Greenpeace Bt Talong Petition

7/25/2019 Greenpeace Bt Talong Petition

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Republic of the PhilippinesSUPREME COURT

Manila

GREENPEACE SOUTHEAST ASIA(PHILIPPINES), MAGSASAKA ATSIYENTIPIKO SA PAGPAPAUNLAD NGAGRIKULTURA (MASIPAG), REP.TEODORO CASIO, DR. BEN MALAYANGIII, DR. ANGELINA GALANG, MR.LEONARDO AVILA III, MS. CATHERINEUNTALAN, ATTY. MARIA PAZ LUNA, MR.JUANITO MODINA, MR. DAGOHOYMAGAWAY, DR. ROMEO QUIJANO, DR.

WENCY KIAT, ATTY. H. HARRY ROQUE,JR., FORMER SEN. ORLANDO MERCADO,MR. NOEL CABANGON, MAYOREDWARD HAGEDORN, EDWINMARTHINE LOPEZ

Petitioners,

- versus - SC GR SP No. _______________Petition for Continuing Mandamusand Writ of Kalikasan

with Prayer for TEPO

ENVIRONMENTAL MANAGEMENTBUREAU OF THE DEPARTMENT OFENVIRONMENT AND NATURALRESOURCES, BUREAU OF PLANTINDUSTRY AND THE FERTILIZER ANDPESTICIDE AUTHORITY OF THEDEPARTMENT OF AGRICULTURE, UP

LOS BANOS FOUNDATION, INC., UPMINDANAO FOUNDATION, INC.,INTERNATIONAL SERVICE FOR THEACQUISITION OF AGRI-BIOTECHAPPLICATIONS-SOUTHEAST ASIACENTER,

Respondents.x-------------------------------------------------------------x

PETITION FOR WRIT OF CONTINUING MANDAMUS

AND WRIT OF KALIKASANWITH PRAYER FOR THE ISSUANCE OF A

TEMPORARY ENVIRONMENTAL PROTECTION ORDER(TEPO)

________________________________________________


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PETITIONERS, through the undersigned counsels, and to this Honorable Court,

respectfully aver:

PREFATORY STATEMENT

Science is a compelling factor for the advancement of humanity. But it is not a

justification to violate laws, disregard peoples consent, and risk their health and

livelihood, and the environment.

In fact, the success and credibility of science is not only founded on its

mechanism for self-correction by which scientists are willing to expose their ideas to

independent testing through open exchange of data, materials, and procedures; and

abandon or modify previously accepted conclusions when confronted with more

complete or reliable evidence, but also because of proper regulation. The latter is to

ensure that scientific experiments and processes are safe, socially acceptable, and not

fraudulent.

In the case of the multi-location field trial of Bt talong-- the subject of this

petition-- Petitioners are seeking the intervention of this honorable High Court to

immediately stop Respondents from pursuing the release to the environment of a

genetically engineered eggplant variety called Bt talongthrough its field testing in nine

provinces of the Philippines because both the self-correction mechanism and

governmental regulation are unavailing.

Bt talong is a classic environmental case where scientific evidence as to the health

and environmental safety and socio-economic impact is insufficient, inconclusive or


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uncertain. At the same time, preliminary scientific evaluation indicates that there are

reasonable grounds for concern about their potentially dangerous effects on the

environment and human health.

At the very least, the conflicting claims should lead specifically the Respondent

regulatory agencies to apply the precautionary principle before any field trial is

conducted. However, despite serious uncertainties and concerns about Bt talong,

Respondents continued with their field trial in violation of the precautionary principle

of environmental laws, the peoples rights to a balanced and healthful ecology and to

health, the Philippine Environmental Impact Statement System law, the Local

Government Code, Administrative Order No. 08 of the Department of Agriculture and

Executive Order No. 514.

Because of these violations, concerns about Bt talong field testing can no longer

be entrusted to Respondent regulatory agencies and research institutions. Hence, it is

only through the wise and conscientious judgment of this honorable High Court which

is guided by the precautionary principle that it adopted in its Rules of Procedures for

Environmental Cases, that petitioners can see hope to immediately stop this dangerous

and illegal Bt talong field testing.


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THE PARTIES

1. The following are the Petitioners:

1.1. GREENPEACE SOUTHEAST ASIA (PHILIPPINES)is a non-profit civil

society organization duly registered under Philippine laws in 2000. It aims to protect

the Philippines and Southeast Asia from further ecological ruin and to serve as a beacon

of awareness and action in the interest of environmental protection and sustainable

development. In its sustainable agriculture campaign, Greenpeace focuses on

promoting sustainable development in farming and opposes technologies such as the

use of genetically modified organisms that threatens biodiversity, poses unnecessary

risk to the environment, and which has never been proven safe for human

consumption. It has its office address at No. 30 JGS Building, Scout. Tuason, Bgy.

Laging Handa, Quezon City.

1.2. MAGSASAKA AT SIYENTIPIKO SA PAGPAPAUNLAD NG

AGRIKULTURA (MASIPAG), a farmers-led network of farmers, scientists and NGOs

working towards the sustainable use and management of biodiversity through farmers

control of genetic and biological resources, agricultural production, and associated

knowledge, is a duly registered civil society organization under Philippine laws. It has

its office address at 2611 Carbern, Anos, Los Baos, Laguna.

1.3. All other individual petitioners, whose names and personal circumstances

are found in the verification and certification hereof, are residents in some of the

provinces where the field testing of Bt talong are being conducted, and/or, citizens who


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are suing in the exercise of their Constitutionally guaranteed health, environmental, and

information rights on their behalf and on behalf of Filipinos and of generations of

Filipinos yet unborn.

1.4. For procedural convenience and practical reasons, all of the herein named

organizational and individual petitioners may be collectively served with summons and

other legal processes issued from this High Court at No. 30 JGS Bldg., Sct. Tuason, Brgy.

Laging Handa, Quezon City.

2. The following are the Respondents in this case and why they are being

impleaded herein:

2.1. The ENVIRONMENTAL MANAGEMENT BUREAUof the Department

of Environment and Natural Resources (DENR-EMB) is theprincipal agency under

the DENR that has jurisdiction over the grant of environmental compliance certificates

(ECC) in accordance with its duty to formulate, integrate, coordinate, supervise and

implement all policies, plans, programs and projects relative to the management and

protection of the environment. The DENR-EMB may be served with summons and

other court processes at the DENR Compound, Visayas Avenue, Quezon City.

2.2. The UNIVERSITY OF THE PHILIPPINES LOS BANOS FOUNDATION

INC. (UPLBFI) is a private corporation duly organized under Philippine laws with

principal office address at Lanzones Road, UP Los Banos College, Los Banos, Laguna,

where it may be served with summons, notices and other processes of this Honorable

Court. It is being impleaded as Respondent since it is the primary implementing


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institution of a collaborative project to develop eggplants that are resistant to the eggplant fruit

and shoot borer in the Philippines1.

2.3. The INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-

BIOTECH APPLICATIONS SOUTHEAST ASIA CENTER(ISAAA-SEAsia Center),

is made a party respondent herein being the international organization supporting the

collaborative undertaking and providing supplemental funds and other technical and

management assistance for the field testing of Bt talong. It has its principal office

address at IRRI, Los Banos Laguna, where it may be served with summons, notices and

other processes of this Honorable Court.

2.4. The UNIVERSITY OF THE PHILIPPINES - MINDANAO

FOUNDATION INC. (UPMFI) is a non-government organization duly organized

under Philippine laws, with principal office address at Anda cor. Rizal St., Davao City

where summons, notices and other processes of this Honorable Court may be served

upon it. It is being sued since it is one of the parties responsible for the field testing of Bt

talong, along with ISAAA-SEAsia Center and UPLBFI. It is also the one that provided

the lot in Davao City for the said field testing.

2.5. The UNIVERSITY OF THE PHILIPPINES, LOS BANOS(UPLB) is an

educational institution, which has principal office address at Lanzones Road, UP Los

Banos College, Los Banos, Laguna, where it may be served with summons, notices and

other processes of this Honorable Court. It is being impleaded as Respondent since it

was mentioned in the Field Trial Proposal as the proponent and lead institution of the

Bt talong field testing. In fact, as the proponent and lead institution, it wholeheartedly

1Please see the second Whereas Clause under the MOU, attached hereto as Annex A.


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supported the Bt talongfield testing by giving its consent and approval to the use of one

of its properties in Bay, Laguna as one of the sites for said field testing.

.

2.6. The BUREAU OF PLANT INDUSTRY (BPI) is a government agency

responsible in the areas of plant quarantine, seed quality control, crop production and

protection, technology development, agricultural mechanization and laboratory

analytical services. It is being sued herein as the agency responsible in issuing permit to

the Respondents proponents of the Bt talong field trial project without taking into

consideration its harmful effect to human health and the environment. It has its office

address at 692 San Andres St., Malate, Manila, where summons, notices and other

processes of this Honorable Court may be served upon it.

