the court shall immediately refer the parties or their counsel, if
authorized by their clients, to the Philippine Mediation Center (PMC) unit
for purposes of mediation. If not available, the court shall refer the case to
the clerk of court or legal researcher for mediation.
Mediation must be conducted within a non-extendible period of thirty (30)
days from receipt of notice of referral to mediation.
The mediation report must be submitted within ten (10) days from the
expiration of the 30-day period.
SEC. 4. Preliminary conference.-If mediation fails, the court will schedule
the continuance of the pre-trial. Before the scheduled date of continuance,
the court may refer the case to the branch clerk of court for a preliminary
conference for the following purposes:
(a) To assist the parties in reaching a settlement;
xxxx
SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties
and their counsels under oath, and they shall remain under oath in all pre-
trial conferences.
The judge shall exert best efforts to persuade the parties to arrive at a
settlement of the dispute. The judge may issue a consent decree approving
the agreement between the parties in accordance with law, morals, public
order and public policy to protect the right of the people to a balanced and
healthful ecology.
xxxx
SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to
agree to compromise or settle in accordance with law at any stage of the
proceedings before rendition of judgment. (Underscoring supplied.)
The Court takes judicial notice of a similar incident in 2009 when a guided-
missile cruiser, the USS Port Royal, ran aground about half a mile off the
Honolulu Airport Reef Runway and remained stuck for four days. After
spending $6.5 million restoring the coral reef, the US government was
reported to have paid the State of Hawaii $8.5 million in settlement over
coral reef damage caused by the grounding.38
To underscore that the US government is prepared to pay appropriate
compensation for the damage caused by the USS Guardian grounding, the
US Embassy in the Philippines has announced the formation of a US
interdisciplinary scientific team which will "initiate discussions with the
Government of the Philippines to review coral reef rehabilitation options in
Tubbataha, based on assessments by Philippine-based marine scientists."
The US team intends to "help assess damage and remediation options, in
coordination with the Tubbataha Management Office, appropriate
Philippine government entities, non-governmental organizations, and
scientific experts from Philippine universities."39
A rehabilitation or restoration program to be implemented at the cost of the
violator is also a major relief that may be obtained under a judgment
rendered in a citizens' suit under the Rules, viz:
RULES
SECTION 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 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.1wphi1
In the light of the foregoing, the Court defers to the Executive Branch on
the matter of compensation and rehabilitation measures through diplomatic
channels. Resolution of these issues impinges on our relations with another
State in the context of common security interests under the VFA. It is
settled that "[t]he conduct of the foreign relations of our government is
committed by the Constitution to the executive and legislative-"the
political" --departments of the government, and the propriety of what may
be done in the exercise of this political power is not subject to judicial
inquiry or decision."40
On the other hand, we cannot grant the additional reliefs prayed for in the
petition to order a review of the VFA and to nullify certain immunity
provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec.
Zamora,41 the VFA was duly concurred in by the Philippine Senate and has
been recognized as a treaty by the United States as
attested and certified by the duly authorized representative of the United
States government. The VF A being a valid and binding agreement, the
parties are required as a matter of international law to abide by its terms and
provisions.42 The present petition under the Rules is not the proper remedy
to assail the constitutionality of its provisions. WHEREFORE, the petition
for the issuance of the privilege of the Writ of Kalikasan is hereby
DENIED.
No pronouncement as to costs.
SO ORDERED.
#4
Republic of the Philippines
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.
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 Kalikasan2 with a
Temporary Environmental Protection 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 Return3 praying for
the dismissal of the petition and the denial of the privilege of the Writ of
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 Return4 claiming
that not all requirements for the issuance of the Writ of Kalikasan are
present and there 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 Compliance5 submitting the report
required by the Writ of Kalikasan/TEPO. They contended that they neither
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.
On January 21, 2011, FPIC, in compliance with the writ, submitted its 4-
page "Report on Pipeline Integrity Check and Preventive Maintenance
Program."6 In gist, FPIC reported the following: (I) For the structural
integrity of the 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 Hearing7
pursuant to Sec. 11, Rule 7 of the Rules of Procedure for Environmental
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 Motion10 assailing the
Court's May 31, 2011 Resolution, praying for 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 Motion11 wherein petitioners invoked the precautionary
principle12 and asserted that the possibility of a leak in the BOPL System
leading to catastrophic 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)13 in order to reduce stress
on the WOPL System. FPIC sought to construct a new 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.
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, 2011,14 the appellate court was required to conduct hearings and,
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 appointed15 several amici curiae,16 but only four (4) filed their
reports.17
On December 26, 2012, the CA Former 11th Division submitted to the
Court its well-crafted and exhaustive 156-page Report and
Recommendation18 dated December 21, 2012 (CA Report). Some
highlights of the Report:
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 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
Reconsideration19 of the CA's Report praying that (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)20 and submitted the required DOE
Certification21 issued on January 22, 2013 by DOE Secretary Carlos
Jericho L. Petilla (Secretary Petilla). On March 14, 2013, petitioners
countered with a Manifestation with Motion22 asserting that FPIC's
certification is not compliant with the CA's requirement. Hence, petitioners
moved 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.24
Furthermore, petitioners point out that the DOE is 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.25 Respondents
further allege that the DOE is the agency empowered to regulate the
transportation and distribution of petroleum 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,27 attesting that the WOPL is
safe to resume commercial operations, subject to monitoring or 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.28 A cursory review of the most recent
oil 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 On August 5, 2014, Secretary Carlos Jericho L. Petilla of the DOE
from underground pipeline systems ripped up the streets submitted a letter35 recommending activities and timetable for the
of Kaohsiung, Taiwan, killing at least 28 people and resumption of the WOPL operations, to wit:
injuring 299 more. Further, 23 ,600, 2,268 and 6,000
households were left without gas, power and water, A. Preparatory to the Test Run
respectively, in the 2-3 square kilometer blast area.29
I. FPIC Tasks:
(2) On November 22, 2013, an oil pipeline leaked, caught
fire, and exploded in Qingdao, Shangdao Province in
a. Continue submission of monitoring charts,
China, killing 55 people and injuring more than a hundred
data/reading, accomplishment reports, and project status
more.30
for all related activities/works. Respond to comments and
prepare for site inspection.
(3) On September 14, 2011, a fuel pipeline exploded in
Kenya's capital city, Nairobi, reducing bodies to dust and
b. Continue gas testing along the right-of-way using the
flattening homes. At least 7 5 people died in the
monitoring wells or boreholes. Prepare for inspection of
explosion, while more than a hundred people were
right-of-way and observation of gas testing activities on
injured.31
monitoring wells and boreholes.

(4) In September 2010, a natural gas pipeline ruptured and

c. Expound on the selection of borehole location. For
set off a fireball, killing eight (8) people and leveling 3 8
example, identify those located in pipeline bends, bodies
homes in San Bruno, California in the United States.32
of water, residential areas, repaired portions of the
pipelines, dents and welded joints.
(5) On July 30, 2004, a rupture of an underground natural
gas pipeline buried six (6) meters in Ghislenghien,
d. Continue submitting status report relating to "Project
Belgium resulted in 24 deaths and over 120 injuries.33
Mojica" (an ongoing pipeline segment realignment
activity undertaken by FPIC to give way to a flood control
On April 29 and 30, 2014, the DOE organized a dialogue between said project of MMDA in the vicinity of Mojica St. and Pres.
government agencies and the FPIC. There it was stated that during the Osmea Highway in Makati City). Prepare for site
dialogue, "the division heads and a high profile team from FPIC, both from inspection.
operation and management made presentations and answered questions on
pipeline pumping operation and product delivery, and a detailed explanation
II. Inter-agency undertaking:
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 a. Conduct onsite inspection of right-of-way
Pandacan and Bangkal, inspection and reinforcement of all patches in the
WOPL, inspection and reinforcement of a number of reported dents in the b. Review/check remaining 22 patches that were already
WOPL, conduct of successful leak tests, and installation of boreholes that inspected and reinforced with Clockspring sleeves.
are gas-tested on a weekly basis, and the safety systems that go with the
daily pipeline operation and maintenance and project execution."34 i. Determine location of sleeves.
 ii. Review of procedures on repair of sleeves. i. Blocked-in pressure test (Leak Test, not in
operation)
iii. Random visual inspection of areas easily
accessible. ii. In-operation (hourly reading)

c. Cathodic protection's onsite inspection on rectifier to c. Continue Current Gas Monitoring (boreholes)
check readings
i. Ocular inspection of selected areas
i. Old readings
d. Demonstrate mass or volume balance computation
ii. Current Readings during WOPL test run (already being implemented in the
BOPL)
iii. Segment covered
i. 30 days baseline data generation
iv. Criteria for prioritization for corrective action
ii. 30 days computational analysis and
d. Observe and witness the running/operation of the monitoring
cleaning pig.
C. Commissioning or Return to Commercial Operation
e. Check and validate all calibration certificate of
instruments I. FPIC Tasks:

i. Instrument verification and calibration. a. Continue implementation of the PIMS. Review

recommendations from DOE.
B. Actual Test Run (to be undertaken both by FPIC and inter-agency)
b. Continue monthly reporting of operations and
a. Perform Cleaning Pig Run maintenance activities with DOE.

i. Witness launching and receiving of the c. Continue reporting and coordination with DOE and
cleaning pig. other government agencies for implementation of
projects.36
ii. Handling of the residuals after cleaning.
Secretary Petilla also recounted to the Court in his August 5, 2014 letter that
the DOE, together with the DPWH and the Metropolitan Manila
b. Demonstrate Various Pressure Tests (already being
Development Authority (MMDA), observed the different milestones of the
conducted by FPIC)
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 comments37 in compliance
with the Court's resolution. The intervenors 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.39 Generally, every action must be prosecuted or defended in the name
of the real parties-in-interest.40 In other words, the action must be brought
by the person who, by substantive law, possesses the right sought to be
enforced.41 Alternatively, one who has no right or interest to 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.
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,43 it is empowered to pursue 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 Certificate44 attesting that the
authority of Chuaunsu to 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 745 of 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. 3,46 Rule 5 of the Rules of Procedure for Environmental
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.
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.47 Furthermore, in August 2010, with the oil leak hogging the
headlines, FPIC hired NDT Middle East 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."48
Thus, it cannot be gainsaid that the DOE possesses technical 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 ITDI49 of the DOST, which is mandated to undertake
technical services including standards, analytical and calibration services;
the MIRDC,50 also of the DOST, which is the sole government entity
directly supporting the metals and engineering industry;51 the EMB52 of
the DENR, the agency mandated to implement, among others, 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
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.54
Hence, the courts, although they may 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 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,56
that the factual issue on the WOPL's viability can be settled. The issue,
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 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 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"57 and to "promulgate rules and regulations for the control of
water, air, and land pollution."58 It is indubitable that the 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.
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.
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.
#5, #6 -> PDF
#7
Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 180771 April 21, 2015
RESIDENT MARINE MAMMALS OF THE PROTECTED
SEASCAPE TAON STRAIT, e.g., TOOTHED WHALES,
DOLPHINS, PORPOISES, AND OTHER CETACEAN SPECIES,
Joined in and Represented herein by Human Beings Gloria Estenzo
Ramos and Rose-Liza Eisma-Osorio, In Their Capacity as Legal
Guardians of the Lesser Life-Forms and as Responsible Stewards of
God's Creations, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the
Department of Energy (DOE), SECRETARY JOSE L. ATIENZA, in
his capacity as Secretary of the Department of Environment and
Natural Resources (DENR), LEONARDO R. SIBBALUCA, DENR
Regional Director-Region VII and in his capacity as Chairperson of the
Taon Strait Protected Seascape Management Board, Bureau of
Fisheries and Aquatic Resources (BFAR), DIRECTOR MALCOLM J.
SARMIENTO, JR., BFAR Regional Director for Region VII ANDRES
M. BOJOS, JAPAN PETROLEUM EXPLORATION CO., LTD.
(JAPEX), as represented by its Philippine Agent, SUPPLY OILFIELD
SERVICES, INC. Respondents.
x-----------------------x
G.R. No. 181527
CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER
(FIDEC), CERILO D. ENGARCIAL, RAMON YANONG,
FRANCISCO LABID, in their personal capacity and as representatives
of the SUBSISTENCE FISHERFOLKS OF THE MUNICIPALITIES
OF ALOGUINSAN AND PINAMUNGAJAN, CEBU, AND THEIR
FAMILIES, AND THE PRESENT AND FUTURE GENERATIONS
OF FILIPINOS WHOSE RIGHTS ARE SIMILARLY AFFECTED,
Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the
Department of Energy (DOE), JOSE L. ATIENZA, in his capacity as
Secretary of the Department of Environment and Natural Resources
(DENR), LEONARDO R. SIBBALUCA, in his capacity as DENR
Regional Director-Region VII and as Chairperson of the Taon Strait
Protected Seascape Management Board, ALAN ARRANGUEZ, in his
capacity as Director - Environmental Management Bureau-Region VII,
DOE Regional Director for Region VIII1 ANTONIO LABIOS, JAPAN
PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented
by its Philippine Agent, SUPPLY OILFIELD SERVICES, INC.,
Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
Before Us are two consolidated Petitions filed under Rule 65 of the 1997
Rules of Court, concerning Service Contract No. 46 (SC-46), which allowed
the exploration, development, and exploitation of petroleum resources
within Taon Strait, a narrow passage of water situated between the islands
of Negros and Cebu.2
The Petition docketed as G.R. No. 180771 is an original Petition for
Certiorari, Mandamus, and Injunction, which seeks to enjoin respondents
from implementing SC-46 and to have it nullified for willful and gross
violation of the 1987 Constitution and certain international and municipal
laws.3
Likewise, the Petition docketed as G.R. No. 181527 is an original Petition
for Certiorari, Prohibition, and Mandamus, which seeks to nullify the
Environmental Compliance Certificate (ECC) issued by the Environmental
Management Bureau (EMB) of the Department of Environment and Natural
Resources (DENR), Region VII in connection with SC-46; to prohibit
respondents from implementing SC-46; and to compel public respondents to
provide petitioners access to the pertinent documents involving the Taon
Strait Oil Exploration Project.4
ANTECEDENT FACTS AND PROCEEDINGS
Petitioners in G.R. No. 180771, collectively referred to as the "Resident
Marine Mammals" in the petition, are the toothed whales, dolphins,
porpoises, and other cetacean species, which inhabit the waters in and
around the Taon Strait. They are joined by Gloria Estenzo Ramos (Ramos)
and Rose-Liza Eisma-Osorio (Eisma-Osorio) as their legal guardians and as
friends (to be collectively known as "the Stewards") who allegedly
empathize with, and seek the protection of, the aforementioned marine
species. Also impleaded as an unwilling co-petitioner is former President
Gloria Macapagal-Arroyo, for her express declaration and undertaking in
the ASEAN Charter to protect the Taon Strait, among others.5
Petitioners in G.R. No. 181527 are the Central Visayas Fisherfolk
Development Center (FIDEC), a non-stock, non-profit, non-governmental
organization, established for the welfare of the marginal fisherfolk in
Region VII; and Cerilo D. Engarcial (Engarcial), Ramon Yanong (Yanong)
and Francisco Labid (Labid), in their personal capacities and as
representatives of the subsistence fisherfolk of the municipalities of
Aloguinsan and Pinamungajan, Cebu.
