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 order11 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 order16 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.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by
their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her
parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES,
minors and represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor,
represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all
surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN
V. PESIGAN, minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO,
minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO,
minor, represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA,
minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA,
JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their
parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN,
all surnamed KING, minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO
and THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and
TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented by their
parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA,
minors, represented by their parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and
IMEE LYN, all surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA
OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented
by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and
FRANCISCO, all surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS
BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of
Environment and Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of
the RTC, Makati, Branch 66, respondents.

Oposa Law Office for petitioners.

The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which
the petitioners dramatically associate with the twin concepts of "inter-generational responsibility" and
"inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have a
cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the
unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth."

The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro
Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein,
now the principal petitioners, are all minors duly represented and joined by their respective parents.
Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock
and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action geared
for the protection of our environment and natural resources. The original defendant was the Honorable
Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural Resources
(DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was
subsequently ordered upon proper motion by the petitioners.1 The complaint2 was instituted as a
taxpayers' class suit3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines,
taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is the
country's virgin tropical forests." The same was filed for themselves and others who are equally concerned
about the preservation of said resource but are "so numerous that it is impracticable to bring them all
before the Court." The minors further asseverate that they "represent their generation as well as
generations yet unborn."4 Consequently, it is prayed for that judgment be rendered:

. . . ordering defendant, his agents, representatives and other persons acting in his behalf
to —

(1) Cancel all existing timber license agreements in the country;

(2) Cease and desist from receiving, accepting, processing, renewing or approving new
timber license agreements.

and granting the plaintiffs ". . . such other reliefs just and equitable under the premises."5

The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a
land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in
which varied, rare and unique species of flora and fauna may be found; these rainforests contain a genetic,
biological and chemical pool which is irreplaceable; they are also the habitat of indigenous Philippine
cultures which have existed, endured and flourished since time immemorial; scientific evidence reveals
that in order to maintain a balanced and healthful ecology, the country's land area should be utilized on
the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for agricultural,
residential, industrial, commercial and other uses; the distortion and disturbance of this balance as a
consequence of deforestation have resulted in a host of environmental tragedies, such as (a) water
shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well as of
rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion therein of salt
water, incontrovertible examples of which may be found in the island of Cebu and the Municipality of
Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and agricultural productivity,
with the volume of soil eroded estimated at one billion (1,000,000,000) cubic meters per annum —
approximately the size of the entire island of Catanduanes, (d) the endangering and extinction of the
country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of cultural
communities, including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers
and seabeds and consequential destruction of corals and other aquatic life leading to a critical reduction
in marine resource productivity, (g) recurrent spells of drought as is presently experienced by the entire
country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the
floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of
forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams constructed and operated
for the purpose of supplying water for domestic uses, irrigation and the generation of electric power, and
(k) the reduction of the earth's capacity to process carbon dioxide gases which has led to perplexing and
catastrophic climatic changes such as the phenomenon of global warming, otherwise known as the
"greenhouse effect."

Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation
are so capable of unquestionable demonstration that the same may be submitted as a matter of judicial
notice. This notwithstanding, they expressed their intention to present expert witnesses as well as
documentary, photographic and film evidence in the course of the trial.

As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of
rainforests constituting roughly 53% of the country's land mass.

9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million
hectares of said rainforests or four per cent (4.0%) of the country's land area.

10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth
rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago and
about 3.0 million hectares of immature and uneconomical secondary growth forests.

11. Public records reveal that the defendant's, predecessors have granted timber license
agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million
hectares for commercial logging purposes.

A copy of the TLA holders and the corresponding areas covered is hereto attached as
Annex "A".

12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25
hectares per hour — nighttime, Saturdays, Sundays and holidays included — the
Philippines will be bereft of forest resources after the end of this ensuing decade, if not
earlier.

13. The adverse effects, disastrous consequences, serious injury and irreparable damage
of this continued trend of deforestation to the plaintiff minor's generation and to
generations yet unborn are evident and incontrovertible. As a matter of fact, the
environmental damages enumerated in paragraph 6 hereof are already being felt,
experienced and suffered by the generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and deforest the
remaining forest stands will work great damage and irreparable injury to plaintiffs —
especially plaintiff minors and their successors — who may never see, use, benefit from
and enjoy this rare and unique natural resource treasure.

This act of defendant constitutes a misappropriation and/or impairment of the natural

resource property he holds in trust for the benefit of plaintiff minors and succeeding
generations.

15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and
are entitled to protection by the State in its capacity as the parens patriae.

16. Plaintiff have exhausted all administrative remedies with the defendant's office. On
March 2, 1990, plaintiffs served upon defendant a final demand to cancel all logging
permits in the country.

A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".

17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing
serious damage and extreme prejudice of plaintiffs.

18. The continued failure and refusal by defendant to cancel the TLA's is an act violative
of the rights of plaintiffs, especially plaintiff minors who may be left with a country that is
desertified (sic), bare, barren and devoid of the wonderful flora, fauna and indigenous
cultures which the Philippines had been abundantly blessed with.

19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the
public policy enunciated in the Philippine Environmental Policy which, in pertinent part,
states that it is the policy of the State —

(a) to create, develop, maintain and improve conditions under which man and nature can
thrive in productive and enjoyable harmony with each other;

(b) to fulfill the social, economic and other requirements of present and future
generations of Filipinos and;

(c) to ensure the attainment of an environmental quality that is conductive to a life of

dignity and well-being. (P.D. 1151, 6 June 1977)

20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is

contradictory to the Constitutional policy of the State to —

a. effect "a more equitable distribution of opportunities, income and wealth" and "make
full and efficient use of natural resources (sic)." (Section 1, Article XII of the Constitution);

b. "protect the nation's marine wealth." (Section 2, ibid);

c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14,
Article XIV, id.);

d. "protect and advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature." (Section 16, Article II, id.)

21. Finally, defendant's act is contrary to the highest law of humankind — the natural law
— and violative of plaintiffs' right to self-preservation and perpetuation.

22. There is no other plain, speedy and adequate remedy in law other than the instant
action to arrest the unabated hemorrhage of the country's vital life support systems and
continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint
based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue
raised by the plaintiffs is a political question which properly pertains to the legislative or executive
branches of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1)
the complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory and (3) the action
presents a justiciable question as it involves the defendant's abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss.7 In
the said order, not only was the defendant's claim — that the complaint states no cause of action against
him and that it raises a political question — sustained, the respondent Judge further ruled that the
granting of the relief prayed for would result in the impairment of contracts which is prohibited by the
fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court
and ask this Court to rescind and set aside the dismissal order on the ground that the respondent Judge
gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only
represent their children, but have also joined the latter in this case.8

On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their
respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the
respondents and the petitioners filed a reply thereto.

Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains
sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the
Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of
Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987
Constitution recognizing the right of the people to a balanced and healthful ecology, the concept of
generational genocide in Criminal Law and the concept of man's inalienable right to self-preservation and
self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in
granting Timber License Agreements (TLAs) to cover more areas for logging than what is available involves
a judicial question.

Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners
maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit
that even if TLAs may be considered protected by the said clause, it is well settled that they may still be
revoked by the State when the public interest so requires.

On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific
legal right violated by the respondent Secretary for which any relief is provided by law. They see nothing
in the complaint but vague and nebulous allegations concerning an "environmental right" which
supposedly entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such
allegations, according to them, do not reveal a valid cause of action. They then reiterate the theory that
the question of whether logging should be permitted in the country is a political question which should
be properly addressed to the executive or legislative branches of Government. They therefore assert that
the petitioners' resources is not to file an action to court, but to lobby before Congress for the passage of
a bill that would ban logging totally.

As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the
State without due process of law. Once issued, a TLA remains effective for a certain period of time —
usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled
unless the holder has been found, after due notice and hearing, to have violated the terms of the
agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative of the requirements of due
process.
Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case
No. 90-777 as a class suit. The original defendant and the present respondents did not take issue with this
matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject matter of
the complaint is of common and general interest not just to several, but to all citizens of the Philippines.
Consequently, since the parties are so numerous, it, becomes impracticable, if not totally impossible, to
bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and
representative enough to ensure the full protection of all concerned interests. Hence, all the requisites
for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in
the said civil case and in the instant petition, the latter being but an incident to the former.

This case, however, has a special and novel element. 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." Nature means the created world in its entirety.9 Such rhythm and
harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources to the end that their exploration, development and utilization be equitably accessible
to the present as well as future generations. 10Needless to say, every generation has a responsibility to
the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology.
Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same
time, the performance of their obligation to ensure the protection of that right for the generations to
come.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the
petition.

After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the
issues raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and
rule against the respondent Judge's challenged order for having been issued with grave abuse of discretion
amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows:

xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the Court cannot help but
agree with the defendant. For although we believe that plaintiffs have but the noblest of
all intentions, it (sic) fell short of alleging, with sufficient definiteness, a specific legal right
they are seeking to enforce and protect, or a specific legal wrong they are seeking to
prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the
Complaint is replete with vague assumptions and vague conclusions based on unverified
data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein
defendant.

Furthermore, the Court firmly believes that the matter before it, being impressed with
political color and involving a matter of public policy, may not be taken cognizance of by
this Court without doing violence to the sacred principle of "Separation of Powers" of the
three (3) co-equal branches of the Government.

The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist from receiving, accepting,
processing, renewing or approving new timber license agreements. For to do otherwise
would amount to "impairment of contracts" abhored (sic) by the fundamental law. 11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient
definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is
replete with vague assumptions and conclusions based on unverified data. A reading of the complaint
itself belies these conclusions.

The complaint focuses on one specific fundamental legal right — the right to a balanced and healthful
ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the
fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides:

Sec. 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.

This right unites with the right to health which is provided for in the preceding section of
the same article:

Sec. 15. The State shall protect and promote the right to health of the people and instill
health consciousness among them.

While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and
State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the
civil and political rights enumerated in the latter. Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and self-perpetuation — aptly and fittingly
stressed by the petitioners — the advancement of which may even be said to predate all governments
and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for
they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the
fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a
balanced and healthful ecology and to health are mandated as state policies by the Constitution itself,
thereby highlighting their continuing importance and imposing upon the state a solemn obligation to
preserve the first and protect and advance the second, the day would not be too far when all else would
be lost not only for the present generation, but also for those to come — generations which stand to
inherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing
the environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional
Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and
Commissioner Adolfo Azcuna who sponsored the section in question:

MR. VILLACORTA:

Does this section mandate the State to provide sanctions against all forms
of pollution — air, water and noise pollution?

MR. AZCUNA:

Yes, Madam President. The right to healthful (sic) environment

necessarily carries with it the correlative duty of not impairing the same
and, therefore, sanctions may be provided for impairment of
environmental balance. 12

The said right implies, among many other things, the judicious management and conservation of the
country's forests.

Without such forests, the ecological or environmental balance would be irreversiby disrupted.

Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well
as the other related provisions of the Constitution concerning the conservation, development and
utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10 June
1987 E.O. No. 192, 14 Section 4 of which expressly mandates that the Department of Environment and
Natural Resources "shall be the primary government agency responsible for the conservation,
management, development and proper use of the country's environment and natural resources,
specifically forest and grazing lands, mineral, resources, including those in reservation and watershed
areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as
may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the
welfare of the present and future generations of Filipinos." Section 3 thereof makes the following
statement of policy:

Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to ensure the
sustainable use, development, management, renewal, and conservation of the country's
forest, mineral, land, off-shore areas and other natural resources, including the
protection and enhancement of the quality of the environment, and equitable access of
the different segments of the population to the development and the use of the country's
natural resources, not only for the present generation but for future generations as well.
It is also the policy of the state to recognize and apply a true value system including social
and environmental cost implications relative to their utilization, development and
conservation of our natural resources.

This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of
1987,15 specifically in Section 1 thereof which reads:

Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the Filipino
people, the full exploration and development as well as the judicious disposition,
utilization, management, renewal and conservation of the country's forest, mineral, land,
waters, fisheries, wildlife, off-shore areas and other natural resources, consistent with the
necessity of maintaining a sound ecological balance and protecting and enhancing the
quality of the environment and the objective of making the exploration, development and
utilization of such natural resources equitably accessible to the different segments of the
present as well as future generations.

(2) The State shall likewise recognize and apply a true value system that takes into account
social and environmental cost implications relative to the utilization, development and
conservation of our natural resources.

The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and
enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically
speaks of the mandate of the DENR; however, it makes particular reference to the fact of the agency's
being subject to law and higher authority. Said section provides:

Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources shall be
primarily responsible for the implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of carrying out the State's
constitutional mandate to control and supervise the exploration, development,
utilization, and conservation of the country's natural resources.

Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the
bases for policy formulation, and have defined the powers and functions of the DENR.

It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes
already paid special attention to the "environmental right" of the present and future generations. On 6
June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment
Code) were issued. The former "declared a continuing policy of the State (a) to create, develop, maintain
and improve conditions under which man and nature can thrive in productive and enjoyable harmony
with each other, (b) to fulfill the social, economic and other requirements of present and future
generations of Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to
a life of dignity and well-being." 16 As its goal, it speaks of the "responsibilities of each generation as
trustee and guardian of the environment for succeeding generations." 17 The latter statute, on the other
hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as
clear as the DENR's duty — under its mandate and by virtue of its powers and functions under E.O. No.
192 and the Administrative Code of 1987 — to protect and advance the said right.

A denial or violation of that right by the other who has the corelative duty or obligation to respect or
protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which
they claim was done with grave abuse of discretion, violated their right to a balanced and healthful
ecology; hence, the full protection thereof requires that no further TLAs should be renewed or granted.

A cause of action is defined as:

. . . an act or omission of one party in violation of the legal right or rights of the other; and
its essential elements are legal right of the plaintiff, correlative obligation of the
defendant, and act or omission of the defendant in violation of said legal right. 18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to
state a cause of action, 19 the question submitted to the court for resolution involves the sufficiency of the
facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth of
falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted.
The only issue to be resolved in such a case is: admitting such alleged facts to be true, may the court
render a valid judgment in accordance with the prayer in the complaint? 20 In Militante vs.
Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost care and
circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of action]
lest, by its failure to manifest a correct appreciation of the facts alleged and deemed hypothetically
admitted, what the law grants or recognizes is effectively nullified. If that happens, there is a blot on the
legal order. The law itself stands in disrepute."

After careful examination of the petitioners' complaint, We find the statements under the introductory
affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be
adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they
may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as
the cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the grantees
thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or
determination by the executive or legislative branches of Government is not squarely put in issue. What
is principally involved is the enforcement of a right vis-a-vis policies already formulated and expressed in
legislation. It must, nonetheless, be emphasized that the political question doctrine is no longer, the
insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects
executive and legislative actions from judicial inquiry or review. The second paragraph of section 1, Article
VIII of the Constitution states that:

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.

Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a
distinguished member of this Court, says:

The first part of the authority represents the traditional concept of judicial power,
involving the settlement of conflicting rights as conferred as law. The second part of the
authority represents a broadening of judicial power to enable the courts of justice to
review what was before forbidden territory, to wit, the discretion of the political
departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme Court,
the power to rule upon even the wisdom of the decisions of the executive and the
 legislature and to declare their acts invalid for lack or excess of jurisdiction because
tainted with grave abuse of discretion. The catch, of course, is the meaning of "grave
abuse of discretion," which is a very elastic phrase that can expand or contract according
to the disposition of the judiciary.

In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:

In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before
us was political in nature, we would still not be precluded from revolving it under the
expanded jurisdiction conferred upon us that now covers, in proper cases, even the
political question. Article VII, Section 1, of the Constitution clearly provides: . . .

The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts
clause found in the Constitution. The court a quo declared that:

The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist from receiving, accepting,
processing, renewing or approving new timber license agreements. For to do otherwise
would amount to "impairment of contracts" abhored (sic) by the fundamental law. 24

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in
his motion to dismiss the non-impairment clause. If he had done so, he would have acted with utmost
infidelity to the Government by providing undue and unwarranted benefits and advantages to the timber
license holders because he would have forever bound the Government to strictly respect the said licenses
according to their terms and conditions regardless of changes in policy and the demands of public interest
and welfare. He was aware that as correctly pointed out by the petitioners, into every timber license must
be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:

. . . Provided, That when the national interest so requires, the President may amend,
modify, replace or rescind any contract, concession, permit, licenses or any other form of
privilege granted herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a
contract, property or a property right protested by the due process clause of the Constitution.
In Tan vs. Director of Forestry, 25 this Court held:

. . . A timber license is an instrument by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is promoted. A timber
license is not a contract within the purview of the due process clause; it is only a license
or privilege, which can be validly withdrawn whenever dictated by public interest or
public welfare as in this case.

A license is merely a permit or privilege to do what otherwise would be unlawful, and is

not a contract between the authority, federal, state, or municipal, granting it and the
person to whom it is granted; neither is it property or a property right, nor does it create
a vested right; nor is it taxation (37 C.J. 168). Thus, this Court held that the granting of
license does not create irrevocable rights, neither is it property or property rights (People
vs. Ong Tin, 54 O.G. 7576).

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26

. . . Timber licenses, permits and license agreements are the principal instruments by
which the State regulates the utilization and disposition of forest resources to the end
that public welfare is promoted. And it can hardly be gainsaid that they merely evidence
a privilege granted by the State to qualified entities, and do not vest in the latter a
 permanent or irrevocable right to the particular concession area and the forest products
therein. They may be validly amended, modified, replaced or rescinded by the Chief
Executive when national interests so require. Thus, they are not deemed contracts within
the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree
No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27,
1983, 125 SCRA 302].

Since timber licenses are not contracts, the non-impairment clause, which reads:

Sec. 10. No law impairing, the obligation of contracts shall be passed. 27

cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant case does not
involve a law or even an executive issuance declaring the cancellation or modification of existing timber
licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further that
a law has actually been passed mandating cancellations or modifications, the same cannot still be
stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose,
such as law could have only been passed in the exercise of the police power of the state for the purpose
of advancing the right of the people to a balanced and healthful ecology, promoting their health and
enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:

The freedom of contract, under our system of government, is not meant to be absolute.
The same is understood to be subject to reasonable legislative regulation aimed at the
promotion of public health, moral, safety and welfare. In other words, the constitutional
guaranty of non-impairment of obligations of contract is limited by the exercise of the
police power of the State, in the interest of public health, safety, moral and general
welfare.

The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life
Insurance Co. vs. Auditor General,30 to wit:

Under our form of government the use of property and the making of contracts are
normally matters of private and not of public concern. The general rule is that both shall
be free of governmental interference. But neither property rights nor contract rights are
absolute; for government cannot exist if the citizen may at will use his property to the
detriment of his fellows, or exercise his freedom of contract to work them harm. Equally
fundamental with the private right is that of the public to regulate it in the common
interest.

In short, the non-impairment clause must yield to the police power of the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with
respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing
or approving new timber licenses for, save in cases of renewal, no contract would have as of yet existed
in the other instances. Moreover, with respect to renewal, the holder is not entitled to it as a matter of
right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged
Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The
petitioners may therefore amend their complaint to implead as defendants the holders or grantees of the
questioned timber license agreements.

No pronouncement as to costs.

SO ORDERED.
Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur.

Narvasa, C.J., Puno and Vitug, JJ., took no part.

Separate Opinions

FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to
my mind, is one of the most important cases decided by this Court in the last few years. The seminal
principles laid down in this decision are likely to influence profoundly the direction and course of the
protection and management of the environment, which of course embraces the utilization of all the
natural resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself,
what the Court appears to be saying.

The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and,
maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their
suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a
plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of
"class" here involved — membership in this "class" appears to embrace everyone living in the country
whether now or in the
future — it appears to me that everyone who may be expected to benefit from the course of action
petitioners seek to require public respondents to take, is vested with the necessary locus standi. The Court
may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental
protection, as against both the public administrative agency directly concerned and the private persons
or entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action
may be found under any and all circumstances, or whether some failure to act, in the first instance, on
the part of the governmental agency concerned must be shown ("prior exhaustion of administrative
remedies"), is not discussed in the decision and presumably is left for future determination in an
appropriate case.

The Court has also declared that the complaint has alleged and focused upon "one specific fundamental
legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that
"the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been
"constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it
cannot be characterized as "specific," without doing excessive violence to language. It is in fact very
difficult to fashion language more comprehensive in scope and generalized in character than a right to "a
balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from
factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers,
inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of
organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after
strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs
and other living sea resources through the use of dynamite or cyanide and other chemicals; contamination
of ground water resources; loss of certain species of fauna and flora; and so on. The other statements
pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV,
Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be
formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II,
Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other
hand, a compendious collection of more "specific environment management policies" and "environment
quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics:

(a) air quality management;

(b) water quality management;

(c) land use management;

(d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources;

(ii) wild life;

(iii) forestry and soil conservation;

(iv) flood control and natural calamities;

(v) energy development;

(vi) conservation and utilization of surface and ground water

(vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified
the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a
specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code
identifies with notable care the particular government agency charged with the formulation and
implementation of guidelines and programs dealing with each of the headings and sub-headings
mentioned above. The Philippine Environment Code does not, in other words, appear to contemplate
action on the part of private persons who are beneficiaries of implementation of that Code.

As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the
constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of
Article II of the Constitution are self-executing and judicially enforceable even in their present form. The
implications of this doctrine will have to be explored in future cases; those implications are too large and
far-reaching in nature even to be hinted at here.

My suggestion is simply that petitioners must, before the trial court, show a more specific legal right — a
right cast in language of a significantly lower order of generality than Article II (15) of the Constitution —
that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners
so that the trial court can validly render judgment granting all or part of the relief prayed for. To my mind,
the Court should be understood as simply saying that such a more specific legal right or rights may well
exist in our corpus of law, considering the general policy principles found in the Constitution and the
existence of the Philippine Environment Code, and that the trial court should have given petitioners an
effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss.

It seems to me important that the legal right which is an essential component of a cause of action be a
specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons.
One is that unless the legal right claimed to have been violated or disregarded is given specification in
operational terms, defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration — where a specific violation of law or applicable regulation
is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial
power in the second paragraph of Section 1 of Article VIII of the Constitution which reads:
 Section 1. . . .

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis
supplied)

When substantive standards as general as "the right to a balanced and healthy ecology" and "the
right to health" are combined with remedial standards as broad ranging as "a grave abuse of
discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully
submitted, to propel courts into the uncharted ocean of social and economic policy making. At
least in respect of the vast area of environmental protection and management, our courts have
no claim to special technical competence and experience and professional qualification. Where
no specific, operable norms and standards are shown to exist, then the policy making
departments — the legislative and executive departments — must be given a real and effective
opportunity to fashion and promulgate those norms and standards, and to implement them
before the courts should intervene.

My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements
or TLA's petitioners demand public respondents should cancel, must be impleaded in the proceedings
below. It might be asked that, if petitioners' entitlement to the relief demanded is not dependent upon
proof of breach by the timber companies of one or more of the specific terms and conditions of their
concession agreements (and this, petitioners implicitly assume), what will those companies litigate about?
The answer I suggest is that they may seek to dispute the existence of the specific legal right petitioners
should allege, as well as the reality of the claimed factual nexus between petitioners' specific legal rights
and the claimed wrongful acts or failures to act of public respondent administrative agency. They may
also controvert the appropriateness of the remedy or remedies demanded by petitioners, under all the
circumstances which exist.

I vote to grant the Petition for Certiorari because the protection of the environment, including the forest
cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's
decision issued today should, however, be subjected to closer examination.

# Separate Opinions

FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to
my mind, is one of the most important cases decided by this Court in the last few years. The seminal
principles laid down in this decision are likely to influence profoundly the direction and course of the
protection and management of the environment, which of course embraces the utilization of all the
natural resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself,
what the Court appears to be saying.