2.7. FERTILIZER AND PESTICIDE AUTHORITY (FPA) is an agency of

the government under the Department of Agriculture tasked to regulate fertilizers and

pesticides used in plants and crops in the Philippines and therefore, should

Respondents proponents of the Bt talong field trial apply for registration of Bt talong as

herbicidal product, it is the agency responsible to give such permit to said Respondents.

It has its office address at FPA Bldg., B.A.I Compound, Visayas Avenue, Diliman

Quezon City where it may be served with summons, notices and other processes of this

Honorable Court.


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STATEMENT OF FACTS

1. An undated Memorandum of Undertaking (MOU) notarized on 24

September 2010 was entered into by and between the University of the Philippines Los

Baos Foundation, Inc. (UPLBFI), the International Service for the Acquisition of Agr-

Biotech Application Southeast Asia Center (ISAAA) and the University of the

Philippines Mindanao Foundation, Inc. (UPMFI). A copy of the Memorandum of

Undertaking is attached hereto as Annex A.

2. The MOU aims to develop eggplants that are resistant to the eggplant

fruit and shoot borer in the Philippines, the technical and commercial viability of which

as applied to the local varieties of eggplants it desires to test through field trials 2 as

part of their research and development programs for, among others, the development

of pest-resistant crops.3

3. The research involves in particular the multi-location field trial of Bacillus

thuringiensis (Bt) eggplant (which is hereafter referred to as Bt talong). The Bt

talongis a genetically engineered eggplant which confers resistance to fruit and shoot

borer (FSB). The eggplant itself does not confer resistance but carries with it a transgene,

cry1AC derived from the soil bacterium Bacillus thuringiensis that confers resistance to

FSB.4 The FSB is one of several pests that infest an eggplant. Its larva attacks the

terminal shoots and bores inside, resulting from withering and drying of the eggplant

shoots. It also bores into the young fruit and feeds inside which makes the eggplant

fruit unmarketable.

2MOU, 2ndWhereas Clause.3MOU, 1stWhereas Clause.4Annex C, Public Information Sheet annexed to the Proposal for Field Testing of EE-1 FSB-R Eggplant


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4. Although the MOU was entered only between UPLBFI, ISAAA and

UPMFI (hereafter collectively referred to as Private Respondents), it was, by its very

terms, a collaborative research and development undertaking involving the Parties

and other partner agencies and programs, which include the University of the

Philippines Los Banos (through the Institute of Plant Breeding thereof), Maharastra

Hybrid Seed Company, Cornell University and the Agricultural Biotechnology Support

Project II (ABSPII) of USAID5. For purposes of this Petition, the said institutions and

agencies, including the Private Respondents, are collectively referred to as the Project

Proponents.

5. Among the Annexes to the MOU are: 1) FIELD TRIAL PROPOSAL

labeled as ANNEX to MOA UP Mindanao Field Trial Proposal for FSB-R Eggplant,

a copy of which is attached hereto as Annex B; 2) PUBLIC INFORMATION SHEET

FOR FIELD TESTING labeled as ANNEX II UPLB Field Trial Application for FSB-R

Eggplant July 31, 2009, a copy of which is attached hereto as Annex C; and 3)

FIELD TRIAL PROPOSAL labeled ANNEX III UPLB Field Trial Application for

FSB-R Eggplant July 31, 2009, a copy of which is attached hereto as Annex D.

6. From Annex C or the Public Information Sheet for Field Testing (Public

Information Sheet), the proposal is for the field trial to be conducted for two years

with initial target planting in October 2009.6

7. The Project Proponents planned and proposed to conduct in different

stages, field trial of Bt talong in different locations with approximately 1,000-2,500 sq.

m. area per site per season7. Following are the locations and their respective Biosafety

Permits for Field Testing8, to wit:

5MOU, 2ndWhereas Clause.6See Item 9 of Annex C.7See Item No. 8, p. 2 of Public Information Sheet for Field Testing dated 31 July 2009, a copy of which isattached hereto as Annex C.8See alsohttp://biotech.da.gov.ph/upload/Annex_IV_as_of_Feb_23_2012.pdf.
http://biotech.da.gov.ph/upload/Annex_IV_as_of_Feb_23_2012.pdfhttp://biotech.da.gov.ph/upload/Annex_IV_as_of_Feb_23_2012.pdfhttp://biotech.da.gov.ph/upload/Annex_IV_as_of_Feb_23_2012.pdfhttp://biotech.da.gov.ph/upload/Annex_IV_as_of_Feb_23_2012.pdf


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a) RAFC I Sta. Maria, Pangasinan Biosafety Permit for Field

Testing Number 10-011b dated 16 March 2010, a copy of which is attached

hereto as Annex E;

b) DA Region II Ilagan, Isabela ;

c) PhilRice Munoz, Nueva Ecija;

d) IPB-UPLB Brgy. Paciano Rizal, Bay, Laguna Biosafety

Permit Testing Number 10-011a dated 16 March 2010, a copy of which is

attached hereto as Annex E-1;

e) CSSAC Pili, Camarines Sur - Biosafety Permit for Field

Testing Number 10-011c dated 16 March 2010, a copy of which is attached

hereto as Annex E-2;

f) DA Region VI Iloilo - Biosafety Permit for Field Testing

Number 10-011d dated 16 March 2010, a copy of which is attached hereto

as Annex E-3;

g) Visayas State University Baybay, Leyte - Biosafety Permit

for Field Testing Number 10-011f dated 16 March 2010, a copy of which is

attached hereto as Annex E-4;

h) UP Mindanao Bago Oshiro, Davao City - Biosafety Permit

for Field Testing Number 10-011e dated 16 March 2010, a copy of which is

attached hereto as Annex E-5; and,

i) University of Southern Mindanao Kabacan, North

Cotabato - Biosafety Permit for Field Testing Number 10-011g dated 16

March 2010, a copy of which is attached hereto as Annex E-6.

8. Although the MOU names the Private Respondents as the parties thereto,

the named applicant in the Public Information Sheet for Field Testing (Annex C) and

in the Field Trial Proposal (Annex D) is the University of the Philippines Los Baos.


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This is a glaring misrepresentation as nowhere in the MOU is the University of the

Philippines Los Baos named as a contracting party thereto and responsible for the field

testing. Neither will the university reap benefits from the research based on the terms of

the MOU.

9. Without applying for and securing the necessary environmental

compliance certificate (ECC), the Project Proponents proceeded to conduct the field

trials in aforesaid proposed locations.

10. Specifically, field trials were started in Sta. Maria, Pangasinan sometime in

February 2010, in Pili, Camarines Sur sometime in July 2010, in Davao City sometime in

August 2010, in Bay, Laguna sometime in October 2010, and in Kabacan, North

Cotabato sometime in March 2012;

11. Moreover, the field trials were conducted without consultations with the

local government units, non-governmental organizations, and other sectors concerned

and without explanation about the goals and objectives of the 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 as required under Section 26 of the Local Government Code.

12. The prior approval of the sanggunians in the affected local government

units were also not secured by the Project Proponents. There were instances where local

government ordinances or resolutions were passed banning genetically modified crops

or organisms in their localities and promoting organic farming.

13. In Pangasugan, Baybay, Leyte, one of the sites for the field testing, the

Baranggay Council of Baranggay Pangasugan, Baybay, Leyte passed a resolution

indicating, among others, that no public consultations were made and because of which

they have resolved to oppose the field testing being done in their locality. A copy of the

Resolution passed on 22 January 2011 is attached hereto as Annex F.


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14. The Municipality of Santa Barbara, Iloilo likewise passed a Resolution on

6 October 2010 for the suspension of the field testing in Baranggays Tungay and Lanag

in Santa Barbara, Iloilo. A copy of the Resolution is attached hereto as Annex G.

15. In Davao City, the City Government ordered the uprooting of the Bt

talong as the field trial conducted thereat was without the approval of the city council.9

16. The Project Proponents conducted their field trials on the basis solely of

the Biosafety Permit for Field Testing issued by the Bureau of Plant Industry.

9See Annex Q.


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GROUNDS IN SUPPORT OF CONTINUING MANDAMUS

I.

THE BTTALONG FIELD TESTING IS AN ACTIVITY THATHAS SIGNIFICANT EFFECT ON THE QUALITY OF THEENVIRONMENT, AND AS SUCH IS COVERED BY THEPHILIPPINE ENVIROMENTAL IMPACT STATEMENTSYSTEM (PEISS) OF THE ENVIROMENTAL

MANAGEMENT BUREAU OF THE DEPARTMENT OFENVIRONMENT AND NATURAL RESOURCES (DENR).

II.

THE BT TALONG FIELD TESTING AS A PROJECT THAT

MAY CAUSE POLLUTION, LOSS OF CROP LAND,RANGELAND, OR FOREST COVER AND EXTINCTIONOF ANIMAL OR PLANT SPECIES MUST COMPLY WITHSECTIONS 26 AND 27 OF THE LOCAL GOVERNMENTCODE.


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GROUNDS IN SUPPORT OF WRIT OF KALIKASAN

I.