Named as respondents in both petitions are the late Angelo T. Reyes, as
then Secretary of the Department of Energy (DOE); Jose L. Atienza, as then
Secretary of the DENR; Leonardo R. Sibbaluca, as then DENRRegional
Director for Region VII and Chairman of the Taon Strait Protected
Seascape Management Board; Japan Petroleum Exploration Co., Ltd.
(JAPEX), a company organized and existing under the laws of Japan with a
Philippine branch office; and Supply Oilfield Services, Inc. (SOS), as the
alleged Philippine agent of JAPEX.
In G.R. No. 181527, the following were impleaded as additional public
respondents: Alan C. Arranguez (Arranguez) and Antonio Labios (Labios),
in their capacities as then Director of the EMB, Region VII and then
Regional Director of the DOE, Region VII, respectively.6
On June 13, 2002, the Government of the Philippines, acting through the
DOE, entered into a Geophysical Survey and Exploration Contract-I 02
(GSEC-102) with JAPEX. This contract involved geological and
geophysical studies of the Taon Strait. The studies included surface
geology, sample analysis, and reprocessing of seismic and magnetic data.
JAPEX, assisted by DOE, also conducted geophysical and satellite surveys,
as well as oil and gas sampling in Taon Strait.7
On December 21, 2004, DOE and JAPEX formally converted GSEC-102
into SC-46 for the exploration, development, and production of petroleum
resources in a block covering approximately 2,850 square kilometers
offshore the Taon Strait.8
From May 9 to 18, 2005, JAPEX conducted seismic surveys in and around
the Taon Strait. A multi-channel sub-bottom profiling covering
approximately 751 kilometers was also done to determine the area's
underwater composition.9
JAPEX committed to drill one exploration well during the second sub-phase
of the project. Since the well was to be drilled in the marine waters of
Aloguinsan and Pinamungajan, where the Taon Strait was declared a
protected seascape in 1988,10 JAPEX agreed to comply with the
Environmental Impact Assessment requirements pursuant to Presidential
Decree No. 1586, entitled "Establishing An Environmental Impact
Statement System, Including Other Environmental Management Related
Measures And For Other Purposes."11
On January 31, 2007, the Protected Area Management Board12 of the
Taon Strait (PAMB-Taon Strait) issued Resolution No. 2007-001,13
wherein it adopted the Initial Environmental Examination (IEE)
commissioned by JAPEX, and favorably recommended the approval of
JAPEX's application for an ECC.
On March 6, 2007, the EMB of DENR Region VII granted an ECC to the
DOE and JAPEX for the offshore oil and gas exploration project in Taon
Strait.14 Months later, on November 16, 2007, JAPEX began to drill an
exploratory well, with a depth of 3,150 meters, near Pinamungajan town in
the western Cebu Province.15 This drilling lasted until February 8, 2008.16
It was in view of the foregoing state of affairs that petitioners applied to this
Court for redress, via two separate original petitions both dated December 1
7, 2007, wherein they commonly seek that respondents be enjoined from
implementing SC-46 for, among others, violation of the 1987 Constitution.
On March 31, 2008, SOS filed a Motion to Strike17 its name as a
respondent on the ground that it is not the Philippine agent of JAPEX. In
support of its motion, it submitted the branch office application of
JAPEX,18 wherein the latter's resident agent was clearly identified. SOS
claimed that it had acted as a mere logistics contractor for JAPEX in its oil
and gas exploration activities in the Philippines.
Petitioners Resident Marine Mammals and Stewards opposed SOS' s motion
on the ground that it was premature, it was pro-forma, and it was patently
dilatory. They claimed that SOS admitted that "it is in law a (sic) privy to
JAPEX" since it did the drilling and other exploration activities in Taon
Strait under the instructions of its principal, JAPEX. They argued that it
would be premature to drop SOS as a party as JAPEX had not yet been
joined in the case; and that it was "convenient" for SOS to ask the Court to
simply drop its name from the parties when what it should have done was to
either notify or ask JAPEX to join it in its motion to enable proper
substitution. At this juncture, petitioners Resident Marine Mammals and
Stewards also asked the Court to" implead JAPEX Philippines as a
corespondent or as a substitute for its parent company, JAPEX.19
On April 8, 2008, the Court resolved to consolidate G.R. No. 180771 and
G.R. No. 181527.
On May 26, 2008, the FIDEC manifested20 that they were adopting in toto
the Opposition to Strike with Motion to Implead filed by petitioners
Resident Marine Mammals and Stewards in G.R. No. 180771.
On June 19, 2008, public respondents filed their Manifestation21 that they
were not objecting to SOS's Motion to Strike as it was not JAPEX's resident
agent. JAPEX during all this time, did not file any comment at all.
Thus, on February 7, 2012, this Court, in an effort to ensure that all the
parties were given ample chance and opportunity to answer the issues
herein, issued a Resolution directing the Court's process servicing unit to
again serve the parties with a copy of the September 23, 2008 Resolution of
the Court, which gave due course to the petitions in G.R. Nos. 180771 and
181527, and which required the parties to submit their respective
memoranda. The February 7, 2012 Resolution22 reads as follows:
G.R. No. 180771 (Resident Marine Mammals of the Protected Seascape
Taon Strait, e.g., Toothed Whales, Dolphins, Porpoises and Other
Cetacean Species, et al. vs. Hon. Angelo Reyes, in his capacity as Secretary
of the Department of Energy, et al.) and G.R. No. 181527 (Central Visayas
Fisherfolk Development Center, et al. vs. Hon. Angelo Reyes, et al.). - The
Court Resolved to direct the Process Servicing Unit to RE-SEND the
resolution dated September 23, 2008 to the following parties and counsel,
together with this resolution:
Atty. Aristeo O. Carino 20th Floor Pearlbank Centre
Counsel for Respondent Supply 146 Valero Street
Oilfield Services, Inc. Salcedo Village, Makati City
JAPEX Philippines Ltd. 20th Floor Pearlbank Centre
146 Valero Street
Salcedo Village, Makati City
JAPEX Philippines Ltd. 19th Floor Pearlbank Centre
c/o Atty. Maria Farah Z.G. 146 Valero Street
Nicolas-Suchianco Salcedo Village, Makati City
Atty. Maria Farah Z.G. Suite 2404 Discovery Centre
Nicolas-Suchianco 25 ADB Avenue
 Resident Agent of JAPEX Ortigas Center, Pasig City
Philippines Ltd.
This Resolution was personally served to the above parties, at the above
addresses on February 23, 2012. On March 20, 2012, JAPEX Philippines,
Ltd. (JAPEX PH), by way of special appearance, filed a Motion to Admit23
its Motion for Clarification,24 wherein JAPEX PH requested to be clarified
as to whether or not it should deem the February 7, 2012 Resolution as this
Court's Order of its inclusion in the case, as it has not been impleaded. It
also alleged that JAPEX PH had already stopped exploration activities in
the Taft. on Strait way back in 2008, rendering this case moot.
On March 22, 2012, JAPEX PH, also by special appearance, filed a Motion
for Extension of Time25 to file its Memorandum. It stated that since it
received the February 7, 2012 Resolution on February 23, 2012, it had until
March 22, 2012 to file its Memorandum. JAPEX PH then asked for an
additional thirty days, supposedly to give this Court some time to consider
its Motion for Clarification.
On April 24, 2012, this Court issued a Resolution26 granting JAPEX PH's
Motion to Admit its Motion for Clarification. This Court, addressing
JAPEX PH's Motion for Clarification, held:
With regard to its Motion for Clarification (By Special Appearance) dated
March 19, 2012, this Court considers JAPEX Philippines, Ltd. as a real
party-in-interest in these cases. Under Section 2, Rule 3 of the 1997 Rules
of Court, 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. Contrary to JAPEX Philippines, Ltd. 's allegation that it is a completely
distinct corporation, which should not be confused with JAPEX Company,
Ltd., JAPEX Philippines, Ltd. is a mere branch office, established by
JAPEX Company, Ltd. for the purpose of carrying out the latter's business
transactions here in the Philippines. Thus, JAPEX Philippines, Ltd., has no
separate personality from its mother foreign corporation, the party
impleaded in this case.
Moreover, Section 128 of the Corporation Code provides for the
responsibilities and duties of a resident agent of a foreign corporation:
SECTION 128. Resident agent; service of process. - The Securities and
Exchange Commission shall require as a condition precedent to the issuance
of the license to transact business in the Philippines by any foreign
corporation that such corporation file with the Securities and Exchange
Commission a written power of attorney designating some person who must
be a resident of the Philippines, on whom any summons and other legal
processes may be served in all actions or other legal proceedings against
such corporation, and consenting that service upon such resident agent shall
be admitted and held as valid as if served upon the duly authorized officers
of the foreign corporation at its home office. Any such foreign corporation
shall likewise execute and file with the Securities and Exchange
Commission an agreement or stipulation, executed by the proper authorities
of said corporation, in form and substance as follows:
"The (name of foreign corporation) does hereby stipulate and agree, in
consideration of its being granted by the Securities and Exchange
Commission a license to transact business in the Philippines, that if at any
time said corporation shall cease to transact business in the Philippines, or
shall be without any resident agent in the Philippines on whom any
summons or other legal processes may be served, then in any action or
proceeding arising out of any business or transaction which occurred in the
Philippines, service of any summons or other legal process may be made
upon the Securities and Exchange Commission and that such service shall
have the same force and effect as if made upon the duly-authorized officers
of the corporation at its home office."
Whenever such service of summons or other process shall be made upon the
Securities and Exchange Commission, the Commission shall, within ten
(10) days thereafter, transmit by mail a copy of such summons or other
legal process to the corporation at its home or principal office. The sending
of such copy by the Commission shall be a necessary part of and shall
complete such service. All expenses incurred by the Commission for such
service shall be paid in advance by the party at whose instance the service is
made.
In case of a change of address of the resident agent, it shall be his or its duty
to immediately notify in writing the Securities and Exchange Commission
of the new address.
It is clear from the foregoing provision that the function of a resident agent
is to receive summons or legal processes that may be served in all actions or
other legal proceedings against the foreign corporation. These cases have
been prosecuted in the name of JAPEX Company, Ltd., and JAPEX
Philippines Ltd., as its branch office and resident agent, had been receiving
the various resolutions from this Court, as evidenced by Registry Return
Cards signed by its representatives.
And in the interest of justice, this Court resolved to grant JAPEX PH's
motion for extension of time to file its memorandum, and was given until
April 21, 2012, as prayed for, within which to comply with the
submission.27
Without filing its Memorandum, JAPEX PH, on May 14, 2012, filed a
motion, asking this Court for an additional thirty days to file its
Memorandum, to be counted from May 8, 2012. It justified its request by
claiming that this Court's April 24, 2012 Resolution was issued past its
requested deadline for filing, which was on April 21, 2012.28
On June 19, 2012, this Court denied JAPEX PH's second request for
additional time to file its Memorandum and dispensed with such filing.
Since petitioners had already filed their respective memoranda,29 and
public respondents had earlier filed a Manifestation30 that they were
adopting their Comment dated March 31, 2008 as their memorandum, this
Court submitted the case for decision.
Petitioners.' Allegations
Protesting the adverse ecological impact of JAPEX's oil exploration
activities in the Taon Strait, petitioners Resident Marine Mammals and
Stewards aver that a study made after the seismic survey showed that the
fish catch was reduced drastically by 50 to 70 percent. They claim that
before the seismic survey, the average harvest per day would be from 15 to
20 kilos; but after the activity, the fisherfolk could only catch an average of
1 to 2 kilos a day. They attribute this "reduced fish catch" to the destruction
of the ''payao," also known as the "fish aggregating device" or "artificial
reef."31 Petitioners Resident Marine Mammals and Stewards also impute
the incidences of "fish kill"32 observed by some of the local fisherfolk to
the seismic survey. And they further allege that the ECC obtained by private
respondent JAPEX is invalid because public consultations and discussions
with the affected stakeholders, a pre-requisite to the issuance of the ECC,
were not held prior to the ECC's issuance.
