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Pollution Adjudication Board vs. CA et al. G.R. No.

93891, Third Division, Feliciano

11 (J),

March 4

1991 concur

FACTS: Respondent, Solar Textile Finishing Corporation was involved in bleaching, rinsing and dyeing textiles with wastewater being directly discharged into a canal leading to the adjacent Tullahan- Tinerejos River. Petitioner Board, an agency of the Government charged with the task of determining whether the effluents of a particular industrial establishment comply with or violate applicable anti-pollution statutory and regulatory provisions, have been remarkably forbearing in its efforts to enforce the applicable standards vis-a-vis Solar. Solar, on the other hand, seemed very casual about its continued discharge of untreated, pollutive effluents into the river. Petitioner Board issued an ex parte Order directing Solar immediately to cease and desist from utilizing its wastewater pollution source installations. Solar, however, with preliminary injunction against the Board, went to the Regional Trial Court on petition for certiorari, but it was dismissed upon two (2) grounds, i.e., that appeal and not certiorari from the questioned Order of the Board as well as the Writ of Execution was the proper remedy, and that the Board's subsequent Order allowing Solar to operate temporarily had rendered Solar's petition moot and academic. Dissatisfied, Solar went on appeal to the Court of Appeals, which reversed the Order of dismissal of the trial court and remanded the case to that court for further proceedings. In addition, the Court of Appeals declared the Writ of Execution null and void. At the same time, the CA said that certiorari was a proper remedy since the Orders of petitioner Board may result in great and irreparable injury to Solar; and that while the case might be moot and academic, "larger issues" demanded that the question of due process be settled. Petitioner Board moved for reconsideration, without success. Arguing that that the ex parte Order and the Writ of Execution were issued in accordance with law and were not violative of the requirements of due process; and the ex parte Order and the Writ of Execution are not the proper subjects of a petition for certiorari, Oscar A. Pascua and Charemon Clio L. Borre for petitioner asked the Supreme Court to review the Decision and Resolution promulgated by the Court of Appeals entitled "Solar Textile Finishing Corporation v. Pollution Adjudication Board," which reversed an order of the Regional Trial Court. In addition, petitioner Board claims that under P.D. No. 984, Section 7(a), it has legal authority to issue ex parte orders to suspend the operations of an establishment when there is prima facie evidence that such establishment is discharging effluents or wastewater, the pollution level of which exceeds the maximum permissible standards set by the NPCC (now, the Board). Petitioner Board contends that the reports before it concerning the effluent discharges of Solar into the River provided prima facie evidence of violation by Solar of Section 5 of the 1982 Effluent Code. Solar, on the other hand, contends that under the Board's own rules and regulations, an ex parte order may issue only if the effluents discharged pose an "immediate threat to life, public health, safety or welfare, or to animal and plant life." In the instant case, according to Solar, the inspection reports before the Board made no finding that Solar's wastewater discharged posed such a threat. ISSUE: Whether or not the Court of Appeals erred in reversing the trial court on the ground that Solar had been denied due process by the Board. HELD: The Court found that the Order and Writ of Execution were entirely within the lawful authority of petitioner Board. Ex parte cease and desist orders are permitted by law and regulations in situations like here. The relevant pollution control statute and implementing regulations were enacted and promulgated in the exercise of that pervasive, sovereign power to protect the safety, health, and general welfare and comfort of the public, as well as the

protection of plant and animal life, commonly designated as the police power. It is a constitutional commonplace that the ordinary requirements of procedural due process yield to the necessities of protecting vital public interests like those here involved, through the exercise of police power. Hence, the trial court did not err when it dismissed Solar's petition for certiorari. It follows that the proper remedy was an appeal from the trial court to the Court of Appeals, as Solar did in fact appeal. The Court gave due course on the Petition for Review and the Decision of the Court of Appeals and its Resolution were set aside. The Order of petitioner Board and the Writ of Execution, as well as the decision of the trial court were reinstated, without prejudice to the right of Solar to contest the correctness of the basis of the Board's Order and Writ of Execution at a public hearing before the Board.

