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Environment
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Understanding the Mechanics of and Defense Strategies for
Rules of Procedure for Environmental Cases
Flow of PresentationOverview of RulesComparing and Contrasting the TwoWrits ‐ Writ of Kalikasan and Writ of Continuing MandamusEnvironmental Protection Order14 Possible Defenses7 Actual Cases using Rules
Overview of Rules of Procedure for Environmental CasesA.M. 09 6 8 SC‐ ‐ ‐effective: April 29, 2010
Objectives
Balanced and Healthful Ecology
Simplified, Speedy and Inexpensive ProcedureBest PracticesCompliance with Judicial Orders
ScopeLaws on Environment: Environmental Cases arising from laws on the conservation, development, preservation, protection and utilization of the environment and natural resources (Enumeration Inclusive)Mining Laws: Philippine Mining Act, People’s Small‐Scale Mining Act
Other Relevant Laws: Clean Air Act, Clean Water Act, Indigenous Peoples Rights Act, Wildlife Conservation and Protection Act
3 kinds of actions covered:
Civil Action – citizen suits; TEPOSpecial Civil Action
‐ Writ of Kalikasan‐ Writ of Continuing Mandamus
Criminal Actions
InnovationsLiberalizes locus standi and citizen’s suit (allows minors; NGOs/ POs/ PIGs)Ensures Speedy Disposition of Cases (“All‐In”Approach; 1‐year Trial; Prohibited Pleadings; Affidavits in lieu of Direct Examination: Extensive Pre‐Trial; In Criminal Cases, Trial in absentia)Provides Consent Decree (Court‐approved settlement; consistent with public interest, public policy, pro‐environment)
Innovations
Recognizes Precautionary Principle (lessens evidentiary burden; scientifically plausible but uncertain; threat of irreversible/ grave damage)Incorporates Strategic Lawsuit Against Public Participation or SLAPP (any case; against any person; harassment or stifle legal recourse; has taken or may take; environmental protection)Introduces Remedial Measures
WritofKalikasan ContinuingMandamus
SubjectMatter UnlawfulActorOmission;Life,HealthorProperty;Magnitude
NeglectorExclusion;Law,RuleorRight
Petitioner Anypersonorrepresentative/agent(PO/NGO/PIG)
Onewhoispersonallyaggrieved
Respondent PublicorPrivateEntityorIndividual GovernmentorOfficers
TEPO AncillaryRemedy AncillaryRemedy
Venue SCorCA SC,CAorRTC
DiscoveryMeasures
OcularInspectionorProductionofDocuments Noenumeration
Damages None;SeparateSuit AllowsDamagesforMaliciousNeglectofDuty
Writ of Kalikasan and Continuing Mandamus
Similarities and Differences
Stages
1st Stage: Upon filing of Petition, Court issues Writ of Kalikasan – requires respondent to file a Verified Return – all defenses in.2nd Stage: After Trial, Court grants or denies Privilege of the Writ of Kalikasan
ProcedurePetition (may include prayer for issuance of Temporary Environmental Protection Order [TEPO])
Court Action: issues Writ (may include Cease and Desist Order) and requires Respondent(s) to File Verified Return (within 3 days from filing of Petition which is sufficient in form and substance)Service of WritRespondent files Return; Raise all Defenses (10 days)
Judgment/ Reliefs
Granting or Denying the Privilege of the WritPermanent Cease and Desist
Protect, Preserve, Rehabilitate or Restore Environment
Monitor Strict CompliancePeriodic Reports
Other Reliefs (except Damages to Individual Petitioners)
Environmental Protection Order (EPO)
Instrument: Court‐issued OrderNature: Ancillary Remedial Measure
Subject: Any Person or Government AgencyObject: Direct/ Perform or Enjoin/ Desist from performing an ActPurpose: Protect, Preserve or Rehabilitate Environment
Temporary EPO (TEPO)Complaint/ Petition: contains prayer for EPOConditions: Extreme urgency and grave injustice and reparable injury
Issuing Authority: Executive Judge
Issuance: Ex‐parte (hearing during 72 hours)
Temporary EPO (TEPO)
Duration: 72 hours (may be extended until case terminated)
Respondent’s Recourse: Motion to DissolveConversion: TEPO may be converted to EPO or Writ of Continuing Mandamus
14 Possible Defenses1.
2.
3.
4.
5.
6.
7.
No environmental damageNo environmental damage caused by RespondentEnvironmental damage caused by anotherNot environmental caseNot violate environmental lawNot prejudice life, health or property of inhabitantsNot affect 2 or more cities or provinces
14 Possible Defenses
8. No evidence
9. No causal link between act and damage
10. There is plain, speedy and adequate remedy –exhaustion of administrative remedies.
11. Compliance with all laws and regulations
12. Compliance with all ECC conditions
13. Case amounts to SLAPP
14. Constitutional issues against the Rules
violates Doctrine of Separation of Powers – Executive has full control and supervision over exploration, development and utilization of natural resources.Deprivation of property without due process of law.Expansion of Supreme Court’s original jurisdiction –judicial legislation
7 Actual Cases using the Rules of Procedure for Environmental Cases.
(1) FPIC Pipeline
Parties: West Tower vs. First Philippine Industrial Corporation (FPIC)Area Affected: Batangas to Manila
Law Involved: Clean Air Act, Clean Water ActDamage: Damaged pipeline bearing dangerous chemicals; soil and water contaminationDefense: Exercised diligence; damage in Makati only
(1) FPIC Pipeline
Writ of Kalikasan GRANTED1. Cease and Desist pipeline operation2. FPIC to check structural integrity of pipeline3. Temporary Environmental Protection Order issued
(2) MeralcoTransmission Lines
Parties: Residents of Makati and Pasay vs. MeralcoArea Affected: Makati and PasayLaw Involved: Constitution, Sanitation Code
Damage: Prolonged exposure to electromagnetic radiationDefense: Health Hazard, not Environmental Harm
(2) MeralcoTransmission Lines
Writ of Kalikasan DENIED1. Meralco complied with all environmental standards
embodied in ECC2. Transmission lines not pose a threat3. No evidence showing causal link between
electromagnetic field and illnesses
(3) Barrick Gold and Placer Dome
Parties: Hernandez et.al. vs. Barrick and PlacerArea Affected: Marinduque, Batangas, Romblon and Quezon
Law Involved: ConstitutionDamage: Pollution of rivers and bays
Evidence: Studies; AMD linked to deteriorating health; tailings seepage
(3) Barrick Gold and Placer Dome
Writ of Kalikasan GRANTEDTEPO issued
SC remanded to CA for hearing, reception of evidence and rendition of judgment
(4) Mining in Surigao
Parties: Tribal Coalition vs. Taganito, Platinum, Oriental Synergy, Shenzou and MarcventuresArea Affected: Surigao del Norte and SurLaw Involved: Constitution, IPRA, Mining Act, Clean Water Act
Damage: Failure to provide siltation dams; water pollution; mangrove destructionDefense: Compliant with ECC; not show damage in more than 2 provinces
(5) Philex Silangan(6) Marcventures
Ground: Mining activities causing river pollution/ affecting water supply
Court Order: 72‐hour TEPO issued; Not extended or expired since no evidence presented
(7) Zamboanga
Ground: Mining activities causing pollutionArea Affected: Zamboanga PeninsulaCourt Order: Writ of Kalikasan
Thank you.
Source of presentation: Atty. Alberto C. Agra – Former Secretary, Department of Justice.Annotation to the Rules of Procedure – Supreme Court Sub‐ committee