The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and,
maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their
suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a
plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of
"class" here involved — membership in this "class" appears to embrace everyone living in the country
whether now or in the
future — it appears to me that everyone who may be expected to benefit from the course of action
petitioners seek to require public respondents to take, is vested with the necessary locus standi. The Court
may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental
protection, as against both the public administrative agency directly concerned and the private persons
or entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action
may be found under any and all circumstances, or whether some failure to act, in the first instance, on
the part of the governmental agency concerned must be shown ("prior exhaustion of administrative
remedies"), is not discussed in the decision and presumably is left for future determination in an
appropriate case.

The Court has also declared that the complaint has alleged and focused upon "one specific fundamental
legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that
"the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been
"constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it
cannot be characterized as "specific," without doing excessive violence to language. It is in fact very
difficult to fashion language more comprehensive in scope and generalized in character than a right to "a
balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from
factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers,
inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of
organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after
strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs
and other living sea resources through the use of dynamite or cyanide and other chemicals; contamination
of ground water resources; loss of certain species of fauna and flora; and so on. The other statements
pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV,
Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be
formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II,
Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to health").

P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other
hand, a compendious collection of more "specific environment management policies" and "environment
quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics:

(a) air quality management;

(b) water quality management;

(c) land use management;

(d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources;

(ii) wild life;

(iii) forestry and soil conservation;

(iv) flood control and natural calamities;

(v) energy development;

(vi) conservation and utilization of surface and ground water

(vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified
the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a
specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code
identifies with notable care the particular government agency charged with the formulation and
implementation of guidelines and programs dealing with each of the headings and sub-headings
mentioned above. The Philippine Environment Code does not, in other words, appear to contemplate
action on the part of private persons who are beneficiaries of implementation of that Code.

As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the
constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of
Article II of the Constitution are self-executing and judicially enforceable even in their present form. The
implications of this doctrine will have to be explored in future cases; those implications are too large and
far-reaching in nature even to be hinted at here.

My suggestion is simply that petitioners must, before the trial court, show a more specific legal right — a
right cast in language of a significantly lower order of generality than Article II (15) of the Constitution —
that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners
so that the trial court can validly render judgment granting all or part of the relief prayed for. To my mind,
the Court should be understood as simply saying that such a more specific legal right or rights may well
exist in our corpus of law, considering the general policy principles found in the Constitution and the
existence of the Philippine Environment Code, and that the trial court should have given petitioners an
effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss.

It seems to me important that the legal right which is an essential component of a cause of action be a
specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons.
One is that unless the legal right claimed to have been violated or disregarded is given specification in
operational terms, defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration — where a specific violation of law or applicable regulation
is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial
power in the second paragraph of Section 1 of Article VIII of the Constitution which reads:

Section 1. . . .

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis
supplied)

When substantive standards as general as "the right to a balanced and healthy ecology" and "the
right to health" are combined with remedial standards as broad ranging as "a grave abuse of
discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully
submitted, to propel courts into the uncharted ocean of social and economic policy making. At
least in respect of the vast area of environmental protection and management, our courts have
no claim to special technical competence and experience and professional qualification. Where
no specific, operable norms and standards are shown to exist, then the policy making
departments — the legislative and executive departments — must be given a real and effective
opportunity to fashion and promulgate those norms and standards, and to implement them
before the courts should intervene.

My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements
or TLA's petitioners demand public respondents should cancel, must be impleaded in the proceedings
below. It might be asked that, if petitioners' entitlement to the relief demanded is not dependent upon
proof of breach by the timber companies of one or more of the specific terms and conditions of their
concession agreements (and this, petitioners implicitly assume), what will those companies litigate about?
The answer I suggest is that they may seek to dispute the existence of the specific legal right petitioners
should allege, as well as the reality of the claimed factual nexus between petitioners' specific legal rights
and the claimed wrongful acts or failures to act of public respondent administrative agency. They may
also controvert the appropriateness of the remedy or remedies demanded by petitioners, under all the
circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the environment, including the forest
cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's
decision issued today should, however, be subjected to closer examination.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 74930 February 13, 1989

RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO BARTOLOME, LEO
OBLIGAR, JUN GUTIERREZ, REYNALDO BAGATSING, JUN "NINOY" ALBA, PERCY LAPID, ROMMEL CORRO
and ROLANDO FADUL, petitioners,
vs.
FELICIANO BELMONTE, JR., respondent.

Ricardo C. Valmonte for and in his own behalf and his co-petitioners.

The Solicitor General for respondent.

CORTES, J.:

Petitioners in this special civil action for mandamus with preliminary injunction invoke their right to
information and pray that respondent be directed:

(a) to furnish petitioners the list of the names of the Batasang Pambansa
members belonging to the UNIDO and PDP-Laban who were able to
secure clean loans immediately before the February 7 election thru the
intercession/marginal note of the then First Lady Imelda Marcos; and/or

(b) to furnish petitioners with certified true copies of the documents

evidencing their respective loans; and/or

(c) to allow petitioners access to the public records for the subject
information. (Petition, pp. 4-5; paragraphing supplied.]

The controversy arose when petitioner Valmonte wrote respondent Belmonte the following letter:

June 4, 1986

Hon. Feliciano Belmonte

GSIS General Manager
Arroceros, Manila

Sir:

As a lawyer, member of the media and plain citizen of our Republic, I am requesting that
I be furnished with the list of names of the opposition members of (the) Batasang
Pambansa who were able to secure a clean loan of P2 million each on guarranty (sic) of
Mrs. Imelda Marcos. We understand that OIC Mel Lopez of Manila was one of those
aforesaid MPs. Likewise, may we be furnished with the certified true copies of the
documents evidencing their loan. Expenses in connection herewith shall be borne by us.
 If we could not secure the above documents could we have access to them?

We are premising the above request on the following provision of the Freedom
Constitution of the present regime.

The right of the people to information on matters of public concern shall

be recognized. Access to official records, and to documents and papers
pertaining to official acts, transactions or decisions, shall be afforded the
citizen subject to such limitation as may be provided by law. (Art. IV, Sec.
6).

We trust that within five (5) days from receipt hereof we will receive your favorable
response on the matter.

(
S
g
d
.
)
R
I
C
A
R
D
O
C
.
V
A
L
M
O
N
T
E

[Rollo, p. 7.]

To the aforesaid letter, the Deputy General Counsel of the GSIS replied:
 June 17, 1986

Atty. Ricardo C. Valmonte

108 E. Benin Street
Caloocan City

Dear Compañero:

Possibly because he must have thought that it contained serious legal implications,
President & General Manager Feliciano Belmonte, Jr. referred to me for study and reply
your letter to him of June 4, 1986 requesting a list of the opposition members of Batasang
Pambansa who were able to secure a clean loan of P2 million each on guaranty of Mrs.
Imelda Marcos.

My opinion in this regard is that a confidential relationship exists between the GSIS and
all those who borrow from it, whoever they may be; that the GSIS has a duty to its
customers to preserve this confidentiality; and that it would not be proper for the GSIS to
breach this confidentiality unless so ordered by the courts.

As a violation of this confidentiality may mar the image of the GSIS as a reputable financial
institution, I regret very much that at this time we cannot respond positively to your
request.

Very truly yours,

(Sgd.) MEYNARDO A. TIRO

Deputy General Counsel
[Rollo, p. 40.]

On June 20, 1986, apparently not having yet received the reply of the Government Service and Insurance
System (GSIS) Deputy General Counsel, petitioner Valmonte wrote respondent another letter, saying that
for failure to receive a reply, "(W)e are now considering ourselves free to do whatever action necessary
within the premises to pursue our desired objective in pursuance of public interest." [Rollo, p. 8.]

On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.

On July 19, 1986, the Daily Express carried a news item reporting that 137 former members of the defunct
interim and regular Batasang Pambansa, including ten (10) opposition members, were granted housing
loans by the GSIS [Rollo, p. 41.]

Separate comments were filed by respondent Belmonte and the Solicitor General. After petitioners filed
a consolidated reply, the petition was given due course and the parties were required to file their
memoranda. The parties having complied, the case was deemed submitted for decision.

In his comment respondent raises procedural objections to the issuance of a writ of mandamus, among
which is that petitioners have failed to exhaust administrative remedies.

Respondent claims that actions of the GSIS General Manager are reviewable by the Board of Trustees of
the GSIS. Petitioners, however, did not seek relief from the GSIS Board of Trustees. It is therefore asserted
that since administrative remedies were not exhausted, then petitioners have no cause of action.

To this objection, petitioners claim that they have raised a purely legal issue, viz., whether or not they are
entitled to the documents sought, by virtue of their constitutional right to information. Hence, it is argued
that this case falls under one of the exceptions to the principle of exhaustion of administrative remedies.

Among the settled principles in administrative law is that before a party can be allowed to resort to the
courts, he is expected to have exhausted all means of administrative redress available under the law. The
courts for reasons of law, comity and convenience will not entertain a case unless the available
administrative remedies have been resorted to and the appropriate authorities have been given
opportunity to act and correct the errors committed in the administrative forum. However, the principle
of exhaustion of administrative remedies is subject to settled exceptions, among which is when only a
question of law is involved [Pascual v. Provincial Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al.,
G.R. No. L-30396, July 30, 1971, 40 SCRA 210; Malabanan v. Ramento, G.R. No. L-2270, May 21, 1984, 129
SCRA 359.] The issue raised by petitioners, which requires the interpretation of the scope of the
constitutional right to information, is one which can be passed upon by the regular courts more
competently than the GSIS or its Board of Trustees, involving as it does a purely legal question. Thus, the
exception of this case from the application of the general rule on exhaustion of administrative remedies
is warranted. Having disposed of this procedural issue, We now address ourselves to the issue of whether
or not mandamus hes to compel respondent to perform the acts sought by petitioners to be done, in
pursuance of their right to information.

We shall deal first with the second and third alternative acts sought to be done, both of which involve the
issue of whether or not petitioners are entitled to access to the documents evidencing loans granted by
the GSIS.

This is not the first time that the Court is confronted with a controversy directly involving the
constitutional right to information. In Tañada v. Tuvera, G.R. No. 63915, April 24,1985, 136 SCRA 27 and
in the recent case of Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987,150 SCRA 530, the
Court upheld the people's constitutional right to be informed of matters of public interest and ordered
the government agencies concerned to act as prayed for by the petitioners.

The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states:

The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be provided
by law.

The right of access to information was also recognized in the 1973 Constitution, Art. IV Sec. 6 of which
provided:

The right of the people to information on 'matters of public concern shall be recognized.
Access to official records, and to documents and papers pertaining to official acts,
transactions, or decisions, shall be afforded the citizen subject to such limitations as may
be provided by law.

An informed citizenry with access to the diverse currents in political, moral and artistic thought and data
relative to them, and the free exchange of ideas and discussion of issues thereon, is vital to the democratic
government envisioned under our Constitution. The cornerstone of this republican system of government
is delegation of power by the people to the State. In this system, governmental agencies and institutions
operate within the limits of the authority conferred by the people. Denied access to information on the
inner workings of government, the citizenry can become prey to the whims and caprices of those to whom
the power had been delegated. The postulate of public office as a public trust, institutionalized in the
Constitution (in Art. XI, Sec. 1) to protect the people from abuse of governmental power, would certainly
be were empty words if access to such information of public concern is denied, except under limitations
prescribed by implementing legislation adopted pursuant to the Constitution.

Petitioners are practitioners in media. As such, they have both the right to gather and the obligation to
check the accuracy of information the disseminate. For them, the freedom of the press and of speech is
not only critical, but vital to the exercise of their professions. The right of access to information ensures
that these freedoms are not rendered nugatory by the government's monopolizing pertinent information.
For an essential element of these freedoms is to keep open a continuing dialogue or process of
communication between the government and the people. It is in the interest of the State that the channels
for free political discussion be maintained to the end that the government may perceive and be responsive
to the people's will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed
and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of
the issues and have access to information relating thereto can such bear fruit.

The right to information is an essential premise of a meaningful right to speech and expression. But this
is not to say that the right to information is merely an adjunct of and therefore restricted in application
by the exercise of the freedoms of speech and of the press. Far from it. The right to information goes
hand-in-hand with the constitutional policies of full public disclosure * and honesty in the public
service. ** It is meant to enhance the widening role of the citizenry in governmental decision-making as
well as in checking abuse in government.

Yet, like all the constitutional guarantees, the right to information is not absolute. As stated in Legaspi, the
people's right to information is limited to "matters of public concern," and is further "subject to such
limitations as may be provided by law." Similarly, the State's policy of full disclosure is limited to
"transactions involving public interest," and is "subject to reasonable conditions prescribed by law."

Hence, before mandamus may issue, it must be clear that the information sought is of "public interest" or
"public concern," and is not exempted by law from the operation of the constitutional guarantee [Legazpi
v. Civil Service Commission, supra, at p. 542.]

The Court has always grappled with the meanings of the terms "public interest" and "public concern". As
observed in Legazpi:

In determining whether or not a particular information is of public concern there is no

rigid test which can be applied. "Public concern" like "public interest" is a term that eludes
exact definition. Both terms embrace a broad spectrum of subjects which the public may
want to know, either because these directly affect their lives, or simply because such
matters naturally arouse the interest of an ordinary citezen. In the final analysis, it is for
the courts to determine on a case by case basis whether the matter at issue is of interest
or importance, as it relates to or affects the public. [Ibid. at p. 541]

In the Tañada case the public concern deemed covered by the constitutional right to information was the
need for adequate notice to the public of the various laws which are to regulate the actions and conduct
of citezens. In Legaspi, it was the "legitimate concern of citezensof ensure that government positions
requiring civil service eligibility are occupied only by persons who are eligibles" [Supra at p. 539.]

The information sought by petitioners in this case is the truth of reports that certain Members of the
Batasang Pambansa belonging to the opposition were able to secure "clean" loans from the GSIS
immediately before the February 7, 1986 election through the intercession of th eformer First Lady, Mrs.
Imelda Marcos.

The GSIS is a trustee of contributions from the government and its employees and the administrator of
various insurance programs for the benefit of the latter. Undeniably, its funds assume a public character.
More particularly, Secs. 5(b) and 46 of P.D. 1146, as amended (the Revised Government Service Insurance
Act of 1977), provide for annual appropriations to pay the contributions, premiums, interest and other
amounts payable to GSIS by the government, as employer, as well as the obligations which the Republic
of the Philippines assumes or guarantees to pay. Considering the nature of its funds, the GSIS is expected
to manage its resources with utmost prudence and in strict compliance with the pertinent laws or rules
and regulations. Thus, one of the reasons that prompted the revision of the old GSIS law (C.A. No. 186, as
amended) was the necessity "to preserve at all times the actuarial solvency of the funds administered by
the System" [Second Whereas Clause, P.D. No. 1146.] Consequently, as respondent himself admits, the
GSIS "is not supposed to grant 'clean loans.'" [Comment, p. 8.] It is therefore the legitimate concern of the
public to ensure that these funds are managed properly with the end in view of maximizing the benefits
that accrue to the insured government employees. Moreover, the supposed borrowers were Members of
the defunct Batasang Pambansa who themselves appropriated funds for the GSIS and were therefore
expected to be the first to see to it that the GSIS performed its tasks with the greatest degree of fidelity
and that an its transactions were above board.
In sum, the public nature of the loanable funds of the GSIS and the public office held by the alleged
borrowers make the information sought clearly a matter of public interest and concern.

A second requisite must be met before the right to information may be enforced through mandamus
proceedings, viz., that the information sought must not be among those excluded by law.

Respondent maintains that a confidential relationship exists between the GSIS and its borrowers. It is
argued that a policy of confidentiality restricts the indiscriminate dissemination of information.

Yet, respondent has failed to cite any law granting the GSIS the privilege of confidentiality as regards the
documents subject of this petition. His position is apparently based merely on considerations of policy.
The judiciary does not settle policy issues. The Court can only declare what the law is, and not what the
law should be. Under our system of government, policy issues are within the domain of the political
branches of the government, and of the people themselves as the repository of all State power.

Respondent however contends that in view of the right to privacy which is equally protected by the
Constitution and by existing laws, the documents evidencing loan transactions of the GSIS must be
deemed outside the ambit of the right to information.

There can be no doubt that right to privacy is constitutionally protected. In the landmark case of Morfe v.
Mutuc [130 Phil. 415 (1968), 22 SCRA 424], this Court, speaking through then Mr. Justice Fernando, stated:

... The right to privacy as such is accorded recognition independently of its identification
with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof.
Emerson is particularly apt: "The concept of limited government has always included the
idea that governmental powers stop short of certain intrusions into the personal life of
the citizen. This is indeed one of the basic distinctions between absolute and limited
government. UItimate and pervasive control of the individual, in all aspects of his life, is
the hallmark of the absolute. state, In contrast, a system of limited government
safeguards a private sector, which belongs to the individual, firmly distinguishing it from
the public sector, which the state can control. Protection of this private sector —
protection, in other words, of the dignity and integrity of the individual — has become
increasingly important as modem society has developed. All the forces of technological
age — industrialization, urbanization, and organization — operate to narrow the area of
privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and
support this enclave of private life marks the difference between a democratic and a
totalitarian society." [at pp. 444-445.]

When the information requested from the government intrudes into the privacy of a citizen, a potential
conflict between the rights to information and to privacy may arise. However, the competing interests of
these rights need not be resolved in this case. Apparent from the above-quoted statement of the Court
in Morfe is that the right to privacy belongs to the individual in his private capacity, and not to public and
governmental agencies like the GSIS. Moreover, the right cannot be invoked by juridical entities like the
GSIS. As held in the case of Vassar College v. Loose Wills Biscuit Co. [197 F. 982 (1912)], a corporation has
no right of privacy in its name since the entire basis of the right to privacy is an injury to the feelings and
sensibilities of the party and a corporation would have no such ground for relief.

Neither can the GSIS through its General Manager, the respondent, invoke the right to privacy of its
borrowers. The right is purely personal in nature [Cf. Atkinson v. John Doherty & Co., 121 Mich 372, 80
N.W. 285, 46 L.RA. 219 (1899); Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286 (1895)), and hence
may be invoked only by the person whose privacy is claimed to be violated.

It may be observed, however, that in the instant case, the concerned borrowers themselves may not
succeed if they choose to invoke their right to privacy, considering the public offices they were holding at
the time the loans were alleged to have been granted. It cannot be denied that because of the interest
they generate and their newsworthiness, public figures, most especially those holding responsible
positions in government, enjoy a more limited right to privacy as compared to ordinary individuals, their
actions being subject to closer public scrutiny [Cf.Ayer Productions Pty. Ltd. v. Capulong, G.R. Nos. 82380
and 82398, April 29, 1988; See also Cohen v. Marx, 211 P. 2d 321 (1949).]

Respondent next asserts that the documents evidencing the loan transactions of the GSIS are private in
nature and hence, are not covered by the Constitutional right to information on matters of public concern
which guarantees "(a)ccess to official records, and to documents, and papers pertaining to official acts,
transactions, or decisions" only.

It is argued that the records of the GSIS, a government corporation performing proprietary functions, are
outside the coverage of the people's right of access to official records.

It is further contended that since the loan function of the GSIS is merely incidental to its insurance
function, then its loan transactions are not covered by the constitutional policy of full public disclosure
and the right to information which is applicable only to "official" transactions.

First of all, the "constituent — ministrant" dichotomy characterizing government function has long been
repudiated. In ACCFA v. Confederation of Unions and Government Corporations and Offices (G.R. Nos. L-
21484 and L-23605, November 29, 1969, 30 SCRA 6441, the Court said that the government, whether
carrying out its sovereign attributes or running some business, discharges the same function of service to
the people.

Consequently, that the GSIS, in granting the loans, was exercising a proprietary function would not justify
the exclusion of the transactions from the coverage and scope of the right to information.

Moreover, the intent of the members of the Constitutional Commission of 1986, to include government-
owned and controlled corporations and transactions entered into by them within the coverage of the
State policy of fun public disclosure is manifest from the records of the proceedings:

xxx xxx xxx

THE PRESIDING OFFICER (Mr. Colayco).

Commissioner Suarez is recognized.

MR. SUAREZ. Thank you. May I ask the Gentleman a few question?

MR. OPLE. Very gladly.

MR. SUAREZ. Thank you.

When we declare a "policy of full public disclosure of all its transactions"

— referring to the transactions of the State — and when we say the
"State" which I suppose would include all of the various agencies,
departments, ministries and instrumentalities of the government....

MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer.

MR. SUAREZ. Including government-owned and controlled corporations.

MR. OPLE. That is correct, Mr. Presiding Officer.

MR. SUAREZ. And when we say "transactions" which

should be distinguished from contracts, agreements, or
treaties or whatever, does the Gentleman refer to the
steps leading to the consummation of the contract, or
does he refer to the contract itself?
 MR. OPLE. The "transactions" used here I suppose is
generic and, therefore, it can cover both steps leading to
a contract, and already a consummated contract, Mr.
Presiding Officer.

MR. SUAREZ. This contemplates inclusion of negotiations

leading to the consummation of the transaction.

MR. OPLE. Yes, subject only to reasonable safeguards on

the national interest.

MR. SUAREZ. Thank you. [V Record of the Constitutional

Commission 24-25.] (Emphasis supplied.)

Considering the intent of the framers of the Constitution which, though not binding upon the Court, are
nevertheless persuasive, and considering further that government-owned and controlled corporations,
whether performing proprietary or governmental functions are accountable to the people, the Court is
convinced that transactions entered into by the GSIS, a government-controlled corporation created by
special legislation are within the ambit of the people's right to be informed pursuant to the constitutional
policy of transparency in government dealings.

In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS, subject
to reasonable regulations that the latter may promulgate relating to the manner and hours of
examination, to the end that damage to or loss of the records may be avoided, that undue interference
with the duties of the custodian of the records may be prevented and that the right of other persons
entitled to inspect the records may be insured [Legaspi v. Civil Service Commission, supra at p. 538,
quoting Subido v. Ozaeta, 80 Phil. 383, 387.] The petition, as to the second and third alternative acts
sought to be done by petitioners, is meritorious.

However, the same cannot be said with regard to the first act sought by petitioners, i.e., "to furnish
petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO and PDP-
Laban who were able to secure clean loans immediately before the February 7 election thru the
intercession/marginal note of the then First Lady Imelda Marcos."

Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to
official records," the Constitution does not accord them a right to compel custodians of official records to
prepare lists, abstracts, summaries and the like in their desire to acquire information on matters of public
concern.

It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-defined,
clear and certain legal right to the thing demanded and that it is the imperative duty of defendant to
perform the act required. The corresponding duty of the respondent to perform the required act must be
clear and specific [Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126 SCRA 203; Ocampo v.
Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.] The request of the petitioners fails to meet this
standard, there being no duty on the part of respondent to prepare the list requested.

WHEREFORE, the instant petition is hereby granted and respondent General Manager of the Government
Service Insurance System is ORDERED to allow petitioners access to documents and records evidencing
loans granted to Members of the former Batasang Pambansa, as petitioners may specify, subject to
reasonable regulations as to the time and manner of inspection, not incompatible with this decision, as
the GSIS may deem necessary.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-72119 May 29, 1987

VALENTIN L. LEGASPI, petitioner,

vs.
CIVIL SERVICE COMMISSION, respondent.

CORTES, J.:

The fundamental right of the people to information on matters of public concern is invoked in this special
civil action for mandamus instituted by petitioner Valentin L. Legaspi against the Civil Service Commission.
The respondent had earlier denied Legaspi's request for information on the civil service eligibilities of
certain persons employed as sanitarians in the Health Department of Cebu City. These government
employees, Julian Sibonghanoy and Mariano Agas, had allegedly represented themselves as civil service
eligibles who passed the civil service examinations for sanitarians.

Claiming that his right to be informed of the eligibilities of Julian Sibonghanoy and Mariano Agas, is
guaranteed by the Constitution, and that he has no other plain, speedy and adequate remedy to acquire
the information, petitioner prays for the issuance of the extraordinary writ of mandamus to compel the
respondent Commission to disclose said information.

