PANGANIBAN, SHANNA MAE L NATRES AND ENVI LAW

2013 0245 ATTY. J. OSWALD B LORENZO

Homework: Digest and Analyze Issues:

1) Discuss the constitutionality of the Financial Technical Assistance Agreement.

Case: LA BUGAL-BLAAN TRIBAL ASSOCIATION, INC. vs. RAMOS

Citation: G.R. NO. 127882 (445 SCRA 1)
December 1, 2004

2) MMDA - Manila Bay Case (on Continuing Mandamus)

Case: METROPOLITAN MANILA DEVELOPMENT AUTHORITY vs.

CONCERNED RESIDENTS OF MANILA BAY
Citation: G.R. NOS. 171947-48 (643 SCRA 90)
February 15, 2011

3) Oposa vs Factoran

Case: OPOSA VS. FACTORAN, JR.

Citation: G.R. No. 101083 (224 SCRA 792)
July 30, 1993

4) Writ of Kalikasan, RE: West Tower

Case: WEST TOWER CONDOMINIUM CORPORATION vs.

FIRST PHILIPPINE INDUSTRIAL CORPORATION
Citation: G.R. No. 194239
June 16, 2015

5) Do dolphins and whales have a standing to sue in court?

Case: RESIDENT MARINE MAMMALS OF THE PROTECTED

SEASCAPE TAON STRAIT, e.g., TOOTHED WHALES,
DOLPHINS, PORPOISES, AND OTHER CETACEAN SPECIES,
(Joined in and Represented herein by Human Beings Gloria Estenzo, Ramos
and Rose-Liza Eisma-Osorio, In Their Capacity as Legal Guardians of the
Lesser Life-Forms and as Responsible Stewards of Gods Creations)
Citation: G.R. No. 194239
June 16, 2015
1) Discuss the constitutionality of the Financial Technical Assistance Agreement.

Case: LA BUGAL-BLAAN TRIBAL ASSOCIATION, INC. vs. RAMOS

Citation: G.R. NO. 127882 (445 SCRA 1)
December 1, 2004

FACTS:

RA 7942 (The Philippine Mining Act) took effect on April 9, 1995. Before the effectivity
of RA 7942, or on March 30, 1995, the President signed a Financial and Technical Assistance
Agreement (FTAA) with WMCP, a corporation organized under Philippine laws, covering close
to 100,000 hectares of land in South Cotabato, Sultan Kudarat, Davao del Sur and North
Cotabato. On August 15, 1995, the Environment Secretary Victor Ramos issued DENR
Administrative Order 95-23, which was later repealed by DENR Administrative Order 96-40,
adopted on December 20, 1996.

Petitioners prayed that RA 7942, its implementing rules, and the FTAA between the government
and WMCP be declared unconstitutional on ground that they allow fully foreign owned
corporations like WMCP to exploit, explore and develop Philippine mineral resources in
contravention of Article XII Section 2 paragraphs 2 and 4 of the Charter.

In January 2001, WMC - a publicly listed Australian mining and exploration company - sold its
whole stake in WMCP to Sagittarius Mines, 60% of which is owned by Filipinos while 40% of
which is owned by Indophil Resources, an Australian company. DENR approved the transfer and
registration of the FTAA in Sagittarius name but Lepanto Consolidated assailed the same. The
latter case is still pending before the Court of Appeals.

EO 279, issued by former President Aquino on July 25, 1987, authorizes the DENR to accept,
consider and evaluate proposals from foreign owned corporations or foreign investors for
contracts or agreements involving wither technical or financial assistance for large scale
exploration, development and utilization of minerals which upon appropriate recommendation of
the (DENR) Secretary, the President may execute with the foreign proponent. WMCP likewise
contended that the annulment of the FTAA would violate a treaty between the Philippines and
Australia which provides for the protection of Australian investments.

ISSUE:

Whether or not the FTAA between the government and WMCP is unconstitutional

RULING:

UNCONSTITUTIONAL.

