REPUBLIC OF THE PHILIPPINES FIRST JUDICIAL REGION REGIONAL TRIAL COURT, BRANCH __ SITTING AS AN ENVIRONMENTAL COURT Baguio City

CORDILLERA GLOBAL NETWORK REPRESENTED BY ITS PRESIDENT GLORIA ABAEO; CORDILLERA PEOPLES ALLIANCE REPRESENTED BY ITS SECRETARYGENERAL ABIGAIL B. ANONGOS; CORDILLERA INDIGENOUS PEOPLES LEGAL CENTER, REPRESENTED BY ITS EXECUTIVE DIRECTOR RHODA DALANG-GARCIA; CORDILLERA ECOLOGICAL PINE TREE CENTER, REPRESENTED BY ITS EXECUTIVE DIRECTOR, DR. MICHAEL BENGWAYAN; LEON ALTOMONTE, GABRIELA ALTOMONTE AND AENEAS ALTOMONTE, REPRESENTED BY THEIR FATHER KARLO MARKO ALTOMONTE; KATHLEA FRANCYNN GAWANI D. YAGOT AND LEANDRO KIERAN LUGAT D. YAGOT III, REPRESENTED BY THEIR MOTHER, CHERYL L. DAYTECYAGOT; ZACHARY T. DISTOR AND AGATHA ZITA T. DISTOR, REPRESENTED BY THEIR FATHER, MILO S. DISTOR; JUSTICE YVONNE D. DONAAL REPRESENTED BY HER FATHER CHRISTOPHER DONAAL;TRICIA KATRINA M. ARNEDO AND MARGARET JALREYE M. ARNEDO, REPRESENTED BY THEIR MOTHER MA. TERESA M. ARNEDO; KENSWORTH CORPUZ, REPRESENTED BY CARLITO C. TAAWAN; MARIE A. BALANGUE, MIGUEL ARVISU, GIDEON OMERO, PAUL ALLAIN R. ISICAN, KARMINN CHERYL DINNEY D. YANGOT, CRISTINA LAPPAO, NELSON LAPPAO, FLORENDA PEDRO, EDGAR Z. KAWIG, JUDITH G. FANAO, JULIO PUNAY, ARNOLD ABRIL, JEMELYN CORPUZ, MARY LEITH SUMITRA GUTIERREZ, ANDREA M . COSALAN, RHADA JUNE MANTILEZ, NELSON JOSEPH S. ALABANZA, RHIS BAYUCCA, JOSE OLARTE II, SONIA F. GALANG, SHIELO G. SABAOT, ANTHONY B. LAKING, DONATELA S. R. MOLINTAS, RUTH W. DEMOT, ROCKY A. CAJIGAN, RONALDO VILLAMOR, GLENN V. VILLAMOR, FIDEL DEMOT, SCOT MAGKACHI SABOY, ANNIELYN PUCKING, LUCIA B. RUIZ, CHESTER LAB-ING, MARISSA A. DERIJE FAITH MARIETTE DAO-AY, GABRIEL CRISTOBAL IV, ISIDRO GAYO, EDWIN A. NGINA, JASON DOMLING, J.P. PUNO, JULIA A. BAEYENS, WESLEY E. SAYUD, CLIFFORD M. LORENA, JERRY MAYONA, ZABRINA D. IBASCO, PRINCESS EUNICE CABURAO, ZITA J. GONGON, ALBERTO ROMAR R. ORDOA, MAURICIO PITAG, RYLYN JOHAN A. DANGANAN, JEFFREY C. CHIU, MICHAEL ANGELO A. SOTERO, LINDA ALISTO, GREGORY P. RUGAY, VANESSA B. OLARTE, BRIAN BATONG, MILAGROS LIWANAG JOSE, BABYLYNN M. DEGAY, EDEN JARLAWE T. VIRGINIO, IVY JOY D, BUENAOBRA, RICO M. GUTIERREZ, JOHN PAWI, CARMELLIE ANJOY M. SALVADO, JOAN MULLER, ROBERTO R. OCAMPO, DINAH DAYTEC AGCAOILI, CARMEN DAYTEC, ERVEEN ROSS PALMA, BUMBO VILLANUEVA, KHRISTINE E. MOLITAS, KATHLEEN G. BUGNOSEN, GLORIA B. LIMPIN, REY ANGELO E. AURELIO, RESTITUTO REFUERZO,
Page 1

MARCH FIANZA, FLORABEL M. SALES, DEAN MICHAEL CUANSO, BENJAMIN BIDANG, JR., JEANNIE MAY DAMOSLOG, JANICE M. DONAAL, CRISTOBAL SANTIAGO, ETHAN ANDREW VENTURA, MA. CRISTINA BALAJADIA, RODELIZA ABELLA ALTAMONTE, BEDE BAWAYAN, JR., CHRISTEL PAY SENG, PAUL LESTER DONAAL, VIROLABEL LADIO, HENDRIX SANCHEZ, GASPAR ELIZUR DONAAL, MICHAEL VINCENT CABRERA, SANTOS BAYUCCA, ELMER M. DATAYAN, ASH Y. VELASCO, POLEEN CARLA C. ROSITO, MIGHT GUPIT, JULIUS B. MANABENG, JENNY GRACE M. ABOEN, JOJO LA MARIA, VLADIMIR D, CAYABAS, JOHN LAKING, CHARLENE DAVID, GERALDINE D. CACHO, PERRY JOHN P. MENDOZA, HONORIO B. SAGMAYAO, RODOLFO RUDZ A. PARAAN, JOHN ERIC JOSEPH S. AGUILAR, CERI PAUL A. LOMAS-E, HECTOR ZARATE KAWIG, RICHARD DEAN F. BASA, MICHELLE B. SAMUEL , FERDY K.BAYASEN , AND SILVESTRE QUINTOS, Plaintiffs,