This is not the first tune that the writ of mandamus is sought to enforce the fundamental right to
information. The same remedy was resorted to in the case of Tanada et. al. vs. Tuvera et. al., (G.R. No. L-
63915, April 24,1985,136 SCRA 27) wherein the people's right to be informed under the 1973 Constitution
(Article IV, Section 6) was invoked in order to compel the publication in the Official Gazette of various
presidential decrees, letters of instructions and other presidential issuances. Prior to the recognition of
the right in said Constitution the statutory right to information provided for in the Land Registration Act
(Section 56, Act 496, as amended) was claimed by a newspaper editor in another mandamus proceeding,
this time to demand access to the records of the Register of Deeds for the purpose of gathering data on
real estate transactions involving aliens (Subido vs. Ozaeta, 80 Phil. 383 [1948]).

The constitutional right to information on matters of public concern first gained recognition in the Bill of
Rights, Article IV, of the 1973 Constitution, which states:

Sec. 6. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to official
acts, transactions, or decisions, shall be afforded the citizen subject to such limitations as
may be provided by law.

The foregoing provision has been retained and the right therein provided amplified in Article III, Sec. 7 of
the 1987 Constitution with the addition of the phrase, "as well as to government research data used as
basis for policy development." The new provision reads:

The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis. for policy
development, shall be afforded the citizen, subject to such stations as may be provided
by law.

These constitutional provisions are self-executing. They supply the rules by means of which the right to
information may be enjoyed (Cooley, A Treatise on the Constitutional Limitations 167 [1927]) by
guaranteeing the right and mandating the duty to afford access to sources of information. Hence, the
fundamental right therein recognized may be asserted by the people upon the ratification of the
constitution without need for any ancillary act of the Legislature. (Id. at, p. 165) What may be provided
for by the Legislature are reasonable conditions and limitations upon the access to be afforded which
must, of necessity, be consistent with the declared State policy of full public disclosure of all transactions
involving public interest (Constitution, Art. 11, Sec. 28). However, it cannot be overemphasized that
whatever limitation may be prescribed by the Legislature, the right and the duty under Art. III Sec. 7 have
become operative and enforceable by virtue of the adoption of the New Charter. Therefore, the right may
be properly invoked in a mandamus proceeding such as this one.

The Solicitor General interposes procedural objections to Our giving due course to this Petition. He
challenges the petitioner's standing to sue upon the ground that the latter does not possess any clear
legal right to be informed of the civil service eligibilities of the government employees concerned. He calls
attention to the alleged failure of the petitioner to show his actual interest in securing this particular
information. He further argues that there is no ministerial duty on the part of the Commission to furnish
the petitioner with the information he seeks.

1. To be given due course, a Petition for mandamus must have been instituted by a party aggrieved by the
alleged inaction of any tribunal, corporation, board or person which unlawfully excludes said party from
the enjoyment of a legal right. (Ant;-Chinese League of the Philippines vs. Felix, 77 Phil. 1012 [1947]). The
petitioner in every case must therefore be an "aggrieved party" in the sense that he possesses a clear legal
right to be enforced and a direct interest in the duty or act to be performed.

In the case before Us, the respondent takes issue on the personality of the petitioner to bring this suit. It
is asserted that, the instant Petition is bereft of any allegation of Legaspi's actual interest in the civil
service eligibilities of Julian Sibonghanoy and Mariano Agas, At most there is a vague reference to an
unnamed client in whose behalf he had allegedly acted when he made inquiries on the subject (Petition,
Rollo, p. 3).

But what is clear upon the face of the Petition is that the petitioner has firmly anchored his case upon the
right of the people to information on matters of public concern, which, by its very nature, is a public right.
It has been held that:

* * * when the question is one of public right and the object of the mandamus is to
procure the enforcement of a public duty, the people are regarded as the real party in
interest and the relator at whose instigation the proceedings are instituted need not show
that he has any legal or special interest in the result, it being sufficient to show that he is
a citizen and as such interested in the execution of the laws * * * (Tanada et. al. vs. Tuvera,
et. al., G.R. No. L- 63915, April 24, 1985, 136 SCRA 27, 36).

From the foregoing, it becomes apparent that when a mandamus proceeding involves the assertion of a
public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a
citizen, and therefore, part of the general "public" which possesses the right.

The Court had opportunity to define the word "public" in the Subido case, supra, when it held that even
those who have no direct or tangible interest in any real estate transaction are part of the "public" to
whom "(a)ll records relating to registered lands in the Office of the Register of Deeds shall be open * * *"
(Sec. 56, Act No. 496, as amended). In the words of the Court:

* * * "Public" is a comprehensive, all-inclusive term. Properly construed, it embraces

every person. To say that only those who have a present and existing interest of a
pecuniary character in the particular information sought are given the right of inspection
is to make an unwarranted distinction. *** (Subido vs. Ozaeta, supra at p. 387).

The petitioner, being a citizen who, as such is clothed with personality to seek redress for the alleged
obstruction of the exercise of the public right. We find no cogent reason to deny his standing to bring the
present suit.

2. For every right of the people recognized as fundamental, there lies a corresponding duty on the part of
those who govern, to respect and protect that right. That is the very essence of the Bill of Rights in a
constitutional regime. Only governments operating under fundamental rules defining the limits of their
power so as to shield individual rights against its arbitrary exercise can properly claim to be constitutional
(Cooley, supra, at p. 5). Without a government's acceptance of the limitations imposed upon it by the
Constitution in order to uphold individual liberties, without an acknowledgment on its part of those duties
exacted by the rights pertaining to the citizens, the Bill of Rights becomes a sophistry, and liberty, the
ultimate illusion.

In recognizing the people's right to be informed, both the 1973 Constitution and the New Charter
expressly mandate the duty of the State and its agents to afford access to official records, documents,
papers and in addition, government research data used as basis for policy development, subject to such
limitations as may be provided by law. The guarantee has been further enhanced in the New Constitution
with the adoption of a policy of full public disclosure, this time "subject to reasonable conditions
prescribed by law," in Article 11, Section 28 thereof, to wit:

Subject to reasonable conditions prescribed by law, the State adopts and implements a
policy of full public disclosure of all its transactions involving public interest. (Art. 11, Sec.
28).

In the Tanada case, supra, the constitutional guarantee was bolstered by what this Court declared as an
imperative duty of the government officials concerned to publish all important legislative acts and
resolutions of a public nature as well as all executive orders and proclamations of general applicability.
We granted mandamus in said case, and in the process, We found occasion to expound briefly on the
nature of said duty:

* * * That duty must be enforced if the Constitutional right of the people to be informed
on matters of public concern is to be given substance and reality. The law itself makes a
list of what should be published in the Official Gazette. Such listing, to our mind, leaves
respondents with no discretion whatsoever as to what must be in included or excluded
from such publication. (Tanada v. Tuvera, supra, at 39). (Emphasis supplied).

The absence of discretion on the part of government agencia es in allowing the examination of public
records, specifically, the records in the Office of the Register of Deeds, is emphasized in Subido vs. Ozaeta,
supra:

Except, perhaps when it is clear that the purpose of the examination is unlawful, or sheer,
idle curiosity, we do not believe it is the duty under the law of registration officers to
concern themselves with the motives, reasons, and objects of the person seeking access
to the records. It is not their prerogative to see that the information which the records
contain is not flaunted before public gaze, or that scandal is not made of it. If it be wrong
to publish the contents of the records, it is the legislature and not the officials having
custody thereof which is called upon to devise a remedy. *** (Subido v. Ozaeta, supra at
388). (Emphasis supplied).

It is clear from the foregoing pronouncements of this Court that government agencies are without
discretion in refusing disclosure of, or access to, information of public concern. This is not to lose sight of
the reasonable regulations which may be imposed by said agencies in custody of public records on the
manner in which the right to information may be exercised by the public. In the Subido case, We
recognized the authority of the Register of Deeds to regulate the manner in which persons desiring to do
so, may inspect, examine or copy records relating to registered lands. However, the regulations which the
Register of Deeds may promulgate are confined to:

* * * prescribing the manner and hours of examination to the end that damage to or loss
of, the records may be avoided, that undue interference with the duties of the custodian
of the books and documents and other employees may be prevented, that the right of
other persons entitled to make inspection may be insured * * * (Subido vs. Ozaeta, 80
Phil. 383, 387)

Applying the Subido ruling by analogy, We recognized a similar authority in a municipal judge, to regulate
the manner of inspection by the public of criminal docket records in the case of Baldoza vs.
Dimaano (Adm. Matter No. 1120-MJ, May 5, 1976, 71 SCRA 14). Said administrative case was filed against
the respondent judge for his alleged refusal to allow examination of the criminal docket records in his
sala. Upon a finding by the Investigating Judge that the respondent had allowed the complainant to open
and view the subject records, We absolved the respondent. In effect, We have also held that the rules and
conditions imposed by him upon the manner of examining the public records were reasonable.

In both the Subido and the Baldoza cases, We were emphatic in Our statement that the authority to
regulate the manner of examining public records does not carry with it the power to prohibit. A distinction
has to be made between the discretion to refuse outright the disclosure of or access to a particular
information and the authority to regulate the manner in which the access is to be afforded. The first is a
limitation upon the availability of access to the information sought, which only the Legislature may impose
(Art. III, Sec. 6, 1987 Constitution). The second pertains to the government agency charged with the
custody of public records. Its authority to regulate access is to be exercised solely to the end that damage
to, or loss of, public records may be avoided, undue interference with the duties of said agencies may be
prevented, and more importantly, that the exercise of the same constitutional right by other persons shall
be assured (Subido vs. Ozaetal supra).

Thus, while the manner of examining public records may be subject to reasonable regulation by the
government agency in custody thereof, the duty to disclose the information of public concern, and to
afford access to public records cannot be discretionary on the part of said agencies. Certainly, its
performance cannot be made contingent upon the discretion of such agencies. Otherwise, the enjoyment
of the constitutional right may be rendered nugatory by any whimsical exercise of agency discretion. The
constitutional duty, not being discretionary, its performance may be compelled by a writ of mandamus in
a proper case.

But what is a proper case for Mandamus to issue? In the case before Us, the public right to be enforced
and the concomitant duty of the State are unequivocably set forth in the Constitution. The decisive
question on the propriety of the issuance of the writ of mandamus in this case is, whether the information
sought by the petitioner is within the ambit of the constitutional guarantee.

3. The incorporation in the Constitution of a guarantee of access to information of public concern is a

recognition of the essentiality of the free flow of ideas and information in a democracy (Baldoza v.
Dimaano, Adm. Matter No. 1120-MJ, May 5, 1976, 17 SCRA 14). In the same way that free discussion
enables members of society to cope with the exigencies of their time (Thornhill vs. Alabama, 310 U.S.
88,102 [1939]), access to information of general interest aids the people in democratic decision-making
(87 Harvard Law Review 1505 [1974]) by giving them a better perspective of the vital issues confronting
the nation.

But the constitutional guarantee to information on matters of public concern is not absolute. It does not
open every door to any and all information. Under the Constitution, access to official records, papers, etc.,
are "subject to limitations as may be provided by law" (Art. III, Sec. 7, second sentence). The law may
therefore exempt certain types of information from public scrutiny, such as those affecting national
security (Journal No. 90, September 23, 1986, p. 10; and Journal No. 91, September 24, 1986, p. 32, 1986
Constitutional Commission). It follows that, in every case, the availability of access to a particular public
record must be circumscribed by the nature of the information sought, i.e., (a) being of public concern or
one that involves public interest, and, (b) not being exempted by law from the operation of the
constitutional guarantee. The threshold question is, therefore, whether or not the information sought is
of public interest or public concern.

a. This question is first addressed to the government agency having custody of the desired information.
However, as already discussed, this does not give the agency concerned any discretion to grant or deny
access. In case of denial of access, the government agency has the burden of showing that the information
requested is not of public concern, or, if it is of public concern, that the same has been exempted by law
from the operation of the guarantee. To hold otherwise will serve to dilute the constitutional right. As
aptly observed, ". . . the government is in an advantageous position to marshall and interpret arguments
against release . . ." (87 Harvard Law Review 1511 [1974]). To safeguard the constitutional right, every
denial of access by the government agency concerned is subject to review by the courts, and in the proper
case, access may be compelled by a writ of Mandamus.
In determining whether or not a particular information is of public concern there is no rigid test which can
be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms
embrace a broad spectrum of subjects which the public may want to know, either because these directly
affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In
the final analysis, it is for the courts to determine in a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the public.

The public concern invoked in the case of Tanada v. Tuvera, supra, was the need for adequate notice to
the public of the various laws which are to regulate the actions and conduct of citizens. In Subido vs.
Ozaeta, supra, the public concern deemed covered by the statutory right was the knowledge of those real
estate transactions which some believed to have been registered in violation of the Constitution.

The information sought by the petitioner in this case is the truth of the claim of certain government
employees that they are civil service eligibles for the positions to which they were appointed. The
Constitution expressly declares as a State policy that:

Appointments in the civil service shall be made only according to merit and fitness to be
determined, as far as practicable, and except as to positions which are policy determining,
primarily confidential or highly technical, by competitive examination. (Art. IX, B, Sec.
2.[2]).

Public office being a public trust, [Const. Art. XI, Sec. 1] it is the legitimate concern of citizens to ensure
that government positions requiring civil service eligibility are occupied only by persons who are eligibles.
Public officers are at all times accountable to the people even as to their eligibilities for their respective
positions.

b. But then, it is not enough that the information sought is of public interest. For mandamus to lie in a
given case, the information must not be among the species exempted by law from the operation of the
constitutional guarantee.

In the instant, case while refusing to confirm or deny the claims of eligibility, the respondent has failed to
cite any provision in the Civil Service Law which would limit the petitioner's right to know who are, and
who are not, civil service eligibles. We take judicial notice of the fact that the names of those who pass
the civil service examinations, as in bar examinations and licensure examinations for various professions,
are released to the public. Hence, there is nothing secret about one's civil service eligibility, if actually
possessed. Petitioner's request is, therefore, neither unusual nor unreasonable. And when, as in this case,
the government employees concerned claim to be civil service eligibles, the public, through any citizen,
has a right to verify their professed eligibilities from the Civil Service Commission.

The civil service eligibility of a sanitarian being of public concern, and in the absence of express limitations
under the law upon access to the register of civil service eligibles for said position, the duty of the
respondent Commission to confirm or deny the civil service eligibility of any person occupying the position
becomes imperative. Mandamus, therefore lies.

WHEREFORE, the Civil Service Commission is ordered to open its register of eligibles for the position of
sanitarian, and to confirm or deny, the civil service eligibility of Julian Sibonghanoy and Mariano Agas, for
said position in the Health Department of Cebu City, as requested by the petitioner Valentin L. Legaspi.

Tano vs Socrates
Natural and Environmental Laws; Constitutional Law; Regalian Doctrine
GR No. 110249; August 21, 1997

FACTS:
On Dec 15, 1992, the Sangguniang Panglungsod ng Puerto Princesa enacted an ordinance banning the
shipment of all live fish and lobster outside Puerto Princesa City from January 1, 1993 to January 1, 1998.
Subsequently the Sangguniang Panlalawigan, Provincial Government of Palawan enacted a resolution
prohibiting the catching , gathering, possessing, buying, selling, and shipment of a several species of live
marine coral dwelling aquatic organisms for 5 years, in and coming from Palawan waters.
Petitioners filed a special civil action for certiorari and prohibition, praying that the court declare the said
ordinances and resolutions as unconstitutional on the ground that the said ordinances deprived them of
the due process of law, their livelihood, and unduly restricted them from the practice of their trade, in
violation of Section 2, Article XII and Sections 2 and 7 of Article XIII of the 1987 Constitution.

ISSUE:
Are the challenged ordinances unconstitutional?

HELD:
No. The Supreme Court found the petitioners contentions baseless and held that the challenged
ordinances did not suffer from any infirmity, both under the Constitution and applicable laws. There is
absolutely no showing that any of the petitioners qualifies as a subsistence or marginal fisherman. Besides,
Section 2 of Article XII aims primarily not to bestow any right to subsistence fishermen, but to lay stress
on the duty of the State to protect the nation’s marine wealth. The so-called “preferential right” of
subsistence or marginal fishermen to the use of marine resources is not at all absolute.
In accordance with the Regalian Doctrine, marine resources belong to the state and pursuant to the first
paragraph of Section 2, Article XII of the Constitution, their “exploration, development and
utilization...shall be under the full control and supervision of the State.

In addition, one of the devolved powers of the LCG on devolution is the enforcement of fishery laws in
municipal waters including the conservation of mangroves. This necessarily includes the enactment of
ordinances to effectively carry out such fishery laws within the municipal waters. In light of the principles
of decentralization and devolution enshrined in the LGC and the powers granted therein to LGUs which
unquestionably involve the exercise of police power, the validity of the questioned ordinances cannot be
doubted.

Proclamation No. 2146, s. 1981

Signed on December 14, 1981

MALACAÑANG
MANILA

BY THE PRESIDENT OF THE PHILIPPINES

PROCLAMATION NO. 2146

PROCLAIMING CERTAIN AREAS AND TYPES OF PROJECTS AS ENVIRONMENTALLY CRITICAL AND WITHIN
THE SCOPE OF THE ENVIRONMENTAL IMPACT STATEMENT SYSTEM ESTABLISHED UNDER PRESIDENTIAL
DECREE NO. 1586.

WHEREAS, it is the national policy to attain and maintain a rational and orderly balance between socio-
economic growth and environmental conservation and protection;

WHEREAS, there is an urgent need to bring about an intensive, integrated program of environmental
protection through a requirement of environmental impact assessments and statements;

WHEREAS, the environmental impact statement system established under Presidential Decree No, 1586
calls for the proper management of environmentally critical areas;

WHEREAS, the pursuit of a comprehensive and integrated environmental protection program necessitates
the establishment and institutionalization of a system whereby the exigencies of socio-economic
undertakings can be reconciled with the requirements of environmental protection and conservation;

WHEREAS, the national leadership mandates the establishment of such a system to regulate and minimize
the environmental impacts of projects and undertakings which may significantly affect the quality of the
environment in Presidential Decree No. 1586; and
WHEREAS, in the effective implementation of such a system, there arises the need to identify and declare
certain projects determined to be environmentally critical;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested
in me by law, hereby proclaim the following areas and types of projects as environmentally critical and
within the scope of the Environmental Impact Statement System;

A. Environmentally Critical Projects

I. Heavy Industries

a. Non-ferrous metal industries

b. Iron and steel mills
c. Petroleum and petro-chemical industries including oil and gas
d. Smelting plants

II. Resource Extractive Industries

a. Major mining and quarrying projects

b. Forestry projects

1. Logging
2. Major wood processing projects
3. Introduction of fauna (exotic-animals) in public/private forests
4. Forest occupancy
5. Extraction of mangrove products
6. Grazing

c. Fishery Projects

1. Dikes for/and fishpond development projects

III. Infrastructure Projects

a. Major dams
b. Major power plants (fossil-fueled, nuclear fueled, hydroelectric or geothermal)
c. Major reclamation projects
d. Major roads and bridges

B. Environmentally Critical Areas

1. All areas declared by law as national parks, watershed reserves, wildlife preserves and sanctuaries;

2. Areas set aside as aesthetic potential tourist spots;

3. Areas which constitute the habitat for any endangered or threatened species of indigenous Philippine
Wildlife (flora and fauna);

4. Areas of unique historic, archaeological, or scientific interests;

5. Areas which are traditionally occupied by cultural communities or tribes;

6. Areas frequently visited and/or hard-hit by natural calamities (geologic hazards, floods, typhoons,
volcanic activity, etc.);

7. Areas with critical slopes;

8. Areas classified as prime agricultural lands;

9. Recharged areas of aquifers;

10. Water bodies characterized by one or any combination of the following conditions;

a. tapped for domestic purposes

b. within the controlled and/or protected areas declared by appropriate authorities
c. which support wildlife and fishery activities

11. Mangrove areas characterized by one or any combination of the following conditions:

a. with primary pristine and dense young growth;

b. adjoining mouth of major river systems;
c. near or adjacent to traditional productive fry or fishing grounds;
d. which act as natural buffers against shore erosion, strong winds and storm floods;
e. on which people are dependent for their livelihood.

12. Coral reefs characterized by one or any combinations of the following conditions:

a. With 50% and above live coralline cover;

b. Spawning and nursery grounds for fish;
c. which act as natural breakwater of coastlines.

This Proclamation shall take effect immediately.

IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines
to be affixed.

Done in the City of Manila, this 14th day of December, in the year of Our Lord, nineteen hundred and
eighty-one. Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 160932 January 14, 2013

SPECIAL PEOPLE, INC. FOUNDATION, REPRESENTED BY ITS CHAIRMAN, ROBERTO P. CERICOS,Petitioner,

vs.
NESTOR M. CANDA, BIENVENIDO LIPA YON, JULIAN D. AMADOR, BOHOL PROVINCIAL CHIEF, REGIONAL
DIRECTOR, AND NATIONAL DIRECTOR, RESPECTIVELY, ENVIRONMENTAL MANAGEMENT BUREAU,
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, AND THE SECRETARY OF THE
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, ALL SUED IN BOTH THEIR OFFICIAL AND
PRIVATE CAPACITIES, Respondents.

DECISION

BERSAMIN, J.:

The peremptory writ of mandamus is an extraordinary remedy that is issued only in extreme necessity,
and the ordinary course of procedure is powerless to afford an adequate and speedy relief to one who
has a clear legal right to the performance of the act to be compelled.

Antecedents

The petitioner was a proponent of a water-resource development and utilization project in Barangay
Jimilia-an in the Municipality of Loboc, Bohol that would involve the tapping and purifying of water from
the Loboc River, and the distribution of the purified water to the residents of Loboc and six other
municipalities. The petitioner applied for a Certificate of Non-Coverage (CNC) with the Environmental
Management Bureau (EMB) of the Department of Environment and Natural Resources (DENR), Region 7,
seeking to be exempt from the requirement of the Environmental Compliance Certificate (ECC) under
Section 4 of Presidential Decree No. 1586 on the following justifications, to wit:

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

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

3) The filtration and purifying process employs the latest technology—"electrocatalytic"—

internationally accepted for safety and environment friendliness;

4) No waste is generated, as the electrocatalytic process dissolves all impurities in the water;

5) The project involves no destruction [n]or harm to the environment. On the other hand, it is
environment friendly.1

Upon evaluating the nature and magnitude of the environmental impact of the project, respondent Nestor
M. Canda, then Chief of EMB in Bohol, rendered his findings in a letter dated December 4, 2001, as follows:

1) The project is located within a critical area; hence, Initial Environmental Examination is
required.

2) The project is socially and politically sensitive therefore proof of social acceptability should be
established. Proper indorsement from the Protected Area Management Bureau or PAMB should
be secured.2 (Emphasis supplied)

On January 11, 2002, the petitioner appealed Canda’s findings to respondent EMB Region 7 Director
Bienvenido L. Lipayon (RD Lipayon), claiming that it should also be issued a CNC because the project was
no different from the Loboc-Loay waterworks project of the Department of Public Works and Highways
(DPWH) that had recently been issued a CNC.3

On April 3, 2002, RD Lipayon notified the petitioner that its documents substantially complied with the
procedural aspects of the EMB’s review, and that the application was assigned EMB-DENR-7 Control No.
CNC-02-080 for easy reference in case of follow-up and submission of additional requirements.4

Later on, RD Lipayon informed the petitioner that an Initial Environmental Examination document was
required for the project due to its significant impact in the area.5

On August 26, 2002, RD Lipayon required the petitioner to submit the following documents to enable the
EMB to determine whether the project was within an environmentally critical area or not, to wit:

1. Certification from DENR, Provincial Environment and Natural Resources Office (PENRO) that it
is not within areas declared by law as national parks, watershed reserves, wildlife preservation
area, sanctuaries and not within the purview of Republic Act No. 7586 or the National Integrated
Protected Areas System (NIPAS) Act, and other issuances including international commitments
and declarations;

2. Certification from the DENR Regional Office/ PENRO [that] the areas within the project do not
constitute the habitat for any endangered or threatened species or indigenous wildlife (Flora and
Fauna).

3. Certification from the following:

3.1. Philippine Atmospheric Geophysical and Astronomical Services Administration

(PAGASA) that the area is not frequently visited or hard-hit by typhoons. This shall refer
to all areas where typhoon signal no. 3 not hoisted for at least twice a year during the last
 five (5) years prior to the year of reckoning. Years to be considered shall be from January
1995 to December 2001.