An FTAA is defined as "a contract involving financial or technical assistance for large-
scale exploration, development, and utilization of natural resources." Any qualified person with
technical and financial capability to undertake large-scale exploration, development, and
utilization of natural resources in the Philippines may enter into such agreement directly with the
Government through the DENR. For the purpose of granting an FTAA, a legally organized
foreign-owned corporation (any corporation, partnership, association, or cooperative duly
registered in accordance with law in which less than 50% of the capital is owned by Filipino
citizens) is deemed a "qualified person."

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Other than the difference in contractors' qualifications, the principal distinction between mineral
agreements and FTAAs is the maximum contract area to which a qualified person may hold or be
granted. "Large-scale" under R.A. No. 7942 is determined by the size of the contract area, as
opposed to the amount invested (US $50,000,000.00), which was the standard under E.O. 279.
Like a CA or a JVA, an FTAA is subject to negotiation. The Government's contributions, in the
form of taxes, in an FTAA is identical to its contributions in the two mineral agreements, save
that in an FTAA:

The collection of Government share in financial or technical assistance agreement shall

commence after the financial or technical assistance agreement contractor has fully recovered its
pre-operating expenses, exploration, and development expenditures, inclusive.

THIS COURT FINDS THAT R.A. NO. 7942 IS INVALID insofar as said Act authorizes
service contracts. Although the statute employs the phrase "financial and technical agreements" in
accordance with the 1987 Constitution, it actually treats these agreements as service contracts that
grant beneficial ownership to foreign contractors contrary to the fundamental law.

The FTAA between he WMCP and the Philippine government is unconstitutional since the
agreement itself is a service contract.
Are service contracts allowed under the new Constitution? No. Under the new Constitution,
foreign investors (fully alien-owned) can NOT participate in Filipino enterprises except to
provide: (1) Technical Assistance for highly technical enterprises; and (2) Financial Assistance
for large-scale enterprises.

The intent of this provision, as well as other provisions on foreign investments, is to prevent the
practice (prevalent in the Marcos government) of skirting the 60/40 equation using the cover of
service contracts.

Section 1.3 of the FTAA grants WMCP a fully foreign owned corporation, the exclusive right to
explore, exploit, utilize and dispose of all minerals and by-products that may be produced from
the contract area. Section 1.2 of the same agreement provides that EMCP shall provide all
financing, technology, management, and personnel necessary for the Mining Operations.

These contractual stipulations and related provisions in the FTAA taken together, grant WMCP
beneficial ownership over natural resources that properly belong to the State and are intended for
the benefit of its citizens. These stipulations are abhorrent to the 1987 Constitution. They are
precisely the vices that the fundamental law seeks to avoid, the evils that it aims to suppress.
Consequently, the contract from which they spring must be struck down.

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2) MMDA - Manila Bay Case (on Continuing Mandamus)

Case: METROPOLITAN MANILA DEVELOPMENT AUTHORITY vs.

CONCERNED RESIDENTS OF MANILA BAY
Citation: G.R. NOS. 171947-48 (643 SCRA 90)
February 15, 2011

FACTS:

On January 29, 1999, respondents Concerned Residents of Manila Bay filed a complaint
before the Regional Trial Court (RTC) in Imus, Cavite against several government agencies,
among them the petitioners, for the cleanup, rehabilitation, and protection of the Manila Bay, and
to submit to the RTC a concerted concrete plan of action for the purpose.

The complaint alleged that the water quality of the Manila Bay had fallen way below the
allowable standards set by law, which was confirmed by DENRs Water Quality Management
Chief, Renato T. Cruz that water samples collected from different beaches around the Manila Bay
showed that the amount of fecal coliform content ranged from 50,000 to 80,000 most probable
number (MPN)/ml which is beyond the standard 200 MPN/100ml or the SB level under DENR
Administrative Order No. 34-90.

The reckless, wholesale, accumulated and ongoing acts of omission or commission [of the
defendants] resulting in the clear and present danger to public health and in the depletion and
contamination of the marine life of Manila Bay, the RTC held petitioners liable and ordered to
clean up and rehabilitate Manila Bay and to restore its water quality to class B waters fit for
swimming, skin-diving, and other forms of contact recreation.[3]

Herein petitioners appealed before the Court of Appeals contending that the pertinent provisions
of the Environment Code (PD 1152) relate only to the cleaning of specific pollution incidents and
do not cover cleaning in general. They also asserted that the cleaning of the Manila Bay is not a
ministerial act which can be compelled by mandamus.