-VERSUS-

CIVIL CASE NO. _______________ FOR: INJUNCTION WITH PRAYER FOR TEMPORARY ENVIRONMENTAL PROTECTION ORDER

SEC. RAMON J.P. PAJE, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES; ATTY. JUAN MIGUEL T. CUNA, IN HIS CAPACITY AS THE DIRECTOR OF THE ENVIRONMENTAL MANAGEMENT BUREAU OF THE DEPARTMENT OF THE ENVIRONMENT AND NATURAL RESOURCES AND SM INVESTMENT CORPORATION; SEC. ROGELIO SINGSON, IN HIS CAPACITY AS THE SECRETARY OF THE DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, Defendants. x----------------------------------------------------------------------x

COMPLAINT
COME NOW, PLAINTIFFS, by and through the undersigned counsels, before and unto this Honorable Court, most respectfully state:

Exordium
Page 2

The Philippines is one of the few States in the world whose fundamental laws prompt them to respect, protect, promote and fulfil environmental rights. Specifically, the Philippine Constitution provides that (t)he State shall advance the right of the people to a balanced and healthful ecology in accordance with the rhythm and harmony of nature.1 This State policy finds expression in several statutes passed by Congress and in Administrative Orders, Memorandums and Executive Orders of the Executive Department to enforce environmental justice. The Philippines is said to be among the members of the international community with the best environmental laws aside from being a party to major international environmental conventions or treaties and other instruments which form part of our domestic law. One such convention is the United Nations Framework Convention on Climate Change (UNFCC) under which parties committed to (t)ake climate change considerations into account, to the extent feasible, in their relevant social, economic and environmental policies and actions, and employ appropriate methods, for example impact assessments, formulated and determined nationally, with a view to minimizing adverse effects on the economy, on public health and on the quality of the environment, of projects or measures undertaken by them to mitigate or adapt to climate change. 2 The constitutional moment that gave birth to the 1987 Constitution was set during a political period when the nation was newly emergent from the cocoon of a tyrannical regime that trampled upon democratic institutions and regarded people and communities as mere passive objects in the development process. It is no wonder that this Constitution states that (t)he right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms.3 The aftermath witnessed the enactment of the Local Government Code which enshrines mandatory public consultation on projects affecting communities, including those with potential externalities deleterious to the environment. It declares as a State policy the requirement for all national agencies and offices to conduct periodic consultations with appropriate local government units, nongovernmental and people's organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions.4Specifically, the law provides: SECTION 26.Duty of National Government Agencies in the Maintenance of Ecological Balance. It shall be the duty of every national agency or governmentowned or controlled corporation authorizing or involved in the planning and implementation of any project or program that may cause pollution, climatic change, depletion of nonrenewable resources, loss of crop land, rangeland, or forest cover, and extinction of animal or plant species, to consult with the local government units, nongovernmental organizations, and other sectors concerned and explain the goals and objectives of project or program, its impact upon the people and the community in terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof.
1
2

Art. 4 (f) 3 Sec. 16, Art. XIII 4 Sec. 2 (c), Declaration of Policy

Sec. 16, Art. II, Philippine Constitution

Page 3

In ratifying the UNFCCC, the Philippines pledged to promote and facilitate at the national and, as appropriate, sub-regional and regional levels, and in accordance with national laws and regulations, and within their respective capacities... public participation in addressing climate change and its effects and developing adequate responses...5 Thus, under the DENR Administrative Order (DAO) No. 2003-30,6 an Environmentally Critical Project, regardless of location should be subjected to mandatory public consultation prior to the issuance of an Environmental Compliance Certificate (ECC). The same DAO requires the project proponent to prove that the project is socially acceptable.7 The Philippines also adopted the Rio Declaration which declares that(i)n order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.8 It also underscores that (e)nvironmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority. 9 The Convention on Biological Diversity provides that States parties which include the Philippines shall (i)ntroduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate allow for public participation in such procedures. 10 To be very sure, the environmental impact assessment is not treated by the law as a mere procedural technicality to comply with; it is a substantive requirement to guarantee environmental justice. It goes without saying that the process must secure "the right of the people to a healthful and balanced ecology." These international instruments place the burden of saving the environment not only on States but also on business and private individuals. As the 1972 Stockholm Declaration or Declaration of the United Nations Conference on the Human Environment states: To achieve this environmental goal will demand the acceptance of responsibility by citizens and communities and by enterprises and institutions at every level, all sharing equitably in common efforts. Individuals in all walks of life as well as organizations in many fields, by their values and the sum of their actions, will shape the world environment of the future. Nobody has the right to degrade and destroy the environment. Thus, even the use of private property must yield to general welfare considerations. Customary international law holds that salus populi est suprema lex (the welfare of the people is the supreme law) and sic utere tuo ut alienum non laedas (use your own so as not to injure another).Police power is superior over property right assertions when the exercise of the right of ownership comes at the expense of the general welfare. The environmental situation in the Philippines has exposed the population to perils generated by climatechange and other environmental risks. The ambient air quality especially in the countrys major cities including Baguio is piteous and contributes to rising incidence of lung diseases. This forced the hand of the State to pass the Clean Air Act of 1999 and, through the DENR, to designate certain areas including Baguio City as airsheds.11