THE HOLDING OF MULTI-LOCATION FIELD TRIALS OFBT TALONG, PREPARATORY TO ITS EVENTUALCOMMERCIALIZATION, VIOLATES THEENVIRONMENTAL RIGHTS OF THE PETITIONERS INPARTICULAR AND OF THE FILIPINO PEOPLE INGENERAL AS EXPRESSED IN THE CONSTITUTIONALRIGHTS TO A BALANCED AND HEALTHFUL ECOLOGY,

AND TO HEALTH; AND DISREGARDS THEPRECAUTIONARY PRINCIPLE THAT GUIDES THEEXERCISE OF THESE ENVIRONMENTAL RIGHTS.

II.

RESPONDENTS VIOLATED THE CONSTITUTIONAL

RIGHT OF THE PETITIONERS IN PARTICULAR AND OFTHE FILIPINO PEOPLE IN GENERAL TO BE INFORMEDON ALL MATTERS OF PUBLIC CONCERN, INCLUDINGTHEIR RIGHTS TO PARTICIPATION AND TOCONSUMER PROTECTION.

III.

RESPONDENTS VIOLATED EVEN THE BASICREQUIREMENTS OF THE ALREADY INADEQUATEREGULATORY PROVISIONS OF ADMINISTRATIVEORDER NO. 08 AND EXECUTIVE ORDER NO. 514


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DISCUSSION

ON THE WRIT OF CONTINUING MANDAMUS

BT TALONG FIELD TESTING DID NOTCOMPLY WITH PEISS LAW

Environmental Compliance Certificate;Respondents failed to Secure an ECC

17. Presidential Decree No. 1151 established the Philippine Environmental

Policy where of paramount importance is the protection, preservation and enhancement

of a healthful environment which may not be sacrificed for the sake of economic growth

and the demands of urbanization and modernity. It declared the following policy and

goals as it enunciated the right of the people to a healthy environment, to wit:

Section 1.Policy. -- It is hereby declared a continuing policy of theState (a) to create, develop, maintain, and improve conditionsunder which man and nature can thrive in productive andenjoyable harmony with each other, (b) to fulfill the social,economic and other requirements of present and future generationsof Filipinos, and (c) to insure the attainment of an environmentalquality that is conducive to a life of dignity and well-being.

Section 2. Goal. -- In pursuing this policy, it shall be the

responsibility of the Government, in cooperation with concernedprivate organizations and entities, to use all practicable means,consistent with other essential considerations of national policy, inpromoting the general welfare to the end that the Nation may (a)recognize, discharge and fulfill the responsibilities of eachgeneration as trustee and guardian of the environment forsucceeding generations, (b) assure the people of a safe, decent,healthful, productive and aesthetic environment, (c) encourage thewidest exploitation of the environment without degrading it, orendangering human life, health and safety or creating conditions

adverse to agriculture, commerce and industry, (d) preserveimportant historic and cultural aspects of the Philippine heritage,(e) attain a rational and orderly balance between population andresource use, and (f) improve the utilization of renewable and non-renewable resources.


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Section 3.Right to a Healthy Environment. -- In furtherance ofthese goals and policies, the Government recognizes the right of thepeople to a healthful environment. It shall be the duty andresponsibility of each individual to contribute to the preservationand enhancement of the Philippine environment.

18. For the attainment of the foregoing policy and goals as well as the

safeguarding and promotion of the right of the people to a healthy environment, the

law required the submission of an environmental impact statement before any proposal

or project may be implemented that significantly affects the environment.Section of

PD 1151 states:

Section 4.Environmental Impact Statements. -- Pursuant to theabove enunciated policies and goals, all agencies andinstrumentalities of the national government, includinggovernment-owned or controlled corporations, as well as privatecorporations, firms and entities shall prepare, file and include inevery action, project or undertaking which significantly affects the

quality of the environment a detailed statement on:a) the environmental impact of the proposed action, project orundertaking;b) any adverse environmental effect which cannot be avoidedshould the proposal be implemented;c) alternative to the proposed action;d) a determination that the short-term uses of the resources of theenvironment are consistent with the maintenance and enhancementof the long-term productivity of the same; ande) whenever a proposal involves the use of depletable or non-renewable resources, a finding must be made that such use andcommitment are warranted.

Before an environmental impact statement is issued by a leadagency, all agencies having jurisdiction over, or special expertiseon, the subject matter involved shall comment on the draftenvironmental impact statement made by the lead agency withinthirty (30) days from receipt of the same.

19. Pursuant thereto, Presidential Decree No. 1586 established and

institutionalized the Philippine Environmental Impact Statement System (PEISS) which

at present is under the jurisdiction and responsibility of Respondent DENR-EMB.


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Section 4 of the said law provides compliance with the PEISS for every proposed

project and undertaking which significantly affect the quality of the environment, to

wit:

Section 2.Environmental Impact Statement System. - There ishereby established a environmental Impact Statement Systemfounded and based on the environmental impact statementrequired, under Section 4 of Presidential Decree No. 1151, of allagencies and instrumentalities of the national government,including government owned or controlled corporations, as wellas private corporations, firms and entities for every proposed

project and undertaking which significantly affect the quality ofthe environment. (Emphasis supplied)

20. In the implementation of the foregoing laws, among others, and driven by

the need for a systems-oriented and more integrated approach to the environmental

impact statement system, the DENR issued the Implementing Rules and Regulations for

the PEISS through Department Administrative Order No. 2003-30 (DAO 2003-30)

with the following basic policy and operating principles, to wit:

Section 1. Basic Policy and Operating Principles

Consistent with the principles of sustainable development, it is thepolicy of the DENR to implement a systems-oriented andintegrated approach to the EIS system to ensure a rational balance

between socio-economic development and environmentalprotection for the benefit of present and future generations.

The following are the key operating principles in theimplementation of the Philippine EIS System:

a. The EIS System is concerned primarily with assessing the directand indirect impacts of a project on the biophysical and humanenvironment and ensuring that these impacts are addressed byappropriate environmental protection and enhancement

measures.b. The EIS System aids proponents in incorporating environmentalconsiderationsin planning their projects as well as in determiningthe environments impact on their project.


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c. Project proponents are responsible for determining and disclosingall relevant informationnecessary for a methodical assessment ofthe environmental impacts of their projects;

d. The review of the EIS by EMB shall be guided by three generalcriteria: (1) that environmental considerations are integrated into

the overall project planning, (2) that the assessment is technicallysound and proposed environmental mitigation measures areeffective, and (3) that social acceptability is based on informedpublic participation;

e. Effective regulatory review of the EIS depends largely on timely,full, and accurate disclosure of relevant information by projectproponents and other stakeholders in the EIA process;

f. The social acceptability of a project is a result of meaningful publicparticipation, which shall be assessed as part of the EnvironmentalCompliance Certificate (ECC) application, based on concerns

related to the projects environmental impacts;g. The timelines prescribed by this Order, within which anEnvironmental Compliance Certificate must be issued or denied,apply only to processes and actions within the EnvironmentalManagement Bureaus (EMB) control and do not include actions oractivities that are the responsibility of the proponent. (Emphasissupplied)

21. DAO No. 2003-30 also defines a Project or Undertaking subject to its

coverage as any activity, regardless of scale or magnitude, which may have significant

impact on the environment.

22. Section 4.2 of DAO No. 2003-30 provides that The issuance of ECC or

CNC for a project under the EIS System does not exempt the proponent from securing

other government permits and clearances as required by other laws.

23. Applied to the case at bar, it appears that the Project Proponents have not

secured the necessary environmental clearance from Respondent DENR-EMB and yet

they have already started conducting field trials in violation of the foregoing laws, rules

and regulations.

24. Considering such non-compliance with the PEISS requirements and the

grave and irreparable harm that the field testing may cause to the environment as

discussed herein, there is an urgent necessity to immediately put a stop to the field

trials if only temporarily.


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DAO 08-2002 Presumes Genetically ModifiedCrops or Organisms as Harmful to andSignificantly Affects the Environment and

Requires Risk Assessment before its Entry

25. The Project Proponents, and perhaps all the other Respondents, may have

the erroneous impression that their field trial for Bt talong is not an activity which may

have significant impact on the environment.

26. However, Department Administrative Order No. 8, Series of 2002 (DAO

08-2002)of the Department of Agriculture entitled RULES AND REGULATIONS FOR

THE IMPORTATION AND RELEASE INTO THE ENVIRONMENT OF PLANTS AND

PLANT PRODUCTS DERIVED FROM THE USE OF MODERN BIOTECHNOLOGY

under which the Project Proponents secured their various Biosafety Permits for Field

Testing classifies Bttalong as a Regulated article in relation to Section 2-A thereof.

27. A Regulated article is defined as any of the organisms listed in Section

2-A, but excludes those delisted in accordance with Section 14.

28. Section 2 states:

Section 2Coverage

A. Scope This Order covers the importation or release into theenvironment of:1. Any plant which has been altered or produced through the use ofmodern biotechnology if the donor organism, host organism, orvector agent belongs to any of the genera or taxa classified by BPIas meeting the definition of plant test or is a medium for theintroduction of noxious weeds; or2. Any plant or plant product altered or produced through the useof modern biotechnology which may pose significant risks tohuman health and the environment based on available scientific

and technical information.B. Exceptions. This Order shall not apply to the contained use of aregulated article, which is within the regulatory supervision ofNBCP.