Part of the December 18, 2008 decision of this Court states:

(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM,
PCG, PNP Maritime Group, DILG, and also of MWSS, LWUA, and PPA, in line with the
principle of continuing mandamus, shall, from finality of this Decision, each submit to
the Court a quarterly progressive report of the activities undertaken in accordance with t
his Decision.

The government agencies did not file any motion for reconsideration and the Decision became
final in January 2009. The case is now in the execution phase of the final and executory
December 18, 2008 Decision. The Manila Bay Advisory Committee was created to receive and
evaluate the quarterly progressive reports on the activities undertaken by the agencies in
accordance with said decision and to monitor the execution phase.

In the absence of specific completion periods, the Committee recommended that time frames be
set for the agencies to perform their assigned tasks.

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ISSUE:

(1) Whether petitioners be compelled by mandamus to clean up and rehabilitate the Manila
Bay.

(2) Whether mandamus may viewed as an encroachment over the powers and functions of
the Executive Branch headed by the President of the Philippines.

RULING:

(1) Supreme Court held that the cleaning up and rehabilitating Manila Bay is a ministerial in
nature and can be compelled by mandamus. Sec. 3(c) of R.A. No. 7924 (the law creating
MMDA) states that the MMDA is mandated to put up an adequate and appropriate sanitary
landfill and solid waste and liquid disposal as well as other alternative garbage disposal systems.
SC also noted that MMDAs duty in the area of solid waste disposal is set forth not only in the
Environment Code (PD 1152) and RA 9003, but also in its charter, therefore, it is ministerial in
nature and can be compelled by mandamus.

(2) View is misplaced. The issuance of subsequent resolutions by the Court is simply an exercise
of judicial power under Art. VIII of the Constitution, because the execution of the Decision is but
an integral part of the adjudicative function of the Court. None of the agencies ever questioned
the power of the Court to implement the December 18, 2008 Decision nor has any of them raised
the alleged encroachment by the Court over executive functions.

While additional activities are required of the agencies like submission of plans of action, data or
status reports, these directives are but part and parcel of the execution stage of a final decision
under Rule 39 of the Rules of Court. The final judgment includes not only what appears upon its
face to have been so adjudged but also those matters actually and necessarily included therein or
necessary thereto. Certainly, any activity that is needed to fully implement a final judgment is
necessarily encompassed by said judgment.

With the final and executory judgment in MMDA, the writ of continuing mandamus issued in
MMDA means that until petitioneragencies have shown full compliance with the Courts orders,
the Court exercises continuing jurisdiction over them until full execution of the judgment.
There being no encroachment over executive functions to speak of, they may now proceed to the
recommendation of the Manila Bay Advisory Committee.

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3) Oposa vs Factoran

Case: OPOSA VS. FACTORAN, JR.

Citation: G.R. No. 101083 (224 SCRA 792)
July 30, 1993

FACTS:

The plaintiffs in this case are all minors duly represented and joined by their
parents. The first complaint was filed as a taxpayer's class suit at the Branch 66 (Makati,
Metro Manila), of the Regional Trial Court, National capital Judicial Region against
defendant (respondent) Secretary of the Department of Environment and Natural
Reasources (DENR). Plaintiffs alleged that they are entitled to the full benefit, use and
enjoyment of the natural resource treasure that is the country's virgin tropical forests.
They further asseverate that they represent their generation as well as generations yet
unborn and asserted that continued deforestation have caused a distortion and disturbance
of the ecological balance and have resulted in a host of environmental tragedies.

Plaintiffs prayed that judgement be rendered ordering the respondent, his agents,
representatives and other persons acting in his behalf to cancel all existing Timber
License Agreement (TLA) in the country and to cease and desist from receiving,
accepting, processing, renewing or approving new TLAs.

