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NATIONAL ENVIRONMENTAL

PROTECTION ACT
AND
THE PHILIPPINE ENVIRONMENTAL
IMPACT STATEMENT SYSTEM
NEPA AND PEISS

U.S. NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 PHILIPPINE ENVIRONMENTAL IMPACT STATEMENT SYSTEM
(PD 1151)

Section 102(2)(C) of NEPA provides that an environmental Section 4. Environmental Impact Statements. Pursuant to the
impact statement (EIS) is to include: above enunciated policies and goals, all agencies and
instrumentalities of the national government, including
in every recommendation or report on proposals for legislation government-owned or controlled corporations, as well as private
and other major Federal actions significantly affecting the corporations firms and entities shall prepare, file and include in
quality of the human environment, a detailed statement by the every action, project or undertaking which significantly affects the
responsible official on: quality of the environment a detail statement on

(i) the environmental impact of the proposed action, a) the environmental impact of the proposed action, project or
undertaking
(ii) any adverse environmental effects which cannot be
avoided should the proposal be implemented, b) any adverse environmental effect which cannot be avoided
should the proposal be implemented;
(iii) alternatives to the proposed action,
c) alternative to the proposed action;
(iv) the relationship between local short-term uses of
d) a determination that the short-term uses of the resources of the
man’s environment and the maintenance and enhancement of
environment are consistent with the maintenance and
long-term productivity, and
enhancement of the long-term productivity of the same; and
(v) any irreversible and irretrievable commitments of
e) whenever a proposal involve the use of depletable or non-
resources which would be involved in the proposed action renewable resources, a finding must be made that such use and
should it be implemented. commitment are warranted.
NEPA AND PEISS

CALVERT CLIFFS COORDINATING COMMITTEE VS. US ATOMIC ENERGY COMMISSION,


449 F2D 1109 (DC CIR. 1971)

▸ NEPA, like so much other reform legislation of the last 40


years, is cast in terms of a general mandate and broad
delegation of authority to new and old administrative
agencies. It takes the major step of requiring all federal
agencies to consider values of environmental preservation
in their spheres of activity, and it prescribes certain
procedural measures to ensure that those values are in fact
fully respected.
NEPA AND PEISS

CALVERT CLIFFS COORDINATING COMMITTEE VS. US ATOMIC ENERGY COMMISSION,


449 F2D 1109 (DC CIR. 1971)
▸ The relevant portion of NEPA is Title I, consisting of five
sections.   Section 101 sets forth the Act's basic substantive
3

policy: that the federal government "use all practicable


means and measures" to protect environmental values.

▸ Congress did not establish environmental protection as an


exclusive goal; rather, it desired a reordering of priorities,
so that environmental costs and benefits will assume their
proper place along with other considerations.
NEPA AND PEISS

CALVERT CLIFFS COORDINATING COMMITTEE VS. US ATOMIC ENERGY COMMISSION,


449 F2D 1109 (DC CIR. 1971)
▸ In general, all agencies must use a "systematic, interdisciplinary
approach" to environmental planning and evaluation "in
decisionmaking which may have an impact on man's environment.”

▸ “Environmental amenities" will often be in conflict with "economic


and technical considerations." To "consider" the former "along
with" the latter must involve a balancing process. In some instances
environmental costs may outweigh economic and technical
benefits and in other instances they may not. But NEPA mandates a
rather finely tuned and "systematic" balancing analysis in each
instance.
NEPA AND PEISS

CALVERT CLIFFS COORDINATING COMMITTEE VS. US ATOMIC ENERGY COMMISSION,


449 F2D 1109 (DC CIR. 1971)
▸ To ensure that the balancing analysis is carried out and given
full effect, Section 102(2) (C) requires that responsible officials
of all agencies prepare a "detailed statement" covering the
impact of particular actions on the environment, the
environmental costs which might be avoided, and alternative
measures which might alter the cost-benefit equation.

