Trans-nation Pollution and Cross-Border Remedies

John Henry O. Valencia, RN, RM, CCCN, MAN

Pollution neither recognizes nor respects territorial boundaries. With an increasing number of
pollution cases in the last decade, there has been a corresponding increase in the concern for
remedies to transboundary pollution. Even before a party can step into a courtroom to attempt
to prove that he has suffered some injury from pollution, the party must demonstrate a right to
litigate by establishing that he has standing and access to a court clothed with the jurisdiction to
deal with the plaintiff's claim.

The more pressing problem at the moment which is all well known to each and every state of
the world is climate change. In the United Nations Framework Convention on Climate Change
(UNFCC) defined climate change as “a change of climate that is attributed directly or indirectly
to human activity that alters the composition of the global atmosphere and that is in addition to
natural climate variability observed over comparable time periods.”1

Climate Change affects each and every member of the state, an organization up to the
individual citizen of such. In the Philippines, we have been a signatory of multiple treating
concerning the protection and preservation of the Environment including prevention of climate
change. In 1997, the Philippines signed and become a signatory of the Kyoto Protocol which
implemented the objective of the UNFCCC to reduce the onset of global warming by reducing
greenhouse gas concentrations in the atmosphere to "a level that would prevent dangerous
anthropogenic interference with the climate system".2

More recently, in 2016, the Philippines signed the Paris Climate Agreement, which “reflects the
sense of global urgency needed to hold the increase in the global average temperature to 1.5ºC
above pre-industrial levels 3. This agreement upholds the long standing advocacy of the
Philippines to reduced climate change all over the country.

Climate Change is already judicially recognized. Massachusetts v. EPA4 declared that “the
harms associated with climate change are serious and well recognized”. The court cited a report
of the effects of such phenomena including “the global retreat of mountain glaciers, reduction in
snow-cover extent, the earlier spring melting of rivers and lakes, and the accelerated rate of rise
of sea levels during the 20 th century relative to the past few thousand years…”5

This problem is a complex one that has the entire world scampering for a solution for it may well
be too late for humanity if actions are not done to stop its progression. Its effects are universal

1
IPCC, 2007: Climate Change 2007: Synthesis Report, 30. Contribution on working groups I, II and II to the Fourth
Assessment Report of the Intergovernmental Panel on Climate Change
2
Article 2, Kyoto Protocol to the United Nations Framework on Climate Change. UN Treaty Database. Retrieved 27
November 2014.
3
General Purpose, Paris Climate Agreement
4
127 S.Ct. 1438, 1455 (2007)
5
Id. At 1456

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and irreversible if left untreated. From a legal perspective, climate change litigation is a very
difficult problem to resolve. Climate Change has public and private international law aspects.
For those involving the relationship of nations, public international law governs. For conflicts
involving the citizens of different countries, private international law comes into play. In
instances like this, it will be very difficult to assess the applicable law since climate change
maybe caused in one country but the effects thereof could be felt in another country. 6

There must also be a realization that environmental laws are entitled to a more liberal
interpretation for them to work. Applying the traditional approach utilized in torts, like the
concepts of causation and redressability, would ultimately weaken the system of compensation
provided in environmental laws. In the case of Georgia v. Tennessee Copper Corporation 7, the
court ruled enunciated that a state has a capacity of a quasi-sovereign that will enable it to have
an action for injury arising from any causes that might pollute its territory. It has an interest
independent of and behind the titles of its citizens, in all the earth and air within its domain.

In this matter arises some barriers that would inhibit or might inhibit a state’s or a person’s
capacity to sue for an injury arising from a Transboundary pollution, whether a climate change
or any other act that pollutes the environment. The prevalent legal issues are Access,
Jurisdiction and Standing which is always being considered in the context of transboundary
pollution.

Access is concerned with a nonresident’s utilization of a foreign jurisdiction’s judicial process to

vindicate the nonresident’s rights. Most plaintiffs who suffered damage from a source of
pollution originating outside the jurisdiction, in which damage occurred, faced formidable
obstacles in obtaining redress. The usual issue is the longstanding rule of common law which
precluded an action for damages for trespass, nuisance or negligent injury to land except in the
state where the land was situated. This rule is articulated in a leading case of Albert v. Fraser
Companies Limited,8 wherein the court ruled that, “an action founded on trespass to reality in
foreign country whether the title does or does not come into question cannot be tried here, by
virtue of a long standing principle of lex loci delicti” 9.