La Bugal-B'Laan Tribal Assn vs Ramos Case Digest G.R. No Facts

127882 :

On July 25, 1987, then President Corazon C. Aquino issued Executive Order (E.O.) No. 2796 authorizing the DENR Secretary to accept, consider and evaluate proposals from foreign-owned corporations or foreign investors for contracts or agreements involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, which, upon appropriate recommendation of the Secretary, the President may execute with the foreign proponent. On March 3, 1995, then President Fidel V. Ramos approved R.A. No. 7942 to "govern the exploration, development, utilization and processing of all mineral resources." R.A. No. 7942 defines the modes of mineral agreements for mining operations, outlines the procedure for their filing and approval, assignment/transfer and withdrawal, and fixes their terms. Similar provisions govern financial or technical assistance agreements. On April 9, 1995, 30 days following its publication on March 10, 1995 in Malaya and Manila Times, two newspapers of general circulation, R.A. No. 7942 took effect. Shortly before the effectivity of R.A. No. 7942, however, or on March 30, 1995, the President entered into an FTAA with WMCP covering 99,387 hectares of land in South Cotabato, Sultan Kudarat, Davao del Sur and North Cotabato. On August 15, 1995, then DENR Secretary Victor O. Ramos issued DENR Administrative Order (DAO) No. 95-23, s. 1995, otherwise known as the Implementing Rules and Regulations of R.A. No. 7942. This was later repealed by DAO No. 96-40, s. 1996 which was adopted on December 20, 1996. On January 10, 1997, counsels for petitioners sent a letter to the DENR Secretary demanding that the DENR stop the implementation of R.A. No. 7942 and DAO No. 96-40, giving the DENR fifteen days from receipt to act thereon. The DENR, however, has yet to respond or act on petitioners' letter. Petitioners claim that the DENR Secretary acted without or in excess of jurisdiction. They pray that the Court issue an order:

(a) Permanently enjoining respondents from acting on any application for Financial or Technical Assistance Agreements; (b) Declaring the Philippine Mining Act of 1995 or Republic Act No. 7942 as unconstitutional and null and void; (c) Declaring the Implementing Rules and Regulations of the Philippine Mining Act contained in DENR Administrative Order No. 96-40 and all other similar administrative issuances as unconstitutional and null and void; and (d) Cancelling the Financial and Technical Assistance Agreement issued to Western Mining Philippines, Inc. as unconstitutional, illegal and null and void. Issue Whether or not Republic Act No. 7942 is : unconstitutional.

Ruling : The Court finds the following provisions of R.A. No. 7942 to be violative of Section 2, Article XII of the Constitution and hereby declares unconstitutional and void: (1) The proviso in Section 3 (aq), which defines "qualified person," to wit: Provided, That a legally organized foreign-owned corporation shall be deemed a qualified person for purposes of granting an exploration permit, financial or technical assistance agreement or mineral processing permit. (2) Section 23, which specifies the rights and obligations of an exploration permittee, insofar as said section applies to a financial or technical assistance agreement, (3) Section 33, which prescribes the eligibility of a contractor in a financial or technical assistance agreement; (4) Section 35, which enumerates the terms and conditions for every financial or technical assistance agreement; (5) Section 39, which allows the contractor in a financial and technical assistance agreement to convert the same into a mineral production-sharing agreement; (6) Section 56, which authorizes the issuance of a mineral processing permit to a contractor in a financial and technical assistance agreement; The following provisions of the same Act are likewise void as they are dependent on the foregoing provisions and cannot stand on their own: (1) Section 3 (g), which defines the term "contractor," insofar as it applies to a financial or technical assistance agreement. Section 34, which prescribes the maximum contract area in a financial or technical assistance agreements; Section 36, which allows negotiations for financial or technical assistance agreements; Section 37, which prescribes the procedure for filing and evaluation of financial or technical assistance agreement proposals; Section 38, which limits the term of financial or technical assistance agreements; Section 40, which allows the assignment or transfer of financial or technical assistance agreements; Section 41, which allows the withdrawal of the contractor in an FTAA; The second and third paragraphs of Section 81, which provide for the Government's share in a financial and technical assistance agreement; and Section 90, which provides for incentives to contractors in FTAAs insofar as it applies to said contractors; When the parts of the statute are so mutually dependent and connected as conditions,

considerations, inducements, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect, the legislature would not pass the residue independently, then, if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected, must fall with them. WHEREFORE, the petition is GRANTED.

Didipio Earth Savers Multipurpose Association et al vs DENR Sec Elisea Gozun et al G.R. No. 157882 March 30, 2006 FACTS: In 1987, Cory rolled out EO 279 w/c empowered DENR to stipulate with foreign companies when it comes to either technical or financial large scale exploration or mining. In 1995, Ramos signed into law RA 7942 or the Philippine Mining Act. In 1994, Ramos already signed an FTAA with Arimco Mining Co, an Australian company. The FTAA authorized AMC (later CAMC) to explore 37,000 ha of land in Quirino and Nueva Vizcaya including Brgy. Didipio. After the passage of the law, DENR rolled out its implementing Rules and Regulations. Didipio petitioned to have the law and the Rules and Regulation to be annulled as it is unconstitutional and it constitutes unlawful taking of property. In seeking to nullify Rep. Act No. 7942 and its implementing rules DAO 96-40 as unconstitutional, petitioners set their sight on Section 76 of Rep. Act No. 7942 and Section 107 of DAO 96-40. Subsequently, AMC consolidated with Climax Mining Limited to form a single company that now goes under the new name of Climax-Arimco Mining Corporation (CAMC), the controlling 99% of stockholders of which are Australian nationals. Petitioners filed a demand letter addressed to then DENR Secretary Heherson Alvarez, for the cancellation of the CAMC FTAA for the primary reason that Rep. Act No. 7942 and its Implementing Rules and Regulations DAO 96-40 are unconstitutional. Petitioners thus filed the present petition for prohibition and mandamus, with a prayer for a temporary restraining order. ISSUE: Whether or not RA 7942 and the DENR Rules and Regulations are valid for sanctioning an unconstitutional administrative process of determining just compensation? Whether or not the State, through Republic Act No. 7942 and the CAMC FTAA, abdicated its primary responsibility to the full control and supervision over natural resources? WHETHER OR NOT THE 1987 CONSTITUTION PROHIBITS SERVICE CONTRACTS? HELD: The SC ruled against Didipio. The SC noted the requisites of eminent domain. They are: (1) the expropriator must enter a private property;(2) the entry must be for more than a momentary period;(3) the entry must be under warrant or color of legal authority; (4)The property must be devoted to public use or otherwise informally appropriated or injuriously affected;(5)the utilization of the property for public use must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property. In the case at bar, Didipio failed to show that the law is invalid. Indeed there is taking involved but it is not w/o just compensation. Sec 76 of RA 7942 provides for just compensation as well as section 107 of the DENR Rules and Regulations. Furthermore, mining is a public policy and the government can invoke eminent domain to exercise entry, acquisition and use of private lands. It has been ruled that the State may likewise compel the contractors compliance with mandatory requirements on mine safety, health and environmental protection, and the use of anti-pollution technology and facilities. Moreover, the contractor is also obligated to assist in the development of the mining community and to pay royalties to the indigenous peoples concerned. Cancellation of the FTAA may be the penalty for violation of any of its terms and conditions and/or noncompliance with statutes or regulations. Overall, considering the provisions of the statute and the regulations, the State definitely possesses the means by which it can have the ultimate word in the operation of the enterprise, set directions and objectives,

and detect deviations and noncompliance by the contractor; likewise, it has the capability to enforce compliance and to impose sanctions, should the occasion therefore arise. In other words, the FTAA contractor is not free to do whatever it pleases and get away with it; on the contrary, it will have to follow the government line if it wants to stay in the enterprise. Ineluctably then, RA 7942 and DAO 96-40 vest in the government more than a sufficient degree of control and supervision over the conduct of mining operations. As written by the framers and ratified and adopted by the people, the Constitution allows the continued use of service contracts with foreign corporations as contractors who would invest in and operate and manage extractive enterprises, subject to the full control and supervision of the State sans the abuses of the past regime. The purpose is clear: to develop and utilize our mineral, petroleum and other resources on a large scale for the immediate and tangible benefit of the Filipino people. The instant petition for prohibition and mandamus is hereby DISMISSED. Section 76 of Republic Act No. 7942 and Section 107 of DAO 96-40; Republic Act No. 7942 and its Implementing Rules and Regulations contained in DAO 96-40 insofar as they relate to financial and technical assistance agreements referred to in paragraph 4 of Section 2 of Article XII of the Constitution are NOT UNCONSTITUTIONAL.

didapho earth savers vs gozun mar 30, 2006 DOCTRINE In the case at bar, Didipio failed to show that the law is invalid. There is taking involved and just compensation is provided for. FACTS After the EDSA Revolution, Cory swiftly rolled out EO 279 w/c empowered DENR to stipulate with foreign companies when it comes to either technical or financial large scale exploration or mining.

Nine years later, Ramos signed into law RA 7942 or the Philippine Mining Act. In 1994, Ramos already signed an FTAA with Arimco Mining Co, an Australian company. The FTAA authorized AMC (later CAMC) to explore 37,000 ha of land in Quirino and N. Vizcaya including Brgy Didipio. After the passage of the law, DENR rolled out its implementing RRs. Didipio petitioned to have the law and the RR to be annulled as it is unconstitutional and it constitutes unlawful taking of property. In seeking to nullify Rep. Act No. 7942 and its implementing rules DAO 96-40 as unconstitutional, petitioners set their sight on Section 76 of Rep. Act No. 7942 and Section 107 of DAO 96-40 which they claim allow the unlawful and unjust taking of private property for private purpose in contradiction with Section 9, Article III of the 1987 Constitution mandating that private property shall not be taken except for public use and the corresponding payment of just compensation. They assert that public respondent DENR, through the Mining Act and its Implementing Rules and Regulations, cannot, on its own, permit entry into a private property and allow taking of land without payment of just compensation. Despite petitioners assertion, public respondents argue that Section 76 is not a taking provision but a valid exercise of the police power and by virtue of which, the state may prescribe regulations to promote the health, morals, peace, education, good order, safety and general welfare of the people. This government regulation involves the adjustment of rights for the public good and that this adjustment curtails some potential for the use or economic exploitation of private property. Public respondents concluded that to require compensation in all such circumstances would compel the government to regulate by purchase. ISSUE: Whether or not RA 7942 and the DENR RRs are valid. HELD: The SC that the RRs are indeed valid. The SC noted the requisites of eminent domain. They are; (1) (2) (3) the expropriator must enter a private property; the entry must be for more than a momentary period. the entry must be under warrant or color of legal authority;

(4) the property must be devoted to public use or otherwise informally appropriated or injuriously affected; (5) the utilization of the property for public use must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property. In the case at bar, Didipio failed to show that the law is invalid. There is taking involved but it is not w/o just compensation. Sec 76 of RA 7942 provides for just compensation as well as section 107 of the DENR RR. To wit, Section 76. xxx Provided, that any damage to the property of the surface owner, occupant, or concessionaire as a consequence of such operations shall be properly compensated as may be provided for in the implementing rules and regulations. Section 107. Compensation of the Surface Owner and Occupant- Any damage done to the property of the surface owners, occupant, or concessionaire thereof as a consequence of the mining operations or as a result of the construction or installation of the infrastructure mentioned in 104 above shall be properly and justly compensated. Further, mining is a public policy and the government can invoke eminent domain to exercise entry, acquisition and use of private lands.

asaphil vs tuason april 25, 2006 DOCTRINE The allegations in Tuasons complaint do not make out a case for a mining dispute or controversy within the jurisdiction of the DENR. The controversy falls squarely in the cognizance of the courts FACTS Respondent Vicente Tuason, Jr. entered into a Contract for Sale and Purchase of Perlite Ore with Induplex, Inc., wherein Induplex agreed to buy all the perlite ore that may be found and mined in Tuasons mining claim located in Taysa, Daraga, Albay. In exchange, Induplex will assist Tuason in securing and perfecting his right over the mining claim. Thereafter, Tuason executed on May 29, 1976, an Agreement to Operate Mining Claims in favor of petitioner Asaphil Construction and Development Corporation. Later on, Tuason filed with the Bureau of Mines, Department of Environment and Natural Resources (DENR), a complaint against Asaphil and Induplex for declaration of nullity of the two contracts, namely, the Contract for Sale and Purchase of Perlite Ore, and the Agreement to Operate Mining Claims. Tuason alleged in his complaint that the stockholders of Induplex formed and organized Ibalon Mineral Resources, Inc. (Ibalon), an entity whose purpose is to mine any and all kinds of minerals, and has in fact been mining, extracting and utilizing the perlite ore in Ibalons mining claim; that this is in violation of the condition imposed by the Board of Investments (BOI) on Induplex in its Joint Venture Agreement The DENR, through the Regional Executive Director, found merit in Induplexs arguments and dismissed the complaint. ISSUE: Does the DENR have jurisdiction to rule on the claim? HELD With regard to the issue of jurisdiction, the DENR Regional Executive Director opined that the DENR does not have jurisdiction over the case, while the MAB ruled that the DENR has jurisdiction. The Court upholds the finding of the DENR Regional Executive Director that the DENR does not have jurisdiction over Tuasons complaint. At the time of the filing of the complaint, the jurisdiction of the DENR over mining disputes and controversies is governed by P.D. No. 1281, entitled "Revising Commonwealth Act No. 136, Creating the Bureau of Mines, and for Other Purposes." Particularly, P.D. No. 1281 vests the Bureau of Minesof the DENR with jurisdictional supervision and control over all holders of mining claims or applicants for and/or grantees of mining licenses, permits, leases and/or operators thereof, including mining service contracts and service contractors insofar as their mining activities are concerned. Under Section 7 of P.D. No. 1281, the Bureau of Mines also has quasi-judicial powers over cases involving the following:

(a) a mining property subject of different agreements entered into by the claim holder thereof with several mining operators; (b) complaints from claimowners that the mining property subject of an operating agreement has not been placed into actual operations within the period stipulated therein; and (c) cancellation and/or enforcement of mining contracts due to the refusal of the claimowner/operator to abide by the terms and conditions thereof. The allegations in Tuasons complaint do not make out a case for a mining dispute or controversy within the jurisdiction of the DENR. While the Agreement to Operate Mining Claims is a mining contract, the ground upon which the contract is sought to be annulled is not due to Asaphils refusal to abide by the terms and conditions of the agreement, but due to Induplexs alleged violation of the condition imposed by the BOI in its Joint Venture Agreement with Grefco, Inc.. Also, Tuason sought the nullity of the Contract for Sale and Purchase of Perlite Ore, based on the same alleged violation. Obviously, this raises a judicial question, which is proper for determination by the regular courts. A judicial question is raised when the determination of the question involves the exercise of a judicial function; that is, the question involves the determination of what the law is and what the legal rights of the parties are with respect to the matter in