3.2. Philippine Institute of Volcanology and Seismology (PHIVOLCS) that the area was not
subjected to an earthquake of at least intensity VII in the Rossi-Forel scale or its equivalent
and hit by tsunamis during the period of 1638 until the year 2001.

3.3. PHIVOLCS that the area was not subjected to earthquakes of at least intensity VII in
the Rossi-Forel scale or its equivalent during the period of 1949 until the year 2001.

3.4. PAGASA that the area is not storm surge-prone.

3.5. Mines and Geosciences Bureau Region 7 (MGB 7) that the area is not located along
fault lines or within fault zones and not located in critical slope.

3.6. City Mayor and/or City Engineers Office that the area is not flood prone.

3.7. Network of Protected Areas for Agriculture (NPAA) of the Bureau of Soils and Water
Management (BSWM) that the area is not classified as Prime Agricultural Land.

4. Certification from the Provincial Tourism Office or its equivalent office that areas in your project
are not set-aside as aesthetic potential tourist spot.

5. Certification from the National Water Resources Board (NWRB) that areas within your project
are not recharged areas of aquifer.

6. Certification from DENR regional Office and/or Environmental Management Bureau 7 (EMB 7)
that Loboc River is not characterized by one or any combination of the following conditions:

a. Tapped for domestic purposes;

b. With controlled and/or protected areas declared by appropriate authorities; and

c. Which support wildlife and fishery activities.

A Certificate of Non-Coverage will duly be issued to your foundation once all the above mentioned
required certifications are complied with.

Projects that are covered by P.D. 1586 or the Environmental Impact System (EIS) Law should not start
unless the Project Proponent should secure an Environmental Compliance Certificate (ECC), otherwise
penalties shall be imposed.6 (Emphases supplied)

On January 28, 2003, the petitioner submitted eight certifications,7 including the certification issued by
the Philippine Institute of Volcanology and Seismology (PHIVOLCS), as follows:

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

The petitioner failed to secure a certification from the Regional Office of the Mines and Geosciences
Bureau (RO-MGB) to the effect that the project area was not located along a fault line/fault zone or a
critical slope because RO-MGB did not have the data and expertise to render such finding, and thus had
to forward the petitioner’s request to the MGB Central Office.9
Upon the MGB’s advice, the petitioner sought and obtained the required certification from PHIVOLCS, but
the certification did not state whether the project area was within a critical slope. Instead, the certification
stated that the project site was approximately 18 kilometers west of the East Bohol Fault.10

Given the tenor of the certification from PHIVOLCS, RD Lipayon’s letter dated February 4, 2003 declared
that the project was within an environmentally critical area, and that the petitioner was not entitled to
the CNC, viz:

After thorough review of your submitted certifications, it was found out that the area was subjected to
an earthquake of Intensity VII in the adapted Rossi-Forel scale wherein the magnitude of the earthquake
is 6.8 with the highest intensity reported of VIII and you fail to support certification that the project area
is not within critical slope. And based on the Water Usage and Classification per Department Order (DAO)
34 Series of 1990, subject river system was officially classified as Class B intended for swimming and
bathing purposes. Moreover, one component of your project involves opening of roadway connected to
the barangay road.

Therefore, we reiterate our previous stand that your project is covered by the EIS System pursuant to P.D.
1586, the Environmental Impact Statement Law.11

On March 27, 2003, the petitioner filed a petition for mandamus and damages in the Regional Trial Court
(RTC) in Loay, Bohol,12 alleging that it was now entitled to a CNC as a matter of right after having complied
with the certification requirements; and that the EMB had earlier issued a CNC to the DPWH for a similar
waterworks project in the same area.

In the decision dated November 18, 2003,13 the RTC dismissed the petition for mandamus upon the
following considerations, namely: (1) PHIVOLCS certified that the project site had been subjected to an
Intensity VII earthquake in 1990; (2) the CNC issued by the EMB to a similar waterworks project of the
DPWH in the same area was only for the construction of a unit spring box intake and pump house, and
the DENR issued a cease and desist order relative to the DPWH’s additional project to put up a water
filtration plant therein; (3) the determination of whether an area was environmentally critical was a task
that pertained to the EMB; (4) the assignment of a control number by the EMB to the petitioner’s
application did not mean that the application was as good as approved; (5) the RTC would not interfere
with the primary prerogative of the EMB to review the merits of the petitioner’s application for the CNC;
and (6) there was already a pending appeal lodged with the DENR Secretary.

Hence, this appeal brought directly to the Court via petition for review on certiorari.

Issues

The petitioner submits the following issues:

A. WHETHER OR NOT, AFTER PETITIONER’S DUE COMPLIANCE WITH THE REQUIREMENTS

MANDATED BY RESPONDENTS FOR THE ISSUANCE OF THE CERTIFICATE OF NON-COVERAGE (CNC)
APPLIED FOR BY PETITIONER, IT IS NOW THE RIPENED DUTY OF RESPONDENTS, THROUGH
RESPONDENT EMB REGIONAL DIRECTOR, TO ISSUE SAID DOCUMENT IN FAVOR OF PETITIONER;

B. WHETHER OR NOT PETITIONER HAS EXHAUSTED AVAILABLE ADMINISTRATIVE REMEDIES

THROUGH AN APPEAL TO RESPONDENT DENR SECRETARY WHO HAS SAT ON SAID APPEAL UP TO
THE PRESENT;

C. WHETHER OR NOT PETITIONER IS ENTITLED TO RECOVER DAMAGES FROM RESPONDENTS IN

THEIR PERSONAL CAPACITY.14

The petitioner insists that RD Lipayon already exercised his discretion by finding that the application
substantially complied with the procedural aspects for review and by assigning Control No. CNC-02-080
to its application; that after the petitioner complied with the requirements enumerated in the August 26,
2002 letter of RD Lipayon, the EMB became duty-bound to issue the CNC to the petitioner; that the EMB
issued a CNC to a similar project of the DPWH in the same area; that it filed an appeal with the DENR
Secretary, but the appeal remained unresolved; and that it brought the petition for mandamus precisely
as a speedier recourse.

In their comment, RD Lipayon and Canda aver that the act complained of against them involved an
exercise of discretion that could not be compelled by mandamus; that the petitioner’s proposed project
was located within an environmentally critical area, and the activities to be done were so significant that
they would create massive earth movement and environmental degradation; that the petitioner violated
the rule against forum shopping; and that the petitioner had no cause of action against them for failure
to exhaust administrative remedies.

On his part, the DENR Secretary, through the Solicitor General, contends that the petition raises questions
of fact that are not proper in a petition for review; that the petitioner should have appealed to the CA
under Rule 41 of the Rules of Court; that the grant or denial of a CNC application is discretionary and
cannot be compelled by mandamus; and that the petitioner failed to exhaust administrative remedies.

Accordingly, the Court is called upon to resolve, firstly, whether the appeal directly to this Court from the
RTC was proper, and, secondly, whether the petition for mandamus was the correct recourse.

Ruling

The petition for review is denied for its lack of merit.

1.

Petitioner’s appeal is improper under Rule 45, Rules of Court

This appeal by certiorari is being taken under Rule 45, Rules of Court, whose Section 1 expressly requires
that the petition shall raise only questions of law which must be distinctly set forth. Yet, the petitioner
hereby raises a question of fact whose resolution is decisive in this appeal. That issue of fact concerns
whether or not the petitioner established that its project was not located in an environmentally critical
area. For this reason, the Court is constrained to deny due course to the petition for review.

It is a settled rule, indeed, that in the exercise of our power of review, the Court is not a trier of facts and
does not normally undertake the re-examination of the evidence presented by the contending parties
during the trial of the case. The Court relies on the findings of fact of the Court of Appeals or of the trial
court, and accepts such findings as conclusive and binding unless any of the following exceptions obtains,
namely: (a) when the findings are grounded entirely on speculation, surmises or conjectures; (b) when
the inference made is manifestly mistaken, absurd or impossible; (c) when there is grave abuse of
discretion; (d) when the judgment is based on a misapprehension of facts; (e) when the findings of facts
are conflicting; (f) when in making its findings the Court of Appeals or the trial court went beyond the
issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee;
(g) when the findings are contrary to the trial court; (h) when the findings are conclusions without citation
of specific evidence on which they are based; (i) when the facts set forth in the petition as well as in the
petitioner’s main and reply briefs are not disputed by the respondent; (j) when the findings of fact are
premised on the supposed absence of evidence and contradicted by the evidence on record; and (k) when
the Court of Appeals or the trial court manifestly overlooked certain relevant facts not disputed by the
parties, which, if properly considered, would justify a different conclusion.15 However, none of the
aforementioned exceptions applies herein.

2.

Mandamus was an improper remedy for petitioner

We dismiss the present recourse because the petitioner failed to exhaust the available administrative
remedies, and because it failed to show that it was legally entitled to demand the performance of the act
by the respondents.
It is axiomatic, to begin with, that a party who seeks the intervention of a court of law upon an
administrative concern should first avail himself of all the remedies afforded by administrative processes.
The issues that an administrative agency is authorized to decide should not be summarily taken away from
it and submitted to a court of law without first giving the agency the opportunity to dispose of the issues
upon due deliberation.16 The court of law must allow the administrative agency to carry out its functions
and discharge its responsibilities within the specialized areas of its competence.17 This rests on the theory
that the administrative authority is in a better position to resolve questions addressed to its particular
expertise, and that errors committed by subordinates in their resolution may be rectified by their
superiors if given a chance to do so.18

The records show that the petitioner failed to exhaust the available administrative remedies. At the time
RD Lipayon denied the petitioner’s application for the CNC, Administrative Order No. 42 dated November
2, 200219 had just vested the authority to grant or deny applications for the ECC in the Director and
Regional Directors of the EMB. Notwithstanding the lack of a specific implementing guideline to what
office the ruling of the EMB Regional Director was to be appealed, the petitioner could have been easily
guided in that regard by the Administrative Code of 1987, which provides that the Director of a line
bureau, such as the EMB,20 shall have supervision and control over all division and other units, including
regional offices, under the bureau.21 Verily, supervision and control include the power to "review,
approve, reverse or modify acts and decisions of subordinate officials or units."22 Accordingly, the
petitioner should have appealed the EMB Regional Director’s decision to the EMB Director, who exercised
supervision and control over the former.

It is relevant to mention that the DENR later promulgated Administrative Order No. 2003-3023 in order to
define where appeals should be taken, providing as follows:

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:

1âwphi1
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

Moreover, the petitioner states in its pleadings that it had a pending appeal with the DENR
Secretary.1âwphi1 However, the records reveal that the subject of the appeal of the petitioner was an
undated resolution of the DENR Regional Director, Region VII, denying its application for the CNC,24 not
the decision of RD Lipayon. Nonetheless, even assuming that the pending appeal with the DENR Secretary
had related to RD Lipayon’s decision, the petitioner should still have waited for the DENR Secretary to
resolve the appeal in line with the principle of exhaustion of administrative remedies. Its failure to do so
rendered its resort to mandamus in the RTC premature. The omission is fatal, because mandamus is a
remedy only when there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course
of law.25
Another reason for denying due course to this review is that the petitioner did not establish that the grant
of its application for the CNC was a purely ministerial in nature on the part of RD Lipayon. Hence,
mandamus was not a proper remedy.

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

Section 4. Environmental Impact Statements. – Pursuant to the above enunciated policies and goals, all
agencies and instrumentalities of the national government, including government-owned or controlled
corporations, as well as private corporations, firms and entities shall prepare, file and include in every
action, project or undertaking which significantly affects the quality of the environment a detailed
statement on–

(a) the environmental impact of the proposed action, project or undertaking

(b) any adverse environmental effect which cannot be avoided should the proposal be
implemented

(c) alternative to the proposed action

(d) a determination that the short-term uses of the resources of the environment are consistent
with the maintenance and enhancement of the long-term productivity of the same; and

(e) whenever a proposal involves the use of depletable or non-renewable resources, a finding
must be made that such use and commitment are warranted.

xxxx

P.D. No. 1586 exempted from the requirement of an EIS the projects and areas not declared by the
President of the Philippines as environmentally critical,27 thus:

Section 5. Environmentally Non-Critical Projects. - All other projects, undertakings and areas not declared
by the Presidents as environmentally critical shall be considered as non-critical and shall not be required
to submit an environmental impact statement. The National Environmental Protection Council, thru the
Ministry of Human Settlements may however require non-critical projects and undertakings to provide
additional environmental safeguards as it may deem necessary.

On December 14, 1981, the President issued Proclamation No. 2146 declaring areas and types of projects
as environmentally critical and within the scope of the EIS System, as follows:

A. Environmentally Critical Projects

I. Heavy Industries

a. Non-ferrous metal industries

b. Iron and steel mills

c. Petroleum and petro-chemical industries including oil and gas

d. Smelting plants

II. Resource Extractive Industries

a. Major mining and quarrying projects

 b. Forestry projects

1. Logging

2. Major wood processing projects

3. Introduction of fauna (exotic-animals) in public/private forests

4. Forest occupancy

5. Extraction of mangrove products

6. Grazing

c. Fishery Projects

1. Dikes for fishpond development projects

III. Infrastructure Projects

a. Major dams

b. Major power plants (fossil-fueled, nuclear fueled, hydroelectric or geothermal)

c. Major reclamation projects

d. Major roads and bridges.

B. Environmentally Critical Areas

1. All areas declared by law as national parks, watershed reserves, wildlife preserves and
sanctuaries;

2. Areas set aside as aesthetic potential tourist spots;

3. Areas which constitute the habitat for any endangered or threatened species of
indigenous Philippine Wildlife (flora and fauna);

4. Areas of unique historic, archaeological, or scientific interests;

5. Areas which are traditionally occupied by cultural communities or tribes;

6. Areas frequently visited and/or hard-hit by natural calamities (geologic hazards, floods,
typhoons, volcanic activity, etc.);

7. Areas with critical slopes;

8. Areas classified as prime agricultural lands;

9. Recharged areas of aquifers;

10. Water bodies characterized by one or any combination of the following conditions;

a. tapped for domestic purposes

b. within the controlled and/or protected areas declared by appropriate

authorities
 c. which support wildlife and fishery activities

11. Mangrove areas characterized by one or any combination of the following conditions:

a. with primary pristine and dense young growth;

b. adjoining mouth of major river systems;

c. near or adjacent to traditional productive fry or fishing grounds;

d. which act as natural buffers against shore erosion, strong winds and storm
floods;

e. on which people are dependent for their livelihood.

12. Coral reef, characterized by one or any combination of the following conditions:

a. with 50% and above live coralline cover;

b. spawning and nursery grounds for fish;

c. which act as natural breakwater of coastlines.

Projects not included in the foregoing enumeration were considered non-critical to the environment and
were entitled to the CNC.

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

The petitioner maintains that RD Lipayon already exercised his discretion in its case when he made his
finding that the application substantially complied with the procedural requirements for review. As such,
he was then obliged to issue the CNC once the petitioner had submitted the required certifications.

The petitioner errs on two grounds.

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

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

It is not amiss for us to observe, therefore, that the petitioner grossly misunderstood the nature of the
remedy of mandamus. To avoid similar misunderstanding of the remedy hereafter, a short exposition on
the nature and office of the remedy is now appropriate.

The writ of mandamus is of very ancient and obscure origin. It is believed that the writ was originally part
of the class of writs or mandates issued by the English sovereign to direct his subjects to perform a
particular act or duty.28 The earliest writs were in the form of letters missive, and were mere personal
commands. The command was a law in itself, from which there was no appeal. The writ of mandamus was
not only declaratory of a duty under an existing law, but was a law in itself that imposed the duty, the
performance of which it commanded.29 The King was considered as the fountain and source of justice,
and when the law did not afford a remedy by the regular forms of proceedings, the prerogative powers
of the sovereign were invoked in aid of the ordinary powers of the courts.30

A judicial writ of mandamus, issued in the King’s name out of the court of King’s Bench that had a general
supervisory power over all inferior jurisdictions and officers, gradually supplanted the old personal
command of the sovereign.31 The court of King’s Bench, acting as the general guardian of public rights and
in the exercise of its authority to grant the writ, rendered the writ of mandamus the suppletory means of
substantial justice in every case where there was no other specific legal remedy for a legal right, and
ensured that all official duties were fulfilled whenever the subject-matter was properly within its
control.32 Early on, the writ of mandamus was particularly used to compel public authorities to return the
petitioners to public offices from which they had been unlawfully removed.33

Mandamus was, therefore, originally a purely prerogative writ emanating from the King himself,
superintending the police and preserving the peace within the realm.34 It was allowed only in cases
affecting the sovereign, or the interest of the public at large.35 The writ of mandamus grew out of the
necessity to compel the inferior courts to exercise judicial and ministerial powers invested in them by
restraining their excesses, preventing their negligence and restraining their denial of justice.36

Over time, the writ of mandamus has been stripped of its highly prerogative features and has been
assimilated to the nature of an ordinary remedy. Nonetheless, the writ has remained to be an
extraordinary remedy in the sense that it is only issued in extraordinary cases and where the usual and
ordinary modes of proceeding and forms of remedy are powerless to afford redress to a party aggrieved,
and where without its aid there would be a failure of justice.37

The writ of mandamus has also retained an important feature that sets it apart from the other remedial
writs, i.e., that it is used merely to compel action and to coerce the performance of a pre-existing duty.38 In
fact, a doctrine well-embedded in our jurisprudence is that mandamus will issue only when the petitioner
has a clear legal right to the performance of the act sought to be compelled and the respondent has an
imperative duty to perform the same.39 The petitioner bears the burden to show that there is such a clear
legal right to the performance of the act, and a corresponding compelling duty on the part of the
respondent to perform the act.40

A key principle to be observed in dealing with petitions for mandamus is that such extraordinary remedy
lies to compel the performance of duties that are purely ministerial in nature, not those that are
discretionary.41 A purely ministerial act or duty is one that an officer or tribunal performs in a given state
of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or
the exercise of its own judgment upon the propriety or impropriety of the act done. The duty is ministerial
only when its discharge requires neither the exercise of official discretion or judgment.42

The petitioner's disregard of the foregoing fundamental requisites for mandamus rendered its petition in
the RTC untenable and devoid of merit.

WHEREFORE, the Court DENIES the petition for review on certiorari; and ORDERS the petitioner to pay
the costs of suit.

SO ORDERED.

November 29, 2017

G.R. No. 189290

REPUBLIC OF THE PHILIPPINES represented by the ENVIRONMENTAL MANAGEMENT BUREAU, REGION

VII, and NOEL C. EMPLEO, Regional Director, Petitioners
vs.
O.G. HOLDINGS CORPORATION, represented by its Chairman, MR. FREDERICK L. ONG, Respondent

DECISION

MARTIRES, J.:

At the urging of the Republic, for review1 under Rule 45 of the Rules of Court are the Decision2 and the
Resolution3of the Court of Appeals (CA) in CA-G.R. SP No. 02530, dated 11 June 2009 and 10 August 2009,
respectively, whereby the appellate court nullified and set aside the Orders dated 6 July 20064 and 7
February 2007,5 of petitioner, the Environmental Management Bureau, Region 7 (EMB-Region 7),
Department of Environment and Natural Resources (DENR), in EIA Cases Nos. VII-2006- 06-019 and VII-
2007-02-0 10.6 With the orders, petitioner suspended the Environmental Compliance Certificate (ECC) it
had previously issued to the beach resort project of respondent O.G. Holdings Corporation (0.
G. Holdings).7 The suspension was triggered by respondent's violation of Presidential Decree (P.D.) No.
1586, or the Philippine Environmental Impact Statement System, having failed to comply with a condition
set forth in the certificate. With the suspension, petitioner effectively prohibited the operations and
further development of the beach resort. The CA ruled that this was in grave abuse of discretion.

We required a comment8 and a reply.9 The parties complied.10

The Facts

The records narrate:

Respondent's beach resort project, the Panglao Island Nature Resort, comprising 3.0709 hectares,11 is
located at Barangay Bingag, Municipality of Dauis, Panglao Island, Bohol Province.12 In the resort are
native-style cottages, a hotel, a clubhouse, a man-made islet with a lifeguard post, a shed, and benches.
It boasts of amenities such as a business center, function rooms, sports and recreational facilities,
swimming pools, a spa, wildlife sanctuaries, a marina, a full-service dive shop and novelty shops, and a
beachfront bar and restaurant.13

On 26 July 2002, EMB-Region 7 issued an Environmental Compliance Certificate (ECC) to the Panglao
Island Nature Resort Corporation for the beach resort project owned and operated by O.G. Holdings, with
Frederick L. Ong as President (Ong).14 The ECC reads:

ENVIRONMENTAL COMPLIANCE CERTIFICATE

(07 02 07-26 0226 402)

The ENVIRONMENTAL MANAGEMENT BUREAU (EMB) of the Department of Environment and Natural
Resources (DENR), Region VII hereby grants this ENVIRONMENTAL COMPLIANCE CERTIFICATE (ECC) to
PANGLAO ISLAND NATURE RESORT CORPORATION for its Beach Resort project located in Barangay Bingag,
Dauis, Panglao Island, Bohol after complying with the Environmental Impact Assessment (EIA)
requirements pursuant to P.D. 1586.

This Certificate is being issued subject to the following conditions:

1. That this Certificate is issued as one of the requirements for any permit issuances by other concerned
agencies and is valid only for the beach resort project which covers a land area of three point zero seven
zero nine (3.0709) hectares covered by OCT No. 75531 consisting of the following facilities/amenities;

a. Thirteen (13) units bungalows;

b. Seven (7) units duplex cottage;

c. Three (3) units quadruplex cottages;

d. Swimming pool;

e. Lobby and Restaurant;

f. Library and Function Room;

g. Gazebo and Fitness Gym; and

h. Two-hundred (200) square meter man-made island in the foreshore area.

2. That it shall be the responsibility of the proponent to secure the necessary permits/clearances and
coordinate with concerned agencies to include, but not limited to the following:

2.1. Department of Health (DOH)-Region 7 and/or Municipal Health Office on provision of sewage
treatment facilities and Sanitary Permits;

2.2. DENR-PENRO/CENRO on Foreshore Lease/Other Lawful Purposes Permit in case of any development
in the foreshore area;

2.3. Municipal Engineer's Office on Drainage Clearance taking into consideration the provision of catch
basins to prevent siltation/turbidity of seawater;

2.4. Municipal Building Official on Structural Stability and Building Permit;

2.5. Fisheries and Aquatic Resources Management Council Clearance, for development on-shore;

2.6. Municipal Government on Solid Waste Management, which shall effectively implement on solid waste
management scheme, segregation and recycling of solid waste prior to disposal in a manner that does not
create nuisance or land pollution.

That it shall be the responsibility of the respective government agencies to monitor the herein stated
permits/clearances;

3. That the project proponent shall be held responsible [for] damages incurred to life, property, and
environment brought about by the implementation of the project. Aggrieved parties shall be justly and
timely compensated. Likewise, the proponent shall set aside One Hundred Thousand Pesos (₱100,000.00)
representing as Environmental Guarantee Fund (EGF) for any environmental impacts arising from the
project implementation. This shall be maintained all throughout the duration of the project;

4. That buffer strip of appropriate tree species either in the form of tree parks or landscaping should be
planted on any applicable areas and shall be maintained all throughout the duration of the project;

5. That overflow septic tanks from cottages should be pumped to the Centralized Sewage Treatment
Facility and effluent should conform with the standards set forth in the Implementing Rules and
Regulations of P.D. 984;

6. That a marine study should be conducted within the primary impact area and a report should be
submitted to this Office thirty (30) days from receipt of this Certificate;

7. That information signs prohibiting coral collection should be posted on strategic locations of the project
area;

8. That any expansion from the existing approved operation shall be subject to [other] EIA requirements;

9. That the project shall exit the coverage of EIS System once all the conditions have been complied with,
and henceforth all regulatory activities shall be conducted by those regulatory agencies concerned, to
include but not limited to those that are indicated in condition No. 2 of this Certificate. EMB, DENR-Region
7 shall be furnished a copy of the Monitoring Inspection Report of the said agencies;
10. That an on-the-spot monitoring may be conducted by DENRPENRO concerned and/or EMB-Region VII
anytime in coordination with concerned groups;

11. That transfer of ownership of this project carries the same conditions as contained in this Certification
for which written notification should be made by herein grantee to this Office within fifteen (15) days
from such transfer; and

THIS ECC SHOULD NOT BE MISCONSTRUED AS A PERMIT, RATHER A SET OF CONDITIONALITIES WHICH
SHOULD BE FOLLOWED BY THE PROJECT PROPONENT IN ALL STAGES OF THE PROJECT IMPLEMENTATION
IN ORDER TO MITIGATE POTENTIAL ADVERSE IMPACTS [ON] THE ENVIRONMENT.