In US, courts have held that their courts have jurisdiction to try an action involving damages to
land located in a foreign jurisdiction provided that the cause of that damage has a significant
touchpoints within their jurisdiction. 10
6
Pe Benito, Conflict of Laws, pp. 387-388
7
206 U.S. 230 (1907)
8
1 D.L.R. 329 (1937) (C.A. N.B.)
9
Id.
10
See Mannville Co. v. City of Worcester, 138 Mass. 89, 138 (1884) (US) (wherein Justice Holmes states that he
sees no reason why an act in one state followed by injurious consequences in another state should not be the subject
of an action in the state where the original act was committed). See also Randle v. Delaware, 21 F. Cas. 6 (C.C.E.D.
Pa. 1849) (No. 12,139); Thayer v. Brooks, 17 Ohio 489 (1848).

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This is the essence of the most significant relationship theory which the US courts adapt in
dealing with conflict of laws problems including transboundary pollution.

The jurisdictional considerations referred to above are based to some extent on the distinctions
between actions in rem and actions in personam. With respect to the latter (i.e., wherein the
court acquires jurisdiction over the defendant himself in contrast to jurisdiction over his property),
most foreign courts have accepted jurisdiction, provided that the tort complained of is actionable
in both jurisdictions. If it could not be the subject of an action in the jurisdiction where it was
committed, the foreign courts will also decline jurisdiction. 11

This latter principle was enunciated by Justice Willes in Phillips v. Eyre, wherein he stated,
"Quae accessorium locum obtinent extinguunter cum principales res peremptae sunt." 12 In
other words, a right of action, whether it arises from contract governed by the law of the place or
wrong, is equally the creature of the law of the place and subordinate thereto.

In the Philippines, in order to found a suit for a wrong alleged to have been committed abroad,
two conditions must be fulfilled; First, the tortuous act which ripened in another state must be
actionable in the law of the forum, the Philippines; and second, the act must not have been
justifiable by the law of the place where it was committed.13

At this juncture, we can safely say that the Philippines plays an active run against pollutions
within its territory as enunciated in the case of Victoria Segovia v. Climate Change
Commission,14 wherein the court actively laid out the requisites and the remedy of the Writ of
Kalikasan. It was also defined as an extraordinary remedy covering environmental damage of
such magnitude that will prejudice the life, health or property of inhabitants in two or more cities
or provinces. It is designed for a narrow but special purpose: to accord a stronger protection for
environmental rights, aiming, among others, to provide a speedy and effective resolution of a
case involving the violation of one's constitutional right to a healthful and balanced ecology that
transcends political and territorial boundaries, and to address the potentially exponential nature
of large-scale ecological threats.15

At this point we can safely say that this remedy is available as long as the effect of pollution or
the environmental impact of an action made by a non-state party can be felt by the country’s
inhabitants, whether the cause of which is out of the nation, in order to protect and preserve our
environmental resources. This has been effectively shown in the recent case of Abogado, et.al
v. Department of Environment and Natural Resources, et. al,16 the court granted the issuance of

11
Phillips v. Eyre, L.R. 6 Q.B. (1870) (UK)
12
Id.
13
Saudi Arabian Airlines v. Court of Appeals and Milagros Morada, G.R. No. 122191, October 08, 1998
14
Victoria Segovia, et.al. v. The Climate Change Commission, G.R. No. 211010, March 17, 2017
15
Paje v. Casiflo, G.R. Nos. 207257, 207276, 207282 & 207366, February 3, 2015, 749 SCRA 39, 81
16
Abogado, et.al v. Department of Environment and Natural Resources, et. al, G.R. No. 246209, May 03, 2019

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writ of kalikasan to protect, preserve, rehabilitate, and to restore the marine environment in
Scarborough Shoal, Ayungin Shoal, and Panganiban Reef.

Another legal issue in transboundary pollution is the Courts jurisdiction over the subject matter
of the case and over the person of the parties. Notwithstanding the myriad of legalistic rules and
principles relating to the "jurisdiction" of the courts in the transborder context, many of which
tend to impede and in some cases completely thwart the right of the private individual to take
the appropriate action, particularly in circumstances where the state has failed to adequately
protect his interests.