In its separate petition, petitioner FIDEC confirms petitioners Resident
Marine Mammals and Stewards' allegations of reduced fish catch and lack
of public consultations or discussions with the fisherfolk and other
stakeholders prior to the issuance of the ECC. Moreover, it alleges that
during the seismic surveys and drilling, it was barred from entering and
fishing within a 7-kilometer radius from the point where the oilrig was
located, an area greater than the 1.5-kilometer radius "exclusion zone"
stated in the IEE.33 It also agrees in the allegation that public respondents
DENR and EMB abused their discretion when they issued an ECC to public
respondent DOE and private respondent JAPEX without ensuring the strict
compliance with the procedural and substantive requirements under the
Environmental Impact Assessment system, the Fisheries Code, and their
implementing rules and regulations.34 It further claims that despite several
requests for copies of all the documents pertaining to the project in Taon
Strait, only copies of the P AMB-Taon Strait Resolution and the ECC were
given to the fisherfolk.35
Public Respondents' Counter-Allegations
Public respondents, through the Solicitor General, contend that petitioners
Resident Marine Mammals and Stewards have no legal standing to file the
present petition; that SC-46 does not violate the 1987 Constitution and the
various laws cited in the petitions; that the ECC was issued in accordance
with existing laws and regulations; that public respondents may not be
compelled by mandamus to furnish petitioners copies of all documents
relating to SC-46; and that all the petitioners failed to show that they are
entitled to injunctive relief. They further contend that the issues raised in
these petitions have been rendered moot and academic by the fact that SC-
46 had been mutually terminated by the parties thereto effective June 21,
2008.36
ISSUES
The following are the issues posited by petitioners Resident Marine
Mammals and Stewards in G.R. No. 180771:
I. WHETHER OR NOT PETITIONERS HAVE LOCUS
STAND! TO FILE THE INSTANT PETITION;
II. WHETHER OR NOT SERVICE CONTRACT NO. 46
IS VIOLA T[IVE] OF THE 1987 PHILIPPINE
CONSTITUTION AND STATUTES;
III. WHETHER OR NOT THE ON-GOING
EXPLORATION AND PROPOSED EXPLOITATION
FOR OIL AND NATURAL GAS AT, AROUND, AND
UNDERNEATH THE MARINE WATERS OF THE
TAON STRAIT PROTECTED SEASCAPE IS
INCONSISTENT WITH THE PHILIPPINE
COMMITMENTS TO INTERNATIONAL
ENVIRONMENTAL LAWS AND INSTRUMENTS;
AND
IV. WHETHER OR NOT THE ISSUANCE OF THE
ENVIRONMENTAL COMPLIANCE CERTIFICATE
(ECC) IN ENVIRONMENTALLY CRITICAL AREAS
AND HABITATS OF MARINE WILDLIFE AND
ENDANGERED SPECIES IS LEGAL AND PROPER.37
Meanwhile, in G.R. No. 181527, petitioner FIDEC presented the following
issues for our consideration:
I. WHETHER OR NOT SERVICE CONTRACT NO. 46
EXECUTED BETWEEN RESPONDENTS DOE AND
JAPEX SHOULD BE NULLIFIED AND SET ASIDE
FOR BEING IN DIRECT VIOLATION OF SPECIFIC
PROVISIONS OF THE 1987 PHILIPPINE
CONSTITUTION AND APPLICABLE LAWS;
II. WHETHER OR NOT THE OFF-SHORE OIL
EXPLORAT[I]ON CONTEMPLATED UNDER
SERVICE CONTRACT NO. 46 IS LEGALLY
PERMISSIBLE WITHOUT A LAW BEING DULY
PASSED EXPRESSLY FOR THE PURPOSE;
III. WHETHER OR NOT THE OIL EXPLORATION
BEING CONDUCTED WITHIN THE TAON STRAIT
PROTECTED SEASCAPE VIOLATES THE RIGHTS
AND LEGAL PROTECTION GRANTED TO
PETITIONERS UNDER THE CONSTITUTION AND
APPLICABLE LAWS.
IV. WHETHER OR NOT THE ISSUANCE OF THE
ENVIRONMENTAL COMPLIANCE CERTIFICATE
(ECC) FOR SUCH AN ENVIRONMENTALLY
CRITICAL PROJECT INSIDE AN
ENVIRONMENTALLY CRITICAL AREA SUCH AS
THE TAON STRAIT PROTECTED SEASCAPE
CONFORMED TO LAW AND EXISTING RULES
AND REGULATIONS ON THE MATTER.
V. WHETHER OR NOT THE RESPONDENTS MAY
BE COMPELLED BY MANDAMUS TO FURNISH
PETITIONERS WITH COPIES OF THE DOCUMENTS
PERTAINING TO THE TAON STRAIT OIL
EXPLORATION PROJECT.38
In these consolidated petitions, this Court has determined that the various
issues raised by the petitioners may be condensed into two primary issues:
I. Procedural Issue: Locus Standi of the Resident Marine Mammals and
Stewards, petitioners in G.R. No. 180771; and
II. Main Issue: Legality of Service Contract No. 46.
DISCUSSION
At the outset, this Court makes clear that the "'moot and academic principle'
is not a magical formula that can automatically dissuade the courts in
resolving a case." Courts have decided cases otherwise moot and academic
under the following exceptions:
1) There is a grave violation of the Constitution;
2) The exceptional character of the situation and the
paramount public interest is involved;
3) The constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the
public; and
4) The case is capable of repetition yet evading review.39
In this case, despite the termination of SC-46, this Court deems it necessary
to resolve these consolidated petitions as almost all of the foregoing
exceptions are present in this case. Both petitioners allege that SC-46 is
violative of the Constitution, the environmental and livelihood issues raised
undoubtedly affect the public's interest, and the respondents' contested
actions are capable of repetition.
Procedural Issues
Locus Standi of Petitioners Resident Marine Mammals and Stewards
The Resident Marine Mammals, through the Stewards, "claim" that they
have the legal standing to file this action since they stand to be benefited or
injured by the judgment in this suit.40 Citing Oposa v. Factoran, Jr.,41 they
also assert their right to sue for the faithful performance of international and
municipal environmental laws created in their favor and for their benefit. In
this regard, they propound that they have the right to demand that they be
accorded the benefits granted to them in multilateral international
instruments that the Philippine Government had signed, under the concept
of stipulation pour autrui.42
For their part, the Stewards contend that there should be no question of their
right to represent the Resident Marine Mammals as they have stakes in the
case as forerunners of a campaign to build awareness among the affected
residents of Taon Strait and as stewards of the environment since the
primary steward, the Government, had failed in its duty to protect the
environment pursuant to the public trust doctrine.43
Petitioners Resident Marine Mammals and Stewards also aver that this
Court may lower the benchmark in locus standi as an exercise of epistolary
jurisdiction.44
In opposition, public respondents argue that the Resident Marine Mammals
have no standing because Section 1, Rule 3 of the Rules of Court requires
parties to an action to be either natural or juridical persons, viz.:
Section 1. Who may be parties, plaintiff and defendant. - Only natural or
juridical persons, or entities authorized by law may be parties in a civil
action. The term "plaintiff' may refer to the claiming party, the counter-
claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The
term "defendant" may refer to the original defending party, the defendant in
a counterclaim, the cross-defendant, or the third (fourth, etc.)-party
defendant.
The public respondents also contest the applicability of Oposa, pointing out
that the petitioners therein were all natural persons, albeit some of them
were still unborn.45
As regards the Stewards, the public respondents likewise challenge their
claim of legal standing on the ground that they are representing animals,
which cannot be parties to an action. Moreover, the public respondents
argue that the Stewards are not the real parties-in-interest for their failure to
show how they stand to be benefited or injured by the decision in this
case.46 Invoking the alter ego principle in political law, the public
respondents claim that absent any proof that former President Arroyo had
disapproved of their acts in entering into and implementing SC-46, such
acts remain to be her own.47
The public respondents contend that since petitioners Resident Marine
Mammals and Stewards' petition was not brought in the name of a real
party-in-interest, it should be dismissed for failure to state a cause of
action.48
The issue of whether or not animals or even inanimate objects should be
given legal standing in actions before courts of law is not new in the field o
f animal rights and environmental law. Petitioners Resident Marine
Mammals and Stewards cited the 1972 United States case Sierra Club v.
Rogers C.B. Morton,49 wherein Justice William 0. Douglas, dissenting to
the conventional thought on legal standing, opined:
The critical question of "standing" would be simplified and also put neatly
in focus if we fashioned a federal rule that allowed environmental issues to
be litigated before federal agencies or federal courts in the name of the
inanimate object about to be despoiled, defaced, or invaded by roads and
bulldozers and where injury is the subject of public outrage. x x x.
Inanimate objects are sometimes parties in litigation. A ship has a legal
personality, a fiction found useful for maritime purposes. The corporation
sole - a creature of ecclesiastical law - is an acceptable adversary and large
fortunes ride on its cases. The ordinary corporation is a "person" for
purposes of the adjudicatory processes, whether it represents proprietary,
spiritual, aesthetic, or charitable causes.
So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries,
beaches, ridges, groves of trees, swampland, or even air that feels the
destructive pressures of modem technology and modem life. The river, for
example, is the living symbol of all the life it sustains or nourishes-fish,
aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other
animals, including man, who are dependent on it or who enjoy it for its
sight, its sound, or its life. The river as plaintiff speaks for the ecological
unit of life that is part of it. Those people who have a meaningful relation to
that body of water-whether it be a fisherman, a canoeist, a zoologist, or a
logger-must be able to speak for the values which the river represents and
which are threatened with destruction.50 (Citations omitted.)
The primary reason animal rights advocates and environmentalists seek to
give animals and inanimate objects standing is due to the need to comply
with the strict requirements in bringing a suit to court. Our own 1997 Rules
of Court demand that parties to a suit be either natural or juridical persons,
or entities authorized by law. It further necessitates the action to be brought
in the name of the real party-in-interest, even if filed by a representative,
viz.:
Rule 3
Parties to Civil Actions
Section 1. Who may be parties; plaintiff and defendant. - Only natural or
juridical persons, or entities authorized by law may be parties in a civil
action. The term "plaintiff' may refer to the claiming party, the counter-
claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The
term "defendant" may refer to the original defending party, the defendant in
a counterclaim, the cross-defendant, or the third (fourth, etc.)-party
defendant.
Sec. 2. Parties in interest. - 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. Unless otherwise authorized by law or these Rules,
every action must be prosecuted or defended in the name of the real party in
interest.
Sec. 3. Representatives as parties. - Where the action is allowed to be
prosecuted or defended by a representative or someone acting in a fiduciary
capacity, the beneficiary shall be included in the title of the case and shall
be deemed to be the real party in interest. A representative may be a trustee
of an express trust, a guardian, an executor or administrator, or a party
authorized by law or these Rules. An agent acting in his own name and for
the benefit of an undisclosed principal may sue or be sued without joining
the principal except when the contract involves things belonging to the
principal.
It had been suggested by animal rights advocates and environmentalists that
not only natural and juridical persons should be given legal standing
because of the difficulty for persons, who cannot show that they by
themselves are real parties-in-interests, to bring actions in representation of
these animals or inanimate objects. For this reason, many environmental
cases have been dismissed for failure of the petitioner to show that he/she
would be directly injured or affected by the outcome of the case. However,
in our jurisdiction, locus standi in environmental cases has been given a
more liberalized approach. While developments in Philippine legal theory
and jurisprudence have not progressed as far as Justice Douglas's paradigm
of legal standing for inanimate objects, the current trend moves towards
simplification of procedures and facilitating court access in environmental
cases.
Recently, the Court passed the landmark Rules of Procedure for
Environmental Cases,51 which allow for a "citizen suit," and permit any
Filipino citizen to file an action before our courts for violations of our
environmental laws:
SEC. 5. Citizen suit. - Any Filipino citizen in representation of others,
including minors or generations yet unborn, may file an action to enforce
rights or obligations under environmental laws. Upon the filing of a citizen
suit, the court shall issue an order which shall contain a brief description of
the cause of action and the reliefs prayed for, requiring all interested parties
to manifest their interest to intervene in the case within fifteen (15) days
from notice thereof. The plaintiff may publish the order once in a
newspaper of a general circulation in the Philippines or furnish all affected
barangays copies of said order.
Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall be
governed by their respective provisions.52 (Emphasis ours.)
Explaining the rationale for this rule, the Court, in the Annotations to the
Rules of Procedure for Environmental Cases, commented:
Citizen suit. To further encourage the protection of the environment, the
Rules enable litigants enforcing environmental rights to file their cases as
citizen suits. This provision liberalizes standing for all cases filed enforcing
environmental laws and collapses the traditional rule on personal and direct
interest, on the principle that humans are stewards of nature. The
terminology of the text reflects the doctrine first enunciated in Oposa v.
Factoran, insofar as it refers to minors and generations yet unborn.53
(Emphasis supplied, citation omitted.) Although this petition was filed in
2007, years before the effectivity of the Rules of Procedure for
Environmental Cases, it has been consistently held that rules of procedure
"may be retroactively applied to actions pending and undetermined at the
time of their passage and will not violate any right of a person who may feel
that he is adversely affected, inasmuch as there is no vested rights in rules
of procedure."54
Elucidating on this doctrine, the Court, in Systems Factors Corporation v.