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29. In Bt talong, the process of genetic engineering involves the insertion of a

genetic cassette containing genes from the bacterium Bacillus thuringiensis (Bt) into

the DNA of the eggplant so that it produces a protein called Cry1Ac, which is a toxin.

This has been admitted by Respondent Project Proponents, thus:

The use of the crystal toxin genes from Bacillusthuringiensis (Bt) to engineer resistance to biting and chewinginsects has been one of the best success stories of bioengineeredcrops. Genetic resistance is obtained by incorporating Bt genes intothe plant genome to produce the protein toxic to the target insect

pests. Bt Cry1Ac protein is highly specific to lepidopteran larvaesuch as eggplant fruit and shoot borer (EFSB).10

30. From the foregoing, Bttalong unquestionably is an altered plant produced

through the use of modern biotechnology or genetic engineering. In short, Bttalong is a

Regulated Article under DAO 08-2002.

31. As a Regulated Article, Bt talong is presumed harmful to human healthand the environment and as such must undergo risk assessment pursuant to Section 3-

A of DAO 08-2002 which states:

Section 3Risk Assessment

A. Principles of Risk Assessment - No regulated article shall beallowed to be imported or released into the environment withoutthe conduct of a risk assessment performed in accordance withthis Order. The following principles shall be followed whenperforming a risk assessment to determine whether a regulatedarticle poses significant risks to human health and the environment:1. The risk assessment shall be carried out in a scientifically soundand transparent manner based on available scientific and technicalinformation. The expert advice of, and guidelines developed by,relevant international organizations and regulatory authorities of

countries with significant experience in the regulatory supervisionof the regulated article shall be taken into account in the conduct ofrisk assessment.

10Please see Annex D, Respondents Field Trial Proposal.


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2. Lack of scientific knowledge or scientific consensus shall notbe interpreted as indicating a particular level of risk, an absenceof risk, or an acceptable risk.3. The identified characteristics of a regulated article and its usewhich have the potential to pose significant risks to human health

and the environment shall be compared to those presented by thenon-modified organism from which it is derived and its use underthe same condition.4. Risk assessment shall be carried out case-by-case and on the basisof transformation event. The required information may vary innature and level of detail from case to case depending on theregulated article concerned, its intended use and the receivingenvironment.5. If new information on the regulated article and its effects onhuman health and the environment becomes available, the risk

assessment shall be readdressed to determine whether the risk haschanged or whether there is a need to amend the risk managementstrategies accordingly. (Emphasis supplied)

32. Pursuant thereto, Section 4 of DAO 08-2002 requires the appointment of a

Responsible Officer who shall ensure that all appropriate measures are taken to

prevent significant risks to human health and the environment arising from the

importation or release into the environment of the regulated article.

33. It is clear from the foregoing regulation of the Department of Agriculture

that any Regulated Article such as the Bt talong and its field trials is presumed to

significantly affect the quality of the environment so as to subject it to the

requirements of the PEISS of Respondent DENR-EMB.

34. The fact that the Project Proponents already secured a Biosafety Permit

from Respondent BPI does not excuse it from securing an environmental clearance from

Respondent DENR-EMB.


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Safety and Environmental Hazards of Bt talong

35. More than the presumption under the Department of Agricultures DAO

08-2002, there is no independent, peer reviewed study on the safety of Bt talong for

human consumption and the environment.

Health hazards of Bt talong11

36. In their Public Information Sheet for Field Testing (Annex C), the Project

Proponents made the following representation:

b) Potential Risks

The FSBR is substantially equivalent and is as safe as conventional/non-modified eggplant, except for the insect resistance trait. Experience withthe use of Bt corn in country provide evidence of the relative safety ofbiotech crops to the environment. (Emphasis supplied)

37. In essence, what the Project Proponents are saying is that since Btcorn is

safe, then Bttalong must also be safe.

11 The World Health Organization, in its 20 Questions on Genetically Modified Foods(http://www.who.int/foodsafety/publications/biotech/20questions/en/) has identified three mainissued of concern for human health, namely: 1) Allergenicity or the tendencies to provoke allergicreactions; 2) Gene transfer from GM foods to cells of the body or to bacteria in the gastrointestinal tractwould cause concern if the transferred genetic material adversely affects human health. This would beparticularly relevant if antibiotic resistance gene, used in creating GMOs, were to be transferred.Although the probability of transfer is low, the use of technology without antibiotic resistance genes hasbeen encouraged by a recent FAO/WHO expert panel; and 3) Outcrossing or the movement of genesfrom GM plants into conventional crops or related species in the wild (referred to as outcrossing), aswell as the mixing of crops derived from conventional seeds with those grown using GM crops, may havean indirect effect on food safety and food security. This risk is real, as was shown when traces of a maizetype which was only approved for feed use appeared in maize products for human consumption in theUnited States of America.


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38. As mentioned earlier, the Bt talonguses a gene that produces the Cry1Ac

protein as a toxin. It is important to note that there are no commercial food crops with

this type of Btgene.

39. It is different to Cry1Ab (as used in genetically modified corn) in terms of

its food safety. Thus, there is no history of safe use of Cry1Acthe gene used in Bt

talong.

40. At present, biotechnology companies rely on the concept of substantial

equivalence to demonstrate the safety of genetically engineered foods.

40.1. The concept was developed by the Organization of

Economic Cooperation and Development (OECD) in 1991.

40.2. In this concept, the overall chemical composition of the

genetically engineered food is compared to an equivalent conventional

food. If there is no significant health and nutritional content differences

between the two, the GE plant is considered to be safe.

40.3. The MAHYCO seed company has tested its Bt eggplant in

the same way.

41. However, substantial equivalence is a highly contested paradigm. Erik

Millstone (University of Sussex), Eric Brunner (UC London) and Sue Mayer

(GeneWatch UK)12 argued that the concept of substantial equivalence was pseudo-

scientific, and that: [T]he biotechnology companies wanted government regulators to

help persuade consumers that their products were safe, yet they also wanted the

regulatory hurdles to be set as low as possible. Governments wanted an approach to the

12Beyond 'substantial equivalence'. Nature. 1999 October 7;401(6753):525-6


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regulation of GM foods that could be agreed internationally, and that would not inhibit

the development of their domestic biotechnology companies. The concept of substantial

equivalence has never been properly defined; the degree of difference between a natural

food and its GM alternative before its 'substance' ceases to be acceptably 'equivalent' is

not defined anywhere. It is exactly this vagueness which makes the concept useful to

the bio-technology industry but unacceptable to the consumer. Scientists from the

United States National Academy of Science and the Royal Society of Canada and the

Medical Research Council (UK) pointed out that a genetically engineered food may not

only be substantially equivalent, but effectively almost completely identical with its

natural counterpart and still contain an unexpected toxic substance not tested for

despite passing Substantial Equivalence requirements.13

42. A leading Filipino environmental scientist who is also a former member of

the National Committee on Biosafety of the Philippines and a former Undersecretary of

the Department of Environment and Natural Resources, Dr. Ben S. Malayang III, in his

affidavit14 expressed his concerns about the adequacy of biosafety measures and

protocols in the country.

42.1. Dr. Malayang is former dean of the College of

Environmental Sciences and Management of the University of the

Philippines in Los Banos and currently the president of Siliman

University.

13Scientists and scientist organizations rejecting the principle of Substantial Equivalence Physicians andScientists for Responsible Application of Science and Technology as cited inhttp://en.wikipedia.org/wiki/Substantial_equivalence14Please see Annex E.
http://psrast.org/subeqscireject.htmhttp://psrast.org/subeqscireject.htm


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43. Further, the Project Proponents and by extension Respondent BPI and

FPA, rely heavily on the Maharashtra Hybrid Seed Company (MAHYCO) Dossier.

Project Proponents Field Trial Proposal (Annex D) states:

The Maharashtra Hybrid Seed Company (MAHYCO) of Indiadeveloped a highly resistant transgenic eggplant event (EE-1), which hasbeen conventionally bred to produce several MAHYCO hybrids. TheMAHYCO hybrids containing the EE-1 event have already completedseveral seasons of biosafety risk assessments under multi-location andlarge scale field trials asll over India. Food and feed safety assessments ofMAHYCO event, EE-1 were conducted by internationally-accredited GLP

laboratories. The results point to the following conclusions: (1) EFSB iseffectively controlled by MAHYCOs eggplant EE-1 event containing theBt cry1Ac transgene; and (2) biosafety and food/feed safety studiesconducted to-date show no material differences between the EE-1 Bteggplant and its non-Bt counterparts1(http://www.envfor.nic.in/divisions/csurv/geac/information_brinjal.htm).15

44. It is unacceptable that in applying for field testing of Bt talong,

Respondents relied completely on the crop developers studies and disregarded the

unique risks of Bt talong technology. Said Respondents complete reliance on the

MAHYCO Dossier is extremely misguided and gravely irresponsible

45. Contrary to the foregoing safety claims, the said MAHYCO Dossier was

found utterly inadequate as a scientific evidence of the safety of Bt talong in a

prominent review organized in February of 2011 by the research arm of the National

Academy of Sciences of the United States (NAS-US)16. The NAS-US solicited

comment on the safety claims in the MAHYCO Dossier from 10 noted American

scientists, who are internationally acknowledged experts on the environmental risks of

transgenic crops. The review was made upon the request of his Honorable Shri Jairam

15Field Trial Proposal (Annex D), pp. 3-4.16A copy of the review entitled Bt Brinjal Event EE1, Bt Brinjal: The scope and adequacy of the GEACenvironmental risk assessment by David A. Andow, @ August 2010, is hereto attached as Annex H.