At the state level in the United States, environmental protection legislation allowing private
citizens direct access to the courts, through what are commonly referred to as citizens' suits,
has been enacted in several states, including Michigan, Minnesota, Indiana, Florida and
Massachusetts. There are also statutory provisions at the federal level, which provide a basis
for certain forms of relief at the suit of the private litigant. It became increasingly evident,
however, that without substantive reform of the restrictive local action rules, victims of
transboundary pollution would continue to be denied access to the courts of the jurisdiction
where the pollution originated.

In this country the same environmental protection for private citizen was also provided and
made possible by the Rules of Procedure for Environmental Cases effective April of 2010. This
judicial procedure gave a private citizen direct access to court through a citizen suit, where 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. 17

Whether plaintiffs who suffer injury from transboundary pollution can sue in the jurisdiction in
which they reside, or in which damages are sustained, depends on whether domestic courts can
assert jurisdiction over a polluter located ex juris.

A number of U.S. states have enacted long-arm statutes enabling the state to acquire in
personam jurisdiction over a defendant located ex juris, and any judgment obtained is
enforceable within the United States under that country's full faith and credit rule. In the
Philippines however, long-arm statute is only applicable to limited cases and could only be
availed of only where the (a) the court action “affects the personal status of the plaintiff”, (b) the
case “related to, or the subject of which, is property within the Philippines, in which the
defendant has a claim or interest, actual or contingent” c) when “the relief demanded consists,
wholly or in part, of excluding the defendant from any interest” in any property within the
Philippines; or (d) the property of the defendant has been attached in the Philippines. 18

17
Section 5, Rule 2, Rules of Procedure for Environmental Cases, A.M. No. 09—6-8-SC
18
Section 15, Rule 14, Revised Rules of Court; De Midgeley v. Ferandos, G.R. No. L-34313, May 13, 1975, 64 SCRA
23; Cariaga, et al. v. Malaya, et al., G.R. No. L-48375, Aug. 13, 1986, 143 SCRA 441

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Generally, matters of remedy and procedure such as those relating to the service of process
upon a defendant are governed by the lex fori or the internal law of the forum or the country that
promulgated the foreign judgment.19 Therefore, the implication is that, so long as service is
made in compliance with the rules of the foreign jurisdiction, it will be considered as sufficient. In
the old case of Boudard, et al, v Tait, however, the Philippine Supreme Court, citing US
jurisprudence, ruled that in actions in personam, ‘[t]here must be actual service within the state
of notice upon him or upon someone authorized to accept service for him’.20 Therefore, actions
arising from a transboundary pollution, may be tried here in our forum so long as the plaintiff will
be able to established his locus standing and the jurisdiction of the court be acquired.

Even though a court may have jurisdiction over a matter, the plaintiff must establish some
judicially recognized wrong or, if a public right has been infringed upon, the individual or
organization must demonstrate a direct personal interest in the subject matter of the litigation
before the court will recognize the claim and grant standing to the litigant. In Galicto v. Benigno
Simeon Aquino III, the court enunciated that a party is allowed to "raise a constitutional
question" when (1) he can show that he will personally suffer some actual or threatened injury
because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the
challenged action; and (3) the injury is likely to be redressed by a favorable action.21

In environmental cases, locus standi 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.22

Recently, the Court passed the landmark Rules of Procedure for Environmental Cases, which
allow for a "citizen suit," and permit any Filipino citizen to file an action before our courts for
violations of our environmental laws. 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 v. Factoran, 23 the court 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." Furthermore, the court 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.” 24

19
St Aviation Services Co v Grand International Airways Inc, 505 SCRA 30, 35 (2006)
20
Boudard, et al, v Tait, 67 Phil. 70 (1939)
21
Galicto v. Benigno Simeon Aquino III, G.R. No. 193978, February 28, 2012
22
Resident Marine Mammals of the Protected Sea Scape Tanon Strait v. Secretary Angelo Reyes, G.R. No. 180771,
April 21, 2015
23
Oposa v. Factoran Jr., 224 scra 792
24
Id.

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Access to the courts for the purpose of obtaining private redress for injuries sustained as a
result of transboundary pollution may be more feasible, and indeed more productive, in the
context of civil rather than quasi-criminal causes of action. As mentioned previously, the concept
of private prosecutions is restricted to use in the Philippines and is not available to Filipinos
seeking redress for a statutory offense committed in other State. Moreover, the remedy
available to the successful private prosecutor is often of little consequence 25 where serious
injury to property or health has occurred, and the prospect of obtaining adequate compensation
(damages) or an end to the injurious conduct (injunctive relief) is usually of more importance to
the individual.