Non-Compliance [with] any of the above stipulations will be sufficient cause for the suspension or
cancellation of this Certificate and/or imposition of a fine in an amount not to exceed Fifty Thousand Pesos
(₱50,000.00) for every violation thereof, at the discretion of this Office (Section 9 of P.D. 1586).

Given this 26th day of July 2002.

Approved by:

AUGUSTUS L. MOMONGAN

Regional Executive Director

Recommending Approval:

BIENVENIDO L. LIPAYON

Regional Director

Conforme:

FREDERICK L. ONG

President and General Manager

Thereafter, O.G. Holdings proceeded to develop and operate the project, incurring an unspecified
"millions of pesos" in the process.15

On 3 December 2003, EMB-Region 7 monitored the project for compliance. It found three violations of
the ECC: (a) non-compliance with its Conditions Nos. 2.2, 3, and 6, or the requirements that the project
obtain a foreshore lease, (b) that it establish an Environmental Guarantee Fund, and (c) that it submit a
marine study on the project's primary impact area.16 Consequently, the bureau issued a Notice of
Violation, dated 15 March 2004.17

The following month, on 16 April 2004, EMB-Region 7 again conducted a compliance monitoring, and
found that ECC again failed to comply with Conditions Nos. 2.2 and 6.18 On 13 May 2004, it issued a Notice
of Violation19 to respondent Ong, President and General Manager of Panglao Island Nature Resort
Corporation20 and Chairperson of O.G. Holdings,21 with an invitation to a technical conference on 16 June
2004 at the bureau's office in Mandaue City.22 EMB-Region 7 Regional Director Bienvenido L. Lipayon
signed the notice.23

At the conference, O.G. Holdings disclosed the difficulties it was having in securing a foreshore lease for
the beach resort project. Particularly, it stated that the Municipality of Dauis could not give its favorable
endorsement for the lease, as an existing ordinance, Municipal Ordinance No. 03-1991,24 prohibited any
development on the municipal shorelines. Nonetheless, it made a commitment that it would file
"appropriate documents"25 on the foreshore lease and marine study.

On 1 March 2005, O.G. Holdings submitted a marine study, finally complying with ECC Condition No. 6.26
The following day, 2 March 2005, EMB-Region 7 held yet another monitoring and noted the continuing
violation of ECC Condition No. 2.2, viz, the securing of a foreshore lease.27 At this point, it bears
mentioning that the bureau had also received a complaint from a local fisherfolk organization, the Bingag
Little Fishermen's Organization, that O.G. Holdings was cordoning the shoreline at the project site,
affecting the right of way of the fisherfolk.28

On 28 April 2005, EMB-Region 7 again sent O.G. Holdings a Notice of Violation with respect to ECC
Condition No. 2.2.29 O.G. Holdings replied, in a letter sent on 10 November 2005, that compliance with
the condition was legally impossible. It blamed the local government unit for allegedly failing to act30 on
its request that the Panglao Island Nature Resort Corporation be given a favorable endorsement for a
foreshore lease. It informed EMB-Region 7 that it had filed, instead, an application with the Philippine
Reclamation Authority (PRA) for the special registration of a man-made island located within the project.
O.G. Holdings prayed that the bureau consider the application with the PRA as substantial compliance
with ECC Condition No. 2.2. In support of this prayer, it submitted a letter,31 dated 25 May 2005, issued
by PRA General Manager and Chief Executive Officer Teodorico C. Taguinod acknowledging receipt of said
application for the registration of O.G. Holdings' man-made island, and advising that PRA's requirements
must be met.32

On 4 July 2006, EMB-Region Ts Environmental Impact Assessment (EIA) Division recommended the
suspension of the ECC issued to the Panglao Island Nature Resort Corporation. Incidentally, on the
following day, the Department of Tourism issued a Class "AA" accreditation to the beach resort.33

The Orders of the Environmental Management Bureau

Acting on EIA Division's recommendation, EMB-Region 7 suspended the subject ECC in an order,34 dated
6 July 2006, and signed by petitioner Alan C. Arranguez (Arranguez), Officer-in-Charge, Office of the
Regional Director, EMB-Region 7, which reads:

WHEREFORE, viewed from the light of the foregoing and pursuant to Section 6.0 (b) of DAO 96-37, the
Environmental Compliance Certificate (ECC 07 01 04-03 0054 402) issued to Panglao Island Nature Resort
is SUSPENDED for failure of the proponent to submit foreshore lease agreement and/or permit from the
Philippine Reclamation Authority for the foreshore area of the project.

The proponent is directed to CEASE AND DESIST from undertaking project expansion and other
developments within the project area.

The Chief of the Environmental Impact Assessment Division or his duly authorized representative is
directed to implement this Order within seventy-two (72) hours and to submit report within forty-eight
(48) hours from its execution stating the proceedings taken thereon.

SO ORDERED.

(Sgd.) ALAN C. ARRANGUEZ

OIC, Regional Director

In a letter dated 14 July 2006, O.G. Holdings moved for reconsideration. It pleaded that the suspension of
the ECC would hinder its application with the PRA, as it required an existing ECC for the special registration
of the man-made island.35

The plea prompted the Bohol staff of EMB-Region 7 to visit the project site on 30 August 2006. The staff
reported that there were no reclamation activities at the site. O.G. Holdings was nevertheless advised
"not to take any activity over the area."36

However, local fisherfolk reported to the bureau that a guardhouse was being built at the resort, and that
its foundation was already finished. The fisherfolk also reported that O.G. Holdings was cordoning
seawater at the project site. On 18 January 2007, EMB-Region 7 investigated these reports, during which
O.G. Holdings manifested that it would no longer proceed with the construction of the guardhouse but
that its cordoning activities would continue in order to maintain the security of resort guests, following
instructions from the Department of Tourism.37

On 7 February 2007, again, via Officer-in-Charge Arranguez, EMB-Region 7 issued the second suspensive
order.38This time, the order included as among the beach resort project's violations the construction of a
guardhouse within the foreshore area. The order reads, in part:

We painstakingly reviewed the records as well as laws, rules and regulations in order to judiciously resolve
the case. As per record, the proponent has not secured yet a tenurial instrument from the DENR nor has
a permit from the Philippine Reclamation Authority (PRA). To date, proponent has failed to submit
necessary permit/clearance relevant to the foreshore area. From the date of the issuance of the
Environmental Compliance Certificate (ECC) until today, a considerable length of time of more than two
(2) years had lapsed for the proponent to process and secure such permit. The proponent has made a
written commitment several times to comply [with] the same but it was not rectified and complied [with].
The act of continuous violation can be interpreted as seeming misrepresentation or deliberate intent to
thwart the rules. The same should be taken against the proponent. The provision of Section 6.0 (b) of
DENR Administrative Order No. 96-37 otherwise known as the implementing rules of EIS System Act
punishes violation of ECC conditions. Considering the infraction of the proponent through the years, it
would be fitting to impose a stiffer penalty. Further, the construction of the guardhouse and the laying of
its foundation within the foreshore area is an apparent violation of the previous order of this Office and
DENR Administrative Order No. 2003-30. Finally, in view of the suspension of the Environmental
Compliance Certificate (ECC), the project is technically operating without an ECC. Under existing policy, a
project without an ECC is prohibited from further implementing /operating the same. However, the Office
in the spirit of due process, gives respondent proponent the opportunity to submit the required tenurial
instrument over the foreshore area in compliance [with] the ECC condition, and other pertinent
documents which will be made as the basis for the imposition of appropriate penalty including the
cessation of project operation.

WHEREFORE, viewed from the light of the foregoing, this Office orders respondent proponent to submit
the required tenurial instrument for the foreshore area and other documents relevant thereto within
seventy-two (72) hours from receipt hereof, subject to the evaluation and review of this Office. If found
compliant, the Order suspending the efficacy of the ECC will be lifted, however, if the documents will be
found insufficient, the CEASE AND DESIST ORDER (CDO) will be implemented immediately by this Office.

The Chief of the Environmental Impact Assessment Division or his duly authorized representative is
directed to implement this Order within seventy two (72) hours and to submit report within forty eight
(48) hours from its execution stating the proceedings taken thereon.

SO ORDERED.

(Sgd.) ALAN C. ARRANGUEZ

OIC, Regional Director

In fine, the order stated that unless O.G. Holdings submit a "tenurial instrument for the foreshore area,"
e.g., a foreshore lease agreement, within the specified seventy-two hours, the ECC for the Panglao Island
Nature Resort Corporation would be suspended immediately, with the suspension resulting in the
disallowance of the operations and further development of the resort.

O.G. Holdings no longer moved for the reconsideration of this second order.

The Petition for Certiorari before the CA

Instead, it filed a special civil action under Rule 65 of the Rules of Court before the CA. The petition
for certiorari,39dated 22 February 2007, and docketed as CA-G.R. CEB SP No. 02530,40 named as
respondents petitioners EMB-Region 7 and Officer-in-Charge Arranguez, with the latter impleaded in his
official and personal capacities. The petition for certiorari prayed for the annulment of the 6 July 2006 and
7 February 2007 orders and claimed an "extreme urgency" in the issuance of a temporary restraining
order and writ of preliminary injunction41 to restrain the implementation of the orders. The petition also
asked that "a condition"42 in the subject ECC be annulled and/or modified.

At the outset, the petition for certiorari insisted that certiorari was the proper remedy against the
suspension of the project's ECC. Appealing the suspensive orders to the Secretary of the DENR, it argued,
would not stay the subject suspension. The petition claimed that four exceptions existed to prevent the
application of the principle of exhaustion of administrative remedies, to wit: (1) to require exhaustion of
administrative remedies would be unreasonable; (2) the rule does not provide a plain, speedy and
adequate remedy; (3) there are circumstances indicating the urgency of judicial intervention, as when
public interest is involved; and (4) there is irreparable injury. Anent the fourth point, the petition claimed
that cancellations of local and foreign guest bookings, as a consequence of the suspension, were harming
the economic well-being of O.G. Holdings, its employees, and the Province of Bohol.

To impute grave abuse of discretion on EMB-Region 7 and Arranguez, the petition claimed that they had
imposed "an impossible condition [to be complied with] within an impossible seventy two (72) hours."43 It
pointed out that Condition No. 2.2 came into play only when there were construction or development
activities within the beach resort project's foreshore area. Thus, the petition now contended
that, first, the resort's man-made island was the only reason why EMB-Region 7 and Arranguez were
insisting on a foreshore lease; and, second, the man-made island was not a construction or development
activity on the foreshore area, but a reclamation project located "some ninety (90) meters offshore from
the resort."44 Hence, the petition went on to argue, there was no basis to require a foreshore lease for
the man-made island and the entire beach resort project. And even if it were assumed, arguendo, that a
foreshore lease was required for the man-made island, it was illogical and unjust of EMB-Region 7 and
Arranguez to have ordered the stoppage of the operations of the entire beach resort project considering
that its other components were located outside its foreshore area.

The petition went on to claim that O.G. Holdings attempted in good faith to substantially comply with
Condition No. 2.2, viz, by applying for the special registration, as reclaimed land, of the man-made island.
Unfortunately, EMB-Region 7 and Arranguez made the application's approval impossible when they
suspended the beach resort project's ECC. The following passage expresses the petition's interesting
theory on this score:

In effect, while initially Respondents [EMB-Region 7 and Arranguez] were open to admitting the PRA
permit as substitute compliance for the foreshore lease agreement, they (respondents) have nevertheless
subsequently made it impossible for Petitioner to secure the same since it has suspended its ECC instead
of waiting for the processing and release of the PRA permit. In short, Respondents demand something
from Petitioner but at the same time have made it impossible for Petitioner to comply with the same by
putting obstacles in every step of the way in Petitioner's effort to comply with its impossible condition.45

In fine, the petition for certiorari concluded that EMB-Region 7 and Arranguez acted in grave abuse of
discretion amounting to lack of or excess of jurisdiction in suspending the subject ECC.

The Ruling of the CA

The CA found merit in the prayer for the issuance of the extraordinary writ of certiorari. The dispositive
portion of the CA decision reads:

WHEREFORE, in light of all the foregoing, the petition is hereby GRANTED. The orders dated July 6, 2006
and February 7, 2007 issued by OIC, Regional Director, Alan Arranguez, are hereby ANNULLED and SET
ASIDE. Petitioner is hereby relieved of complying with condition No. 2.2, and in lieu thereof, to submit
proof of registration of the reclaimed off-shore area as soon as it has been granted by the PRA in due
course.46

The CA agreed with O.G. Holdings that it would be unreasonable to require exhaustion of administrative
remedies in the case. It characterized Condition No. 2.2 of the ECC as "presently unattainable"47 and the
suspension of the ECC as arbitrary.48 EMB-Region 7 and Arranguez, the appellate court held, had thus
erred in suspending the ECC. Such error was no mere error of judgment, but of jurisdiction, and more so
because the suspension also rendered futile O.G. Holdings' pending application with the PRA.49 The CA
said: "[P]etitioner [O.G. Holdings] was abruptly robbed of its opportunity to comply therewith within the
legal parameters afforded by applicable laws on the matter."50

Interestingly, the appellate court also opined51 that the required foreshore lease or permit may be
dispensed with. There had been a "gross misappreciation of facts,"52 the CA said, as the resort's man-
made island was located offshore.53 Thus, there was no need for O.G. Holdings to secure a foreshore
lease.54 We quote the CA's discussion on this score, if only so that the decision under review may speak
for itself:55

Be that as it may, this Court is of the opinion that condition No. 2.2 of the ECC may be dispensed with in
view of the fact that the islet for which respondents sought the petitioner to secure a tenurial document,
is, as found by Deputy Public Land Inspector Alfredo Galarido, within an OFFSHORE AREA and not
on FORESHORE AREA; hence, for all legal intents, there is no need to secure the required foreshore lease.

The definition of the term "FORESHORE LAND" as discussed in the case of Republic vs. CA, et al, is
instructive, thus:

The strip of land that lies between the high and low water marks and that is alternately wet and dry
according to the flow of the tide." [Sic] (Words and Phrases, "Foreshore")

"A strip of land margining a body of water (as a lake or stream); the part of a seashore between the low-
water line usually at the seaward margins of a low-tide terrace and the upper limit of wave wash at high
tide usually marked by a beach scarp or berm"(Webster's Third New International Dictonary.)"

A perusal of the records would clearly show that, indeed, the islet or the man-made island is found on the
offshore area fronting the resort, as can be clearly seen in the pictures attached to the records. Off-shore
as defined in Webster dictionary refers to seaward or at a distance from the shore. [citations omitted]

The appellate court observed that even if it were to be assumed, for the sake of argument, that the man-
made island was a foreshore development, securing a lease or permit for the same would still not be
possible, given the municipal proscription against such developments. On O.G. Holding's application with
the PRA, the CA then declared that such application was made in 0.G. Holding's "desire to comply" with
Condition No. 2.2; with the PRA application cast in such light, the CA concluded that it was "unjust and
inequitable" to insist on a foreshore lease for the beach resort project even after its ECC had been
suspended. Finally, the CA stressed that millions of pesos had been spent on the Panglao Island Nature
Resort.

In the main, the CA ruled that EMB-Region 7 and Arranguez had acted with grave abuse of discretion.
EMB-Region 7 moved for reconsideration, but it was denied in a resolution dated 11 August 2009.56

The Petition for Review before this Court

The Court is now faced with the present petition for review, filed under Rule 45 of the Rules of Court,
imputing errors on the subject ruling, viz:57

I. A writ of certiorari will not lie in the absence of grave abuse of discretion.

II. Factual Issues are not proper in a petition for certiorari.

ISSUE

The issue is whether the appellate court reversibly erred in annulling and setting aside the 6 July 2006 and
7 February 2007 Orders of the Environmental Management Bureau. Said differently, the issue is whether
the CA reversibly erred in ruling that EMB-Region 7 and Arranguez had acted in grave abuse of discretion
amounting to lack of or excess of jurisdiction in suspending the subject ECC, effectively disallowing the
operations and further development of the Panglao Island Nature Resort. Put succinctly, the issue is
whether the CA reversibly erred in granting O.G. Holdings' Petition for Certiorari.
THE RULING OF THE COURT

The petition for review is impressed with merit. There are obvious errors in the assailed ruling.

The CA erred in granting 0. G.

Holdings' petition when there was a
failure to move for reconsideration
before seeking certiorari.

A motion for reconsideration is an indispensable condition before an aggrieved party can resort to the
special civil action for certiorari under Rule 65 of the Rules of Court.58 This well-established rule is
intended to afford the public respondent an opportunity to correct any actual or fancied error attributed
to it by way of re-examination of the legal and factual aspects of the case.59

O.G. Holdings no longer moved for the reconsideration of the 7 February 2007 order. To assail the order,
it instead filed posthaste a petition for certiorari with the appellate court. Petitioners EMB-Region 7 and
its then Officer-in-Charge Arranguez were thus deprived of the opportunity to rectify or, at the least,
address the errors of jurisdiction that O.G. Holdings imputed against them before the CA.

While there are well-recognized exceptions to the rule,60 none is said to be present here. For one thing,
O.G. Holdings did not specifically plead any of them in its petition for certiorari. It pleaded before the
appellate court that it would be "futile" to move for the reconsideration of the 7 February 2007 order as,
allegedly, EMB-Region 7 and Arranguez had "already failed or refused to directly act on [O.G. Holdings']
letter for reconsideration of [the] previous July 6, 2006 Order, ... "61

We are not persuaded, it being speculative. At this point, the petition for certiorari was already fatally
defective, and the CA erred in granting it.

The CA erred in granting 0. G.

Holdings' petition when they had
failed to exhaust available
administrative remedies be/ ore
seeking certiorari.

The doctrine of exhaustion of administrative remedies requires that resort must first be made with the
appropriate administrative authorities in the resolution of a controversy falling under their jurisdiction
before the same may be elevated to the courts for review. If a remedy within the administrative machinery
is still available, with a procedure pursuant to law for an administrative officer to decide a controversy, a
party should first exhaust such remedy before going to court.62

This doctrine closely echoes the reason behind the rule providing that before resort to the special civil
action of certiorari is allowed, a motion for reconsideration should first be filed with the public respondent
concerned. Exhaustion of administrative remedies is obliged pursuant to comity and convenience which
in turn impel courts to shy away from a dispute until the system of administrative redress has been
completed and complied with.63 The issues that an administrative agency is authorized to decide should
not be summarily taken away from it and submitted to a court without first giving the agency the
opportunity to dispose of the issues.64

O.G. Holdings failed to abide by this doctrine. Administrative remedies existed against the suspension of
the subject ECC, made available via DENR Administrative Order No. 30, Series of 2003 (A.O. No. 30), which
was prevailing at the time of the suspensive orders. A.O. No. 30 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:

DecidingAuthority 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

O.G. Holdings thus had the opportunity to file an administrative appeal on the suspension of the beach
resort project's ECC, beginning with the Office of the EMB Director. Indeed, the administrative machinery
afforded even an appeal to the Office of the President, but O.G. Holdings did not avail of such.

It might be argued that Section 6, in A.O. No. 30 applied only to final decisions on applications for the
issuance of an ECC or CNC (Certificate of Non-Coverage), and not to the suspension of an ECC that had
already been issued. However, the 2013 case of Special People, Inc. Foundation v. Canda, et al.65 addresses
this argument. The petitioner therein had applied for a CNC for its water-resource development and
utilization project in the Province of Bohol. In 2003, the EMB Regional Director concerned declared the
location of the project to be within an environmentally critical area, hence not entitled to the CNC applied
for. To assail the EMB Regional Director's ruling, similar to the present case, the petitioner filed a special
civil action before the Regional Trial Court, a petition for mandamus. The trial court dismissed the petition,
prompting the petitioner's appeal before this Court. We dismissed the appeal for the reason, among
others, that petitioner sought certiorari before exhausting all available administrative remedies. In our
discussion, we highlighted the general rule on where to appeal the decisions and actions of the EMB
Regional Directors:

The records show that the petitioner failed to exhaust the available administrative remedies. At the time
RD Lipayon denied the petitioner's application for the CNC, Administrative Order No. 42 dated November
2, 2002 had just vested the authority to grant or deny applications for the ECC in the Director and Regional
Directors of the EMB. Notwithstanding the lack of a specific implementing guideline to what office the
ruling of the EMB Regional Director was to be appealed, the petitioner could have been easily guided in
that regard by the Administrative Code of 1987, which provides that the Director of a line bureau, such as
the EMB, shall have supervision and control over all division and other units, including regional offices,
under the bureau. Verily, supervision and control include the power to "review, approve, reverse or
modify acts and decisions of subordinate officials or units." Accordingly, the petitioner should have
appealed the EMB Regional Director's decision to the EMB Director, who exercised supervision and
control over the former.66 [citations omitted]

Certainly, the doctrine of exhaustion of administrative remedies may be disregarded in certain

instances;67 as has been noted, O.G. Holdings claimed before the appellate court that four exceptions
existed in its case to prevent the doctrine from being applied to its petition for certiorari. Yet in the
petition for certiorari, we observe that O.G. Holdings failed to discuss, let alone prove, how public interest
had any bearing in its case. Neither did it sufficiently prove how the suspension of the subject ECC would
have caused irreparable injury. On this score, O.G. Holdings merely alleged that cancelled guest bookings,
allegedly due to the suspension of the project's ECC, would harm its economic well-being as well as that
of its employees and the Province of Bohol. Indeed, O.G. Holdings did not even present proof that the
vaunted cancellations were in fact done; and it failed to describe in monetary terms the alleged losses
from said cancellations.

The claims that an administrative appeal of the suspensive orders would not be the plain, speedy, and
adequate remedy, and that to require exhaustion of administrative remedies would be unreasonable are
closely intertwined with the petition for certiorari's principal claim that EMB-Region 7 and Arranguez had
committed grave abuse of discretion.

The CA erred in making factual

findings in a certiorari proceeding.

The failure to exhaust administrative remedies in this case partakes of a particular prominence when we
consider the factual matters that O.G. Holdings brought before the appellate court on certiorari.

Factual issues are not a proper subject for certiorari, which is limited to the issue of jurisdiction and grave
abuse of discretion.68 Yet to argue grave abuse of discretion, O.G. Holdings presented the appellate court
with factual matters that do not appear, at least on record, to have been shared or even passed upon by
EMB Region-7. The following passage from the petition for certiorari is worthy of quote as it speaks for
itself.