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Ramesh of the Ministry of Environment and Forests of India, the country where

MAHYCO is based.

46. Among others, the conclusions of the review are that: a) the MAHYCO

dossier is inadequate to support the needed environmental risk assessment; b)

MAHYCOs food safety assessment does not comply with international standards; and

c) that MAHYCO relied on dubious scientific assumptions and disregarded real

environmental threats, to wit:

Conclusion 1 - Transgene characterization. a.1) The EE-1 Bttransgene needs to be characterized more fully 1) to demonstrate thatthere is only one transgene insert in Btbrinjal (brinjal is Indian name foreggplant), 2) that the transgene expresses the intended Cry protein, 3) thatit does not interrupt a functioning plant gene, 4) to provide expressionlevels in additional plant tissues, and 5) to demonstrate empirically thatthe marker genes are not expressed in Btbrinjal.

The description of the transgene in Btbrinjal EE-1 is inadequate to

support environmental risk assessment. There is at least one transgeneincorporated into EE-1 Bt brinjal. It is not known that there is only onetransgene incorporated into the brinjal genome, that the one knowninserted transgene expresses the intended gene product, or that thetransgene does not interrupt a functional plant gene. Additionaltransgenes, expression of an unintended product and interruption of aplant gene could create additional environmental risks that have not beenconsidered or assessed.

Adequate characterization of expression of the transgene isessential for effective environmental risk assessment. The description ofthe chimeric Cry1A protein (Ccry1A) is inadequate for this purpose. Theamino acid sequence of Ccry1A as expressed in brinjal is needed. Theexpression level of Ccry1A in pollen of Bt brinjal EE-1 is needed. There isno need to use Cry1Ac, a protein that is not identical to Ccry1A, in any theexperiments used to support risk assessment, as was done in EC-II and theDossier. The expression level of the marker genes is assumed to be low.This should be demonstrated empirically.

x x x

Conclusion 3- The EC-II assessment does not comply with scientificaspects of transgene characterisation described in the Guideline for the


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Conduct of Food Safety Assessment of Foods Derived from Recombinant- DNAPlants (Codex Alimentarius17, 2003, CAC/GL 45-2003).

x x x

Conclusion 4- Most of the possible environmental risks of Btbrinjalhave not been adequately evaluated; this includes risks to local varieties ofbrinjal and wild relatives, risks to biological diversity, and risk ofresistance evolution in BFSB.

This conclusion is supported by the following three conclusions.Briefly, EC-II relied on dubious scientific assumptions, did not focus onrealistic environmental concerns, inadequately evaluated some importantenvironmental concerns, and ignored other real environmental concerns.18

47. Despite the much vaunted completed several seasons of biosafety risks

assessments under multi-location and large scale field trials all over India, it is relevant

to note that on 9 February 2010 and faced with safety uncertainties, Jairam Ramesh,

then Minister of Environment of India, declared a moratorium on the commercial

approval of Btbrinjal in India, citing the need for further safety testing. Bt brinjal is the

equivalent of Bttalong in India.19

48. Not only has the scrutiny of the MAHYCO data provided insight into the

substandard and extremely misleading interpretation of results, but it suggests that

urgent changes need to be made to ensure that future studies are properly conducted

and interpreted. As attested to by modern biology expert Dr. Pushpa M. Bhargava, who

is also the former and founder director of the Centre for Cellular and Molecular Biology

17 The Codex Alimentarius (Latin for "Book of Food") is a collection of internationally recognizedstandards, codes of practice, guidelines and other recommendations relating to foods, food productionand food safety. Its texts are developed and maintained by the Codex Alimentarius Commission, a bodythat was established in 1963 by the Food and Agriculture Organization of the United Nations (FAO) andthe World Health Organization (WHO). The Commission's main aims are stated as being to protect thehealth of consumers and ensure fair practices in the international food trade. The Codex Alimentarius isrecognized by the World Trade Organization as an international reference point for the resolution ofdisputes concerning food safety and consumer protection. According to the Bureau of Agriculture andFisheries Standards of the Philippines, at present, national microbiological standards for food have notyet been established. Philippine food regulations are thus generally patterned after Codex AlimentariusCommission guidelines as well as regulations established by the Food and Drug Administration of theUnited States and similar regulatory bodies in other countries.18Pp. 2-3.19A copy of former Minister Rameshs Decision declaring said moratorium is hereto attached as AnnexJ. See alsohttp://moef.nic.in/downloads/public-information/minister_REPORT.pdf .
http://moef.nic.in/downloads/public-information/minister_REPORT.pdfhttp://moef.nic.in/downloads/public-information/minister_REPORT.pdfhttp://moef.nic.in/downloads/public-information/minister_REPORT.pdfhttp://moef.nic.in/downloads/public-information/minister_REPORT.pdf


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(CCMB), Hyderabad, India, which institution is widely regarded around the world as

one of the finest institutions in modern biology, at least 30 more tests are required to

assess the safety of genetically modifiedBttalong20.

48.1. As a background, Dr. Bhargava was the first one to use the

term genetic engineering in India in 1973.

48.2. He was also instrumental in setting up the Department of

Biotechnology of the Government of India, which is authorized to take the

first step in the process of approval of genetically engineered or modified

products or organisms.

48.3. He was the chairman of the first committee set up on genetic

engineering and molecular biology by the Science and Engineering

Research Council of the Department of Science and Technology of the

Government of India.

48.4. With his over 60 years of research experience as a scientist, he

has held many important positions, both in the Government and in the

private sector, and received a large number of honours and awards.

48.5. With his foregoing qualifications, he is being regarded as an

expert in the field of genetic engineering.

20A copy of Dr. Bhargavas Affidavit, with the attached list of tests and analyses to be performed beforeGMO may released in the environment, is hereto attached as Annex K.


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49. In addition to Dr. Bhargavas studies, in 2009, Professor Eric-Gilles

Seralini of the University of Caen, France and president of the Scientific Council of the

Committee for Independent Research and Information on Genetic Engineering (CRIIGEN),

released a critique, commissioned by Greenpeace, of Mahycos data submitted in

support of the application to grow and market genetically engineered (GE) Bteggplant

in India. Professor Seralini found numerous clear significant differences that raise food

safety concerns and warrant further investigation.

50. The work of Professor Seralini was cited by the Project Proponents in its

Field Trial Proposal as a footnote to the MAHYCO Dossier cited therein. The footnote

states:

French Scientist Prof. Gilles-Eric Seralini of (CRIIGEN), commissioned byGreenpeace India, undertook an assessment of Mahycos dossier on toxicity testsapproved by the Indian regulatory authorities GEAC. His conclusions

contradicted the findings of Mahyco and GEAC assessment. For more detaileddiscussion, please refer to Section X-I and cross-references.21

51. Section X-I of the Field Trial Proposal has the following entry in relation to

the Seralini study, to wit:

I. General and Recent Issues Raised Against GM crops, Bteggplant and Responses

Issues Information/Findings Crossreference toAppendices

xxx2. Safetyof Bteggplanttohumans

andanimals

French Scientist Prof. Gilles-Eric Serallini of (CRIIGEN),commissioned by Greenpeace India, carried out an assessmentof Mahycos dossier on toxicity tests approved by the Indianregulatory authorities GEAC (see Appendix 6, this proposal).His key findings showed statistical significant differences

between group of animals fed GM and non-GM eggplant. Thedifferences were also reported by Mahyco but found them tobe within the range of variation shown by a set of referencenon-GM eggplant consumed in India. It should be noted that

Appendix8(2); 8(3)

21Field Trial Proposal, p. 4.


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he Bt eggplant paper was not published in a peer-reviewedscientific journal

52. In his Affidavit22, Prof. Seralini underscored the need for more testing

in order to obtain a reliable measure of the aforementioned risks the absence of which

was part of the justification for the moratorium on open field trials of Genetically

Modified Aubergine (Bt) in India.

53. Said Prof. Seralini:

5. With my 20 years of experience in research as a scientist who has heldmany important positions, both with the government and in the privatesector, I certify that the release in the environment of agricultural GMOs,including open trials, may lead to numerous adverse effects on humanand animal health, as well as on agriculture and environment. As themajority of world experts in this field who do not have a conflict ofinterest, I believe that more testing must be done in order to obtain areliable measure of the aforementioned risks, and that the decision as tocarry out open field trials must be based on an unbiased evaluation of theresults of those tests.