National Labor Relations Commission55 held that:
Remedial statutes or statutes relating to remedies or modes of procedure,
which do not create new or take away vested rights, but only operate in
furtherance of the remedy or confirmation of rights already existing, do not
come within the legal conception of a retroactive law, or the general rule
against retroactive operation of statutes. Statutes regulating the procedure of
the courts will be construed as applicable to actions pending and
undetermined at the time of their passage. Procedural laws are retroactive in
that sense and to that extent. x x x.
Moreover, even before the Rules of Procedure for Environmental Cases
became effective, this Court had already taken a permissive position on the
issue of locus standi in environmental cases. In Oposa, we allowed the suit
to be brought in the name of generations yet unborn "based on the concept
of intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned."56 Furthermore, we said that the right to a
balanced and healthful ecology, a right that does not even need to be stated
in our Constitution as it is assumed to exist from the inception of
humankind, carries with it the correlative duty to refrain from impairing the
environment.57
In light of the foregoing, the need to give the Resident Marine Mammals
legal standing has been eliminated by our Rules, which allow any Filipino
citizen, as a steward of nature, to bring a suit to enforce our environmental
laws. It is worth noting here that the Stewards are joined as real parties in
the Petition and not just in representation of the named cetacean species.
The Stewards, Ramos and Eisma-Osorio, having shown in their petition that
there may be possible violations of laws concerning the habitat of the
Resident Marine Mammals, are therefore declared to possess the legal
standing to file this petition.
Impleading Former President Gloria Macapagal-Arroyo
as an Unwilling Co-Petitioner
Petitioners Stewards in G.R. No. 180771 impleaded as an unwilling co-
petitioner former President Gloria Macapagal-Arroyo for the following
reasons, which we quote:
Her Excellency Gloria Macapagal-Arroyo, also of legal age, Filipino and
resident of Malacailang Palace, Manila Philippines. Steward Gloria
Macapagal-Arroyo happens to be the incumbent President of the Philippine
Islands. She is personally impleaded in this suit as an unwilling co-
petitioner by reason of her express declaration and undertaking under the
recently signed ASEAN Charter to protect Your Petitioners' habitat, among
others. She is meantime dominated as an unwilling co-petitioner due to lack
of material time in seeking her signature and imprimatur hereof and due to
possible legal complications that may hereafter arise by reason of her
official relations with public respondents under the alter ego principle in
political law.58 This is incorrect.
Section 10, Rule 3 of the Rules of Court provides:
Sec. 10. Unwilling co-plaintiff. - If the consent of any party who should be
joined as plaintiff can not be obtained, he may be made a defendant and the
reason therefor shall be stated in the complaint.
Under the foregoing rule, when the consent of a party who should be joined
as a plaintiff cannot be obtained, he or she may be made a party defendant
to the case. This will put the unwilling party under the jurisdiction of the
Court, which can properly implead him or her through its processes. The
unwilling party's name cannot be simply included in a petition, without his
or her knowledge and consent, as such would be a denial of due process.
Moreover, the reason cited by the petitioners Stewards for including former
President Macapagal-Arroyo in their petition, is not sufficient to implead
her as an unwilling co-petitioner. Impleading the former President as an
unwilling co-petitioner, for an act she made in the performance of the
functions of her office, is contrary to the public policy against embroiling
the President in suits, "to assure the exercise of Presidential duties and
functions free from any hindrance or distraction, considering that being the
Chief Executive of the Government is a job that, aside from requiring all of
the office holder's time, also demands undivided attention."59
Therefore, former President Macapagal-Arroyo cannot be impleaded as one
of the petitioners in this suit. Thus, her name is stricken off the title of this
case.
Main Issue:
Legality of Service Contract No. 46
Service Contract No. 46 vis-a-vis
Section 2, Article XII of the
1987 Constitution
Petitioners maintain that SC-46 transgresses the Jura Regalia Provision or
paragraph 1, Section 2, Article XII of the 1987 Constitution because JAPEX
is 100% Japanese-owned.60 Furthermore, the FIDEC asserts that SC-46
cannot be considered as a technical and financial assistance agreement
validly executed under paragraph 4 of the same provision.61 The petitioners
claim that La Bugal-B'laan Tribal Association, Inc. v. Ramos62 laid down
the guidelines for a valid service contract, one of which is that there must
exist a general law for oil exploration before a service contract may be
entered into by the Government. The petitioners posit that the service
contract in La Bugal is presumed to have complied with the requisites of (a)
legislative enactment of a general law after the effectivity of the 1987
Constitution (such as Republic Act No. 7942, or the Philippine Mining Law
of 1995, governing mining contracts) and (b) presidential notification. The
petitioners thus allege that the ruling in La Bugal, which involved mining
contracts under Republic Act No. 7942, does not apply in this case.63 The
petitioners also argue that Presidential Decree No. 87 or the Oil Exploration
and Development Act of 1972 cannot legally justify SC-46 as it is deemed
to have been repealed by the 1987 Constitution and subsequent laws, which
enunciate new policies concerning the environment.64 In addition,
petitioners in G.R. No. 180771 claim that paragraphs 2 and 3 of Section 2,
Article XII of the 1987 Constitution mandate the exclusive use and
enjoyment by the Filipinos of our natural resources,65 and paragraph 4 does
not speak of service contracts but of FTAAs or Financial Technical
Assistance Agreements.66
The public respondents again controvert the petitioners' claims and
asseverate that SC-46 does not violate Section 2, Article XII of the 1987
Constitution. They hold that SC-46 does not fall under the coverage of
paragraph 1 but instead, under paragraph 4 of Section 2, Article XII of the
1987 Constitution on FTAAs. They also insist that paragraphs 2 and 3,
which refer to the grant of exclusive fishing right to Filipinos, are not
applicable to SC-46 as the contract does not grant exclusive fishing rights to
JAPEX nor does it otherwise impinge on the FIDEC's right to preferential
use of communal marine and fishing resources.67
Ruling of the Court
On the legality of Service Contract No. 46
vis-a-vis Section 2, Article XII of the 1987 Constitution
The petitioners insist that SC-46 is null and void for having violated Section
2, Article XII of the 1987 Constitution, which reads as follows:
Section 2. All lands of the public domain, waters, minerals, coal, petroleum,
and other mineral oils, all forces of potential energy, fisheries, forests or
timber, wildlife, flora and fauna, and other natural resources are owned by
the State. With the exception of agricultural lands, all other natural
resources shall not be alienated. The exploration, development, and
utilization of natural resources shall be under the full control and
supervision of the State. The State may directly undertake such activities, or
it may enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations at least
sixty per centum of whose capital is owned by such citizens. Such
agreements may be for a period not exceeding twenty-five years, renewable
for not more than twenty-five years, and under such terms and conditions as
may be provided by law. In cases of water rights for irrigation, water
supply, fisheries, or industrial uses other than the development of water
power, beneficial use may be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters,
territorial sea, and exclusive economic zone, and reserve its use and
enjoyment exclusively to Filipino citizens. The Congress may, by law,
allow small-scale utilization of natural resources by Filipino citizens, as
well as cooperative fish farming, with priority to subsistence fishermen and
fishworkers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations
involving either technical or financial assistance for large-scale exploration,
development, and utilization of minerals, petroleum, and other mineral oils
according to the general terms and conditions provided by law, based on
real contributions to the economic growth and general welfare of the
country. In such agreements, the State shall promote the development and
use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in
accordance with this provision, within thirty days from its execution.
(Emphases ours.)
This Court has previously settled the issue of whether service contracts are
still allowed under the 1987 Constitution. In La Bugal, we held that the
deletion of the words "service contracts" in the 1987 Constitution did not
amount to a ban on them per se. In fact, in that decision, we quoted in
length, portions of the deliberations of the members of the Constitutional
Commission (ConCom) to show that in deliberating on paragraph 4, Section
2, Article XII, they were actually referring to service contracts as
understood in the 1973 Constitution, albeit with safety measures to
eliminate or minimize the abuses prevalent during the martial law regime,
to wit: Summation of the
ConCom Deliberations
At this point, we sum up the matters established, based on a careful reading
of the Con Com deliberations, as follows:
In their deliberations on what was to become paragraph 4, the framers used
the term service contracts in referring to agreements x x x involving either
technical or financial assistance.
They spoke of service contracts as the concept was understood in the 1973
Constitution.
It was obvious from their discussions that they were not about to ban or
eradicate service contracts.
Instead, they were plainly crafting provisions to put in place safeguards that
would eliminate or minimize the abuses prevalent during the marital law
regime. In brief, they were going to permit service contracts with foreign
corporations as contractors, but with safety measures to prevent abuses, as
an exception to the general norm established in the first paragraph of
Section 2 of Article XII. This provision reserves or limits to Filipino
citizens -- and corporations at least 60 percent of which is owned by such
citizens -- the exploration, development and utilization of natural resources.
This provision was prompted by the perceived insufficiency of Filipino
capital and the felt need for foreign investments in the EDU of minerals and
petroleum resources.
The framers for the most part debated about the sort of safeguards that
would be considered adequate and reasonable. But some of them, having
more "radical" leanings, wanted to ban service contracts altogether; for
them, the provision would permit aliens to exploit and benefit from the
nation's natural resources, which they felt should be reserved only for
Filipinos.
In the explanation of their votes, the individual commissioners were heard
by the entire body. They sounded off their individual opinions, openly
enunciated their philosophies, and supported or attacked the provisions with
fervor. Everyone's viewpoint was heard.
In the final voting, the Article on the National Economy and Patrimony --
including paragraph 4 allowing service contracts with foreign corporations
as an exception to the general norm in paragraph 1 of Section 2 of the same
article --was resoundingly approved by a vote of 32 to 7, with 2 abstentions.
Agreements Involving Technical
Or Financial Assistance Are
Service Contracts with Safeguards
From the foregoing, we are impelled to conclude that the phrase agreements
involving either technical or financial assistance, referred to in paragraph 4,
are in fact service contracts. But unlike those of the 1973 variety, the new
ones are between foreign corporations acting as contractors on the one
hand; and on the other, the government as principal or "owner" of the
works. In the new service contracts, the foreign contractors provide capital,
technology and technical know-how, and managerial expertise in the
creation and operation of large-scale mining/extractive enterprises; and the
government, through its agencies (DENR, MGB), actively exercises control
and supervision over the entire operation.68
In summarizing the matters discussed in the ConCom, we established that
paragraph 4, with the safeguards in place, is the exception to paragraph 1,
Section 2 of Article XII. The following are the safeguards this Court
enumerated in La Bugal:
Such service contracts may be entered into only with respect to minerals,
petroleum and other mineral oils. The grant thereof is subject to several
safeguards, among which are these requirements:
(1) The service contract shall be crafted in accordance
with a general law that will set standard or uniform terms,
conditions and requirements, presumably to attain a
certain uniformity in provisions and avoid the possible
insertion of terms disadvantageous to the country.
(2) The President shall be the signatory for the
government because, supposedly before an agreement is
presented to the President for signature, it will have been
vetted several times over at different levels to ensure that
it conforms to law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the
President shall report it to Congress to give that branch of
government an opportunity to look over the agreement
and interpose timely objections, if any.69
Adhering to the aforementioned guidelines, this Court finds that SC-46 is
indeed null and void for noncompliance with the requirements of the 1987
Constitution.
1. The General Law on Oil Exploration
The disposition, exploration, development, exploitation, and utilization of
indigenous petroleum in the Philippines are governed by Presidential
Decree No. 87 or the Oil Exploration and Development Act of 1972. This
was enacted by then President Ferdinand Marcos to promote the discovery
and production of indigenous petroleum through the utilization of
government and/or local or foreign private resources to yield the maximum
benefit to the Filipino people and the revenues to the Philippine
Government.70
Contrary to the petitioners' argument, Presidential Decree No. 87, although
enacted in 1972, before the adoption of the 1987 Constitution, remains to be
a valid law unless otherwise repealed, to wit:
ARTICLE XVIII - TRANSITORY PROVISIONS
Section 3. All existing laws, decrees, executive orders, proclamations,
letters of instructions, and other executive issuances not inconsistent with
this Constitution shall remain operative until amended, repealed, or
revoked.
If there were any intention to repeal Presidential Decree No. 87, it would
have been done expressly by Congress. For instance, Republic Act No.
7160, more popularly known as the Local Government Code of 1991,
expressly repealed a number of laws, including a specific provision in
Presidential Decree No. 87, viz.:
SECTION 534. Repealing Clause. - (a) Batas Pambansa Blg. 337, otherwise
known as the "Local Government Code," Executive Order No. 112 (1987),
and Executive Order No. 319 (1988) are hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such
other decrees, orders, instructions, memoranda and
issuances related to or concerning the barangay are hereby
repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act
No. 1939 regarding hospital fund; Section 3, a (3) and b
(2) of Republic Act No. 5447 regarding the Special
Education Fund; Presidential Decree No. 144 as amended
by Presidential Decree Nos. 559 and 1741; Presidential
Decree No. 231 as amended; Presidential Decree No. 436
as amended by Presidential Decree No. 558; and
Presidential Decree Nos. 381, 436, 464, 477, 526, 632,
752, and 1136 are hereby repealed and rendered of no
force and effect.
(d) Presidential Decree No. 1594 is hereby repealed
insofar as it governs locally-funded projects.
(e) The following provisions are hereby repealed or
amended insofar as they are inconsistent with the
provisions of this Code: Sections 2, 16 and 29 of
Presidential Decree No. 704; Section 12 of Presidential
Decree No. 87, as amended; Sections 52, 53, 66, 67, 68,
69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463,
as amended; and Section 16 of Presidential Decree No.