Petitioner's Resort is located atop a cliff facing the Bohol Strait and Maribojoc Bay, at the foot of such cliff
is a very little foreshore area which makes any permanent development in said area not only unsuitable,
but also impractical. Besides, Municipal Ordinance No. 03-1991 of the Municipality of Dauis, where the
Resort is located, prohibits any foreshore development in the Municipality. For these reasons, Petitioner
has never made any development in the foreshore area within the Resort. Since the requirement under
Condition No. 2.2 of Petitioner's ECC, that is-to secure a foreshore lease/other lawful purposes permit
becomes operative only once Petitioner should make "any development in the foreshore area," there is
obviously no need for Petitioner to comply with said requirement since as stated earlier, Petitioner has
never made any permanent development in the foreshore area of its Resort. [underlining provided]69

Elsewhere in the petition, 0.G. Holdings described the man-made island as an "islet,"70 whereas EMB-
Region 7 had identified it in the subject ECC as an "island."71 O.G. Holdings' claim that it has "never made
any development in the foreshore area" also flies in the face of EMB-Region 7's own finding, stated in its
7 February 2007 order, that O.G. Holdings had constructed a guardhouse and had laid its foundation
within the foreshore area of the resort.72

Yet, following O.G. Holdings' lead, the CA proceeded to declare that the man-made island was an offshore
development and hence ruled that the island was not to be covered by the foreshore lease requirement
set forth in Condition No. 2.2 of the ECC. Admittedly, the CA arrived at the factual premise based on
"pictures" and on the alleged finding of a deputy public land inspector. But these are insufficient proof.
The CA did not identify the kind of "pictures" these were such that it was persuaded to pronounce, in
a certiorari proceeding, a rather technical finding of fact. From which angle were the pictures taken or
drawn? Were they cartographic, satellite images, or photographic-of which there are two kinds, digital
and non-digital. Perhaps these decisive pictures were artistic representations, rendered by hand in
graphite or ink, but the CA did not say. As to its reliance on the alleged factual finding of the deputy land
inspector, suffice it to say that even if it were to be assumed, arguendo, that the man-made island had
indeed been built offshore, as allegedly found by the land inspector in the fulfillment of the unique
mandate of his office, such finding should not be taken to mean that the EMB, in the exercise of its own
mandate under the Philippine Environmental Impact Statement System, should automatically exempt
the entire beach resort project from the need for a foreshore lease, as set forth from the ECC it had issued.

The CA erred in this case in making factual findings in a certiorari proceeding-even if O.G. Holdings had
alleged a misappreciation of facts on the part of EMB-Region 7. As a rule, misapplication of facts and
evidence, and erroneous conclusions based on evidence do not, by the mere fact that errors were
committed, rise to the level of grave abuse of discretion.73 Parenthetically, O.G. Holdings should have
elevated its factual issues on administrative appeal to the sound discretion of the DENR, the government
body entrusted with the regulation of activities coming under its special and technical training and
knowledge.74 As this Court held in the case of Acoba v. Court of Appeals:75

In a special civil action for certiorari, under Rule 65 of the 1997 Rules of Civil Procedure, factual issues may
not be brought before us. Here petitioner's submission, however, shows that he is raising issues
concerning alleged errors and misapprehensions of facts committed by the Court of Appeals. These are
not correctible by certiorari under Rule 65. The only question that may be raised in a petition
for certiorari is whether the respondent has acted without or in excess of jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction. It is not the office of a writ of certiorari to correct
errors of fact or law which the lower court may have committed. An error of judgment committed by a
court in the exercise of its legitimate jurisdiction is not the same as grave abuse of discretion.

The CA erred in finding grave abuse

of discretion amounting to lack or
excess of jurisdiction in the
suspension of the subject ECC.

To recall, the CA found grave abuse of discretion, amounting to lack or excess of jurisdiction, on the part
of the EMB-Region 7 and Arranguez based on the theory that their suspension of the subject ECC made
O.G. Holdings' PRA application problematic. We recall the theory, as follows:

O.G. Holdings was seeking to comply with Condition No. 2.2, of the beach resort project's ECC, which was
issued in 2002. But the compliance, i.e., obtaining a foreshore lease or permit, was "legally impossible"
due to an ordinance prohibiting foreshore developments in the municipality. So in 2005, O.G. Holdings
filed an application with the PRA for the special registration, as reclaimed land, of its man-made island,
and asked that EMB-Region 7 consider the application as substantial compliance with Condition No.
2.2.76 But in 2007, after noting 0.G. Holdings' continued violation of the ECC (for failure to comply with
Condition No.2.2), EMB-Region 7 suspended the ECC, prompting O.G. Holdings to assert,
on certiorari before the CA, that the suspension had rendered impossible the approval of their PRA
registration. O.G. Holdings emphasized that it needed the registration for its substantial compliance with
Condition No. 2.2, which compliance, in turn, was pivotal in securing or rather, recovering the ECC for its
beach resort project. In fine, O.G. Holdings posited that it needed an ECC in order that it may obtain an
ECC. From the foregoing, O.G. Holdings theorized that EMB-Region 7 and Arranguez had acted with grave
abuse of discretion in suspending the ECC.

That the CA was convinced by this circuitous theory with its obviously flawed premises is remarkable.

The flaws are two-fold. First. It is wrong to suppose that an application for the registration of a man-made
island, as reclaimed land, may substitute for a foreshore lease agreement or permit. This same
observation holds true even if the substitution sought involved the approved registration. Incidentally, it
bears mentioning that O.G. Holdings' application for the man-made island was made under PRA
Administrative Order No. 2005-1, or the Rules and Procedures for Special Registration of
Unauthorized/Illegal Reclamation Projects.77

Certainly, the supposition would be acceptable were there a law or regulation authorizing such a
substitution. Unfortunately for O.G. Holdings, it failed to plead such law or regulation in its petition
for certiorari.

Second. Even if it were to be assumed, arguendo, that such law or regulation existed, it is wrong to
suppose that EMB-Region 7 and Arranguez had acted in grave abuse of discretion simply because they
had practically rejected O.G. Holdings' proposed substitution for Condition No. 2.2. Indeed, the
acceptance of the proposed substitution still lay within the sound discretion of EMB-Region 7 and
Arranguez.

For these reasons, the CA erred in ruling that EMB-Region 7 and Arranguez had acted in grave abuse of
discretion. Time and again we have held that a petition for certiorari will prosper only if grave abuse of
discretion is alleged and proved to exist.78 Abuse of discretion is grave if it is so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act at
all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason
of passion or hostility.79

Here, we find no grave abuse of discretion on the part of EMB-Region 7 and Arranguez when they
suspended the ECC for the Panglao Island Nature Resort Corporation. Indeed, we cannot even find mere
abuse of discretion in the act, as it came on the heels of a recommendation from the EIA Division and was
provoked by O.G. Holdings' continuous noncompliance with Condition No. 2.2 of the ECC. Such
noncompliance is a violation that the National Environmental Protection Council, now the Environmental
Management Bureau, was authorized to penalize under P.D. No. 1586, viz:

Section 9

Penalty for Violation

Any person, corporation or partnership found violating Section 4 of this Decree, or the terms and
conditions in the issuance of the Environmental Compliance Certificate, or of the standards, rules and
regulations issued by the National Environmental Protection Council pursuant to this Decree shall be
punished by the suspension or cancellation of his/its certificate and/or a fine in an amount not to exceed
Fifty Thousand Pesos (₱50,000.000) for every violation thereof, at the discretion of the National
Environmental Protection Council.

With this penalizing law in existence, there is no basis to rule that EMB-Region 7 and Arranguez had acted
in excess or lack of jurisdiction.1âwphi1 We consider, also, that EMB-Region 7 had issued several notices
of violations to O.G. Holdings before it came to the lawful decision to suspend the subject ECC for its
noncompliance with a condition. This indicates a considerable effort to resolve the violation judiciously
and prudently, without automatically resorting to the penalty provided therefor.

We also consider it strange that O.G. Holdings had found it expedient to pray, via its petition
for certiorari with the CA, for the annulment or modification of an unspecified "condition"80 in the ECC,
implicitly Condition No. 2.2. To include such a prayer in the petition for certiorari was clearly a procedural
error on O.G. Holdings' part. A.O. No. 30 provided for an administrative machinery for amending an
existing ECC, viz:

8.3 Amending an ECC

Requirements for processing ECC amendments shall depend on the nature of the request but shall be
focused on the information necessary to assess the environmental impact of such changes.

8.3.1. Requests for minor changes to ECCs such as extension of deadlines for submission of post-ECC
requirements shall be decided upon by the endorsing authority.

8.3.2. Requests for major changes to ECCs shall be decided upon by the deciding authority.

8.3.3. For ECCs issued pursuant to an IEE or IEE checklist, the processing of the amendment application
shall not exceed thirty (30) working days; and for ECCs issued pursuant to an EIS, the processing shall not
exceed sixty (60) working days. Provisions on automatic approval related to prescribed timeframes under
AO 42 shall also apply for the processing of applications to amend ECCs.

O.G. Holdings should thus have brought its concerns over Condition No. 2.2 to the attention of this
administrative machinery, and should have brought it at the first instance, or upon the issuance of the
ECC in 2002. That it did not do so again indicates the prematurity of its petition for certiorari, and reflects
badly on the appellate court, which expressly "opined" in the decision under review that Condition No.
2.2 "may be dispensed with."81 On this note, we also observe, that about five years had lapsed from the
issuance of the ECC before its suspension. All that time, it appears that the beach resort project had been
tolerated to operate without a foreshore lease agreement or permit.

In fine, the CA erred in granting the petition for certiorari despite O.G. Holdings' unjustified failure to
exhaust the available administrative remedies for the suspension of its beach resort project's ECC.

WHEREFORE, the foregoing premises considered, the Petition of the Republic is GRANTED. There being
no grave abuse of discretion amounting to excess or lack of jurisdiction on the part of the Environmental
Management Bureau, Region 7, and of Alan C. Arranguez, Officer-in-Charge, Office of the Regional
Director, EMB-Region 7, in the issuance of the Orders dated 6 July 200682 and 7 February 2007, and in EIA
Cases Nos. VII-2006-06-019 and VII-2007-02-010, the Decision and the Resolution of the Court of Appeals
in CA-G.R. SP No. 02530 are hereby SET ASIDE. The 6 July 2006 and 7 February 2007 Orders of the EMB-
Region 7 are ordered REINSTATED.

SO ORDERED.

FIRST DIVISION

[G.R. No. 148622. September 12, 2002]

REPUBLIC OF THE PHILIPPINES, represented by HON. HEHERSON T. ALVAREZ, in his capacity as Secretary
of the DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES (DENR), CLARENCE L.
BAGUILAT, in his capacity as the Regional Executive Director of DENR-Region XI and ENGR.
BIENVENIDO L. LIPAYON, in his capacity as the Regional Director of the DENR-ENVIRONMENTAL
MANAGEMENT BUREAU (DENR-EMB), Region XI, petitioners, vs. THE CITY OF DAVAO,
represented by BENJAMIN C. DE GUZMAN, City Mayor, respondent.

DECISION
YNARES-SANTIAGO, J.:

Before us is a petition for review[1] on certiorari assailing the decision[2] dated May 28, 2001 of the
Regional Trial Court of Davao City, Branch 33, which granted the writ of mandamus and injunction in favor
of respondent, the City of Davao, and against petitioner, the Republic, represented by the Department of
Environment and Natural Resources (DENR). The trial court also directed petitioner to issue a Certificate
of Non-Coverage in favor of respondent.
The antecedent facts of the case are as follows:
On August 11, 2000, respondent filed an application for a Certificate of Non-Coverage (CNC) for its
proposed project, the Davao City Artica Sports Dome, with the Environmental Management Bureau
(EMB), Region XI. Attached to the application were the required documents for its issuance, namely, a)
detailed location map of the project site; b) brief project description; and c) a certification from the City
Planning and Development Office that the project is not located in an environmentally critical area
(ECA). The EMB Region XI denied the application after finding that the proposed project was within an
environmentally critical area and ruled that, pursuant to Section 2, Presidential Decree No. 1586,
otherwise known as the Environmental Impact Statement System, in relation to Section 4 of Presidential
Decree No, 1151, also known as the Philippine Environment Policy, the City of Davao must undergo the
environmental impact assessment (EIA) process to secure an Environmental Compliance Certificate (ECC),
before it can proceed with the construction of its project.
Believing that it was entitled to a Certificate of Non-Coverage, respondent filed a petition for
mandamus and injunction with the Regional Trial Court of Davao, docketed as Civil Case No. 28,133-
2000. It alleged that its proposed project was neither an environmentally critical project nor within an
environmentally critical area; thus it was outside the scope of the EIS system. Hence, it was the ministerial
duty of the DENR, through the EMB-Region XI, to issue a CNC in favor of respondent upon submission of
the required documents.
The Regional Trial Court rendered judgment in favor of respondent, the dispositive portion of which
reads as follows:

WHEREFORE, finding the petition to be meritorious, judgment granting the writ of mandamus and
injunction is hereby rendered in favor of the petitioner City of Davao and against respondents Department
of Environment and Natural Resources and the other respondents by:

1) directing the respondents to issue in favor of the petitioner City of Davao a Certificate of Non-Coverage,
pursuant to Presidential Decree No. 1586 and related laws, in connection with the construction by the
City of Davao of the Artica Sports Dome;
2) making the preliminary injunction issued on December 12, 2000 permanent.

Costs de oficio.

SO ORDERED.[3]

The trial court ratiocinated that there is nothing in PD 1586, in relation to PD 1151 and Letter of
Instruction No. 1179 (prescribing guidelines for compliance with the EIA system), which requires local
government units (LGUs) to comply with the EIS law. Only agencies and instrumentalities of the national
government, including government owned or controlled corporations, as well as private corporations,
firms and entities are mandated to go through the EIA process for their proposed projects which have
significant effect on the quality of the environment. A local government unit, not being an agency or
instrumentality of the National Government, is deemed excluded under the principle of expressio unius
est exclusio alterius.
The trial court also declared, based on the certifications of the DENR-Community Environment and
Natural Resources Office (CENRO)-West, and the data gathered from the Philippine Institute of
Volcanology and Seismology (PHIVOLCS), that the site for the Artica Sports Dome was not within an
environmentally critical area. Neither was the project an environmentally critical one. It therefore
becomes mandatory for the DENR, through the EMB Region XI, to approve respondents application for
CNC after it has satisfied all the requirements for its issuance. Accordingly, petitioner can be compelled
by a writ of mandamus to issue the CNC, if it refuses to do so.
Petitioner filed a motion for reconsideration, however, the same was denied. Hence, the instant
petition for review.
With the supervening change of administration, respondent, in lieu of a comment, filed a
manifestation expressing its agreement with petitioner that, indeed, it needs to secure an ECC for its
proposed project. It thus rendered the instant petition moot and academic. However, for the guidance of
the implementors of the EIS law and pursuant to our symbolic function to educate the bench and bar,[4] we
are inclined to address the issue raised in this petition.
Section 15 of Republic Act 7160,[5] 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.[6] Proprietary functions are those that seek to obtain special corporate benefits or earn
pecuniary profit and intended for private advantage and benefit.[7] When exercising governmental powers
and performing governmental duties, an LGU is an agency of the national government.[8] When engaged
in corporate activities, it acts as an agent of the community in the administration of local affairs.[9]
Found in Section 16 of the Local Government Code is the duty of the LGUs to promote the peoples
right to a balanced ecology.[10] 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.
Further, it is a rule of statutory construction that every part of a statute must be interpreted with
reference to the context, i.e., that every part must be considered with other parts, and kept subservient
to the general intent of the enactment.[11] The trial court, in declaring local government units as exempt
from the coverage of the EIS law, failed to relate Section 2 of PD 1586[12] to the following provisions of the
same law:

WHEREAS, the pursuit of a comprehensive and integrated environmental protection program necessitates
the establishment and institutionalization of a system whereby the exigencies of socio-economic
undertakings can be reconciled with the requirements of environmental quality; x x x.

Section 1. Policy. It is hereby declared the policy of the State to attain and maintain a rational and orderly
balance between socio-economic growth and environmental protection.

xxxxxxxxx
Section 4. Presidential Proclamation of Environmentally Critical Areas and Projects. The President of the
Philippines may, on his own initiative or upon recommendation of the National Environmental Protection
Council, by proclamation declare certain projects, undertakings or areas in the country as environmentally
critical. 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. For the proper management of said critical
project or area, the President may by his proclamation reorganize such government offices, agencies,
institutions, corporations or instrumentalities including the realignment of government personnel, and
their specific functions and responsibilities.

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.[13] The Civil Code
defines a person as either natural or juridical. The state and its political subdivisions, i.e., the local
government units[14] are juridical persons.[15] 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.[16]
The foregoing arguments, however, presuppose that a project, for which an Environmental
Compliance Certificate is necessary, is environmentally critical or within an environmentally critical
area. In the case at bar, respondent has sufficiently shown that the Artica Sports Dome will not have a
significant negative environmental impact because it is not an environmentally critical project and it is not
located in an environmentally critical area. In support of this contention, respondent submitted the
following:

1. Certification from the City Planning and Development Office that the project is not located in an
environmentally critical area;

2. Certification from the Community Environment and Natural Resources Office (CENRO-West) that the
project area is within the 18-30% slope, is outside the scope of the NIPAS (R.A. 7586), and not within a
declared watershed area; and

3. Certification from PHILVOCS that the project site is thirty-seven (37) kilometers southeast of the
southernmost extension of the Davao River Fault and forty-five (45) kilometers west of the Eastern
Mindanao Fault; and is outside the required minimum buffer zone of five (5) meters from a fault zone.

The trial court, after a consideration of the evidence, found that the Artica Sports Dome is not within
an environmentally critical area. Neither is it an environmentally critical project. It is axiomatic that factual
findings of the trial court, when fully supported by the evidence on record, are binding upon this Court
and will not be disturbed on appeal.[17] This Court is not a trier of facts.[18]
There are exceptional instances when this Court may disregard factual findings of the trial court,
namely: a) when the conclusion is a finding grounded entirely on speculations, surmises, or conjectures;
b) when the inference made is manifestly mistaken, absurd, or impossible; c) where there is a grave abuse
of discretion; d) when the judgment is based on a misapprehension of facts; e) when the findings of fact
are conflicting; f) when the Court of Appeals, in making its findings, went beyond the issues of the case
and the same are contrary to the admissions of both appellant and appellee; g) when the findings of the
Court of Appeals are contrary to those of the trial court; h) when the findings of fact are conclusions
without citation of specific evidence on which they are based; i) when the finding of fact of the Court of
Appeals is premised on the supposed absence of evidence but is contradicted by the evidence on record;
and j) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties
and which, if properly considered, would justify a different conclusion.[19] None of these exceptions,
however, obtain in this case.
 The Environmental Impact Statement System, which ensures environmental protection and regulates
certain government activities affecting the environment, was established by Presidential Decree No.
1586. Section 2 thereof states:

There is hereby established an Environmental Impact Statement System founded and based on the
environmental impact statement required under Section 4 of Presidential Decree No. 1151, of all agencies
and instrumentalities of the national government, including government-owned or controlled
corporations, as well as private corporations, firms and entities, for every proposed project and
undertaking which significantly affect the quality of the environment.

Section 4 of PD 1151, on the other hand, provides:

Environmental Impact Statements. Pursuant to the above enunciated policies and goals, all agencies and
instrumentalities of the national government, including government-owned or controlled corporations,
as well as private corporations, firms and entities shall prepare, file and include in every action, project or
undertaking which significantly affects the quality of the environment a detailed statement on

(a) the environmental impact of the proposed action, project or undertaking

(b) any adverse environmental effect which cannot be avoided should the proposal be implemented

(c) alternative to the proposed action

(d) a determination that the short-term uses of the resources of the environment are consistent with the
maintenance and enhancement of the long-term productivity of the same; and

(e) whenever a proposal involves the use of depletable or nonrenewable resources, a finding must be
made that such use and commitment are warranted.

Before an environmental impact statement is issued by a lead agency, all agencies having jurisdiction over,
or special expertise on, the subject matter involved shall comment on the draft environmental impact
statement made by the lead agency within thirty (30) days from receipt of the same.

Under Article II, Section 1, of the Rules and Regulations Implementing PD 1586, the declaration of
certain projects or areas as environmentally critical, and which shall fall within the scope of the
Environmental Impact Statement System, shall be by Presidential Proclamation, in accordance with
Section 4 of PD 1586 quoted above.
Pursuant thereto, Proclamation No. 2146 was issued on December 14, 1981, proclaiming the
following areas and types of projects as environmentally critical and within the scope of the Environmental
Impact Statement System established under PD 1586:

A. Environmentally Critical Projects

I. Heavy Industries

a. Non-ferrous metal industries

b. Iron and steel mills
c. Petroleum and petro-chemical industries including oil and gas
d. Smelting plants

II. Resource Extractive Industries

a. Major mining and quarrying projects

b. Forestry projects

1. Logging
2. Major wood processing projects
 3. Introduction of fauna (exotic-animals) in public/private forests
4. Forest occupancy
5. Extraction of mangrove products
6. Grazing

c. Fishery Projects

1. Dikes for/and fishpond development projects

III. Infrastructure Projects

a. Major dams
b. Major power plants (fossil-fueled, nuclear fueled, hydroelectric or geothermal)
c. Major reclamation projects
d. Major roads and bridges

B. Environmentally Critical Areas

1. All areas declared by law as national parks, watershed reserves, wildlife preserves and
sanctuaries;
2. Areas set aside as aesthetic potential tourist spots;
3. Areas which constitute the habitat for any endangered or threatened species of
indigenous Philippine Wildlife (flora and fauna);
4. Areas of unique historic, archaeological, or scientific interests;
5. Areas which are traditionally occupied by cultural communities or tribes;
6. Areas frequently visited and/or hard-hit by natural calamities (geologic hazards, floods,
typhoons, volcanic activity, etc.);
7. Areas with critical slopes;
8. Areas classified as prime agricultural lands;
9. Recharged areas of aquifers;
10. Water bodies characterized by one or any combination of the following conditions;

a. tapped for domestic purposes

b. within the controlled and/or protected areas declared by appropriate
authorities
c. which support wildlife and fishery activities

11. Mangrove areas characterized by one or any combination of the following conditions:

a. with primary pristine and dense young growth;

b. adjoining mouth of major river systems;
c. near or adjacent to traditional productive fry or fishing grounds;
d. which act as natural buffers against shore erosion, strong winds and storm
floods;
e. on which people are dependent for their livelihood.

12. Coral reefs, characterized by one or any combinations of the following conditions:

a. with 50% and above live coralline cover;

b. spawning and nursery grounds for fish;
c. which act as natural breakwater of coastlines.

In this connection, Section 5 of PD 1586 expressly states:

Environmentally Non-Critical Projects. All other projects, undertakings and areas not declared by the
President as environmentally critical shall be considered as non-critical and shall not be required to submit
an environmental impact statement. The National Environmental Protection Council, thru the Ministry of
Human Settlements may however require non-critical projects and undertakings to provide additional
environmental safeguards as it may deem necessary.

The Artica Sports Dome in Langub does not come close to any of the projects or areas enumerated
above. Neither is it analogous to any of them. It is clear, therefore, that the said project is not classified
as environmentally critical, or within an environmentally critical area. Consequently, the DENR has no
choice but to issue the Certificate of Non-Coverage. It becomes its ministerial duty, the performance of
which can be compelled by writ of mandamus, such as that issued by the trial court in the case at bar.
WHEREFORE, in view of the foregoing, the instant petition is DENIED. The decision of the Regional
Trial Court of Davao City, Branch 33, in Civil Case No. 28,133-2000, granting the writ of mandamus and
directing the Department of Environment and Natural Resources to issue in favor of the City of Davao a
Certificate of Non-Coverage, pursuant to Presidential Decree No. 1586 and related laws, in connection
with the construction of the Artica Sports Dome, is AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, and Carpio, JJ., concur.
FIRST DIVISION

[G.R. No. 131442. July 10, 2003]

BANGUS FRY FISHERFOLK DIWATA MAGBUHOS, ANGELITA BINAY, ELMA GARCIA, VIRGILIO PANGUIO,
ARSENIO CASTILLO, ARIEL PANGUIO, ANTONIO PANGUIO, ANTONIO BUNQUIN, GENEROSO
BUNQUIN, CHARLIE DIMAYACYAC, RENATO PANGUIO, ATILANO BUNQUIN, CARLOS CHAVEZ,
JUAN DIMAYACYAC, FILEMON BUNQUIN, MARIO MAGBUHOS, MAURO MAGBUHOS, NORA
MAGBUHOS, JEOVILYN, GENALYN and JORVAN QUIMUEL, minors, represented by their parents
FELICIANA and SABINO QUIMUEL, MARICAR MAGBUHOS, minor, represented by her
parents CARMELITA and ANTONIO MAGBUHOS, MARLO BINAY, minor, represented by his
parents EFRENITA and CHARLITO BINAY, and the BANGUS, BANGUS FRY and other MARINE LIFE
OF MINOLO COVE, petitioners, vs. THE HONORABLE ENRICO LANZANAS as Judge of the Regional
Trial Court of Manila, Branch VII, THE DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES Region IV, represented by its Regional Executive Director and its Regional Director
for Environment, THE NATIONAL POWER CORPORATION, ORIENTAL MINDORO ELECTRIC
COOPERATIVE, PROVINCIAL GOVERNMENT OF ORIENTAL MINDORO, herein represented by
GOVERNOR RODOLFO VALENCIA, PUERTO GALERA MAYOR GREGORIO DELGADO, VICE MAYOR
ARISTEO ATIENZA, and MEMBERS OF THE SANGGUNIANG BAYAN OF PUERTO GALERA, JUAN
ASCAN, JR., RAFAEL ROMEY, CENON SALCEDO, JERRY DALISAY, SIMON BALITAAN, RENATO
CATAQUIS, MARCELINO BANAAG, DANIEL ENRIQUEZ, AMELYN MARCO, GABRIEL ILAGAN,
MUNICIPAL ENGINEER RODEL RUBIO, and MUNICIPAL PLANNING and DEVELOPMENT
COORDINATOR WILHELMINA LINESES, respondents.

