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MMDA vs.

Concerned residents of Manila Bay

At the core of the case is the Manila Bay, a place with a proud historic past, once
brimming with marine life and, for so many decades in the past, a spot for
different contact recreation activities, but now a dirty and slowly dying expanse
mainly because of the abject official indifference of people and institutions that
could have otherwise made a difference.
This case started when, on January 29, 1999, respondents Concerned Residents of
Manila Bay filed a complaint before the Regional Trial Court (RTC) in Imus, Cavite
against several government agencies, among them the petitioners, for the
cleanup, rehabilitation, and protection of the Manila Bay; alleged that the water
quality of the Manila Bay had fallen way below the allowable standards set by law,
specifically Presidential Decree No. (PD) 1152 or the Philippine Environment Code.
Petitioners, before the CA, were one in arguing in the main that the pertinent
provisions of the Environment Code (PD 1152) relate only to the cleaning of
specific pollution incidents and do not cover cleaning in general. And apart from
raising concerns about the lack of funds appropriated for cleaning purposes,
petitioners also asserted that the cleaning of the Manila Bay is not a ministerial
act which can be compelled by mandamus.
Generally, the writ of mandamus lies to require the execution of a ministerial duty.
[8]
A ministerial duty is one that requires neither the exercise of official discretion
nor judgment.[9] It connotes an act in which nothing is left to the discretion of the
person executing it. It is a simple, definite duty arising under conditions admitted
or proved to exist and imposed by law.[10] Mandamus is available to compel action,
when refused, on matters involving discretion, but not to direct the exercise of
judgment or discretion one way or the other.
Petitioners maintain that the MMDAs duty to take measures and maintain
adequate solid waste and liquid disposal systems necessarily involves policy
evaluation and the exercise of judgment on the part of the agency concerned.
They argue that the MMDA, in carrying out its mandate, has to make decisions,
including choosing where a landfill should be located by undertaking feasibility
studies and cost estimates, all of which entail the exercise of discretion.
Respondents, on the other hand, counter that the statutory command is clear and
that petitioners duty to comply with and act according to the clear mandate of the
law does not require the exercise of discretion. According to respondents,
petitioners, the MMDA in particular, are without discretion, for example, to choose
which bodies of water they are to clean up, or which discharge or spill they are to
contain. By the same token, respondents maintain that petitioners are bereft of
discretion on whether or not to alleviate the problem of solid and liquid waste
disposal; in other words, it is the MMDAs ministerial duty to attend to such
services.
While the implementation of the MMDAs mandated tasks may entail a decisionmaking process, the enforcement of the law or the very act of doing what the law
exacts to be done is ministerial in nature and may be compelled by mandamus
The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid Waste
Management Act (RA 9003) which prescribes the minimum criteria for the
establishment of sanitary landfills and Sec. 42 which provides the minimum
operating requirements that each site operator shall maintain in the operation of
a sanitary landfill. Complementing Sec. 41 are Secs. 36 and 37 of RA 9003,
[12]
enjoining the MMDA and local government units, among others, after the
effectivity of the law on February 15, 2001, from using and operating open dumps
for solid waste and disallowing, five years after such effectivity, the use of
controlled dumps.
The MMDAs duty in the area of solid waste disposal, as may be noted, is set forth
not only in the Environment Code (PD 1152) and RA 9003, but in its charter as
well. This duty of putting up a proper waste disposal system cannot be

characterized as discretionary, for, as earlier stated, discretion presupposes the


power or right given by law to public functionaries to act officially according to
their judgment or conscience.[13] A discretionary duty is one that allows a person
to exercise judgment and choose to perform or not to perform. [14] Any suggestion
that the MMDA has the option whether or not to perform its solid waste disposalrelated duties ought to be dismissed for want of legal basis.
The disputed sections are quoted as follows:
Section 17. Upgrading of Water Quality.Where the quality of water has
deteriorated to a degree where its state will adversely affect its best
usage, the government agencies concerned shall take such measures as
may be necessary to upgrade the quality of such water to meet the
prescribed water quality standards.
Section 20. Clean-up Operations.It shall be the responsibility of the polluter
to contain, remove and clean-up water pollution incidents at his own
expense. In case of his failure to do so, the government agencies
concerned shall undertake containment, removal and clean-up operations
and expenses incurred in said operations shall be charged against the
persons and/or entities responsible for such pollution.
As may be noted, the amendment to Sec. 20 of the Environment Code is more
apparent than real since the amendment, insofar as it is relevant to this case,
merely consists in the designation of the DENR as lead agency in the cleanup
operations.
They maintain that the application of said Sec. 20 is limited only to water pollution
incidents, which are situations that presuppose the occurrence of specific, isolated
pollution events requiring the corresponding containment, removal, and cleaning
operations. Pushing the point further, they argue that the aforequoted Sec. 62(g)
requires cleanup operations to restore the body of water to pre-spill condition,
which means that there must have been a specific incident of either intentional or
accidental spillage of oil or other hazardous substances, as mentioned in Sec.
62(h).
As a counterpoint, respondents argue that petitioners erroneously read Sec. 62(g)
as delimiting the application of Sec. 20 to the containment, removal, and cleanup
operations for accidental spills only. Contrary to petitioners posture, respondents
assert that Sec. 62(g), in fact, even expanded the coverage of Sec.
20. Respondents explain that without its Sec. 62(g), PD 1152 may have indeed
covered only pollution accumulating from the day-to-day operations of businesses
around the Manila Bay and other sources of pollution that slowly accumulated in
the bay. Respondents, however, emphasize that Sec. 62(g), far from being a
delimiting provision, in fact even enlarged the operational scope of Sec. 20, by
including accidental spills as among the water pollution incidents contemplated in
Sec. 17 in relation to Sec. 20 of PD 1152.
It thus behooves the Court to put the heads of the petitioner-department-agencies
and the bureaus and offices under them on continuing notice about, and to enjoin
them to perform, their mandates and duties towards cleaning up
the Manila Bay and preserving the quality of its water to the ideal level. Under
what other judicial discipline describes as continuing mandamus, [36] the Court
may, under extraordinary circumstances, issue directives with the end in view of
ensuring that its decision would not be set to naught by administrative inaction or
indifference. In India, the doctrine of continuing mandamus was used to enforce
directives of the court to clean up the length of the Ganges River from industrial
and municipal pollution.

Special People Foundation vs. Canda


The petitioner was a proponent of a water-resource development and utilization
project in Barangay Jimilia-an in the Municipality of Loboc, Bohol that would
involve the tapping and purifying of water from the Loboc River, and the

distribution of the purified water to the residents of Loboc and six other
municipalities
The petitioner applied for a Certificate of Non-Coverage (CNC) with the
Environmental Management Bureau (EMB) of the Department of Environment and
Natural Resources (DENR), Region 7, seeking to be exempt from the requirement
of the Environmental Compliance Certificate (ECC) under Section 4 of Presidential
Decree No. 1586 on the following justifications, to wit:
o

1) The whole project simply involves tapping of water from the Loboc
River, filtering and purifying it, and distributing the same to the consumers
in the covered towns;

2) From the source to the filtration plant, then to the purifier stations, then
finally to the consumers households, water flows through steel pipes;

3) The filtration and purifying process employs the latest technology


"electrocatalytic"internationally accepted for safety and environment
friendliness;

4) No waste is generated, as the electrocatalytic process dissolves all


impurities in the water;

5) The project involves no destruction [n]or harm to the environment. On


the other hand, it is environment friendly.1

On January 11, 2002, the petitioner appealed Candas findings to respondent EMB
Region 7 Director Bienvenido L. Lipayon (RD Lipayon), claiming that it should also
be issued a CNC because the project was no different from the Loboc-Loay
waterworks project of the Department of Public Works and Highways (DPWH) that
had recently been issued a CNC.3
Later on, RD Lipayon informed the petitioner that an Initial Environmental
Examination document was required for the project due to its significant impact in
the area
On January 28, 2003, the petitioner submitted eight certifications, 7 including the
certification issued by the Philippine Institute of Volcanology and Seismology
(PHIVOLCS), as follows:

That the project area, Loboc, Bohol was subjected to an earthquake of Intensity VII
in the adapted Rossi-Forel scale of I-IX last February 8, 1990. The magnitude of
the earthquake is 6.8 and the highest intensity reported was VIII, based on the
Rossi-Forel Intensity Scale. During the said earthquake, the PMI Academy Building
collapsed while minor cracks were sustained by the municipal hall, public school,
town church and some other houses in the town. There were reports that
immediately after the earthquake, the force of the incoming waves from the sea
caused Alijuan River in the town of Duero to flow inland. The report also states
that the waves affected 10-50 meters of the coastal beach of the towns of Jagna,
Duero, Guindulman, Garcia Hernandez and Valencia.8(Emphases supplied)

The petitioner failed to secure a certification from the Regional Office of the Mines
and Geosciences Bureau (RO-MGB) to the effect that the project area was not
located along a fault line/fault zone or a critical slope because RO-MGB did not
have the data and expertise to render such finding, and thus had to forward the
petitioners request to the MGB Central Office.9

Upon the MGBs advice, the petitioner sought and obtained the required
certification from PHIVOLCS, but the certification did not state whether the project
area was within a critical slope. Instead, the certification stated that the project
site was approximately 18 kilometers west of the East Bohol Fault.

On March 27, 2003, the petitioner filed a petition for mandamus and damages in
the Regional Trial Court (RTC) in Loay, Bohol, 12 alleging that it was now entitled to
a CNC as a matter of right after having complied with the certification
requirements; and that the EMB had earlier issued a CNC to the DPWH for a
similar waterworks project in the same area.
Another reason for denying due course to this review is that the petitioner did not
establish that the grant of its application for the CNC was a purely ministerial in
nature on the part of RD Lipayon. Hence, mandamus was not a proper remedy.

The CNC is a certification issued by the EMB certifying that a project is not
covered by the Environmental Impact Statement System (EIS System) and that
the project proponent is not required to secure an ECC.26 The EIS System was
established by Presidential Decree (P.D.) No. 1586 pursuant to Section 4 of P.D.
No. 1151 (Philippine Environmental Policy) that required all entities to submit an
EIS for projects that would have a significant effect on the environment.

The foregoing considerations indicate that the grant or denial of an application for
ECC/CNC is not an act that is purely ministerial in nature, but one that involves
the exercise of judgment and discretion by the EMB Director or Regional Director,
who must determine whether the project or project area is classified as critical to
the environment based on the documents to be submitted by the applicant.

Firstly, RD Lipayon had not yet fully exercised his discretion with regard to the
CNC application when he made his finding. It is clear that his finding referred to
the "procedural requirements for review" only. He had still to decide on the
substantive aspect of the application, that is, whether the project and the project
area were considered critical to the environment. In fact, this was the reason why
RD Lipayon required the petitioner to submit certifications from the various
government agencies concerned. Surely, the required certifications were not mere
formalities, because they would serve as the bases for his decision on whether to
grant or deny the application.

Secondly, there is no sufficient showing that the petitioner satisfactorily complied


with the requirement to submit the needed certifications. For one, it submitted no
certification to the effect that the project site was not within a critical slope. Also,
the PHIVOLCSs certification showed that the project site had experienced an
Intensity VII earthquake in 1990, a fact that sufficed to place the site in the
category of "areas frequently visited and/or hard-hit by natural calamities."
Clearly, the petitioner failed to establish that it had the legal right to be issued the
CNC applied for, warranting the denial of its application.

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