972, as amended, and
(f) All general and special laws, acts, city charters,
decrees, executive orders, proclamations and
administrative regulations, or part or parts thereof which
are inconsistent with any of the provisions of this Code
are hereby repealed or modified accordingly. (Emphasis
supplied.)
This Court could not simply assume that while Presidential Decree No. 87
had not yet been expressly repealed, it had been impliedly repealed. As we
held in Villarea v. The Commission on Audit,71 "[i]mplied repeals are not
lightly presumed." It is a settled rule that when laws are in conflict with one
another, every effort must be exerted to reconcile them. In Republic of the
Philippines v. Marcopper Mining Corporation,72 we said:
The two laws must be absolutely incompatible, and a clear finding thereof
must surface, before the inference of implied repeal may be drawn. The rule
is expressed in the maxim, interpretare et concordare leqibus est optimus
interpretendi, i.e., every statute must be so interpreted and brought into
accord with other laws as to form a uniform system of jurisprudence. The
fundament is that the legislature should be presumed to have known the
existing laws on the subject and not have enacted conflicting statutes.
Hence, all doubts must be resolved against any implied repeal, and all
efforts should be exerted in order to harmonize and give effect to all laws
on the subject. (Citation omitted.)
Moreover, in cases where the statute seems to be in conflict with the
Constitution, but a construction that it is in harmony with the Constitution is
also possible, that construction should be preferred.73 This Court, in
Pangandaman v. Commission on Elections74 expounding on this point,
pronounced:
It is a basic precept in statutory construction that a statute should be
interpreted in harmony with the Constitution and that the spirit, rather than
the letter of the law determines its construction; for that reason, a statute
must be read according to its spirit and intent. x x x. (Citation omitted.)
Consequently, we find no merit in petitioners' contention that SC-46 is
prohibited on the ground that there is no general law prescribing the
standard or uniform terms, conditions, and requirements for service
contracts involving oil exploration and extraction.
But note must be made at this point that while Presidential Decree No. 87
may serve as the general law upon which a service contract for petroleum
exploration and extraction may be authorized, as will be discussed below,
the exploitation and utilization of this energy resource in the present case
may be allowed only through a law passed by Congress, since the Taon
Strait is a NIPAS75 area.
2. President was not the signatory to SC-46 and the same was not submitted
to Congress
While the Court finds that Presidential Decree No. 87 is sufficient to satisfy
the requirement of a general law, the absence of the two other conditions,
that the President be a signatory to SC-46, and that Congress be notified of
such contract, renders it null and void.
As SC-46 was executed in 2004, its terms should have conformed not only
to the provisions of Presidential Decree No. 87, but also to those of the
1987 Constitution. The Civil Code provides: ARTICLE 1306. The
contracting parties may establish such stipulations, clauses, terms and
conditions as they may deem convenient, provided they are not contrary to
law, morals, good customs, public order, or public policy. (Italics ours.)
In Heirs of San Miguel v. Court of Appeals,76 this Court held that:
It is basic that the law is deemed written into every contract. Although a
contract is the law between the parties, the provisions of positive law which
regulate contracts are deemed written therein and shall limit and govern the
relations between the parties. x x x. (Citations omitted.) Paragraph 4,
Section 2, Article XII of the 1987 Constitution requires that the President
himself enter into any service contract for the exploration of petroleum. SC-
46 appeared to have been entered into and signed only by the DOE through
its then Secretary, Vicente S. Perez, Jr., contrary to the said constitutional
requirement. Moreover, public respondents have neither shown nor alleged
that Congress was subsequently notified of the execution of such contract.
Public respondents' implied argument that based on the "alter ego
principle," their acts are also that of then President Macapagal-Arroyo's,
cannot apply in this case. In Joson v. Torres,77 we explained the concept of
the alter ego principle or the doctrine of qualified political agency and its
limit in this wise:
Under this doctrine, which recognizes the establishment of a single
executive, all executive and administrative organizations are adjuncts of the
Executive Department, the heads of the various executive departments are
assistants and agents of the Chief Executive, and, except in cases where the
Chief Executive is required by the Constitution or law to act in person or
the exigencies of the situation demand that he act personally, the
multifarious executive and administrative functions of the Chief Executive
are performed by and through the executive departments, and the acts of the
Secretaries of such departments, performed and promulgated in the regular
course of business, are, unless disapproved or reprobated by the Chief
Executive presumptively the acts of the Chief Executive. (Emphasis ours,
citation omitted.)
While the requirements in executing service contracts in paragraph 4,
Section 2 of Article XII of the 1987 Constitution seem like mere
formalities, they, in reality, take on a much bigger role. As we have
explained in La Bugal, they are the safeguards put in place by the framers of
the Constitution to "eliminate or minimize the abuses prevalent during the
martial law regime."78 Thus, they are not just mere formalities, which will
only render a contract unenforceable but not void, if not complied with.
They are requirements placed, not just in an ordinary statute, but in the
fundamental law, the non-observance of which will nullify the contract.
Elucidating on the concept of a "constitution," this Court, in Manila Prince
Hotel v. Government Service Insurance System,79 held:
A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and
unalterable except by the authority from which it emanates. It has been
defined as the fundamental and paramount law of the nation. It prescribes
the permanent framework of a system of government, assigns to the
different departments their respective powers and duties, and establishes
certain fixed principles on which government is founded. The fundamental
conception in other words is that it is a supreme law to which all other laws
must conform and in accordance with which all private rights must be
determined and all public authority administered. Under the doctrine of
constitutional supremacy, if a law or contract violates any norm of the
constitution that law or contract whether promulgated by the legislative or
by the executive branch or entered into by private persons for private
purposes is null and void and without any force and effect. Thus, since the
Constitution is the fundamental, paramount and supreme law of the nation,
it is deemed written in every statute and contract. (Emphasis ours.)
As this Court has held in La Bugal, our Constitution requires that the
President himself be the signatory of service agreements with foreign-
owned corporations involving the exploration, development, and utilization
of our minerals, petroleum, and other mineral oils. This power cannot be
taken lightly.
In this case, the public respondents have failed to show that the President
had any participation in SC-46. Their argument that their acts are actually
the acts of then President Macapagal-Arroyo, absent proof of her
disapproval, must fail as the requirement that the President herself enter into
these kinds of contracts is embodied not just in any ordinary statute, but in
the Constitution itself. These service contracts involving the exploitation,
development, and utilization of our natural resources are of paramount
interest to the present and future generations. Hence, safeguards were put in
place to insure that the guidelines set by law are meticulously observed and
likewise to eradicate the corruption that may easily penetrate departments
and agencies by ensuring that the President has authorized or approved of
these service contracts herself.
Even under the provisions of Presidential Decree No. 87, it is required that
the Petroleum Board, now the DOE, obtain the President's approval for the
execution of any contract under said statute, as shown in the following
provision:
SECTION 5. Execution of contract authorized in this Act. -Every contract
herein authorized shall, subject to the approval of the President, be executed
by the Petroleum Board created in this Act, after due public notice pre-
qualification and public bidding or concluded through negotiations. In case
bids are requested or if requested no bid is submitted or the bids submitted
are rejected by the Petroleum Board for being disadvantageous to the
Government, the contract may be concluded through negotiation.
In opening contract areas and in selecting the best offer for petroleum
operations, any of the following alternative procedures may be resorted to
by the Petroleum Board, subject to prior approval of the President[.]
Even if we were inclined to relax the requirement in La Bugal to harmonize
the 1987 Constitution with the aforementioned provision of Presidential
Decree No. 87, it must be shown that the government agency or subordinate
official has been authorized by the President to enter into such service
contract for the government. Otherwise, it should be at least shown that the
President subsequently approved of such contract explicitly. None of these
circumstances is evident in the case at bar.
Service Contract No. 46 vis-a-vis Other Laws
Petitioners in G.R. No. 180771 claim that SC-46 violates Section 27 of
Republic Act. No. 9147 or the Wildlife Resources Conservation and
Protection Act, which bans all marine exploration and exploitation of oil
and gas deposits. They also aver that Section 14 of Republic Act No. 7586
or the National Integrated Protected Areas System Act of 1992 (NIPAS
Act), which allows the exploration of protected areas for the purpose of
information-gathering, has been repealed by Section 27 of Republic Act No.
914 7. The said petitioners further claim that SC-46 is anathema to Republic
Act No. 8550 or the Philippine Fisheries Code of 1998, which protects the
rights of the fisherfolk in the preferential use of municipal waters, with the
exception being limited only to research and survey activities.80
The FIDEC, for its part, argues that to avail of the exceptions under Section
14 of the NIP AS Act, the gathering of information must be in accordance
with a DENR-approved program, and the exploitation and utilization of
energy resources must be pursuant to a general law passed by Congress
expressly for that purpose. Since there is neither a DENR approved program
nor a general law passed by Congress, the seismic surveys and oil drilling
operations were all done illegally.81 The FIDEC likewise contends that SC-
46 infringes on its right to the preferential use of the communal fishing
waters as it is denied free access within the prohibited zone, in violation not
only of the Fisheries Code but also of the 1987 Constitutional provisions on
subsistence fisherfolk and social justice.82 Furthermore, the FIDEC
believes that the provisions in Presidential Decree No. 87, which allow
offshore drilling even in municipal waters, should be deemed to have been
rendered inoperative by the provisions of Republic Act No. 8550 and
Republic Act No. 7160, which reiterate the social justice provisions of the
Constitution.83
The public respondents invoke the rules on statutory construction and argue
that Section 14 of the NIP AS Act is a more particular provision and cannot
be deemed to have been repealed by the more general prohibition in Section
27 of Republic Act No. 9147. They aver that Section 14, under which SC-
46 falls, should instead be regarded as an exemption to Section 27.84
Addressing the claim of petitioners in G.R. No. 180771 that there was a
violation of Section 27 of Republic Act No. 9147, the public respondents
assert that what the section prohibits is the exploration of minerals, which as
defined in the Philippine Mining Act of 1995, exclude energy materials
such as coal, petroleum, natural gas, radioactive materials and geothennal
energy. Thus, since SC-46 involves oil and gas exploration, Section 27 does
not apply.85
The public respondents defend the validity of SC-46 and insist that it does
not grant exclusive fishing rights to JAPEX; hence, it does not violate the
rule on preferential use of municipal waters. Moreover, they allege that
JAPEX has not banned fishing in the project area, contrary to the FIDEC's
claim. The public respondents also contest the attribution of the declining
fish catch to the seismic surveys and aver that the allegation is unfounded.
They claim that according to the Bureau of Fisheries and Aquatic
Resources' fish catch data, the reduced fish catch started in the 1970s due to
destructive fishing practices.86
Ruling of the Court
On the legality of Service Contract No. 46
vis-a-vis Other Laws
Although we have already established above that SC-46 is null and void for
being violative of the 1987 Constitution, it is our duty to still rule on the
legality of SC-46 vis-a-vis other pertinent laws, to serve as a guide for the
Government when executing service contracts involving not only the Tafion
Strait, but also other similar areas. While the petitioners allege that SC-46 is
in violation of several laws, including international ones, their arguments
focus primarily on the protected status of the Taon Strait, thus this Court
will concentrate on those laws that pertain particularly to the Taon Strait as
a protected seascape.
The Taon Strait is a narrow passage of water bounded by the islands of
Cebu in the East and Negros in the West. It harbors a rich biodiversity of
marine life, including endangered species of dolphins and whales. For this
reason, former President Fidel V. Ramos declared the Taon Strait as a
protected seascape in 1998 by virtue of Proclamation No. 1234 -Declaring
the Taon Strait situated in the Provinces of Cebu, Negros Occidental and
Negros Oriental as a Protected Area pursuant to the NIP AS Act and shall
be known as Taon Strait Protected Seascape. During former President
Joseph E. Estrada's time, he also constituted the Taon Strait Commission
via Executive Order No. 76 to ensure the optimum and sustained use of the
resources in that area without threatening its marine life. He followed this
with Executive Order No. 177,87 wherein he included the mayor of Negros
Occidental Municipality/City as a member of the Taon Strait Commission,
to represent the LGUs concerned. This Commission, however, was
subsequently abolished in 2002 by then President Gloria Macapagal-
Arroyo, via Executive Order No. 72.88
True to the constitutional policy that 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,"89 Congress enacted the NIP AS Act to
secure the perpetual existence of all native plants and animals through the
establishment of a comprehensive system of integrated protected areas.
These areas possess common ecological values that were incorporated into
a holistic plan representative of our natural heritage. The system
encompasses outstandingly remarkable areas and biologically important
public lands that are habitats of rare and endangered species of plants and
animals, biogeographic zones and related ecosystems, whether terrestrial,
wetland, or marine.90 It classifies and administers all the designated
protected areas to maintain essential ecological processes and life-support
systems, to preserve genetic diversity, to ensure sustainable use of resources
found therein, and to maintain their natural conditions to the greatest extent
possible.91 The following categories of protected areas were established
under the NIPAS Act:
a. Strict nature reserve;
b. Natural park;
c. Natural monument;
d. Wildlife sanctuary;
e. Protected landscapes and seascapes;
f. Resource reserve;
g. Natural biotic areas; and
h. Other categories established by law, conventions or
international agreements which the Philippine
Government is a signatory.92
Under Section 4 of the NIP AS Act, a protected area refers to portions of
land and water, set aside due to their unique physical and biological
significance, managed to enhance biological diversity and protected against
human exploitation.