DECISION
CARPIO, J.:

The Case

This is a petition for review[1] of the Order[2] dated 7 November 1997 of the Regional Trial Court of
Manila, Branch 7 (Manila RTC), dismissing petitioners complaint for lack of cause of action and lack of
jurisdiction.

The Facts
 On 30 June 1997, Regional Executive Director Antonio G. Principe (RED Principe) of Region IV,
Department of Environment and Natural Resources (DENR), issued an Environmental Clearance Certificate
(ECC) in favor of respondent National Power Corporation (NAPOCOR). The ECC authorized NAPOCOR to
construct a temporary mooring facility in Minolo Cove, Sitio Minolo, Barangay San Isidro, Puerto Galera,
Oriental Mindoro. The Sangguniang Bayan of Puerto Galera has declared Minolo Cove, a mangrove area
and breeding ground for bangus fry, an eco-tourist zone.[3]
The mooring facility would serve as the temporary docking site of NAPOCORs power barge, which,
due to turbulent waters at its former mooring site in Calapan, Oriental Mindoro, required relocation to a
safer site like Minolo Cove. The 14.4 megawatts power barge would provide the main source of power for
the entire province of Oriental Mindoro pending the construction of a land-based power plant in Calapan,
Oriental Mindoro. The ECC for the mooring facility was valid for two years counted from its date of
issuance or until 30 June 1999.[4]
Petitioners, claiming to be fisherfolks from Minolo, San Isidro, Puerto Galera,[5] sought
reconsideration of the ECC issuance. RED Principe, however, denied petitioners plea on 15 July 1997. On
21 July 1997, petitioners filed a complaint with the Regional Trial Court of Manila, Branch 7, for the
cancellation of the ECC and for the issuance of a writ of injunction to stop the construction of the mooring
facility. Impleaded as defendants were the following: (1) NAPOCOR, (2) RED Principe, (3) DENR Region IV
Technical Director for Environment Oscar Dominguez, (4) Oriental Mindoro Electric Cooperative
(ORMECO), which is engaged in the distribution of electricity in Oriental Mindoro, and (5) certain officials
of Puerto Galera.[6] Petitioners subsequently amended their complaint to include as additional defendants
the elective officials of Oriental Mindoro represented by then Governor Rodolfo G. Valencia.Petitioners
further prayed for the demolition of mooring structures that respondents had already built.
On 28 July 1997, prior to the filing of the amended complaint, the trial court issued a 20-day
temporary restraining order enjoining the construction of the mooring facility. However, the trial court
lifted the same on 6 August 1997 on NAPOCORs manifestation that the provincial government of Oriental
Mindoro was the one undertaking the construction of the mooring facility.[7]
On 28 August 1997, before filing their answers, respondents ORMECO and the provincial officials of
Oriental Mindoro moved to dismiss the complaint. These respondents claimed that petitioners failed to
exhaust administrative remedies, rendering the complaint without cause of action. They also asserted
that the Manila RTC has no jurisdiction to enjoin the construction of the mooring facility in Oriental
Mindoro, which lies outside the Manila RTCs territorial jurisdiction.
Petitioners opposed the motion on the ground that there was no need to exhaust administrative
remedies. They argued that the issuance of the ECC was in patent violation of Presidential Decree No.
1605,[8] Sections 26 and 27 of Republic Act No. 7160,[9] and the provisions of DENR Department
Administrative Order No. 96-37 (DAO 96-37) on the documentation of ECC applications. Petitioners also
claimed that the implementation of the ECC was in patent violation of its terms.
In its order of 7 November 1997, the trial court granted the motion and dismissed petitioners
complaint.
Hence, this petition.

The Ruling of the Trial Court

The trial courts order dismissing the complaint reads in part:

After careful evaluation and analysis, this Court finds the Motion to Dismiss tenable and meritorious.

Petitioners have clearly failed to exhaust all administrative remedies before taking this legal action in
Court x x x.

It is x x x worth mentioning that the decision of the Regional Director may still be x x x elevated to the
Office of the Secretary of the DENR to fully comply with the process of exhaustion of administrative
remedies. And well settled is the rule in our jurisdiction that before bringing an action in or resorting to
the Courts of Justice, all remedies of administrative character affecting or determinative of the
controversy at that level should first be exhausted by the aggrieved party (Pestanas vs. Dyogi, L-25786,
February 27, 1978). And petitioners failure to exhaust administrative remedies renders his [sic] petition
dismissible (Chia vs. Acting Collector of Customs, 177 SCRA 755). And a dismissal on the ground of failure
to exhaust administrative remedies is tantamount to a dismissal based on lack of cause of action (Baguiro
vs. Basa, Jr., 214 SCRA 437; Pineda vs. CFI of Davao, 111 Phil. 643; Sarabia vs. Secretary of Agriculture &
Natural Resources, L-16002, May 23, 1961; Gone, et al. vs. District Engineer, et. al., L-22782, August 29,
1975; Abe-Abe, et al. vs. Manta, et. al., L-4827, May 31, 1979) although it does not affect the jurisdiction
of the court over the subject matter (Mun. of La Trinidad, et al. vs. CFI of Baguio-Benguet, et al., L-33889,
June 28, 1983).

Moreover, this Court finds the Opposition of the Petitioners highly untenable and bereft of merits that
the controverted act in question is patently illegal and there was an immediate need for judicial
intervention.

The ECC in question was issued by the Regional Office of the DENR which has jurisdiction and authority
over the same x x x. And corollary to this, the issue as to whether or not the Minolo Cove is within the
enclosed coves and waters embraced by Puerto Galera bay and protected by Medio island is a clear
question of fact which the DENR may appropriately resolve before resorting to [the] Court[s].

This Court is likewise aware and cognizant of its territorial jurisdiction in the enforcement of Writ of
Injunction. That truly, [a] writ of injunction can only be enforced within [the] territorial jurisdiction of this
Court but not for acts which are being or about to be committed outside its territorial jurisdiction. Thus,
in Philippine National Bank vs. Pineda, 197 SCRA 1, the Honorable Supreme Court ruled:Regional Trial
Courts can only enforce their writs of injunction within their respective designated
territories. Furthermore, we find the issuance of the preliminary injunction directed against the Provincial
Sheriff of Negros Occidental a jurisdictional paux [sic] pas (from Black Dictionary means jurisdictional
falsity) as the Courts of First Instance now Regional Trial Court[s], can only enforce their writs of injunction
within their respective designated territories.

And finally, this Court is not unmindful of the relevant and square application in the case at bar of
Presidential Decree No. 1818, Executive Order No. 380 dated November 27, 1989, and Circular No. 2-91
of the Supreme Court that the National Power Corporation (NPC) is a public utility, created under special
legislation, engaged in the generation and distribution of electric power and energy. The mooring site of
NPC in Puerto Galera, Oriental Mindoro is one of its infrastructure projects falling within the mantle of
Executive Order No. 380, November 27, 1989 x x x.

And as held by the Supreme Court in the case of National Power Corporation vs. Honorable Abraham P.
Vera, et al., 170 SCRA 721, courts are without jurisdiction to issue injunctive writs against [the] National
Power Corporation. The latter enjoys the protective mantle of P.D. 1818, (Circular No. 2-91).

xxx

Injunction in this case is not a mere ancillary [sic] writ but the main action itself together with the
Annulment of the Environmental Clearance Certificate (ECC). Even assuming arguendo that the court [can]
annul the ECC how can the latter enforce the same against the Provincial Government of Oriental Mindoro
which was impleaded by the petitioners as a necessary party together with the Oriental Mindoro Electric
Cooperative and the government officials of Puerto Galera, Oriental Mindoro, whose acts and functions
are being performed outside the territorial jurisdiction of this court? x x xIndisputably, the injunction and
annulment of ECC as prayed for in the petition are inseparable x x x.

The conclusion, therefore, is inescapable that petitioners have failed to exhaust all the available
administrative remedies and this Court has no jurisdiction to issue the injunctive writ prayed for in the
Amended [Complaint].[10]

The Issue
 The issue is whether the trial court erred in dismissing petitioners complaint for lack of cause of action
and lack of jurisdiction.

The Ruling of the Court

The petition has no merit.

Jurisdiction of the Manila RTC over the Case

Jurisdiction over the subject matter of a case is conferred by law. Such jurisdiction is determined by
the allegations in the complaint, irrespective of whether the plaintiff is entitled to all or some of the reliefs
sought.[11]
A perusal of the allegations in the complaint shows that petitioners principal cause of action is the
alleged illegality of the issuance of the ECC. The violation of laws on environmental protection and on local
government participation in the implementation of environmentally critical projects is an issue that
involves the validity of NAPOCORs ECC. If the ECC is void, then as a necessary consequence, NAPOCOR or
the provincial government of Oriental Mindoro could not construct the mooring facility. The subsidiary
issue of non-compliance with pertinent local ordinances in the construction of the mooring facility
becomes immaterial for purposes of granting petitioners main prayer, which is the annulment of the
ECC. Thus, if the court has jurisdiction to determine the validity of the issuance of the ECC, then it has
jurisdiction to hear and decide petitioners complaint.
Petitioners complaint is one that is not capable of pecuniary estimation. It falls within the exclusive
and original jurisdiction of the Regional Trial Courts under Section 19(1) of Batas Pambansa Blg. 129, as
amended by Republic Act No. 7691. The question of whether petitioners should file their complaint in the
Regional Trial Court of Manila or Oriental Mindoro then becomes a matter of venue, to be determined by
the residence of the parties.[12]
Petitioners main prayer is the annulment of the ECC. The principal respondent, DENR Region IV, has
its main office at the L & S Building, Roxas Boulevard, Manila. Regional Executive Director Principe of the
DENR Region IV, who issued the ECC, holds office there. Plainly, the principal respondent resides in Manila,
which is within the territorial jurisdiction of the Manila RTC. Thus, petitioners filed their complaint in the
proper venue.
On the other hand, the jurisdiction of Regional Trial Courts to issue injunctive writs is limited to acts
committed or about to be committed within their judicial region.[13] Moreover, Presidential Decree No.
1818 (PD No. 1818) prohibited[14] courts from issuing injunctive writs against government infrastructure
projects like the mooring facility in the present case.Republic Act No. 8975 (RA No. 8975), which took
effect on 26 November 2000, superseded PD No. 1818 and delineates more clearly the coverage of the
prohibition, reserves the power to issue such writs exclusively with this Court, and provides penalties for
its violation.[15] Obviously, neither the Manila RTC nor the Oriental Mindoro RTC can issue an injunctive
writ to stop the construction of the mooring facility. Only this Court can do so under PD No. 1818 and later
under RA No. 8975. Thus, the question of whether the Manila RTC has jurisdiction over the complaint
considering that its injunctive writ is not enforceable in Oriental Mindoro is academic.
Clearly, the Manila RTC has jurisdiction to determine the validity of the issuance of the ECC, although
it could not issue an injunctive writ against the DENR or NAPOCOR. However, since the construction of
the mooring facility could not proceed without a valid ECC, the validity of the ECC remains the
determinative issue in resolving petitioners complaint.

Exhaustion of Administrative Remedies

The settled rule is before a party may seek the intervention of the courts, he should first avail of all
the means afforded by administrative processes. Hence, if a remedy within the administrative machinery
is still available, with a procedure prescribed pursuant to law for an administrative officer to decide the
controversy, a party should first exhaust such remedy before resorting to the courts. The premature
invocation of a courts intervention renders the complaint without cause of action and dismissible on such
ground.[16]
RED Principe of the DENR Region IV Office issued the ECC based on (1) Presidential Decree No. 1586
(PD No. 1586) and its implementing rules establishing the Environmental Impact Statement System, (2)
DAO 96-37[17] and (3) the Procedural Manual of DAO 96-37. Section 4[18] of PD No. 1586 requires a
proponent of an environmentally critical project, or a project located within an environmentally critical
area as declared by the President, to secure an ECC prior to the projects operation.[19] NAPOCOR thus
secured the ECC because the mooring facility in Minolo Cove, while not an environmentally critical project,
is located within an environmentally critical area under Presidential Proclamation No. 2146, issued on 14
December 1981.[20]
The rules on administrative appeals from rulings of the DENR Regional Directors on the
implementation of PD No. 1586 are found in Article VI of DAO 96-37, which provides:

SECTION 1.0. Appeal to the Office of the Secretary. Any party aggrieved by the final decision of the RED
may, within 15 days from receipt of such decision, file an appeal with the Office of the Secretary.The
decision of the Secretary shall be immediately executory.

SECTION 2.0. Grounds for Appeal. The grounds for appeal shall be limited to grave abuse of discretion and
serious errors in the findings of fact which would cause grave or irreparable injury to the aggrieved
party. Frivolous appeals shall not be countenanced.

SECTION 3.0. Who May Appeal. The proponent or any stakeholder, including but not limited to, the LGUs
concerned and affected communities, may file an appeal.

The DENR Procedural Manual for DAO 96-37 explains these provisions thus:

Final decisions of the RED may be appealed. These decisions include those relating to the issuance or non-
issuance of an ECC, and the imposition of fines and penalties. By inference, the decision of the Secretary
on the issuance or non-issuance of the ECC may also be appealed based on this provision. Resort to courts
prior to availing of this remedy would make the appellants action dismissible on the ground of non-
exhaustion of administrative remedies.

The right to appeal must be exercised within 15 days from receipt by the aggrieved party of such
decision. Failure to file such appeal within the requisite period will result in the finality of the REDs or
Secretarys decision(s), which can no longer be disturbed.

An appeal shall not stay the effectivity of the REDs decision, unless the Secretary directs otherwise.

The right to appeal does not prevent the aggrieved party from first resorting to the filing of a motion for
reconsideration with the RED, to give the RED an opportunity to re-evaluate his decision. (Emphasis
added)

Instead of following the foregoing procedure, petitioners bypassed the DENR Secretary and
immediately filed their complaint with the Manila RTC, depriving the DENR Secretary the opportunity to
review the decision of his subordinate, RED Principe. Under the Procedural Manual for DAO 96-37 and
applicable jurisprudence, petitioners omission renders their complaint dismissible for lack of cause of
action.[21] Consequently, the Manila RTC did not err in dismissing petitioners complaint for lack of cause
of action.

On the Alleged Patent Illegality of the ECC

Petitioners nevertheless contend that they are exempt from filing an appeal with the DENR Secretary
because the issuance of the ECC was in patent violation of existing laws and regulations. These are (1)
Section 1 of Presidential Decree No. 1605, as amended, (2) Sections 26 and 27 of Republic Act No. 7160
(Local Government Code of 1991), and (3) the provisions of DAO 96-37 on the documentary requirements
for the zoning permit and social acceptability of the mooring facility.
Petitioners contention is without merit. While the patent illegality of an act exempts a party from
complying with the rule on exhaustion of administrative remedies,[22] this does not apply in the present
case.

Presidential Decree No. 1605

Presidential Decree No. 1605 (PD No. 1605),[23] as amended by Presidential Decrees Nos. 1605-A and
1805, declares as ecologically threatened zone the coves and waters embraced by Puerto Galera Bay as
protected by Medio Island. This decree provides in part:

Section 1. Any provision of law to the contrary notwithstanding, the construction of marinas, hotels,
restaurants, other commercial structures; commercial or semi-commercial wharfs [sic]; commercial
docking within the enclosed coves of Puerto Galera; the destruction of its mangrove stands; the
devastation of its corals and coastline by large barges, motorboats, tugboat propellers, and any form of
destruction by other human activities are hereby prohibited.

Section 2. x x x

No permit for the construction of any wharf, marina, hotel, restaurants and other commercial
structures in Puerto Galera shall be issued without prior approval of the Office of the President upon the
recommendation of the Philippine Tourism Authority. (Emphasis supplied)

NAPOCOR claims that since Minolo Cove lies outside of Puerto Galera Bay as protected by Medio
Island,[24] PD No. 1605 does not apply to this case. However, petitioners assert that Minolo Cove is one of
the enclosed coves of Puerto Galera[25] and thus protected under PD No. 1605. This is a question of fact
that the DENR Secretary should have first resolved.In any event, there is no dispute that NAPOCOR will
use the mooring facility for its power barge that will supply 14.4 megawatts of electricity to the entire
province of Oriental Mindoro, including Puerto Galera. The mooring facility is obviously a government-
owned public infrastructure intended to serve a basic need of the people of Oriental Mindoro. The
mooring facility is not a commercial structure; commercial or semi-commercial wharf or commercial
docking as contemplated in Section 1 of PD No. 1605. Therefore, the issuance of the ECC does not violate
PD No. 1605 which applies only to commercial structures like wharves, marinas, hotels and restaurants.

Sections 26 and 27 of RA No. 7160

Congress introduced Sections 26 and 27 in the Local Government Code to emphasize the legislative
concern for the maintenance of a sound ecology and clean environment.[26]These provisions require every
national government agency or government-owned and controlled corporation to hold prior
consultations with the local government unit concerned and to secure the prior approval of
its sanggunian before implementing any project or program that may cause pollution, climatic change,
depletion of non-renewable resources, loss of cropland, rangeland, or forest cover and extinction of
animal or plant species. Sections 26 and 27 respectively provide:

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 authorized 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, non-governmental 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 Section x x x 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,[27] the Court interpreted these provisions in this manner:

Section 27 of the Code should be read in conjunction with Section 26 thereof x x x.

Thus, the projects and programs mentioned in Section 27 should be interpreted to mean projects and
programs whose effects are among those enumerated in Sections 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, rangeland, or forest cover; (5) may eradicate certain animal
or plant species; 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.

Again, Sections 26 and 27 do not apply to this case because as petitioners admit,[28] the mooring
facility itself is not environmentally critical and hence does not belong to any of the six types of projects
mentioned in the law. There is no statutory requirement for the concerned sanggunian to approve the
construction of the mooring facility. It is another matter if the operation of the power barge is at issue. As
an environmentally critical project that causes pollution, the operation of the power barge needs the prior
approval of the concerned sanggunian. However, what is before this Court is only the construction of the
mooring facility, not the operation of the power barge. Thus, the issuance of the ECC does not violate
Sections 26 and 27 of RA No. 7160.

Documentary Requirements for

ECC Applications

Under DAO 96-37, an ECC applicant for a project located within an environmentally critical area is
required to submit an Initial Environment Examination, which must contain a brief description of the
environmental setting and a documentation of the consultative process undertaken, when
appropriate.[29] As part of the description of the environmental setting, the ECC applicant must submit a
certificate of locational clearance or zoning certificate.
Petitioners further contend that NAPOCOR, in applying for the ECC, did not submit to the DENR
Region IV Office the documents proving the holding of consultations and the issuance of a locational
clearance or zoning certificate. Petitioners assert that this omission renders the issuance of the ECC
patently illegal.
The contention is also without merit. While such documents are part of the submissions required
from a project proponent, their mere absence does not render the issuance of the ECC patently illegal. To
justify non-exhaustion of administrative remedies due to the patent illegality of the ECC, the public officer
must have issued the ECC [without any] semblance of compliance, or even an attempt to comply, with the
pertinent laws; when manifestly, the officer has acted without jurisdiction or has exceeded his jurisdiction,
or has committed a grave abuse of discretion; or when his act is clearly and obviously devoid of any color
of authority.[30]
RED Principe, as chief of DENR Region IV, is the officer duly authorized under DAO 96-37[31] to issue
ECCs for projects located within environmentally critical areas. RED Principe issued the ECC on the
recommendation of Amelia Supetran, the Director of the Environmental Management Bureau. Thus, RED
Principe acted with full authority pursuant to DENR regulations. Moreover, the legal presumption is that
he acted with the requisite authority.[32] This clothes RED Principes acts with presumptive validity and
negates any claim that his actions are patently illegal or that he gravely abused his discretion. While
petitioners may present proof to the contrary, they must do so before the proper administrative forum
before resorting to judicial remedies.
On the Alleged Non-Compliance with the Terms of the ECC

Lastly, petitioners claim that they are justified in immediately seeking judicial recourse because
NAPOCOR is guilty of violating the conditions of the ECC, which requires it to secure a separate ECC for
the operation of the power barge. The ECC also mandates NAPOCOR to secure the usual local government
permits, like zoning and building permits, from the municipal government of Puerto Galera.
The contention is similarly without merit. The fact that NAPOCORs ECC is subject to cancellation for
non-compliance with its conditions does not justify petitioners conduct in ignoring the procedure
prescribed in DAO 96-37 on appeals from the decision of the DENR Executive Director. Petitioners
vigorously insist that NAPOCOR should comply with the requirements of consultation and locational
clearance prescribed in DAO 96-37. Ironically, petitioners themselves refuse to abide with the procedure
for filing complaints and appealing decisions laid down in DAO 96-37.
DAO 96-37 provides for a separate administrative proceeding to address complaints for the
cancellation of an ECC. Under Article IX of DAO 96-37, complaints to nullify an ECC must undergo an
administrative investigation, after which the hearing officer will submit his report to the EMB Director or
the Regional Executive Director, who will then render his decision. The aggrieved party may file an appeal
to the DENR Secretary, who has authority to issue cease and desist orders. Article IX also classifies the
types of violations covered under DAO 96-37, including projects operating without an ECC or violating the
conditions of the ECC. This is the applicable procedure to address petitioners complaint on NAPOCORs
alleged violations and not the filing of the instant case in court.

A Final Word

The Court commends petitioners for their courageous efforts to safeguard and maintain the
ecological balance of Minolo Cove. This Court recognizes the utmost importance of protecting the
environment.[33] Indeed, we have called for the vigorous prosecution of violators of environmental
laws.[34] Legal actions to achieve this end, however, must be done in accordance with established rules of
procedure that were intended, in the first place, to achieve orderly and efficient administration of justice.
WHEREFORE, we DENY the petition for lack of merit.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, Ynares-Santiago, and Azcuna, JJ., concur.