▸ The apparent purpose of the "detailed statement" is to aid in


the agencies' own decision making process and to advise
other interested agencies and the public of the environmental
consequences of planned federal action.
NEPA AND PEISS

CALVERT CLIFFS COORDINATING COMMITTEE VS. US ATOMIC ENERGY COMMISSION,


449 F2D 1109 (DC CIR. 1971)
▸ Beyond the "detailed statement," Section 102(2) (D) requires all
agencies specifically to "study, develop, and describe appropriate
alternatives to recommended courses of action in any proposal
which involves unresolved conflicts concerning alternative uses of
available resources.”

▸ This requirement, like the "detailed statement" requirement, seeks


to ensure that each agency decision maker has before him and
takes into proper account all possible approaches to a particular
project (including total abandonment of the project) which would
alter the environmental impact and the cost-benefit balance.
NEPA AND PEISS

CALVERT CLIFFS COORDINATING COMMITTEE VS. US ATOMIC ENERGY COMMISSION,


449 F2D 1109 (DC CIR. 1971)
▸ Only in that fashion is it likely that the most intelligent,
optimally beneficial decision will ultimately be made.

▸ Moreover, by compelling a formal "detailed statement"


and a description of alternatives, NEPA provides evidence
that the mandated decision making process has in fact
taken place and, most importantly, allows those removed
from the initial process to evaluate and balance the factors
on their own.
NEPA AND PEISS

BALTIMORE G. & E. CO. V. NRDC, 462 U.S. 87 (1983)

▸ Section 102(2)(C) of the National Environmental Policy Act (NEPA) requires federal
agencies to consider the environmental impact of any major federal action.

▸ NEPA has twin aims.

▸ First, it "places upon an agency the obligation to consider every significant


aspect of the environmental impact of a proposed action.

▸ Second, it ensures that the agency will inform the public that it has indeed
considered environmental concerns in its decisionmaking process.

▸ Congress in enacting NEPA, however, did not require agencies to elevate


environmental concerns over other appropriate considerations.

▸ Rather, it required only that the agency take a "hard look" at the environmental
consequences before taking a major action.
NEPA AND PEISS

BALTIMORE G. & E. CO. V. NRDC, 462 U.S. 87 (1983)

▸ In these circumstances, the NRC complied with NEPA's


requirements of consideration and disclosure of the
environmental impacts of its licensing decisions. It is not
the task of this Court to determine what decision it would
have reached if it had been the NRC. The Court's only task
is to determine whether the NRC had considered the
relevant factors and articulated a rational connection
between the facts found and the choice made. Under this
standard, the zero release assumption, within the context
of Table S-3 as a whole, was not arbitrary or capricious.
TEXT

STRYCKER'S BAY NEIGHBORHOOD COUNCIL V. KARLEN, 444 U.S. 223 (1980)

▸ Once an agency has made a decision subject to the procedural


requirements of the National Environmental Policy Act of 1969, the only role
for a court is to insure that the agency has considered the environmental
consequences; it cannot interject itself within the area of discretion of the
executive as to the choice of the action to be taken.

▸ In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U. S. 519, 435 U. S.


558 (1978), we stated that NEPA, while establishing "significant substantive
goals for the Nation," imposes upon agencies duties that are "essentially
procedural." As we stressed in that case, NEPA was designed "to insure a
fully informed and well considered decision," but not necessarily "a
decision the judges of the Court of Appeals or of this Court would have
reached had they been members of the decisionmaking unit of the agency."
NEPA AND PEISS

BANGUS FRY FISHERFOLK, ETAL. VS. HON. LANZANAS ETAL.


▸ 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 court's intervention renders the complaint
without cause of action and dismissible on such ground.”
NEPA AND PEISS

BANGUS FRY FISHERFOLK, ETAL. VS. HON. LANZANAS ETAL.


▸ On the Alleged Patent Illegality of the ECC

▸ Petitioners 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.

▸ 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.
NEPA AND PEISS

BANGUS FRY FISHERFOLK, ETAL. VS. HON. LANZANAS ETAL.


▸ On the Alleged Non-Compliance with the Terms of the ECC

▸ The contention is similarly without merit. The fact that


NAPOCOR's 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.