6. Because of the aforementioned reasons, such as the lack of appropriatetesting and the probability of human and animal health hazard, as well asthe risks for agriculture and the environment, the Ministry ofEnvironment and Forests of India imposed, among others, an indefinitemoratorium in February 2010 on the cultivation in open fields of

Genetically Modified Aubergine (Bt) in India.23

54. From the Philippines, and corroborating Professor Seralinis conclusion,

human toxicologists Dr. Wency Kiat of St. Lukes Hospital in the Philippines and Dr.

Romeo Quijano of the University of the Philippines, Diliman stated in their joint

affidavit24that the altered condition of rats symptomatically indicate hazards for human

health. They summarized in table 1 below the potential implications for human health

22A copy of the Affidavit dated 19-10-2011 is attached hereto as Annex L.23At p. 224A copy of Dr. Wency Kiat and Dr. Romeo Quijanos Joint-Affidavit is hereto attached as Annex M.


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of the indicators in rats based on table 2 that shows the results of statistical analysis of

raw data from MAHYCOs 90-day study.

Table 1

Indicator What it might indicate

Elevated white bloodcounts from chronicexposure

Inflammation, allergy,tissue injury

Higher aspartateaminotransferase in

bloodfrom acute exposure Liver complications ordamageElevated bilirubin in

bloodAltered plasmaAcetylcholinesteraseSmaller ovaries Reproductive toxicityEnlarged spleens Chronic infections or

blood cancer

Table 2. Results of statistical analysis of raw data from the 90-day study

Test group mean values females/males/total

Vehicle controlgroup (G1)

non-transgenicbrinjal (G2)

Bt brinjal group(G4)

Organ weight ovaries (g)Females only)

0.11** 0.10** 0.06

Organ weight spleen (g)females/males/total

0.86/1.34/1.10 0.81*/1.20/1.00 1.02/1.19/1.11

Organ weight kidneys (g)females/males/total

1.42/1.34/1.38 1.49/1.20/1.34 1.48/1.19/1.34

Total white bloodcells(x103/cmm)females/males/total

9.3*/11.1/10.2* 9.3*/10.3/9.8* 14.0/12.6/13.3


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Aspartateaminotransferase(AST)females/males/total

134.5/189.5/162.0 152.7/166.0/159.4 151.7/156.5/154.1

Plasmaacetylcholinesterase(IU/L)females/males/total

591.6/604.0**/597.8**

731.0/753.2/742.1 875.0/902.6/888.8

RBCacetylcholinesterase(IU/L)females/males/total

299.9/388.3/344.1 332.1/390.1/361.1 265.7/335.6/300.6

Totalacetylcholinesterase(IU/L)females/males/total

891.4/992.4/941.9* 1063.1/1143.3/1103.2

1140.7/1238.2/1189.4

Bilirubin (mg/dl)females/males/total

.58**/.51/.54* .60**/.52/.56** .81/.52/.66

*Statistically significant difference from G IV at p < 0.05**Statistically significant difference from G IV at p < 0.01

55. Dr. Angelina P. Galang, Phd. also attested that the harmful effects of

GMOs has been shown when laboratory animals fed with GMOs showed

abnormalities, as did their offspring and offspring of their offspring25. She further

testified that epidemics among humans who ate GMO-containing food have occurred.

They experienced pain, weakness, nausea, rashes, etc. Noteworthy are those in the U.S.

involving genetically modified Starlink corn used in nachos and tortillas in fast food

outlets and L-tryptophan, a drug that helps induce sleep made by Showa Denko which

used genetically modified bacteria in its manufacturing process. The latter caused more

than a thousand deaths. These epidemics could directly be linked to GMOs because

they were acute, involved large numbers of people and were reported to the Center for

Disease Control right away.26 Finally, she noted that statistics also show that soya

25A copy of Dr. Galangs Affidavit is attached hereto as Annex N.26Ibid. at p. 2.


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allergies have risen 50% since the widespread introduction of GM soya27. There are

also several independent studies28 that show signs of toxicity in genetically engineered

eggplant and other crops.

Environmental risks of Bt talong29

56. With regard to the environmental risks of Bt talong, Dr. Charito Medina,

a Filipino expert in ecology, environmental science, and natural resources management,

attested30that In its formulated natural form, Bt has been used by farmers practicing organic

and other sustainable growing methods since the 1950s as a spray to kill pests without damaging

non-targeted insects or other wildlife. However, the Bt toxins produced by insect resistant crops

are significantly different. Natural Bt sprays have little effect on non-target organisms because

the bacterial pro-toxin is in an inactive state and only becomes toxic when processed in the gut

of certain (targeted) species of insect larvae. In contrast, Bt plants contain an artificial, truncated

Bt gene and less processing is required to generate the toxin because it is already in its active

form. It is therefore less selective, and may harm non-target insects that do not have the enzymes

to process the pro-toxin, as well as the pests for which it is intended.31

57. Dr. Medina added that Bt proteins from natural Bt sprays degrade

relatively quickly in the field as a result of ultraviolet light and lose most toxic activity

27Ibid. at p. 2.28Please see Annexes K to K-1329WHO 20 Questions on GM Foods, supra, note 9, has identified the following environmental concerns:

the capability of the GMO to escape and potentially introduce the engineered genes into wildpopulations; the persistence of the gene after the GMO has been harvested; the susceptibility of non-target organisms (e.g. insects which are not pests) to the gene product; the stability of the gene; thereduction in the spectrum of other plants including loss of biodiversity; and increased use of chemicals inagriculture. The environmental safety aspects of GM crops vary considerably according to localconditions.

Current investigations focus on: the potentially detrimental effect on beneficial insects or a fasterinduction of resistant insects; the potential generation of new plant pathogens; the potential detrimentalconsequences for plant biodiversity and wildlife, and a decreased use of the important practice of croprotation in certain local situations; and the movement of herbicide resistance genes to other plants.30The Affidavit of Dr. Medina is hereto attached as Annex P.31Ibid. at p. 2.


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within several days to two weeks after application. In Bt crops, however, the Bt toxin is

produced by the internal system of the plant thus non-degradable by mere exposure to

sunlight and generated throughout the entire lifespan of the plant32.

58. The Bt talong can also affect the environment by harming important or

beneficial insects directly or indirectly, according to Dr. Medina. GE Bt eggplant, like

other Bt crops, could be harmful to non-target organisms if they consume the toxin

directly in pollen or plant debris. This could cause harm to ecosystems by reducing the

numbers of important species, or reducing the numbers of beneficial organisms that

would naturally help control the pest species.33

58.1. The Bt toxins in GE eggplant are specifically toxic to

Lepidoptera (butterflies and moths), but not all of these are pests. The

potential for GE Bt crops to be directly toxic to non-target species was

highlighted by research in the USA when it was demonstrated that pollen

from one type of GE Bt maize (Bt176) was toxic to the much-loved

Monarch butterfly.34 More recently, it has been shown that long-term

exposure even to relatively low levels of Bt in maize pollen causes adverse

effects on larvae of the Monarch butterfly. Importantly, these risks to non-

target species were not identified until after commercialization of Bt

maize, and required several years of research for the long-term

implications to be realized. These harmful effects of GMO plants on the

environment were also explained and attested by Dr. Galang in her

affidavit, thus:

GMO plants could also pose serious threat on theenvironment. Butterflies and other beneficial insects may be

affected by GMOs, just as the intended pests are killed. A

32Ibid. at p. 233Ibid at p. 2.34Losey J. E, Raynor, L. & Cater, M.E. (1999). Transgenic pollen harms monarch larvae. Nature 399: 214


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population of monarch butterflies was impacted when theircaterpillars fed on milkweed plants on which GMO cornpollen had settled35

58.2. As regards its indirect effects, data from Bt Cry1Ab maize

indicate that the beneficial insects, lacewings, have increased mortality

when fed on larvae of a maize pest, the corn borer, which had been fed on

Bt36. Numbers of beneficial ladybeetles were found to be lower in Bt maize

plots than in non-Bt maize. Ladybeetles feed on many food sources

including on aphids, pollen, European corn borer eggs and other pest

eggs37, so have several routes of exposure to the Bt toxin. Non-target,

beneficial species that may feed on eggplant could be similarly affected.

58.3. Changes in populations of both pests and of natural enemies

have been documented in Bt cotton. Data from China show that use of Bt

crops can exacerbate populations of other secondary pests, including

aphids, lygus bug, whitefly, Carmine spider mite and thrips. Studies there

have shown significant reductions in populations of the beneficial

parasites Microplitis sp. (88.9% reduction) and Campoletis chloridae (79.2%

reduction) in Bt cotton fields.38

59. The evolution of resistance to Btcrops is a real risk and is treated as such

in ecological science throughout the world,Dr. Medina emphasized in his affidavit.

35Galang Affidavit, supra, at p. 2.36Hillbeck, A., Baumgartner, M., Fried, P.M. & Bigler, F. 1998. Effects of transgenic Bacillus thuringiensiscorn-fed prey on mortality and development time of immature Chrysoperla carnea (Neuroptera:Chrysopidae). Environmental Entomology 27: 480-487; Hillbeck, A., Moar, W.J., Pusztai-Carey, M.,Filippini, A. & Bigler, F. 1998. Toxicity of Bacillus37Wold, S.J., Burkness E.C., Hutchinson, W.D.,Venette, R.C. 2001. In-field monitoring of beneficial insectpopulations in transgenic corn expressing a Bacillus thuringensis toxin. Journal of Entomological Science36: 177-18738Cui, J. and J. Xia. 1999. Effects of transgenic Bt cotton on the population dynamics of natural enemies.Acta Gossypii Sinica 11: 84-91


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On one hand, any pest control practice will select for resistant individuals in the target

pest population. If enough individuals become resistant then the pest control fails. The

pest becomes abundant and affects crops yield. On the other hand, granting that the

pest control practice is successful, it may also simply swap one pest for another. Several

studies have shown that other pest insects are filling the void left by the absence of the

one (or very few) insect pests that Btcrops target, and this is now a problem with Bt

maize39.

60. Similarly, Dr. Angelina P. Galang attested that studies show that

contrary to claims by GMO manufacturers that the built-in pesticides will decrease the

use of chemicals, the latter has actually increased the use of said chemicals40.

61. Dr. Medina further attested in his affidavit that it is a common

knowledge that eggplant is 48% insect pollinated thereby any field release or field

testing of genetically modified Bt talong will eventually lead to the contamination of

non-genetically modified eggplant varieties. He added that insects, particularly

honey bees as pollinators, can fly as far as four kilometers and this is the potential

contamination area. Therefore, the 200 meters perimeter pollen trap area in the confined

field testing set by the Bureau of Plant Industry is not sufficient to stop contamination of

nearby eggplant during the Bt eggplant field testing phase. And once contamination

occurs, genetic cleanup of eggplant or any other plant is impossible.41

62. Reiterating one of the conclusions of the US-NAS review, Dr. Medina

stressed in his affidavit:

It is highly likely that cultivated eggplant (scientific name: Solanummelongena), including local varieties and landraces can cross breed with

feral populations of S. melongena, and it is possible that cultivated varietiescan revert to wild phenotypes and establish feral populations. Therefore,

39Medina Affidavit, supra. at p. 3.40Galang Affidavit, supra. at p. 3.41Medina Affidavit, supra. at p. 3


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the possible effects of intra-specific gene flow from Bt talong to othervarieties and populations of eggplant should be examined. In addition,there is likely to be natural crossing between Bt talong and wild relatives.Hybridization with perhaps as many as 29 wild relative species needs tobe evaluated carefully and the consequences of any hybridization that

occurs needs to be evaluated. In the MAHYCO Dossier, there isinsufficient evidence that 1) wild or weedy relatives of eggplant wouldnot obtain a fitness benefit from a Bttransgene should gene flow occur; 2)wild relatives of eggplant will not suffer reduced genetic diversity fromthe introgression of the Bttransgene; and 3) non-GM eggplant will remainuncontaminated by Bteggplant. All of these risks need to be evaluated.42

63. The several independent studies and critical reviews mentioned in the

preceding paragraphs are only among numerous scientific literature and initiatives that

prove the health, environmental and other hazards, and show serious scientific

uncertainties over the safety of Bt talong and its field trial. When Respondents Project

Proponents fully accepted the MAHYCO safety assurance without consideration of the

rich scientific literature and initiatives unfavorable to Bt talong field testing, they acted

without the honest curiosity of a scientific mind. When they claimed that they havecomplied with regulatory requirements that, as have been pointed out above, do not

precisely and adequately assess the numerous risks of Bt talong , they betrayed the

noble purpose of science, the public trust that characterize their offices, and the

environmental rights of the Petitioners in particular and of the Filipino people in

general.

64. Given the foregoing, there appears to be no clear, definitive and

authoritative study on the safety of Bt talong for human consumption and the

environment. At the very least, the conflicting claims should lead the Respondent

government agencies to apply the precautionary principle before any field trial is

conducted.

42Ibid. at p. 3.


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BT TALONG FIELD TRIAL DID NOTCOMPLY WITH SECTIONS 26 & 27OF THE LOCAL GOVERNMENT CODE

65. Given the foregoing health and environmental risks and uncertainties, it is

incumbent upon the Project proponents to have complied with the requirements of

Section 26 and 27 of the Local Government Code.

66. The aforesaid provisions are quoted hereunder in full, thus:

Section 26. Duty of National Government Agencies in the Maintenanceof Ecological Balance. - It shall be the duty of every national agency orgovernment-owned or controlled corporation authorized or involved inthe planning and implementation of any project or program that maycause pollution, climatic change, depletion of non-renewable resources,loss of crop land, rangeland, or forest cover and extinction of animal orplant species, to consult with the local government units, non-governmental organizations, and other sectors concerned and explain thegoals and objectives of the project or program, its impact upon the peopleand the community in terms of environmental or ecological balance, and

the measures that will be undertaken to prevent or minimize the adverseeffects thereof.Section 27. Prior Consultations Required. - No project or program

shall be implemented by government authorities unless the consultationsmentioned in Sections 2 (c) and 26 hereof are complied with, and priorapproval of the sanggunian concerned is obtained: Provided, Thatoccupants in areas where such projects are to be implemented shall not beevicted unless appropriate relocation sites have been provided, inaccordance with the provisions of the Constitution.

67. In order to call for the application of the foregoing provisions, the project

or program must involve possible pollution, climatic change, depletion of non-

renewable resources, loss of crop land, rangeland, or forest cover and extinction of

animal or plant species.

68. Outcrossing is essentially the pollution of the local biodiversity by the

genetically modified crops such as the Bt talong. There is also the very real possibility of

the loss of non-GM crop species as the open field testing of the GM crops may result to


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cross pollination and contamination of these non-GM crops and subsequent extinction

of these species in the local environment.

69. The detrimental and deleterious effects of GM crops to non-target

organisms such as the Monarch butterflies, moth, ladybeetles and lacewings, may also

result to the extinction of these animal species.

70. The very real risk of increased use of and dependence on herbicides has

been acknowledge by the World Health Organization as a cause for concern, thus:

Q18. Why are certain groups concerned about the growinginfluence of the chemical industry on agriculture?

Certain groups are concerned about what they consider to be anundesirable level of control of seed markets by a few chemical companies.Sustainable agriculture and biodiversity benefit most from the use of arich variety of crops, both in terms of good crop protection practices aswell as from the perspective of society at large and the values attached tofood. These groups fear that as a result of the interest of the chemicalindustry in seed markets, the range of varieties used by farmers may be

reduced mainly to GM crops. This would impact on the food basket of asociety as well as in the long run on crop protection (for example, with thedevelopment of resistance against insect pests and tolerance of certainherbicides). The exclusive use of herbicide-tolerant GM crops would alsomake the farmer dependent on these chemicals. These groups fear adominant position of the chemical industry in agricultural development, atrend which they do not consider to be sustainable. 43

71. Owing to the novelty of the technology used as well as the fact that no

long-term, comprehensive and extensive study has been done with respect to Bttalong,

there is no assurance that in the long term and as shown in the harmful effect of Bt

maize on the Monarch Butterflies, this technology will not affect or produce harmful

effects on the crop lands and range lands or other animal or plant species.

72. Given the foregoing, there exist no doubt as to the applicability of Sections

26 and 27 in the case of Bt talong field testing. As shown, however, in the case of

43See note 29.


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Pangasugan, Baybay, Leyte, in Santa Barbara, Iloilo and Davao City, no public

consultations were done.44

73. Even in Bay, Laguna, a random survey conducted by Petitioner

Greenpeace in the immediate vicinity where Bt talong field trial was being conducted

showed that the inhabitants expressed lack of knowledge about Bt talong and its field

testing in their locality.45

74. The consent of the local government units in the aforesaid locations was

likewise not obtained. On the contrary, resolutions ordering the suspension and

declaring their opposition to theBt talong field testing were passed by the respective

sanggunians of Pangasugan, Baybay, Leyte and Santa Barbara, Iloilo.46

75. The question of the applicability of Sections 26 and 27 of the Local

Government Code is already a settled matter under Philippine jurisprudence. The case

of Province of Rizal vs. Executive Secretary47 reiterated the Courts interpretation of the

said provisions in the earlier cases of Lina vs. Pano48 and Bangus Fry Fisherfolk vs.

Lanzanas49 and applied the same to the case of the San Mateo dumpsite. The ruling

states in part thus:

Contrary to the averment of the respondents, Proclamation No.635, which was passed on 28 August 1995, is subject to the provisions ofthe Local Government Code, which was approved four years earlier, on 10October 1991.