Defendant, on the other hand, filed a motion to dismiss on the ground that the complaint
had no cause of action against him and that it raises a political question.

The RTC Judge sustained the motion to dismiss, further ruling that granting of the relief
prayed for would result in the impairment of contracts which is prohibited by the
Constitution.

Plaintiffs (petitioners) thus filed the instant special civil action for certiorari and asked the
court to rescind and set aside the dismissal order on the ground that the respondent RTC
Judge gravely abused his discretion in dismissing the action.

ISSUE/S:

(1) Whether or not petitioners have a cause of action

(2) Whether or not the petitioners have legal standing on the said case

RULING:

(1) YES. There is a cause of action for a right is violated. The complaint focuses on one
specific fundamental legal rightthe right to a balanced and healthful ecology which, for
the first time in our nations constitutional history, is solemnly incorporated in the

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fundamental law. The right to a balanced and healthful ecology carries with it the
correlative duty to refrain from impairing the environment. Thus, the right of the
petitioners (and all those they represent) to a balanced and healthful ecology is as clear as
the DENRs dutyunder its mandate and by virtue of its powers and functions under
E.O. No. 192 and the Administrative Code of 1987to protect and advance the said
right.

(2) YES. Petitioners-minors assert that they represent their generation as well as
generations yet unborn. We find no difficulty in ruling that they can, for themselves, for
others of their generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based on the
concept of intergenerational responsibility insofar as the right to a balanced and healthful
ecology is concerned. Such a right, as hereinafter expounded, considers the rhythm and
harmony of nature.

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4) Writ of Kalikasan, RE: West Tower

Case: WEST TOWER CONDOMINIUM CORPORATION vs.

FIRST PHILIPPINE INDUSTRIAL CORPORATION
Citation: G.R. No. 194239
June 16, 2015

FACTS:

FPIC operates two pipelines: (1) the White Oil Pipeline (WOPL) System, covering a
117km stretch from Batangas to the Pandacan Terminal in Manila and transports diesel, gasoline,
jet fuel and kerosene; and (b) the Black Oil Pipeline (BOPL) System, which extends 105km and
transports bunker fuel from Batangas to a depot in Sucat, Paraaque. These systems transport
nearly 60% of the petroleum requirements of Metro Manila and parts of the provinces of Bulacan,
Laguna, and Rizal.

The pipelines were supposedly designed to provide more than double the standard safety
allowance against leakage. In May 2010, however, a leakage from one of the pipelines was
suspected after the residents of West Tower Condominium started to smell gas within the
condominium. Owing to its inability to control the flow, West Towers management reported the
matter to the Police Department of Makati City, which in turn called the citys Bureau of Fire
Protection. What started as a two-drum leak at the initial stages became a 15-20 drum a day
affair. Eventually, the sump pit of the condominium was ordered shut. The fumes compelled the
residents of West Tower to abandon their units and the condos power was shut down. FPIC
initially disowned any leak from its oil pipeline. Thus, the residents of West Tower shouldered
the expenses of hauling the wastewater from its basement.

The UP-National Institute of Geological Sciences (UP-NIGS), which the City of Makati invited
to determine the source of the fuel, found a leak in FPICs. A day after, FPIC admitted that
indeed the source of the fuel leak is the WOPL, but denied liability by placing blame on the
construction activities surrounding WT.

West Tower Corp. interposed the present Petition for the Issuance of a Writ of Kalikasan on
behalf of the residents of West Tower and in representation of the surrounding communities in
Barangay Bangkal, Makati City alleging that it is joined by the civil society and several peoples
organizations, NGOs and public interest groups who have expressed their intent to join the suit
because of the magnitude of the environmental issues involved. They further argued that FPICs
omission or failure to timely replace its pipelines and to observe extraordinary diligence caused
the petroleum spill in the City of Makati. That the continued use of the now 47-year old pipeline
would not only be a threat to the lives, health, and property of those who live in all the
municipalities in which the pipeline is laid, but would also affect the rights of the generations yet
unborn to live in a balanced and healthful ecology, guaranteed under Section 16, Article II of
the 1987 Constitution.