[1]
While petitioners refer to the petition in this case as a petition for certiorari under Rule 65 of the
1997 Rules of Civil Procedure, the Court will treat it as a petition for review under Rule 45 as
petitioners themselves had intended in their Motion, dated 3 December 1997, for a 30-day
extension within which to file a petition for review of the ruling in question on pure questions of
law.
[2]
Penned by Judge Enrico A. Lanzanas.
[3]
Municipal Ordinance No. 12, dated 13 December 1991.
[4]
On 7 May 1999, respondent NAPOCOR sought an extension of the ECC for another 18 months from 1
July 1999 or until 31 December 2000 (Rollo, p. 200). However, there is nothing in the records to
indicate the DENRs response on the request.
[5]
Joined by some minor residents and by the bangus, bangus fry, and other marine life of Minolo Cove as
co-petitioners.
[6]
Mayor Gregorio Delgado, Vice-mayor Aristeo Atienza, the members of the Sangguniang Bayan,
Municipal Health Engineer Rodel Rubio, and Municipal Planning and Development Officer
Wilhelmina Lineses.
[7]
In view of this development, petitioners wrote respondents RED Principe and Oscar Dominguez on 6
August 1997 requesting the issuance of a cease and desist order to enjoin the provincial
government of Oriental Mindoro from proceeding with the construction of the mooring facility
(Rollo, p. 123). In his letter of 7 August 1997, respondent RED Principe informed petitioners that
his office will conduct an investigation on the matter (Rollo, p. 124).
[8]
As amended by Presidential Decree No. 1605-A.
[9]
The Local Government Code of 1991.
[10]
Rollo, pp. 45-50.
[11]
Garcia v. Court of Appeals, 339 Phil. 433 (1997).
[12]
1997 RULES OF CIVIL PROCEDURE, Rule 4, Sec. 2.
[13]
See Hacbang v. The Leyte Autobus Co., Inc., G.R No. L-17907, 30 May 1963, 8 SCRA 103, in relation to
par. 3(a), Resolution, dated 11 January 1983, providing for the interim or transitional rules and
guidelines relative to the implementation of the Judiciary Act of 1981 (BP Blg. 129).
[14]
Section 1 of PD No. 1818 provides as follows:
No court in the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction, or
preliminary mandatory injunction in any case, dispute, or controversy involving an infrastructure
project, or a mining, fishery, forest or other natural resource development project of the
government, or any public utility operated by the government, including among others public
utilities for the transport of the goods or commodities, stevedoring and arrastre contracts, to
prohibit any person or persons, entity or governmental official from proceeding with, or
continuing the execution or implementation of any such project, or the operation of such public
utility, or pursuing any lawful activity necessary for such execution, implementation or operation.
[15]
Section 3 of RA No. 8975 prohibits courts, except the Supreme Court, from issuing temporary
restraining orders, preliminary injunctions, or preliminary mandatory injunctions against the
government, its agencies, or any person or entity whether public or private, involving national
government projects, defined in Section 2 of the law as follows:
National government projects shall refer to all current and future national government infrastructure,
engineering works and service contracts, including projects undertaken by government-owned
and controlled corporations, all projects covered by Republic Act No. 6957, as amended by
Republic Act No. 7718, otherwise known as the Build-Operate-and-Transfer Law, and other
related and necessary activities such as site acquisition, supply and/or installation of equipment
and materials, implementation, construction, completion, operation, maintenance,
improvement, repair and rehabilitation, regardless of the source of funding.
See also SC Administrative Circular No. 11-2000, dated 13 November 2000.
[16]
Dy v. Court of Appeals, 363 Phil. 676 (1999); Pestanas v. Dyogi, G.R. No. L-25786, 27 February 1978, 81
SCRA 574.
[17]
Dated 2 December 1996 but effective 5 January 1997.
[18]
Presidential Proclamation of Environmentally Critical Areas and Projects. The President of the
Philippines may, on his own initiative or upon recommendation of the National Environmental
Protection Council, by proclamation declare certain projects, undertakings or areas in the country
as environmentally critical. 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. For the
proper management of the said critical project or area, the President may by his proclamation
reorganize such government offices, agencies, institutions, corporations or instrumentalities
including the re-alignment of government personnel, and their specific functions and
responsibilities.
[19]
See Republic v. City of Davao, G.R No. 148622, 12 September 2002.
[20]
PROCLAIMING CERTAIN AREAS AND TYPES OF PROJECTS AS ENVIRONMENTALLY CRITICAL AND WITHIN
THE SCOPE OF THE ENVIRONMENTAL IMPACT STATEMENT SYSTEM ESTABLISHED UNDER
PRESIDENTIAL DECREE NO. 1586.
xxx
B. Environmentally Critical Areas
1. All areas declared by law as national parks, watershed reserves, wildlife preserves and sanctuaries;
2. Areas set aside as aesthetic potential tourist spots;
3. Areas which constitute the habitat for any endangered or threatened species of indigenous Philippine
Wildlife (flora and fauna);
4. Areas of unique historic, archaeological, or scientific interests;
5. Areas which are traditionally occupied by cultural communities or tribes;
6. Areas frequently visited and/or hard-hit by natural calamities (geologic hazards, floods, typhoons,
volcanic activity, etc.);
7. Areas with critical slopes;
8. Areas classified as prime agricultural lands;
9. Recharged areas of aquifers;
10. Water bodies characterized by one or any combination of the following conditions:
a. tapped for domestic purposes;
b. within the controlled and/or protected areas declared by appropriate authorities;
c. which support wildlife and fishery activities.
11. Mangrove areas characterized by one or any combination of the following conditions:
a. with primary pristine and dense young growth;
b. adjoining mouth of major river systems;
c. near or adjacent to traditional productive fry or fishing grounds;
d. which act as natural buffers against shore erosion, strong winds and storm floods;
d. on which people are dependent for their livelihood.
12. Coral reefs, characterized by one or any of the following conditions:
a. with 50% and above live coralline cover;
b. spawning and nursery grounds for fish;
c. which act as natural breakwater of coastlines.
(Emphasis supplied)
[21]
Pestanas v. Dyogi, supra, note 16.
[22]
Mangubat v. Osmea, Jr., G.R No. L-12837, 30 April 1959 (unreported).
[23]
DECLARING THE ENCLOSED COVES AND WATERS EMBRACED BY PUERTO GALERA BAY AND PROTECTED
BY MEDIO ISLAND, AN ECOLOGICALLY THREATENED ZONE AND FORBIDDING THEREIN THE
CONSTRUCTION OF MARINAS, HOTELS, RESTAURANTS OR ANY STRUCTURES ALONG ITS
COASTLINE DRAINING INTO THE ENDANGERED ZONE AND CAUSING FURTHER POLLUTION; AND
FURTHER FORBIDDING UNWARRANTED SHIP DOCKING, SHIP REPAIR EXCEPT IN DULURUAN; AND
APPOINTING A SPECIAL COMMITTEE TO STUDY THE ECOLOGICALLY ENDANGERED ZONES
REHABILITATION AND PRESERVATION.
[24]
As described in the title of PD No. 1605.
[25]
As described in the whereas clause and text of PD No. 1605.
[26]
A. PIMENTEL, JR., LOCAL GOVERNMENT CODE OF 1991: THE KEY TO NATIONAL
DEVELOPMENT 124 (1993).
[27]
416 Phil. 438 (2001).
[28]
Rollo, p. 17.
[29]
Section 19, paragraphs (a) and (e).
[30]
Mangubat v. Osmea, Jr., supra, note 22.
[31]
DAO 96-37, Article III, Sec. 23.
[32]
REVISED RULES OF EVIDENCE, Rule 131, Sec. 3(m).
[33]
Oposa v. Factoran, Jr., G.R. No. 101083, 30 July 1993, 224 SCRA 792.
[34]
Mustang Lumber, Inc. v. Court of Appeals, 327 Phil. 214 (1996).

Philippine Justice Network

12 January 2017
By: Justice Adolfo S. Azcuna
PILAR CAÑEDA BRAGA, ET AL. v. HON. JOSEPH EMILIO A. ABAYA, ET AL., G.R. No. 223076, EN BANC,
September 13, 2016, BRION, J.
1. Impact Assessment and the EIS System [EIS = Environmental Impact Statement]
Environmental Impact Assessment (EIA) is the process of evaluating and predicting the likely impacts –
including cumulative impacts – of an undertaking on the environment. Its goal is to prevent or mitigate
potential harm to the environment and to protect the welfare of the affected community. To this end, the
process requires proponents to truthfully and responsibly disclose all relevant information on the project
through the EIS. This facilitates meaningful and informed public participation that ensures the project's
social acceptability to the community.
The following are the key operating principles of the EIS System:
a. The EIS System is concerned primarily with assessing the direct and indirect impacts of a project on the
biophysical and human environment and ensuring that these impacts are addressed by appropriate
environmental protection and enhancement measures.
b. The EIS System aids proponents in incorporating environmental considerations in planning their
projects as well as in determining the environment's impact on their project.
c. Project proponents are responsible for determining and disclosing all relevant information necessary
for a methodical assessment of the environmental impacts of their projects;
d. The review of the EIS by EMB shall be guided by three general criteria: (1) that environmental
considerations are integrated into the overall project planning, (2) that the assessment is technically
sound and proposed environmental mitigation measures are effective, and (3) that, social acceptability is
based on informed public participation;
e. Effective regulatory review of the EIS depends largely on timely, full, and accurate disclosure of relevant
information by project proponents and other stakeholders in the EIA process;
f. The social acceptability of a project is a result of meaningful public participation, which shall be assessed
as part of the Environmental Compliance Certificate (ECC) application, based on concerns related to the
project's environmental impacts;
g. The timelines prescribed by this Order, within which an Environmental Compliance Certificate must be
issued, or denied, apply only to processes and actions within the Environmental Management Bureau's
(EMB) control and do not include actions or activities that are the responsibility of the proponent.
Projects or undertakings that pose a potential significant impact to the environment are required to
undergo impact assessment in order to secure ECCs. The proponent initiates the application process by
filing a comprehensive EIS with the EMB. The EIS should at least have the following:
a. EIS Executive Summary;
b. Project Description;
c. Matrix of the scoping agreement identifying critical issues and concerns, as validated by EMB;
d. Baseline environmental conditions focusing on the sectors (and resources) most significantly affected
by the proposed action;
e. Impact assessment focused on significant environmental impacts (in relation to project
construction/commissioning, operation and decommissioning), taking into account cumulative impacts;
f. Environmental Risk Assessment if determined by EMB as necessary during scoping;
g. Environmental Management Program/Plan;
h. Supporting documents; including technical/socio-economic data used/generated; certificate of zoning
viability and municipal land use plan; and proof of consultation with stakeholders;
i. Proposals for Environmental Monitoring and Guarantee Funds including justification of amount, when
required;
j. Accountability statement of EIA consultants and the project proponent; and
k. Other clearances and documents that may be determined and agreed upon during scoping.
The EIS contains a detailed project description of the nature, configuration, the raw materials/natural
resources to be used, production system, waste generation and control, timelines, and all other related
activities of the proposed project. It also includes an Environmental Management Plan (EMP) detailing the
proponent's preventive, mitigating, compensatory, and contingent measures to enhance the project's
positive impacts and minimize ecological risks.
Projects with potentially significant negative environmental impacts are further required to conduct
public consultations so that the environmental concerns of stakeholders are addressed in formulating the
EMP.
The impact assessment concludes with EMB 's approval (in the form of
an ECC) or rejection (in the form of a denial letter). The ECC signifies that the proposed project will not
cause significant negative impact on the environment based on the proponent's representation. It also
certifies that the proponent has complied with the EIS System and has committed to implement its
approved EMP. Accordingly, the ECC contains the specific measures and conditions that the proponent
must undertake to mitigate the identified environmental impacts.
2. The duty to comply with the EIS System rests on the proponent.
The Sasa Wharf Modernization Project has the potential to significantly
affect the quality of the environment, putting it within the purview of the EIS
System. However, (1) who is responsible for preparing and filing the EIS and (2) when does this duty arise?
P.D. 1151 and P.D. 1586 requires all agencies and instrumentalities of the national government, including
GOCCs, and private corporations, firms, and entities to file the EIS for every proposed project or
undertaking that significantly affects the quality of the environment.
xxx
These provisions demonstrate the expansive scope of the EIS System. Unfortunately, they are also
ambiguous when it comes to identifying with particularity the responsible party in multilateral and
collaborative projects.
The IRR of the EIS System simply designates the responsible party as the proponent. Ordinarily, the
proponent is easy to identify – it is the natural or juridical person intending to implement the project. But
who are the proponents in PPP Projects which are a collaborative effort between the government and the
private sector?
Republic Act No. 6957 as amended by R.A. 7718, commonly known as the Build-Operate-Transfer (BOT)
Law, identifies the proponent in a PPP project as "the private sector entity which shall have contractual
responsibility for the project." Accordingly, there is yet no project proponent responsible for the EIS and
the ECC until the bidding process has concluded and the contract has been awarded.
Considering that the Project is still in the bidding stage, the petition for continuing mandamus to compel
the respondents to submit an EIS and secure an ECC is premature. It is also misplaced because the public
respondents DO NOT have the duty to submit the EIS or secure an ECC.
3. The LGC requires the lead agency to conduct local consultation and secure the approval of the
concerned sanggunian prior to the implementation of the project.
The issuance of the ECC does not exempt the project from compliance with other relevant laws. The LGC,
in particular, requires the government agency authorizing the project to conduct local consultation and
secure prior consent for ecologically impactful projects:
xxx
The duty to consult the concerned local government units and the stakeholders belongs to the national
government agency or GOCC authorizing or involved in the planning and implementation of the project –
not the private sector proponent. In this case, this refers to the DOTC.
The LGC does not prohibit the agency from acting through a medium such as the project proponent. In
fact, the required consultation under the LGC may overlap with the consultation prescribed under the EIS
System. Both are intended to measure a project's social acceptability and secure the
community's approval before the project's implementation.
However, the agency is responsible for ensuring that: (1) the concerned LGUs and stakeholders have been
thoroughly and truthfully informed of the objectives of the program and its ecological impact on the
community; so that (2) the community, through their sanggunian, can intelligently give their approval to
socially acceptable projects and reject the
unacceptable ones. These requirements must be complied with before the project is implemented.
4. But when does implementation begin?
The BOT Law defines the proponent as the private sector entity with the contractual responsibility over
the project. The contract to a project is executed between the concerned agency and the winning bidder
within seven (7) days from the latter's receipt of the notice from the agency that all conditions stated in
the Notice of Award have been complied with.
Upon the signing of the contract, the winning bidder becomes the project proponent. Within another 7
days from the date of approval or signing of the contract by the head of the Agency, the agency will issue
a "Notice to Commence Implementation" to the proponent. Interestingly enough, even this does not
signal the start of the implementation stage.
Upon receipt of the Notice, the proponent is required to prepare detailed engineering designs and plans
based on the prescribed minimum design and performance standards and specifications in the bid/tender
documents. The agency shall review the detailed engineering designs in terms of its compliance with the
prescribed standards and specifications. If the designs are found acceptable, the agency shall approve
them for incorporation in the contract to be signed by the proponent and the agency.
The proponent shall construct the project based on the design and performance standards and
specifications in the detailed engineering design. The signing of the finalized contract incorporating the
detailed engineering design is the reckoning point when implementation can begin. This is the start of the
Construction Stage.
5. The petition does not warrant a writ of Kalikasan.
x x x
First, the petition failed to identify the particular threats from the Project itself. All it does is cite the
negative impacts of operating a port inside a city based on the Synthesis Report. However, these impacts
already exist because the Port of Davao has been operating since 1900. The Project is not for the creation
of a new port but the modernization of an existing one. At best, the allegations in support of the
application for the writ of kalikasan are hazy and speculative.
Second, the joint publication is titled Managing Impacts of Development in the Coastal Zone for a reason;
it identifies the potential environmental impacts and proposes mitigation measures to protect the
environment. The petition is misleading because it only identified the risks but neglected to mention the
existence and availability of mitigating measures.
Moreover, this Court does not have the technical competence to assess the Project, identify the
environmental threats, and weigh the sufficiency or insufficiency of any proposed mitigation measures.
This specialized competence is lodged in the DENR, who acts through the EMB in the EIA process. As we
have already established, the application of the EIS System is premature until a proponent is selected.
Further, we fail to see an environmental risk that threatens to prejudice the inhabitants of two or more
cities or municipalities if we do not restrain the conduct of the bidding process. The bidding process is not
equivalent to the implementation of the project. The bidding process itself cannot conceivably cause any
environmental damage.
Finally, it is premature to conclude that the respondents violated the conditions of Resolution No. 118
issued by the Regional Development Council of Region Xl. Notably, the Resolution requires compliance
before the implementation of the project. Again, the project has not yet reached the implementation
stage.
Republic of the Philippines
Supreme Court
Manila

EN BANC
 BORACAY FOUNDATION, INC., G.R. No. 196870
Petitioner,

Present:

CARPIO,
- versus -
VELASCO, JR.,

LEONARDO-DE CASTRO,

BRION,

PERALTA,
THE PROVINCE OF AKLAN, REPRESENTED BY
GOVERNOR CARLITO S. MARQUEZ, THE BERSAMIN,
PHILIPPINE RECLAMATION AUTHORITY, AND
THE DENR-EMB (REGION VI), DEL CASTILLO,
Respondents.
ABAD,

VILLARAMA, JR.,

PEREZ,

MENDOZA,*

SERENO,

REYES, and
PERLAS-BERNABE, JJ.

Promulgated:

June 26, 2012

x--------------------------------------------------x

DECISION

LEONARDO-DE CASTRO, J.:

In resolving this controversy, the Court took into consideration that all the parties involved share common
goals in pursuit of certain primordial State policies and principles that are 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 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 these shared goals within the context of our Constitution, laws and regulations.

Nature of the Case

This is an original petition for the issuance of an Environmental Protection Order in the nature of a
continuing mandamus under A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure for
Environmental Cases, promulgated on April 29, 2010.

The Parties

Petitioner Boracay Foundation, Inc. (petitioner) is a duly registered, non-stock domestic corporation. Its
primary purpose is to foster a united, concerted and environment-conscious development of Boracay
Island, thereby preserving and maintaining its culture, natural beauty and ecological balance, marking the
island as the crown jewel of Philippine tourism, a prime tourist destination in Asia and the whole
world.[1] It counts among its members at least sixty (60) owners and representatives of resorts, hotels,
restaurants, and similar institutions; at least five community organizations; and several environmentally-
conscious residents and advocates.[2]

Respondent Province of Aklan (respondent Province) is a political subdivision of the government created
pursuant to Republic Act No. 1414, represented by Honorable Carlito S. Marquez, the Provincial Governor
(Governor Marquez).

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 management in the region.[5]

Summary of Antecedent Facts

Boracay Island (Boracay), a tropical paradise located in the Western Visayas 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.
[14]
2008 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-
[36]
299 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 favorableendorsement 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]

In a letter[53] 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, consisting of 2.64 hectares, would only have insignificanteffect on
the hydrodynamics of the strait traversing the coastline of Barangay Caticlan and Boracay, hence, there
was 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 enacted Resolution No. 2011-
065[64] noting the report on the survey of the channel between Caticlan and Boracay conducted by the
UPMSI in relation to the effects of the ongoing 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, 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]

Subsequently, Mr. Abriam sent a letter to Governor Marquez dated April 25, 2011 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 the channel and would unlikely impact the Boracay
beaches. Based on this, PCCI-Boracay stated that it was not opposing the 2.64-hectare Caticlan
reclamation project on environmental grounds.[66]

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:

 I.

THE RESPONDENT PROVINCE, PROPONENT OF THE RECLAMATION PROJECT, FAILED TO

COMPLY WITH RELEVANT RULES AND REGULATIONS IN THE ACQUISITION OF AN ECC.

A. THE RECLAMATION PROJECT IS CO-LOCATED WITHIN ENVIRONMENTALLY

CRITICAL AREAS REQUIRING THE PERFORMANCE OF A FULL, OR
PROGRAMMATIC, ENVIRONMENTAL IMPACT ASSESSMENT.

B. RESPONDENT PROVINCE FAILED TO OBTAIN THE FAVORABLE ENDORSEMENT OF

THE LGU CONCERNED.

C. RESPONDENT PROVINCE FAILED TO CONDUCT THE REQUIRED CONSULTATION

PROCEDURES AS REQUIRED BY THE LOCAL GOVERNMENT CODE.

D. RESPONDENT PROVINCE FAILED TO PERFORM A FULL ENVIRONMENTAL IMPACT

ASSESSMENT AS REQUIRED BY LAW AND RELEVANT REGULATIONS.

II.

THE RECLAMATION OF LAND BORDERING THE STRAIT BETWEEN CATICLAN AND BORACAY
SHALL ADVERSELY AFFECT THE FRAIL ECOLOGICAL BALANCE OF THE AREA.[68]

Petitioner objects to respondent Provinces classification of the reclamation project as single

instead of co-located, as non-environmentally critical, and as a mere rehabilitation of the existing jetty
port. Petitioner points out that the reclamation project is on two sites (which are situated on the opposite
sides of Tabon Strait, about 1,200 meters apart):

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 critical area) based on the
type and size of the area, and

2. Failing to declare the reclamation project as a co-located project application which

would have required the Province to submit a Programmatic Environmental Impact
Statement (PEIS)[72] or Programmatic Environmental [Performance] Report
Management Plan (PE[P]RMP).[73] (Emphases ours.)

Petitioner further alleges that the Revised Procedural Manual (on which the classification above
is based, which merely requires an Environmental Impact Statement [EIS] for Group II projects) is
patently ultra vires, and respondent DENR-EMB RVI committed 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 respondentProvince 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 project. The duty to consult does not
automatically require adherence to the opinions during the consultation process. It is allegedly not within
the provisions to give the full authority to 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 to the project without providing an alternative resolution to harmonize its
position and that of respondent Province.
 Respondent Province claims that the EPRMP[94] would reveal that:

[T]he area fronting the project site is practically composed of sand. Dead coral
communities may be found along the vicinity. Thus, fish life at the project site is quite
scarce due to the absence of marine support systems like the sea grass beds and coral
reefs.

x x x [T]here is no coral cover at the existing Caticlan jetty port. [From] the deepest point
of jetty to the shallowest point, there was no more coral 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 anchorage site of their motorized banca. There will be no possibility
of any coral development therein because of its continuous 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.

In light of the foregoing premise, it casts serious doubt on petitioners allegations

pertaining to the environmental effects of Respondent-LGUs 2.64 hectares reclamation
project. The alleged environmental impact of the subject project to the beaches of
Boracay Island remains unconfirmed. Petitioner had unsuccessfully proven that the
project would cause imminent, grave and irreparable injury to the community.[95]

Respondent Province prayed for the dissolution of the TEPO, claiming that the rules provide that
the TEPO may be dissolved if it appears after hearing that its issuance or 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 posting of a sufficient bond by the party or person
enjoined. Respondent Province contends that the TEPO would cause irreparable damage in two aspects:

a. Financial dislocation and probable bankruptcy; and

b. Grave and imminent danger to safety and health of inhabitants of immediate area, including
tourists and passengers serviced by the jetty port, brought about by the abrupt cessation of
development works.

As regards financial dislocation, the arguments of respondent Province are summarized below:

1. This project is financed by bonds which the respondent Province had issued to its
creditors as the financing scheme in funding the present project is by way of credit
financing through bond flotation.

2. The funds are financed by a Guarantee Bank getting payment from bonds, being sold
to investors, which in turn would be paid by the income that the project would realize
or incur upon its completion.

3. While the project is under construction, respondent Province is appropriating a

portion of its Internal Revenue Allotment (IRA) budget from the 20% development
fund to defray the interest and principal amortization due to the Guarantee Bank.

4. The respondent Provinces IRA, regular income, and/or such other revenues or funds,
as may be permitted by law, are being used as security for the payment of the said
loan used for the projects construction.
 5. The inability of the subject project to earn revenues as projected upon completion will
compel the Province to shoulder the full amount of the obligation, starting from year
2012.

6. Respondent province is mandated to assign its IRA, regular income and/or such other
revenues or funds as permitted by law; if project is stopped, detriment of the public
welfare and its constituents.[96]

As to the second ground for the dissolution of the TEPO, respondent Province argues:

1. Non-compliance with the guidelines of the ECC may result to environmental hazards
most especially that reclaimed land if not properly secured may be eroded into the
sea.

2. The construction has accomplished 65.26 percent of the project. 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 properties along the project site. It is already the rainy season and
there is a big possibility of typhoon occurrence.

3. If said incident occurs, the aggregates of the embankment that had been washed
out might be transferred to the adjoining properties which could affect its natural
environmental state.

4. It might result to the total alteration of the physical landscape of the area attributing
to environmental disturbance.

5. The lack of proper concrete wave protection or revetment would cause the total
erosion of the embankment that has been dumped on the accomplished area.[97]

Respondent Province claims that petitioner will not stand to suffer immediate, grave and
irreparable injury or damage from the ongoing project. The petitioners perceived 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.

Respondent Province filed another Manifestation and Motion,[130] 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 that any vertical structures to be constructed shall be subject
for barangay endorsement.[133] Clearly, what the barangay endorsed 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

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 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 Bureau Regional 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.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice