EN BANC
Agricultural Activities - refer to activities that include, but not limited to, land preparation,
[ GR No. 189185, Aug 16, 2016 ]
WILFREDO MOSQUEDA v. PILIPINO BANANA GROWERS & EXPORTERS
ASSOCIATION +
RESOLUTION
BERSAMIN, J.:
This appeal through the consolidated petitions for review on certiorari assails the decision
promulgated on January 9, 2009[1] whereby the Court of Appeals (CA) reversed and set
aside the judgment rendered on September 22, 2007 by the Regional Trial Court (RTC),
Branch 17, in Davao City upholding the validity and constitutionality of Davao City
Ordinance No. 0309-07, to wit:
WHEREFORE, premises considered, the appeal is GRANTED. The assailed September
22, 2007 Decision of the Regional Trial Court (RTC), 11th Judicial Region, Branch 17,
Davao City, upholding the validity and constitutionality of Davao City Ordinance No. 0309-
07, is hereby REVERSED and SET ASIDE.
FURTHER, the Writ of Preliminary Injunction dated 28 January 2008 enjoining the City
Government of Davao, and any other person or entity acting in its behalf, from enforcing
and implementing City Ordinance No. 0309-07, is hereby made permanent.
SO ORDERED.
Antecedents
After several committee hearings and consultations with various stakeholders, the
Sangguniang Panlungsod of Davao City enacted Ordinance No. 0309, Series of 2007, to
impose a ban against aerial spraying as an agricultural practice by all agricultural entities
within Davao City, viz.:
ORDINANCE NO. 0309-07
Series of 2007
AN ORDINANCE BANNING AERIAL SPRAYING AS AN AGRICULTURAL PRACTICE IN
ALL AGRICULTURAL ACTIVITIES BY ALL AGRICULTURAL ENTITIES IN DAVAO CITY
Be it enacted by the Sangguniang Panlungsod of Davao City in session assembled that:
SECTION 1. TITLE. This Ordinance shall be known as "An Ordinance Banning Aerial
Spraying as an Agricultural Practice in all Agricultural Activities by all Agricultural Entities in
Davao City";
SECTION 2. POLICY OF THE CITY. It shall be the policy of the City of Davao to eliminate
the method of aerial spraying as an agricultural practice in all agricultural activities by all
entities within Davao City;
SECTION 3. DEFINITION OF TERMS:
a. Aerial Spraying - refers to application of substances through the use of aircraft of any
form which dispenses the substances in the air.
b. Agricultural Practices - refer to the practices conducted by agricultural entities in relation
to their agricultural activities;
c.
seeding, planting, cultivation, harvesting and bagging;
d. Agricultural Entities - refer to persons, natural or juridical, involved in agricultural
activities
e. Buffer Zone - is an identified 30-meter zone within and around the boundaries of
agricultural farms/plantations that need special monitoring to avoid or minimize harm to the
environment and inhabitants pursuant to policies and guidelines set forth in this Ordinance
and other government regulations. It is an area of land that must lie within the property
which does not include public lands, public thoroughfares or adjacent private properties. It
must be planted with diversified trees that grow taller than what are usually planted and
grown in the plantation to protect those within the adjacent fields, neighboring farms,
residential area, schools and workplaces.
SECTION 4. SCOPE AND APPLICABILITY - The provisions of this Ordinance shall apply
to all agricultural entities within the territorial jurisdiction of Davao City;
SECTION 5. BAN OF AERIAL SPRAYING - A ban on aerial spraying shall be strictly
enforced in the territorial jurisdiction of Davao City three (3) months after the effectivity of
this Ordinance.
SECTION 6. BUFFER ZONE - Consistent with national legislation and government
regulations, all agricultural entities must provide for a thirty (30) meter buffer zone within
the boundaries of their agricultural farms/plantations. This buffer zone must be properly
identified through Global Positioning System (GPS) survey. A survey plan showing the
metes and bounds of each agricultural farm/plantation must be submitted to the City
Mayor's Office, with the buffer zone clearly identified therein;
SECTION 7. PENAL PROVISION - Violation of any provision of this Ordinance shall be
punished as follows:
a. First Offense: Fine of P5,000.00 and imprisonment of not less than one (1) month but
not more than three (3) months;
b. Second Offense: Fine of P5,000.00 and imprisonment of not less than three (3) months
but not more than six (6) months and suspension of City-issued permits and licenses for
one (1) year;
c. Third Offense: Fine of P5,000.00 and imprisonment of not less than six (6) months but
not more than one (1) year and perpetual cancellation of City issued permits and licenses;
Provided, that in case the violation has been committed by a juridical person, the person in
charge of the management thereof shall be held liable;
SECTION 8. REPEALING CLAUSE - Any Ordinance that is contrary to or inconsistent with
any of the provisions of this Ordinance shall be deemed amended or repealed accordingly.
SECTION 9. EFFECTIVITY - This Ordinance shall take effect thirty (30) days from its
publication in a newspaper of general circulation in Davao City;
ENACTED, January 23, 2007 by a majority vote of all the Members of the Sangguniang
Panlungsod.[2]
City Mayor Rodrigo Duterte approved the ordinance on February 9, 2007. [3] The ordinance
took effect on March 23, 2007 after its publication in the newspaper Mindanao
Pioneer.[4] Pursuant to Section 5 of the ordinance, the ban against aerial spraying would be
strictly enforced three months thereafter.
The Pilipino Banana Growers and Exporters Association, Inc. (PBGEA) and two of its
members, namely: Davao Fruits Corporation and Lapanday Agricultural and Development
Corporation (PBGEA, et al.), filed their petition in the RTC to challenge the constitutionality
of the ordinance, and to seek the issuance of provisional reliefs through a temporary
restraining order (TRO) and/or writ of preliminary injunction. [5]They alleged that the
ordinance exemplified the unreasonable exercise of police power; violated the equal
protection clause; amounted to the confiscation of property without due process of law; and
lacked publication pursuant] to Section 511[6] of Republic Act No. 7160 (Local Government
Code).
On May 8, 2007, the residents living within and adjacent to banana plantations in Davao
City led by Wilfredo Mosqueda,[7] joined by other residents of Davao City,[8](Mosqueda, et
al.) submitted their Motion for Leave to Intervene and Opposition to the Issuance of a
Preliminary Injunction.[9] The RTC granted their motion on June 4, 2007.[10]
On June 20, 2007, the RTC granted the prayer for issuance of the writ of preliminary
injunction, and subsequently issued the writ. [11]
Judgment of the RTC
On September 22, 2007, after trial, the RTC rendered judgment declaring Ordinance No.
0309-07 valid and constitutional, decreeing thusly:
WHEREFORE, finding the subject [O]rdinance No. 0309-07 valid and constitutional in all
aspect of the grounds assailed by the petitioner, said [C]ity [O]rdinance No. 0309-07, is
sustained of its validity and constitutionality.
Accordingly, the order of this court dated June 20, 2007, granting the writ of preliminary
injunction as prayed for by petitioner is ordered cancelled and set aside as a result of this
decision.
SO ORDERED.[12]
The RTC opined that the City of Davao had validly exercised police power [13] under the
General Welfare Clause of the Local Government Code;[14] that the ordinance, being based
on a valid classification, was consistent with the Equal Protection Clause; that aerial
spraying was distinct from other methods of pesticides application because it exposed the
residents to a higher degree of health risk caused by aerial drift; [15] and that the ordinance
enjoyed the presumption of constitutionality, and could be invalidated only upon a clear
showing that it had violated the Constitution. [16]
However, the RTC, recognizing the impracticability of the 3-month transition period under
Section 5 of Ordinance No. 0309-07, recommended the parties to agree on an extended
transition period.[17]
Decision of the CA
PBGEA, et al. appealed,[18] and applied for injunctive relief from the CA, [19] which granted
the application[20] and consequently issued a TRO to meanwhile enjoin the effectivity of the
ordinance.[21]
On January 9, 2009, the CA promulgated its assailed decision reversing the judgment of
the RTC.[22] It declared Section 5 of Ordinance No. 0309-07 as void and unconstitutional
for being unreasonable and oppressive; found the three-month transition period impractical
and oppressive in view of the engineering and technical requirements of switching from
aerial spraying to truck-mounted boom spraying; and opined that the ban ran afoul with the
Equal Protection Clause inasmuch as Section 3(a) of the ordinance - which defined the
term aerial spraying - did not make reasonable distinction between the hazards, safety and
beneficial effects of liquid substances that were being applied aerially; the different classes
of pesticides or fungicides; and the levels of concentration of these substances that could
be beneficial and could enhance agricultural production.
The CA did not see any established relation between the purpose of protecting the public
and the environment against the harmful effects of aerial spraying, on one hand, and the
imposition of the ban against aerial spraying of all forms of substances, on the other. It
ruled that the maintenance of the 30-meter buffer zone within and around the agricultural
plantations under Section 6 of Ordinance No. 0309-07 constituted taking of property
without due process because the landowners were thereby compelled to cede portions of
their property without just compensation; that the exercise of police power to require the
buffer zone was invalid because there was no finding that the 30-meter surrounding belt
was obnoxious to the public welfare; and that, accordingly, Ordinance No. 0309-07 was
unconstitutional because of the absence of a separability clause.
The City of Davao and the intervenors filed their respective motions for reconsideration,
but the CA denied the motions on August 7, 2009. [23]
Hence, the separate, but now consolidated, appeals by petition for review on certiorari.
Issues
In G.R. No. 189185, petitioners Mosqueda, et al. rely on the following grounds, namely:
I
THE COURT OF APPEALS IGNORED FUNDAMENTAL PRECEPTS AND CONCEPTS
OF LAW WHICH, PROPERLY CONSIDERED, NECESSARILY LEAD TO THE
CONCLUSION THAT THE DAVAO ORDINANCE IS CONSTITUTIONAL AND VALID
II
THE DAVAO ORDINANCE IS CONSISTENT WITH THE EQUAL PROTECTION CLAUSE
III
THE MEANS EMPLOYED BY THE DAVAO ORDINANCE IS MORE THAN REASONABLY
RELATED TO THE PURPOSE IT SEEKS TO ACHIEVE
IV
THE DAVAO ORDINANCE IS VALID, BEING DEMONSTRABLY REASONABLE AND
FAIR
V
THE REQUIREMENT RELATING TO THE 30-METER BUFFER ZONE ARE [SIC]
CONSISTENT WITH DUE PROCESS OF LAW, BEING A VALID EXERCISE OF POLICE
POWER
Mosqueda, et al. state that the CA ignored well-established precepts like the primacy of
human rights over property rights and the presumption of validity in favor of the ordinance;
that the CA preferred the preservation of the profits of respondents PBGEA, et al. to the
residents' right to life, health and ecology, [24] thereby disregarding the benevolent purpose
of the ordinance; that the CA assumed the functions of the lawmaker when it set aside the
wisdom behind the enactment of the ordinance; that the CA failed to apply the
precautionary principle, by which the State was allowed to take positive actions to prevent
harm to the environment and to human health despite the lack of scientific certainty; that
the CA erred in applying the "strict scrutiny method" in holding that the ordinance violated
the Equal Protection Clause because it only thereby applied in reviewing classifications
that affected fundamental rights; that there was nothing wrong with prohibiting aerial
spraying per se considering that even the aerial spraying of water produced drift that could
affect unwilling neighbors whose, constitutional right to a clean and healthy environment
might be impinged;[25] that as far as the three-month period was concerned, the CA should
have considered that manual spraying could be conducted while the PBGEA, et al. laid
down the preparations for the conduct of boom spraying; [26] that "reasonableness" could be
more appropriately weighed by balancing the interests of the parties against the protection
of basic rights, like the right to life, to health, and to a balanced and healthful
ecology;[27] that PBGEA, et al. did not substantiate their claim of potential profit losses that
would result from the shift; that business profits should remain inferior and subordinate to
their fundamental rights as residents of Davao City, which were the rights that the assailed
ordinance has sought to protect;[28] that PBGEA, et al. did not explore other modes of
pesticide treatment either as a stop-gap or as a temporary measure while shifting to truck
mounted boom spraying;[29] that the imposition of the 30-meter buffer zone was a valid
exercise of police power that necessarily flowed from the protection afforded by the
ordinance from the unwanted effects of ground spraying; that the imposition of the buffer
zone did not constitute compensable taking under police power, pursuant to the
pronouncements in Seng Kee & Co. v. Earnshaw and Piatt[30] Patalinghug v. Court of
Appeals,[31] and Social Justice Society (SJS) v. Atienza, Jr.;[32] and that the 30-meter buffer
zone conformed with the ISO 14000[33] and the DENR Environmental Compliance
Certificate (ECC) requirement.[34]
In G.R. No. 189305, petitioner City of Davao submits the following as the issues to be
considered and resolved, to wit:
I operated by PBGEA's members use aerial spraying, hence, the perceived ominous
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING
THAT SECTION 5 OF ORDINANCE NO. 0309-07, SERIES OF 2007 IS OPPRESSIVE
AND AN UNREASONABLE EXERCISE OF DELEGATED POLICE POWER
II
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING
THAT ORDINANCE NO. 0309-07 IS VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE OF THE CONSTITUTION;
III
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING
THAT ORDINANCE NO. 0309-07 CONSTITUTES TAKING OF PROPERTY WITHOUT
COMPENSATION, THUS, VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE
CONSTITUTION
IV
WHETHER OR NOT AERIAL SPRAYING OF FUNGICIDES IS SAFE TO THE PEOPLE
AND THE ENVIRONMENT
The City of Davao explains that it had the authority to enact the assailed ordinance
because it would thereby protect the environment and regulate property and business in
the interest of the general welfare pursuant to Section 458 of the Local Government
Code;[35] that the ordinance was enacted to carry out its mandate of promoting the public
welfare under the General Welfare Clause (Section 16 of the Local Government Code);
that the ordinance did not violate the Equal Protection Clause because the distinction lies
in aerial spray as a method of application being more deleterious than other modes; that
aerial spraying produces more drift that causes discomfort, and an extremely offensive and
obnoxious experience the part of the residents; that spray drift cannot be controlled even
with use by the respondents of highly advanced apparatus, such as the Differential Global
Positioning System, Micronair Rotary Drift Control Atomizers, Intellimap, Intelliflow Spray
Valve System, Control and Display Unit and the Target Flow Spray Valve Switch
System;[36] that because of the inherent toxicity of Mancozeb (the fungicide aerially applied
by the respondents), there is no need to provide for a substantial distinction based on the
level of concentration;[37] that as soon as fungicides are released in the air, they become air
pollutants pursuant to Section 5 of Republic Act No. 8749 (Philippine Clean Air Act of
1999),[38] and the activity thus falls under the authority of the local government units to ban;
and that the ordinance does not only seek to protect and promote human health but also
serves as a measure against air pollution.
The City of Davao insists that it validly exercised police power because it does not thereby
oblige the shift from aerial to truck-mounted boom spraying; that the respondents only
choose boom spraying to justify the alleged impracticability of the transition period by
erroneously adding the months required for each of the stages without considering other
steps that may be simultaneously undertaken;[39] that the Court should apply its ruling
in Social Justice Society v. Atienza, Jr.,[40] by which the six-month period for the folding-up
of business operations was declared a legitimate exercise of police power; that the
respondents did not present any documentary evidence on the feasibility of adopting other
methods;[41] that only 1,800 hectares out of 5,200 hectares of plantations owned and
consequence of imposing a ban on aerial spray to the banana industry is entirely
misleading;[42] that the urgency of prohibiting aerial spray justifies the three-month
transition period; that the complaints of the community residents - ranging from skin
itchiness, contraction and/or tightening in the chest, nausea, appetite loss and difficulty in
breathing after exposure to spray mist - only prove that aerial spraying brings discomfort
and harm to the residents; that considering that the testimony of Dr. Lynn Crisanta R.
Panganiban, a pharmacologist and toxicologist, established that fungicides could cause
debilitating effects on the human body once inhaled or digested, the CA erred in holding
that there was no correlation between aerial application and the complaints of the
residents; that given that aerial spray produces more drift and is uncontrollable compared
to the other methods of applying fungicides, the ordinance becomes reasonable; [43] and
that the medical-related complaints of the residents need not be proven by medical records
considering that these were based on personal knowledge. [44]
The City of Davao contends that the imposition of the 30-meter buffer zone is a valid
exercise of police power, rendering the claim for just compensation untenable; that the
maintenance of the buffer zone does not require the respondents to cede a portion of their
landholdings; that the planting of diversified trees within the buffer zone will serve to
insulate the residents from spray drift; that such buffer zone does not deprive the
landowners of the lawful and beneficial use of their property; [45] and that the buffer zone is
consistent with the Constitution, which reminds property owners that the use of property
bears a social function.[46]
In their comment, the respondents posit that the petition of the City; of Davao should be
dismissed for failure to attach material portions of the records, and for raising factual errors
that are not within the realm of this appeal by petition for review on certiorari; [47] that the CA
correctly declared the ordinance as unreasonable due to the impossibility of complying with
the three-month transition period; that shifting from aerial to truck-mounted boom spraying
will take at least three years and entails careful planning, equipment and machineries, civil
works, and capital funding of at least P400,000,000.00; [48] that the Court could rely on its
ruling in City of Manila v. Laguio, Jr.,[49] where an ordinance directing an existing
establishment to wind up or to transfer its business was declared as confiscatory in nature,
and, therefore, unconstitutional;[50] that the total ban against aerial sprayig, coupled with
the inadequate time to shift to truck-mounted boom spraying, effectively deprives the
respondents with an efficient means to control the spread of the Black Sigatoka disease
that threatens the banana plantations; that the ordinance will only expose the plantations to
the virulent disease that is capable of infecting 60% of the plantations on a single
cycle[51] missed;[52] that compared with other modes of application, aerial spraying is more
cost-efficient, safe and accurate; that truck-mounted boom spraying, for instance, requires
80-200 liters of solution per hectare,[53] while manual spraying uses 200-300 liters of
solution per hectare; that aerial spraying oily requires 30 liters per hectare; that in terms of
safety and accuracy, manual spraying is the least safe and accurate, [54] and produces
more drift than aerial spraying;[55] that due to the 300-liter solution required, the workers will
be more exposed to the solution during manual application and such application will thus
be more in conflict with the purpose of the ordinance to prevent human exposure; [56] that
the respondents also find the irrigation sprinklers suggested by the City of Davao as
wasteful, unsafe and impractical because it cannot provide the needed coverage for
application of the solution to effectively control. the Black Sigatoka disease; that in
contrast, aerial application, coupled with the latest state of the art technology and
equipment, ensures accuracy, effectiveness, efficiency and safety compared to the other
methods of application; that the respondents vouch for the safety of the fungicides they
use by virtue of such fungicides having been registered with the Fertilizer and Pesticide
Authority (FPA) and classified as Category IV, [57] and found to be mild; and that oral
ingestion in large doses is required before any adverse effects to humans may result. [58]
The respondents lament that the ban was imposed without any scientific basis; that the
report[59] prepared by a fact-finding team (composed of the Vice Mayor, the City Health
Officer, The City Planning and Development Coordinator and the Assistance City Planning
and Development Coordinator) organized by the City of Davao revealed that there was no
scientific evidence to support the clamor for the ban against aerial spraying; that
furthermore, national government agencies like the Department of Agriculture (DA),
Department of Health (DOR) and the Department of Trade and Industry (DTI) similarly
concluded that there was no scientific evidence to support the ban; [60] that for four decades
since the adoption of aerial spraying, there has been no reported outbreak or any
predisposition to ailment connected with the pesticides applied; that the testimonies of the
residents during the trial were mere "emotional anecdotal evidence" that did not establish
any scientific or medical bases of any causal connection between the alleged health
conditions complained of and the fungicides applied during aerial spraying; [61] that the
allegations of health and environmental harm brought by the pesticides used to treat the
banana plantations were unfounded; that the 2001 study of the International Agency for
Research on Cancer showed that, contrary to the claim of Dra. Panganiban, the by-product
of Mancozeb (Ethylenethiourea or ETU) was "non-genotoxic" and not expected to produce
thyroid cancer;[62] that Carlos Mendoza, a geo-hydrologist and geophysicist, testified that
underground water contamination through aerial spraying would be impossible because of
the presence of latex, thick layers of clay and underlying rock formations; [63] that even the
study conducted by the Philippine Coconut Authority (PCA) showed that the rhinoceros
beetle infestation in coconut plantations adjacent to the banana plantations was due to the
farmer's failure to observe phyto-sanitary measures, not to aerial spraying; [64] that
furthermore, aerial spraying is internationally accepted as a "Good Agricultural Practice"
(GAP)[65] under the International Code of Conduct on the Distribution and Use of Pesticides
by the United Nations-Food and Agricultural Organization (UN-FAO); that as such, they
observe the standards laid down by the UN-FAO, and utilize aerial spraying equipment that
will ensure accuracy, safety and efficiency in applying the substances, and which more
than complies with the requirement under the Guidelines on Good Practice for Aerial
Application of Pesticides (Rome 2001);[66] that in addition, they strictly observe standard
operating procedures prior to take-off,[67] in-flight[68] and post-flight;[69] that they substantially
invested in state-of-the-art technology and equipment designed to ensure safety, accuracy,
and effectiveness of aerial spraying operations, to avoid aerial drift; [70] that their equipment
include: wind meters (to measure the wind velocity in a specific area), wind cones (to
determine the wind direction, and whether the wind is a headwind, tailwind or a crosswind);
central weather station (to measure wind speed, the temperature and relative humidity),
Differential Global Positioning System (DGPS), [71] Intellimap,[72]Control and Display
Unit,[73] Micronair Rotary Drift Control Atomizers (AU 5000 Low-Drift model),[74] Intelliflow
Spray Valve System,[75] and Target Flow Spray Valve Switch System;[76] and that they want
to minimize, if not, eliminate the occurrence of spray drift in order to minimize wastage of
resources and reduced efficiency of spraying programs implemented to control the Black
Sigatoka disease.[77]
The respondents maintain that Ordinance No. 0309-07 will regulate aerial spraying as a
method of application, instead of the substances being used therein; that the prohibition is
overbroad in light of other available reasonable measures that may be resorted to by the
local government; that the ordinance is unreasonable, unfair, oppressive, and tantamount
to a restriction or prohibition of trade;[78] that the ordinance will effectively impose a
prohibition against all pesticides, including fungicides that fall under the mildest type of
substance; that as such, the petitioner has disregarded existing valid and substantive
classifications established and recognized by the World Health Organization (WHO) that
are adopted by the FPA; that the FPA is the national agency armed with the professional
competence, technical expertise, and legal mandate to deal with the issue of use and
application of pesticides in our country; that the fungicides they administer are duly
registered with the FPA, and with other more developed countries that have observed a
stricter environmental and public health regulation such as the United States
Environmental Protection Agency (EPA) and the European Union (EU); that as such, the
City of Davao has disregarded valid, substantial and significant distinctions between levels
of concentration of the fungicides in the water solution aerially sprayed; that it is the FPA
that regulates the level of concentration of agricultural chemicals prior to commercial
distribution and use in the country; that the members of PBGEA only spray a water solution
(water cocktail) containing 0.1 liter to 1.5 liters of the active ingredient of fungicide in a 30-
liter water solution per hectare that has undergone rigorous testing and .evaluation prior to
registration by the FPA; that the active ingredients of the fungicide are so diluted that no
harm may be posed to public health or to the environment through aerial
application;[79] that the ordinance was so broad that it prohibits aerial application of any
substance, including water;[80] and that aside from fungicides, the respondents also aerially
apply vitamins, minerals and organic fertilizers.[81]
The respondents submit that the maintenance of the 30-meter buffer zone under Section 5
of the ordinance constitutes an improper exercise of police power; that the ordinance will
require all landholdings to maintain the buffer zone, thereby diminishing to a mere 1,600
square meters of usable and productive land for every hectare of the plantation bounding
residential areas, with the zone being reserved for planting "diversified trees;" that this
requirement amounts to taking without just compensation or due process; and that the
imposition of the buffer zone unduly deprives all landowners within the City of Davao the
beneficial use of their property;[82] that the precautionary principle cannot be applied blindly,
because its application still requires some scientific basis; that the principle is also based
on a mere declaration that has not even reached the level of customary international law,
not on a treaty binding on the Government.[83]
The respondents argue that the illegality of the transition period results in the invalidity of
the ordinance as it does not carry a separability clause; and that the absence of such
clause signifies the intention of the Sangguniang Panlungsod of City of Davao to make the
ordinance effective as a whole.[84]
The main issue is whether or not Ordinance No. 0309-07 is unconstitutional on due
process and equal protection grounds for being unreasonable and oppressive, and an
invalid exercise of police power: (a) in imposing a ban on aerial spraying as an agricultural
practice in Davao City under Section 5; (b) in decreeing a 3-month transition-period to shift
to other modes of pesticide application under Section 5; and (c) in requiring the
maintenance of the 30-meter buffer zone under Section 6 thereof in all agricultural lands in
Davao City.
Ruling of the Court
We deny the petitions for review for their lack of merit.
I generation.[99]
Preliminary considerations:
The significant role of the banana industry
in ensuring economic stability and food security
There is no question that the implementation of Ordinance No. 0309-07, although the
ordinance concerns the imposition of the ban against aerial spraying in all agricultural
lands within Davao City, will inevitably have a considerable impact on the country's banana
industry, particularly on export trading.
Banana exportation plays a significant role in the maintenance of the country's economic,
stability and food security. Banana is a consistent dollar earner and the fourth largest
produced commodity in the Philippines.[85] In 2010, the Philippines figured among the top
three banana producing countries in the world.[86] In 2014, fresh bananas accounted for
17% of the country's top agricultural export commodities, gaining a close second to
coconut oil with 18%.[87] The Davao Region (Region XI)[88]was the top banana producing
region in 2013, with a production growth rate of 16.4%, and 33.76% share in the total
agricultural output of the Region.[89]
Despite these optimistic statistics, the banana industry players struggle to keep up with the
demands of the trade by combatting the main threat to production posed by two major
fungal diseases: the Panama Disease Tropical Race 4 (Fusarium oxysprum f.sp. cubense)
and the Black Sigatoka leaf spot disease (Mycosphaerella ffiensis morelet). Pesticides
have proven to be effective only against the Black Sigatoka disease. There is yet no known
cure for the Panama disease.[90]
The menace of the Black Sigatoka disease cannot be taken lightly. The disease causes
destruction of the plant by significantly reducing the leaf area, leading to premature
ripening of the produce and resulting in yield losses of at least 50%. [91] Due to its effects on
banana export trading, the disease has emerged as a global concern that has
correspondingly forced banana producers to increase the use of chemical
pesticides.[92] Protectant fungicides such as Mancozeb, chlorothalonil and Propiconazole
are applied to combat the disease.[93] These agricultural chemicals are aerially applied by
the respondents in the banana plantations within the jurisdiction of Davao City to arrest the
proliferation of the disease.
Considering that banana export plantations exist in vast monocultures, effective treatment
of the Black Sigatoka disease is done by frequent aerial application of fungicides. This is
an expensive practice because it requires permanent landing strips, facilities for the mixing
and loading of fungicides, and high recurring expense of spray materials. [94] The cost of
aerial spraying accounts to 15-20% of the final retail price of the crop, making the
technology essentially unavailable to small landholdings that are more vulnerable to the
disease.[95]
Aerial spraying has become an agricultural practice in Davao City since the establishment
of the banana plantations in 1960.[96] Out of the 5,205 hectares of commercial plantations
devoted to Cavendish banana being operated by the respondents in Davao City, [97] around
1,800 hectares receive treatment through aerial application. These plantations are situated
in Barangays Sirib, Manuel Guianga, Tamayong, Subasta Dacudao, Lasang, Mandug,
Waan, Tigatto and Callawa,[98] and are affected by the ban imposed by Ordinance No.
0309-07. The DTI has issued a statement to the effect that the ban against aerial spraying
in banana plantations "is expected to kill the banana industry," affects the socio-economic
development of the barangays hosting the affected plantations, and has a disastrous
impact on export trading. The DTI has forecasted that the ban would discourage the entry
of new players in the locality, which would have a potential drawback in employment
II
The Sangguniang Bayan of Davao City
enacted Ordinance No. 0309-07
under its corporate powers
The petitioners assert that Ordinance No. 0309-07 is a valid act of the Sangguniang Bayan
of Davao City- pursuant to its delegated authority to exercise police power in the
furtherance of public welfare and in ensuring a sound and balanced environment for its
constituents. The respondents negate this assertion, describing the ordinance as
unreasonable, discriminatory and oppressive.
The petitioners' assertion of its authority to enact Ordinance No. 0309-07 is upheld.
To be considered as a valid police power measure, an ordinance must pass a two-pronged
test: the formal (i.e., whether the ordinance is enacted within the corporate powers of the
local government unit, and whether it is passed in accordance with the procedure
prescribed by law); and the substantive (i.e., involving inherent merit, like the conformity of
the ordinance with the limitations under the Constitution and the statutes, as well as with
the requirements of fairness and reason, and its consistency with public policy). [100]
The formalities in enacting an ordinance are laid down in Section 53 [101] and Section
54[102] of The Local Government Code. These provisions require the ordinance to be
passed by the majority of the members of the sanggunian concerned, and to be presented
to the mayor for approval. With no issues regarding quorum during its deliberation having
been raised, and with its approval of by City Mayor Duterte not being disputed, we see no
reason to strike down Ordinance No. 0309-07 for non-compliance with the formal
requisites under the Local Government Code.
We next ascertain whether the City of Davao acted within the limits of its corporate powers
in enacting Ordinance No. 0309-07.
The corporate powers of the local government unit confer the basic authority to enact
legislation that may interfere with personal liberty, property, lawful businesses and
occupations in order to promote the general welfare. [103] Such legislative powers spring
from the delegation thereof by Congress through either the Local Government Code or a
special law. The General Welfare Clause in Section 16 of the Local Government
Code embodies the legislative grant that enables the local government unit to effectively
accomplish and carry out the declared objects of its creation, and to promote and maintain
local autonomy.[104] Section 16 reads:
Sec. 16. General Welfare. Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right of the
people to a balanced ecology, encourage and support the development of appropriate and
self-reliant scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among their residents,
maintain peace and order, and preserve the comfort and convenience of their inhabitants.
Section 16 comprehends two branches of delegated powers, namely: the general
legislative power and the police power proper. General legislative power refers to the
power delegated by Congress to the local legislative body, or the Sangguniang
Panlungsod in the case of Dayao City,[105] to enable the local legislative body to enact
ordinances and make regulations. This power is limited in that the enacted ordinances
must not be repugnant to law, and the power must be exercised to effectuate and
discharge the powers and duties legally conferred to the local legislative body. The police
power proper, on the other hand, authorizes the local government unit to enact ordinances
necessary and proper for the health and safety, prosperity, morals, peace, good order,
comfort, and convenience of the local government unit and its constituents, and for the
protection of their property.[106]
Section 458 of the Local Government Code explicitly vests the local government unit with
the authority to enact legislation .aimed at promoting the general welfare, viz.:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions
and appropriate funds for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the corporate powers of the city as
provided for under Section 22 of this Code. x x x
In terms of the right of the citizens to health and to a balanced and healthful ecology, the
local government unit takes its cue from Section 15 and Section 16, Article II of the 1987
Constitution. Following the provisions of the Local Government Code and the Constitution,
the acts of the local government unit designed to ensure the health and lives of its
constituents and to promote a balanced and healthful ecology are well within the corporate
powers vested in the local government unit. Accordingly, the Sangguniang Bayan of Davao
City is vested with the requisite authority to enact an ordinance that seeks to protect the
health and well-being of its constituents.
The respondents pose a challenge against Ordinance No. 0309-07 on the ground that the
Sangguniang Bayan of Davao City has disregarded the health of the plantation workers,
contending that by imposing the ban against aerial spraying the ordinance would place the
plantation workers at a higher health risk because the alternatives of either manual or
truck-boom spraying method would be adopted; and that exposing the workers to the same
risk sought to be prevented by the ordinance would defeat its purported purpose.
We disagree with the respondents.
With or without the ban against aerial spraying, the health and safety of plantation workers
are secured by existing state policies, rules and regulations implemented by the FPA,
among others, which the respondents are lawfully bound to comply with. The respondents
even manifested their strict compliance with these rules, including those in the UN-FAO
Guidelines on Good Practice for Aerial Application of Pesticides (Rome 2001). We should
note that the Rome 2001 guidelines require the pesticide applicators to observe the
standards provided therein to ensure the health and safety of plantation workers. As such,
there cannot be any imbalance between the right to health of the residents vis-a-vis the
workers even if a ban will be imposed against aerial spraying and the consequent adoption
of other modes of pesticide treatment.
Furthermore, the constitutional right to health and maintaining environmental integrity are
privileges that do not only advance the interests of a group of individuals. The benefits of
protecting human health and the environment transcend geographical locations and even
generations. This is the essence of Sections 15 and 16, Article II of the Constitution.
In Oposa v. Factoran, Jr.[107] we declared that the right to a balanced and healthful ecology
under Section 16 is an issue of transcendental importance with intergenerational
implications. It is under this milieu that the questioned ordinance should be appreciated.
Advancing the interests of the residents who are vulnerable to the alleged health risks due
to their exposure to pesticide drift justifies the motivation behind the enactment of the
ordinance. The City of Davao has the authority to enact pieces of legislation that will
promote the general welfare, specifically the health of its constituents. Such authority
should not be construed, however, as a valid license for the City of Davao to enact any
ordinance it deems fit to discharge its mandate. A thin but well-defined line separates
authority to enact legislations from the method of accomplishing the same.
By distinguishing authority from method we face this question: Is a prohibition against
aerial spraying a lawfully permissible method that the local government unit of Davao City
may adopt to prevent the purported effects of aerial drift? To resolve this question, the
Court must dig deeper into the intricate issues arising from these petitions.
II
Ordinance No. 0309-07 violates the Due Process Clause
A valid ordinance must not only be enacted within the corporate powers of the local
government and passed according to the procedure prescribed by law. [108] In order to
declare it as a valid piece of local legislation, it must also comply with the following
substantive requirements, namely: (1) it must not contravene the Constitution or any
statute; (2) it must be fair, not oppressive; (3) it must not be partial or discriminatory; (4) it
must not prohibit but may regulate trade; (5) it must be general and consistent with public
policy; and (6) it must not be unreasonable. [109]
In the State's exercise of police power, the property rights of individuals may be subjected
to restraints and burdens in order to fulfill the objectives of the Government. [110] A local
government unit is considered to have properly exercised its police powers only if it
satisfies the following requisites, to wit: (1) the interests of the public generally, as
distinguished from those of a particular class, require the interference of the State; and (2)
the means employed are reasonably necessary for the attainment of the object sought to
be accomplished and not unduly oppressive. [111] The first requirement refers to the Equal
Protection Clause of the Constitution; the second, to the Due Process Clause of the
Constitution.[112]
Substantive due process requires that a valid ordinance must have a sufficient justification
for the Government's action.[113] This means that in exercising police power the local
government unit must not arbitrarily, whimsically or despotically enact the ordinance
regardless of its salutary purpose. So long as the ordinance realistically serves a legitimate
public purpose, and it employs means that are reasonably necessary to achieve that
purpose without unduly oppressing the individuals regulated, the ordinance must survive a
due process challenge.[114]
The respondents challenge Section 5 of Ordinance No. 0309-07 for being unreasonable
and oppressive in that it sets the effectivity of the ban at three months after publication of
the ordinance. They allege that three months will be inadequate time to shift from aerial to
truck-mounted boom spraying, and effectively deprives them of efficient means to combat
the Black Sigatoka disease.
The petitioners counter that the period is justified considering the urgency of protecting the
health of the residents.
We find for the respondents.
The impossibility of carrying out a shift to another mode of pesticide application within
three months can readily be appreciated given the vast area of the affected plantations and
the corresponding resources required therefor. To recall, even the RTC recognized the
impracticality of attaining a full-shift to other modes of spraying within three months in view
of the costly financial and civil works required for the conversion. [115]In the assailed
decision, the CA appropriately observed:
There appears to be three (3) forms of ground spraying, as distinguished from aerial
spraying, which are: 1. "Truck-mounted boom spraying;" 2. "manual or backpack spraying."
and 3. "sprinkler spraying." Petitioners-appellants claim that it was physically impossible for
them to shift to "truck-mounted boom spraying" within three (3) months before the aerial
spraying ban is actually enforced. They cited the testimony of Dr. Maria Emilia Rita G.
Fabregar, Ph.D, PBGEA Chairperson, to the effect that since banana plantations in Davao
City were configured for aerial spraying, the same lack the road network to make "truck-
mounted boom spraying" possible. According to Dr. Fabregar, it was impossible to
construct such road networks in a span of three (3) months. Engr. Magno P. Porticos, Jr.,
confirmed that the shift demands the construction of three hundred sixty (360) linear
kilometers of road which cannot be completed in three (3) months.
In their separate testimonies, Dr. Fabregar and Engr. Porticos explained that a shift to
"truck-mounted boom spraying" requires the following steps which may be completed in
three (3) years:
1. six (6) months for planning the reconfiguration of banana plantations to ensure effective
truck-mounted boom spraying for the adequate protections of the plantations from the
Black Sigatoka fungus and other diseases, while maximizing land use;
2. two (2) months to secure government permits for infrastructure works to be undertaken
thereon;
3. clearing banana plants and dismantling or reconstructing fixed infrastructures, such as
roads, drains, cable ways, and irrigation facilities, which phase may be completed in
eighteen (18) months;
4. importation and purchase of trucks mounted with boom spraying, nurse trucks and
protective gears. The placing of orders and delivery of these equipments, including the
training [of] the personnel who would man the same, would take six (6) months; and
5. securing the needed capitalization to finance these undertakings would take six (6)
months to a year.
Ms. Maria Victoria E. Sembrano, CPA, Chairperson of the PBGEA Finance Committee,
testified that her committee and the Technical Committee and Engineering Group of
PBGEA conducted a feasibility study to determine the cost in undertaking the shift to
ground spraying. Their findings fixed the estimated cost for the purpose at Php 400 Million.
xxxx
Both appellees failed to rebut the foregoing testimonies with empirical findings to the
contrary.
xxxx
Thus, in view of the infrastructural requirements as methodically explained, We are
convinced that it was physically impossible for petitioners-appellants to carry out a carefully
planned configuration of vast hectares of banana plantations and be able to actually adopt
"truck-mounted boom spraying" within three (3) months. To compel petitioners-appellants
to abandon aerial spraying in favor of "manual or backpack spraying" or "sprinkler
spraying" within 3 months puts petitioners-appellants in a vicious dilemma between
protecting its investments and the health of its workers, on the one hand, and the threat of
prosecution if they refuse to comply with the imposition. We even find the 3-months
transition period insufficient, not only in acquiring and gearing-up the plantation workers of
safety appurtenances, but more importantly in reviewing safety procedures for "manual or
backpack spraying" and in training such workers for the purpose. Additionally, the
engineering works for a sprinkler system in vast hectares of banana plantations could not
possibly be completed within such period, considering that safety and efficiency factors
need to be considered in its structural re-designing.
xxxx
Respondent-appellee argues that the Ordinance merely banned an agricultural practice
and did not actually prohibit the operation of banana plantations; hence, it is not
oppressive. While We agree that the measure did not impose a closure of a lawful
enterprise, the proviso in Section 5, however, compels petitioners-appellants to abandon
aerial spraying without affording them enough time to convert and adopt other spraying
practices. This would preclude petitioners-appellants from being able to fertilize their
plantations with essential vitamins and minerals substances, aside from applying thereon
the needed fungicides or pesticides to control, if not eliminate the threat of, plant diseases.
Such an apparent eventuality would prejudice the operation of the plantations, and the
economic repercussions thereof would just be akin to shutting down the venture.
This Court, therefore, finds Section 5 of Ordinance No. 0309-07 an invalid provision
because the compulsion thereunder to abandon aerial spraying within an impracticable
period of "three (3) months after the effectivity of this Ordinance" is "unreasonable,
oppressive and impossible to comply with."[116]
The required civil works for the conversion to truck-mounted boom spraying alone will
consume considerable time and financial resources given the topography and
geographical features of the plantations. [117] As such, the conversion could not be
completed within the short timeframe of three months. Requiring the respondents and
other affected individuals to comply with the consequences of the ban within the three-
month period under pain of penalty like fine, imprisonment and even cancellation of
business permits would definitely be oppressive as to constitute abuse of police power.
The respondents posit that the requirement of maintaining a buffer zone under Section 6 of
the ordinance violates due process for being confiscatory; and that the imposition unduly
deprives all agricultural landowners within Davao City of the beneficial use of their property
that amounts to taking without just compensation.
The position of the respondents is untenable.
In City of Manila v. Laguio, Jr.,[118] we have thoroughly explained that taking only becomes
confiscatory if it substantially divests the owner of the beneficial use of its property, viz.:
An ordinance which permanently restricts the use of property that it cannot be used for any
reasonable purpose goes beyond regulation and must be recognized as a taking of the
property without just compensation. It is intrusive and violative of the private property rights
of individuals.
The Constitution expressly provides in Article III, Section 9, that "private property shall not
be taken for public use without just compensation." The provision is the most important
protection of property rights in the Constitution. This is a restriction on the general power of
the government to take property. The constitutional provision is about ensuring that the
government does not confiscate the property of some to give it to others. In part too, it is
about loss spreading. If the government takes away a person's property to benefit society,
then society should pay. The principal purpose of the guarantee is "to bar the Government
from forcing some people alone to bear public burdens which, in all fairness and justice,
should be borne by the public as a whole.
There are two different types of taking that can be identified. A "possessory" taking occurs
when the government confiscates or physically occupies property. A "regulatory" taking
occurs when the government's regulation leaves no reasonable economically viable use of
the property.
In the landmark case of Pennsylvania Coal v. Mahon, it was held that a taking also could
be found if government regulation of the use of property went "too far." When regulation
reaches a certain magnitude, in most if not in all cases there must be an exercise of
eminent domain and compensation to support the act. While property may be regulated to
a certain extent, if regulation goes too far it will be recognized as a taking.
No formula or rule can be devised to answer the questions of what is too far and when
regulation becomes a taking. In Mahon, Justice Holmes recognized that it was "a question
of degree and therefore cannot be disposed of by general propositions." On many other
occasions as well, the U.S. Supreme Court has said that the issue of when regulation
constitutes a taking is a matter of considering the facts in each case. The Court asks
whether justice and fairness require that the economic loss caused by public action must
be compensated by the government and thus borne by the public as a whole, or whether
the loss should remain concentrated on those few persons subject to the public action.
What is crucial in judicial consideration of regulatory takings is that government regulation
is a taking if it leaves no reasonable economically viable use of property in a manner that
interferes with reasonable expectations for use. A regulation that permanently denies all
economically beneficial or productive use of land is, from the owner's point of view,
equivalent to a "taking" unless principles of nuisance or property law that existed when the
owner acquired the land make the use prohibitable. When the owner of real property has
been called upon to sacrifice all economically beneficial uses in the name of the common
good, that is, to leave his property economically idle, he has suffered a taking.
A regulation which denies all economically beneficial or productive use of land will require
compensation under the takings clause. Where a regulation places limitations on land that
fall short of eliminating all economically beneficial use, a taking nonetheless may have
occurred, depending on a complex of factors including the regulation's economic effect on
the landowner, the extent to which the regulation interferes with reasonable investment-
backed expectations and the character of government action. These inquiries are informed
by the purpose of the takings clause which is to prevent the government from forcing some
people alone to bear public burdens which, in all fairness and justice, should be borne by
the public as a whole.
A restriction on use of property may also constitute a "taking" if not reasonably necessary
to the effectuation of a substantial public purpose or if it has an unduly harsh impact on the
distinct investment-backed expectations of the owner. (bold emphasis supplied)
The establishment of the buffer zone is required for the purpose of minimizing the effects
of aerial spraying within and near the plantations. Although Section 3(e) of the ordinance
requires the planting of diversified trees within the identified buffer zone, the requirement
cannot be construed and deemed as confiscatory requiring payment of just compensation.
A landowner may only be entitled to compensation if the taking amounts to a permanent
denial of all economically beneficial or productive uses of the land. The respondents
cannot be said to be permanently and completely deprived of their landholdings because
they can still cultivate or make other productive uses of the areas to be identified as the
buffer zones.
III
Ordinance No. 0309-07 violates the Equal Protection Clause
A serious challenge being posed against Ordinance No. 0309-07 rests on its supposed
collision with the Equal Protection Clause. The respondents submit that the ordinance
transgresses this constitutional guaranty on two counts, to wit: (1) by prohibiting aerial
spraying per se, regardless of the substance or the level of concentration of the chemicals
to be applied; and (2) by imposing the 30-meter buffer zone in all agricultural lands in
Davao City regardless of the sizes of the landholding.
The constitutional right to equal protection requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and responsibilities imposed. It
requires public bodies and institutions to treat similarly situated individuals in a similar
manner. The guaranty equal protection secures every person within the State's jurisdiction
against intentional and arbitrary discrimination, whether occasioned by the express terms
of a statue or by its improper execution through the State's duly constituted authorities. The
concept of equal justice under the law demands that the State governs impartially, and not
to draw distinctions between individuals solely on differences that are irrelevant to the
legitimate governmental objective.[119]
Equal treatment neither requires universal application of laws to all persons or things
without distinction,[120] nor intends to prohibit legislation by limiting the object to which it is
directed or by the territory in which it is to operate. [121] The guaranty of equal protection
envisions equality among equals determined according to a valid classification. [122] If the
groupings are characterized by substantial distinctions that make real differences, one
class may be treated and regulated differently from another. [123] In other word, a valid
classification must be: (1) based on substantial distinctions; (2) germane to the purposes of
the law; (3) not limited to existing conditions only; and (4) equally applicable to all members
of the class.[124]
Based on these parameters, we find for the respondents.
The reasonability of a distinction and sufficiency of the justification given by the
Government for its conduct is gauged by using the means-end test.[125] This test requires
analysis of: (1) the interests of the public that generally require its exercise, as
distinguished from those of a particular class; and (2) the means employed that are
reasonably necessary for the accomplishment of the purpose and are not unduly
oppressive upon individuals.[126] To determine the propriety of the classification, courts
resort to three levels of scrutiny, viz: the rational scrutiny, intermediate scrutiny and strict
scrutiny.
The rational basis scrutiny (also known as the rational relation test or rational basis test)
demands that the classification reasonably relate to the legislative purpose.[127]The rational
basis test often applies in cases involving economics or social welfare, [128]or to any other
case not involving a suspect class.[129]
When the classification puts a quasi-suspect class at a disadvantage, it will be treated
under intermediate or heightened review. Classifications based on gender or illegitimacy
receives intermediate scrutiny.[130] To survive intermediate scrutiny, the law must not only
further an important governmental interest and be substantially related to that interest, but
the justification for the classification must be genuine and must not depend on broad
generalizations.[131]
The strict scrutiny review applies when a legislative classification impermissibly interferes
with the exercise of a fundamental right or operates to the peculiar class disadvantage of a
suspect class. The Government carries the burden to prove that the classification is
necessary to achieve a compelling state interest, and that it is the least restrictive means to
protect such interest.[132]
The petitioners advocate the rational basis test. In particular, the petitioning residents of
Davao City argue that the CA erroneously applied the strict scrutiny approach when it
declared that the ordinance violated the Equal Protection Clause because the ban included
all substances including water and vitamins. The respondents agree with the CA, however,
and add that the ordinance does not rest on a valid distinction because it has lacked
scientific basis and has ignored the classifications of pesticides observed by the FPA.
We partly agree with both parties.
In our view, the petitioners correctly argue that the rational basis approach appropriately
applies herein. Under the rational basis test, we shall: (1) discern the reasonable
relationship between the means and the purpose of the ordinance; and (2) examine
whether the means or the prohibition against aerial spraying is based on a substantial or
reasonable distinction. A reasonable classification includes all persons or things similarly
situated with respect to the purpose of the law.[133]
Applying the test, the established classification under Ordinance No. 0309-07 is to be
viewed in relation to the group of individuals similarly situated with respect to the avowed
purpose. This gives rise to two classes, namely: (1) the classification under Ordinance No.
0309-07 (legislative classification); and (2) the classification based on purpose (elimination
of the mischief). The legislative classification found in Section 4 of the ordinance refers to
"all agricultural entities" within Davao City. Meanwhile, the classification based on the
purpose of the ordinance cannot be easily discerned because the ordinance does not
make any express or implied reference to it. We have to search the voluminous records of
this case to divine the animus behind the action of the Sangguniang Panglungsod in
prohibiting aerial spraying as an agricultural activity. The effort has led uS to the following
proposed resolution of the Sangguniang Panglungsod, [134] viz.:
RESOLUTION NO. ____
Series of 2007
A RESOLUTION TO ENACT AN ORDINANCE BANNING AERIAL SPRAYING AS AN
AGRICULTURAL PRACTICE IN ALL AGRICULTURAL ENTITIES IN DAVAO CITY
WHEREAS, the City of Davao, with fertile lands and ideal climactic condition, hosts various
large farms planted with different crops;
WHEREAS, these farms, lay adjacent to other agricultural businesses and that residential
areas abuts these farm boundaries;
WHEREAS, aerial spraying as a mode of applying chemical substances such as fungicides
and pesticides is being used by investors/companies over large agricultural plantations in
Davao City;
WHEREAS, the Davao City watersheds and ground water sources, located within and
adjacent to Mount Apo may be affected by the aerial spraying of chemical substances on
the agricultural farms and plantations therein;
WHEREAS, the effects of aerial spraying are found to be detrimental to the health of the
residents of Davao City most especially the inhabitants nearby agricultural plantations
practicing aerials spraying;
WHEREAS, the unstable wind direction during the conduct of aerial spray application of
these chemical substances pose health hazards to people, animals, other crops and
ground water sources;
WHEREAS, in order to achieve sustainable development, politics must be based on the
Precautionary Principle. Environment measures must anticipate, prevent, and attack the
causes of environmental degradation. Where there are threats of serious, irreversible
damage, lack of scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation;
WHEREAS, it is the policy of the City of Davao to ensure the safety of its inhabitants from
all forms of hazards, especially if such hazards come from development activities that are
supposed to be beneficial to everybody;
WHEREAS, pesticides are by its nature poisonous, it is all the more dangerous when
dispensed aerially through aircraft because of unstable wind conditions which in turn
makes aerial spray drifting to unintended targets a commonplace.
WHEREAS, aerial spraying of pesticides is undeniably a nuisance.
WHEREAS, looking at the plight of the complainants and other stakeholders opposed to
aerial spraying, the issue of aerial spraying of pesticides is in all fours a nuisance. Given
the vastness of the reach of aerial spraying, the said form of dispensation falls into the
category of a public nuisance. Public nuisance is defined by the New Civil Code as one
which affects a community or neighborhood or any considerable number of persons,
although the extent of the annoyance, danger or damage upon individuals may be
unequal.
WHEREAS, the General Welfare Clause of the Local Government Code empowers Local
Government Units to enact ordinances that provide for the health and safety, promote the
comfort and convenience of the City and the inhabitants thereof.
NOW THEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, that for the
health, safety and peace of mind of all the inhabitants of Davao City, let an ordinance be
enacted banning aerial spraying as an agricultural practice in all agricultural entities in
Davao City.
xxxx
The proposed resolution identified aerial spraying of pesticides as a nuisance because of
the unstable wind direction during the aerial application, which (1) could potentially
contaminate the Davao City watersheds and ground water sources; (2) was detrimental to
the health of Davao City residents, most especially those living in the. nearby plantations;
and (3) posed a hazard to animals and other crops. Plainly, the mischief that the
prohibition sought to address was the fungicide drift resulting from the aerial application;
hence, the classification based on the intent of the proposed ordinance covered all
agricultural entities conducting aerial spraying of fungicides that caused drift.
The assailed ordinance thus becomes riddled with several distinction issues.
A brief discussion on the occurrence of the drift that the ordinance seeks to address is
necessary.
Pesticide treatment is based on the use of different methods of application and
equipment,[135] the choice of which methods depend largely on the objective of distributing
the correct dose to a defined target with the minimum of wastage due to "drift." [136] The
term "drift" refers to the movement of airborne spray droplets, vapors, or dust particles
away from the target area during pesticide application. [137]Inevitably, any method of
application causes drift, which may either be primary or secondary. As fittingly described
by scholars:[138]
Primary drift is the off-site movement of spray droplets at, or very close to, the time of
application. For example, a field application using a boom in a gusty wind situation could
easily lead to a primary drift. Primary spray drift is not product specific, and the active
ingredients do not differ in their potential to drift. However, the type of formulation,
surfactant, or other adjuvant may affect spray drift potential.
Secondary drift is associated with pesticide vapor. Pesticide vapor drift is the movement of
the gas that forms when an active ingredient evaporates from plants, soil, or other
surfaces. And while vapor drift is an important issue, it only pertains to certain volatile
products. Vapor drift and other forms of secondary drift areproduct specific. Water-based
sprays will volatize more quickly than oil-based sprays. However, oil-based sprays can drift
farther, especially above 95F, because they are lighter.
Understandably, aerial drift occurs using any method of application, be it through airplanes,
ground sprayers, airblast sprayers or irrigation systems. [139] Several factors contribute to
the occurrence of drift depending on the method of application, viz.:
AERIAL AIRBLAST GROUND CHEMIGATION
Droplet size Crop canopy Droplet size Application height
Application height Droplet size Boom height Wind speed
Wind speed Wind speed Wind speed
Swath adjustment
Canopy
Boom length
Tank mix physical
properties
Source: F.M. Fishel and J.A. Ferrell, "Managing Pesticide Drift," available
at http://edis.ifas.edu/pi232. citing Pesticide Notes, MSU Extension.
The four most common pesticide treatment methods adopted in Davao City are aerial,
truck-mounted boom, truck-mounted mechanical, and manual spraying.[140]However,
Ordinance No. 0309-07 imposes the prohibition only against aerial spraying.
Davao City justifies the prohibition against aerial spraying by insisting that the occurrence
of drift causes inconvenience and harm to the residents and degrades the environment.
Given this justification, does the ordinance satisfy the requirement that the classification
must rest on substantial distinction?
We answer in the negative.
The occurrence of pesticide drift is not limited to aerial spraying but results from the
conduct of any mode of pesticide application. Even manual spraying or truck-mounted
boom spraying produces drift that may bring about the same inconvenience, discomfort
and alleged health risks to the community and to the environment. [141] A ban against aerial
spraying does not weed out the harm that the ordinance seeks to achieve. [142] In the
process, the ordinance suffers from being "underinclusive" because the classification does
not include all individuals tainted with the same mischief that the law seeks to
eliminate.[143] A classification that is drastically underinclusive with respect to the purpose
or end appears as an irrational means to the legislative end because it poorly serves the
intended purpose of the law.[144]
The claim that aerial spraying produces more aerial drift cannot likewise be sustained in
view of the petitioners' failure to substantiate the same. The respondents have refuted this
claim, and have maintained that on the contrary, manual spraying produces more drift than
aerial treatment[145] As such, the decision of prohibiting only aerial spraying is tainted with
arbitrariness.
Aside from its being underinclusive, the assailed ordinance also tends to be "overinclusive"
because its .impending implementation will affect groups that have no relation to the
accomplishment of the legislative purpose. Its implementation will unnecessarily impose a
burden on a wider range of individuals than those included in the intended class based on
the purpose of the law.[146]
It can be noted that the imposition of the ban is too broad because the ordinance applies
irrespective of the substance to be aerially applied and irrespective of the agricultural
activity to be conducted. The respondents admit that they aerially treat their plantations not
only with pesticides but also vitamins and other substances. The imposition of the ban
against aerial spraying of substances other than fungicides and regardless of the
agricultural activity being performed becomes unreasonable inasmuch as it patently bears
no relation to the purported inconvenience, discomfort, health risk and environmental
danger which the ordinance, seeks to address. The burden now will become more onerous
to various entities including the respondents and even others with no connection
whatsoever to the intended purpose of the ordinance.
In this respect, the CA correctly observed:
Ordinance No. 0309-07 defines "aerial spraying" as the "application of substances through
the use of aircraft of any form which dispenses the substances in the air." Inevitably, the
ban imposed therein encompasses aerial application of practically all substances, not only
pesticides or fungicides but including water and all forms of chemicals, regardless of its
elements, composition, or degree of safety.
Going along with respondent-appellee's ratiocination that the prohibition in the Ordinance
refers to aerial spraying as a method of spraying pesticides or fungicides, there appears to
be a need to single out pesticides or fungicides in imposing such a ban because there is a
striking distinction between such chemicals and other substances (including water),
particularly with respect to its safety implications to the public welfare and ecology.
xxxx
We are, therefore, convinced that the total ban on aerial spraying runs afoul with the equal
protection clause because it does not classify which substances are prohibited from being
applied aerially even as reasonable distinctions should be made in terms of the hazards,
safety or beneficial effects of liquid substances to the public health, livelihood and the
environment.[147]
We clarify that the CA did not thereby apply the strict scrutiny approach but only evaluated
the classification established by the ordinance in relation to the purpose. This is the
essence of the rational basis approach.
The petitioners should be made aware that the rational basis scrutiny is not based on a
simple means-purpose correlation; nor does the rational basis scrutiny automatically result
in a presumption of validity of the ordinance or deference to the wisdom of the local
legislature.[148] To reiterate, aside from ascertaining that the means and purpose of the
ordinance are reasonably related, the classification should be based on a substantial
distinction.
However, we do not subscribe to the respondents' position that there must be a distinction
based on the level of concentration or the classification imposed by the FPA on pesticides.
This strenuous requirement cannot be expected from a local government unit that should
only be concerned with general policies in local administration and should not be restricted
by technical concerns that are best left to agencies vested with the appropriate special
competencies. The disregard of the pesticide classification is not an equal protection issue
but is more relevant in another aspect of delegated police power that we consider to be
more appropriate in a later discussion.
The overinclusiveness of Ordinance No. 0309-07 may also be traced to its Section 6 by
virtue of its requirement for the maintenance of the 30- meter buffer zone. This requirement
applies regardless of the area of the agricultural landholding, geographical location,
topography, crops grown and other distinguishing characteristics that ideally should bear a
reasonable relation to the evil sought to be avoided. As earlier discussed, only large
banana plantations could rely on aerial technology because of the financial capital required
therefor.
The establishment and maintenance of the buffer zone will become more burdensome to
the small agricultural landholders because: (1) they have to reserve the 30-meter belt
surrounding their property; (2) that will have to be identified through GPS; (3) the metes
and bounds of the buffer zone will have to be plotted in a survey plan for submission to the
local government unit; and (4) will be limited as to the crops that may be cultivated therein
based on the mandate that the zone shall be devoted to "diversified trees" taller than what
are being grown therein.[149] The arbitrariness of Section 6 all the more becomes evident
when the land is presently devoted to the cultivation of root crops and vegetables, and
trees or plants slightly taller than the root crops and vegetables are then to be planted. It is
seriously to be doubted whether such circumstance will prevent the occurrence of the drift
to the nearby residential areas.
Section 6 also subjects to the 30-meter buffer zone requirement agricultural entities
engaging in organic farming, and' do not contribute to the occurrence of pesticide drift. The
classification indisputably becomes arbitrary and whimsical.
A substantially overinclusive or underinclusive classification tends to undercut the
governmental claim that the classification serves legitimate political ends. [150] Where
overinclusiveness is the problem, the vice is that the law has a greater discriminatory or
burdensome effect than necessary.[151] In this light, we strike down Section 5 and Section 6
of Ordinance No. 0309-07 for carrying an invidious classification, and for thereby violating
the Equal Protection Clause.
The discriminatory nature of the ordinance can be seen from its policy as stated in its
Section 2, to wit:
Section 2. POLICY OF THE CITY. It shall be the policy of the City of Davao to eliminate
the method of aerial spraying as an agricultural practice in all agricultural activities by all
entities within Davao City.
Evidently, the ordinance discriminates against large farmholdings that are the only ideal
venues for the investment of machineries and equipment capable of aerial spraying. It
effectively denies the affected individuals the technology aimed at efficient and cost-
effective operations and cultivation not only of banana but of other crops as well. The
prohibition against aerial spraying will seriously hamper the operations of the banana
plantations that depend on aerial technology to arrest the spread of the Black Sigatoka
disease and other menaces that threaten their production and harvest. As earlier shown,
the effect of the ban will not be limited to Davao City in view of the significant contribution
of banana export trading to the country's economy.
The discriminatory character of the ordinance makes it oppressive and unreasonable in
light of the existence and availability of more permissible and practical alternatives that will
not overburden the respondents and those dependent on their operations as well as those
who stand to be affected by the ordinance. In the view of Regional Director Roger C. Chio
of DA Regional Field Unit XI, the alleged harm caused by aerial spraying may be
addressed by following the GAP that the DA has been promoting among plantation
operators. He explained his view thusly:
The allegation that aerial spraying is hazardous to animal and human being remains an
allegation and assumptions until otherwise scientifically proven by concerned authorities
and agencies. This issue can be addressed by following Good Agricultural Practices, which
DA is promoting among fruit and vegetable growers/plantations. Any method of agri-
chemical application whether aerial or non-aerial if not properly done in accordance with
established procedures and code of good agricultural practices and if the chemical
applicators and or handlers lack of necessary competency, certainly it could be hazardous.
For the assurance that commercial applicators/aerial applicators possessed the
competency and responsibility of handling agri-chemical, such applicators are required
under Article III, Paragraph 2 of FPA Rules and Regulation No. 1 to secure license from
FPA.
Furthermore users and applicators of agri-chemicals are also guided by Section 6
Paragraph 2 and 3 under column of Pesticides and Other agricultural Chemicals of PD
11445 which stated: "FPA shall establish and enforce tolerance levels and good
agricultural practices in raw agricultural commodities; to restrict or ban the use of any
chemical or the formulation of certain pesticides in specific areas or during certain period
upon evidence that the pesticide is eminent [sic] hazards has caused, or is causing
widespread serious damage to crops, fish, livestock or to public health and environment."
Besides the aforecited policy, rules and regulation enforced by DA, there are other laws
and regulations protecting and preserving the environment. If the implementation and
monitoring of all these laws and regulation are closely coordinated with concerned LGUs,
Gas and NGAs and other private sectors, perhaps we can maintain a sound and health
environment x x x.[152]
Indeed, based on the Summary Report on the Assessment and Factfinding Activities on
the Issue of Aerial Spraying in Banana Plantations,[153] submitted by the fact-finding team
organized by Davao City, only three out of the 13 barangays consulted by the fact-finding
team opposed the conduct of aerial spraying; and of the three barangays, aerial spraying
was conducted only in Barangay Subasta. In fact, the fact-finding team found that the
residents in those barangays were generally in favor of the operations of the banana
plantations, and did not oppose the conduct of aerial spraying.
IV
The Precautionary Principle still requires scientific basis
The petitioners finally plead that the Court should look at the merits of the ordinance based
on the precautionary principle. They argue that under the precautionary principle, the City
of Davao is justified in enacting Ordinance No. 0309-07 in order to prevent harm to the
environment and human health despite the lack of scientific certainty.
The petitioners' plea and argument cannot be sustained.
The principle of precaution originated as a social planning principle in Germany. In the
1980s, the Federal Republic of Germany used the Vorsogeprinzip ("foresight principle") to
justify the implementation of vigorous policies to tackle acid rain, global warming and
pollution of the North Sea.[154] It has since emerged from a need to protect humans and the
environment from increasingly unpredictable, uncertain, and unquantifiable but possibly
catastrophic risks such as those associated with Genetically Modified Organisms and
climate change,[155] among others. The oft-cited Principle 15 of the 1992 Rio Declaration on
Environment and Development (1992 Rio Agenda), first embodied this principle, as
follows:
Principle 15
In order to protect the environment, the precautionary approach shall be widely applied by
States according to their capabilities. Where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as a reason for postponing cost-
effective measures to prevent environmental degradation.
In this jurisdiction, the principle of precaution appearing in the Rules of Procedure for
Environmental Cases (A.M. No. 09-6-8-SC) involves matters of evidence in cases where
there is lack of full scientific certainty in establishing a causal link between human activity
and environmental effect.[156] In such an event, the courts may construe a set of facts as
warranting either judicial action or inaction with the goal of preserving and protecting the
environment.[157]
It is notable, therefore, that the precautionary principle shall only be relevant if there is
concurrence of three elements, namely: uncertainty, threat of environmental damage and
serious or irreversible harm. In situations where the threat is relatively certain, or that the
causal link between an action and environmental damage can be established, or the
probability of occurrence can be calculated, only preventive, not precautionary measures,
may be taken. Neither will the precautionary principle apply if there is no indication of a
threat of environmental harm; or if the threatened harm is trivial or easily reversible. [158]
We cannot see the presence of all the elements. To begin with, there has been no
scientific study. Although the precautionary principle allows lack of full scientific certainty in
establishing a connection between the serious or irreversible harm and the human activity,
its application is still premised on empirical studies. Scientific analysis is still a necessary
basis for effective policy choices under the precautionary principle.[159]
Precaution is a risk management principle invoked after scientific inquiry takes place. This
scientific stage is often considered synonympus with risk assessment. [160] As such, resort
to the principle shall not be based on anxiety or emotion, but from a rational decision rule,
based in ethics.[161] As much as possible, a complete and objective scientific evaluation of
the risk to the environment or health should be conducted and made available to decision-
makers for them to choose the most appropriate course of action.[162] Furthermore, the
positive and negative effects of an activity is also important in the application of the
principle. The potential harm resulting from certain activities should always be judged in
view of the potential benefits they offer, while the positive and negative effects of potential
precautionary measures should be considered. [163]
The only study conducted to validate the effects of aerial spraying appears to be
the Summary Report on the Assessment and Fact-Finding Activities on the Issue of Aerial
Spraying in Banana Plantations.[164] Yet, the fact-finding team that generated the report
was not a scientific study that could justify the resort to the .precautionary principle. In fact,
the Sangguniang Bayan ignored the findings and conclusions of the fact-finding team that
recommended only a regulation, not a ban, against aerial spraying. The recommendation
was in line with the advocacy of judicious handling and application of chemical pesticides
by the DOH-Center for Health Development in the Davao Region in view of the scarcity of
scientific studies to support the ban against aerial spraying. [165]
We should not apply the precautionary approach in sustaining the ban against aerial
spraying if little or nothing is known of the exact or potential dangers that aerial spraying
may bring to the health of the residents within and near the plantations and to the integrity
and balance of the environment. It is dangerous to quickly presume that the effects of
aerial spraying would be adverse even in the absence of evidence. Accordingly, for lack of
scientific data supporting a ban on aerial spraying, Ordinance No. 0309-07 should be
struck down for being unreasonable.
V
Ordinance No. 0309-07 is an ultra vires act
The Court further holds that in addition to its unconstitutionality for carrying an unwarranted
classification that contravenes the Equal Protection Clause, Ordinance No. 0309-07 suffers
from another legal infirmity.
The petitioners represent that Ordinance No. 0309-07 is a valid exercise of legislative and
police powers by the Sangguniang Bayan of Davao City pursuant to Section 458 in relation
to Section 16 both of the Local Government Code. The respondents counter that Davao
City thereby disregarded the regulations implemented by the Fertilizer and Pesticide
Authority (FPA), including its identification and classification of safe pesticides and other
agricultural chemicals.
We uphold the respondents.
An ordinance enjoys the presumption of validity on the basis that:
The action of the elected representatives of the people cannot be lightly set aside. The
councilors must, in the very nature of things, be familiar with the necessities of their
particular municipality and with all the facts and circumstances which surround the subject,
and necessities of their particular municipality and with all the facts and circumstances
which surround the subject, and necessitate action. The local legislative body, by enacting
the ordinance, has in effect given notice that the regulations are essential to the well-being
of the people.[166]
Section 5(c) of the Local Government Code accords a liberal interpretation to its general
welfare provisions. The policy of liberal construction is consistent with the spirit of local
autonomy that endows local government units with sufficient power and discretion to
accelerate their economic development and uplift the quality of life for their constituents.
Verily, the Court has championed the cause of public welfare on several occasions. In so
doing, it has accorded liberality to the general welfare provisions of the Local Government
Code by upholding the validity of local ordinances enacted for the common good. For
instance, in Social Justice Society (SJS) v. Atienza, Jr.,[167] the Court validated a zoning
ordinance that reclassified areas covered by a large oil depot from industrial to commercial
in order to ensure the life, health and property of the inhabitants residing within the
periphery of the oil depot. Another instance is Gancayco v. City Government of Quezon
City,[168] where the Court declared as valid a city ordinance ordering the construction of
arcades that would ensure the health and safety of the city and its inhabitants,
improvement of their morals, peace, good order, comfort and convenience, as well as the
promotion of their prosperity. Even in its early years, the Court already extended liberality
towards the exercise by the local government units; of their legislative powers in order to
promote the general welfare of their communities. This was exemplified in United States v.
Salaveria,[169] wherein gambling was characterized as "an act beyond the pale of good
morals" that the local legislative council could validly suppress to protect the well-being of
its constituents; and in United States v. Abendan,[170] whereby the right of the then
Municipality of Cebu to enact an ordinance relating to sanitation and public health was
upheld.
The power to legislate under the General Welfare Clause is not meant to be an invincible
authority. In fact, Salaveria and Abendan emphasized the reasonableness and consistency
of the exercise by the local government units with the laws or policies of the State. [171] More
importantly, because the police power of the local government units flows from the express
delegation of the power by Congress, its exercise is to be construed in strictissimi juris.
Any doubt or ambiguity arising out of the terms used in granting the power should be
construed against the local legislative units. [172] Judicial scrutiny comes into play whenever
the exercise of police power affects life, liberty or property. [173] The presumption of validity
and the policy of liberality are not restraints on the power of judicial review in the face of
questions about whether an ordinance conforms with the Constitution, the laws or public
policy, or if it is unreasonable, oppressive, partial, discriminating or in derogation of a
common right. The ordinance must pass the test of constitutionality and the test of
consistency with the prevailing laws.[174]
Although the Local Government Code vests the municipal corporations with sufficient
power to govern themselves and manage their affairs and activities, they definitely have no
right to enact ordinances dissonant with the State's laws and policy. The Local
Government Code has been fashioned to delineate the specific parameters and limitations
to guide each local government unit in exercising its delegated powers with the view of
making the local government unit a fully functioning subdivision of the State within the
constitutional and statutory restraints.[175] The Local Government Code is not intended to
vest in the local government unit the blanket authority to legislate upon any subject that it
finds proper to legislate upon in the guise of serving the common good.
The function of pesticides control, regulation and development is within the jurisdiction of
the FPA under Presidential Decree No. 1144. [176] The FPA was established in recognition
of the need for a technically oriented government entity[177]that will protect the public from
the risks inherent in the use of pesticides.[178] To perform its mandate, it was given under
Section 6 of Presidential Decree No. 1144 the following powers and functions with respect
to pesticides and other agricultural chemicals, viz.:
Section 6. Powers and functions. The FPA shall have jurisdiction, on over all existing
handlers of pesticides, fertilizers and other agricultural chemical inputs. The FPA shall
have the following powers and functions:
xxxx
III. Pesticides and Other Agricultural Chemicals
1. To determine specific uses or manners of use for each pesticide or pesticide
formulation;
2. To establish and enforce levels and good agricultural practices for use of pesticides in
raw agricultural commodities;
3. To restrict or ban the use of any pesticide or the formulation of certain pesticides in
specific areas or during certain periods upon evidence that the pesticide is an imminent
hazard, has caused, or is causing widespread serious damage to crops, fish or livestock,
or to public health and environment;
xxxx
5. To inspect the establishment and premises of pesticide handlers to insure that industrial
health and safety rules and anti-pollution regulations are followed;
6. To enter and inspect farmers' fields to ensure that only the recommended pesticides are
used in specific crops in accordance with good agricultural practice;
x x x x (Emphasis supplied).
Evidently, the FPA was responsible for ensuring the compatibility between the usage and
the application of pesticides in agricultural activities and the demands for human health
and environmental safety. This responsibility includes not only the identification of safe and
unsafe pesticides, but also the prescription of the safe modes of application in keeping with
the standard of good agricultural practices.
On the other hand, the enumerated devolved functions to the local government units do
not include the regulation and control of pesticides and other agricultural
chemicals.[179] The non-inclusion should preclude the Sangguniang Bayan of Davao City
from enacting Ordinance No. 0309-07, for otherwise it would be arrogating unto itself the
authority to prohibit the aerial application of pesticides in derogation of the authority
expressly vested in the FPA by Presidential Decree No. 1144.
In enacting Ordinance No. 0309-07 without the inherent and explicit authority to do so, the
City of Davao performed an ultra vires act. As a local government unit, the City of Davao
could act only as an agent of Congress, and its every act should always conform to and
reflect the will of its principal.[180] As clarified in Batangas CATV, Inc. v. Court of
Appeals:[181]
[W]here the state legislature has made provision for the regulation of conduct, it has
manifested its intention that the subject matter shall be fully covered by the statute, and
that a municipality, under its general powers, cannot regulate the same conduct. In Keller
vs. State, it was held that: "Where there is no express power in the charter of a municipality
authorizing it to adopt ordinances regulating certain matters which are specifically covered
by a general statute, a municipal ordinance, insofar as it attempts to regulate the subject
which is completely covered by a general statute of the legislature, may be rendered
invalid. x x x Where the subject is of statewide concern, and the legislature has
appropriated the field and declared the rule, its declaration is binding throughout the State."
A reason advanced for this view is that such ordinances are in excess of the powers
granted to the municipal corporation.
Since E.O. No. 205, a general law, mandates that the regulation of CATV operations shall
be exercised by the NTC, an LGU cannot enact an ordinance or approve a resolution in
violation of the said law.
It is a fundamental principle that municipal ordinances are inferior in status and
subordinate to the laws of the state. An ordinance in conflict with a state law of general
character and statewide application is universally held to be invalid. The principle is
frequently expressed in the declaration that municipal authorities, under a general grant of
power, cannot adopt ordinances which infringe the spirit of a state law or repugnant to the
general policy of the state. In every power to pass ordinances given to a municipality, there
is an implied restriction that the ordinances shall be consistent with the general
law.[182] (Emphasis ours)
For sure, every local government unit only derives its legislative authority from Congress.
In no instance can the local government unit rise above its source of authority. As such, its
ordinance cannot run against or contravene existing laws, precisely because its authority is
only by virtue of the valid delegation from Congress. As emphasized in City of Manila v.
Laguio, Jr.:[183]
The requirement that the enactment must not violate existing law gives stress to the
precept that local government units are able to legislate only by virtue of their derivative
legislative power, a delegation of legislative power from the national legislature. The
delegate cannot be superior to the principal or exercise powers higher than those of the
latter.
This relationship between the national legislature and the local government units has not
been enfeebled by the new provisions in the Constitution strengthening the policy of local
autonomy. The national legislature is still the principal of the local government units, which
cannot defy its will or modify or violate it. [184]
Moreover, Ordinance No. 0309-07 proposes to prohibit an activity already covered by the
jurisdiction of the FPA, which has issued its own regulations under its Memorandum
Circular No. 02, Series of 2009, entitled Good Agricultural Practices for Aerial Spraying of
Fungicide in Banana Plantations.[185] While Ordinance No. 0309-07 prohibits aerial
spraying in banana plantations within the City of Davao, Memorandum Circular No. 02
seeks to regulate the conduct of aerial spraying in banana plantations [186] pursuant to
Section 6, Presidential Decree No. 1144, and in conformity with the standard of Good
Agricultural Practices (GAP). Memorandum Circular No. 02 covers safety
procedures,[187] handling[188] and post-application,[189] including the qualifications of
applicators,[190] storing of fungicides,[191] safety and equipment of plantation
personnel,[192] all of which are incompatible with the prohibition against aerial spraying
under Ordinance No. 0309-07.
Although Memorandum Circular No. 02 and Ordinance No. 0309-07 both require the
maintenance of the buffer zone, they differ as to their treatment and maintenance of the
buffer zone. Under Memorandum Circular No. 02, a 50-meter "no-spray boundary" buffer
zone should be observed by the spray pilots,[193] and the observance of the zone should be
recorded in the Aerial Spray Final Report (ASFR) as a post-application safety
measure.[194] On the other hand, Ordinance No. 0309-07 requires the maintenance of the
30-meter buffer zone to be planted with diversified trees. [195]
Devoid of the specific delegation to its local legislative body, the City of Davao exceeded
its delegated authority to enact Ordinance No. 0309-07. Hence, Ordinance No. 0309-07
must be struck down also for being an ultra vires act on the part of the Sangguniang Bayan
of Davao City.
We must emphasize that our ruling herein does not seek to deprive the LGUs their right to
regulate activities within their jurisdiction. They are empowered under Section 16 of
the Local Government Code to promote the general welfare of the people through
regulatory, not prohibitive, ordinances that conform with the policy directions of the
National Government. Ordinance No. 0309-07 failed to pass this test as it contravenes the
specific regulatory policy on aerial spraying in banana plantations on a nationwide scale of
the National Government, through the FPA.
Finally, the unconstitutionality of the ban renders nugatory Ordinance No. 0309-07 in its
entirety. Consequently, any discussion on the lack of the separability clause becomes
entirely irrelevant.
WHEREFORE, the Court DENIES the consolidated petitions for review on certiorari for
their lack of merit; AFFIRMS the decision promulgated on January 9, 2009 in C.A.-G.R. CV
No. 01389-MIN. declaring Ordinance No. 0309-
07 UNCONSTITUTIONAL; PERMANENTLY ENJOINS respondent City of Davao, and all
persons or entities acting in its behalf or under its authority, from enforcing and
implementing Ordinance No. 0309-07; and ORDERS the petitioners to pay the costs of
suit.
SO ORDERED.
 Republic of the Philippines In resolving this controversy, the Court took into consideration that all the parties involved
Supreme Court share common goals in pursuit of certain primordial State policies and principles that are
Manila enshrined in the Constitution and pertinent laws, such as the protection of the environment,
the empowerment of the local government units, the promotion of tourism, and the
EN BANC encouragement of the participation of the private sector. The Court seeks to reconcile the
respective roles, duties and responsibilities of the petitioner and respondents in achieving
BORACAY FOUNDATION, INC., G.R. No. 196870 these shared goals within the context of our Constitution, laws and regulations.
Petitioner,
Nature of the Case
Present:
This is an original petition for the issuance of an Environmental Protection Order in the nature
CARPIO, of a continuing mandamus under A.M. No. 09-6-8-SC, otherwise known as the Rules of
VELASCO, JR., Procedure for Environmental Cases, promulgated on April 29, 2010.
LEONARDO-DE CASTRO,
- versus - BRION, The Parties
PERALTA,
BERSAMIN, Petitioner Boracay Foundation, Inc. (petitioner) is a duly registered, non-stock domestic
DEL CASTILLO, corporation. Its primary purpose is to foster a united, concerted and environment-conscious
ABAD, development of Boracay Island, thereby preserving and maintaining its culture, natural
VILLARAMA, JR., beauty and ecological balance, marking the island as the crown jewel of Philippine tourism,
PEREZ, a prime tourist destination in Asia and the whole world. [1] It counts among its members at
THE PROVINCE OF AKLAN, REPRESENTED BY MENDOZA,* least sixty (60) owners and representatives of resorts, hotels, restaurants, and similar
GOVERNOR CARLITO S. MARQUEZ, THE SERENO, institutions; at least five community organizations; and several environmentally-conscious
PHILIPPINE RECLAMATION AUTHORITY, AND THE REYES, and residents and advocates.[2]
DENR-EMB (REGION VI), PERLAS-BERNABE, JJ.
Respondents. Respondent Province of Aklan (respondent Province) is a political subdivision of the
Promulgated: government created pursuant to Republic Act No. 1414, represented by Honorable Carlito
S. Marquez, the Provincial Governor (Governor Marquez).
June 26, 2012
Respondent Philippine Reclamation Authority (respondent PRA), formerly called the Public
Estates Authority (PEA), is a government entity created by Presidential Decree No.
1084,[3] which states that one of the purposes for which respondent PRA was created was
to reclaim land, including foreshore and submerged areas. PEA eventually became the lead
agency primarily responsible for all reclamation projects in the country under Executive
Order No. 525, series of 1979. In June 2006, the President of the Philippines issued
Executive Order No. 543, delegating the power to approve reclamation projects to PRA
through its governing Board, subject to compliance with existing laws and rules and further
subject to the condition that reclamation contracts to be executed with any person or entity
(must) go through public bidding.[4]

Respondent Department of Environment and Natural Resources Environmental

Management Bureau (DENR-EMB), Regional Office VI (respondent DENR-EMB RVI), is the
government agency in the Western Visayas Region authorized to issue environmental
compliance certificates regarding projects that require the environments protection and
x--------------------------------------------------x management in the region.[5]

Summary of Antecedent Facts

DECISION
Boracay Island (Boracay), a tropical paradise located in the Western Visayas
LEONARDO-DE CASTRO, J.: region of the Philippines and one of the countrys most popular tourist destinations, was
declared a tourist zone and marine reserve in 1973 under Presidential Proclamation No.
1801.[6]The island comprises the barangays of Manoc-manoc, Balabag, and Yapak, all
within the municipality of Malay, in the province of Aklan. [7]
 Petitioner describes Boracay as follows:
Boracay is well-known for its distinctive powdery white-sand
beaches which are the product of the unique ecosystem dynamics of the
area. The island itself is known to come from the uplifted remnants of an
ancient reef platform. Its beaches, the sandy land strip between the water
and the area currently occupied by numerous establishments, is the
primary draw for domestic and international tourists for its color, texture
and other unique characteristics. Needless to state, it is the premier
domestic and international tourist destination in the Philippines. [8]
More than a decade ago, respondent Province built the Caticlan Jetty Port and
Passenger Terminal at Barangay Caticlan to be the main gateway to Boracay. It also built
the corresponding Cagban Jetty Port and Passenger Terminal to be the receiving end for
tourists in Boracay. Respondent Province operates both ports to provide structural facilities
suited for locals, tourists and guests and to provide safety and security measures.[9]
In 2005, Boracay 2010 Summit was held and participated in by representatives
from national government agencies, local government units (LGUs), and the private sector.
Petitioner was one of the organizers and participants thereto. The Summit aimed to re-
establish a common vision of all stakeholders to ensure the conservation, restoration, and
preservation of Boracay Island and to develop an action plan that [would allow] all sectors
to work in concert among and with each other for the long term benefit and sustainability of
the island and the community.[10] The Summit yielded a Terminal Report[11] stating that the
participants had shared their dream of having world-class land, water and air infrastructure,
as well as given their observations that government support was lacking, infrastructure was
poor, and, more importantly, the influx of tourists to Boracay was increasing. The Report
showed that there was a need to expand the port facilities at Caticlan due to congestion in
the holding area of the existing port, caused by inadequate facilities, thus tourists suffered
long queues while waiting for the boat ride going to the island. [12]
Respondent Province claimed that tourist arrivals to Boracay reached
approximately 649,559 in 2009 and 779,666 in 2010, and this was expected to reach a
record of 1 million tourist arrivals in the years to come. Thus, respondent Province
conceptualized the expansion of the port facilities at Barangay Caticlan. [13]
The Sangguniang Barangay of Caticlan, Malay Municipality, issued Resolution
No. 13, s. 2008[14] on April 25, 2008 stating that it had learned that respondent Province had
filed an application with the DENR for a foreshore lease of areas along the shorelines of
Barangay Caticlan, and manifesting its strong opposition to said application, as the proposed
foreshore lease practically covered almost all the coastlines of said barangay, thereby
technically diminishing its territorial jurisdiction, once granted, and depriving its constituents
of their statutory right of preference in the development and utilization of the natural
resources within its jurisdiction. The resolution further stated that respondent Province did
not conduct any consultations with the Sangguniang Barangay of Caticlan regarding the
proposed foreshore lease, which failure the Sanggunian considered as an act of bad faith
on the part of respondent Province.[15]
On November 20, 2008, the Sangguniang Panlalawigan of respondent Province
approved Resolution No. 2008-369,[16] formally authorizing Governor Marquez to enter into
negotiations towards the possibility of effecting self-liquidating and income-producing
development and livelihood projects to be financed through bonds, debentures, securities,
collaterals, notes or other obligations as provided under Section 299 of the Local
Government Code, with the following priority projects: (a) renovation/rehabilitation of the
Caticlan/Cagban Passenger Terminal Buildings and Jetty Ports; and (b) reclamation of a
portion of Caticlan foreshore for commercial purposes. [17] This step was taken as respondent
Provinces existing jetty port and passenger terminal was funded through bond flotation,
which was successfully redeemed and paid ahead of the target date. This was allegedly
cited as one of the LGUs Best Practices wherein respondent Province was given the
appropriate commendation.[18]
Respondent Province included the proposed expansion of the port facilities at
Barangay Caticlan in its 2009 Annual Investment Plan,[19] envisioned as its project site the
area adjacent to the existing jetty port, and identified additional areas along the coastline of
Barangay Caticlan as the site for future project expansion. [20]
Governor Marquez sent a letter to respondent PRA on March 12, 2009 [21] expressing the
interest of respondent Province to reclaim about 2.64 hectares of land along the foreshores
of Barangay Caticlan, Municipality of Malay, Province of Aklan.
Sometime in April 2009, respondent Province entered into an agreement with the Financial
Advisor/Consultant that won in the bidding process held a month before, to conduct the
necessary feasibility study of the proposed project for the Renovation/Rehabilitation of the
Caticlan Passenger Terminal Building and Jetty Port, Enhancement and Recovery of Old
Caticlan Coastline, and Reclamation of a Portion of Foreshore for Commercial Purposes
(the Marina Project), in Malay, Aklan.[22]
Subsequently, on May 7, 2009, the Sangguniang Panlalawigan of respondent Province
issued Resolution No. 2009110,[23] which authorized Governor Marquez to file an
application to reclaim the 2.64 hectares of foreshore area in Caticlan, Malay, Aklan
with respondent PRA.
Sometime in July 2009, the Financial Advisor/Consultant came up with a feasibility study
which focused on the land reclamation of 2.64 hectares by way of beach enhancement and
recovery of the old Caticlan coastline for the rehabilitation and expansion of the existing jetty
port, and for its future plans the construction of commercial building and wellness center. The
financial component of the said study was Two Hundred Sixty Million Pesos
(P260,000,000.00). Its suggested financing scheme was bond flotation. [24]
Meanwhile, the Sangguniang Bayan of the Municipality of Malay expressed its
strong opposition to the intended foreshore lease application, through Resolution No.
044,[25] approved on July 22, 2009, manifesting therein that respondent Provinces foreshore
lease application was for business enterprise purposes for its benefit, at the expense of the
local government of Malay, which by statutory provisions was the rightful entity to develop,
utilize and reap benefits from the natural resources found within its jurisdiction. [26]
In August 2009, a Preliminary Geohazard Assessment [27] for the
enhancement/expansion of the existing Caticlan Jetty Port and Passenger Terminal through
beach zone restoration and Protective Marina Developments in Caticlan, Malay, Aklan was
completed.
Thereafter, Governor Marquez submitted an Environmental Performance
Report and Monitoring Program (EPRMP)[28] to DENR-EMB RVI, which he had attached
to his letter[29] dated September 19, 2009, as an initial step for securing an Environmental
Compliance Certificate (ECC). The letter reads in part:
With the project expected to start its construction
implementation next month, the province hereby assures your good
 office that it will give preferential attention to and shall comply with
whatever comments that you may have on this EPRMP. [30] (Emphasis
added.)
Respondent Province was then authorized to issue Caticlan Super Marina Bonds
for the purpose of funding the renovation of the Caticlan Jetty Port and Passenger Terminal
Building, and the reclamation of a portion of the foreshore lease area for commercial
purposes in Malay, Aklan through Provincial Ordinance No. 2009-013, approved on
September 10, 2009. The said ordinance authorized Governor Marquez to negotiate, sign
and execute agreements in relation to the issuance of the Caticlan Super Marina Bonds in
the amount not exceeding P260,000,000.00.[31]
Subsequently, the Sangguniang Panlalawigan of the Province of Aklan
issued Provincial Ordinance No. 2009-015[32] on October 1, 2009, amending Provincial
Ordinance No. 2009-013, authorizing the bond flotation of the Province of Aklan through
Governor Marquez to fund the Marina Project and appropriate the entire proceeds of said
bonds for the project, and further authorizing Governor Marquez to negotiate, sign and
execute contracts or agreements pertinent to the transaction. [33]
Within the same month of October 2009, respondent Province deliberated on the
possible expansion from its original proposed reclamation area of 2.64 hectares to forty (40)
hectares in order to maximize the utilization of its resources and as a response to the findings
of the Preliminary Geohazard Assessment study which showed that the recession and
retreat of the shoreline caused by coastal erosion and scouring should be the first major
concern in the project site and nearby coastal area. The study likewise indicated the
vulnerability of the coastal zone within the proposed project site and the nearby coastal area
due to the effects of sea level rise and climate change which will greatly affect the social,
economic, and environmental situation of Caticlan and nearby Malay coastal
communities.[34]
In his letter dated October 22, 2009 addressed to respondent PRA, Governor
Marquez wrote:
With our substantial compliance with the requirements under
Administrative Order No. 2007-2 relative to our request to PRA for
approval of the reclamation of the [proposed Beach Zone Restoration
and Protection Marine Development in Barangays Caticlan and Manoc-
Manoc] and as a result of our discussion during the [meeting with the
respondent PRA on October 12, 2009], may we respectfully submit
a revised Reclamation Project Description embodying certain
revisions/changes in the size and location of the areas to be
reclaimed. x x x.
On another note, we are pleased to inform your Office that the
bond flotation we have secured with the Local Government Unit
Guarantee Corporation (LGUGC) has been finally approved last October
14, 2009. This will pave the way for the implementation of said project.
Briefly, the Province has been recognized by the Bureau of Local
Government Finance (BLGF) for its capability to meet its loan obligations.
x x x.
With the continued increase of tourists coming to Boracay
through Caticlan, the Province is venturing into such development project
with the end in view of protection and/or restoring certain segments of
the shoreline in Barangays Caticlan (Caticlan side) and Manoc-manoc
(Boracay side) which, as reported by experts, has been experiencing
tremendous coastal erosion.
For the project to be self-liquidating, however, we will be
developing the reclaimed land for commercial and tourism-related
facilities and for other complementary uses. [35] (Emphasis ours.)
Then, on November 19, 2009, the Sangguniang
Panlalawigan enacted Resolution No. 2009-299[36] authorizing Governor Marquez to enter
into a Memorandum of Agreement (MOA) with respondent PRA in the implementation of the
Beach Zone Restoration and Protection Marina Development Project, which shall reclaim
a total of 40 hectares in the areas adjacent to the jetty ports at Barangay Caticlan and
Barangay Manoc-manoc. The Sangguniang Panlalawigan approved the terms and
conditions of the necessary agreements for the implementation of the bond flotation of
respondent Province to fund the renovation/rehabilitation of the existing jetty port by way of
enhancement and recovery of the Old Caticlan shoreline through reclamation of an area
of 2.64 hectares in the amount of P260,000,000.00 on December 1, 2009.[37]
Respondent Province gave an initial presentation of the project with consultation
to the Sangguniang Bayan of Malay[38] on December 9, 2009.
Respondent PRA approved the reclamation project on April 20, 2010 in its
Resolution No. 4094 and authorized its General Manager/Chief Executive Officer (CEO) to
enter into a MOA with respondent Province for the implementation of the reclamation
project.[39]
On April 27, 2010, DENR-EMB RVI issued to respondent Province ECC-R6-1003-
096-7100 (the questioned ECC) for Phase 1 of the Reclamation Project to the extent of 2.64
hectares to be done along the Caticlan side beside the existing jetty port. [40]
On May 17, 2010, respondent Province entered into a MOA [41] with respondent
PRA. Under Article III, the Project was described therein as follows:
The proposed Aklan Beach Zone Restoration and
Protection Marina Development Project involves the reclamation and
development of approximately forty (40) hectares of foreshore and
offshore areas of the Municipality of Malay x x x.
The land use development of the reclamation project shall be
for commercial, recreational and institutional and other applicable
uses.[42] (Emphases supplied.)
It was at this point that respondent Province deemed it necessary to conduct
a series of what it calls information-education campaigns, which provided the venue for
interaction and dialogue with the public, particularly the Barangay and Municipal officials of
the Municipality of Malay, the residents of Barangay Caticlan and Boracay, the stakeholders,
and the non-governmental organizations (NGOs). The details of the campaign are
summarized as follows[43]:
a. June 17, 2010 at Casa Pilar Beach Resort, Boracay Island, Malay,
Aklan;[44]
b. July 28, 2010 at Caticlan Jetty Port and Passenger Terminal; [45]
 c. July 31, 2010 at Barangay Caticlan Plaza;[46]
d. September 15, 2010 at the Office of the Provincial Governor with
Municipal Mayor of Malay Mayor John P. Yap;[47]
e. October 12, 2010 at the Office of the Provincial Governor with the
Provincial Development Council Executive Committee;[48] and
f. October 29, 2010 at the Office of the Provincial Governor with
Officials of LGU-Malay and Petitioner.[49]
Petitioner claims that during the public consultation meeting belatedly called by
respondent Province on June 17, 2010, respondent Province presented the Reclamation
Project and only then detailed the actions that it had already undertaken, particularly: the
issuance of the Caticlan Super Marina Bonds; the execution of the MOA with respondent
PRA; the alleged conduct of an Environmental Impact Assessment (EIA) study for the
reclamation project; and the expansion of the project to forty (40) hectares from 2.64
hectares.[50]
In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the Malay
Municipality reiterated its strong opposition to respondent Provinces project and denied its
request for a favorable endorsement of the Marina Project.[51]
The Malay Municipality subsequently issued Resolution No. 016, Series of 2010,
adopted on August 3, 2010, to request respondent PRA not to grant reclamation permit and
notice to proceed to the Marina Project of the [respondent] Provincial Government of Aklan
located at Caticlan, Malay, Aklan.[52]
[53]
In a letter dated October 12, 2010, petitioner informed respondent PRA of its
opposition to the reclamation project, primarily for the reason that, based on the opinion of
Dr. Porfirio M. Alio, an expert from the University of the Philippines Marine Science Institute
(UPMSI), which he rendered based on the documents submitted by respondent Province to
obtain the ECC, a full EIA study is required to assess the reclamation projects likelihood of
rendering critical and lasting effect on Boracay considering the proximity in distance,
geographical location, current and wind direction, and many other environmental
considerations in the area. Petitioner noted that said documents had failed to deal with
coastal erosion concerns in Boracay. It also noted that respondent Province failed to comply
with certain mandatory provisions of the Local Government Code, particularly, those
requiring the project proponent to conduct consultations with stakeholders.
Petitioner likewise transmitted its Resolution No. 001, Series of 2010, registering
its opposition to the reclamation project to respondent Province, respondent PRA,
respondent DENR-EMB, the National Economic Development Authority Region VI, the
Malay Municipality, and other concerned entities. [54]
Petitioner alleges that despite the Malay Municipalitys denial of respondent
Provinces request for a favorable endorsement, as well as the strong opposition manifested
both by Barangay Caticlan and petitioner as an NGO, respondent Province still continued
with the implementation of the Reclamation Project. [55]
On July 26, 2010, the Sangguniang Panlalawigan of respondent Province set
aside Resolution No. 046, s. 2010, of the Municipality of Malay and manifested its
support for the implementation of the aforesaid project through its Resolution No. 2010-
022.[56]
On July 27, 2010, the MOA was confirmed by respondent PRA Board of Directors
under its Resolution No. 4130. Respondent PRA wrote to respondent Province on October
19, 2010, informing the latter to proceed with the reclamation and development of phase
1 of site 1 of its proposed project. Respondent PRA attached to said letter its Evaluation
Report dated October 18, 2010.[57]
Petitioner likewise received a copy of respondent PRAs letter dated October 19,
2010, which authorized respondent Province to proceed with phase 1 of the reclamation
project, subject to compliance with the requirements of its Evaluation Report. The
reclamation project was described as:
[A] seafront development involving reclamation of an aggregate
area of more or less, forty (40) hectares in two (2) separate sites both
in Malay Municipality, Aklan Province. Site 1 is in Brgy. Caticlan with a
total area of 36.82 hectares and Site 2 in Brgy. Manoc-Manoc,
Boracay Island with a total area of 3.18 hectares. Sites 1 and 2 are
on the opposite sides of Tabon Strait, about 1,200 meters apart. x x
x. [58] (Emphases added.)
The Sangguniang Panlalawigan of Aklan, through Resolution No. 2010-
034,[59] addressed the apprehensions of petitioner embodied in its Resolution No. 001, s.
2010, and supported the implementation of the project. Said resolution stated that the
apprehensions of petitioner with regard to the economic, social and political negative impacts
of the projects were mere perceptions and generalities and were not anchored on definite
scientific, social and political studies.
In the meantime, a study was commissioned by the Philippine Chamber of
Commerce and Industry-Boracay (PCCI-Boracay), funded by the Department of Tourism
(DOT) with the assistance of, among others, petitioner. The study was conducted in
November 2010 by several marine biologists/experts from the Marine Environmental
Resources Foundation (MERF) of the UPMSI. The study was intended to determine the
potential impact of a reclamation project in the hydrodynamics of the strait and on the coastal
erosion patterns in the southern coast of Boracay Island and along the coast of Caticlan. [60]
After noting the objections of the respective LGUs of Caticlan and Malay, as well
as the apprehensions of petitioner, respondent Province issued a notice to the contractor on
December 1, 2010 to commence with the construction of the project. [61]
On April 4, 2011, the Sangguniang Panlalawigan of Aklan, through its Committee
on Cooperatives, Food, Agriculture, and Environmental Protection and the Committee on
Tourism, Trade, Industry and Commerce, conducted a joint committee hearing wherein the
study undertaken by the MERF-UPMSI was discussed.[62] In attendance were Mr. Ariel
Abriam, President of PCCI-Boracay, representatives from the Provincial Government, and
Dr. Cesar Villanoy, a professor from the UPMSI. Dr. Villanoy said that the subject project, C. RESPONDENT PROVINCE FAILED TO CONDUCT THE
consisting of 2.64 hectares, would only have insignificant effect on the hydrodynamics of REQUIRED CONSULTATION PROCEDURES AS
the strait traversing the coastline of Barangay Caticlan and Boracay, hence, there was REQUIRED BY THE LOCAL GOVERNMENT CODE.
a distant possibility that it would affect the Boracay coastline, which includes the famous
white-sand beach of the island.[63]

Thus, on April 6, 2011, the Sangguniang Panlalawigan of Aklan D. RESPONDENT PROVINCE FAILED TO PERFORM A FULL
enacted Resolution No. 2011-065[64] noting the report on the survey of the channel between ENVIRONMENTAL IMPACT ASSESSMENT AS REQUIRED
Caticlan and Boracay conducted by the UPMSI in relation to the effects of the ongoing BY LAW AND RELEVANT REGULATIONS.
reclamation to Boracay beaches, and stating that Dr. Villanoy had admitted that nowhere in
their study was it pointed out that there would be an adverse effect on the white-sand beach
of Boracay.
During the First Quarter Regular Meeting of the Regional Development Council, II.
Region VI (RDC-VI) on April 16, 2011, it approved and supported the subject project
(covering 2.64 hectares) through RDC-VI Resolution No. VI-26, series of 2011.[65] THE RECLAMATION OF LAND BORDERING THE STRAIT BETWEEN
CATICLAN AND BORACAY SHALL ADVERSELY AFFECT THE FRAIL
Subsequently, Mr. Abriam sent a letter to Governor Marquez dated April 25, 2011 ECOLOGICAL BALANCE OF THE AREA.[68]
stating that the study conducted by the UPMSI confirms that the water flow across the
Caticlan-Boracay channel is primarily tide-driven, therefore, the marine scientists believe
that the 2.64-hectare project of respondent Province would not significantly affect the flow in Petitioner objects to respondent Provinces classification of the reclamation project
the channel and would unlikely impact the Boracay beaches. Based on this, PCCI-Boracay as single instead of co-located, as non-environmentally critical, and as a mere rehabilitation
stated that it was not opposing the 2.64-hectare Caticlan reclamation project on of the existing jetty port. Petitioner points out that the reclamation project is on two sites
environmental grounds.[66] (which are situated on the opposite sides of Tabon Strait, about 1,200 meters apart):

On June 1, 2011, petitioner filed the instant Petition for Environmental Protection
Order/Issuance of the Writ of Continuing Mandamus. On June 7, 2011, this Court issued
a Temporary Environmental Protection Order (TEPO) and ordered the respondents to
file their respective comments to the petition.[67]
After receiving a copy of the TEPO on June 9, 2011, respondent Province
immediately issued an order to the Provincial Engineering Office and the concerned
contractor to cease and desist from conducting any construction activities until further orders
from this Court.
The petition is premised on the following grounds:
36.82 hectares Site 1, in Bgy. Caticlan
3.18 hectares Site 2, in Manoc-manoc, Boracay Island[69]
Phase 1, which was started in December 2010 without the necessary permits,[70] is
located on the Caticlan side of a narrow strait separating mainland Aklan from Boracay. In
the implementation of the project, respondent Province obtained only an ECC to conduct
Phase 1, instead of an ECC on the entire 40 hectares. Thus, petitioner argues that
respondent Province abused and exploited the Revised Procedural Manual for DENR
Administrative Order No. 30, Series of 2003 (DENR DAO 2003-30)[71] relating to the
acquisition of an ECC by:

1. Declaring the reclamation project under Group II Projects-Non-

ECP (environmentally critical project) in ECA (environmentally
I. critical area) based on the type and size of the area, and

THE RESPONDENT PROVINCE, PROPONENT OF THE 2. Failing to declare the reclamation project as a co-located project
RECLAMATION PROJECT, FAILED TO COMPLY WITH RELEVANT application which would have required the Province to submit
RULES AND REGULATIONS IN THE ACQUISITION OF AN ECC. a Programmatic Environmental Impact Statement
(PEIS)[72] or Programmatic Environmental [Performance]
A. THE RECLAMATION PROJECT IS CO-LOCATED WITHIN Report Management Plan (PE[P]RMP).[73] (Emphases ours.)
ENVIRONMENTALLY CRITICAL AREAS REQUIRING THE
PERFORMANCE OF A FULL, OR PROGRAMMATIC,
ENVIRONMENTAL IMPACT ASSESSMENT. Petitioner further alleges that the Revised Procedural Manual (on which the
classification above is based, which merely requires an Environmental Impact Statement
B. RESPONDENT PROVINCE FAILED TO OBTAIN THE [EIS] for Group II projects) is patently ultra vires, and respondent DENR-EMB RVI committed
FAVORABLE ENDORSEMENT OF THE LGU CONCERNED. grave abuse of discretion because the laws on EIS, namely, Presidential Decree Nos. 1151
and 1586, as well as Presidential Proclamation No. 2146, clearly indicate that projects in
environmentally critical areas are to be immediately considered environmentally
critical. Petitioner complains that respondent
Province applied for an ECC only for Phase 1; hence, unlawfully
evading the requirement that co-located projects[74] within Environmentally Critical
Areas (ECAs) must submit a PEIS and/or a PEPRMP.
Petitioner argues that respondent Province fraudulently classified and
misrepresented the project as a Non-ECP in an ECA, and as a single project instead of a
co-located one. The impact assessment allegedly performed gives a patently erroneous and
wrongly-premised appraisal of the possible environmental impact of the reclamation
project. Petitioner contends that respondent Provinces choice of classification was designed
to avoid a comprehensive impact assessment of the reclamation project.
Petitioner further contends that respondent DENR-EMB RVI willfully and
deliberately disregarded its duty to ensure that the environment is protected from harmful
developmental projects because it allegedly performed only a cursory and superficial review
of the documents submitted by the respondent Province for an ECC, failing to note that all
the information and data used by respondent Province in its application for the ECC were all
dated and not current, as data was gathered in the late 1990s for the ECC issued in 1999
for the first jetty port. Thus, petitioner alleges that respondent DENR-EMB RVI ignored the
environmental impact to Boracay, which involves changes in the structure of the coastline
that could contribute to the changes in the characteristics of the sand in the beaches of both
Caticlan and Boracay.
Petitioner insists that reclamation of land at the Caticlan side will unavoidably
adversely affect the Boracay side and notes that the declared objective of the reclamation
project is for the exploitation of Boracays tourist trade, since the project is intended to
enhance support services thereto. But, petitioner argues, the primary reason for Boracays
popularity is its white-sand beaches which will be negatively affected by the project.
Petitioner alleges that respondent PRA had required respondent Province to obtain
the favorable endorsement of the LGUs of Barangay Caticlan and Malay Municipality
pursuant to the consultation procedures as required by the Local Government
Code.[75]Petitioner asserts that the reclamation project is in violation not only of laws on EIS
but also of the Local Government Code as respondent Province failed to enter into proper
consultations with the concerned LGUs. In fact, the Liga ng mga Barangay-Malay Chapter
also expressed strong opposition against the project. [76]
Petitioner cites Sections 26 and 27 of the Local Government Code, which require
consultations if the project or program may cause pollution, climactic change, depletion of
non-renewable resources, etc. According to petitioner, respondent Province ignored the
LGUs opposition expressed as early as 2008. Not only that, respondent Province belatedly
called for public consultation meetings on June 17 and July 28, 2010, after an ECC had
already been issued and the MOA between respondents PRA and Province had already
been executed. As the petitioner saw it, these were not consultations but mere project
presentations.
Petitioner claims that respondent Province, aided and abetted by respondents
PRA and DENR-EMB, ignored the spirit and letter of the Revised Procedural Manual,
intended to implement the various regulations governing the Environmental Impact
Assessments (EIAs) to ensure that developmental projects are in line with sustainable
development of natural resources. The project was conceptualized without considering
alternatives.
Further, as to its allegation that respondent Province failed to perform a full EIA,
petitioner argues that while it is true that as of now, only the Caticlan side has been issued
an ECC, the entire project involves the Boracay side, which should have been considered a
co-located project. Petitioner claims that any project involving Boracay requires a full
EIA since it is an ECA. Phase 1 of the project will affect Boracay and Caticlan as they are
separated only by a narrow strait; thus, it should be considered an ECP. Therefore, the ECC
and permit issued must be invalidated and cancelled.
Petitioner contends that a study shows that the flow of the water through a
narrower channel due to the reclamation project will likely divert sand transport off the
southwest part of Boracay, whereas the characteristic coast of the Caticlan side of the strait
indicate stronger sediment transport.[77] The white-sand beaches of Boracay and its
surrounding marine environment depend upon the natural flow of the adjacent waters.
Regarding its claim that the reclamation of land bordering the strait between
Caticlan and Boracay shall adversely affect the frail ecological balance of the area, petitioner
submits that while the study conducted by the MERF-UPMSI only considers the impact of
the reclamation project on the land, it is undeniable that it will also adversely affect the
already frail ecological balance of the area. The effect of the project would have been
properly assessed if the proper EIA had been performed prior to any implementation of the
project.
According to petitioner, respondent Provinces intended purposes do not prevail
over its duty and obligation to protect the environment. Petitioner believes that rehabilitation
of the Jetty Port may be done through other means.
In its Comment[78] dated June 21, 2011, respondent Province claimed that
application for reclamation of 40 hectares is advantageous to the Provincial Government
considering that its filing fee would only cost Php20,000.00 plus Value Added Tax (VAT)
which is also the minimum fee as prescribed under Section 4.2 of Administrative Order No.
2007-2.[79]
Respondent Province considers the instant petition to be premature; thus, it must
necessarily fail for lack of cause of action due to the failure of petitioner to fully exhaust the
available administrative remedies even before seeking judicial relief. According to
respondent Province, the petition primarily assailed the decision of respondent DENR-EMB
RVI in granting the ECC for the subject project consisting of 2.64 hectares and sought the
cancellation of the ECC for alleged failure of respondent Province to submit proper
documentation as required for its issuance. Hence, the grounds relied upon by petitioner can
be addressed within the confines of administrative processes provided by law.
Respondent Province believes that under Section 5.4.3 of DENR Administrative
Order No. 2003-30 (DAO 2003-30),[80] the issuance of an ECC[81] is an official decision of
DENR-EMB RVI on the application of a project proponent. [82] It cites Section 6 of DENR
DAO 2003-30, which provides for a remedy available to the party aggrieved by the final
decision on the proponents ECC applications.
Respondent Province argues that the instant petition is anchored on a wrong
premise that results to petitioners unfounded fears and baseless apprehensions. It is
respondent Provinces contention that its 2.64-hectare reclamation project is considered as
a stand alone project, separate and independent from the approved area of 40
hectares. Thus, petitioner should have observed the difference between the future
development plan of respondent Province from its actual project being undertaken. [83]
Respondent Province clearly does not dispute the fact that it revised its original
application to respondent PRA from 2.64 hectares to 40 hectares. However, it claims that
such revision is part of its future plan, and implementation thereof is still subject to
availability of funds, independent scientific environmental study, separate application of ECC
and notice to proceed to be issued by respondent PRA. [84]
 Respondent Province goes on to claim that [p]etitioners version of the Caticlan
jetty port expansion project is a bigger project which is still at the conceptualization
stage. Although this project was described in the Notice to Proceed issued by respondent
PRA to have two phases, 36.82 hectares in Caticlan and 3.18 hectares in Boracay [Island,]
it is totally different from the [ongoing] Caticlan jetty port expansion project. [85]
Respondent Province says that the Accomplishment Report [86] of its Engineering
Office would attest that the actual project consists of 2.64 hectares only, as originally planned
and conceptualized, which was even reduced to 2.2 hectares due to some construction and
design modifications.
Thus, respondent Province alleges that from its standpoint, its capability to reclaim
is limited to 2.64 hectares only, based on respondent PRAs Evaluation Report[87] dated
October 18, 2010, which was in turn the basis of the issuance of the Notice to Proceed dated
October 19, 2010, because the projects financial component is P260,000,000.00 only. Said
Evaluation Report indicates that the implementation of the other phases of the project
including site 2, which consists of the other portions of the 40-hectare area that includes a
portion in Boracay, is still within the 10-year period and will depend largely on the availability
of funds of respondent Province. [88]
So, even if respondent PRA approved an area that would total up to 40 hectares,
it was divided into phases in order to determine the period of its implementation. Each phase
was separate and independent because the source of funds was also separate. The required
documents and requirements were also specific for each phase. The entire approved area
of 40 hectares could be implemented within a period of 10 years but this would depend solely
on the availability of funds.[89]
As far as respondent Province understands it, additional reclamations not covered
by the ECC, which only approved 2.64 hectares, should undergo another EIA. If respondent
Province intends to commence the construction on the other component of the 40 hectares,
then it agrees that it is mandated to secure a new ECC. [90]
Respondent Province admits that it dreamt of a 40-hectare project, even if it had
originally planned and was at present only financially equipped and legally compliant to
undertake 2.64 hectares of the project, and only as an expansion of its old jetty port. [91]
Respondent Province claims that it has complied with all the necessary
requirements for securing an ECC. On the issue that the reclamation project is within an
ECA requiring the performance of a full or programmatic EIA, respondent Province reiterates
that the idea of expanding the area to 40 hectares is only a future plan. It only secured an
ECC for 2.64 hectares, based on the limits of its funding and authority. From the beginning,
its intention was to rehabilitate and expand the existing jetty port terminal to accommodate
an increasing projected traffic. The subject project is specifically classified under DENR DAO
2003-30 on its Project Grouping Matrix for Determination of EIA Report Type considered as
Minor Reclamation Projects falling under Group II Non ECP in an ECA. Whether 2.64 or 40
hectares in area, the subject project falls within this classification.
Consequently, respondent Province claims that petitioner erred in considering the
ongoing reclamation project at Caticlan, Malay, Aklan, as co-located within an ECA.
Respondent Province, likewise argues that the 2.64-hectare project is not a
component of the approved 40-hectare area as it is originally planned for the expansion site
of the existing Caticlan jetty port. At present, it has no definite conceptual construction plan
of the said portion in Boracay and it has no financial allocation to initiate any project on the
said Boracay portion.
Furthermore, respondent Province contends that the present project is located in
Caticlan while the alleged component that falls within an ECA is in Boracay. Considering its
geographical location, the two sites cannot be considered as a contiguous area for the
reason that it is separated by a body of water a strait that traverses between the mainland
Panay wherein Caticlan is located and Boracay. Hence, it is erroneous to consider the two
sites as a co-located project within an ECA. Being a stand alone project and an expansion
of the existing jetty port, respondent DENR-EMB RVI had required respondent Province to
perform an EPRMP to secure an ECC as sanctioned by Item No. 8(b), page 7 of DENR DAO
2003-30.
Respondent Province contends that even if, granting for the sake of argument, it
had erroneously categorized its project as Non-ECP in an ECA, this was not a final
determination. Respondent DENR-EMB RVI, which was the administrator of the EIS system,
had the final decision on this matter. Under DENR DAO 2003-30, an application for ECC,
even for a Category B2 project where an EPRMP is conducted, shall be subjected to a review
process. Respondent DENR-EMB RVI had the authority to deny said application. Its
Regional Director could either issue an ECC for the project or deny the application. He may
also require a more comprehensive EIA study. The Regional Director issued the ECC based
on the EPRMP submitted by respondent Province and after the same went through the EIA
review process.
Thus, respondent Province concludes that petitioners allegation of this being a co-
located project is premature if not baseless as the bigger reclamation project is still on the
conceptualization stage. Both respondents PRA and Province are yet to complete studies
and feasibility studies to embark on another project.
Respondent Province claims that an ocular survey of the reclamation project
revealed that it had worked within the limits of the ECC. [92]
With regard to petitioners allegation that respondent Province failed to get the
favorable endorsement of the concerned LGUs in violation of the Local Government Code,
respondent Province contends that consultation vis--vis the favorable endorsement from the
concerned LGUs as contemplated under the Local Government Code are merely tools to
seek advice and not a power clothed upon the LGUs to unilaterally approve or disapprove
any government projects. Furthermore, such endorsement is not necessary for projects
falling under Category B2 unless required by the DENR-EMB RVI, under Section 5.3 of
DENR DAO 2003-30.
Moreover, DENR Memorandum Circular No. 08-2007 no longer requires the
issuance of permits and certifications as a pre-requisite for the issuance of an
ECC. Respondent Province claims to have conducted consultative activities with LGUs in
connection with Sections 26 and 27 of the Local Government Code. The vehement and
staunch objections of both the Sangguniang Barangay of Caticlan and the Sangguniang
Bayan of Malay, according to respondent Province, were not rooted on its perceived impact
upon the people and the community in terms of environmental or ecological balance, but
due to an alleged conflict with their principal position to develop, utilize and reap benefits
from the natural resources found within its jurisdiction. [93] Respondent Province argues that
these concerns are not within the purview of the Local Government Code. Furthermore, the
Preliminary Geohazard Assessment Report and EPRMP as well as Sangguniang
Panlalawigan Resolution Nos. 2010-022 and 2010-034 should address any environmental
issue they may raise.
Respondent Province posits that the spirit and intent of Sections 26 and 27 of the
Local Government Code is to create an avenue for parties, the proponent and the LGU
concerned, to come up with a tool in harmonizing its views and concerns about the 2. The funds are financed by a Guarantee Bank getting payment from
project. The duty to consult does not automatically require adherence to the opinions during bonds, being sold to investors, which in turn would be paid by the
the consultation process. It is allegedly not within the provisions to give the full authority to income that the project would realize or incur upon its completion.
the LGU concerned to unilaterally approve or disapprove the project in the guise of requiring
the proponent of securing its favorable endorsement. In this case, petitioner is calling a halt 3. While the project is under construction, respondent Province is
to the project without providing an alternative resolution to harmonize its position and that of appropriating a portion of its Internal Revenue Allotment (IRA)
respondent Province. budget from the 20% development fund to defray the interest and
principal amortization due to the Guarantee Bank.
Respondent Province claims that the EPRMP[94] would reveal that:
4. The respondent Provinces IRA, regular income, and/or such other
[T]he area fronting the project site is practically composed of sand. Dead revenues or funds, as may be permitted by law, are being used as
coral communities may be found along the vicinity. Thus, fish life at the security for the payment of the said loan used for the projects
project site is quite scarce due to the absence of marine support systems construction.
like the sea grass beds and coral reefs.
5. The inability of the subject project to earn revenues as projected upon
x x x [T]here is no coral cover at the existing Caticlan jetty port. [From] completion will compel the Province to shoulder the full amount of
the deepest point of jetty to the shallowest point, there was no more coral the obligation, starting from year 2012.
patch and the substrate is sandy. It is of public knowledge that the said
foreshore area is being utilized by the residents ever since as berthing or 6. Respondent province is mandated to assign its IRA, regular income
anchorage site of their motorized banca. There will be no possibility of and/or such other revenues or funds as permitted by law; if project
any coral development therein because of its continuous is stopped, detriment of the public welfare and its constituents.[96]
utilization. Likewise, the activity of the strait that traverses between the
main land Caticlan and Boracay Island would also be a factor of the coral
development. Corals [may] only be formed within the area if there is
scientific human intervention, which is absent up to the present. As to the second ground for the dissolution of the TEPO, respondent Province
argues:
In light of the foregoing premise, it casts serious doubt on
petitioners allegations pertaining to the environmental effects of
1. Non-compliance with the guidelines of the ECC may result to
Respondent-LGUs 2.64 hectares reclamation project. The alleged
environmental hazards most especially that reclaimed land if not
environmental impact of the subject project to the beaches of Boracay
properly secured may be eroded into the sea.
Island remains unconfirmed. Petitioner had unsuccessfully proven that
the project would cause imminent, grave and irreparable injury to the
2. The construction has accomplished 65.26 percent of the project.
community.[95]
The embankment that was deposited on the project has no proper
concrete wave protection that might be washed out in the event that
a strong typhoon or big waves may occur affecting the strait and the
Respondent Province prayed for the dissolution of the TEPO, claiming that the
properties along the project site. It is already the rainy season and
rules provide that the TEPO may be dissolved if it appears after hearing that its issuance or
there is a big possibility of typhoon occurrence.
continuance would cause irreparable damage to the party or person enjoined, while the
applicant may be fully compensated for such damages as he may suffer and subject to the
3. If said incident occurs, the aggregates of the embankment that had
posting of a sufficient bond by the party or person enjoined. Respondent Province contends
been washed out might be transferred to the adjoining properties
that the TEPO would cause irreparable damage in two aspects:
which could affect its natural environmental state.
a. Financial dislocation and probable bankruptcy; and
4. It might result to the total alteration of the physical landscape of the
b. Grave and imminent danger to safety and health of inhabitants of immediate
area attributing to environmental disturbance.
area, including tourists and passengers serviced by the jetty port, brought
about by the abrupt cessation of development works.
5. The lack of proper concrete wave protection or revetment would cause
the total erosion of the embankment that has been dumped on the
As regards financial dislocation, the arguments of respondent Province are
accomplished area.[97]
summarized below:

1. This project is financed by bonds which the respondent Province

Respondent Province claims that petitioner will not stand to suffer immediate,
had issued to its creditors as the financing scheme in funding the
grave and irreparable injury or damage from the ongoing project. The petitioners perceived
present project is by way of credit financing through bond flotation.
fear of environmental destruction brought about by its erroneous appreciation of available
data is unfounded and does not translate into a matter of extreme urgency. Thus, under the
Rules of Procedure on Environmental Cases, the TEPO may be dissolved.
Respondent PRA filed its Comment[98] on June 22, 2011. It alleges that on June
24, 2006, Executive Order No. 543 delegated the power to approve reclamation projects to
respondent PRA through its governing Board, subject to compliance with existing laws and
rules and further subject to the condition that reclamation contracts to be executed with any
person or entity (must) go through public bidding.
Section 4 of respondent PRAs Administrative Order No. 2007-2 provides for the
approval process and procedures for various reclamation projects to be
undertaken. Respondent PRA prepared an Evaluation Report on November 5,
2009[99] regarding Aklans proposal to increase its project to 40 hectares.
Respondent PRA contends that it was only after respondent Province had
complied with the requirements under the law that respondent PRA, through its Board of
Directors, approved the proposed project under its Board Resolution No. 4094.[100] In the
same Resolution, respondent PRA Board authorized the General Manager/CEO to execute
a MOA with the Aklan provincial government to implement the reclamation project under
certain conditions.
The issue for respondent PRA was whether or not it approved the respondent
Provinces 2.64-hectare reclamation project proposal in willful disregard of alleged numerous
irregularities as claimed by petitioner. [101]
Respondent PRA claims that its approval of the Aklan Reclamation Project was in
accordance with law and its rules. Indeed, it issued the notice to proceed only after Aklan
had complied with all the requirements imposed by existing laws and regulations. It further
contends that the 40 hectares involved in this project remains a plan insofar as respondent
PRA is concerned. What has been approved for reclamation by respondent PRA thus
far is only the 2.64-hectare reclamation project. Respondent PRA reiterates that it
approved this reclamation project after extensively reviewing the legal, technical, financial,
environmental, and operational aspects of the proposed reclamation. [102]
One of the conditions that respondent PRA Board imposed before approving the
Aklan project was that no reclamation work could be started until respondent PRA has
approved the detailed engineering plans/methodology, design and specifications of the
reclamation. Part of the required submissions to respondent PRA includes the drainage
design as approved by the Public Works Department and the ECC as issued by the DENR,
all of which the Aklan government must submit to respondent PRA before starting any
reclamation works.[103] Under Article IV(B)(3) of the MOA between respondent PRA and
Aklan, the latter is required to submit, apart from the ECC, the following requirements for
respondent PRAs review and approval, as basis for the issuance of a Notice to Proceed
(NTP) for Reclamation Works:
(a) Land-form plan with technical description of the metes and
bounds of the same land-form;
(b) Final master development and land use plan for the project;
(c) Detailed engineering studies, detailed engineering design,
plans and specification for reclamation works, reclamation
plans and methodology, plans for the sources of fill materials;
(d) Drainage plan vis-a-vis the land-form approved by DPWH
Regional Office to include a cost effective and efficient drainage
system as may be required based on the results of the studies;
(e) Detailed project cost estimates and quantity take-off per
items of work of the rawland reclamation components, e.g.
reclamation containment structures and soil consolidation;
(f) Organizational chart of the construction arm, manning table,
equipment schedule for the project; and,
(g) Project timetable (PERT/CPM) for the entire project
construction period.[104]
In fact, respondent PRA further required respondent Province under Article IV (B)(24) of the
MOA to strictly comply with all conditions of the DENR-EMB-issued ECC and/or comply with
pertinent local and international commitments of the Republic of the Philippines to ensure
environmental protection.[105]
In its August 11, 2010 letter,[106] respondent PRA referred for respondent Provinces
appropriate action petitioners Resolution 001, series of 2010 and Resolution 46, series of
2010, of the Sangguniang Bayan of Malay. Governor Marquez wrote respondent PRA[107] on
September 16, 2010 informing it that respondent Province had already met with the different
officials of Malay, furnishing respondent PRA with the copies of the minutes of such
meetings/presentations. Governor Marquez also assured respondent PRA that it had
complied with the consultation requirements as far as Malay was concerned.
Respondent PRA claims that in evaluating respondent Provinces project and in issuing the
necessary NTP for Phase 1 of Site 1 (2.64 hectares) of the Caticlan Jetty Port expansion
and modernization, respondent PRA gave considerable weight to all pertinent issuances,
especially the ECC issued by DENR-EMB RVI.[108] Respondent PRA stresses that its earlier
approval of the 40-hectare reclamation project under its Resolution No. 4094, series of 2010,
still requires a second level of compliance requirements from the proponent. Respondent
Province could not possibly begin its reclamation works since respondent PRA had yet to
issue an NTP in its favor.
Respondent PRA alleges that prior to the issuance of the NTP to respondent Province for
Phase 1 of Site 1, it required the submission of the following pre-construction documents:
(a) Land-Form Plan (with technical description);
(b) Site Development Plan/Land Use Plan including,
(i) sewer and drainage systems and
(ii) waste water treatment;
(c) Engineering Studies and Engineering Design;
(d) Reclamation Methodology;
(e) Sources of Fill Materials, and,
(f) The ECC.[109]

Respondent PRA claims that it was only after the evaluation of the above submissions that
it issued to respondent Province the NTP, limited to the 2.64-hectare reclamation
project. Respondent PRA even emphasized in its evaluation report that should respondent
Province pursue the other phases of its project, it would still require the submission of an
ECC for each succeeding phases before the start of any reclamation works. [110]
Respondent PRA, being the national governments arm in regulating and coordinating all
reclamation projects in the Philippines a mandate conferred by law manifests that it is
incumbent upon it, in the exercise of its regulatory functions, to diligently evaluate, based on
its technical competencies, all reclamation projects submitted to it for approval. Once the
reclamation projects requirements set forth by law and related rules have been complied
with, respondent PRA is mandated to approve the same. Respondent PRA claims, [w]ith all
the foregoing rigorous and detailed requirements submitted and complied with by Aklan, and
the attendant careful and meticulous technical and legal evaluation by respondent PRA, it
cannot be argued that the reclamation permit it issued to Aklan is founded upon numerous
irregularities; as recklessly and baselessly imputed by BFI. [111]
In its Comment[112] dated July 1, 2011, respondent DENR-EMB RVI asserts that its act of
issuing the ECC certifies that the project had undergone the proper EIA process by
assessing, among others, the direct and indirect impact of the project on the biophysical and
human environment and ensuring that these impacts are addressed by appropriate
environmental protection and enhancement measures, pursuant to Presidential Decree No.
1586, the Revised Procedural Manual for DENR DAO 2003-30, and the existing rules and
regulations.[113]
Respondent DENR-EMB RVI stresses that the declaration in 1978 of several islands, which
includes Boracay as tourist zone and marine reserve under Proclamation No. 1801, has no
relevance to the expansion project of Caticlan Jetty Port and Passenger Terminal for the
very reason that the project is not located in the Island of Boracay, being located in Barangay
Caticlan, Malay, which is not a part of mainland Panay. It admits that the site of the subject
jetty port falls within the ECA under Proclamation No. 2146 (1981), being within the category
of a water body. This was why respondent Province had faithfully secured an ECC pursuant
to the Revised Procedural Manual for DENR DAO 2003-30 by submitting the necessary
documents as contained in the EPRMP on March 19, 2010, which were the bases in granting
ECC No. R6-1003-096-7100 (amended) on April 27, 2010 for the expansion of Caticlan Jetty
Port and Passenger Terminal, covering 2.64 hectares. [114]
Respondent DENR-EMB RVI claims that the issues raised by the LGUs of Caticlan and
Malay had been considered by the DENR-Provincial Environment and Natural Resources
Office (PENRO), Aklan in the issuance of the Order[115] dated January 26, 2010,
disregarding the claim of the Municipality of Malay, Aklan of a portion of the foreshore land
in Caticlan covered by the application of the Province of Aklan; and another Order of
Rejection dated February 5, 2010 of the two foreshore applications, namely FLA No.
060412-43A and FLA No. 060412-43B, of the Province of Aklan.[116]
Respondent DENR-EMB RVI contends that the supporting documents attached to the
EPRMP for the issuance of an ECC were merely for the expansion and modernization of the
old jetty port in Barangay Caticlan covering 2.64 hectares, and not the 40-hectare
reclamation project in Barangay Caticlan and Boracay. The previous letter of respondent
Province dated October 14, 2009 addressed to DENR-EMB RVI Regional Executive
Director, would show that the reclamation project will cover approximately 2.6
hectares.[117] This application for ECC was not officially accepted due to lack of requirements
or documents.
Although petitioner insists that the project involves 40 hectares in two sites,
respondent DENR-EMB RVI looked at the documents submitted by respondent Province
and saw that the subject area covered by the ECC application and subsequently granted
with ECC-R6-1003-096-7100 consists only of 2.64 hectares; hence, respondent DENR-EMB
RVI could not comment on the excess area.[118]
Respondent DENR-EMB RVI admits that as regards the classification of the
2.64-hectare reclamation project under Non ECP in ECA, this does not fall within the
definition of a co-located project because the subject project is merely an expansion
of the old Caticlan Jetty Port, which had a previously issued ECC (ECC No. 0699-1012-
171 on October 12, 1999). Thus, only an EPRMP, not a PEIS or PEPRMP, is required.[119]
Respondent Province submitted to respondent DENR-EMB RVI the following
documents contained in the EPRMP:
a. The Observations on the Floor Bottom and its Marine Resources
at the Proposed Jetty Ports at Caticlan and Manok-manok, Boracay,
Aklan, conducted in 1999 by the Bureau of Fisheries Aquatic
Resources (BFAR) Central Office, particularly in Caticlan site, and
b. The Study conducted by Dr. Ricarte S. Javelosa, Ph. D, Mines and
Geosciences Bureau (MGB), Central Office and Engr. Roger Esto,
Provincial Planning and Development Office (PPDO), Aklan in 2009
entitled Preliminary Geo-hazard Assessment for the Enhancement
of the Existing Caticlan Jetty Port Terminal through Beach Zone
Restoration and Protective Marina Development in Malay, Aklan.
Respondent DENR-EMB RVI claims that the above two scientific studies were
enough for it to arrive at a best professional judgment to issue an amended ECC for the
Aklan Marina Project covering 2.64 hectares. [120] Furthermore, to confirm that the 2.64-
hectare reclamation has no significant negative impact with the surrounding environment
particularly in Boracay, a more recent study was conducted, and respondent DENR-EMB
RVI alleges that [i]t is very important to highlight that the input data in the [MERF- UPMSI]
study utilized the [40-hectare] reclamation and [200-meter] width seaward using the tidal and
wave modelling.[121] The study showed that the reclamation of 2.64 hectares had no effect
to the hydrodynamics of the strait between Barangay Caticlan and Boracay.
Respondent DENR-EMB RVI affirms that no permits and/or clearances from
National Government Agencies (NGAs) and LGUs are required pursuant to the DENR
Memorandum Circular No. 2007-08, entitled Simplifying the Requirements of ECC or CNC
Applications; that the EPRMP was evaluated and processed based on the Revised
Procedural Manual for DENR DAO 2003-30 which resulted to the issuance of ECC-R6-1003-
096-7100; and that the ECC is not a permit per se but a planning tool for LGUs to consider
in its decision whether or not to issue a local permit. [122]
Respondent DENR-EMB RVI concludes that in filing this case, petitioner had
bypassed and deprived the DENR Secretary of the opportunity to review and/or reverse the
decision of his subordinate office, EMB RVI pursuant to the Revised Procedural Manual for
DENR DAO 2003-30. There is no extreme urgency that necessitates the granting of
Mandamus or issuance of TEPO that put to balance between the life and death of the
petitioner or present grave or irreparable damage to environment. [123]
 After receiving the above Comments from all the respondents, the Court set the
case for oral arguments on September 13, 2011.
Meanwhile, on September 8, 2011, respondent Province filed a Manifestation
and Motion[124] praying for the dismissal of the petition, as the province was no longer
pursuing the implementation of the succeeding phases of the project due to its inability to
comply with Article IV B.2(3) of the MOA; hence, the issues and fears expressed by petitioner
had become moot. Respondent Province alleges that the petition is premised on a serious
misappreciation of the real extent of the contested reclamation project as certainly the ECC
covered only a total of 2,691 square meters located in Barangay Caticlan, Malay, Aklan; and
although the MOA spoke of 40 hectares, respondent Provinces submission of documents to
respondent PRA pertaining to said area was but the first of a two-step process of
approval. Respondent Province claims that its failure to comply with the documentary
requirements of respondent PRA within the period provided, or 120 working days from the
effectivity of the MOA, indicated its waiver to pursue the remainder of the
project.[125]Respondent Province further manifested:
Confirming this in a letter dated 12 August 2011,[126] Governor
Marquez informed respondent PRA that the Province of Aklan is no
longer pursuing the implementation of the succeeding phases of the
project with a total area of 37.4 hectares for our inability to comply with
Article IV B.2 (3) of the MOA; hence, the existing MOA will cover only the
project area of 2.64 hectares.
In his reply-letter dated August 22, 2011,[127] [respondent]
PRA General Manager informed Governor Marquez that the
[respondent] PRA Board of Directors has given [respondent] PRA
the authority to confirm the position of the Province of Aklan that
the Aklan Beach Zone Restoration and Protection Marine
Development Project will now be confined to the reclamation and
development of the 2.64 hectares, more or less.
It is undisputed from the start that the coverage of the Project
is in fact limited to 2.64 hectares, as evidenced by the NTP issued by
respondent PRA. The recent exchange of correspondence between
respondents Province of Aklan and [respondent] PRA further confirms
the intent of the parties all along. Hence, the Project subject of the
petition, without doubt, covers only 2.64 and not 40 hectares as feared.
This completely changes the extent of the Project and, consequently,
moots the issues and fears expressed by the petitioner. [128] (Emphasis
supplied.)
Based on the above contentions, respondent Province prays that the petition be
dismissed as no further justiciable controversy exists since the feared adverse effect to
Boracay Islands ecology had become academic all together. [129]
The Court heard the parties oral arguments on September 13, 2011 and gave the
latter twenty (20) days thereafter to file their respective memoranda.
[130]
Respondent Province filed another Manifestation and Motion, which the
Court received on April 2, 2012 stating that:
1. it had submitted the required documents and studies to respondent
DENR-EMB RVI before an ECC was issued in its favor;
2. it had substantially complied with the requirements provided under
PRA Administrative Order 2007-2, which compliance caused respondent
PRAs Board to approve the reclamation project; and
3. it had conducted a series of consultative [presentations] relative to the
reclamation project before the LGU of Malay Municipality, the Barangay
Officials of Caticlan, and stakeholders of Boracay Island.
Respondent Province further manifested that the Barangay Council of Caticlan,
Malay, Aklan enacted on February 13, 2012 Resolution No. 003, series of 2012, entitled
Resolution Favorably Endorsing the 2.6 Hectares Reclamation/MARINA Project of the Aklan
Provincial Government at Caticlan Coastline[131] and that the Sangguniang Bayan of the
Municipality of Malay, Aklan enacted Resolution No. 020, series of 2012, entitled
Resolution Endorsing the 2.6 Hectares Reclamation Project of the Provincial Government of
Aklan Located at Barangay Caticlan, Malay, Aklan.[132]
Respondent Province claims that its compliance with the requirements of
respondents DENR-EMB RVI and PRA that led to the approval of the reclamation project by
the said government agencies, as well as the recent enactments of the Barangay Council of
Caticlan and the Sangguniang Bayan of the Municipality of Malay favorably endorsing the
said project, had categorically addressed all the issues raised by the Petitioner in its Petition
dated June 1, 2011. Respondent Province prays as follows:
WHEREFORE, premises considered, it is most respectfully
prayed of this Honorable Court that after due proceedings, the following
be rendered:
1. The Temporary Environmental Protection Order (TEPO)
it issued on June 7, 2011 be lifted/dissolved.
2. The instant petition be dismissed for being moot and
academic.
3. Respondent Province of Aklan prays for such other reliefs
that are just and equitable under the premises. (Emphases
in the original.)
ISSUES
The Court will now resolve the following issues:
I. Whether or not the petition should be dismissed for having been
rendered moot and academic
II. Whether or not the petition is premature because petitioner failed to
exhaust administrative remedies before filing this case
III. Whether or not respondent Province failed to perform a full EIA as
required by laws and regulations based on the scope and classification
of the project
IV. Whether or not respondent Province complied with all the requirements
under the pertinent laws and regulations
V. Whether or not there was proper, timely, and sufficient public
consultation for the project
 DISCUSSION
On the issue of whether or not
the Petition should be
dismissed for having been
rendered moot and academic
Respondent Province claims in its Manifestation and Motion filed on April 2, 2012
that with the alleged favorable endorsement of the reclamation project by the Sangguniang
Barangay of Caticlan and the Sangguniang Bayan of the Municipality of Malay, all the issues
raised by petitioner had already been addressed, and this petition should be dismissed for
being moot and academic.
On the contrary, a close reading of the two LGUs respective resolutions would
reveal that they are not sufficient to render the petition moot and academic, as there are
explicit conditions imposed that must be complied with by respondent
Province. In Resolution No. 003, series of 2012, of the Sangguniang Barangay of Caticlan it
is stated thatany vertical structures to be constructed shall be subject
for barangay endorsement.[133] Clearly, what the barangayendorsed was the reclamation
only, and not the entire project that includes the construction of a commercial building and
wellness center, and other tourism-related facilities. Petitioners objections, as may be
recalled, pertain not only to the reclamation per se, but also to the building to be constructed
and the entire projects perceived ill effects to the surrounding environment.
Resolution No. 020, series of 2012, of the Sangguniang Bayan of Malay[134] is even
more specific. It reads in part:
WHEREAS, noble it seems the reclamation project to the effect
that it will generate scores of benefits for the Local Government of Malay
in terms of income and employment for its constituents, but the fact
cannot be denied that the project will take its toll on the environment
especially on the nearby fragile island of Boracay and the fact also
remains that the project will eventually displace the local
transportation operators/cooperatives;
WHEREAS, considering the sensitivity of the project, this
Honorable Body through the Committee where this matter was referred
conducted several consultations/committee hearings with concerned
departments and the private sector specifically Boracay Foundation, Inc.
and they are one in its belief that this Local Government Unit has
never been against development so long as compliance with the law
and proper procedures have been observed and that paramount
consideration have been given to the environment lest we disturb
the balance of nature to the end that progress will be brought to
naught;
WHEREAS, time and again, to ensure a healthy
intergovernmental relations, this August Body requires no less than
transparency and faithful commitment from the Provincial Government of
Aklan in the process of going through these improvements in the
Municipality because it once fell prey to infidelities in matters of
governance;
WHEREAS, as a condition for the grant of this
endorsement and to address all issues and concerns, this
Honorable Council necessitates a sincere commitment from the
Provincial Government of Aklan to the end that:
1. To allocate an office space to LGU-Malay within the building
in the reclaimed area;
2. To convene the Cagban and Caticlan Jetty Port Management
Board before the resumption of the reclamation project;
3. That the reclamation project shall be limited only to 2.6
hectares in Barangay Caticlan and not beyond;
4. That the local transportation operators/cooperatives will not be
displaced; and
5. The Provincial Government of Aklan conduct a
simultaneous comprehensive study on the environmental
impact of the reclamation project especially during
Habagat and Amihan seasons and put in place as early as
possible mitigating measures on the effect of the project
to the environment.
WHEREAS, having presented these stipulations, failure to
comply herewith will leave this August Body no choice but to
revoke this endorsement, hence faithful compliance of the
commitment of the Provincial Government is highly appealed
for[.][135] (Emphases added.)
The Sangguniang Bayan of Malay obviously imposed explicit conditions for
respondent Province to comply with on pain of revocation of its endorsement of the project,
including the need to conduct a comprehensive study on the environmental impact of the
reclamation project, which is the heart of the petition before us. Therefore, the contents of
the two resolutions submitted by respondent Province do not support its conclusion that the
subsequent favorable endorsement of the LGUs had already addressed all the issues raised
and rendered the instant petition moot and academic.
On the issue of failure to
exhaust administrative
remedies
Respondents, in essence, argue that the present petition should be dismissed for
petitioners failure to exhaust administrative remedies and even to observe the hierarchy of
courts. Furthermore, as the petition questions the issuance of the ECC and the NTP, this
involves factual and technical verification, which are more properly within the expertise of
the concerned government agencies.
Respondents anchor their argument on Section 6, Article II of DENR DAO 2003-30, which
provides:
Section 6. Appeal
 Any party aggrieved by the final decision on the ECC / CNC
applications may, within 15 days from receipt of such decision, file
an appeal on the following grounds:
a. Grave abuse of discretion on the part of the deciding authority,
or
b. Serious errors in the review findings.
The DENR may adopt alternative conflict/dispute resolution procedures
as a means to settle grievances between proponents and aggrieved
parties to avert unnecessary legal action. Frivolous appeals shall not be
countenanced.
The proponent or any stakeholder may file an appeal to the following:
Deciding Authority Where to file the appeal
EMB Regional Office Director Office of the EMB Director
EMB Central Office Director Office of the DENR Secretary
DENR Secretary Office of the President
(Emphases supplied.)
Respondents argue that since there is an administrative appeal provided for, then
petitioner is duty bound to observe the same and may not be granted recourse to the regular
courts for its failure to do so.
We do not agree with respondents appreciation of the applicability of the rule on
exhaustion of administrative remedies in this case. We are reminded of our ruling in Pagara
v. Court of Appeals,[136] which summarized our earlier decisions on the procedural
requirement of exhaustion of administrative remedies, to wit:
The rule regarding exhaustion of administrative remedies is not a
hard and fast rule. It is not applicable (1) where the question in dispute
is purely a legal one, or (2) where the controverted act is patently illegal
or was performed without jurisdiction or in excess of jurisdiction; or (3)
where the respondent is a department secretary, whose acts as an alter
ego of the President bear the implied or assumed approval of the latter,
unless actually disapproved by him, or (4) where there are
circumstances indicating the urgency of judicial
intervention, - Gonzales vs. Hechanova, L-21897, October 22, 1963, 9
SCRA 230; Abaya vs. Villegas, L-25641, December 17, 1966, 18 SCRA;
Mitra vs. Subido, L-21691, September 15, 1967, 21 SCRA 127.
Said principle may also be disregarded when it does not provide a
plain, speedy and adequate remedy, (Cipriano vs. Marcelino, 43
SCRA 291), when there is no due process observed (Villanos vs. Subido,
45 SCRA 299), or where the protestant has no other recourse (Sta.
Maria vs. Lopez, 31 SCRA 637).[137] (Emphases supplied.)
As petitioner correctly pointed out, the appeal provided for under Section 6 of DENR
DAO 2003-30 is only applicable, based on the first sentence thereof, if the person or entity
charged with the duty to exhaust the administrative remedy of appeal to the appropriate
government agency has been a party or has been made a party in the proceedings wherein
the decision to be appealed was rendered. It has been established by the facts that
petitioner was never made a party to the proceedings before respondent DENR-EMB
RVI. Petitioner was only informed that the project had already been approved after the ECC
was already granted.[138] Not being a party to the said proceedings, it does not appear that
petitioner was officially furnished a copy of the decision, from which the 15-day period to
appeal should be reckoned, and which would warrant the application of Section 6, Article II
of DENR DAO 2003-30.
Although petitioner was not a party to the proceedings where the decision to issue
an ECC was rendered, it stands to be aggrieved by the decision, [139] because it claims that
the reclamation of land on the Caticlan side would unavoidably adversely affect the Boracay
side, where petitioners members own establishments engaged in the tourism trade. As noted
earlier, petitioner contends that the declared objective of the reclamation project is to exploit
Boracays tourism trade because the project is intended to enhance support services thereto;
however, this objective would not be achieved since the white-sand beaches for which
Boracay is famous might be negatively affected by the project.Petitioners conclusion is that
respondent Province, aided and abetted by respondents PRA and DENR-EMB RVI, ignored
the spirit and letter of our environmental laws, and should thus be compelled to perform their
duties under said laws.
The new Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC,
provides a relief for petitioner under the writ of continuing mandamus, which is a special civil
action that may be availed of to compel the performance of an act specifically enjoined by
law[140] and which provides for the issuance of a TEPO as an auxiliary remedy prior to the
issuance of the writ itself.[141] The Rationale of the said Rules explains the writ in this wise:
Environmental law highlights the shift in the focal-point from the
initiation of regulation by Congress to the implementation of regulatory
programs by the appropriate government agencies.
Thus, a government agencys inaction, if any, has serious
implications on the future of environmental law enforcement.
Private individuals, to the extent that they seek to change the scope
of the regulatory process, will have to rely on such agencies to take
the initial incentives, which may require a judicial component.
Accordingly, questions regarding the propriety of an agencys
action or inaction will need to be analyzed.
This point is emphasized in the availability of the remedy of the
writ of mandamus, which allows for the enforcement of the conduct of the
tasks to which the writ pertains: the performance of a legal
duty.[142] (Emphases added.)
The writ of continuing mandamus permits the court to retain jurisdiction after
judgment in order to ensure the successful implementation of the reliefs mandated under
the courts decision and, in order to do this, the court may compel the submission of
compliance reports from the respondent government agencies as well as avail of other
means to monitor compliance with its decision. [143]
According to petitioner, respondent Province acted pursuant to a MOA with
respondent PRA that was conditioned upon, among others, a properly-secured ECC from
respondent DENR-EMB RVI. For this reason, petitioner seeks to compel respondent
Province to comply with certain environmental laws, rules, and procedures that it claims were
either circumvented or ignored. Hence, we find that the petition was appropriately filed with
this Court under Rule 8, Section 1, A.M. No. 09-6-8-SC, which reads:
SECTION 1. Petition for continuing mandamus.When any
agency or instrumentality of the government or officer thereof unlawfully
neglects the performance of an act which the law specifically enjoins as
a duty resulting from an office, trust or station in connection with the
enforcement or violation of an environmental law rule or regulation or a
right therein, or unlawfully excludes another from the use or enjoyment
of such right and there is no other plain, speedy and adequate remedy in
the ordinary course of law, the person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty,
attaching thereto supporting evidence, specifying that the petition
concerns an environmental law, rule or regulation, and praying that
judgment be rendered commanding the respondent to do an act or series
of acts until the judgment is fully satisfied, and to pay damages sustained
by the petitioner by reason of the malicious neglect to perform the duties
of the respondent, under the law, rules or regulations. The petition shall
also contain a sworn certification of non-forum shopping.
SECTION 2. Where to file the petition.The petition shall be filed
with the Regional Trial Court exercising jurisdiction over the territory
where the actionable neglect or omission occurred or with the Court of
Appeals or the Supreme Court.
Petitioner had three options where to file this case under the rule: the Regional
Trial Court exercising jurisdiction over the territory where the actionable neglect or omission
occurred, the Court of Appeals, or this Court.
Petitioner had no other plain, speedy, or adequate remedy in the ordinary course
of law to determine the questions of unique national and local importance raised here that
pertain to laws and rules for environmental protection, thus it was justified in coming to this
Court.
Having resolved the procedural issue, we now move to the substantive issues.
On the issues of whether,
based on the scope and
classification of the project, a
full EIA is required by laws and
regulations, and whether
respondent Province complied
with all the requirements under
the pertinent laws and
regulations
Petitioners arguments on this issue hinges upon its claim that the reclamation
project is misclassified as a single project when in fact it is co-located. Petitioner also
questions the classification made by respondent Province that the reclamation project is
merely an expansion of the existing jetty port, when the project descriptions embodied in the
different documents filed by respondent Province describe commercial establishments to be
built, among others, to raise revenues for the LGU; thus, it should have been classified as a
new project. Petitioner likewise cries foul to the manner by which respondent Province
allegedly circumvented the documentary requirements of the DENR-EMB RVI by the act of
connecting the reclamation project with its previous project in 1999 and claiming that the
new project is a mere expansion of the previous one.
As previously discussed, respondent Province filed a Manifestation and Motion
stating that the ECC issued by respondent DENR-EMB RVI covered an area of 2,691 square
meters in Caticlan, and its application for reclamation of 40 hectares with respondent PRA
was conditioned on its submission of specific documents within 120 days.Respondent
Province claims that its failure to comply with said condition indicated its waiver to pursue
the succeeding phases of the reclamation project and that the subject matter of this case
had thus been limited to 2.64 hectares. Respondent PRA, for its part, declared through
its General Manager that the Aklan Beach Zone Restoration and Protection Marine
Development Project will now be confined to the reclamation and development of the 2.64
hectares, more or less.[144]
The Court notes such manifestation of respondent Province. Assuming, however,
that the area involved in the subject reclamation project has been limited to 2.64 hectares,
this case has not become moot and academic, as alleged by respondents, because the
Court still has to check whether respondents had complied with all applicable environmental
laws, rules, and regulations pertaining to the actual reclamation project.
We recognize at this point that the DENR is the government agency vested with
delegated powers to review and evaluate all EIA reports, and to grant or deny ECCs to
project proponents.[145] It is the DENR that has the duty to implement the EIS system. It
appears, however, that respondent DENR-EMB RVIs evaluation of this reclamation project
was problematic, based on the valid questions raised by petitioner.
Being the administrator of the EIS System, respondent DENR-EMB RVIs
submissions bear great weight in this case. However, the following are the issues that put in
question the wisdom of respondent DENR-EMB RVI in issuing the ECC:
1. Its approval of respondent Provinces classification of the project as a
mere expansion of the existing jetty port in Caticlan, instead of classifying
it as a new project;
2. Its classification of the reclamation project as a single instead of a co-
located project;
3. The lack of prior public consultations and approval of local government
agencies; and
4. The lack of comprehensive studies regarding the impact of the
reclamation project to the environment.
The above issues as raised put in question the sufficiency of the evaluation of the
project by respondent DENR-EMB RVI.
Nature of the project
The first question must be answered by respondent DENR-EMB RVI as the agency
with the expertise and authority to state whether this is a new project, subject to the more
rigorous environmental impact study requested by petitioner, or it is a mere expansion of the
existing jetty port facility.
 The second issue refers to the classification of the project by respondent Province,
approved by respondent DENR-EMB RVI, as single instead of co-located. Under the
Revised Procedural Manual, the Summary List of Additional Non-Environmentally-
Critical Project (NECP) Types in ECAs Classified under Group II (Table I-2) lists
buildings, storage facilities and other structures as a separate item from transport terminal
facilities. This creates the question of whether this project should be considered as
consisting of more than one type of activity, and should more properly be classified as co-
located, under the following definition from the same Manual, which reads:
f) Group IV (Co-located Projects in either ECA or NECA): A co-
located project is a group of single projects, under one or
more proponents/locators, which are located in a
contiguous area and managed by one administrator, who
is also the ECC applicant. The co-located project may be an
economic zone or industrial park, or a mix of projects within a
catchment, watershed or river basin, or any other geographical,
political or economic unit of area.Since the location or threshold
of specific projects within the contiguous area will yet be
derived from the EIA process based on the carrying capacity of
the project environment, the nature of the project is called
programmatic.(Emphasis added.)
Respondent DENR-EMB RVI should conduct a thorough and detailed evaluation
of the project to address the question of whether this could be deemed as a group of single
projects (transport terminal facility, building, etc.) in a contiguous area managed by
respondent Province, or as a single project.
The third item in the above enumeration will be discussed as a separate issue.
The answer to the fourth question depends on the final classification of the project
under items 1 and 3 above because the type of EIA study required under the Revised
Procedural Manual depends on such classification.
The very definition of an EIA points to what was most likely neglected by
respondent Province as project proponent, and what was in turn overlooked by respondent
DENR-EMB RVI, for it is defined as follows:
An [EIA] is a process that involves predicting and evaluating the likely
impacts of a project (including cumulative impacts) on the environment during
construction, commissioning, operation and abandonment. It also includes
designing appropriate preventive, mitigating and enhancement measures
addressing these consequences to protect the environment and the communitys
welfare.[146] (Emphases supplied.)
Thus, the EIA process must have been able to predict the likely impact of the
reclamation project to the environment and to prevent any harm that may otherwise be
caused.
The project now before us involves reclamation of land that is more than five
times the size of the original reclaimed land. Furthermore, the area prior to construction
merely contained a jetty port, whereas the proposed expansion, as described in the EPRMP
submitted by respondent Province to respondent DENR-EMB RVI involves so much more,
and we quote:
The expansion project will be constructed at the north side of
the existing jetty port and terminal that will have a total area of 2.64
hectares, more or less, after reclamation. The Phase 1 of the project
construction costing around P260 million includes the following:
1. Reclamation - 3,000 sq m (expansion of jetty port)
2. Reclamation - 13,500 sq m (buildable area)
3. Terminal annex building - 250 sq m
4. 2-storey commercial building 2,500 sq m (1,750 sq m
of leasable space)
5. Health and wellness center
6. Access road - 12 m (wide)
7. Parking, perimeter fences, lighting and water
treatment sewerage system
8. Rehabilitation of existing jetty port and terminal
xxxx
The succeeding phases of the project will consist of [further] reclamation,
completion of the commercial center building, bay walk commercial strip,
staff building, ferry terminal, a cable car system and wharf marina. This
will entail an additional estimated cost of P785 million bringing the total
investment requirement to about P1.0 billion.[147] (Emphases added.)
As may be gleaned from the breakdown of the 2.64 hectares as described by respondent
Province above, a significant portion of the reclaimed area would be devoted to the
construction of a commercial building, and the area to be utilized for the expansion of the
jetty port consists of a mere 3,000 square meters (sq. m). To be true to its definition, the EIA
report submitted by respondent Province should at the very least predict the impact that the
construction of the new buildings on the reclaimed land would have on the surrounding
environment. These new constructions and their environmental effects were not covered by
the old studies that respondent Province previously submitted for the construction of the
original jetty port in 1999, and which it re-submitted in its application for ECC in this alleged
expansion, instead of conducting updated and more comprehensive studies.
Any impact on the Boracay side cannot be totally ignored, as Caticlan and Boracay
are separated only by a narrow strait. This becomes more imperative because of the
significant contributions of Boracays white-sand beach to the countrys tourism trade, which
requires respondent Province to proceed with utmost caution in implementing projects
within its vicinity.
 We had occasion to emphasize the duty of local government units to ensure the
quality of the environment under Presidential Decree No. 1586 in Republic of the Philippines
v. The City of Davao,[148] wherein we held:
Section 15 of Republic Act 7160, otherwise known as the Local
Government Code, defines a local government unit as a body politic and
corporate endowed with powers to be exercised by it in conformity with
law. As such, it performs dual functions, governmental and proprietary.
Governmental functions are those that concern the health, safety and the
advancement of the public good or welfare as affecting the public
generally. Proprietary functions are those that seek to obtain special
corporate benefits or earn pecuniary profit and intended for private
advantage and benefit. When exercising governmental powers and
performing governmental duties, an LGU is an agency of the national
government. When engaged in corporate activities, it acts as an agent of
the community in the administration of local affairs.
Found in Section 16 of the Local Government Code is the
duty of the LGUs to promote the peoples right to a balanced
ecology. Pursuant to this, an LGU, like the City of Davao, can not claim
exemption from the coverage of PD 1586. As a body politic endowed with
governmental functions, an LGU has the duty to ensure the quality of the
environment, which is the very same objective of PD 1586.
xxxx
Section 4 of PD 1586 clearly states that no person, partnership
or corporation shall undertake or operate any such declared
environmentally critical project or area without first securing an
Environmental Compliance Certificate issued by the President or his duly
authorized representative. The Civil Code defines a person as either
natural or juridical. The state and its political subdivisions, i.e., the
local government units are juridical persons. Undoubtedly
therefore, local government units are not excluded from the
coverage of PD 1586.
Lastly, very clear in Section 1 of PD 1586 that said law intends
to implement the policy of the state to achieve a balance between socio-
economic development and environmental protection, which are the twin
goals of sustainable development. The above-quoted first paragraph of
the Whereas clause stresses that this can only be possible if we adopt
a comprehensive
and integrated environmental protection program where all the
sectors of the community are involved, i.e., the government and the
private sectors. The local government units, as part of the
machinery of the government, cannot therefore be deemed as
outside the scope of the EIS system.[149] (Emphases supplied.)
The Court chooses to remand these matters to respondent DENR-EMB RVI for it
to make a proper study, and if it should find necessary, to require respondent Province to
address these environmental issues raised by petitioner and submit the correct EIA report
as required by the projects specifications. The Court requires respondent DENR-EMB RVI
to complete its study and submit a report within a non-extendible period of three
months. Respondent DENR-EMB RVI should establish to the Court in said report why the
ECC it issued for the subject project should not be canceled.
Lack of prior public
consultation
The Local Government Code establishes the duties of national government
agencies in the maintenance of ecological balance, and requires them to secure prior public
consultation and approval of local government units for the projects described therein.
In the case before us, the national agency involved is respondent PRA. Even if the
project proponent is the local government of Aklan, it is respondent PRA which authorized
the reclamation, being the exclusive agency of the government to undertake reclamation
nationwide. Hence, it was necessary for respondent Province to go through respondent PRA
and to execute a MOA, wherein respondent PRAs authority to reclaim was delegated to
respondent Province. Respondent DENR-EMB RVI, regional office of the DENR, is also a
national government institution which is tasked with the issuance of the ECC that is a
prerequisite to projects covered by environmental laws such as the one at bar.
This project can be classified as a national project that affects the environmental
and ecological balance of local communities, and is covered by the requirements found in
the Local Government Code provisions that are quoted below:
Section 26. Duty of National Government Agencies in the
Maintenance of Ecological Balance. - It shall be the duty of every
national agency or government-owned or controlled corporation
authorizing or involved in the planning and implementation of any project
or program that may cause pollution, climatic change, depletion of non-
renewable resources, loss of crop land, rangeland, or forest cover, and
extinction of animal or plant species, to consult with the local government
units, nongovernmental organizations, and other sectors concerned and
explain the goals and objectives of 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.
Section 27. Prior Consultations Required. - No project or
program shall be implemented by government authorities unless the
consultations mentioned in Sections 2 (c) and 26 hereof are complied
with, and prior approval of the sanggunian concerned is obtained:
Provided, That occupants in areas where such projects are to be
implemented shall not be evicted unless appropriate relocation sites
have been provided, in accordance with the provisions of the
Constitution.
In Lina, Jr. v. Pao,[150] we held that Section 27 of the Local Government Code applies only
to national programs and/or projects which are to be implemented in a particular local
community[151] and that it should be read in conjunction with Section 26. We held further in
this manner:
Thus, the projects and programs mentioned in Section 27
should be interpreted to mean projects and programs whose effects are
 among those enumerated in Section 26 and 27, to wit, those that:
(1) may cause pollution; (2) may bring about climatic change; (3) may
cause the depletion of non-renewable resources; (4) may result in loss
of crop land, range-land, or forest cover; (5) may eradicate certain animal
or plant species from the face of the planet; and (6) other projects or
programs that may call for the eviction of a particular group of people
residing in the locality where these will be implemented. Obviously, none
of these effects will be produced by the introduction of lotto in the
province of Laguna.[152] (Emphasis added.)
During the oral arguments held on September 13, 2011, it was established that
this project as described above falls under Section 26 because the commercial
establishments to be built on phase 1, as described in the EPRMP quoted above, could
cause pollution as it could generate garbage, sewage, and possible toxic fuel discharge. [153]
Our ruling in Province of Rizal v. Executive Secretary[154] is instructive:
We reiterated this doctrine in the recent case of Bangus Fry
Fisherfolk v. Lanzanas, where we held that there was no statutory
requirement for the sangguniang bayan of Puerto Galera to approve the
construction of a mooring facility, as Sections 26 and 27 are inapplicable
to projects which are not environmentally critical.
Moreover, Section 447, which enumerates the powers, duties
and functions of the municipality, grants the sangguniang bayan the
power to, among other things, enact ordinances, approve resolutions and
appropriate funds for the general welfare of the municipality and its
inhabitants pursuant to Section 16 of th(e) Code. These include:
(1) Approving ordinances and passing resolutions
to protect the environment and impose appropriate
penalties for acts which endanger the environment,
such as dynamite fishing and other forms of
destructive fishing, illegal logging and smuggling of
logs, smuggling of natural resources products and of
endangered species of flora and fauna, slash and
burn farming, and such other activities which result in
pollution, acceleration of eutrophication of rivers and
lakes, or of ecological imbalance; [Section 447 (1)(vi)]
(2) Prescribing reasonable limits and restraints on the use
of property within the jurisdiction of the
municipality, adopting a comprehensive land use
plan for the municipality, reclassifying land within the
jurisdiction of the city, subject to the pertinent
provisions of this Code, enacting integrated zoning
ordinances in consonance with the approved
comprehensive land use plan, subject to existing
laws, rules and regulations; establishing fire limits or
zones, particularly in populous centers; and
regulating the construction, repair or modification of
buildings within said fire limits or zones in accordance
with the provisions of this Code; [Section 447 (2)(vi-
ix)]
(3) Approving ordinances which shall ensure the efficient
and effective delivery of the basic services and
facilities as provided for under Section 17 of this
Code, and in addition to said services and
facilities, providing for the establishment,
maintenance, protection, and conservation of
communal forests and watersheds, tree parks,
greenbelts, mangroves, and other similar forest
development projects and, subject to existing laws,
establishing and providing for the maintenance,
repair and operation of an efficient waterworks
system to supply water for the inhabitants
and purifying the source of the water supply;
regulating the construction, maintenance, repair and
use of hydrants, pumps, cisterns and
reservoirs; protecting the purity and quantity of the
water supply of the municipality and, for this
purpose, extending the coverage of appropriate
ordinances over all territory within the drainage area
of said water supply and within one hundred (100)
meters of the reservoir, conduit, canal, aqueduct,
pumping station, or watershed used in connection
with the water service; and regulating the
consumption, use or wastage of water. [Section 447
(5)(i) & (vii)]
Under the Local Government Code, therefore, two
requisites must be met before a national project that affects the
environmental and ecological balance of local communities can be
implemented: prior consultation with the affected local
communities, and prior approval of the project by the
appropriate sanggunian. Absent either of these mandatory
requirements, the projects implementation is illegal.[155] (Emphasis
added.)
Based on the above, therefore, prior consultations and prior approval are
required by law to have been conducted and secured by the respondent
Province. Accordingly, the information dissemination conducted months after the ECC had
already been issued was insufficient to comply with this requirement under the Local
Government Code. Had they been conducted properly, the prior public consultation should
have considered the ecological or environmental concerns of the stakeholders and studied
measures alternative to the project, to avoid or minimize adverse environmental impact or
damage. In fact, respondent Province once tried to obtain the favorable endorsement of
the Sangguniang Bayan of Malay, but this was denied by the latter.
Moreover, DENR DAO 2003-30 provides:
5.3 Public Hearing / Consultation Requirements
For projects under Category A-1, the conduct of public hearing as part of
the EIS review is mandatory unless otherwise determined by
 EMB. For all other undertakings, a public hearing is not
mandatory unless specifically required by EMB.
Proponents should initiate public consultations early in order to
ensure that environmentally relevant concerns of
stakeholders are taken into consideration in the EIA study
and the formulation of the management plan. All public
consultations and public hearings conducted during the EIA
process are to be documented. The public hearing/consultation
Process report shall be validated by the EMB/EMB RD and
shall constitute part of the records of the EIA process.
(Emphasis supplied.)
In essence, the above-quoted rule shows that in cases requiring public consultations, the
same should be initiated early so that concerns of stakeholders could be taken into
consideration in the EIA study. In this case, respondent Province had already filed its ECC
application before it met with the local government units of Malay and Caticlan.
The claim of respondent DENR-EMB RVI is that no permits and/or clearances from National
Government Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum
Circular No. 2007-08. However, we still find that the LGC requirements of consultation and
approval apply in this case. This is because a Memorandum Circular cannot prevail over the
Local Government Code, which is a statute and which enjoys greater weight under our
hierarchy of laws.
Subsequent to the information campaign of respondent Province, the Municipality
of Malay and the Liga ng mga Barangay-Malay Chapter still opposed the project. Thus, when
respondent Province commenced the implementation project, it violated Section 27 of the
LGC, which clearly enunciates that [no] project or program shall be implemented by
government authorities unless the consultations mentioned in Sections 2(c) and 26 hereof
are complied with, and prior approval of the sanggunian concerned is obtained.
The lack of prior public consultation and approval is not corrected by the
subsequent endorsement of the reclamation project by the Sangguniang Barangay of
Caticlan on February 13, 2012, and the Sangguniang Bayan of the Municipality of Malay
on February 28, 2012, which were both undoubtedly achieved at the urging and insistence
of respondent Province. As we have established above, the respective resolutions issued
by the LGUs concerned did not render this petition moot and academic.
It is clear that both petitioner and respondent Province are interested in the
promotion of tourism in Boracay and the protection of the environment, lest they kill the
proverbial hen that lays the golden egg. At the beginning of this decision, we mentioned that
there are common goals of national significance that are very apparent from both the
petitioners and the respondents respective pleadings and memoranda.
The parties are evidently in accord in seeking to uphold the mandate found in
Article II, Declaration of Principles and State Policies, of the 1987 Constitution, which we
quote below:
SECTION 16. The State shall protect and advance the right of
the people to a balanced and healthful ecology in accord with the rhythm
and harmony of nature.
xxxx
SECTION 20. The State recognizes the indispensable role of
the private sector, encourages private enterprise, and provides
incentives to needed investments.
The protection of the environment in accordance with the aforesaid constitutional mandate
is the aim, among others, of Presidential Decree No. 1586, Establishing an Environmental
Impact Statement System, Including Other Environmental Management Related Measures
and For Other Purposes, which declared in its first Section that it is the policy of the State
to attain and maintain a rational and orderly balance between socio-economic growth
and environmental protection.
The parties undoubtedly too agree as to the importance of promoting tourism,
pursuant to Section 2 of Republic Act No. 9593, or The Tourism Act of 2009, which reads:
SECTION 2. Declaration of Policy. The State declares
tourism as an indispensable element of the national economy and
an industry of national interest and importance, which must be
harnessed as an engine of socioeconomic growth and cultural affirmation
to generate investment, foreign exchange and employment, and to
continue to mold an enhanced sense of national pride for all Filipinos.
(Emphasis ours.)
The primordial role of local government units under the Constitution and the Local
Government Code of 1991 in the subject matter of this case is also unquestionable. The
Local Government Code of 1991 (Republic Act No. 7160) pertinently provides:
Section 2. Declaration of Policy. - (a) It is hereby declared the
policy of the State that the territorial and political subdivisions of
the State shall enjoy genuine and meaningful local autonomy to
enable them to attain their fullest development as self-reliant
communities and make them more effective partners in the
attainment of national goals. Toward this end, the State shall provide
for a more responsive and accountable local government structure
instituted through a system of decentralization whereby local
government units shall be given more powers, authority,
responsibilities, and resources. The process of decentralization shall
proceed from the national government to the local government
units.[156] (Emphases ours.)
As shown by the above provisions of our laws and rules, the speedy and smooth
resolution of these issues would benefit all the parties. Thus, respondent Provinces
cooperation with respondent DENR-EMB RVI in the Court-mandated review of the proper
classification and environmental impact of the reclamation project is of utmost importance.
WHEREFORE, premises considered, the petition is hereby PARTIALLY
GRANTED. The TEPO issued by this Court is hereby converted into a writ of
continuing mandamus specifically as follows:
1. Respondent Department of Environment and Natural Resources-
Environmental Management BureauRegional Office VI shall revisit and
review the following matters:
 a. its classification of the reclamation project as a single instead of a
co-located project;
b. its approval of respondent Provinces classification of the project as
a mere expansion of the existing jetty port in Caticlan, instead of
classifying it as a new project; and
c. the impact of the reclamation project to the environment based on
new, updated, and comprehensive studies, which should forthwith
be ordered by respondent DENR-EMB RVI.

2. Respondent Province of Aklan shall perform the following:

a. fully cooperate with respondent DENR-EMB RVI in its review of the

reclamation project proposal and submit to the latter the
appropriate report and study; and
b. secure approvals from local government units and hold proper
consultations with non-governmental organizations and other
stakeholders and sectors concerned as required by Section 27 in
relation to Section 26 of the Local Government Code.

3. Respondent Philippine Reclamation Authority shall closely monitor the

submission by respondent Province of the requirements to be issued by
respondent DENR-EMB RVI in connection to the environmental
concerns raised by petitioner, and shall coordinate with respondent
Province in modifying the MOA, if necessary, based on the findings of
respondent DENR-EMB RVI.

4. The petitioner Boracay Foundation, Inc. and the respondents The

Province of Aklan, represented by Governor Carlito S. Marquez, The
Philippine Reclamation Authority, and The DENR-EMB (Region VI) are
mandated to submit their respective reports to this Court regarding their
compliance with the requirements set forth in this Decision no later than
three (3) months from the date of promulgation of this Decision.

5. In the meantime, the respondents, their concerned contractor/s, and/or

their agents, representatives or persons acting in their place or stead,
shall immediately cease and desist from continuing the implementation
of the project covered by ECC-R6-1003-096-7100 until further orders
from this Court. For this purpose, the respondents shall report within
five (5) days to this Court the status of the project as of their receipt of
this Decision, copy furnished the petitioner.

This Decision is immediately executory.

 THIRD DIVISION
[G.R. No. 137174. July 10, 2000]
REPUBLIC OF THE PHILIPPINES, Represented by the POLLUTION ADJUDICATION
BOARD (DENR), petitioner, vs. MARCOPPER MINING
CORPORATION, respondent.
DECISION
GONZAGA-REYES, J.:
In this petition for review on certiorari, petitioner REPUBLIC OF THE PHILIPPINES
through the Pollution Adjudication Board of the Department of Environment and Natural
Resources seeks to annul the Decision[1] of the Court of Appeals[2] in CA-G.R. SP No. 44656
setting aside the Order[3] of the Pollution Adjudication Board[4] in DENR-PAB Case No. 04-
00597-96; as well as the Resolution[5] denying reconsideration of said Decision.
The following antecedent facts are undisputed:
Respondent Marcopper Mining Corporation (MMC) was issued a temporary permit to
operate a tailings[6] sea disposal system under TPO No. POW-85-454-EJ for the period
October 31, 1985 to October 21, 1986. Before it expired, MMC filed an application for the
renewal thereof with the National Pollution Control Commission (NPCC). On September 20,
1986, MMC received a telegraphic order from the NPCC directing the former to
(i)mmediately cease and desist from discharging mine tailings into Calancan Bay. The
directive was brought about through the efforts of certain religious groups which had been
protesting MMCs tailings sea disposal system. MMC requested the NPCC to refrain from
implementing the aforesaid directive until its adoption of an alternative tailings disposal
system. The NPCC granted MMCs request and called a conference to discuss possible
alternative disposal systems. Consequently, an Environmental Technical Committee,
composed of representatives from the NPCC, the Bureau of Mines and Geo-Sciences, and
MMC was created to study the feasibility of various tailings disposal systems that may be
appropriate for utilization by MMC and to submit its findings and recommendations thereon.
Meanwhile, after the expiration of MMCs TPO No. POW-85-454-EJ on October 21,
1986, the NPCC issued to MMC a new temporary permit, TPO No. POW-86-454-EJ dated
November 11, 1986, to expire on February 10, 1987, with the condition that [t]he tailings
disposal system shall be transferred to San Antonio Pond within two (2) months from the
date of this permit. MMC moved for the deletion of the condition stating that it needed to
develop and mine the ore depositsunderneath the San Antonio pond for it to continue its
mining operations. In a letter-manifestation dated February 5, 1987, MMC requested the
NPCC for an extension of TPO No. POW-86-454-EJ and the indefinite suspension of the
condition in said permit until such time that the NPCC shall have finally resolved the NPCC
case entitled Msgr. Rolly Oliverio, et al. vs. Marcopper Mining Corporation.
In the meantime, the NPCC was abolished by Executive Order No. 192[7] dated June
10, 1987, and its powers and functions were integrated into the Environmental Management
Bureau and into the Pollution Adjudication Board (PAB). [8]
On April 11, 1988, the Secretary of Environment and Natural Resources, in his capacity
as Chairman of the PAB, issued an Order directing MMC to cease and desist from
discharging mine tailings into Calancan Bay. The order reads:
The Temporary Permit to Operate issued to Marcopper Mining Corporation expired on
February 10, 1987.
Section 96 of the National Pollution Control Commission (NPCC) Rules and Regulations,
which were adopted by the Board, provides that in no case can a permit be valid for more
than one (1) year.
Records show that Marcopper Mining Corporation has not filed any application for renewal
of the permit.
Marcopper Mining Corporation is hereby ordered to cease and desist from discharging
mine tailings into Calancan Bay immediately upon receipt of this Order.
SO ORDERED.[9]
Immediately thereafter, the DENR Undersecretary for Environment and Research
issued a telegraphic order dated April 15, 1988, enjoining immediate compliance by MMC of
the cease and desist order of April 11, 1988.
MMC appealed the above orders of April 11, 1988 and April 15, 1988 to the Office of
the President, docketed as O.P. Case No. 3802. In an Order dated May 2, 1988, the Office
of the President denied MMCs requests for issuance of restraining orders against the orders
of the PAB. Consequently, MMC filed an Urgent Ex-Parte Partial Motion for Reconsideration
dated May 6, 1988, seeking the reconsideration of the above Order. In an Order dated May
13, 1988, the Office of the President granted the above partial motion for reconsideration,
thus:
WHEREFORE, the instant Urgent Ex-Parte Motion for Reconsideration is hereby
GRANTED, and the Order of this Office, dated May 2, 1988, is hereby set aside insofar as
it denies respondent-appellants requests for issuance of restraining orders.
Accordingly, the Pollution Adjudication Board, its agents, deputies or representatives are
hereby enjoined from enforcing its cease and desist order of April 15, 1988 pending
resolution by this Office of respondent-appellants appeal from said orders.
It is further directed that the status quo obtaining prior to the issuance of said cease and
desist order be maintained until further orders from this Office.
It is understood, however, that during the efficacy of this restraining order, respondent-
appellant shall immediately undertake, at a cost of not less than P30,000.00 a day, the
building of artificial reefs and planting of sea grass, mangroves and vegetation on the
causeway of Calancan Bay under the supervision of the Pollution Adjudication Board and
subject to such guidelines as the Board may impose.
SO ORDERED.[10]
 In line with the directive from the Office of the President, the Calancan Bay
Rehabilitation Project (CBRP) was created, and MMC remitted the amount of P30,000.00 a
day, starting from May 13, 1988 to the Ecology Trust Fund (ETF) thereof.However, on June
30, 1991, MMC stopped discharging its tailings in the Bay, hence, it likewise ceased from
making further deposits to the ETF.
From the issuance of the Order on May 13, 1988 until the cessation of the tailings
disposal on June 30, 1991, MMC made its contribution to the ETF in the total amount of
Thirty-Two Million Nine Hundred and Seventy-Five Thousand Pesos
(P32,975,000.00). Thereafter, MMC filed a Motion dated July 9, 1991 manifesting that it
would discontinue its contributions/deposits to the ETF since it had stopped dumping tailings
in the Bay. MMC prayed that the Order issued by the Office of the President on May 13,
1988 be lifted.
On February 5, 1993, the Office of the President rendered a decision in O.P. Case No.
3802 dismissing the appeal; affirming the cease and desist Order issued by the PAB; and
lifting the TRO dated May 13, 1988. The Office of the President resolved the appeal in this
wise:
This brings to the fore the primordial issue of whether or not the Secretary of Environment
and Natural Resources gravely erred in declaring the TPO No. POW-86-454-EJ issued to
respondent-appellant MMC expired on February 10, 1987, and in ordering the latter to
cease and desist from discharging mine tailings into Calancan Bay.
Respondent-appellant argues that the cease and desist orders were issued by the PAB ex-
parte, in violation of its procedural and substantive rights provided for under Section 7 (a)
of P.D. No. 984 requiring a public hearing before any order or decision for the
discontinuance of discharge of a sewage or industrial wastes into the water, air or land
could be issued by the PAB.
We are not persuaded.
Section 7(a) of P.D. No. 984, reads in part:
Sec. 7(a) Public Hearing. Public hearing shall be conducted by the Commissioner, Deputy
Commissioner or any senior official duly designated by the Commissioner prior to issuance
or promulgation of any order or decision by the Commissioner requiring the discontinuance
of discharge of sewage, industrial wastes and other wastes into the water, air or land
resources of the Philippines as provided in the Decree: provided, that whenever the
Commission finds a prima facie evidence that the discharged sewage or wastes are of
immediate threat to life, public health, safety or welfare, or to animal or plant life, or
exceeds the allowable standards set by the Commission, the Commissioner may issue
an ex-parte order directing the discontinuance of the same or the temporary suspension or
cessation of operation of the establishment or person generating such sewage or
wastes without the necessity of a prior public hearing. x x x . (underscoring supplied).
Clearly then, it is self-indulgent nonsense to assume that the DENR Secretary, acting as
PAB Chairman, is absolutely without authority to issue an ex-parte order requiring the
discontinuance of discharge of sewage or other industrial wastes without public
hearing. As can be gleaned from the afroequoted proviso, this authority to issue an ex-
parte order suspending the discharge of industrial wastes is postulated upon his finding
of prima-facie evidence of an imminent threat to life, public health, safety or welfare, to
animal or plant life or exceeds the allowable standards set by the Commission. [11]
In a letter dated January 22, 1997[12], Municipal Mayor Wilfredo A. Red of Sta. Cruz,
Marinduque informed the PAB that MMC stopped remitting the amount of 30,000.00 per
day as of July 1, 1991 to the ETF of the CBRP. This letter-complaint of Mayor Red was
docketed as DENR-PAB Case No. 04-00597-96, for violation of P.D. 984[13] and its
implementing Rules and Regulations.
In an order dated April 23, 1997, the PAB ruled that the obligation of MMC to deposit
P30,000.00 per day to the ETF of the CBRP subsists, as provided for in the Order of
the Office of the President dated May 13, 1988, during the efficacy of said order restraining
the PAB from enforcing its cease and desist order against MMC. Since the Order was lifted
only on February 5, 1993, the obligation of MMC to remit was likewise extinguished only on
said date and not earlier as contended by MMC from the time it ceased dumping tailings into
the Bay on July 1, 1991. We quote in part:
The issue before this Board is whether Marcopper Mining Corporation is still obliged to
remit the amount of P30,000.00 to the CBRP. The answer by the Order from the Office of
the President dated 13 May 1988, which states that the obligation on the part of Marcopper
Mining to pay the amount of P30,000.00 per day for the rehabilitation of Calancan Bay is
binding only during the efficacy of the said Order.
The record further shows that on 05 February 1993, the Office of the President lifted its
Order dated 13 May 1988. This means that as of the date of the lifting, Marcopper Mining
Corporation no longer had any obligation to remit the amount of P30,000.00 to the
CBRP. Thus, Marcoppers obligation only runs from 13 May 1988 to 05 February
1993. Beyond the cut-off date of 05 February 1993, Marcopper is no longer obligated to
remit the amount of P30,000.00 per day to the CBRP.
It does not matter whether Marcopper was no longer dumping its tail minings into the sea
even before the cut-off date of 05 February 1993. The obligation of Marcopper to pay the
amount of P30,000.00 to the CBRP arises from the Office of the President Order dated 13
May 1988, not from it dumping of mine tailings.
WHEREFORE, Marcopper Mining Corporation is hereby ordered to pay the CBRP the
amount of P30,000.00 per day, computed from the date Marcopper Mining Corporation
stopped paying on 01 July 1991, up to the formal lifting of the subject Order from the Office
of the President on 05 February 1993.
SO ORDERED.[14]
MMC assailed the aforequoted Order dated April 23, 1997 of the PAB as null and void
for having been issued without jurisdiction or with grave abuse of discretion in a petition for
Certiorari and Prohibition (with prayer for temporary restraining order and preliminary
injunction) before the Court of Appeals which was docketed as CA-G.R. No. SP-44656. In a
Resolution dated July 15, 1997, the Court of Appeals required the PAB and its members to
comment on said petition.
On November 19, 1997, the Office of the Solicitor General, on behalf of the PAB and
its members, filed with the Court of Appeals the required comment.
On September 15, 1997, for purposes of determining whether or not to grant MMCs
prayer for a temporary restraining order and preliminary injunction, the Court of Appeals
conducted a hearing where counsel for the parties were heard on oral arguments.
 In a Resolution dated September 19, 1997, the Court of Appeals issued a writ of
preliminary injunction, conditioned upon the filing of a bond by MMC in the amount of
P500,000.00 enjoining the PAB and its members to cease and desist from enforcing the
assailed Order dated April 23, 1997, until it had made a full determination on the merits of
the case.
On January 7, 1998, the Court of Appeals promulgated a Decision in CA-G.R. SP No.
44656, the dispositive portion of which reads:
In view of the foregoing, the instant petition is hereby GRANTED and, accordingly, the
questioned Order of respondent Pollution Adjudication Board dated 23 April 1997 is hereby
SET ASIDE. Respondents are ordered to REFRAIN and DESIST from enforcing aforesaid
Order. The injunctive bond filed by the petitioner in the amount of Five Hundred Thousand
(P500,000.00) is hereby RELEASED.
The motion for reconsideration of the above decision was denied in a Resolution dated
January 13, 1999 of the Court of Appeals.
Hence, the instant petition on the following grounds:
I Board (PAB), except in cases where the special law, expressly or impliedly, provides for
The Court of Appeals erred in ruling that Republic Act No. 7942 (otherwise known as the
Philippine Mining Act of 1995) repealed the provisions of Republic Act No. 3931, as
amended by Presidential Decree No. 984, (otherwise known as the National Pollution
Control Decree of 1976), with respect to the power and function of petitioner Pollution
Adjudication Board to issue, renew or deny permits for the discharge of the mine tailings.
II
Respondent Marcopper Mining Corporation bound itself to pay the amount of P30,000.00 a
day for the duration of the period starting May 13, 1988 up to February 5, 1993.
III
Respondent Marcopper Mining Corporation was not deprived of due process of law when
petitioner Pollution Adjudication Board directed it to comply with its long-existing
P30,000.00 per day obligation under the Order of the Office of the President dated May 13,
1988.[15]
In setting aside the Order of the PAB dated April 23, 1997, requiring MMC to pay its
arrears in deposits, the Court of Appeals ruled that the PAB exceeded its power and authority
in issuing the subject Order for the following reasons:
The applicable and governing law in this petition is Republic Act No. 7942 otherwise known
as the Philippine Mining Act of 1995 (Mining Act, approved on March 3, 1995).
Chapter XI of the Mining Act contains a series of provisions relating to safety and
environmental protection on mining and quarrying operations. More specifically, Section 67
of the Mining Act in essence, grants the mines regional director the power to issue orders
or to take appropriate measures to remedy any practice connected with mining or
quarrying operations which is not in accordance with safety and anti-pollution laws and
regulations.
From a reading of that provision, it would appear therefore that prior to the passage of
the Mining Act, the Pollution Adjudication Board had jurisdiction to act on pollution-related
matters in the mining business. With the effectivity of the Mining Act and in congruence
with its Sec. 115 (i.e., Repealing and Amending Clause), the power to impose measures
against violations of environmental policies by mining operators is now vested on the
mines regional director. Be that as it may, we are constrained to enunciate that the PAB
had no authority to issue the challenged Order dated 23 April 1997. More so, respondent
PAB as petitioner argued and We note, had remained perplexingly silent on the matter for
almost six (6) years from July 1991 when MMC ceased to make its deposits up to April
1997 when respondent PAB precipitately issued the Order requiring MMC to pay its
arrears in deposits to the ETF. And PAB, apparently oblivious to MMCs economic
quandary had issued said Order ex-parte without hearing or notice.
xxx
As a general rule, the adjudication of pollution cases pertains to the Pollution Adjudication
another forum, as in the instant petition.
Thus under Republic Act No. 7942 and its implementing rules and regulations, the mines
regional director, in consultation with the Environmental Management Bureau (italics ours),
is specifically mandated to carry out and make effective the declared national policy that
the State shall promote the rational exploration, development, utilization and conservation
of all mineral resources in public and private lands within the territory and exclusive
economic zone of the Republic of the Philippines, through the combined efforts of
government and the private sector in order to enhance national growth and protect the
rights of affected communities. (Sec. 2, R.A. 7942).
Under this expansive authority, the Mines Regional Director, by virtue of this special law,
has the primary responsibility to protect the communities surrounding a mining site from
the deleterious effects of pollutants emanating from the dumping of tailing wastes from the
surrounding areas. Thus, in the exercise of its express powers under this special law, the
authority of the Mines Regional Director to impose appropriate protective and/or preventive
measures with respect to pollution cases within mining operations is perforce,
implied. Otherwise, the special law granting this authority may well be relegated to a mere
paper tiger talking protection but allowing pollution.
It bears mention that the Pollution Adjudication Board has the power to issue an ex-parte
order when there is prima facie evidence of an establishment exceeding the allowable
standards set by the anti-pollution laws of the country. (Pollution Adjudication Board v.
Court of Appeals, et al., 195 SCRA 112). However, with the passage of R.A. 7942, insofar
as the regulation, monitoring and enforcement of anti-pollution laws are concerned with
respect to mining establishments, the Mines Regional Director has a broad grant of power
and authority. Clearly, pollution-related issues in mining operations are addressed to the
Mines Regional Director, not the Pollution Adjudication Board.
This being the case, the questioned Order dated 23 April 1997 requiring MMC to pay its
arrears in deposits was beyond the power and authority of the Pollution Adjudication Board
to issue and as such, petitioner may seek appropriate injunctive relief from the court. Thus,
certiorari lies against public respondent PAB. [16]
The Court of Appeals likewise ruled that the obligation of MMC to contribute to the ETF
of the CBRP ceased inasmuch as the latter discontinued dumping tailings into the Bay and
the actual funds in the ETF are sufficient to rehabilitate the Bay. It ratiocinated thus:
In the instant case, it is of record that petitioner MMC undertakes its obligation to provide
for the rehabilitation of the Bay waters. This obligation, through its monetary contribution to
the ETF, is however anchored on its continuing disposal of the mines tailings waste into
the Bay. Hence, since it ceased its mining operations in the affected area as of July 1991
and had not been discharging any tailings wastes since then, its consequent duty to
rehabilitate the polluted waters, if any, no longer exists.
xxx
Be that as it may, this Court observes that out of the approximate sum of thirty-two (32)
million pesos contributed by the petitioner to the ETF there is admittedly an existing
estimated balance of fourteen (14) million pesos in the Fund. For its part, petitioner does
not renege on its obligation to rehabilitate and in fact undertakes to continue the
rehabilitation process until its completion within two (2) years time and which would only
cost six (6) million pesos. Thus, as petitioner convincingly argued and which respondent
unsatisfactorily rebuked, the existing fourteen (14) million pesos in the ETF is more than
enough to complete the rehabilitation project. (TSN, Hearing dated 15 September 1997, at
pp. 56 to 62, Rollo).
xxx. Without much ado, the Court concurs with the finding that to demand a daily deposit of
thirty thousand (P30, 000.00) pesos even if the root of the obligation, that is, the dumping
of tailings waste, had ceased to exist, is indubitably of a herculean and onerous burden on
the part of petitioner amounting to a deprivation of its property and a denial of its right to
due process.[17]
Unsatisfied, the OSG argues that the Philippine Mining Act of 1995 did not amend or
repeal the provisions of Republic Act No. 3931, as amended by Presidential Decree No. 984
(otherwise known as the National Pollution Control Decree of 1976); that the Mines Regional
Director has no power over areas outside mining installations and over areas which are not
part of the mining or quarrying operations such as Calancan Bay; that the powers of the
Mines Regional Director cannot be exercised to the exclusion of other government agencies;
that the jurisdiction of a Mines Regional Director with respect to anti-pollution laws is limited
to practices committed within the confines of a mining or quarrying installation; that the
dumping of mine tailings into Calancan Bay occurred long before the effectivity of the
Philippine Mining Act and that MMC cannot hide under cover of this new law. The OSG
further argues that the portion of the Order of May 13, 1988, setting the period of time within
which MMC shall pay P30,000.00 per day, which is during the efficacy of the restraining
order was never questioned or appealed by MMC. Finally, the OSG argues that PAB did not
violate MMCs right to due process by the issuance of the Order dated April 23, 1988 without
notice and hearing as it was simply requiring MMC to comply with an obligation in an Order
which has long become final and executory.
In the context of the established facts, the issue that actually emerges is: Has the PAB
under RA 3931 as amended by PD 984 (National Pollution Control Decree of 1976) been
divested of its authority to try and hear pollution cases connected with mining operations by
virtue of the subsequent enactment of RA 7942 (Philippine Mining Act of 1995)? As
mentioned earlier, the PAB took cognizance and ruled on the letter-complaint (for violation
of PD 984 and its implementing rules and regulations) filed against MMC by Marinduque
Mayor Wilfredo Red. In the subject Order dated April 23, 1997, the PAB ruled that MMC
should pay its arrears in deposits to the ETF of the CBRP computed from the day it stopped
dumping and paying on July 1, 1991 up to the lifting of the Order of the Office of the President
dated May 13, 1988 on February 5, 1993.
The answer is in the negative. We agree with the Solicitor General that the Court of
Appeals committed reversible error in ruling that the PAB had no authority to issue the Order
dated April 23, 1997.
Republic Act No. 3931 (An Act Creating The National Water And Air Pollution Control
Commission) was passed in June 18, 1964 to maintain reasonable standards of purity for
the waters and air of the country with their utilization for domestic, agricultural, industrial and
other legitimate purposes. Said law was revised in 1976 by Presidential Decree No. 984
(Providing For The Revision Of Republic Act No. 3931, Commonly Known As The Pollution
Control Law, And For Other Purposes) to strengthen the National Pollution Control
Commission to best protect the people from the growing menace of environmental
pollution. Subsequently, Executive Order No. 192, s. 1987 (The Reorganization Act of the
DENR) was passed. The internal structure, organization and description of the functions
of the new DENR, particularly the Mines and Geosciences Bureau, reveals no provision
pertaining to the resolution of cases involving violations of the pollution laws. [18] The Mines
and Geo-Sciences Bureau was created under the said EO 192 to absorb the functions of
the abolished Bureau of Mines and Geo-Sciences, Mineral Reservations Development
Board and the Gold Mining Industry Development Board to, among others, recommend
policies, regulations and programs pertaining to mineral resources development; assist in
the monitoring and evaluation of the Bureaus programs and projects; and to develop and
promulgate standards and operating procedures on mineral resources development.[19]
On the other hand, the PAB was created and granted under the same EO 192 broad
powers to adjudicate pollution cases in general. Thus,
SEC. 19. Pollution Adjudication Board. There is hereby created a Pollution Adjudication
Board under the Office of the Secretary. The Board shall be composed of the Secretary as
Chairman, two (2) Undersecretaries as may be designated by the Secretary, the Director
of Environmental management, and three (3) others to be designated by the Secretary as
members. The Board shall assume the powers and functions of the
Commission/Commissioners of the National Pollution Control Commission with respect to
the adjudication of pollution cases under Republic Act 3931 and Presidential Decree 984,
particularly with respect to Section 6 letters e, f, g, j, k, and p of P.D. 984. The
Environmental Management Bureau shall serve as the Secretariat of the Board. These
powers and functions may be delegated to the regional offices of the Department in
accordance with rules and regulations to be promulgated by the Board. [20]
Section 6 letters e, f, g, j, k, and p of PD 984 referred to above are quoted as follows:
SEC. 6. Powers and Functions. The Commission shall have the following powers and
functions:
(e) Issue orders or decision to compel compliance with the provisions of this
Decree and its implementing rules and regulations only after proper notice
and hearing.
 (f) Make, alter or modify orders requiring the discontinuance of pollution
specifying the conditions and the time within which such discontinuance must
be accomplished.
(g) Issue, renew, or deny permits, under such conditions as it may determine to
be reasonable, for the prevention and abatement of pollution, for the
discharge of sewage, industrial waste, or for the installation or operation of
sewage works and industrial disposal system or parts thereof: Provided,
however, That the Commission, by rules and regulations, may require
subdivisions, condominium, hospitals, public buildings and other similar
human settlements to put up appropriate central sewerage system and
sewage treatment works, except that no permits shall be required to any
sewage works or changes to or extensions of existing works that discharge
only domestic or sanitary wastes from a singles residential building provided
with septic tanks or their equivalent. The Commission may impose
reasonable fees and charges for the issuance or renewal of all permits
required herein.
(h)
(i)
(j) Serve as arbitrator for the determination of reparations, or restitution of the
damages and losses resulting from pollution.
(k) Deputize in writing or request assistance of appropriate government agencies
or instrumentalities for the purpose of enforcing this Decree and its
implementing rules and regulations and the orders and decisions of the
Commission.
(l)
(m)
(n)
(o)
(p) Exercise such powers and perform such other functions as may be necessary
to carry out its duties and responsibilities under this Decree.
Section 7(a) of P.D. No. 984 further provides in part:
Sec. 7(a) Public Hearing. Public hearing shall be conducted by the Commissioner, Deputy
Commissioner or any senior official duly designated by the Commissioner prior to issuance
or promulgation of any order or decision by the Commissioner requiring the discontinuance
of discharge of sewage, industrial wastes and other wastes into the water, air or land
resources of the Philippines as provided in the Decree: provided, that whenever the
Commission finds a prima facie evidence that the discharged sewage or wastes are of
immediate threat to life, public health, safety or Welfare, or to animal or plant life, or
exceeds the allowable standards set by the Commission, the Commissioner may issue
and ex-parte order directing the discontinuance of the same or the temporary suspension
or cessation of operation of the establishment or person generating such sewage or
wastes without the necessity of a prior public hearing. x x x . (underscoring supplied).
The ruling of the Court of Appeals that the PAB has been divested of authority to act
on pollution-related matters in mining operations is anchored on the following provisions
of RA 7942 (Philippine Mining Act of 1995):
SEC. 67. Power to Issue Orders. The mines regional director shall, in consultation with the
Environmental Management Bureau, forthwith or within such time as specified in his order,
require the contractor to remedy any practice connected with mining or quarrying
operations, which is not in accordance with safety and anti-pollution laws and
regulations. In case of imminent danger to life or property, the mines regional director may
summarily suspend the mining or quarrying operations until the danger is removed, or
appropriate measures are taken by the contractor or permittee.
And
SEC. 115. Repealing and Amending Clause. All laws, executive orders, presidential
decrees, rules and regulations, or parts thereof which are inconsistent with any of the
provisions of this Act are hereby repealed or amended accordingly.
The other provisions in Chapter XI on Safety and Environmental Protection found in RA 7942
promote the safe and sanitary upkeep of mining areas to achieve waste-free and efficient
mine development with particular concern for the physical and social rehabilitation of areas
and communities affected by mining activities [21], without however, arrogating unto the mines
regional director any adjudicative responsibility.
From a careful reading of the foregoing provisions of law, we hold that the provisions
of RA 7942 do not necessarily repeal RA 3931, as amended by PD 984 and EO 192. RA
7942 does not contain any provision which categorically and expressly repeals the
provisions of the Pollution Control Law. Neither could there be an implied repeal. It is well-
settled that repeals of laws by implication are not favored and that courts must generally
assume their congruent application. Thus, it has been held:
The two laws must be absolutely incompatible, and a clear finding thereof must surface,
before the inference of implied repeal may be drawn. The rule is expressed in the
maxim, interpretare et concordare leqibus est optimus interpretendi, i.e., every
statute must be so interpreted and brought into accord with other laws aas to form a
uniform system of jurisprudence.The fundament is that the legislature should be presumed
to have known the existing laws on the subject and not have enacted conflicting
statutes. Hence, all doubts must be resolved against any implied repeal, and all efforts
should be exerted in order to harmonize and give effect to all laws on the subject. [22]
There is no irreconcilable conflict between the two laws. Section 19 of EO 192 vested
the PAB with the specific power to adjudicate pollution cases in general. Sec. 2, par. (a) of
PD 984 defines the term pollution as referring to any alteration of the physical, chemical and
biological properties of any water, air and/or land resources of the Philippines , or any
discharge thereto of any liquid, gaseous or solid wastes as will or is likely to create or to
render such water, air and land resources harmful, detrimental or injurious to public health,
safety or welfare or which will adversely affect their utilization for domestic, commercial,
industrial, agricultural, recreational or other legitimate purposes.
On the other hand, the authority of the mines regional director is complementary to
that of the PAB. Section 66 of RA 7942 gives the mines regional director exclusive
jurisdiction over the safety inspection of all installations, surface or underground in mining
operations. Section 67 thereof vests upon the regional director power to issue orders
requiring a contractor to remedy any practice connected with mining or quarrying operations
which is not in accordance with safety and anti-pollution laws and regulations; and to
summarily suspend mining or quarrying operations in case of imminent danger to life or
property. The law likewise requires every contractor to undertake an environmental
protection and enhancement program which shall be incorporated in the work program which
the contractor shall submit as an accompanying document to the application for a mineral
agreement or permit. In addition, an environmental clearance certificate is required based
on an environment impact assessment. The law also requires contractors and permittees to
rehabilitate the mined-out areas, and set up a mine rehabilitation fund. Significantly, the law
allows and encourages peoples organizations and non-governmental organizations to
participate in ensuring that contractors/permittees shall observe all the requirements of
environmental protection.
From the foregoing, it readily appears that the power of the mines regional director
does not foreclose PABs authority to determine and act on complaints filed before it. The
power granted to the mines regional director to issue orders requiring the contractor to
remedy any practice connected with mining or quarrying operations or to summarily suspend
the same in cases of violation of pollution laws is for purposes of effectively regulating and
monitoring activities within mining operations and installations pursuant to the environmental
protection and enhancement program undertaken by contractors and permittees in procuring
their mining permit. While the mines regional director has express administrative and
regulatory powers over mining operations and installations, it has no adjudicative powers
over complaints for violation of pollution control statutes and regulations.
Regional Director, with their complementary functions and through their combined efforts,
serve to accomplish the mandate of RA 3931 (National Pollution Control Decree of 1976) as
amended by PD 984 and EO 192 and that of RA 7942 (Philippine Mining Act of 1995).
That matter settled, we now go to the issue of whether the appellate court erred in
ruling that there is no basis for further payments by MMC to the Ecology Trust Fund of the
Calancan Bay Rehabilitation Project considering that MMC convincingly argued and which
respondent unsatisfactorily rebuked, the existing fourteen (14) million pesos in the ETF is
more than enough to complete the rehabilitation project. Indeed, the records reveal that
witness for PAB, Mr. Edel Genato, who is the Technical Resource person of the PAB for
the project admitted that the funds in the ETF amounting to about Fourteen Million Pesos
are more than sufficient to cover the costs of rehabilitation. Hereunder are excerpts from the
transcript of stenographic notes taken during the hearing held on September 15, 1997:
ATTY. HERNANDEZ:[27]
I would like your Honor, if the court will allow, our witness from the EBRB Your Honor
would attest to that . . .
JUSTICE JACINTO:
Is it not being taken from the 14 million?
ATTY. HERNANDEZ:

True, in Laguna Lake Development Authority vs. Court of Appeals,[23] this Court held Yes, Your Honor.
that adjudication of pollution cases generally pertains to the Pollution Adjudication Board JUSTICE RASUL:
(PAB) except where the special law provides for another forum.However, contrary to the
ruling of the Court of Appeals, RA 7942 does not provide for another forum inasmuch as RA What is his role?
7942 does not vest quasi-judicial powers in the Mines Regional Director. The authority is
vested and remains with the PAB. ATTY. HERNANDEZ:

Neither was such authority conferred upon the Panel of Arbitrators and the Mines He is our Technical Resource person Your Honor, of the project.
Adjudication Board which were created by the said law. The provisions creating the Panel
of Arbitrators for the settlement of conflicts refers to disputes involving rights to mining areas, JUSTICE RASUL:
mineral agreements or permits and those involving surface owners, occupants and claim- In other words, he has participated in the . . (inaudible)?
holders/concessionaires.[24] The scope of authority of the Panel of Arbitrators and the Mines
Adjudication Board conferred by RA 7942 clearly exclude adjudicative responsibility over ATTY. HERNANDEZ:
pollution cases. Nowhere is there vested any authority to adjudicate cases involving
violations of pollution laws and regulations in general. Yes, Your Honor.

Thus, there is no genuine conflict between RA 7942 and RA 3931 as amended by PD JUSTICE RASUL:
984 that precludes their co-existence. Moreover, it has to be conceded that there was no
intent on the part of the legislature to repeal the said law. There is nothing in the sponsorship Do you agree with him?
speech[25] of the laws proponent, Representative Renato Yap, and the deliberations that MR. EDEL GENATO:
followed thereafter, to indicate a legislative intent to repeal the pollution law. Instead, it
appears that the legislature intended to maximize the exploration, development and Yes, Your Honor, that the Calancan rehabilitation program is being funded by Marcopper
utilization of the countrys mineral resources to contribute to the achievement of national through the Ecology Trust Fund.
economic and social development with due regard to the social and environmental cost
implications relative thereto. The law intends to increase the productivity of the countrys JUSTICE RASUL:
mineral resources while at the same time assuring its sustainability through judicious use
Will the construction be finished in two years time?
and systematic rehabilitation. Henceforth, the Department of Environment and Natural
Resources as the primary government agency responsible for the conservation, MR. EDEL GENATO:
management, development, and proper use of the States mineral resources, through its
Secretary, has the authority to enter into mineral agreements on behalf of the Government Presently, under the Steering Committee of the Calancan Bay Rehabilitation, there is
upon the recommendation of the Director, and to promulgate such rules and regulations as another phase that is being proposed. Actually the two years time will definitely
may be necessary to carry out the provisions of RA 7942. [26] The PAB and the Mines cover the other phase of the . . (inaudible)
JUSTICE RASUL: Categorical answer.
Never mind that. Will the amount be sufficient to the end of the construction? JUSTICE RASUL:
MR. EDEL GENATO: You just answer, is it enough, in your own honest way, on your honor?
Yes, Sir. MR. EDEL GENATO:
JUSTICE RASUL: I think so Your Honor.[28]
Enough? We must sustain the appellate court on this point on account of the testimony of Mr.
Edel Genato. Further, we note that the Office of the President never objected nor ruled on
MR. EDEL GENATO: the manifestation dated July 9, 1991 filed by MMC that it would stop paying since it already
ceased dumping mine tailings into the bay. Still further, the order of the OP directing MMC
Yes, Sir.
to rehabilitate at a cost of P30,000.00 a day during the efficacy of the restraining order had
JUSTICE RASUL: become functus officio since MMC voluntarily stopped dumping mine tailings into the bay.

There is no more need for collecting the 30 thousand a day? . . . Do not . . . I will hold you To sum up, PAB has jurisdiction to act and rule on the letter-complaint of Mayor
for contempt . . . Wilfredo Red of Marinduque for violation of PD 984 and its implementing rules and
regulations which jurisdiction was not lost upon the passage of RA 7942 (the Philippine
ATTY. HERNANDEZ: Mining Act of 1995). Nevertheless, MMC must be declared not to have arrears in deposits
as admittedly, the ETF already has more than sufficient funds to undertake the rehabilitation
Im sorry Your Honor. of Calancan Bay.
JUSTICE RASUL: WHEREFORE, the petition is hereby partially GRANTED. The assailed Decision is
Again. REVERSED insofar as the jurisdiction of the PAB to act on the complaint is concerned; but
AFFIRMED insofar as Marcopper Mining Corporation has no arrears in deposits with the
MR. EDEL GENATO: Ecology Trust Fund of the Calancan Bay Rehabilitation Project.

Well Your Honor, I cannot comment on the amount Your Honor. SO ORDERED.

JUSTICE RASUL:
You have already made your comment, but you received some signal from your lawyer.

ATTY. HERNANDEZ:
Your Honor . . .
MR. EDEL GENATO:

No, no Your Honor. . .

JUSTICE RASUL:

My question is, do you agree with him that the 14 million fund will be enough to sustain
the construction up to the end?

MR. EDEL GENATO:

Two years?

JUSTICE RASUL:
Yes.
MR. EDEL GENATO:
Your Honor. . .
JUSTICE AMIN:

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 110120 March 16, 1994
LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,
vs.
COURT OF APPEALS, HON. MANUEL JN. SERAPIO, Presiding Judge RTC, Branch
127, Caloocan City, HON. MACARIO A. ASISTIO, JR., City Mayor of Caloocan and/or
THE CITY GOVERNMENT OF CALOOCAN, respondents.
Alberto N. Hidalgo and Ma. Teresa T. Oledan for petitioner.
The City Legal Officer & Chief, Law Department for Mayor Macario A. Asistio, Jr. and the
City Government of Caloocan.
ROMERO, J.:
The clash between the responsibility of the City Government of Caloocan to dispose off the
350 tons of garbage it collects daily and the growing concern and sensitivity to a pollution-
free environment of the residents of Barangay Camarin, Tala Estate, Caloocan City where
these tons of garbage are dumped everyday is the hub of this controversy elevated by the
protagonists to the Laguna Lake Development Authority (LLDA) for adjudication.
The instant case stemmed from an earlier petition filed with this Court by Laguna Lake
Development Authority (LLDA for short) docketed as G.R.
No. 107542 against the City Government of Caloocan, et al. In the Resolution of November
10, 1992, this Court referred G.R. No. 107542 to the Court of Appeals for appropriate
disposition. Docketed therein as CA-G.R. SP
No. 29449, the Court of Appeals, in a decision1 promulgated on January 29, 1993 ruled
that the LLDA has no power and authority to issue a cease and desist order enjoining the
dumping of garbage in Barangay Camarin, Tala Estate, Caloocan City. The LLDA now
seeks, in this petition, a review of the decision of the Court of Appeals.
The facts, as disclosed in the records, are undisputed.
On March 8, 1991, the Task Force Camarin Dumpsite of Our Lady of Lourdes Parish,
Barangay Camarin, Caloocan City, filed a letter-complaint2 with the Laguna Lake
Development Authority seeking to stop the operation of the 8.6-hectare open garbage
dumpsite in Tala Estate, Barangay Camarin, Caloocan City due to its harmful effects on
the health of the residents and the possibility of pollution of the water content of the
surrounding area.
On November 15, 1991, the LLDA conducted an on-site investigation, monitoring and test
sampling of the leachate3that seeps from said dumpsite to the nearby creek which is a
tributary of the Marilao River. The LLDA Legal and Technical personnel found that the City
Government of Caloocan was maintaining an open dumpsite at the Camarin area without
first securing an Environmental Compliance Certificate (ECC) from the Environmental
Management Bureau (EMB) of the Department of Environment and Natural Resources, as
required under Presidential Decree No. 1586, 4 and clearance from LLDA as required under
Republic Act No. 4850,5 as amended by Presidential Decree No. 813 and Executive Order
No. 927, series of 1983.6
After a public hearing conducted on December 4, 1991, the LLDA, acting on the complaint
of Task Force Camarin Dumpsite, found that the water collected from the leachate and the
receiving streams could considerably affect the quality, in turn, of the receiving waters
since it indicates the presence of bacteria, other than coliform, which may have
contaminated the sample during collection or handling. 7 On December 5, 1991, the LLDA
issued a Cease and Desist Order8 ordering the City Government of Caloocan, Metropolitan
Manila Authority, their contractors, and other entities, to completely halt, stop and desist
from dumping any form or kind of garbage and other waste matter at the Camarin
dumpsite.
The dumping operation was forthwith stopped by the City Government of Caloocan.
However, sometime in August 1992 the dumping operation was resumed after a meeting
held in July 1992 among the City Government of Caloocan, the representatives of Task
Force Camarin Dumpsite and LLDA at the Office of Environmental Management Bureau
Director Rodrigo U. Fuentes failed to settle the problem.
After an investigation by its team of legal and technical personnel on August 14, 1992, the
LLDA issued another order reiterating the December 5, 1991, order and issued an Alias
Cease and Desist Order enjoining the City Government of Caloocan from continuing its
dumping operations at the Camarin area.
On September 25, 1992, the LLDA, with the assistance of the Philippine National Police,
enforced its Alias Cease and Desist Order by prohibiting the entry of all garbage dump
trucks into the Tala Estate, Camarin area being utilized as a dumpsite.
Pending resolution of its motion for reconsideration earlier filed on September 17, 1992
with the LLDA, the City Government of Caloocan filed with the Regional Trial Court of
Caloocan City an action for the declaration of nullity of the cease and desist order with
prayer for the issuance of writ of injunction, docketed as Civil Case No. C-15598. In its
complaint, the City Government of Caloocan sought to be declared as the sole authority
empowered to promote the health and safety and enhance the right of the people in
Caloocan City to a balanced ecology within its territorial jurisdiction. 9
On September 25, 1992, the Executive Judge of the Regional Trial Court of Caloocan City
issued a temporary restraining order enjoining the LLDA from enforcing its cease and
desist order. Subsequently, the case was raffled to the Regional Trial Court, Branch 126 of
Caloocan which, at the time, was presided over by Judge Manuel Jn. Serapio of the
Regional Trial Court, Branch 127, the pairing judge of the recently-retired presiding judge.
The LLDA, for its part, filed on October 2, 1992 a motion to dismiss on the ground, among
others, that under Republic Act No. 3931, as amended by Presidential Decree No. 984,
otherwise known as the Pollution Control Law, the cease and desist order issued by it
which is the subject matter of the complaint is reviewable both upon the law and the facts
of the case by the Court of Appeals and not by the Regional Trial Court. 10
On October 12, 1992 Judge Manuel Jn. Serapio issued an order consolidating Civil Case
No. C-15598 with Civil Case No. C-15580, an earlier case filed by the Task Force Camarin
Dumpsite entitled "Fr. John Moran, et al. vs. Hon. Macario Asistio." The LLDA, however,
maintained during the trial that the foregoing cases, being independent of each other,
should have been treated separately.
On October 16, 1992, Judge Manuel Jn. Serapio, after hearing the motion to dismiss,
issued in the consolidated cases an order 11 denying LLDA's motion to dismiss and granting
the issuance of a writ of preliminary injunction enjoining the LLDA, its agent and all
persons acting for and on its behalf, from enforcing or implementing its cease and desist
order which prevents plaintiff City of Caloocan from dumping garbage at the Camarin
dumpsite during the pendency of this case and/or until further orders of the court.
On November 5, 1992, the LLDA filed a petition for certiorari, prohibition and injunction
with prayer for restraining order with the Supreme Court, docketed as G.R. No. 107542,
seeking to nullify the aforesaid order dated October 16, 1992 issued by the Regional Trial
Court, Branch 127 of Caloocan City denying its motion to dismiss.
The Court, acting on the petition, issued a Resolution12 on November 10, 1992 referring
the case to the Court of Appeals for proper disposition and at the same time, without giving
due course to the petition, required the respondents to comment on the petition and file the
same with the Court of Appeals within ten (10) days from notice. In the meantime, the
Court issued a temporary restraining order, effective immediately and continuing until
further orders from it, ordering the respondents: (1) Judge Manuel Jn. Serapio, Presiding
Judge, Regional Trial Court, Branch 127, Caloocan City to cease and desist from
exercising jurisdiction over the case for declaration of nullity of the cease and desist order
issued by the Laguna Lake Development Authority (LLDA); and (2) City Mayor of Caloocan
and/or the City Government of Caloocan to cease and desist from dumping its garbage at
the Tala Estate, Barangay Camarin, Caloocan City.
Respondents City Government of Caloocan and Mayor Macario A. Asistio, Jr. filed on
November 12, 1992 a motion for reconsideration and/or to quash/recall the temporary
restraining order and an urgent motion for reconsideration alleging that ". . . in view of the
calamitous situation that would arise if the respondent city government fails to collect 350
tons of garbage daily for lack of dumpsite (i)t is therefore, imperative that the issue be
resolved with dispatch or with sufficient leeway to allow the respondents to find alternative
solutions to this garbage problem."
On November 17, 1992, the Court issued a Resolution13 directing the Court of Appeals to
immediately set the case for hearing for the purpose of determining whether or not the
temporary restraining order issued by the Court should be lifted and what conditions, if
any, may be required if it is to be so lifted or whether the restraining order should be
maintained or converted into a preliminary injunction.
The Court of Appeals set the case for hearing on November 27, 1992, at 10:00 in the
morning at the Hearing Room, 3rd Floor, New Building, Court of Appeals. 14 After the oral
argument, a conference was set on December 8, 1992 at 10:00 o'clock in the morning
where the Mayor of Caloocan City, the General Manager of LLDA, the Secretary of DENR
or his duly authorized representative and the Secretary of DILG or his duly authorized
representative were required to appear.
It was agreed at the conference that the LLDA had until December 15, 1992 to finish its
study and review of respondent's technical plan with respect to the dumping of its garbage
and in the event of a rejection of respondent's technical plan or a failure of settlement, the
parties will submit within 10 days from notice their respective memoranda on the merits of
the case, after which the petition shall be deemed submitted for
resolution.15Notwithstanding such efforts, the parties failed to settle the dispute.
On April 30, 1993, the Court of Appeals promulgated its decision holding that: (1) the
Regional Trial Court has no jurisdiction on appeal to try, hear and decide the action for
annulment of LLDA's cease and desist order, including the issuance of a temporary
restraining order and preliminary injunction in relation thereto, since appeal therefrom is
within the exclusive and appellate jurisdiction of the Court of Appeals under Section 9, par.
(3), of Batas Pambansa Blg. 129; and (2) the Laguna Lake Development Authority has no
power and authority to issue a cease and desist order under its enabling law, Republic Act
No. 4850, as amended by P.D. No. 813 and Executive Order
No. 927, series of 1983.
The Court of Appeals thus dismissed Civil Case No. 15598 and the preliminary injunction
issued in the said case was set aside; the cease and desist order of LLDA was likewise set
aside and the temporary restraining order enjoining the City Mayor of Caloocan and/or the
City Government of Caloocan to cease and desist from dumping its garbage at the Tala
Estate, Barangay Camarin, Caloocan City was lifted, subject, however, to the condition
that any future dumping of garbage in said area, shall be in conformity with the procedure
and protective works contained in the proposal attached to the records of this case and
found on pages 152-160 of the Rollo, which was thereby adopted by reference and made
an integral part of the decision, until the corresponding restraining and/or injunctive relief is
granted by the proper Court upon LLDA's institution of the necessary legal proceedings.
Hence, the Laguna Lake Development Authority filed the instant petition for review
on certiorari, now docketed as G.R. No. 110120, with prayer that the temporary restraining
order lifted by the Court of Appeals be re-issued until after final determination by this Court
of the issue on the proper interpretation of the powers and authority of the LLDA under its
enabling law.
On July, 19, 1993, the Court issued a temporary restraining order 16 enjoining the City
Mayor of Caloocan and/or the City Government of Caloocan to cease and desist from
dumping its garbage at the Tala Estate, Barangay Camarin, Caloocan City, effective as of
this date and containing until otherwise ordered by the Court.
It is significant to note that while both parties in this case agree on the need to protect the
environment and to maintain the ecological balance of the surrounding areas of the
Camarin open dumpsite, the question as to which agency can lawfully exercise jurisdiction
over the matter remains highly open to question.
The City Government of Caloocan claims that it is within its power, as a local government
unit, pursuant to the general welfare provision of the Local Government Code, 17 to
determine the effects of the operation of the dumpsite on the ecological balance and to see
that such balance is maintained. On the basis of said contention, it questioned, from the
inception of the dispute before the Regional Trial Court of Caloocan City, the power and
authority of the LLDA to issue a cease and desist order enjoining the dumping of garbage
in the Barangay Camarin over which the City Government of Caloocan has territorial
jurisdiction.
The Court of Appeals sustained the position of the City of Caloocan on the theory that
Section 7 of Presidential Decree No. 984, otherwise known as the Pollution Control law,
authorizing the defunct National Pollution Control Commission to issue an ex-parte cease
and desist order was not incorporated in Presidential Decree No. 813 nor in Executive
Order No. 927, series of
1983. The Court of Appeals ruled that under Section 4, par. (d), of Republic Act No. 4850,
as amended, the LLDA is instead required "to institute the necessary legal proceeding
against any person who shall commence to implement or continue implementation of any
project, plan or program within the Laguna de Bay region without previous clearance from
the Authority."
The LLDA now assails, in this partition for review, the abovementioned ruling of the Court
of Appeals, contending that, as an administrative agency which was granted regulatory
and adjudicatory powers and functions by Republic Act No. 4850 and its amendatory laws,
Presidential Decree No. 813 and Executive Order No. 927, series of 1983, it is invested
with the power and authority to issue a cease and desist order pursuant to Section 4 par.
(c), (d), (e), (f) and (g) of Executive Order No. 927 series of 1983 which provides, thus:
Sec. 4. Additional Powers and Functions. The authority shall have the
following powers and functions:
xxx xxx xxx
(c) Issue orders or decisions to compel compliance with the provisions
of this Executive Order and its implementing rules and regulations only
after proper notice and hearing.
(d) Make, alter or modify orders requiring the discontinuance of
pollution specifying the conditions and the time within which such
discontinuance must be accomplished.
(e) Issue, renew, or deny permits, under such conditions as it may
determine to be reasonable, for the prevention and abatement of
pollution, for the discharge of sewage, industrial waste, or for the
installation or operation of sewage works and industrial disposal system
or parts thereof.
(f) After due notice and hearing, the Authority may also revoke,
suspend or modify any permit issued under this Order whenever the
same is necessary to prevent or abate pollution.
(g) Deputize in writing or request assistance of appropriate government
agencies or instrumentalities for the purpose of enforcing this Executive
Order and its implementing rules and regulations and the orders and
decisions of the Authority.
The LLDA claims that the appellate court deliberately suppressed and totally disregarded
the above provisions of Executive Order No. 927, series of 1983, which granted
administrative quasi-judicial functions to LLDA on pollution abatement cases.
In light of the relevant environmental protection laws cited which are applicable in this
case, and the corresponding overlapping jurisdiction of government agencies implementing
these laws, the resolution of the issue of whether or not the LLDA has the authority and
power to issue an order which, in its nature and effect was injunctive, necessarily requires
a determination of the threshold question: Does the Laguna Lake Development Authority,
under its Charter and its amendatory laws, have the authority to entertain the complaint
against the dumping of garbage in the open dumpsite in Barangay Camarin authorized by
the City Government of Caloocan which is allegedly endangering the health, safety, and
welfare of the residents therein and the sanitation and quality of the water in the area
brought about by exposure to pollution caused by such open garbage dumpsite?
The matter of determining whether there is such pollution of the environment that requires
control, if not prohibition, of the operation of a business establishment is essentially
addressed to the Environmental Management Bureau (EMB) of the DENR which, by virtue
of Section 16 of Executive Order No. 192, series of 1987, 18 has assumed the powers and
functions of the defunct National Pollution Control Commission created under Republic Act
No. 3931. Under said Executive Order, a Pollution Adjudication Board (PAB) under the
Office of the DENR Secretary now assumes the powers and functions of the National
Pollution Control Commission with respect to adjudication of pollution cases. 19
As a general rule, the adjudication of pollution cases generally pertains to the Pollution
Adjudication Board (PAB), except in cases where the special law provides for another
forum. It must be recognized in this regard that the LLDA, as a specialized administrative
agency, is specifically mandated under Republic Act No. 4850 and its amendatory laws to
carry out and make effective the declared national policy20 of promoting and accelerating
the development and balanced growth of the Laguna Lake area and the surrounding
provinces of Rizal and Laguna and the cities of San Pablo, Manila, Pasay, Quezon and
Caloocan21 with due regard and adequate provisions for environmental management and
control, preservation of the quality of human life and ecological systems, and the
prevention of undue ecological disturbances, deterioration and pollution. Under such a
broad grant and power and authority, the LLDA, by virtue of its special charter, obviously
has the responsibility to protect the inhabitants of the Laguna Lake region from the
deleterious effects of pollutants emanating from the discharge of wastes from the
surrounding areas. In carrying out the aforementioned declared policy, the LLDA is
mandated, among others, to pass upon and approve or disapprove all plans, programs,
and projects proposed by local government offices/agencies within the region, public
corporations, and private persons or enterprises where such plans, programs and/or
projects are related to those of the LLDA for the development of the region. 22
In the instant case, when the complainant Task Force Camarin Dumpsite of Our Lady of
Lourdes Parish, Barangay Camarin, Caloocan City, filed its letter-complaint before the
LLDA, the latter's jurisdiction under its charter was validly invoked by complainant on the
basis of its allegation that the open dumpsite project of the City Government of Caloocan in
Barangay Camarin was undertaken without a clearance from the LLDA, as required under
Section 4, par. (d), of Republic Act. No. 4850, as amended by P.D. No. 813 and Executive
Order No. 927. While there is also an allegation that the said project was without an
Environmental Compliance Certificate from the Environmental Management Bureau (EMB)
of the DENR, the primary jurisdiction of the LLDA over this case was recognized by the
Environmental Management Bureau of the DENR when the latter acted as intermediary at
the meeting among the representatives of the City Government of Caloocan, Task Force
Camarin Dumpsite and LLDA sometime in July 1992 to discuss the possibility of
re-opening the open dumpsite.
Having thus resolved the threshold question, the inquiry then narrows down to the
following issue: Does the LLDA have the power and authority to issue a "cease and desist"
order under Republic Act No. 4850 and its amendatory laws, on the basis of the facts
presented in this case, enjoining the dumping of garbage in Tala Estate, Barangay
Camarin, Caloocan City.
The irresistible answer is in the affirmative.
The cease and desist order issued by the LLDA requiring the City Government of
Caloocan to stop dumping its garbage in the Camarin open dumpsite found by the LLDA to
have been done in violation of Republic Act No. 4850, as amended, and other relevant
environment laws,23 cannot be stamped as an unauthorized exercise by the LLDA of
injunctive powers. By its express terms, Republic Act No. 4850, as amended by P.D. No.
813 and Executive Order No. 927, series of 1983, authorizes the LLDA to "make, alter or
modify order requiring the discontinuance or pollution." 24 (Emphasis supplied) Section 4,
par. (d) explicitly authorizes the LLDA to make whatever order may be necessary in the
exercise of its jurisdiction.
To be sure, the LLDA was not expressly conferred the power "to issue and ex-parte cease
and desist order" in a language, as suggested by the City Government of Caloocan, similar
to the express grant to the defunct National Pollution Control Commission under Section 7
of P.D. No. 984 which, admittedly was not reproduced in P.D. No. 813 and E.O. No. 927,
series of 1983. However, it would be a mistake to draw therefrom the conclusion that there
is a denial of the power to issue the order in question when the power "to make, alter or
modify orders requiring the discontinuance of pollution" is expressly and clearly bestowed
upon the LLDA by Executive Order No. 927, series of 1983.
Assuming arguendo that the authority to issue a "cease and desist order" were not
expressly conferred by law, there is jurisprudence enough to the effect that the rule
granting such authority need not necessarily be express. 25 While it is a fundamental rule
that an administrative agency has only such powers as are expressly granted to it by law, it
is likewise a settled rule that an administrative agency has also such powers as are
necessarily implied in the exercise of its express powers. 26 In the exercise, therefore, of its
express powers under its charter as a regulatory and quasi-judicial body with respect to
pollution cases in the Laguna Lake region, the authority of the LLDA to issue a "cease and
desist order" is, perforce, implied. Otherwise, it may well be reduced to a "toothless" paper
agency.
In this connection, it must be noted that in Pollution Adjudication Board v. Court of
Appeals, et al.,27 the Court ruled that the Pollution Adjudication Board (PAB) has the power
to issue an ex-parte cease and desist order when there isprima facie evidence of an
establishment exceeding the allowable standards set by the anti-pollution laws of the
country. The ponente, Associate Justice Florentino P. Feliciano, declared:
Ex parte cease and desist orders are permitted by law and regulations
in situations like that here presented precisely because stopping the
continuous discharge of pollutive and untreated effluents into the rivers
and other inland waters of the Philippines cannot be made to wait until
protracted litigation over the ultimate correctness or propriety of such
orders has run its full course, including multiple and sequential appeals
such as those which Solar has taken, which of course may take several
years. 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.
...
The immediate response to the demands of "the necessities of protecting vital public
interests" gives vitality to the statement on ecology embodied in the Declaration of
Principles and State Policies or the 1987 Constitution. Article II, Section 16 which provides:
The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony
of nature.
As a constitutionally guaranteed right of every person, it carries the correlative duty of non-
impairment. This is but in consonance with the declared policy of the state "to protect and
promote the right to health of the people and instill health consciousness among them." 28 It
is to be borne in mind that the Philippines is party to the Universal Declaration of Human
Rights and the Alma Conference Declaration of 1978 which recognize health as a
fundamental human right. 29
The issuance, therefore, of the cease and desist order by the LLDA, as a practical matter
of procedure under the circumstances of the case, is a proper exercise of its power and
authority under its charter and its amendatory laws. Had the cease and desist order issued
by the LLDA been complied with by the City Government of Caloocan as it did in the first
instance, no further legal steps would have been necessary.
The charter of LLDA, Republic Act No. 4850, as amended, instead of conferring upon the
LLDA the means of directly enforcing such orders, has provided under its Section 4 (d) the
power to institute "necessary legal proceeding against any person who shall commence to
implement or continue implementation of any project, plan or program within the Laguna
de Bay region without previous clearance from the LLDA."
Clearly, said provision was designed to invest the LLDA with sufficiently broad powers in
the regulation of all projects initiated in the Laguna Lake region, whether by the
government or the private sector, insofar as the implementation of these projects is
concerned. It was meant to deal with cases which might possibly arise where decisions or
orders issued pursuant to the exercise of such broad powers may not be obeyed, resulting
in the thwarting of its laudabe objective. To meet such contingencies, then the writs
of mandamus and injunction which are beyond the power of the LLDA to issue, may be
sought from the proper courts.
Insofar as the implementation of relevant anti-pollution laws in the Laguna Lake region and
its surrounding provinces, cities and towns are concerned, the Court will not dwell further
on the related issues raised which are more appropriately addressed to an administrative
agency with the special knowledge and expertise of the LLDA.

WHEREFORE, the petition is GRANTED. The temporary restraining order issued by the
Court on July 19, 1993 enjoining the City Mayor of Caloocan and/or the City Government
of Caloocan from dumping their garbage at the Tala Estate, Barangay Camarin, Caloocan
City is hereby made permanent.

SO ORDERED.
 THIRD DIVISION
JOHN ERIC LONEY, G.R. No. 152644
STEVEN PAUL REID and
PEDRO B. HERNANDEZ,
Petitioners, Present:
QUISUMBING, J., Chairperson,
CARPIO,
- versus - CARPIO MORALES, and
TINGA, JJ.
PEOPLE OF THE PHILIPPINES, Promulgated:
Respondent. February 10, 2006
x--------------------------------------------------x
DECISION
CARPIO, J.:
The Case
This is a petition for review[1] of the Decision[2] dated 5 November 2001 and the Resolution
dated 14 March 2002 of the Court of Appeals. The 5 November 2001 Decision affirmed the
ruling of the Regional Trial Court, Boac, Marinduque, Branch 94, in a suit to quash
Informations filed against petitioners John Eric Loney, Steven Paul Reid, and Pedro B.
Hernandez (petitioners). The 14 March 2002 Resolution denied petitioners motion for
reconsideration.
The Facts
Petitioners John Eric Loney, Steven Paul Reid, and Pedro B. Hernandez are the President
and Chief Executive Officer, Senior Manager, and Resident Manager for Mining Operations,
respectively, of Marcopper Mining Corporation (Marcopper), a corporation engaged in
mining in the province of Marinduque.
Marcopper had been storing tailings[3] from its operations in a pit in Mt. Tapian, Marinduque.
At the base of the pit ran a drainage tunnel leading to the Boac and Makalupnit rivers. It
appears that Marcopper had placed a concrete plug at the tunnels end. On 24 March 1994,
tailings gushed out of or near the tunnels end. In a few days, the Mt. Tapian pit had
discharged millions of tons of tailings into the Boac and Makalupnit rivers.
In August 1996, the Department of Justice separately charged petitioners in the Municipal
Trial Court of Boac, Marinduque (MTC) with violation of Article 91(B), [4] sub-paragraphs 5
and 6 of Presidential Decree No. 1067 or the Water Code of the Philippines (PD
1067),[5] Section 8[6] of Presidential Decree No. 984 or the National Pollution Control Decree
of 1976 (PD 984),[7] Section 108[8] of Republic Act No. 7942 or the Philippine Mining Act of
1995 (RA 7942),[9] and Article 365[10] of the Revised Penal Code (RPC) for Reckless
Imprudence Resulting in Damage to Property.[11]
Petitioners moved to quash the Informations on the following grounds: (1) the Informations
were duplicitous as the Department of Justice charged more than one offense for a single
act; (2) petitioners John Eric Loney and Steven Paul Reid were not yet officers of Marcopper
when the incident subject of the Informations took place; and (3) the Informations contain
allegations which constitute legal excuse or justification.
The Ruling of the MTC
In its Joint Order of 16 January 1997 (Joint Order), the MTC[12] initially deferred ruling on
petitioners motion for lack of indubitable ground for the quashing of the [I]nformations x x x.
The MTC scheduled petitioners arraignment in February 1997. However, on petitioners
motion, the MTC issued a Consolidated Order on 28 April 1997(Consolidated Order),
granting partial reconsideration to its Joint Order and quashing the Informations for violation
of PD 1067 and PD 984. The MTC maintained the Informations for violation of RA 7942 and
Article 365 of the RPC. The MTC held:
[T]he 12 Informations have common allegations of pollutants pointing to
mine tailings which were precipitately discharged into the Makulapnit and
Boac Rivers due to breach caused on the Tapian drainage/tunnel due to
negligence or failure to institute adequate measures to prevent pollution
and siltation of the Makulapnit and Boac River systems, the very term
and condition required to be undertaken under the Environmental
Compliance Certificate issued on April 1, 1990.
The allegations in the informations point to same set [sic] of evidence
required to prove the single fact of pollution constituting violation of the
Water Code and the Pollution Law which are the same set of evidence
necessary to prove the same single fact of pollution, in proving the
elements constituting violation of the conditions of ECC, issued pursuant
to the Philippine Mining Act. In both instances, the terms and conditions
of the Environmental Compliance Certificate were allegedly violated. In
other words, the same set of evidence is required in proving violations of
the three (3) special laws.
After carefully analyzing and weighing the contending arguments of the
parties and after taking into consideration the applicable laws and
jurisprudence, the Court is convinced that as far as the three (3) aforesaid
laws are concerned, only the Information for [v]iolation of Philippine
Mining Act should be maintained. In other words, the Informations for
[v]iolation of Anti-Pollution Law (PD 984) and the Water Code (PD 1067)
should be dismissed/quashed because the elements constituting the
aforesaid violations are absorbed by the same elements which constitute
violation of the Philippine Mining Act (RA 7942).
Therefore, x x x Criminal Case[] Nos. 96-44, 96-45 and 96-46 for
[v]iolation of the Water Code; and Criminal Case[] Nos. 96-47, 96-48 and
96-49 for [v]iolation of the Anti-Pollution Law x x x are hereby
DISMISSED or QUASHED and Criminal Case[] Nos. 96-50, 96-51 and
96-52 for [v]iolation of the Philippine Mining Act are hereby retained to
be tried on the merits.
The Information for [v]iolation of Article 365 of the Revised Penal Code
should also be maintained and heard in a full blown trial because the
 common accusation therein is reckless imprudence resulting to
[sic] damage to property. It is the damage to property which the law
punishes not the negligent act of polluting the water system. The
prosecution for the [v]iolation of Philippine Mining Act is not a bar to the
prosecution for reckless imprudence resulting to [sic] damage to
property.[13]
The MTC re-scheduled petitioners arraignment on the remaining charges on 28 and 29 May
1997. In the hearing of 28 May 1997, petitioners manifested that they were willing to be
arraigned on the charge for violation of Article 365 of the RPC but not on the charge for
violation of RA 7942 as they intended to appeal the Consolidated Order in so far as it
maintained the Informations for that offense. After making of record petitioners
manifestation, the MTC proceeded with the arraignment and ordered the entry of not guilty
pleas on the charges for violation of RA 7942 and Article 365 of the RPC.
Petitioners subsequently filed a petition for certiorari with the Regional Trial Court, Boac,
Marinduque, assailing that portion of the Consolidated Order maintaining the Informations
for violation of RA 7942. Petitioners petition was raffled to Branch 94. For its part, public
respondent filed an ordinary appeal with the same court assailing that portion of the
Consolidated Order quashing the Informations for violation of PD 1067 and PD 984. Public
respondents appeal was raffled to Branch 38. On public respondents motion, Branch 38
ordered public respondents appeal consolidated with petitioners petition in Branch 94.
The Ruling of Branch 94
In its Resolution[14] of 20 March 1998, Branch 94 granted public respondents appeal but
denied petitioners petition. Branch 94 set aside the Consolidated Order in so far as it
quashed the Informations for violation of PD 1067 and PD 984 and ordered those charges
reinstated. Branch 94 affirmed the Consolidated Order in all other respects. Branch 94 held:
After a careful perusal of the laws concerned, this court is of the opinion
that there can be no absorption by one offense of the three other
offenses, as [the] acts penalized by these laws are separate and distinct
from each other. The elements of proving each violation are not the same
with each other. Concededly, the single act of dumping mine tailings
which resulted in the pollution of the Makulapnit and Boac rivers was the
basis for the information[s] filed against the accused each charging a
distinct offense. But it is also a well-established rule in this jurisdiction
that
A single act may offend against two or more entirely
distinct and unrelated provisions of law, and if one
provision requires proof of an additional fact or
element which the other does not, an acquittal or
conviction or a dismissal of the information under one
does not bar prosecution under the other. x x x.
xxxx
[T]he different laws involve cannot absorb one another as the elements
of each crime are different from one another. Each of these laws require
[sic] proof of an additional fact or element which the other does not
although they stemmed from a single act.[15]
Petitioners filed a petition for certiorari with the Court of Appeals alleging that Branch 94
acted with grave abuse of discretion because (1) the Informations for violation of PD 1067,
PD 984, RA 7942 and the Article 365 of the RPC proceed from and are based on a single
act or incident of polluting the Boac and Makalupnit rivers thru dumping of mine tailings and
(2) the duplicitous nature of the Informations contravenes the ruling in People v.
Relova.[16]Petitioners further contended that since the acts complained of in the charges for
violation of PD 1067, PD 984, and RA 7942 are the very same acts complained of in the
charge for violation of Article 365 of the RPC, the latter absorbs the former. Hence,
petitioners should only be prosecuted for violation of Article 365 of the RPC. [17]
The Ruling of the Court of Appeals
In its Decision of 5 November 2001, the Court of Appeals affirmed Branch 94s ruling. The
appellate court held:
The records of the case disclose that petitioners filed a motion to quash
the aforementioned Informations for being duplicitous in nature. Section
3 of Rule 117 of the Revised Rules of Court specifically provides the
grounds upon which an information may be quashed. x x x
xxxx
[D]uplicity of Informations is not among those included in x x x [Section
3, Rule 117].
xxxx
We now go to petitioners claim that the resolution of the public
respondent contravened the doctrine laid down in People vs. Relova for
being violative of their right against multiple prosecutions.
In the said case, the Supreme Court found the Peoples argument with
respect to the variances in the mens rea of the two offenses being
charged to be correct. The Court, however, decided the case in the
context of the second sentence of Article IV (22) of the 1973 Constitution
(now under Section 21 of Article III of the 1987 Constitution), rather than
the first sentence of the same section. x x x
xxxx
[T]he doctrine laid down in the Relova case does not squarely apply to
the case at Bench since the Informations filed against the petitioners are
for violation of four separate and distinct laws which are national in
character.
xxxx
This Court firmly agrees in the public respondents
understanding that the laws by which the petitioners have been [charged]
could not possibly absorb one another as the elements of each crime are
different. Each of these laws require [sic] proof of an additional fact or
 element which the other does not, although they stemmed from a single
act. x x x
xxxx
[T]his Court finds that there is not even the slightest indicia of evidence
that would give rise to any suspicion that public respondent acted with
grave abuse of discretion amounting to excess or lack of jurisdiction in
reversing the Municipal Trial Courts quashal of the Informations against
the petitioners for violation of P.D. 1067 and P.D. 984. This Court equally
finds no error in the trial courts denial of the petitioners motion to quash
R.A. 7942 and Article 365 of the Revised Penal Code. [18]
Petitioners sought reconsideration but the Court of Appeals denied their motion in its
Resolution of 14 March 2002.
Petitioners raise the following alleged errors of the Court of Appeals:
I. THE COURT OF APPEALS COMMITTED A R[E]VERSIBLE ERROR IN
MAINTAINING THE CHARGES FOR VIOLATION OF THE PHILIPPINE
MINING ACT (R.A. 7942) AND REINSTATING THE CHARGES FOR
VIOLATION OF THE WATER CODE (P.D. 1067) AND POLLUTION
CONTROL LAW (P.D. 984), CONSIDERING THAT:
A. THE INFORMATIONS FOR VIOLATION OF THE
WATER CODE (P.D. 1067), THE POLLUTION
CONTROL LAW (P.D. 984), THE PHILIPPINE
MINING ACT (R.A. 7942) AND ARTICLE 365 OF
THE REVISED PENAL CODE PROCEED FROM
AND ARE BASED ON A SINGLE ACT OR
INCIDENT OF POLLUTING THE BOAC
AND MAKULAPNIT RIVERS THRU DUMPING OF
MINE TAILINGS.
B. THE PROSECUTION OF PETITIONERS FOR
DUPLICITOUS AND MULTIPLE CHARGES
CONTRAVENES THE DOCTRINE LAID DOWN
IN PEOPLE VS. RELOVA, 148 SCRA 292 [1986]
THAT AN ACCUSED SHOULD NOT BE
HARASSED BY MULTIPLE PROSECUTIONS FOR
OFFENSES WHICH THOUGH DIFFERENT FROM
ONE ANOTHER ARE NONETHELESS EACH
CONSTITUTED BY A COMMON SET OR
OVERLAPPING SETS OF TECHNICAL
ELEMENTS.
II. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN
RULING THAT THE ELEMENT OF LACK OF NECESSARY OR
ADEQUATE PRECAUTION, NEGLIGENCE, RECKLESSNESS AND
IMPRUDENCE UNDER ARTICLE 356 [sic] OF THE REVISED PENAL
CODE DOES NOT FALL WITHIN THE AMBIT OF ANY OF THE
ELEMENTS OF THE PERTINENT PROVISIONS OF THE WATER
CODE, POLLUTION CONTROL LAW AND PHILIPPINE MINING ACT
CHARGED AGAINST PETITIONERS[.][19]
The Issues
The petition raises these issues:
(1) Whether all the charges filed against petitioners except one should be
quashed for duplicity of charges and only the charge for Reckless
Imprudence Resulting in Damage to Property should stand; and
(2) Whether Branch 94s ruling, as affirmed by the Court of Appeals,
contravenes People v. Relova.
The Ruling of the Court
The petition has no merit.
No Duplicity of Charges in the Present Case
Duplicity of charges simply means a single complaint or information charges more than one
offense, as Section 13 of Rule 110[20] of the 1985 Rules of Criminal Procedure clearly states:
Duplicity of offense. A complaint or information must charge but
one offense, except only in those cases in which existing laws prescribe a
single punishment for various offenses.
In short, there is duplicity (or multiplicity) of charges when a single Information charges
more than one offense.[21]
Under Section 3(e), Rule 117[22] of the 1985 Rules of Criminal Procedure, duplicity
of offenses in a single information is a ground to quash the Information. The Rules prohibit
the filing of such Information to avoid confusing the accused in preparing his
defense.[23] Here, however, the prosecution charged each petitioner with four offenses,
with each Information charging only one offense. Thus, petitioners erroneously invoke
duplicity of charges as a ground to quash the Informations. On this score alone, the petition
deserves outright denial.
The Filing of Several Charges is Proper
Petitioners contend that they should be charged with one offense only Reckless Imprudence
Resulting in Damage to Property because (1) all the charges filed against them proceed
from and are based on a single act or incident of polluting the Boac and Makalupnit rivers
thru dumping of mine tailings and (2) the charge for violation of Article 365 of the RPC
absorbs the other charges since the element of lack of necessary or adequate protection,
negligence, recklessness and imprudence is common among them.
The contention has no merit.
As early as the start of the last century, this Court had ruled that a single act or
incident might offend against two or more entirely distinct and unrelated provisions of law
thus justifying the prosecution of the accused for more than one offense. [24] The only limit to
this rule is the Constitutional prohibition that no person shall be twice put in jeopardy of
punishment for the same offense.[25] In People v. Doriquez,[26] we held that two (or more)
offenses arising from the same act are not the same
x x x if one provision [of law] requires proof of an additional fact or
element which the other does not, x x x. Phrased elsewise, where two
different laws (or articles of the same code) define two crimes, prior
jeopardy as to one of them is no obstacle to a prosecution of the other,
although both offenses arise from the same facts, if each crime
 involves some important act which is not an essential element of
the other.[27] (Emphasis supplied)
Here, double jeopardy is not at issue because not all of its elements are present. [28] However,
for the limited purpose of controverting petitioners claim that they should be charged with
one offense only, we quote with approval Branch 94s comparative analysis of PD 1067, PD
984, RA 7942, and Article 365 of the RPC showing that in each of these laws on which
petitioners were charged, there is one essential element not required of the others, thus:
In P.D. 1067 (Philippines Water Code), the additional element to be
established is the dumping of mine tailings into the Makulapnit River and
the entire Boac River System without prior permit from the authorities
concerned. The gravamen of the offense here is the absence of the
proper permit to dump said mine tailings. This element is not
indispensable in the prosecution for violation of PD 984 (Anti-Pollution
Law), [RA] 7942 (Philippine Mining Act) and Art. 365 of the Revised Penal
Code. One can be validly prosecuted for violating the Water Code even
in the absence of actual pollution, or even [if] it has complied with the
terms of its Environmental Compliance Certificate, or further, even [if] it
did take the necessary precautions to prevent damage to property.
In P.D. 984 (Anti-Pollution Law), the additional fact that must be proved
is the existence of actual pollution. The gravamen is the pollution itself. In
the absence of any pollution, the accused must be exonerated under this
law although there was unauthorized dumping of mine tailings or lack of
precaution on its part to prevent damage to property.
In R.A. 7942 (Philippine Mining Act), the additional fact that must be
established is the willful violation and gross neglect on the part of the
accused to abide by the terms and conditions of the Environmental
Compliance Certificate, particularly that the Marcopper should ensure the
containment of run-off and silt materials from reaching the Mogpog and
Boac Rivers.If there was no violation or neglect, and that the accused
satisfactorily proved [sic] that Marcopper had done everything to ensure
containment of the run-off and silt materials, they will not be liable. It does
not follow, however, that they cannot be prosecuted under the Water
Code, Anti-Pollution Law and the Revised Penal Code because violation
of the Environmental Compliance Certificate is not an essential element
of these laws.
On the other hand, the additional element that must be established in Art.
365 of the Revised Penal Code is the lack of necessary or adequate
precaution, negligence, recklessness and imprudence on the part of the
accused to prevent damage to property. This element is not required
under the previous laws. Unquestionably, it is different from dumping of
mine tailings without permit, or causing pollution to the Boac river system,
much more from violation or neglect to abide by the terms of the
Environmental Compliance Certificate. Moreover, the offenses punished
by special law are mal[a] prohibita in contrast with those punished by the
Revised Penal Code which are mala in se.[29]
Consequently, the filing of the multiple charges against petitioners, although based
on the same incident, is consistent with settled doctrine.
On petitioners claim that the charge for violation of Article 365 of the RPC absorbs the
charges for violation of PD 1067, PD 984, and RA 7942, suffice it to say that a mala in
se felony (such as Reckless Imprudence Resulting in Damage to Property) cannot
absorb mala prohibita crimes (such as those violating PD 1067, PD 984, and RA 7942).
What makes the former a felony is criminal intent (dolo) or negligence (culpa); what makes
the latter crimes are the special laws enacting them.
People v. Relova not in Point
Petitioners reiterate their contention in the Court of Appeals that their prosecution
contravenes this Courts ruling in People v. Relova. In particular, petitioners cite the Courts
statement in Relova that the law seeks to prevent harassment of the accused by multiple
prosecutions for offenses which though different from one another are nonetheless each
constituted by a common set or overlapping sets of technical elements.
This contention is also without merit.
The issue in Relova is whether the act of the Batangas Acting City Fiscal in
charging one Manuel Opulencia (Opulencia) with theft of electric power under the RPC, after
the latter had been acquitted of violating a City Ordinance penalizing the unauthorized
installation of electrical wiring, violated Opulencias right against double jeopardy. We held
that it did, not because the offenses punished by those two laws were the same but because
the act giving rise to the charges was punished by an ordinance and a national statute, thus
falling within the proscription against multiple prosecutions for the same act under the
second sentence in Section 22, Article IV of the 1973 Constitution, now Section 21, Article
III of the 1987 Constitution. We held:
The petitioner concludes that:
The unauthorized installation punished by the ordinance
[of Batangas City] is not the same as theft of electricity [under the
Revised Penal Code]; that the second offense is not an attempt to
commit the first or a frustration thereof and that the second offense is
not necessarily included in the offense charged in the first information.
The above argument[ ] made by the petitioner [is] of course
correct. This is clear both from the express terms of the constitutional
provision involved which reads as follows:
No person shall be twice put in jeopardy of punishment for the
same offense. If an act is punished by a law and an ordinance, conviction
or acquittal under either shall constitute a bar to another prosecution for
the same act. x x x
and from our case law on this point. The basic difficulty with the
petitioners position is that it must be examined, not under the terms
of the first sentence of Article IV (22) of the 1973 Constitution, but
rather under the second sentence of the same section. The first
sentence of Article IV (22) sets forth the general rule: the constitutional
protection against double jeopardy is not available where the second
prosecution is for an offense that is different from the offense charged in
the first or prior prosecution, although both the first and second offenses
may be based upon the same act or set of acts. The second sentence
of Article IV (22) embodies an exception to the general proposition:
the constitutional protection, against double jeopardy is available
 although the prior offense charged under an ordinance be different
from the offense charged subsequently under a national statute such
as the Revised Penal Code, provided that both offenses spring from
the same act or set of acts. x x x[30] (Italicization in the original; boldfacing
supplied)

Thus, Relova is no authority for petitioners claim against multiple prosecutions based on a
single act not only because the question of double jeopardy is not at issue here, but also
because, as the Court of Appeals held, petitioners are being prosecuted for an act or incident
punished by four national statutes and not by an ordinance and a national statute. In short,
petitioners, if ever, fall under the first sentence of Section 21, Article III which prohibits
multiple prosecution for the same offense, and not, as in Relova, for offenses arising from
the same incident.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 5 November

2001 and the Resolution dated 14 March 2002 of the Court of Appeals.

SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 170599 September 22, 2010
PUBLIC HEARING COMMITTEE OF THE LAGUNA LAKE DEVELOPMENT
AUTHORITY and HON. GENERAL MANAGER CALIXTO CATAQUIZ, Petitioners,
vs.
SM PRIME HOLDINGS, INC. (in its capacity as operator of SM CITY
MANILA), Respondent.
DECISION
PERALTA, J.:
Assailed in the present petition for review on certiorari are the Decision1 and Resolution2 of
the Court of Appeals (CA) dated June 28, 2004 and November 23, 2005, respectively, in
CA-G.R. SP No. 79192. The CA Decision reversed and set aside the Orders3 dated
October 2, 2002, January 10, 2003 and May 27, 2003 of petitioner Public Hearing
Committee of the Laguna Lake Development Authority (LLDA), in LLDA Case No. PH-02-
03-076, while the CA Resolution denied petitioners Motion for Reconsideration.
The instant petition arose from an inspection conducted on February 4, 2002 by the
Pollution Control Division of the LLDA of the wastewater collected from herein
respondent's SM City Manila branch. The results of the laboratory tests showed that the
sample collected from the said facility failed to conform with the effluent standards for
inland water imposed in accordance with law. 4
On March 12, 2002, the LLDA informed SM City Manila of its violation, directing the same
to perform corrective measures to abate or control the pollution caused by the said
company and ordering the latter to pay a penalty of "One Thousand Pesos (1,000.00) per
day of discharging pollutive wastewater to be computed from 4 February 2002, the date of
inspection, until full cessation of discharging pollutive wastewater." 5
In a letter6 dated March 23, 2002, respondent's Pollution Control Officer requested the
LLDA to conduct a re-sampling of their effluent, claiming that they already took measures
to enable their sewage treatment plant to meet the standards set forth by the LLDA.
In an Order to Pay7 dated October 2, 2002, herein petitioner required respondent to pay a
fine of Fifty Thousand Pesos (50,000.00) which represents the accumulated daily penalty
computed from February 4, 2002 until March 25, 2002.
In two follow-up letters dated July 2, 20028 and November 29, 2002,9 which were treated
by the LLDA as a motion for reconsideration, respondent asked for a waiver of the fine
assessed by the LLDA in its March 12, 2002 Notice of Violation and Order of October 2,
2002 on the ground that they immediately undertook corrective measures and that the pH
levels of its effluent were already controlled even prior to their request for re-sampling
leading to a minimal damage to the environment. Respondent also contended that it is a
responsible operator of malls and department stores and that it was the first time that the
wastewater discharge of SM City Manila failed to meet the standards of law with respect to
inland water.
On January 10, 2003, the LLDA issued an Order 10 denying respondent's request for a
waiver of the fine imposed on the latter.
On April 21, 2003, respondent submitted another letter 11 to the LLDA requesting for
reconsideration of its Order dated January 10, 2003.
On May 27, 2003, the LLDA issued another Order to Pay12 denying respondent's request
for reconsideration and requiring payment of the fine within ten days from respondent's
receipt of a copy of the said Order.
Aggrieved, respondent filed a petition for certiorari with the CA praying for the nullification
of the Orders of the LLDA dated October 2, 2002, January 10, 2003 and May 27, 2003.
On June 28, 2004, the CA rendered its Decision granting the petition of herein respondent
and reversing and setting aside the assailed Orders of the LLDA. Ruling that an
administrative agency's power to impose fines should be expressly granted and may not
be implied, the CA found that under its charter, Republic Act No. 4850 13 (RA 4850), the
LLDA is not expressly granted any power or authority to impose fines for violations of
effluent standards set by law. Thus, the CA held that the assailed Orders of petitioner,
which imposed a fine on respondent, are issued without jurisdiction and with grave abuse
of discretion.
Petitioner filed a Motion for Reconsideration, but the same was denied by the CA via its
Resolution dated November 23, 2005.
Hence, the instant petition based on the following grounds:
5.1. THE COURT OF APPEALS ERRED IN FINDING THAT THE PETITION
CANNOT BE DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE
REMEDIES, BY WAY OF EXCEPTION TO THE GENERAL RULE.
5.2. THE COURT OF APPEALS ERRED WHEN IT TOOK COGNIZANCE OF
THE PETITION OF SM PRIME.
5.3. THE COURT OF APPEALS ERRED IN RULING THAT THE LLDA WAS
NOT CONFERRED BY LAW THE POWER TO IMPOSE FINES AND,
THEREFORE, CANNOT COLLECT THE SAME FROM SM PRIME HOLDINGS,
INC.14
In their first assigned error, petitioners contend that the petition for certiorari filed by
respondent with the CA is premature. Petitioners argue that respondent did not raise
purely legal questions in its petition, but also brought to the fore factual issues which were
properly within the province of the Department of Environment and Natural Resources
(DENR), which is the agency having administrative supervision over the LLDA.
In the second assignment of error, petitioners aver that a reading of the provisions of Rule
43 of the Rules of Court would show that the CA has no jurisdiction over the petition
for certiorari filed by respondent. Petitioners also assert that respondent is already barred
by estoppel from questioning the LLDA's power to impose fines, because it (respondent)
actively participated in the proceedings conducted by petitioners without challenging such
power.
Lastly, petitioners aver that the LLDA has the power to impose fines and penalties based
on the provisions of RA 4850 and Executive Order (E.O.) No. 927.
The Court rules for the petitioners.
As to the first assigned error, the Court agrees with petitioners that respondent did not
exhaust administrative remedies before filing a petition for certiorari with the CA.
Under the doctrine of exhaustion of administrative remedies, before a party is allowed to
seek the intervention of the court, he or she should have availed himself or herself of all
the means of administrative processes afforded him or her. 15 Hence, if resort to a remedy
within the administrative machinery can still be made by giving the administrative officer
concerned every opportunity to decide on a matter that comes within his or her jurisdiction,
then such remedy should be exhausted first before the courts judicial power can be
sought.16 The premature invocation of the intervention of the court is fatal to ones cause of
action.17 The doctrine of exhaustion of administrative remedies is based on practical and
legal reasons.18 The availment of administrative remedy entails lesser expenses and
provides for a speedier disposition of controversies. Furthermore, the courts of justice, for
reasons of comity and convenience, will shy away from a dispute until the system of
administrative redress has been completed and complied with, so as to give the
administrative agency concerned every opportunity to correct its error and dispose of the
case.19 While the doctrine of exhaustion of administrative remedies is subject to several
exceptions,20 the Court finds that the instant case does not fall under any of them.
It is true that one of the exceptions to the doctrine of exhaustion of administrative remedies
is when the issues raised are purely legal. However, the Court is not persuaded by
respondent's contention that the special civil action for certiorari it filed with the CA
involved only purely legal questions and did not raise factual issues. A perusal of the
petition for certiorari filed by respondent readily shows that factual matters were raised, to
wit: (a) whether respondent has immediately implemented remedial measures to correct
the pH level of the effluent discharges of SM City Manila; and (b) whether the third party
monitoring report submitted by respondent proves that it has complied with the effluent
standards for inland water set by the LLDA. Respondent insists that what has been raised
in the petition filed with the CA was whether the LLDA committed grave abuse of discretion
in disregarding the evidence it presented and in proceeding to impose a penalty despite
remedial measures undertaken by the latter. Logic dictates, however, that a determination
of whether or not the LLDA indeed committed grave abuse of discretion in imposing fine on
respondent would necessarily and inevitably touch on the factual issue of whether or not
respondent in fact complied with the effluent standards set under the law. Since the
matters raised by respondent involve factual issues, the questioned Orders of the LLDA
should have been brought first before the DENR which has administrative supervision of
the LLDA pursuant to E.O. No. 149.211avvphi1
Neither may respondent resort to a petition for certiorari filed directly with the CA on the
ground that the Orders issued by the LLDA are patently illegal and amount to lack or
excess of jurisdiction because, as will be subsequently discussed, the assailed Orders of
the LLDA are not illegal nor were they issued in excess of jurisdiction or with grave abuse
of discretion.
Anent the second assigned error, the Court does not agree with petitioners' contention that
the CA does not have jurisdiction to entertain the petition for certiorari filed by respondent
questioning the subject Orders of the LLDA. Petitioners argue that Section 1, 22 Rule 43 of
the Rules of Court enumerate the quasi-judicial agencies whose decisions or orders are
directly appealable to the CA and that the LLDA is not among these agencies. Petitioners
should have noted, however, that Rule 43 refers to appeals from judgments or orders of
quasi-judicial agencies in the exercise of their quasi-judicial functions. On the other hand,
Rule 65 of the Rules of Court specifically governs special civil actions for certiorari, Section
4 of which provides that if the petition involves acts or omissions of a quasi-judicial agency,
and unless otherwise provided by law or the rules, the petition shall be filed in and
cognizable only by the CA. Thus, it is clear that jurisdiction over acts or omissions of the
LLDA belong to the CA.
Nonetheless, the Court agrees with petitioners that respondent is already estopped from
questioning the power of the LLDA to impose fines as penalty owing to the fact that
respondent actively participated during the hearing of its water pollution case before the
LLDA without impugning such power of the said agency. In fact, respondent even asked
for a reconsideration of the Order of the LLDA which imposed a fine upon it as evidenced
by its letters dated July 2, 2002 and November 29, 2002, wherein respondent, through its
pollution control officer, as well as its counsel, requested for a waiver of the fine(s)
imposed by the LLDA. By asking for a reconsideration of the fine imposed by the LLDA,
the Court arrives at no conclusion other than that respondent has impliedly admitted the
authority of the latter to impose such penalty. Hence, contrary to respondent's claim in its
Comment and Memorandum, it is already barred from assailing the LLDA's authority to
impose fines.
In any case, this Court has categorically ruled in Pacific Steam Laundry, Inc. v. Laguna
Lake Development Authority,23 that the LLDA has the power to impose fines in the exercise
of its function as a regulatory and quasi-judicial body with respect to pollution cases in the
Laguna Lake region. In expounding on this issue, the Court held that the adjudication of
pollution cases generally pertains to the Pollution Adjudication Board (PAB), 24 except
where a special law, such as the LLDA Charter, provides for another forum. The Court
further ruled that although the PAB assumed the powers and functions of the National
Pollution Control Commission with respect to adjudication of pollution cases, this does not
preclude the LLDA from assuming jurisdiction of pollution cases within its area of
responsibility and to impose fines as penalty.
In the earlier case of The Alexandra Condominium Corporation v. Laguna Lake
Development Authority,25 this Court affirmed the ruling of the CA which sustained the
LLDA's Order requiring the petitioner therein to pay a fine representing penalty for pollutive
wastewater discharge. Although the petitioner in that case did not challenge the LLDA's
authority to impose fine, the Court acknowledged the power of the LLDA to impose fines
holding that under Section 4-A of RA 4850,26 as amended, the LLDA is entitled to
compensation for damages resulting from failure to meet established water and effluent
standards. Section 4-A provides, thus:

Sec. 4-A. Compensation for damages to the water and aquatic resources of Laguna de
Bay and its tributaries resulting from failure to meet established water and effluent quality
standards and from such other wrongful act or omission of a person, private or public,
juridical or otherwise, punishable under the law shall be awarded to the Authority to be
earmarked for water quality control management.

In addition, Section 4(d) of E.O. No. 927, which further defines certain functions and
powers of the LLDA, provides that the LLDA has the power to "make, alter or modify orders
requiring the discontinuance of pollution specifying the conditions and the time within which
such discontinuance must be accomplished." Likewise, Section 4(i) of the same E.O.
states that the LLDA is given authority to "exercise such powers and perform such other
functions as may be necessary to carry out its duties and responsibilities under this
Executive Order." Also, Section 4(c) authorizes the LLDA to "issue orders or decisions to
compel compliance with the provisions of this Executive Order and its implementing rules
and regulations only after proper notice and hearing."

In Laguna Lake Development Authority v. CA,27 this Court had occasion to discuss the
functions of the LLDA, thus:

x x x It must be recognized in this regard that the LLDA, as a specialized administrative

agency, is specifically mandated under Republic Act No. 4850 and its amendatory laws
[PD 813 and EO 927], to carry out and make effective the declared national policy of
promoting and accelerating the development and balanced growth of the Laguna Lake
area and the surrounding Provinces of Rizal and Laguna and the cities of San Pablo,
Manila, Pasay, Quezon and Caloocan with due regard and adequate provisions for
environmental management and control, preservation of the quality of human life and
ecological systems, and the prevention of undue ecological disturbances, deterioration and
pollution. Under such a broad grant of power and authority, the LLDA, by virtue of its
special charter, obviously has the responsibility to protect the inhabitants of the Laguna
Lake Region from the deleterious effects of pollutants emanating from the discharge of
wastes from the surrounding areas. x x x28

Indeed, how could the LLDA be expected to effectively perform the above-mentioned
functions if, for every act or violation committed against the law it is supposed to enforce, it
is required to resort to some other authority for the proper remedy or penalty. The
intendment of the law, as gleaned from Section 4(i) of E.O. No. 927, is to clothe the LLDA
not only with the express powers granted to it, but also those which are implied or
incidental but, nonetheless, are necessary or essential for the full and proper
implementation of its purposes and functions.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals, dated
June 28, 2004, and the Resolution dated November 23, 2005, in CA-G.R. SP No. 79192,
are REVERSED and SET ASIDE. The Orders of the Laguna Lake Development Authority,
dated October 2, 2002, January 10, 2003 and May 27, 2003, are
hereby REINSTATED and AFFIRMED.

SO ORDERED.
 Subject: Notice of Violation
PH-01-10-303
SECOND DIVISION
Gentlemen:
PACIFIC STEAM LAUNDRY, INC., G.R. No. 165299
Petitioner, This refers to the findings of the inspection and result of laboratory analysis of the wastewater
Present: collected from your firm last 5 September 2001. Evaluation of the results of laboratory
analysis showed that your plants effluent failed to conform with the 1990 Revised Effluent
CARPIO, J., Chairperson, Standard for Inland Water Class C specifically in terms of TSS, BOD, Oil/Grease and Color.
LEONARDO-DE CASTRO,* (Please see attached laboratory analysis)
BRION,
- versus - DEL CASTILLO, and In view thereof, you are hereby directed to submit corrective measures to abate/control the
ABAD, JJ. water pollution caused by your firm, within fifteen (15) days from receipt of this letter.

Furthermore, pursuant to Section 9 of Presidential Decree No. 984, PACIFIC STEAM

LAGUNA LAKE DEVELOPMENT LAUNDRY, INC. is hereby ordered to pay a penalty of One Thousand Pesos (P1,000.00)
AUTHORITY, Promulgated: per day of discharging pollutive wastewater to be computed from 5 September 2001, the
Respondent. date of inspection until full cessation of discharging pollutive wastewater and a fine of Five
December 18, 2009 Thousand Pesos (P5,000.00) per year for operating without the necessary
x--------------------------------------------------x clearance/permits from the Authority.

DECISION Very truly yours,

CARPIO, J.: (signed)

CALIXTO R. CATAQUIZ
The Case General Manager

This is a petition for review[1] of the Decision[2] dated 30 June 2004 and the Resolution dated
8 September 2004 of the Court of Appeals in CA-G.R. SP No. 75238.
The Facts
Petitioner Pacific Steam Laundry, Inc. (petitioner) is a company engaged in the business of
laundry services. On 6 June 2001, the Environmental Management Bureau of the
Department of Environment and Natural Resources (DENR) endorsed to respondent
Laguna Lake Development Authority (LLDA) the inspection report on the complaint of black
smoke emission from petitioners plant located at 114 Roosevelt Avenue, Quezon City. [3] On
22 June 2001, LLDA conducted an investigation and found that untreated wastewater
generated from petitioners laundry washing activities was discharged directly to the San
Francisco Del Monte River. Furthermore, the Investigation Report [4]stated that petitioners
plant was operating without LLDA clearance, AC/PO-ESI, and Discharge Permit from LLDA.
On 5 September 2001, the Environmental Quality Management Division of LLDA conducted
wastewater sampling of petitioners effluent.[5] The result of the laboratory analysis showed
non-compliance with effluent standards particularly Total Suspended Solids (TSS),
Biochemical Oxygen Demand (BOD), Oil/Grease Concentration and Color
Units.[6] Consequently, LLDA issued to petitioner a Notice of Violation [7] dated 30 October
2001 which states:
THE GENERAL MANAGER
PACIFIC STEAM LAUNDRY, INC.
114 Roosevelt Avenue, Brgy. Paraiso
Quezon City
Petitioner submitted its application for LLDA Clearance and Discharge Permit and informed
LLDA that it would undertake the necessary measures to abate the water pollution.[8] On 1
March 2002, a compliance monitoring was conducted and the result of the laboratory
analysis[9] still showed non-compliance with effluent standards in terms of TSS, BOD,
Chemical Oxygen Demand (COD), and Oil/Grease Concentration. It was reported that
petitioners wastewater treatment facility was under construction. Subsequently, another
wastewater sampling was conducted on 25 April 2002 but the results [10] still failed to conform
with the effluent standards in terms of Oil/Grease Concentration.
Meanwhile, on 15 April 2002, a Pollution Control and Abatement case was filed against
petitioner before the LLDA. During the public hearing on 30 April 2002, LLDA informed
petitioner of its continuous non-compliance with the effluent standards. Petitioner requested
for another wastewater sampling which was conducted on 5 June 2002. The laboratory
results[11] of the wastewater sampling finally showed compliance with the effluent standard
in all parameters. On 9 August 2002, another public hearing was held to discuss the
dismissal of the water pollution case and the payment of the accumulated daily penalty.
According to LLDA, the penalty should be reckoned from 5 September 2001, the date of
initial sampling, to 17 May 2002, the date LLDA received the request for re-sampling.
Petitioner manifested that its wastewater discharge was not on a daily basis. In its position
paper[12] dated 25 August 2002, petitioner prayed that the Notice of Violation dated 30
October 2001 be set aside and the penalty and fine imposed be reckoned from the date of
actual hearing on 15 April 2002.
On 16 September 2002, LLDA issued an Order to Pay, [13] the pertinent portion of which
reads:
Respondent prayed that the Notice of Violation issued on 30 October
2001 and its corresponding daily penalty be set aside and that the
imposable penalty be reckoned from the date of actual hearing and not
 on 5 September 2001. It is respondents position that the Notice of
Violation and the imposition of the penalty had no legal and factual basis
because it had already installed the necessary wastewater treatment to
abate the water pollution.
This Public Hearing Committee finds respondents arguments devoid of merit. Presidential
Decree No. 984 prohibits the discharge of pollutive wastewater and any person found in
violation thereof shall pay a fine not exceeding five thousand pesos (PhP5,000.00) [sic] for
every day during which such violation continues. The mere discharge of wastewater not
conforming with the effluent standard is the violation referred to in PD No. 984. Sample of
respondents effluent was collected on 5 September 2001 and the results of laboratory
analysis confirmed the quality thereof. Thus, a notice of violation was issued against the
respondent after it was established that its discharge was pollutive. The fact that the
subsequent re-sampling reported compliance with the effluent standard does not negate the
5 September 2001 initial sampling. Respondent passed the standard because it already
implemented remedial measures to abate the water pollution. It is therefore but just and
proper that the penalty should be imposed from the date of initial sampling, 5 September
2001, to 17 May 2002, the date the request for re-sampling was received by the Authority.
The 5 June 2002 sampling confirmed that respondents effluent already complied with the
standard showing that its water pollution has ceased. Respondent did not submit any proof
of its actual operation hence, the penalty shall be computed for five (5) working days per
week, excluding Saturdays and Sundays as well as legal holidays from 5 September 2001
to 17 May 2002, for a total of one hundred seventy-two (172) days.
WHEREFORE, premises considered, respondent Pacific steam Laundry, Inc. is hereby
ordered to pay the accumulated daily penalty amounting to ONE HUNDRED SEVENTY-
TWO THOUSAND (PhP172,000.00) PESOS within fifteen(15) days from receipt hereof as
a condition sine qua non for the dismissal of the above-captioned case.
SO ORDERED.[14]
Petitioner filed a motion for reconsideration, which the LLDA denied in its Order [15] dated 27
November 2002.
Petitioner then filed with the Court of Appeals a petition for review under Rule 43 of the Rules
of Court. The Court of Appeals denied the petition, as well as the motion for reconsideration
filed by petitioner. Hence, this petition.
The Court of Appeals Ruling
The Court of Appeals held that LLDA has the power to impose fines, thus:
Concededly, the power to impose administrative fines in pollution
abatement cases was expressly granted under Section 9 of P.D. 984 to
the now defunct National Pollution Control Commission (NPCC), thus:
Section 9. Penalties. - (a) Any person found violating
or failing to comply with any order, decision or
regulation of the Commission for the control or
abatement of pollution shall pay a fine not exceeding
five thousand pesos per day for every day during
which such violation or default continues; and
the Commission is hereby authorized and
empowered to impose the fine after due notice
and hearing.
Nonetheless, it may be well to recall that the LLDA was created under
R.A. 4850 with the end view of promoting and accelerating the
development and balanced growth of the Laguna Lake area and the
surrounding provinces, and carrying out the development of the Laguna
Lake Region with due regard and adequate provisions for environmental
management and control, preservation of the quality of human life and
ecological systems, and the preservation of undue ecological
disturbances, deterioration and pollution. To correct deficiencies and
clarify ambiguities that impede the accomplishment of the Authorities
goal, Former President Ferdinand E. Marcos promulgated P.D. 813.
Finally, to enable the LLDA to effectively perform its role,
Former President Marcos further issued E.O. 927, which granted the
LLDA additional powers and functions, viz:
Section 4. Additional Powers and Functions. - The
authority shall have the following powers and
functions:
xxx
(d) Make, alter or modify orders
requiring the discontinuance
of pollution specifying the
conditions and time within
which such continuance must
be accomplished.
xxx
(i) Exercise such powers and perform
such other functions as may be
necessary to carry out its duties and
responsibilities under this Executive
order.
Indeed, the express grant of power to impose administrative fines as
couched in the language of P.D. 984 was not reproduced in E.O. 927,
however, it can be logically implied from LLDAs authority to exercise
the power to make, alter or modify orders requiring the discontinuance of
pollution. In addition, the clear intendment of E.O. 927 to clothe LLDA not
only with the express powers granted to it, but also those implied,
incidental and necessary for the exercise of its express powers can be
easily discerned from the grant of the general power to exercise (such)
powers and perform such other functions as may be necessary to carry
out its duties and responsibilities.
This finds support in the wealth of authorities in American Jurisprudence,
citing adherence of other courts to the principle that the authority given
to an agency should be liberally construed in order to permit the agency
to carry out its statutory responsibilities. This is especially true where the
 agency is concerned with protecting the public health and welfare,
the delegation of authority to the agency is liberally construed.
The LLDA, as an agency implementing pollution laws, rules and
regulations, should be given some measures of flexibility in its operations
in order not to hamper it unduly in the fulfillment of its objectives. How
could it effectively perform its role if in every act of violation, it must resort
to other venue for the appropriate remedy, because it is impotent by itself
to punish or deal with it?[16] (Emphasis in the original)
The Issues
Petitioner raises two issues:
1. Does the respondent LLDA have the implied power to
impose fines as set forth in PD 984?
2. Does the grant of implied power to LLDA to impose
penalties violate the rule on non-delegation of legislative powers?[17]
The Ruling of the Court
We find the petition without merit.
Power of LLDA to Impose Fines
Petitioner asserts that LLDA has no power to impose fines since such power to impose penal
sanctions, which was once lodged with the National Pollution Control Commission (NPCC),
is now assumed by the Pollution Adjudication Board pursuant to Executive Order No. 192
(EO 192).[18]
We disagree with petitioner.
Presidential Decree No. 984 (PD 984)[19] created and established the NPCC under the Office
of the President. EO 192, which reorganized the DENR, created the Pollution Adjudication
Board under the Office of the DENR Secretary which assumed the powers and functions of
the NPCC with respect to adjudication of pollution cases.
Section 19 of EO 192 provides:
SEC. 19. Pollution Adjudication Board. There is hereby created a
Pollution Adjudication Board under the Office of the Secretary. The
Board shall be composed of the Secretary as Chairman, two (2)
Undersecretaries as may be designated by the Secretary, the Director of
Environmental Management, and three (3) others to be designated by
the Secretary as members. The Board shall assume the powers and
functions of the Commission/Commissioners of the National
Pollution Control Commission with respect to the adjudication of
pollution cases under Republic Act 3931 and Presidential Decree
984, particularly with respect to Section 6 letters e, f, g, j, k, and p
of P.D. 984. The Environmental Management Bureau shall serve as the
Secretariat of the Board. These powers and functions may be delegated
to the regional officers of the Department in accordance with rules and
regulations to be promulgated by the Board. (Emphasis supplied)
Section 6, paragraphs (e), (f), (g), (j), (k), and (p) of PD 984 referred to above states:
SEC. 6. Powers and Functions. The Commission shall have the following
powers and functions:
xxx
(e) Issue orders or decisions to compel compliance with the provisions of this Decree and
its implementing rules and regulations only after proper notice and hearing.
(f) Make, alter or modify orders requiring the discontinuance of pollution specifying the
conditions and the time within which such discontinuance must be accomplished.
(g) Issue, renew, or deny permits, under such conditions as it may
determine to be reasonable, for the prevention and abatement of
pollution, for the discharge of sewage, industrial waste, or for the
installation or operation of sewage works and industrial disposal system
or parts thereof: Provided, however, the Commission, by rules and
regulations, may require subdivisions, condominium, hospitals, public
buildings and other similar human settlements to put up appropriate
central sewerage system and sewage treatment works, except that no
permits shall be required of any new sewage works or changes to or
extensions of existing works that discharge only domestic or sanitary
wastes from a single residential building provided with septic tanks or
their equivalent. The Commission may impose reasonable fees and
charges for the issuance or renewal of all permits herein required.
xxx
(j) Serve as arbitrator for the determination of reparations, or restitution of the damages and
losses resulting from pollution.
(k) Deputize in writing or request assistance of appropriate government agencies or
instrumentalities for the purpose of enforcing this Decree and its implementing rules and
regulations and the orders and decisions of the Commission.
xxx
(p) Exercise such powers and perform such other functions as may be necessary to carry
out its duties and responsibilities under this Decree.
On the other hand, LLDA is a special agency created under Republic Act No. 4850 (RA
4850)[20] to manage and develop the Laguna Lake region, comprising of the provinces of
Rizal and Laguna and the cities of San Pablo, Manila, Pasay, Quezon and Caloocan. RA
4850, as amended by Presidential Decree No. 813 (PD 813), [21] mandates LLDA to carry out
the development of the Laguna Lake region, with due regard and adequate provisions for
environmental management and control, preservation of the quality of human life and
ecological systems, and the prevention of undue ecological disturbances, deterioration and
pollution.[22]
Under Executive Order No. 927 (EO 927), [23] LLDA is granted additional powers and
functions to effectively perform its role and to enlarge its prerogatives of monitoring, licensing
and enforcement, thus:
SECTION 4. Additional Powers and Functions. The Authority [LLDA]
shall have the following powers and functions:
a) Issue standards, rules and regulations to govern the approval of plans
and specifications for sewage works and industrial waste disposal
systems and the issuance of permits in accordance with the provisions
of this Executive Order; inspect the construction and maintenance of
 sewage works and industrial waste disposal systems for compliance to
plans.
b) Adopt, prescribe, and promulgate rules and regulations governing the Procedures of the
Authority with respect to hearings, plans, specifications, designs, and other data for sewage
works and industrial waste disposal system, the filing of reports, the issuance of permits,
and other rules and regulations for the proper implementation and enforcement of this
Executive Order.
c) Issue orders or decisions to compel compliance with the
provisions of this Executive Order and its implementing rules and
regulations only after proper notice and hearing.
d) Make, alter or modify orders requiring the discontinuance of pollution specifying
the conditions and the time within which such discontinuance must be accomplished.
e) Issue, renew or deny permits, under such conditions as it may determine to be
reasonable, for the prevention and abatement of pollution, for the discharge of sewage,
industrial waste, or for the installation or operation of sewage works and industrial disposal
system or parts thereof: Provided, however, that the Authority, by rules and regulations, may
require subdivisions, condominiums, hospitals, public buildings and other similar human
settlements to put up appropriate central sewerage system and sewage treatment works,
except that no permits shall be required of any new sewage works or changes to or
extensions of existing works that discharge only domestic or sanitary wastes from a single
residential building provided with septic tanks or their equivalent. The Authority may impose
reasonable fees and charges for the issuance or renewal of all permits herein required.
f) After due notice and hearing, the Authority may also revoke, suspend
or modify any permit issued under this Order whenever the same is
necessary to prevent or abate pollution.
g) Deputize in writing or request assistance of appropriate government agencies or
instrumentalities for the purpose of enforcing this executive Order and its implementing rules
and regulations and the orders and decision of the Authority.
(h) Authorize its representative to enter at all reasonable times any property of the public
dominion and private property devoted to industrial, manufacturing processing or
commercial use without doing damage, for the purpose of inspecting and investigating
conditions relating to pollution or possible or imminent pollution.
(i) Exercise such powers and perform such other functions as may
be necessary to carry out its duties and responsibilities under this
Executive Order. (Emphasis supplied)
A comparison of the powers and functions of the Pollution Adjudication Board and the LLDA
reveals substantial similarity. Both the Pollution Adjudication Board and the LLDA are
empowered, among others, to: (1) make, alter or modify orders requiring the discontinuance
of pollution; (2) issue, renew, or deny permits for the prevention and abatement of pollution,
for the discharge of sewage, industrial waste, or for the installation or operation of sewage
works and industrial disposal system; and (3) exercise such powers and perform such other
functions necessary to carry out their duties and responsibilities. The difference is that while
Section 19 of EO 192 vested the Pollution Adjudication Board with the specific power to
adjudicate pollution cases in general, [24] the scope of authority of LLDA to adjudicate
pollution cases is limited to the Laguna Lake region as defined by RA 4850, as amended.
Thus, in Laguna Lake Development Authority v. Court of Appeals,[25] the Court held that the
adjudication of pollution cases generally pertains to the Pollution Adjudication Board, except
where a special law, such as the LLDA Charter, provides for another forum. Indeed, even
PD 984 authorizes the LLDA to undertake pollution control activities within LLDAs
development area. Section 10 of PD 984 provides:
SEC. 10. Jurisdiction. The Commission [NPCC] shall have no
jurisdiction over waterworks or sewage system operated by the
Metropolitan Waterworks Sewerage System, but the rules and
regulations issued by the Commission for the protection and prevention
of pollution under the authority herein granted shall supersede and
prevail over any rules or regulations as may heretofore have been issued
by other government agencies or instrumentalities on the same subject.
In case of development projects involving specific human
settlement sites or integrated regional or subregional projects,
such as the Tondo Foreshore Development Authority and the
Laguna Lake Development Authority, the Commission shall consult
with the authorities charged with the planning and execution of
such projects to ensure that their pollution control standards
comply with those of the Commission. Once minimum pollution
standards are established and agreed upon, the development
authorities concerned may, by mutual agreement and prior
consultation with the Commission, undertake the pollution control
activities themselves. (Boldfacing and underscoring supplied)
In this case, the DENRs Environmental Management Bureau endorsed to LLDA the pollution
complaint against petitioner. Under Section 16 of EO 192, the Environmental Management
Bureau assumed the powers and functions of the NPCC except with respect to adjudication
of pollution cases, thus:
SEC. 16. Environmental Management Bureau. There is hereby created
an Environmental Management Bureau. The National Environmental
Protection Council (NEPC), the National Pollution Control
Commission (NPCC) and the Environmental Center of the Philippines
(ECP), are hereby abolished and their powers and functions are
hereby integrated into the Environmental Management Bureau in
accordance with Section 24(c) hereof, subject to Section 19 hereof. x
x x (Emphasis supplied)
The Environmental Management Bureau also serves as the Secretariat of the Pollution
Adjudication Board, and its Director is one of the members of the Pollution Adjudication
Board. Clearly, by endorsing to LLDA the pollution complaint against
petitioner, the Environmental Management Bureau deferred to LLDAs jurisdiction over the
pollution complaint against petitioner.
Although the Pollution Adjudication Board assumed the powers and functions of the NPCC
with respect to adjudication of pollution cases, this does not preclude LLDA from assuming
jurisdiction of pollution cases within its area of responsibility and to impose fines as penalty.
Thus, in the recent case of The Alexandra Condominium Corporation v. Laguna Lake
Development Authority,[26] the Court affirmed the ruling of the Court of Appeals which
sustained LLDAs Order, requiring petitioner therein to pay a fine of P1,062,000 representing
penalty for pollutive wastewater discharge. Although petitioner in that case did not challenge
LLDAs authority to impose fine, the Court acknowledged the power of LLDA to impose fines,
holding that under Section 4-A of RA 4850, as amended, LLDA is entitled to compensation
for damages resulting from failure to meet established water and effluent standards. Section
4-A of RA 4850, as amended, reads:
SEC. 4-A. Compensation for damages to the water and aquatic
resources of Laguna de Bay and its tributaries resulting from failure to
meet established water and effluent quality standards or from such other
 wrongful act or omission of a person, private or public, juridical or
otherwise, punishable under the law shall be awarded to the Authority to
be earmarked for water quality control and management.
Under Section 4(h) of EO 927, LLDA may exercise such powers and perform such other
functions as may be necessary to carry out its duties and responsibilities. In Laguna Lake
Development Authority v. Court of Appeals,[27]the Court upheld the power of LLDA to issue
an ex-parte cease and desist order even if such power is not expressly conferred by law,
holding that an administrative agency has also such powers as are necessarily implied in
the exercise of its express powers. The Court ruled that LLDA, in the exercise of its express
powers under its charter, as a regulatory and quasi-judicial body with respect to pollution
cases in the Laguna Lake region, has the implied authority to issue a cease and desist order.
In the same manner, we hold that the LLDA has the power to impose fines in the exercise
of its function as a regulatory and quasi-judicial body with respect to pollution cases in the
Laguna Lake region.

No Undue Delegation of Legislative Power

Petitioner contends that if LLDA is deemed to have implied power to impose penalties, then
LLDA will have unfettered discretion to determine for itself the penalties it may impose, which
will amount to undue delegation of legislative power.

We do not agree. Contrary to petitioners contention, LLDAs power to impose fines is not
unrestricted. In this case, LLDA investigated the pollution complaint against petitioner
and conducted wastewater sampling of petitioners effluent. It was only after the investigation
result showing petitioners failure to meet the established water and effluent quality standards
that LLDA imposed a fine against petitioner. LLDA then imposed upon petitioner a penalty
of P1,000 per day of discharging pollutive wastewater. The P1,000 penalty per day is in
accordance with the amount of penalty prescribed under PD 984:

SEC. 8. Prohibitions. No person shall throw, run, drain, or otherwise

dispose into any of the water, air and/or land resources of the
Philippines, or cause, permit, suffer to be thrown, run, drain, allow
to seep or otherwise dispose thereto any organic or inorganic
matter or any substance in gaseous or liquid form that shall cause
pollution thereof.
xxx

SEC 9. Penalties. x x x
(b) Any person who shall violate any of the previous provisions of Section Eight of
this Decree or its implementing rules and regulations, or any Order or Decision of the
Commission, shall be liable to a penalty of not to exceed one thousand pesos each day
during which the violation continues, or by imprisonment of from two years to six years,
or by both fine and imprisonment, and in addition such person may be required or enjoined
from continuing such violation as hereinafter provided.
x x x (Emphasis supplied)

Clearly, there are adequate statutory limitations on LLDAs power to impose fines which
obviates unbridled discretion in the exercise of such power.
WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 30 June 2004 and
the Resolution dated 8 September 2004 of the Court of Appeals in CA-G.R. SP No. 75238.
SO ORDERED.

FIRST DIVISION
THE ALEXANDRA CONDOMINIUM G.R. No. 169228
CORPORATION,
Petitioner, Present:
PUNO, C.J., Chairperson,
CARPIO,
- versus - CORONA,
LEONARDO-DE CASTRO, and
BERSAMIN, JJ.
LAGUNA LAKE DEVELOPMENT Promulgated:
AUTHORITY,
Respondent. September 11, 2009
x--------------------------------------------------x
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review assailing the 26 April 2005 Decision [1] and 1 August
2005 Resolution[2] of the Court of Appeals in CA-G.R. SP No. 82409.
The Antecedent Facts
Philippine Realty and Holdings, Inc. (PhilRealty) developed, established, and constructed
The Alexandra Condominium Complex from 1987 to 1993. In a Deed of Conveyance dated
18 April 1988, PhilRealty transferred to The Alexandra Condominium Corporation (TACC) a
parcel of land with an area of 9,876 square meters located at 29 Meralco Avenue, Pasig City
as well as all the common areas of the project. The land was covered by Transfer Certificate
of Title No. 64355.
The condominium project consists of the following phases:
(a) Cluster A - 3 Five Storey Buildings; A-1, A-2 and A-3;
(b) Cluster B - 2 Eleven Storey Buildings; B-1 and B-2;
(c) Cluster C - 2 Seven Storey Buildings; C-1 and C-2;
(d) Cluster D - 2 Fourteen Storey Buildings; D-a and D-2; and
(e) Cluster E 2 Eleven Storey Buildings; E-1 and E-2.
On 2 September 1987, the Human Settlements Regulatory Commission issued a
Development Permit to PhilRealty to develop Cluster A of the project. In the Development
Permit, PhilRealty was required to submit its condominium plans to the Building Official of
Pasig City. Architect Walter R. Perez (Architect Perez), then Building Official of Pasig City,
reviewed the Site Development and Location Plan as well as the Sanitary/Plumbing Plans
and Specifications of the project. On 24 September 1987, Architect Perez issued a
Building Permit. On 30 September 1987, Architect Perez issued a Sanitary/Plumbing
Permit acknowledging the fixtures to be installed but without indicating the System of
Disposal including a Waste Water Treatment Plan. On 15 December 1988, Architect Perez
issued a Certificate of Final Inspection and a Certificate of Occupancy for Buildings A-1 to
A-3.
PhilRealty undertook the same process for Clusters B, C, D, and E. Building Permits and
Certificates of Final Inspection and Occupancy were issued for these clusters from 1991 to
1993. On 31 December 1993, upon completion of Buildings E-1 and E-2, PhilRealty
formally turned over the project to TACC. However, PhilRealty did not turn over the as-built
plans for the perimeter drainage layout, the foundation, and the electrical and plumbing
layout of the project. Thereafter, TACC managed the project through Century Properties
Management Corporation.
On 24 June 1998, Laguna Lake Development Authority (LLDA) advised TACC that its
wastewater did not meet government effluent standards provided in Sections 68 and 69 of
the 1978 National Pollution Control Commission Rules and Regulations (NPCC) as
amended by Department of Energy and Natural Resources (DENR) Administrative Order
No. 34.[3] LLDA informed TACC that it must put up its own Sewage Treatment Plant (STP)
for its effluent discharge to meet government standards.
Since a sewage treatment plant would cost approximately P15 million to put up, TACC
experimented with a proposed solution from Larutan Resources Development Corporation,
which treated the septic vault water with biological enzymes. Still, TACCs water discharge
failed to meet the government standards.
On 26 March 1999, LLDAs Environmental Division collected samples of TACCs
wastewater. In a report dated 6 April 1999, LLDA found two determinants in TACCs
samples: (1) Chemical Oxygen Demand (COD) and (2) Oil/Grease (OG). LLDA found that
TACCs samples failed to meet government standards of 150 for COD and 5 for OG.
In a Notice of Violation[4] dated 6 May 1999, LLDA directed TACC to submit corrective
measures to abate or control its water effluents discharged into the Laguna de Bay. LLDA
likewise imposed upon TACC a daily fine of P1,000 from 26 March 1999 until full cessation
of pollutive wastewater discharge.
TACC entered into an agreement with World Chem Marketing for the construction of the
STP for P7,550,000. The construction was completed by the second week of October
2001.
In an Order dated 19 July 1999, LLDA stated that the daily penalty was imposed upon
TACC for the pollutive wastewater discharge, and to condone the penalty would be
tantamount to tolerating the pollution of the river bodies and the Laguna de Bay which is
contrary to LLDAs mandate.
On 1 April 2002, TACC requested LLDA to dismiss the water pollution case against it
because of the favorable analysis undertaken by the LLDAs Pollution Control Division on
28 February 2002. LLDA conducted a hearing on 26 April 2002. In its position paper filed
on 15 May 2002, TACC requested LLDA to condone the imposition of the penalty
of P1,000 per day since March 1999 in recognition of the remedial and corrective
measures it undertook to comply with government standards.
On 4 September 2003, LLDA issued an Order requiring TACC to pay a fine of P1,062,000
representing the penalty from 26 March 1999 to 20 February 2002.
TACC filed a petition for certiorari before the Court of Appeals with a prayer for the
issuance of a temporary restraining order.

The Decision of the Court of Appeals
In its 26 April 2005 Decision, the Court of Appeals resolved the petition as follows:
WHEREFORE, premises considered, instant petition is
DISMISSED. Accordingly, the prayer for temporary restraining order is
DENIED.
SO ORDERED.[5]
The Court of Appeals sustained LLDAs contention that the petition for certiorari was
prematurely filed. LLDA pointed out that TACC failed to file a motion for reconsideration of
the 4 September 2003 Order before filing the petition before the Court of Appeals. The Court
of Appeals also ruled that before a party is allowed to seek the courts intervention, he should
have availed of all the means of administrative processes afforded him. The Court of
Appeals ruled that the proper remedy should have been to resort to an administrative
remedy before the DENR Secretary prior to judicial action. The Court of Appeals noted
LLDAs allegation of TACCs offer to compromise, which LLDA countered with an advice to
address the offer to the Commission on Audit (COA). Hence, the Court of Appeals found
that TACC had not abandoned its administrative remedies despite simultaneous resort to
judicial action.
The Court of Appeals ruled that under Republic Act No. 4850 [6] (RA 4850), as amended by
Presidential Decree No. 813,[7] LLDA shall be compensated for the damages to the water
and aquatic resources of Laguna de Bay resulting from failure to meet established water
and effluent quality standards. The Court of Appeals ruled that under Section 4 of
Executive Order No. 927, series of 1983,[8] LLDA is mandated to make, alter or modify
orders requiring the discontinuation of pollution specifying the conditions and the time
within which such discontinuance must be accomplished. Further, the Court of Appeals
ruled that Presidential Decree No. 984[9] provides for penalties for violation or non-
compliance with any order, decision or regulation of the Commission for the control or
abatement of pollution.
TACC filed a motion for reconsideration. In its 1 August 2005 Resolution, the Court of
Appeals denied the motion.
Hence, the petition before this Court.
The Issues
TACC raises the following issues in its memorandum:
1. Whether the Court of Appeals erred in
disregarding TACCs exhaustive efforts in
complying with the governments standards on
effluent discharge; and
2. Whether the Court of Appeals erred in finding that
the petition for certiorari was prematurely filed.
The Ruling of this Court
The petition has no merit.
Non-Exhaustion of Administrative Remedies
The Court of Appeals ruled that due to the transfer of LLDA to the DENR under Executive
Order No. 149[10] (EO 149), TACC should have first resorted to an administrative remedy
before the DENR Secretary prior to filing a petition for certiorari before the Court of Appeals.
The doctrine of non-exhaustion of administrative remedies requires that resort be first made
with the administrative authorities in the resolution of a controversy falling under their
jurisdiction before the controversy may be elevated to a court of justice for review. [11] A
premature invocation of a courts intervention renders the complaint without cause of action
and dismissible.[12]
EO 149 transferred LLDA from the Office of the President to the DENR for policy and
program coordination and/or administrative supervision x x x.[13] Under EO 149, DENR only
has administrative power over LLDA.Administrative power is concerned with the work of
applying policies and enforcing orders as determined by proper governmental organs. [14]
However, Executive Order No. 192[15] (EO 192), which reorganized the DENR, mandates
the DENR to promulgate rules and regulations for the control of water, air and land pollution
and to promulgate ambient and effluent standards for water and air quality including the
allowable levels of other pollutants and radiations. [16] EO 192 created the Pollution
Adjudication Board[17] under the Office of the DENR Secretary which assumed the powers
and functions of the NPCC with respect to the adjudication of pollution cases, including
NPCCs function to [s]erve as arbitrator for the determination of reparation, or restitution of
the damages and losses resulting from pollution. [18] Hence, TACC has an administrative
recourse before the DENR Secretary which it should have first pursued before filing a
petition for certiorari before the Court of Appeals.
Powers of the LLDA to Impose Penalty
RA 4850 specifically mandates LLDA to carry out and make effective the declared national
policy of promoting and accelerating the development and balanced growth of the Laguna
Lake area and the surrounding provinces of Rizal and Laguna and the cities of San Pablo,
Manila, Pasay, Quezon and Caloocan with due regard and adequate provisions for
environmental management and control, preservation of the quality of human life and
ecological systems, and the prevention of undue ecological disturbances, deterioration and
pollution.[19] LLDA, by virtue of its special charter, has the responsibility to protect the
inhabitants of the Laguna Lake region from the deleterious effects of pollutants emanating
from the discharge of wastes from the surrounding areas. [20]
Under Section 4-A of RA 4850, as amended, LLDA is entitled to compensation for
damages resulting from failure to meet established water and effluent quality standards,
thus:
Sec. 4-A. Compensation for damages to the water and aquatic resources
of Laguna de Bay and its tributaries resulting from failure to meet
established water and effluent quality standards and from such other
wrongful act or omission of a person, private or public, juridical or
otherwise, punishable under the law shall be awarded to the Authority to
be earmarked for water quality control and management.
In the present case, TACC does not challenge LLDAs authority to impose the
fine. However, TACC argues that since it had already exhausted efforts and substantially
spent to comply with established effluent quality standards, the daily penalty imposed by the Auditor Malit had advised. Hence, it is not proven that this petition was simultaneously
LLDA is an unwarranted financial burden to its unit owners and should thus be availed of with the offer to compromise.
condoned. TACC further argues that the non-compliance with government standards was
due to the omission and fault of PhilRealty. Failure to File a Motion for Reconsideration

TACCs arguments have no merit.
PhilRealty formally turned over the project to TACC on 31 December 1993. Thereafter,
TACC managed the project. It was almost five years after, or on 24 June 1998, when LLDA
advised TACC that its wastewater did not meet government effluent standards. It is clear
that the responsibility to comply with government standards lies with TACC.If, as claimed
by TACC, the non-compliance was due to the omission and fault of PhilRealty, TACCs
recourse is to file an action, if warranted, against PhilRealty in a proper court. TACC
cannot escape its liability to LLDA by shifting the blame to PhilRealty. Hence, the LLDA did
not abuse its discretion in issuing its 4 September 2003 Order.
Condonation of Penalty and Pending Offer to Compromise
As regards the condonation of the penalty, the power to compromise claims is vested
exclusively in the COA or Congress pursuant to Section 20 (1), Chapter IV, Subtitle B, Title
I, Book V of Executive Order No. 292 (Administrative Code of 1987) which provides:
Section 20. Power to Compromise Claims. - (1) When the interest of the
Government so requires, the Commission may compromise or release in
whole or in part, any settled claim or liability to any government agency
not exceeding ten thousand pesos arising out of any matter or case
before it or within its jurisdiction, and with the written approval of the
President, it may likewise compromise or release any similar claim or
liability not exceeding one hundred thousand pesos. In case the claim or
liability exceeds one hundred thousand pesos, the application for relief
therefrom shall be submitted, through the Commission and the President,
with their recommendations, to the Congress[.] x x x
For a petition for certiorari under Rule 65 of the Rules of Court to prosper, TACC must
show that (1) the LLDA acted without or in excess of its jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction and (2) there is no appeal or a plain,
speedy and adequate remedy in the ordinary course of law.
The plain and adequate remedy referred to in Section 1 of Rule 65 is a motion for
reconsideration of the assailed decision.[26] The purpose of this requirement is to enable the
court or agency to rectify its mistakes without the intervention of a higher court. [27] To
dispense with this requirement, there must be a concrete, compelling, and valid reason for
the failure to comply with the requirement. [28] Petitioner may not arrogate to itself the
determination of whether a motion for reconsideration is necessary or not. [29]
In the present case, TACC did not file a motion for reconsideration of the 4 September 2003
Order. TACC also failed to show sufficient compelling and valid reason to dispense with the
requirement of filing a motion for reconsideration.Hence, we agree with the Court of Appeals
that the petition for certiorari was prematurely filed before it.
Finally, TACC wants the Court to review the mandate of LLDA to help transform it from a
regulatory agency into a developmental and promotional agency. However, we agree with
LLDA that such a review of LLDAs charter is not within the jurisdiction of this Court.
WHEREFORE, we DENY the petition. We AFFIRM the 26 April 2005 Decision and 1 August
2005 Resolution of the Court of Appeals in CA-G.R. SP No. 82409.
SO ORDERED.

In a letter dated 5 May 2004,[21] TACC manifested its offer to compromise by paying a
reduced fine of P500,000. In its response dated 8 July 2004, [22] LLDA stated that the
proposal would be forwarded to LLDAs Board of Directors although it is necessary that the
case be withdrawn from the court. In a letter dated 11 September 2004,[23] TACC stated that
in a regular meeting held on 6 September 2004, the members of TACCs Board of Directors
unanimously agreed to withdraw the petition for certiorari before the Court of Appeals,
provided the LLDA would agree to reduce the penalty to P500,000. In a letter dated 22
September 2004,[24] LLDA referred the offer to its resident auditor Antonio M. Malit (Auditor
Malit) on the ground that only the COA had the authority to compromise settlement of
obligations to the State. In a letter dated 23 September 2004, Auditor Malit informed LLDA
that the power to compromise claims is vested exclusively in the COA pursuant to Section
36 of Presidential Decree No. 1445.[25]Auditor Malit stated that the request for compromise
should be addressed to COA. However, since the amount of the penalty sought to
be condoned is P1,062,000, the authority to compromise such claim is vested exclusively in
Congress pursuant to Section 20 (1), Chapter IV, Subtitle B, Title I, Book V of the
Administrative Code of 1987. This remedy is not administrative but legislative, and need not
be resorted to before filing a judicial action.

Moreover, the Court cannot sustain the Court of Appeals finding that there was a pending
offer to compromise when the petition for certiorari was filed before it. There is nothing in
the records that indicates that TACC withdrew its offer of compromise. At the same time,
there is also nothing to indicate that TACC submitted a compromise offer to COA, as