To a large extent, many of the civil law principles applicable to environmental problems have
been replaced by statute; however, several civil law causes of action are still available for use
by individual citizens or environmentalist to obtain effective redress in limited circumstances.
These include private and public nuisance, riparian rights, negligence, trespass and strict
liability.

With reference to transboundary pollution, it can be gleaned that an action for private nuisance
would be of any significant practical use to a citizen ex juris, and then only is serious
impediments concerning "locus standi" and jurisdiction mentioned previously can be overcome.

The question of "standing" pervades the law of nuisance because of the rather arbitrary
distinction between public and private nuisance, long-sanctioned by the courts in both
Philippines and the U.S.26 In both jurisdictions, an action for public nuisance, defined broadly as
an unreasonable interference with a right common to the general public at large, must be
commenced at the instance of or with the consent of the appropriate public official.

Public officials, however, are often reluctant to step into the breach created by the private
individual's lack of standing, for in many instances the perpetrator of the nuisance fulfills other
social or economic objectives of perceived greater importance, thus inhibiting intercession on
the part of the state. For example, the government may have actively encouraged a particular
industry to locate in an area of high unemployment through tax incentives or outright grants, and
would be reluctant to prosecute if such prosecution would in effect undermine the social or
economic goal of reducing unemployment.

Legal impediments which may have existed in the past with respect to the recovery of damages
and cleanup costs from cross-border environmental pollution are being removed gradually by
many jurisdictions in what may be characterized as a more focused attempt to prevent or curtail
polluting activities and to ensure that those responsible bear the costs (in real terms) associated
25
In most cases, the accused, upon being convicted of a “statutory offense”, faces a fine or the possibility of
imprisonment
26
For a comprehensive discussion of nuisance actions, see John McLaren, The Common Law Nuisance Actions and
the Environmental Battle - Well Tempered Swords or Broken Reeds, 10 Os- GOODE HALL L.J. 505 (1973).

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therewith.

In recent years, there has been recognition by the global community at large that any hope of
success in the ongoing battle to preserve what is left of a once pristine environment depends
upon increased cooperation among the nations and states of both developed and developing
countries. This cooperation includes the right of unrestricted access by non-residents to the
court system having jurisdiction over the party responsible for the polluting activity, and an effort
by all jurisdictions to both enact and enforce more stringent environmental standards.

The goal of achieving a measure of sustainable development in accordance with the principles
outlined in the Brundtland Report in Our Common Future which highlighted three fundamental
components to sustainable development: environmental protection, economic growth and
social equity.27 The concept of sustainable development focused attention on finding
strategies to promote economic and social advancement in ways that avoid environmental
degradation, over-exploitation or pollution, and sidelined less productive debates about
whether to prioritize development or the environment, has now assumed an unprecedented
degree of urgency, and the survival of future generations is more than ever dependent upon our
ingenuity and collective resolve.

Environmental rights simply put can be regarded as basis of all rights. They are rights that are
supremely scared in that they form an amalgamation of all basic rights without which enjoyment
or the basis of other legally enforceable rights will be meaningless. Environmental rights
embody issues inter-generational justice and responsibility encapsulated in the concept of
sustainable development. They are therefore rights which may not be deprived or breached
without great affront to justice.

As a concluding matter, the judiciary is vested with enormous powers and functions28. This it
has tried in the past years to discharge. Within the realms of environmental protection, the
judiciary is, yet to enthrone an efficient and effective environmental protection mechanism to the
extent, as it is now obtainable in a foreign jurisdiction. Environmental problems do not stand still,
their impacts at times are not easily noticeable, but they are there. We should realize that the
earth resources we use today and pollute the environment in the end, we did not inherit from our
fathers; we are holding them in trust for the next generations. We should therefore do something
to protect the environment.

As the Georgia Court mentioned in the case of Paker v. Parker, “… if we never do anything
which has not been done before we shall never get anywhere. The law will stand still whilst the
rest of the world goes on and this will be bad for both.” 29 Time is running out as we have no
other home than earth.
27
“Our Common Future”, The Brundtland Report
28
See Article VIII, The 1987 Philippine Constitution
29
Parker V. Parker, 229 Ga. 496 (1972)

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