5 6

See Art. 6 Particularly Sec. 5.3 of Article 2 7 Section 5.4.2.d 8 Principle 4 9 Principle 17 10 Principle 14 (a) 11 Environmental Management Bureau, Department of Environment and Natural Resource, 2002 National Air Quality Status Report; accessed on 21 January 2012 from http://emb.gov.ph/eeid/publicationfiles/airqualitystatusreport/partone.pdf

Page 4

The Philippine forest cover has been greatly diminished due to a variety of factors,12 including natural calamities and large-scale development projects. Of late, flashfloods and landslides have altered landscapes and claimed hundreds of lives and properties costing millions. To complement the laws on logging, President Benigno S. Aquino III issued Executive Order No. 23 placing all national and residual forests under a total log ban in the wake of several environmental disasters affecting different parts of the country due to logging and other extractive industries. Prior to this, the DENR issued Memorandum 2005-19Authorizing the Regional Executive Director of the DENR Cordillera Administrative Region to issue cutting permits involving thirty (30)trees or less on 17 November 2005 whichremains in force. The said Memorandum empowers the Regional Director to issue a permit for the cutting of not more than 30 trees in one area on private lands on condition that these trees pose imminent danger to lives, and that (t)he barangay head and mayor concerned have endorsed the request to cut trees, among others. So urgent are the environmental concerns of the country that the government incorporated ecological balance as the fourth element that constitutes national security in its National Security Plan. In this plan, the government says: The national survival rests upon the effective conservation of our natural environment in the face of industrial and agricultural expansion and population growth. This dimension of national security seeks to support development that is environmentally sustainable for the benefit of the nation and the people who depend on it.13(Underscoring supplied) Historically, Baguio City is known as the City of Pines. Although there is no official designation as such, it is an identity that the national government and the entire Filipino people recognize. Needless to state, this identity is derived from its pine trees which are part of the citys natural heritage. This heritage is collectively owned by the people and the whole country in view of the citys designation as the Summer Capital of the entire Philippines under the Act of the Philippine Commission on 1 June 1903 not the least because of the pine trees that keep its temperature cool. Rep. Act No. 10066 or the Philippine National Cultural Heritage Law protects this heritage. This law requires that any intervention works and measures on national historical landmarks, sites or monuments shall be undertaken only upon prior approval of the(National Commission for Culture and Arts) through the appropriate cultural agency which shall supervise the same. The Commission shall approve only those methods and materials that strictly adhere to the accepted international standards of conservation. 14 Unfortunately, Baguios environmental status is going downhill. A 2003 World Bank Study revealed that its ambient air quality is piteous. Constant monitoring by the Environmental Management Bureau confirms this. The central business district is especially in a state of poor environmental health and the situation is chronic. This means every regulatory measure, including the use of police power to regulate the exercise of proprietary rights, must be resorted to by the State and the local
12

World Bank, Philippine Environment; accessed on 21 January 2012 from http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/EASTASIAPACIFICEXT/EXTEAPREGT OPENVIRONMENT/0,,contentMDK:20266328~menuPK:3558267~pagePK:34004173~piPK:34 003707~theSitePK:502886,00.html 13 Republic of the Philippines, 2010-2016 National Security Policy: Securing the Gains of democracy; accessed on 15 February 2012 from http://www.gov.ph/downloads/2011/08aug/NATIONAL-SECURITY-POLICY-2011-2016.pdf 14 Sec. 15

Page 5

government to abate the environmental decline of the countrys City of Pines and Summer Capital. Now, SM Investment Corporation, a giant corporation wants to snuff the life out of 182 pine and alnus trees right at the heart of the Central Business District, to accommodate its corporate expansion project. The citys residents have spoken out in several forums and mass actions to express popular dissent. The Department of Environment and Natural Resources is the agency primarily mandatedto protect the environment within the framework of sustainable 15 development. Its declared mission is to mobilize our citizenry in protecting, conserving and managing the environment and natural resources.16And yet, instead of enforcing environmental laws, it flouted them demonstrating that it easily yields to the economic power of the business interests it regulates. Similarly, other government offices that should be the first to speak out against corporate collateralism have exhibited bureaucratic inertia. This compels civil society organizations and residents to take a route that the Philippine legal system allows them: to file this instant complaint. And as they do, they ask, echoing Ansel Adams, Why do we have to fight our own government to save the environment? Nature of the Action

1. This is a complaint in a civil action under the Rules of Procedure for Environmental

Cases involving enforcement or violations of environmental and other related laws, rules and regulations mentioned in the preceding Exordium and in the succeeding factual allegations.
2. Plaintiffs seek the permanent injunction of Defendants project of expanding its mall

on Luneta Hill, Baguio City. Plaintiffs likewise ask this Honorable Court to issue a temporary environmental protection order (TEPO).