Section 2(c) of the said law declares that it is the policy of the stateto require all national agencies and offices to conduct periodicconsultations with appropriate local government units, non-governmentaland people's organizations, and other concerned sectors of the communitybefore any project or program is implemented in their respectivejurisdictions. Likewise, Section 27 requires prior consultations before a

44See pars. 13 to 15, this Petition.45Please see Annexes R up to R-9, which consist of the answers of the persons on the said surveyconducted by Greenpeace.46See note 44.47G.R. No. 129546, 13 December 200548G.R. No. 129093, 30 August 200149G.R. No. 131442. July 10, 2003


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program shall be implemented by government authorities and the priorapproval of the sanggunian is obtained.

x x xThe municipal mayors acted within the scope of their powers, and

were in fact fulfilling their mandate, when they did this. Section 16 allows

every local government unit to exercise the powers expressly granted,those necessarily implied therefrom, as well as powers necessary,appropriate, or incidental for its efficient and effective governance, andthose which are essential to the promotion of the general welfare, whichinvolve, among other things, promot(ing) health and safety, enhance(ing)the right of the people to a balanced ecology, and preserv(ing) the comfortand convenience of their inhabitants.

In Lina , Jr. v. Pao we held that Section 2 (c), requiringconsultations with the appropriate local government units, should applyto national government projects affecting the environmental or ecological

balance of the particular community implementing the project. Rejectingthe petitioners contention that Sections 2(c) and 27 of the LocalGovernment Code applied mandatorily in the setting up of lotto outletsaround the country, we held that:

From a careful reading of said provisions, we find thatthese apply only to national programs and/or projectswhich are to be implemented in a particular localcommunity. Lotto is neither a program nor a project of thenational government, but of a charitable institution, thePCSO. Though sanctioned by the national government, it is

far fetched to say that lotto falls within the contemplation ofSections 2 (c) and 27 of the Local Government Code.Section 27 of the Code should be read in conjunction

with Section 26 thereof. Section 26 reads:SECTION 26. Duty of National

Government Agencies in the Maintenance ofEcological Balance. It shall be the duty of everynational agency or government-owned orcontrolled corporation authorizing or involvedin the planning and implementation of anyproject or program that may cause pollution,climatic change, depletion of non-renewableresources, loss of crop land, range-land, orforest cover, and extinction of animal or plantspecies, to consult with the local governmentunits, nongovernmental organizations, andother sectors concerned and explain the goalsand objectives of the project or program, itsimpact upon the people and the community interms of environmental or ecological balance,and the measures that will be undertaken to

prevent or minimize the adverse effectsthereof.

Thus, the projects and programs mentioned in Section 27 shouldbe interpreted to mean projects and programs whose effects are amongthose enumerated in Section 26 and 27, to wit, those that: (1) may causepollution; (2) may bring about climatic change; (3) may cause the


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depletion of non-renewable resources; (4) may result in loss of cropland, range-land, or forest cover; (5) may eradicate certain animal orplant species from the face of the planet; and (6) other projects orprograms that may call for the eviction of a particular group of peopleresiding in the locality where these will be implemented. Obviously,

none of these effects will be produced by the introduction of lotto in theprovince of Laguna. (Emphasis supplied)

76. The Supreme Court concluded in the said case that:

Under the Local Government Code, therefore, two requisites mustbe met before a national project that affects the environmental and

ecological balance of local communities can be implemented: priorconsultation with the affected local communities, and prior approval of theproject by the appropriate sanggunian. Absent either of these mandatoryrequirements, the projects implementation is illegal.

77. In this case, all the foregoing requirements are not present.

78. There is no question that Respondents DENR-EMB, BPI and FPA are

national government agencies involved in the Bt talong field trials. Pursuant to DAO

No. 8-2002, the Bttalong filed trials is a project that significantly affects the quality of

the environment, involves pollution of local biodiversity and affects the ecological

balance.

79. Despite its possible ramifications on the environment, no prior

consultations were done with the affected local communities.

80. Neither was the consent of the affected sanggunians obtained. On the

contrary, the affected sanggunians even expressed their opposition to the proposed

field trials.

81. More importantly, however, the potential dissemination of Bt talong

through outcrossing poses a risk not only to the communities where field testing is

being done. There is a real risk that this can spread throughout the country even in the


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provinces, such as Negros, Davao City and Bohol that have standing resolutions or

ordinances against genetically modified organisms.50

82. Given the failure to observe the foregoing mandatory requirements, the Bt

talong field trials are illegal and should be immediately stopped.

ON THE WRIT OF KALIKASAN

CONSTITUTIONAL PROVISIONS,ENVIRONMENTAL PRINCIPLES,RULES AND REGULATIONSTRANSGRESSED

83. Respondents act of conducting a multi-location field trial of Bt talong

violates the following constitutional provisions, environmental principles, rules and

regulations:

83.1. Sections 15 and 16, Article II of the Philippine Constitution

providing for environmental and health rights;

83.2. Section 7, Article III, Section 16, Article XIII, and Section 9,

Article XVI of the Philippine Constitution guaranteeing the public's right

to information on matters of public concern, right to participation, and

consumer protection;

83.3. The Precautionary Principle of international environmental

law;

50See Annex S.


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83.4. Executive Order No. 514 or the National Bio-safety

Framework of the Philippines; and,

83.5. Department of Agriculture Administrative Order No. 08, series of

2002 or the Rules and Regulations on the Importation and Release into the

Environment of Plants and Plant Products Derived from the Use of Modern

Biotechnology.

The holding of multi-location field trials ofBt talong, preparatory to its eventualcommercialization, violates theenvironmental rights of the petitioners inparticular and of the Filipino people ingeneral as expressed in the Constitutionalrights to a balanced and healthful ecology,and to health; and disregards theprecautionary principle that guides theexercise of these environmental rights.

84. Section 16, Article II of the 1987 Constitution explicitly provides:

Sec.16. The State shall protect and advance the right of the peopleto a balanced and healthful ecology in accord with the rhythm andharmony of nature.

85. In relation to this, Section 15 of the same Article provides:

Sec.15. The State shall protect and promote the right to health of

the people and instill health consciousness among them.


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86. In Oposa, et al. vs. Factoran, et al. (G.R. No. 101083 July 30, 1993), this High

Court announced that the right to a balanced and healthful ecology was not just an

empty rhetoric found in the Constitution:

While the right to a balanced and healthful ecology is to be foundunder the Declaration of Principles and State Policies and not under theBill of Rights, it does not follow that it is less important than any of thecivil and political rights enumerated in the latter. Such a right belongs to adifferent category of rights altogether for it concerns nothing less thanself-preservation and self-perpetuation the advancement of which mayeven be said to predate all governments and constitutions.

87. It declared that environmental rights are enforceable notwithstanding

whether they are constitutionally expressed because of their inception before

humankind and added that:

As a matter of fact, these basic rights need not even be written inthe Constitution for they are assumed to exist from the inception ofhumankind. If they are now explicitly mentioned in the fundamentalcharter, it is because of the well-founded fear of its framers that unless therights to a balanced and healthful ecology and to health are mandated asstate policies by the Constitution itself, thereby highlighting theircontinuing importance and imposing upon the state a solemn obligationto preserve the first and protect and advance the second, the day wouldnot be too far when all else would be lost not only for the presentgeneration, but also for those to come generations which stand toinherit nothing but parched earth incapable of sustaining life.

88. This High Court went further by emphasizing inOposathat the right to a

balanced and healthful ecology carries with it the correlative duty to refrain from

impairing the environment.

89. To protect these constitutionally guaranteed environmental rights, this

High Court adopted the precautionary principle when it promulgated the Rules of

Procedure for Environmental Cases. In its annotation to the Rules, this High Court

explains that the adoption of precautionary principle as part of these Rules, specifically


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relating to evidence, recognizes that exceptional cases may require its application. The inclusion

of a definition of this principle is an integral part of Part V, Rule on Evidence, in environmental

cases in order to ease the burden on the part of ordinary plaintiffs to prove their cause of action.

This High Court continues:

In its essence, the precautionary principle calls for the exercise ofcaution in the face of risk and uncertainty. While the principle can beapplied in any setting in which risk and uncertainty are found, it hasevolved predominantly in and today remains most closely associated withthe environmental arena.

The Rules acknowledge the peculiar circumstances surroundingenvironmental cases in that scientific evidence is usually insufficient,inconclusive or uncertain and preliminary scientific evaluation indicatesthat there are reasonable grounds for concern that there are potentiallydangerous effects on the environment, human, animal, or planet health

90. For this reason, again this High Court points out in the annotation of the

Rules that the principle requires that those who have the means, knowledge, power, and

resources to take action to prevent or mitigate the harm to the environment or to act when

conclusively ascertained understanding by science is not yet available. In effect, the quantum of

evidence to prove potentially hazardous effects on the environment is relaxed and the burden is

shifted to proponents of an activity that may cause damage to the environment.

91. The same principle of precaution is in line with the principles of balanced

and scientific approaches as stated in Executive Order No. 514 or the National Bio -

safety Framework of the Philippines, to wit:

Section 2.3. A Balanced Approach. A balance approach, whichrecognizes both the potential benefits ad risks, shall guide theimplementation of the NBF. This shall be based on recognition that

modern biotechnology has significant potential for human well-being ifdeveloped a

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Greenpeace Bt Talong Petition