The Taon Strait, pursuant to Proclamation No. 1234, was set aside and
declared a protected area under the category of Protected Seascape. The NIP
AS Act defines a Protected Seascape to be an area of national significance
characterized by the harmonious interaction of man and land while
providing opportunities for public enjoyment through recreation and
tourism within the normal lifestyle and economic activity of this areas;93
thus a management plan for each area must be designed to protect and
enhance the permanent preservation of its natural conditions.94 Consistent
with this endeavor is the requirement that an Environmental Impact
Assessment (EIA) be made prior to undertaking any activity outside the
scope of the management plan. Unless an ECC under the EIA system is
obtained, no activity inconsistent with the goals of the NIP AS Act shall be
implemented.95
The Environmental Impact Statement System (EISS) was established in
1978 under Presidential Decree No. 1586. It prohibits any person,
partnership or corporation from undertaking or operating any declared
environmentally critical project or areas without first securing an ECC
issued by the President or his duly authorized representative.96 Pursuant to
the EISS, which called for the proper management of environmentally
critical areas,97 Proclamation No. 214698 was enacted, identifying the
areas and types of projects to be considered as environmentally critical and
within the scope of the EISS, while DENR Administrative Order No. 2003-
30 provided for its Implementing Rules and Regulations (IRR).
DENR Administrative Order No. 2003-30 defines an environmentally
critical area as "an area delineated as environmentally sensitive such that
significant environmental impacts are expected if certain types of proposed
projects or programs are located, developed, or implemented in it";99 thus,
before a project, which is "any activity, regardless of scale or magnitude,
which may have significant impact on the environment,"100 is undertaken
in it, such project must undergo an EIA to evaluate and predict the likely
impacts of all its stages on the environment.101 An EIA is described in
detail as follows:
h. Environmental Impact Assessment (EIA) - process that involves
evaluating and predicting 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 community's
welfare. The process is undertaken by, among others, the project proponent
and/or EIA Consultant, EMB, a Review Committee, affected communities
and other stakeholders.102
Under Proclamation No. 2146, the Taon Strait is an environmentally
critical area, having been declared as a protected area in 1998; therefore,
any activity outside the scope of its management plan may only be
implemented pursuant to an ECC secured after undergoing an EIA to
determine the effects of such activity on its ecological system.
The public respondents argue that they had complied with the procedures in
obtaining an ECC103 and that SC-46 falls under the exceptions in Section
14 of the NIP AS Act, due to the following reasons:
1) The Taon Strait is not a strict nature reserve or natural
park;
2) Exploration is only for the purpose of gathering
information on possible energy resources; and 3)
Measures are undertaken to ensure that the exploration is
being done with the least damage to surrounding
areas.104
We do not agree with the arguments raised by the public respondents.
Sections 12 and 14 of the NIPAS Act read:
SECTION 12. Environmental Impact Assessment. - Proposals for activities
which are outside the scope of the management plan for protected areas
shall be subject to an environmental impact assessment as required by law
before they are adopted, and the results thereof shall be taken into
consideration in the decision-making process.
No actual implementation of such activities shall be allowed without the
required Environmental Compliance Certificate (ECC) under the Philippine
Environmental Impact Assessment (EIA) system. In instances where such
activities are allowed to be undertaken, the proponent shall plan and carry
them out in such manner as will minimize any adverse effects and the
preventive and remedial action when appropriate. The proponent shall be
liable for any damage due to lack of caution or indiscretion.
SECTION 14. Survey for Energy Resources. - Consistent with the policies
declared in Section 2 hereof, protected areas, except strict nature reserves
and natural parks, may be subjected to exploration only for the purpose of
gathering information on energy resources and only if such activity is
carried out with the least damage to surrounding areas. Surveys shall be
conducted only in accordance with a program approved by the DENR, and
the result of such surveys shall be made available to the public and
submitted to the President for recommendation to Congress. Any
exploitation and utilization of energy resources found within NIP AS areas
shall be allowed only through a law passed by Congress.
It is true that the restrictions found under the NIP AS Act are not without
exceptions. However, while an exploration done for the purpose of
surveying for energy resources is allowed under Section 14 of the NIP AS
Act, this does not mean that it is exempt from the requirement to undergo an
EIA under Section 12. In Sotto v. Sotto,105 this Court explained why a
statute should be construed as a whole:
A statute is passed as a whole and not in parts or sections and is animated
by one general purpose and intent. Consequently each part or section should
be construed in connection with every other part or section and so as to
produce a harmonious whole. It is not proper to confine the attention to the
one section to be construed. It is always an unsafe way of construing a
statute or contract to divide it by a process of etymological dissection, into
separate words, and then apply to each, thus separated from its context,
some particular definition given by lexicographers, and then reconstruct the
instrument upon the basis of these definitions. An instrument must always
be construed as a whole, and the particular meaning to be attached to any
word or phrase is usually to be ascertained from the context, the nature of
the subject treated of and the purpose or intention of the parties who
executed the contract, or of the body which enacted or framed the statute or
constitution. x x x.
Surveying for energy resources under Section 14 is not an exemption from
complying with the EIA requirement in Section 12; instead, Section 14
provides for additional requisites before any exploration for energy
resources may be done in protected areas.
The rationale for such additional requirements are incorporated m Section 2
of the NIP AS Act, to wit:
SECTION 2. Declaration of Policy - Cognizant of the profound impact of
man's activities on all components of the natural environment particularly
the effect of increasing population, resource exploitation and industrial
advancement and recognizing the critical importance of protecting and
maintaining the natural biological and physical diversities of the
environment notably on areas with biologically unique features to sustain
human life and development, as well as plant and animal life, it is hereby
declared the policy of the State to secure for the Filipino people of present
and future generations the perpetual existence of all native plants and
animals through the establishment of a comprehensive system of integrated
protected areas within the classification of national park as provided for in
the Constitution.
It is hereby recognized that these areas, although distinct in features,
possess common ecological values that may be incorporated into a holistic
plan representative of our natural heritage; that effective administration of
this area is possible only through cooperation among national government,
local government and concerned private organizations; that the use and
enjoyment of these protected areas must be consistent with the principles of
biological diversity and sustainable development.
To this end, there is hereby established a National Integrated Protected
Areas System (NIPAS), which shall encompass outstandingly remarkable
areas and biologically important public lands that are habitats of rare and
endangered species of plants and animals, biogeographic zones and related
ecosystems, whether terrestrial, wetland or marine, all of which shall be
designated as "protected areas."
The public respondents themselves admitted that JAPEX only started to
secure an ECC prior to the second sub-phase of SC-46, which required the
drilling of an oil exploration well. This means that when the seismic surveys
were done in the Taon Strait, no such environmental impact evaluation
was done. Unless seismic surveys are part of the management plan of the
Taon Strait, such surveys were done in violation of Section 12 of the
NIPAS Act and Section 4 of Presidential Decree No. 1586, which provides:
Section 4. Presidential Proclamation of Environmentally Critical Areas and
Projects. - The President of the Philippines may, on his own initiative or
upon recommendation of the National Environmental Protection Council,
by proclamation declare certain projects, undertakings or areas in the
country as environmentally critical. 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. For
the proper management of said critical project or area, the President may by
his proclamation reorganize such government offices, agencies, institutions,
corporations or instrumentalities including the re-alignment of government
personnel, and their specific functions and responsibilities.
For the same purpose as above, the Ministry of Human Settlements shall:
(a) prepare the proper land or water use pattern for said critical project(s) or
area(s); (b) establish ambient environmental quality standards; (c) develop a
program of environmental enhancement or protective measures against
calamitous factors such as earthquakes, floods, water erosion and others,
and (d) perform such other functions as may be directed by the President
from time to time.
The respondents' subsequent compliance with the EISS for the second sub-
phase of SC-46 cannot and will not cure this violation. The following
penalties are provided for under Presidential Decree No. 1586 and the
NIPAS Act.
Section 9 of Presidential Decree No. 1586 provides for the penalty
involving violations of the ECC requirement:
Section 9. Penalty for Violation. - Any person, corporation or partnership
found violating Section 4 of this Decree, or the terms and conditions in the
issuance of the Environmental Compliance Certificate, or of the standards,
rules and regulations issued by the National Environmental Protection
Council pursuant to this Decree shall be punished by the suspension or
cancellation of his/its certificates and/or a fine in an amount not to exceed
Fifty Thousand Pesos (P50,000.00) for every violation thereof, at the
discretion of the National Environmental Protection Council. (Emphasis
supplied.)
Violations of the NIP AS Act entails the following fines and/or
imprisonment under Section 21:
SECTION 21. Penalties. - Whoever violates this Act or any rules and
regulations issued by the Department pursuant to this Act or whoever is
found guilty by a competent court of justice of any of the offenses in the
preceding section shall be fined in the amount of not less than Five
thousand pesos (P5,000) nor more than Five hundred thousand pesos
(P500,000), exclusive of the value of the thing damaged or imprisonment
for not less than one (1) year but not more than six (6) years, or both, as
determined by the court: Provided, that, if the area requires rehabilitation or
restoration as determined by the court, the offender shall be required to
restore or compensate for the restoration to the damages: Provided, further,
that court shall order the eviction of the offender from the land and the
forfeiture in favor of the Government of all minerals, timber or any species
collected or removed including all equipment, devices and firearms used in
connection therewith, and any construction or improvement made thereon
by the offender. If the offender is an association or corporation, the
president or manager shall be directly responsible for the act of his
employees and laborers: Provided, finally, that the DENR may impose
administrative fines and penalties consistent with this Act. (Emphases
supplied.) Moreover, SC-46 was not executed for the mere purpose of
gathering information on the possible energy resources in the Taon Strait
as it also provides for the parties' rights and obligations relating to
extraction and petroleum production should oil in commercial quantities be
found to exist in the area. While Presidential Decree No. 87 may serve as
the general law upon which a service contract for petroleum exploration and
extraction may be authorized, the exploitation and utilization of this energy
resource in the present case may be allowed only through a law passed by
Congress, since the Taon Strait is a NIPAS area.106 Since there is no such
law specifically allowing oil exploration and/or extraction in the Taon
Strait, no energy resource exploitation and utilization may be done in said
protected seascape.
In view of the foregoing premises and conclusions, it is no longer necessary
to discuss the other issues raised in these consolidated petitions.
WHEREFORE, the Petitions in G.R. Nos. 180771 and 181527 are
GRANTED, Service Contract No. 46 is hereby declared NULL AND VOID
for violating the 1987 Constitution, Republic Act No. 7586, and Presidential
Decree No. 1586.
SO ORDERED.
#10
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all
surnamed OPOSA, minors, and represented by their parents
ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA,
minor, represented by her parents CALVIN and ROBERTA
SADIUA, CARLO, AMANDA SALUD and PATRISHA, all
surnamed FLORES, minors and represented by their parents
ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor,
represented by her parents SIGRID and DOLORES FORTUN,
GEORGE II and MA. CONCEPCION, all surnamed MISA, minors
and represented by their parents GEORGE and MYRA MISA,
BENJAMIN ALAN V. PESIGAN, minor, represented by his
parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO,
minor, represented by her parents JOSE and MARIA VIOLETA
ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented
by her parents FREDENIL and JANE CASTRO, JOHANNA
DESAMPARADO,
minor, represented by her parents JOSE and ANGELA
DESAMPRADO, CARLO JOAQUIN T. NARVASA, minor,
represented by his parents GREGORIO II and CRISTINE
CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO, MA.
ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors,
represented by their parents ROBERTO and AURORA SAENZ,
KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID
IAN, all surnamed KING, minors, represented by their parents
MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE
VICTORIA, all surnamed ENDRIGA, minors, represented by their
parents BALTAZAR and TERESITA ENDRIGA, JOSE MA. and
REGINA MA., all surnamed ABAYA, minors, represented by
their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO,
JR. and MARIETTE, all surnamed CARDAMA, minors,
represented by their parents MARIO and LINA CARDAMA,
CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed
OPOSA, minors and represented by their parents RICARDO and
MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and
ISAIAH JAMES, all surnamed QUIPIT, minors, represented by
their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO,
CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed
BIBAL, minors, represented by their parents FRANCISCO, JR.
and MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL
NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his
capacity as the Secretary of the Department of Environment and
Natural Resources, and THE HONORABLE ERIBERTO U.
ROSARIO, Presiding Judge of the RTC, Makati, Branch 66,
respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a
balanced and healthful ecology which the petitioners dramatically
associate with the twin concepts of "inter-generational responsibility"
and "inter-generational justice." Specifically, it touches on the issue
of whether the said petitioners have a cause of action to "prevent the
misappropriation or impairment" of Philippine rainforests and "arrest
the unabated hemorrhage of the country's vital life support systems
and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was
filed before Branch 66 (Makati, Metro Manila) of the Regional Trial
Court (RTC), National Capital Judicial Region. The principal plaintiffs
therein, now the principal petitioners, are all minors duly represented
and joined by their respective parents. Impleaded as an additional
plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic,
non-stock and non-profit corporation organized for the purpose of,
inter alia, engaging in concerted action geared for the protection of
our environment and natural resources. The original defendant was
the Honorable Fulgencio S. Factoran, Jr., then Secretary of the
Department of Environment and Natural Resources (DENR). His
substitution in this petition by the new Secretary, the Honorable
Angel C. Alcala, was subsequently ordered upon proper motion by
the petitioners. 1 The complaint 2 was instituted as a taxpayers' class
suit 3 and alleges that the plaintiffs "are all citizens of the Republic of
the Philippines, taxpayers, and entitled to the full benefit, use and
enjoyment of the natural resource treasure that is the country's virgin
tropical forests." The same was filed for themselves and others who
are equally concerned about the preservation of said resource but
are "so numerous that it is impracticable to bring them all before the
Court." The minors further asseverate that they "represent their
generation as well as generations yet unborn." 4 Consequently, it is
prayed for that judgment be rendered:
. . . ordering defendant, his agents,
representatives and other persons acting in
his behalf to
(1) Cancel all existing timber license
agreements in the country;
(2) Cease and desist from receiving,
accepting, processing, renewing or
approving new timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable
under the premises." 5
The complaint starts off with the general averments that the
Philippine archipelago of 7,100 islands has a land area of thirty
million (30,000,000) hectares and is endowed with rich, lush and
verdant rainforests in which varied, rare and unique species of flora
and fauna may be found; these rainforests contain a genetic,
biological and chemical pool which is irreplaceable; they are also the
habitat of indigenous Philippine cultures which have existed, endured
and flourished since time immemorial; scientific evidence reveals
that in order to maintain a balanced and healthful ecology, the
country's land area should be utilized on the basis of a ratio of fifty-
four per cent (54%) for forest cover and forty-six per cent (46%) for
agricultural, residential, industrial, commercial and other uses; the
distortion and disturbance of this balance as a consequence of
deforestation have resulted in a host of environmental tragedies,
such as (a) water shortages resulting from drying up of the water
table, otherwise known as the "aquifer," as well as of rivers, brooks
and streams, (b) salinization of the water table as a result of the
intrusion therein of salt water, incontrovertible examples of which
may be found in the island of Cebu and the Municipality of Bacoor,
Cavite, (c) massive erosion and the consequential loss of soil fertility
and agricultural productivity, with the volume of soil eroded estimated
at one billion (1,000,000,000) cubic meters per annum
approximately the size of the entire island of Catanduanes, (d) the
endangering and extinction of the country's unique, rare and varied
flora and fauna, (e) the disturbance and dislocation of cultural
communities, including the disappearance of the Filipino's
indigenous cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life leading to a
critical reduction in marine resource productivity, (g) recurrent spells
of drought as is presently experienced by the entire country, (h)
increasing velocity of typhoon winds which result from the absence
of windbreakers, (i) the floodings of lowlands and agricultural plains
arising from the absence of the absorbent mechanism of forests, (j)
the siltation and shortening of the lifespan of multi-billion peso dams
constructed and operated for the purpose of supplying water for
domestic uses, irrigation and the generation of electric power, and
(k) the reduction of the earth's capacity to process carbon dioxide
gases which has led to perplexing and catastrophic climatic changes
such as the phenomenon of global warming, otherwise known as the
"greenhouse effect."
Plaintiffs further assert that the adverse and detrimental
consequences of continued and deforestation are so capable of
unquestionable demonstration that the same may be submitted as a
matter of judicial notice. This notwithstanding, they expressed their
intention to present expert witnesses as well as documentary,
photographic and film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the
foregoing allegations.
8. Twenty-five (25) years ago, the
Philippines had some sixteen (16) million
hectares of rainforests constituting roughly
53% of the country's land mass.
9. Satellite images taken in 1987 reveal that
there remained no more than 1.2 million
hectares of said rainforests or four per cent
(4.0%) of the country's land area.
10. More recent surveys reveal that a mere
850,000 hectares of virgin old-growth
rainforests are left, barely 2.8% of the entire
land mass of the Philippine archipelago and
about 3.0 million hectares of immature and
uneconomical secondary growth forests.
11. Public records reveal that the
defendant's, predecessors have granted
timber license agreements ('TLA's') to
various corporations to cut the aggregate
area of 3.89 million hectares for commercial
logging purposes.
A copy of the TLA holders and the
corresponding areas covered is hereto
attached as Annex "A".
12. At the present rate of deforestation, i.e.
about 200,000 hectares per annum or 25
hectares per hour nighttime, Saturdays,
Sundays and holidays included the
Philippines will be bereft of forest resources
after the end of this ensuing decade, if not
earlier.
13. The adverse effects, disastrous
consequences, serious injury and
irreparable damage of this continued trend
of deforestation to the plaintiff minor's
generation and to generations yet unborn
are evident and incontrovertible. As a matter
of fact, the environmental damages
enumerated in paragraph 6 hereof are
already being felt, experienced and suffered
by the generation of plaintiff adults.
14. The continued allowance by defendant
of TLA holders to cut and deforest the
remaining forest stands will work great
damage and irreparable injury to plaintiffs
especially plaintiff minors and their
successors who may never see, use,
benefit from and enjoy this rare and unique
natural resource treasure.
This act of defendant constitutes a
misappropriation and/or impairment of the
natural resource property he holds in trust
for the benefit of plaintiff minors and
succeeding generations.
15. Plaintiffs have a clear and constitutional
right to a balanced and healthful ecology
and are entitled to protection by the State in
its capacity as the parens patriae.
16. Plaintiff have exhausted all
administrative remedies with the defendant's
office. On March 2, 1990, plaintiffs served
upon defendant a final demand to cancel all
logging permits in the country.
A copy of the plaintiffs' letter dated March 1,
1990 is hereto attached as Annex "B".
17. Defendant, however, fails and refuses to
cancel the existing TLA's to the continuing
serious damage and extreme prejudice of
plaintiffs.
18. The continued failure and refusal by
defendant to cancel the TLA's is an act
violative of the rights of plaintiffs, especially
plaintiff minors who may be left with a
country that is desertified (sic), bare, barren
and devoid of the wonderful flora, fauna and
indigenous cultures which the Philippines
had been abundantly blessed with.
19. Defendant's refusal to cancel the
aforementioned TLA's is manifestly contrary
to the public policy enunciated in the
Philippine Environmental Policy which, in
pertinent part, states that it is the policy of
the State
(a) to create, develop, maintain and improve
conditions under which man and nature can
thrive in productive and enjoyable harmony
with each other;
(b) to fulfill the social, economic and other
requirements of present and future
generations of Filipinos and;
(c) to ensure the attainment of an
environmental quality that is conductive to a
life of dignity and well-being. (P.D. 1151, 6
June 1977)
20. Furthermore, defendant's continued
refusal to cancel the aforementioned TLA's
is contradictory to the Constitutional policy of
the State to
a. effect "a more equitable distribution of
opportunities, income and wealth" and
"make full and efficient use of natural
resources (sic)." (Section 1, Article XII of the
Constitution);
b. "protect the nation's marine wealth."
(Section 2, ibid);
c. "conserve and promote the nation's
cultural heritage and resources (sic)"
(Section 14, Article XIV, id.);
d. "protect and advance the right of the
people to a balanced and healthful ecology
in accord with the rhythm and harmony of
nature." (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the
highest law of humankind the natural law
and violative of plaintiffs' right to self-
preservation and perpetuation.
22. There is no other plain, speedy and
adequate remedy in law other than the
instant action to arrest the unabated
hemorrhage of the country's vital life support
systems and continued rape of Mother
Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr.,
filed a Motion to Dismiss the complaint based on two (2) grounds,
namely: (1) the plaintiffs have no cause of action against him and (2)
the issue raised by the plaintiffs is a political question which properly
pertains to the legislative or executive branches of Government. In
their 12 July 1990 Opposition to the Motion, the petitioners maintain
that (1) the complaint shows a clear and unmistakable cause of
action, (2) the motion is dilatory and (3) the action presents a
justiciable question as it involves the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the
aforementioned motion to dismiss. 7 In the said order, not only was
the defendant's claim that the complaint states no cause of action
against him and that it raises a political question sustained, the
respondent Judge further ruled that the granting of the relief prayed
for would result in the impairment of contracts which is prohibited by
the fundamental law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under
Rule 65 of the Revised Rules of Court and ask this Court to rescind
and set aside the dismissal order on the ground that the respondent
Judge gravely abused his discretion in dismissing the action. Again,
the parents of the plaintiffs-minors not only represent their children,
but have also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and
required the parties to submit their respective Memoranda after the
Office of the Solicitor General (OSG) filed a Comment in behalf of
the respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably
states a cause of action as it contains sufficient allegations
concerning their right to a sound environment based on Articles 19,
20 and 21 of the Civil Code (Human Relations), Section 4 of
Executive Order (E.O.) No. 192 creating the DENR, Section 3 of
Presidential Decree (P.D.) No. 1151 (Philippine Environmental
Policy), Section 16, Article II of the 1987 Constitution recognizing the
right of the people to a balanced and healthful ecology, the concept
of generational genocide in Criminal Law and the concept of man's
inalienable right to self-preservation and self-perpetuation embodied
in natural law. Petitioners likewise rely on the respondent's
correlative obligation per Section 4 of E.O. No. 192, to safeguard the
people's right to a healthful environment.
It is further claimed that the issue of the respondent Secretary's
alleged grave abuse of discretion in granting Timber License
Agreements (TLAs) to cover more areas for logging than what is
available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's
non-impairment clause, petitioners maintain that the same does not
apply in this case because TLAs are not contracts. They likewise
submit that even if TLAs may be considered protected by the said
clause, it is well settled that they may still be revoked by the State
when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to
allege in their complaint a specific legal right violated by the
respondent Secretary for which any relief is provided by law. They
see nothing in the complaint but vague and nebulous allegations
concerning an "environmental right" which supposedly entitles the
petitioners to the "protection by the state in its capacity as parens
patriae." Such allegations, according to them, do not reveal a valid
cause of action. They then reiterate the theory that the question of
whether logging should be permitted in the country is a political
question which should be properly addressed to the executive or
legislative branches of Government. They therefore assert that the
petitioners' resources is not to file an action to court, but to lobby
before Congress for the passage of a bill that would ban logging
totally.
As to the matter of the cancellation of the TLAs, respondents submit
that the same cannot be done by the State without due process of
law. Once issued, a TLA remains effective for a certain period of time
usually for twenty-five (25) years. During its effectivity, the same
can neither be revised nor cancelled unless the holder has been
found, after due notice and hearing, to have violated the terms of the
agreement or other forestry laws and regulations. Petitioners'
proposition to have all the TLAs indiscriminately cancelled without
the requisite hearing would be violative of the requirements of due
process.
Before going any further, We must first focus on some procedural
matters. Petitioners instituted Civil Case No. 90-777 as a class suit.
The original defendant and the present respondents did not take
issue with this matter. Nevertheless, We hereby rule that the said
civil case is indeed a class suit. The subject matter of the complaint
is of common and general interest not just to several, but to all
citizens of the Philippines. Consequently, since the parties are so
numerous, it, becomes impracticable, if not totally impossible, to
bring all of them before the court. We likewise declare that the
plaintiffs therein are numerous and representative enough to ensure
the full protection of all concerned interests. Hence, all the requisites
for the filing of a valid class suit under Section 12, Rule 3 of the
Revised Rules of Court are present both in the said civil case and in
the instant petition, the latter being but an incident to the former.
This case, however, has a special and novel element. Petitioners
minors assert that they represent their generation as well as
generations yet unborn. We find no difficulty in ruling that they can,
for themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the
succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned. Such a right, as hereinafter
expounded, considers
the "rhythm and harmony of nature." Nature means the created world
in its entirety. 9 Such rhythm and harmony indispensably include,
inter alia, the judicious disposition, utilization, management, renewal
and conservation of the country's forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and other natural resources to the
end that their exploration, development and utilization be equitably
accessible to the present as well as future generations. 10 Needless
to say, every generation has a responsibility to the next to preserve
that rhythm and harmony for the full enjoyment of a balanced and
healthful ecology. Put a little differently, the minors' assertion of their
right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right
for the generations to come.
The locus standi of the petitioners having thus been addressed, We
shall now proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous
consideration and evaluation of the issues raised and arguments
adduced by the parties, We do not hesitate to find for the petitioners
and rule against the respondent Judge's challenged order for having
been issued with grave abuse of discretion amounting to lack of
jurisdiction. The pertinent portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of
the Complaint, the Court cannot help but
agree with the defendant. For although we
believe that plaintiffs have but the noblest of
all intentions, it (sic) fell short of alleging,
with sufficient definiteness, a specific legal
right they are seeking to enforce and
protect, or a specific legal wrong they are
seeking to prevent and redress (Sec. 1, Rule
2, RRC). Furthermore, the Court notes that
the Complaint is replete with vague
assumptions and vague conclusions based
on unverified data. In fine, plaintiffs fail to
state a cause of action in its Complaint
against the herein defendant.
Furthermore, the Court firmly believes that
the matter before it, being impressed with
political color and involving a matter of
public policy, may not be taken cognizance
of by this Court without doing violence to the
sacred principle of "Separation of Powers" of
the three (3) co-equal branches of the
Government.
The Court is likewise of the impression that
it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by
the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to
cease and desist from receiving, accepting,
processing, renewing or approving new
timber license agreements. For to do
otherwise would amount to "impairment of
contracts" abhored (sic) by the fundamental
law. 11
We do not agree with the trial court's conclusions that the plaintiffs
failed to allege with sufficient definiteness a specific legal right
involved or a specific legal wrong committed, and that the complaint
is replete with vague assumptions and conclusions based on
unverified data. A reading of the complaint itself belies these
conclusions.
The complaint focuses on one specific fundamental legal right the
right to a balanced and healthful ecology which, for the first time in
our nation's constitutional history, is solemnly incorporated in the
fundamental law. Section 16, Article II of the 1987 Constitution
explicitly provides:
Sec. 16. The State shall protect and
advance the right of the people to a
 balanced and healthful ecology in accord MR. VILLACORTA:
with the rhythm and harmony of nature.
Does this section mandate
This right unites with the right to health the State to provide
which is provided for in the preceding sanctions against all forms
section of the same article: of pollution air, water and
noise pollution?
Sec. 15. The State shall protect and
promote the right to health of the people and MR. AZCUNA:
instill health consciousness among them.
Yes, Madam President. The
While the right to a balanced and healthful ecology is to be found right to healthful (sic)
under the Declaration of Principles and State Policies and not under environment necessarily
the Bill of Rights, it does not follow that it is less important than any carries with it the correlative
of the civil and political rights enumerated in the latter. Such a right duty of not impairing the
belongs to a different category of rights altogether for it concerns same and, therefore,
nothing less than self-preservation and self-perpetuation aptly and sanctions may be provided
fittingly stressed by the petitioners the advancement of which may for impairment of
even be said to predate all governments and constitutions. As a environmental balance. 12
matter of fact, these basic rights need not even be written in the
Constitution for they are assumed to exist from the inception of The said right implies, among many other things, the judicious
humankind. If they are now explicitly mentioned in the fundamental management and conservation of the country's forests.
charter, it is because of the well-founded fear of its framers that
unless the rights to a balanced and healthful ecology and to health Without such forests, the ecological or
are mandated as state policies by the Constitution itself, thereby
environmental balance would be irreversiby
highlighting their continuing importance and imposing upon the state
disrupted.
a solemn obligation to preserve the first and protect and advance the
second, the day would not be too far when all else would be lost not
only for the present generation, but also for those to come Conformably with the enunciated right to a balanced and healthful
generations which stand to inherit nothing but parched earth ecology and the right to health, as well as the other related
incapable of sustaining life. provisions of the Constitution concerning the conservation,
development and utilization of the country's natural resources, 13
then President Corazon C. Aquino promulgated on 10 June 1987
The right to a balanced and healthful ecology carries with it the E.O. No. 192, 14 Section 4 of which expressly mandates that the
correlative duty to refrain from impairing the environment. During the Department of Environment and Natural Resources "shall be the
debates on this right in one of the plenary sessions of the 1986
primary government agency responsible for the conservation,
Constitutional Commission, the following exchange transpired
management, development and proper use of the country's
between Commissioner Wilfrido Villacorta and Commissioner Adolfo
environment and natural resources, specifically forest and grazing
Azcuna who sponsored the section in question:
lands, mineral, resources, including those in reservation and
watershed areas, and lands of the public domain, as well as the
licensing and regulation of all natural resources as may be provided
for by law in order to ensure equitable sharing of the benefits derived
therefrom for the welfare of the present and future generations of
Filipinos." Section 3 thereof makes the following statement of policy:
Sec. 3. Declaration of Policy. It is hereby
declared the policy of the State to ensure
the sustainable use, development,
management, renewal, and conservation of
the country's forest, mineral, land, off-shore
areas and other natural resources, including
the protection and enhancement of the
quality of the environment, and equitable
access of the different segments of the
population to the development and the use
of the country's natural resources, not only
for the present generation but for future
generations as well. It is also the policy of
the state to recognize and apply a true value
system including social and environmental
cost implications relative to their utilization,
development and conservation of our natural
resources.
This policy declaration is substantially re-stated it Title XIV, Book IV
of the Administrative Code of 1987, 15 specifically in Section 1 thereof
which reads:
Sec. 1. Declaration of Policy. (1) The
State shall ensure, for the benefit of the
Filipino people, the full exploration and
development as well as the judicious
disposition, utilization, management,
renewal and conservation of the country's
forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural
resources, consistent with the necessity of
maintaining a sound ecological balance and
protecting and enhancing the quality of the
environment and the objective of making the
exploration, development and utilization of
such natural resources equitably accessible
to the different segments of the present as
well as future generations.
(2) The State shall likewise recognize and
apply a true value system that takes into
account social and environmental cost
implications relative to the utilization,
development and conservation of our natural
resources.
The above provision stresses "the necessity of maintaining a sound
ecological balance and protecting and enhancing the quality of the
environment." Section 2 of the same Title, on the other hand,
specifically speaks of the mandate of the DENR; however, it makes
particular reference to the fact of the agency's being subject to law
and higher authority. Said section provides:
Sec. 2. Mandate. (1) The Department of
Environment and Natural Resources shall
be primarily responsible for the
implementation of the foregoing policy.
(2) It shall, subject to law and higher
authority, be in charge of carrying out the
State's constitutional mandate to control and
supervise the exploration, development,
utilization, and conservation of the country's
natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the
objectives which will serve as the bases for policy formulation, and
have defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the
1987 Constitution, specific statutes already paid special attention to
the "environmental right" of the present and future generations. On 6
June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D.
No. 1152 (Philippine Environment Code) were issued. The former
"declared a continuing policy of the State (a) to create, develop,
maintain and improve conditions under which man and nature can
thrive in productive and enjoyable harmony with each other, (b) to
fulfill the social, economic and other requirements of present and
future generations of Filipinos, and (c) to insure the attainment of an
environmental quality that is conducive to a life of dignity and well-
being." 16 As its goal, it speaks of the "responsibilities of each
generation as trustee and guardian of the environment for
succeeding generations." 17 The latter statute, on the other hand,
gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a
balanced and healthful ecology is as clear as the DENR's duty
under its mandate and by virtue of its powers and functions under
E.O. No. 192 and the Administrative Code of 1987 to protect and
advance the said right.
A denial or violation of that right by the other who has the corelative
duty or obligation to respect or protect the same gives rise to a cause
of action. Petitioners maintain that the granting of the TLAs, which
they claim was done with grave abuse of discretion, violated their
right to a balanced and healthful ecology; hence, the full protection
thereof requires that no further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in
violation of the legal right or rights of the
other; and its essential elements are legal
right of the plaintiff, correlative obligation of
the defendant, and act or omission of the
defendant in violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the
ground that the complaint fails to state a cause of action, 19 the
question submitted to the court for resolution involves the sufficiency
of the facts alleged in the complaint itself. No other matter should be
considered; furthermore, the truth of falsity of the said allegations is
beside the point for the truth thereof is deemed hypothetically
admitted. The only issue to be resolved in such a case is: admitting
such alleged facts to be true, may the court render a valid judgment
in accordance with the prayer in the complaint? 20 In Militante vs.
Edrosolano, 21 this Court laid down the rule that the judiciary should
"exercise the utmost care and circumspection in passing upon a
motion to dismiss on the ground of the absence thereof [cause of
action] lest, by its failure to manifest a correct appreciation of the
facts alleged and deemed hypothetically admitted, what the law
grants or recognizes is effectively nullified. If that happens, there is a
blot on the legal order. The law itself stands in disrepute."
After careful examination of the petitioners' complaint, We find the
statements under the introductory affirmative allegations, as well as
the specific averments under the sub-heading CAUSE OF ACTION,
to be adequate enough to show, prima facie, the claimed violation of
their rights. On the basis thereof, they may thus be granted, wholly or
partly, the reliefs prayed for. It bears stressing, however, that insofar
as the cancellation of the TLAs is concerned, there is the need to
implead, as party defendants, the grantees thereof for they are
indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a
political question. Policy formulation or determination by the
executive or legislative branches of Government is not squarely put
in issue. What is principally involved is the enforcement of a right vis-
a-vis policies already formulated and expressed in legislation. It
must, nonetheless, be emphasized that the political question doctrine
is no longer, the insurmountable obstacle to the exercise of judicial
power or the impenetrable shield that protects executive and
legislative actions from judicial inquiry or review. The second
paragraph of section 1, Article VIII of the Constitution states that:
Judicial power includes the duty of the
courts of justice to settle actual
controversies involving rights which are
legally demandable and enforceable, and to
determine whether or not there has been a
grave abuse of discretion amounting to lack
 or excess of jurisdiction on the part of any
branch or instrumentality of the Government.
Commenting on this provision in his book, Philippine Political Law, 22
Mr. Justice Isagani A. Cruz, a distinguished member of this Court,
says:
The first part of the authority represents the
traditional concept of judicial power,
involving the settlement of conflicting rights
as conferred as law. The second part of the
authority represents a broadening of judicial
power to enable the courts of justice to
review what was before forbidden territory,
to wit, the discretion of the political
departments of the government.
As worded, the new provision vests in the
judiciary, and particularly the Supreme
Court, the power to rule upon even the
wisdom of the decisions of the executive
and the legislature and to declare their acts
invalid for lack or excess of jurisdiction
because tainted with grave abuse of
discretion. The catch, of course, is the
meaning of "grave abuse of discretion,"
which is a very elastic phrase that can
expand or contract according to the
disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this
Court, noted:
In the case now before us, the jurisdictional
objection becomes even less tenable and
decisive. The reason is that, even if we were
to assume that the issue presented before
us was political in nature, we would still not
be precluded from revolving it under the
expanded jurisdiction conferred upon us that
now covers, in proper cases, even the
political question. Article VII, Section 1, of
the Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint
is the non-impairment of contracts clause found in the Constitution.
The court a quo declared that:
The Court is likewise of the impression that
it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by
the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to
cease and desist from receiving, accepting,
processing, renewing or approving new
timber license agreements. For to do
otherwise would amount to "impairment of
contracts" abhored (sic) by the fundamental
law. 24
We are not persuaded at all; on the contrary, We are amazed, if not
shocked, by such a sweeping pronouncement. In the first place, the
respondent Secretary did not, for obvious reasons, even invoke in
his motion to dismiss the non-impairment clause. If he had done so,
he would have acted with utmost infidelity to the Government by
providing undue and unwarranted benefits and advantages to the
timber license holders because he would have forever bound the
Government to strictly respect the said licenses according to their
terms and conditions regardless of changes in policy and the
demands of public interest and welfare. He was aware that as
correctly pointed out by the petitioners, into every timber license
must be read Section 20 of the Forestry Reform Code (P.D. No. 705)
which provides:
. . . Provided, That when the national
interest so requires, the President may
amend, modify, replace or rescind any
 contract, concession, permit, licenses or any
other form of privilege granted herein . . .
Needless to say, all licenses may thus be revoked or
rescinded by executive action. It is not a contract,
property or a property right protested by the due
process clause of the Constitution. In Tan vs.
Director of Forestry, 25 this Court held:
. . . A timber license is an instrument by
which the State regulates the utilization and
disposition of forest resources to the end
that public welfare is promoted. A timber
license is not a contract within the purview of
the due process clause; it is only a license
or privilege, which can be validly withdrawn
whenever dictated by public interest or
public welfare as in this case.
A license is merely a permit or privilege to
do what otherwise would be unlawful, and is
not a contract between the authority, federal,
state, or municipal, granting it and the
person to whom it is granted; neither is it
property or a property right, nor does it
create a vested right; nor is it taxation (37
C.J. 168). Thus, this Court held that the
granting of license does not create
irrevocable rights, neither is it property or
property rights (People vs. Ong Tin, 54 O.G.
7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc.
vs. Deputy Executive Secretary: 26
. . . Timber licenses, permits and license
agreements are the principal instruments by
which the State regulates the utilization and
disposition of forest resources to the end
that public welfare is promoted. And it can
hardly be gainsaid that they merely evidence
a privilege granted by the State to qualified
entities, and do not vest in the latter a
permanent or irrevocable right to the
particular concession area and the forest
products therein. They may be validly
amended, modified, replaced or rescinded
by the Chief Executive when national
interests so require. Thus, they are not
deemed contracts within the purview of the
due process of law clause [See Sections
3(ee) and 20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of Forestry,
G.R. No. L-24548, October 27, 1983, 125
SCRA 302].
Since timber licenses are not contracts, the non-impairment clause,
which reads:
Sec. 10. No law impairing, the obligation of
contracts shall be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are
contracts, the instant case does not involve a law or even an
executive issuance declaring the cancellation or modification of
existing timber licenses. Hence, the non-impairment clause cannot
as yet be invoked. Nevertheless, granting further that a law has
actually been passed mandating cancellations or modifications, the
same cannot still be stigmatized as a violation of the non-impairment
clause. This is because by its very nature and purpose, such as law
could have only been passed in the exercise of the police power of
the state for the purpose of advancing the right of the people to a
balanced and healthful ecology, promoting their health and
enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
 The freedom of contract, under our system
of government, is not meant to be absolute.
The same is understood to be subject to
reasonable legislative regulation aimed at
the promotion of public health, moral, safety
and welfare. In other words, the
constitutional guaranty of non-impairment of
obligations of contract is limited by the
exercise of the police power of the State, in
the interest of public health, safety, moral
and general welfare.
instances. Moreover, with respect to renewal, the holder is not
entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is
hereby GRANTED, and the challenged Order of respondent Judge of
18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside.
The petitioners may therefore amend their complaint to implead as
defendants the holders or grantees of the questioned timber license
agreements.
No pronouncement as to costs.

The reason for this is emphatically set forth in Nebia vs. New York, 29
SO ORDERED.
quoted in Philippine American Life Insurance Co. vs. Auditor
General, 30 to wit:
Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon,
Bellosillo, Melo and Quiason, JJ., concur.
Under our form of government the use of
property and the making of contracts are
normally matters of private and not of public Narvasa, C.J., Puno and Vitug, JJ., took no part.
concern. The general rule is that both shall
be free of governmental interference. But
neither property rights nor contract rights are
absolute; for government cannot exist if the
citizen may at will use his property to the
detriment of his fellows, or exercise his
freedom of contract to work them harm.
Equally fundamental with the private right is
that of the public to regulate it in the
common interest.

In short, the non-impairment clause must yield to the police power of

the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-
impairment clause could apply with respect to the prayer to enjoin
the respondent Secretary from receiving, accepting, processing,
renewing or approving new timber licenses for, save in cases of
renewal, no contract would have as of yet existed in the other