The Parties
3. Plaintiffs

CORDILLERA

GLOBAL NETWORK , CORDILLERA PEOPLES INDIGENOUS PEOPLES LEGAL CENTER, and non-government PINE TREE CENTER are

ALLIANCE, CORDILLERA

CORDILLERA ECOLOGICAL

organizations duly existing under the laws of the Philippines.They are represented in this suit by their respective Executive Directors and/or heads.
15 16

Sec. 4, Executive Order 192 Department of Environment and Natural Resources, Website; accessed on 21 January 2012 from http://www.denr.gov.ph/index.php/about-us/mission-vision.html

Page 6

4. Plaintiffs

LEON

ALTOMONTE,

GABRIELA

ALTOMONTE

AND

AENEAS

ALTOMONTE, KATHLEA FRANCYNN GAWANI D. YAGOT, LEANDRO KIERAN LUGAT D. YAGOT III, ZACHARY T. DISTOR, AND AGATHA ZITA T. DISTOR, JUSTICE YVONNE D. DONAAL, TRICIA KATRINA M. ARNEDO, and MARGARET JALREYE M. ARNEDAare all minors represented by their parents KARLO MARCO ALTOMONTE, CHERYL L. DAYTEC-YAGOT, MILO S. DISTOR, CHRISTOPHER D. DONAAL, and MA. TERESA ARNEDO, respectively.
5.

Plaintiffs MARIE A. BALANGUE, MIGUEL ARVISU, GIDEON OMERO, PAUL ALLAIN R. ISICAN, KARMINN CHERYL DINNEY D. YANGOT, FANAO, JULIO PUNAY, ARNOLD ABRIL, JEMELYN CORPUZ, CRISTINA LAPPAO, NELSON LAPPAO, FLORENDA PEDRO, EDGAR Z. KAWIG, JUDITH G. MARY LEITH SUMITRA GUTIERREZ, ANDREA M . COSALAN, RHADA JUNE MANTILEZ, NELSON JOSEPH S. ALABANZA, RHIS BAYUCCA, JOSE OLARTE II, SONIA F. GALANG, SHIELO G. SABAOT, ANTHONY B. LAKING, DONATELA S. R. MOLINTAS, RUTH W. DEMOT, ROCKY A. CAJIGAN, RONALDO VILLAMOR, GLENN V. VILLAMOR, FIDEL DEMOT, SCOT MAGKACHI SABOY, ANNIELYN PUCKING, LUCIA B. RUIZ, CHESTER LAB-ING, MARISSA A. DERIJE FAITH MARIETTE DAO-AY, GABRIEL CRISTOBAL IV, ISIDRO GAYO, EDWIN A. NGINA, JASON DOMLING, J.P. PUNO, JULIA A. BAEYENS, WESLEY E. SAYUD, CLIFFORD M. LORENA, JERRY MAYONA, ZABRINA D. IBASCO, PRINCESS EUNICE CABURAO, ZITA J. GONGON, ALBERTO ROMAR R. ORDOA, MAURICIO PITAG, RYLYN JOHAN A. DANGANAN, JEFFREY C. CHIU, MICHAEL ANGELO A. SOTERO, LINDA ALISTO, GREGORY P. RUGAY, VANESSA B. OLARTE, BRIAN BATONG, MILAGROS LIWANAG JOSE, BABYLYNN M. DEGAY, EDEN JARLAWE T. VIRGINIO, IVY JOY D, BUENAOBRA, RICO M. GUTIERREZ, JOHN PAWI, CARMELLIE ANJOY M. SALVADO, JOAN MULLER, ROBERTO R. OCAMPO, DINAH DAYTEC AGCAOILI, CARMEN DAYTEC, ERVEEN ROSS PALMA, BUMBO VILLANUEVA, KHRISTINE E. MOLITAS, KATHLEEN G. BUGNOSEN, GLORIA B. LIMPIN, REY ANGELO E. AURELIO, RESTITUTO REFUERZO, MARCH FIANZA, FLORABEL M. SALES, DEAN MICHAEL CUANSO, BENJAMIN BIDANG, JR., JEANNIE MAY DAMOSLOG, JANICE M. DONAAL, CRISTOBAL BALAJADIA, SANTIAGO, RODELIZA ETHAN ABELLA ANDREW VENTURA, BEDE MA. CRISTINA JR., ALTAMONTE, BAWAYAN,

CHRISTEL PAY SENG, PAUL LESTER DONAAL, VIROLABEL LADIO, HENDRIX SANCHEZ, GASPAR ELIZUR DONAAL, MICHAEL VINCENT CABRERA, SANTOS BAYUCCA, ELMER M. DATAYAN, ASH Y. VELASCO, POLEEN CARLA C.
Page 7

ROSITO, MIGHT GUPIT, JULIUS B. MANABENG, JENNY GRACE M. ABOEN, JOJO LA MARIA, VLADIMIR D, CAYABAS, JOHN LAKING, CHARLENE DAVID, GERALDINE D. CACHO, PERRY JOHN P. MENDOZA, HONORIO B. SAGMAYAO, RODOLFO RUDZ A. PARAAN, JOHN ERIC JOSEPH S. AGUILAR, CERI PAUL A. LOMAS-E, HECTOR ZARATE KAWIG, RICHARD DEAN F. BASA, MICHELLE B. SAMUEL , FERDY K.BAYASEN , AND SILVESTRE QUINTOS, are all of legal age and residents of the City of Baguio. 6. All of the above plaintiffs may be served with orders and other court processes at the undersigned counsels office address at No. 57 Lower Rock Quarry, Baguio City, Philippines;

7.

Defendant RAMON J.P. PAJE (PAJE)is of legal age, Filipino, Secretary of the Department of Environment and Natural Resources and with office address at Visayas Avenue, Diliman, 1100 Quezon City. The DENR is primarily mandatedfor the conservation, management, development, and proper use of thecountrys environment and natural resources. He may be served with summons,papers and other legal processes at DENR Building, Visayas Avenue, Diliman,1110 Quezon City, Philippines.