On November 19, 2010, the Court issued the Writ of Kalikasan with a Temporary Environmental
Protection Order (TEPO). Respondents alleged that: petitioners had no legal capacity to institute
the petition; there is no allegation that the environmental damage affected the inhabitants of two
(2) or more cities or provinces; and the continued operation of the pipeline should be allowed in
the interest of maintaining adequate petroleum supply to the public. Further, they are also
claiming that not all requirements for the issuance of the Writ of Kalikasan are present and there
is no showing that West Tower Corp. was authorized by all those it claimed to represent.

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ISSUE:

Whether issuance of Writ of Kalikasan is Proper

RULING:

YES. It is of no moment that only five residents of West Tower signed their acquiescence
to the filing of the petition for the issuance of the Writ of Kalikasan, as the merits of such petition
is, as aptly put by the CA, not measured by the number of persons who signified their assent
thereto, but on the existence of a prima facie case of a massive environmental disaster.

The contentions that the case is already moot and academic, that the writ of kalikasan has already
served its function, and that the delay in the lifting of the TEPO may do more harm than good are
anchored on the mistaken premise that the precautionary principle was applied in order to justify
the order to the DOE and the FPIC for the conduct of the various tests anew. The following
reasons easily debunk these arguments:

1. The precautionary principle is not applicable to the instant case;

2. The DOE certification is not an absolute attestation as to the WOPLs structural integrity
and in fact imposes several conditions for FPICs compliance;

3. The DOE itself, in consultation with FPIC and the other concerned agencies, proposed
the activities to be conducted preparatory to the reopening of the pipeline; and

4. There are no conclusive findings yet on the WOPLs structural integrity.

Section 1, Rule 20 of A.M. No. 09-6-8-SC or the Rules of Procedure for Environmental Cases, on
the Precautionary Principle, provides that [w]hen there is lack of full scientific certainty in
establishing a causal link between human activity and environmental effect, the court shall apply
the precautionary principle in resolving the case before it. According to the dissent, the directive
for the repetition of the tests is based on speculations, justified by the application of said
principle. This, however, is not the case. Nowhere was the precautionary principle applied in
deciding the issue on the WOPLs structural integrity. The precautionary principle only applies
when the link between the cause, that is the human activity sought to be inhibited, and the effect,
that is the damage to the environment, cannot be established with full scientific certainty. Here,
however, such absence of a link is not an issue. Detecting the existence of a leak or the presence
of defects in the WOPL, which is the issue in the case at bar, is different from determining
whether the spillage of hazardous materials into the surroundings will cause environmental
damage or will harm human health or that of other organisms. As a matter of fact, the petroleum
leak and the harm that it caused to the environment and to the residents of the affected areas is not
even questioned by FPIC.

It must be stressed that what is in issue in the instant petition is the WOPLs compliance with
pipeline structure standards so as to make it fit for its purpose, a question of fact that is to be
determined on the basis of the evidence presented by the parties on the WOPLs actual state. The
issue, therefore, on the pipelines structural integrity has not yet been rendered moot and remains
to be subject to the Courts resolution. Consequently, it cannot be said that the DOEs issuance of
the certification adverted to equate to the writ of kalikasan being functus officio.

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5) Do dolphins and whales have a standing to sue in court?

Case: RESIDENT MARINE MAMMALS OF THE PROTECTED

SEASCAPE TAON STRAIT, e.g., TOOTHED WHALES,
DOLPHINS, PORPOISES, AND OTHER CETACEAN SPECIES,
(Joined in and Represented herein by Human Beings Gloria Estenzo, Ramos
and Rose-Liza Eisma-Osorio, In Their Capacity as Legal Guardians of the
Lesser Life-Forms and as Responsible Stewards of Gods Creations)
Citation: G.R. No. 194239
June 16, 2015

FACTS:

Petitioners collectively referred to as the Resident Marine Mammals, are the toothed
whales, dolphins, porpoises, and other cetacean species, which inhabit the waters of Taon Strait.
They are joined by their legal guardians and friends (to be collectively known as the Stewards)
who allegedly empathize with, and seek the protection of, the aforementioned marine species.
Respondents are the then Secretaries of the DOE and the DENR; The DENR- Regional Director
for Region VII and Chairman of the Taon Strait Protected Seascape Management Board; Japan
Petroleum Exploration Co., Ltd. (JAPEX) and Supply Oilfield Services, Inc. (SOS).