8. Defendant Atty. JUAN MIGUEL CUNA is the Director of the Environmental

Management Bureau of the DENR which was elevated into a line bureau of the DENR pursuant to Republic Act No. 7942. His office is located at DENR Compound, Visayas Avenue, Quezon City, Philippines where he may be served with summons, papers, and other legal processes.

9.

Defendant SEC. ROGELIO SINGSON is the Secretary of the Department of Public Works and Highways (DPWH). He may be served with summons and other legal processes at the DPWH Building, Port Area, Intramuros, Manila.

10. Defendant SM Investment Corporation(SMIC hereafter) is a stock profit-

corporation doing business in the Philippines. It has a branch in Baguio City and may be served with summons and other court processes in Luneta Hill, Upper Session Road corner Governor Pack Road, Baguio City.

Statement of Facts
Page 8

11. On 14 June 2011, private defendant SMIC through one Mr. Bien C. Mateo, Vice-

President for Mall Operations wrote a letter to the City Government expressing the companys desire to expand its mall located on Luneta Hill, Baguio City.
12. On 11 July 2011, the City Government of Baguio, through Mayor Mauricio G.

Domogan indorsed the desire of SMIC to the office of public defendant Paje. The same indorsement required SMIC to conduct consultations and to secure an environmental compliance certificate. A copy of the indorsement letter is hereto attached as Annex A and made an integral part hereof.

13. Subsequently, SMIC applied for a permit to cut and earth-ball Benguet pine and

alnus trees over a parcel of land on Luneta Hill which is still part of the public domain. That the land is public is presumed from the absence of a certificate of title over the land in the name of SMIC as stated in the letter reply of Guerrero A . Felipe, Register of Deeds of Baguio City to Leonardo A Balicdan dated January 26, 2012 and his signed written note on the letter of Gloria Abaeo dated February 21, 2012, copies of which are hereto attached as Annexes B and B-1 respectively.

14. Defendant Paje approved the application through a Memorandum dated 17 October

2011. The permit grants pine and alnus Trees.

SMIC the authority to cut down 43 alnus trees and Consequently, Dir. Clarence Baguilat, the Regional

earthball 97 naturally grown Benguet pine trees including 42 saplings of Benguet Executive Director of DENR-CAR, wrote a letter dated October 27, 2011 addressed to Engr. Bien C. Mateo, VP-Operations SM Super Malls, Baguio City, informing the latter of the approval of the application for a tree cutting and earthballing. A copy of the approval of the application is hereto attached as Annex C and a copy of the letter Granting the request for a Tree Cutting-Earth Balling request is hereto attached as Annex D and are made integral parts hereof.
15. Subsequently, Engr. Oscar Flores, Baguio City Building and Architecture Official

issued a building permit in favour of SMIC.Engr. Flores relied on the representations of SMIC that it complied with all requirements under the law. A copy of the building permit is hereto attached as Annex E and made an integral part hereof. 16. One of the conditions in the tree cutting and/or earthballing permit is that SMIC should conduct meetings or public consultations with LGUs, NGOS, and other
Page 9

stakeholders in the area certificate.

and obtain the necessary environmental compliance

17. However, no public announcement of any consultation was ever made to invite the

public and concerned civil society organizations to participate. If ever there were consultations with groups or individuals, these were done clandestinely and are not even to be regarded as substantial compliance with the mandatory public consultation requirement under the Local Government Code,17 the Constitution and even international law.

18. Being a major development project to be implemented at the central business

district of Baguio City at that, the SMIC expansion is classified under the provisions of the Philippine Environmental Impact Assessment System (PEIAS) as a Category A project or an Environmentally Critical Project (ECPs) which may pose significant impacts at certain threshold of operations. As such the developer should secure an environmental compliance certificate (ECC), which condition was likewise indicated in the permit granted by Sec. Paje.

19. Under DENR Administrative Order (DAO) No. 2003-30,18an Environmentally Critical

Project, regardless of location, such as the expansion project of SMIC subjected to

should be

mandatory public consultation prior to the issuance of an

Environmental Compliance Certificate (ECC). The Local Government Code likewise requires public consultation for projects of the same magnitude as SMICs proposal.

20. No public consultation was conducted among the residents of Baguio City.

21. The same DAO mandates under its Section 5.4.2. that the project proponent prepare

a detailed assessment of the proposed mitigation and enhancement measures for the identified environmental impacts and risks. No such assessment was made by SMIC.

22. Under Section 5.4.2.d of the same DAO, the project proponent should prove that the project is socially acceptable.

17 18

Particularly Chapter III Article I, Sec. 26 Particularly Article II, Sec. 5.3

Page 10

23. The project is not acceptable to the people of Baguio. As proof of this, a petition

electronically signed online by more than 7300 individuals and its written counterpart signed by more than 10,000 individuals expressing their opposition to the project addressed to His Excellency President Benigno Aquino, was submitted before the the Honorable Members of the City Council.

24. Likewise, the local business establishments upon whom the City Government relies

for its capital outlay as they pay their taxes locally publicly expressed their opposition to the plan to cut down/earth-ball trees.

25. On 20 January 2012, a huge rally was staged by Baguio residents to demonstrate

public opposition to the project. This was one of the biggest mass actions ever to take place in the city of Baguio in its century-old history. The sheer size and determination of the crowd compelled the City Government to deploy several members of the police force to secure SMIC from unfounded suspicions that the people would take over the mall. Photographs taken of the said rally are hereto attached as Annex F and series.

26. On 5 February 2012, a tree-planting activity and musical protest, participated in by

more than a thousand residents, in the Pine Trees of the World Park was conducted as a symbolic protest against SMICs plan to cut down/earthball 182 fully grown trees. Photographs taken of the tree planting and musical protest are hereto attached as Annex G and series.

27. Another peaceful protest action dubbed as Jericho Walk was staged on 14

February 2012 by local residents. Photographs taken of the said activity are hereto attached as Annex H and series.

28. Online petitionsare still being signed by thousands condemning the massacre of

trees.

29. All of the above spontaneous and planned public expressions of dissent by

individuals and civil society movements including the plaintiffs herein took place the moment SMICs plan to alter the environment in the central business district became publicly known.

Page 11

30. Had SMIC and public defendant Paje not fenced out the public from participating in

the Environmental Impact Assessment (EIA) process, they

would have been

apprised of the peoples opposition. Apparently, they were aware of the public dissent. Thus, all transactions were conducted under clandestine conditions in circumvention of the law.

31. Notwithstanding the glaring non-compliance with regulatory requirements, an ECC

was granted by Defendant Paje in favour of SMIC, a attached as Annex I.

copy of which is hereto

32. Moreover, since the land is public, SMIC should not have been granted any permit

to develop it. That area and the trees therein are part of the heritage of the City of Baguio and its people. This heritage is collectively owned by the people and the whole country in view of the citys designation as the Summer Capital of the entire Philippines under the Act of the Philippine Commission on 1 June 1903 not the least because of the pine trees that keep its temperature cool.

33. The same heritage is protected under Rep. Act No. 10066, Philippine National

Cultural Heritage Law. This law requires that any intervention works and measures on national historical landmarks, sites or monuments shall be undertaken only upon prior approval of the(National Commission for Culture and Arts) through the appropriate cultural agency which shall supervise the same. The Commission shall approve only those methods and materials that strictly adhere to the accepted international standards of conservation. 19

34. The project of SMIC

has not passed through the Commissions evaluation or

scrutiny, let alone approval.

35. Furthermore, the City of Baguio has traditionally appropriated the title City of Pines

or Pines City which is now affirmatively acknowledged by the national government and the rest of the country. It would certainly be absurd for the Baguio City Government to keep brandishing the title City of Pines if the tree cover located in its central business district disappears.

19

Sec. 15

Page 12

36. The cutting of the trees is also in violation of the Executive Order No. 23 (EO23)

issued by the Aquino Government placing all national and residual forests under a total log ban in the wake of several environmental disasters affecting different parts of the country due to logging and other extractive industries.

37. The area which SMIC seeks to develop qualifies as a forest in contemplation of

international instruments and national laws as it has a thick tree cover consisting of 43 alnus trees, 97 Benguet pine trees, and 42 pine saplings. EO 23 provides that the government will comply implementing it. with international standards and instruments in

38. Even assuming that SMIC has a legal title to the land it seeks to develop with its

expansion project, ownership rights are inferior to general welfare considerations under Sec. 16 of the Local Government Code, or the exercise of police power by the State.

39. SMICs private ownership over the area cannot override its social responsibility to

respect that pine trees are part of the heritage of Baguio.

40. SMICs private ownership cannot also destroy the general welfare consideration in

maintaining the trees within the area.

41. The current SM mall on Luneta Hill is situated within an area which has three (3)

minor faultlines. Any further development in that area may stress its is hereto attached as Annex J.

carrying

capacity and may result in an environmental disaster. Copy of the Geo Hazard map

42. The quality of the air that hovers above Session Road has been established to be

toxic by a World Bank Study in 2003. This finding forced the City Government to reroute public utility jeepneys which used to pass through Session Road. Because of the rerouting, downtown Session Road is now off-limits to jeepneys, which is a matter of public notice.

43. In fact a news article written by Journalist Dexter See and published in Manila Bulletin revealed that

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The Cordillera office of the Department of Environment and Natural Resources (DENR) here reported an "alarming air quality situation" in the central business district of this mountain resort city as the city recorded recently its highest air pollution level. From the normal level of total suspended particulates or standard air quality level of 150 micrograms per cubic meter, the reading almost doubled to 280 micrograms per cubic meter especially during rush hours of 6 to 7 a.m. on weekdays. Xxxxxxxx Environmental experts said that the air-quality monitoring station on Session Road makes an hourly recording, adding there is an up and down patter, but it does not show a regular trend. Xxxxxxx DENR officials said that the worsening air quality in the city's central business district and the rapidly deteriorating air quality in other parts of the city must be given preferential attention by local and national government agencies. Aside from the unabated issuance of franchises to public utility vehicles by the Department of Transportation and Communication and the Land Transportation Franchising and Regulatory Board (LTFRB), another factor that causes the worsening air quality in the city is the rapid deforestation of forest and watershed reservation caused by urbanization.20 (underscoring ours)

44. Consistently, the Environmental Management Bureau has been monitoring the

quality of ambient air in the Central Business District and the findings have always been that it is poor until the Jeepneys became off-limits to use Session Road, where improvements in air quality were noted. Copies of recent reports are hereto attached as Annex K and made an integral part hereof.
45. It bears emphasizing that the EMB concluded that the main source or contributor of

pollutants are emissions from motor vehicles, and SMICs plan to develop a parking lot will surely invite a least six thousand more motor vehicles daily to use Session Road in order to avail of their parking service, which will definitely alter the ambient air monitoring result from average to unhealthy.
46. Those trees in SMIC contribute largely to the maintenance of the publics right to

clean air as embodied under international documents and the Clean Air Act. Every day, these 182 trees supply the oxygen needs of 364 people. Each of those trees
20

Dexter See, Baguio air pollution worsening in Manila Bulletin, June 27, 2007; accessed on 21 January 2012 from http://findarticles.com/p/news-articles/manilabulletin/mi_7968/is_2007_June_27/baguio-air-pollution-worsening-normal/ai_n34659578/

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that are more than 100 feet and has an 18" diameter at its base, produces 6,000 pounds of oxygen. As for reducing global warming, one tree can absorb 40 to 45 pounds of carbon dioxide every year which is mainly responsible for the phenomenon global warming. Thus all 182 trees absorb some 8,190 lbs of carbon annually, making the air cooler and ridding the atmosphere of harmful CO2 thus securing the peoples right to clean air and a balanced and healthful ecology as mandated by the Constitution
47. Patently, the cutting of trees in SM will exacerbate the aerial situation in Session and

will entail deleterious effects on public health and the general welfare of the people. The affidavit of Mike Bengwayan, PhD, a foremost environmental expert, supporting the claims herein made is hereto attached as Annex L and is made an integral part hereof.

48. Likewise, the issuance of a tree cutting and earth-balling permit in favour of SMIC

violates the DENRs own Memorandum 2005-19 issued on 17 November 2005 which, to date, remains in force. The said Memorandum prohibits the issuance of a permit for the cutting of more than 30 trees in one area. The plan of SMIC is to annihilate 182 trees which clearly contravenes the Memorandum.

49. The earth-balling of the Benguet pine and alnus trees is tantamount to cutting them.

Experiences in the City of Baguio have shown and experts will prove that such trees barely survive earth-balling because they are taproot trees. They have one main root called tap root which goes deep into the earth. The tap root is the main root that sustains the tree and the lateral, feeder roots, coarse roots and water roots support the taproot. A backhoe is necessary for earthballing. It cuts off the feeder, lateral and water roots, and the taproot is forced out. This stresses the tree, depriving it of water and nutrient and choking it off to die slowly.

50. When a tree is uprooted, it undergoes transplant shock. It is subjected to stress-

related problems due to tremendous root loss when dug. This condition, commonly results in increased vulnerability to drought, insects, diseases and other problems. To a greater or lesser degree, transplant shock lasts until the natural balance between the root system and the top or crown of the transplanted tree is restored. Old trees do not survive as most die during this root-establishment period.

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51. The trees will also suffer from Nutrient and Water Deprivation. When a tree is dug for

transplanting, more than ninety-five percent of the absorbing roots are severed. With less than five percent of its root system remaining, the newly transplanted tree suffers from water stress. The crown is capable of losing water faster than it can be absorbed by the limited root mass. Water stress, in turn, can reduce the ability of leaves to produce carbohydrates (energy), diminish the growth of all parts of the tree, and subject the tree to many other environmental and pest-related problems. Combined, these problems all contribute to "transplant shock" that can kill the tree. These claims are likewise supported by the sworn statement of Dr. Bengwayan referred to earlier.

52. Alarmed, Kabataan Party-list representative Raymond Palatino recently filed House

Resolution 2069, directing the House Committee on Natural Resources and Committee on Ecology to conduct a joint inquiry, in aid of legislation, on the legality and propriety of the permit granted by the Department of Environment and Natural Resources (DENR) allowing the cutting and earth-balling of trees, copy of the Resolution is hereto attached as Annex M and is made an integral part hereof.

53. The resolution also directs the DENR to immediately suspend the clearance and

permit granted to SM Development Corporation (SMDC), which operates the SMIC mall in Baguio City.

54.

SMIC has also been making misleading statements in its advertisements that its

proposed expansion project will the first mall in the country to be certified by a LEED (Leadership in Energy and Environmental Design), the internationally recognized standard for green building design and construction developed by the (United States Green Building Council), of which SMIC is a member. The truth is that the USGBC never certified it as such since SMIC has yet to submit a document to the former. A copy of the email of Ms. Jennivine Kwan, US Vice President for International Operations to Plaintiff Andrea Leigh Cosalan is hereto appended as Annex N and made an integral part hereof.

ARGUMENTS IN SUPPORT OF THE PRAYER FOR ISSUANCE OF A TEMPORARY ENVIRONMENTAL PROTECTION ORDER

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55. The Plaintiffs replead and incorporate herein all the allegations in the preceding

paragraphs by way of reference.

56. SMIC has been granted a building permit by the City Building Administration Office

under the Department of Public Works and Highways despite the failure to comply with legal requirements. This building permit coupled with the permit to cut and ball trees has eliminated any legal obstacle to the implementation by SMIC of its plan.

57. In fact, SMIC is now conducting preparatory activities to implement its plan. Very

recent pictures of the area affected by the plan indicate this. These pictures are hereto appended as Annex O and made an integral part hereof.

58. In media interviews, SM management has been vocal that it is ready to start

implementing its plan. The Philippine Daily Inquirer reported on 16 January 2012 in an article21 written by Doris C. Dumlao, that SM Prime Holdings Inc., the countrys largest shopping mall developer announced on Sunday it would begin this month a one year expansion and redevelopment plan for SM City Baguio. Xxx A copy of the article is hereto attached as Annex P and made an integral part hereof.
59. Similarly, in the 15 January 2012 issue of the Baguio Midland Courier, the readiness

of SMIC to undertake its expansion plan was reported on the front page. Part of the report reads: With most of the needed permits granted, Shoe Mart Development Corp. is ready to proceed with its expansion project, a plan that will affect some 85 alnus and 97 pine trees within the malls vicinity. A copy of the article is hereto attached as Annex Q and made an integral part hereof.

21

Doris Dumlao, SM Bagui mall expansion to include replanting of trees in Philippine Daily Inquirer, 16 January 2012; accessed on 11 February 2012 from http//:business.inquirer.net/39789/SM-Baguio-mall-expansion-2-include-replanting-of-trees

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60.

Paid advertisements published in almost all major local newspapers including Cordillera Today among others

Baguio Midland Courier, Sun Star Baguio, and

announced their development plan, with a very misleading claim that they will not be cutting any tree but admitted that they will be relocating (earth balling) them. Copies of the newspapers are hereto attached as Annexes R and series. 61. If SMIC will be permitted to construct its project in the face of statements it has

made that its expansion will not damage the environment which will turn out to be untrue, the damage to be suffered by the people will be certainly irreparable and grave as the 182 trees cannot be revived or resurrected back to life once cut or balled.

62.

It is therefore imperative that this Honorable Court will immediately issue a

Temporary Environmental Protection Order (TEPO) to restrain SMIC from performing any act that will spell untold but irreparable damage to the environment and to the people of Baguio City including the plaintiffs herein.

Prayer
WHEREFORE, PREMISES CONSIDERED,it is most respectfully prayed of the Honorable Court: 1. Upon filing of this complaint, to ISSUE a Temporary Environmental Protection Order enjoining the Defendant SMIC from cutting and/or earthballing the pine and alnus trees, and after a summary hearing, to extend the TEPO until the termination of this case. 2. And by way of judgment a.

To SET ASIDE as null and void the permit granted by Secretary Paje to SMIC;

b.

To SET ASIDE as null and void the building permit issued by the City Building and Architecture Office in favor of SMIC;

c.

To permanently ENJOIN SMIC from cutting and/or earthballing the 182 pine and alnus trees, and Protection Order permanent;
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make the Temporary Environmental

Such other reliefs as may be just and equitable under the premises are likewise prayed for. Baguio City, Philippines, 23rd day of February2012. THE NATIONAL UNION OF PEOPLES LAWYERS Counsel for Plaintiffs No. 57 Lower Rock Quarry Baguio City 2600 Philippines;

By

CHERYL L. DAYTEC-YAGOT Roll No. 45429 IBP No. 879044; 31 January 2012 ; Baguio City PTR No. 0583433, 31 January 2012, Baguio City MCLE Compliance Certificate No. III-0016674

CHRISTOPHER D. DONAAL Attorneys Roll No. 52587 IBP Lifetime No. 06875; Mt. Province Chapter PTR No. 0488896, 14 January 2011, Baguio City MCLE COMPLIANCE NO. III-0020748; 28 June 2011

JANSEN T. NACAR Roll No. 59172 IBP No. 878823, 6 January 2012, Baguio City PTR No. 0796785, 6 January 2012, Baguio City MCLE Governing Board Order No. I.S. 2008, 4 July 2008
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JADO RAFAEL A. BOGNEDON Roll No. 57876 IBP OR No. 878967, 9 January 2012, Baguio City PTR No. 0795814, 5 January 2012, Baguio City MCLE Governing Board Order No. I.S. 2008, 4 July 2008

CHRISTIAN dG. SIA Roll of Attorneys No. 50700 PTR # 7552918, 20 Jan 2012, Pasig City IBP Lifetime No. 07942, Pasig City MCLE Compliance No. III-0006492/04 December 2009

MARIA CRISTINA P. YAMBOT Roll of Attorneys No. 59700 PTR No.6962126/ 6 June 2011/ Rizal IBP No. 859823/ 01 April 2011/ Rizal Exempted from MCLE ComplianceAdmitted to the bar in 2011

GLENN B. PALUBON Roll of Attorneys No. 34360 PTR No. 7965060/ 13 January 2012, Malolos City IBP Lifetime No. 04392, Bulacan Chapter MCLE IV-0002480

ALBERTO N. HIDALGO Roll of Attorneys No. 34757 PTR No. 5195678, 24 Jan 2012, Leyte IBP No. 00958/Leyte MCLE Compliance No. III-004419/ 6 August 2009

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JOVENCIO EVANGELISTA Roll of Attorneys No. 42797 PTR No. 0383942/ 11 January 2012/ Manila IBP No. 836479/10 January 2012/ Manila MCLE Compliance No. III-0013254/ 21 April 2010 Copy Furnished: SMIC DENR DPWH EMB OFFICE OF THE CITY BUILDING OFFICIAL

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JURAT SUBSRIBED AND SWORN to before me, in the City of Baguio, this 25 th day of February, 2012, the affiants personally known by me and exhibited to me competent proofs of their identities as indicated below their typed and handwritten names

CHRISTOPHER D. DONAAL Notary Public for Baguio City My commission expires on December 31, 2012 Privilege Tax Receipt No. 0794171; 03 January 2012 IBP Lifetime No. 06875; Mountain Province Chapter Doc. No. ___; Page No. ____; Book No.I; Series of 2012.

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