On June 13, 2002, the Government of the Philippines, acting through the DOE, entered into a
Geophysical Survey and Exploration Contract-102 (GSEC-102) with JAPEX involving
geological and geophysical studies of the Taon Strait which includes surface geology, sample
analysis, and reprocessing of seismic and magnetic data. JAPEX, assisted by DOE, also
conducted geophysical and satellite surveys, as well as oil and gas sampling in Taon Strait.

On December 21, 2004, DOE and JAPEX formally converted GSEC- 102 into SC-46 for the
exploration, development, and production of petroleum resources in a block covering
approximately 2,850 square kilometers offshore the Taon Strait.

On March 6, 2007, the EMB of DENR Region VII granted an ECC to the DOE and JAPEX for
the offshore oil and gas exploration project. Months later, JAPEX began to drill an exploratory
well, with a depth of 3,150 meters, near Pinamungajan town in the western Cebu Province. This
drilling lasted until February 8, 2008.

It was in view of the foregoing state of affairs that petitioners applied to this Court for redress,
wherein they commonly seek that respondents be enjoined from implementing SC-46 for, among
others, violation of the 1987 Constitution. Protesting the adverse ecological impact of JAPEXs
oil exploration activities in the Taon Strait, petitioners aver that a study made after the seismic
survey showed that the fish catch was reduced drastically by 50 to 70 percent, attributing this
reduced fish catch to the destruction of the payao, also known as the fish aggregating
device or artificial reef. Petitioners Resident Marine Mammals and Stewards also impute the
incidences of fish kill observed by some of the local fisherfolk to the seismic survey. The
petitioner agree public respondents DENR and EMB abused their discretion when they issued an
ECC to public respondent DOE and private respondent JAPEX without ensuring the strict
compliance with the procedural and substantive requirements under the Environmental Impact
Assessment system, the Fisheries Code, and their implementing rules and regulations

Public Respondents aver that petitioners have no legal standing to file the present petition.

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ISSUE:

Whether or not petitioners have locus standi

RULING:

YES. The primary reason animal rights advocates and environmentalists seek to give
animals and inanimate objects standing is due to the need to comply with the strict requirements
in bringing a suit to court. Our own 1997 Rules of Court demand that parties to a suit be either
natural or juridical persons, or entities authorized by law. It further necessitates the action to be
brought in the name of the real party-in-interest, even if filed by a representative. Many
environmental cases have been dismissed for failure of the petitioner to show that he/she would
be directly injured or affected by the outcome of the case. However, in our jurisdiction, locus
standi in environmental cases has been given a more liberalized approach.

Our Rules of Procedure for Environmental Cases, now allow for a citizen suit, and permit any
Filipino citizen to file an action before our courts for violations of our environmental laws. But
even before the Rules of Procedure for Environmental Cases became effective, this Court had
already taken a permissive position on the issue of locus standi in environmental cases. In Oposa,
the suit was allowed to be brought in the name of generations yet unborn based on the concept
of intergenerational responsibility insofar as the right to a balanced and healthful ecology is
concerned. Furthermore, it was said that the right to a balanced and healthful ecology, a right
that does not even need to be stated in our Constitution as it is assumed to exist from the
inception of humankind, carries with it the correlative duty to refrain from impairing the
environment.

In light of the foregoing, the need to give the Resident Marine Mammals legal standing has been
eliminated by our Rules, which allow any Filipino citizen, as a steward of nature, to bring a suit
to enforce our environmental laws. It is worth noting here that the Stewards are joined as real
parties in the Petition and not just in representation of the named cetacean species. The Stewards,
Ramos and Eisma-Osorio, having shown in their petition that there may be possible violations of
laws concerning the habitat of the Resident Marine Mammals, are therefore declared to possess
the legal standing to file this petition.

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